The Columbus = Dispatch

WHAT WENT ON IN THE SUPREME COURT

School funding: Is it fixed?

Sunday, March 18, 2007

By Joe Hallett

THE COLUMBUS DISPATCH

Web extras

Slide=20 Show: People and scenes of the DeRolph vs. Ohio lawsuit
Graphic:=20 The DeRolph cases
To read the Ohio Supreme Court decisions and other documents = in the=20 DeRolph case, go to http://www.bricker.com/and = type=20 DeRolph in the search box

ERIC ALBRECHT DISPATCH =

Gov. George V. Voinovich, = center, reacts=20 to the Ohio Supreme Court=92s first ruling on March 24, = 1997, that the=20 state=92s system for funding education was unconstitutional = and needed=20 a "complete, systematic overhaul." The ruling gave Voinovich = and=20 state lawmakers one year to fix the system. The day after = the=20 ruling, at a news conference attended by Voinovich, Senate = President=20 Richard H. Finan, left, and House Speaker Jo Ann Davidson, = the=20 governor angrily accused the majority justices of = legislating from=20 the bench and suggested that his administration might defy = the=20 decision.

ASSOCIATED PRESS

Nathan DeRolph=92s name became = synonymous=20 with the 1991 lawsuit that led the state Supreme Court to = declare=20 Ohio=92s school-funding system unconstitutional on March 24, = 1997. The=20 Perry County student is shown here after a rally on Oct. 18, = 1993,=20 at Thornville Elementary School.

A decade ago, the Ohio Supreme Court issued the first = of four=20 rulings that the state school-funding system was unconstitutional. This = week,=20 The Dispatch looks at their lingering effects.=20

Deliberations raged for seven years at the Ohio Supreme Court, where=20 political and philosophical discord among the seven justices sometimes=20 overshadowed the weighty issue at hand.=20

The justices declared Ohio=92s system of funding schools = unconstitutional four=20 times, the first ruling arriving 10 years ago this week. The story of = how they=20 made those decisions has never been told, but now it can be based on = exclusive=20 Dispatch interviews with four of the seven justices.=20

They wrote brilliantly and stretched the bounds of credulity. They = soared=20 sublimely at times and crashed inanely at others.=20

One justice, for instance, wanted to shut down state government until = the=20 legislature fixed the school-funding system. Two others, desperate to = get rid of=20 the case, switched their positions and vainly tried to impose a = solution, only=20 to eat crow. Three justices, meanwhile, bet dinner on the cost of that = solution.=20

The case had a face: Nathan DeRolph, the 15-year-old highschool = freshman at=20 Sheridan High School in Perry County who lent his name to the 1991 = lawsuit=20 against the state by 550 school districts.=20

And it had a profound impact. Since the Supreme Court first ruled the = school-funding system unconstitutional on March 24, 1997, the state has = spent=20 billions on new schools, increased per-student aid 66 percent, and spent = hundreds of millions in extra money for poor schools.=20

Even two of the three Republican justices who originally ruled that = the court=20 had no business taking the DeRolph case now say schoolchildren in Ohio = are=20 better off for the lawsuit being filed.=20

"There=92s just no question that DeRolph has had a positive impact on = schools,"=20 Chief Justice Thomas J. Moyer said.=20

"Even though I maintained it did not belong in our court, the = political=20 reality is there is much more attention focused on education than there = used to=20 be before the case," Justice Evelyn Lundberg Stratton said.=20

Yet, critics say the system remains unconstitutional because it = relies too=20 heavily on the unequal yields of local property taxes, forcing scores of = school=20 districts to live a hand-tomouth existence, begging their voters every = few years=20 for more money.=20

As The Dispatch this week focuses on the state of primary and = secondary=20 education in the post-DeRolph era, it attempts to reconstruct the = Supreme=20 Court=92s deliberations in possibly the most consequential and famous = case in=20 state history. Four justices =97 Moyer, Stratton and fellow Republicans = Andrew=20 Douglas and Paul E. Pfeifer =97 agreed to be interviewed. Republican = Deborah L.=20 Cook and Democrats Alice Robie Resnick and Francis E. Sweeney declined.=20

DeRolph I

On Sept. 10, 1996, Moyer had let the two sides argue the case for 90 = minutes,=20 an hour longer than usual. Afterward, as the justices took their seats = at the=20 round oak table in the deliberation room, the words of school-coalition = attorney=20 Nicholas A. Pittner rang in Douglas=92 ears.=20

"I=92m not asking you to do the General Assembly=92s job; I=92m = asking you to do=20 your job."=20

Douglas viewed the case as having the gravity of the U.S. Supreme = Court=92s=20 1954 Brown v. Board of Education decision, in which Chief Justice Earl = Warren=20 cajoled a partly reluctant court to rule unanimously that a separate = education=20 for whites and blacks was not an equal education.=20

Even before the Ohio justices began deliberating, Douglas had made up = his=20 mind: "My vote was clear and unequivocal. We had to do something."=20

He and Pfeifer, two maverick Republicans who nurtured reputations for = siding=20 with the little guy, wanted to send a signal to Gov. George V. Voinovich = and the=20 GOPcontrolled General Assembly by giving DeRolph the imprimatur of a 7-0 = decision.=20

But as they went around the table, that quickly became impossible.=20

Cook dug in her heels. Schoolfunding decisions, she said, were left = by the=20 people to the governor and lawmakers, not the court. She never budged = from that=20 position.=20

"I always thought that was so bizarre, because the state never raised = that=20 argument," Pfeifer said. "The state never argued that the Supreme Court = of Ohio=20 doesn=92t have jurisdiction to interpret the constitution."=20

Arguing in order of seniority, a majority emerged within the first = five=20 justices: Douglas, Resnick, Pfeifer and Sweeney all favored ruling the = system=20 unconstitutional. Moyer and Stratton were inclined to join Cook but left = an=20 impression with the other four that a 6-1 outcome was possible depending = on how=20 the majority decision was written.=20

"I was certainly much more open to being persuaded," Moyer said.=20

"Cook=92s position was pretty clear: No way; that=92s it," Stratton = said. "I=20 tried to be open-minded. I said, =91OK, I=92ve heard the evidence, read = the briefs;=20 I=92m going to look at whether there=92s anything here that might = persuade me.=92 "=20

Per tradition, Douglas, the senior justice, reached under the table = for the=20 leather bottle containing seven little balls with numbers on them to = determine=20 which justice in the majority would write the case. It was a task that = Douglas,=20 mindful of his legacy as he approached mandatory retirement at age 70, = had=20 wanted for himself. But the ball with Sweeney=92s number came out.=20

For all the historical significance of the case, Pfeifer was struck = by how=20 short the deliberations were, a half-hour max, maybe 20 minutes. As they = left=20 the room, he said, "I still thought we would come out 6-1."=20

During the ensuing months, in the justices=92 offices and the = court=92s=20 anterooms, the deliberations, often one-on-one, continued spontaneously = and=20 ubiquitously. Moyer and Sweeney, who had come to admire each other, "had = very=20 good discussions about it, and I think he was always hopeful he could = persuade=20 me to join the majority opinion," Moyer said.=20

But Moyer was doing his own research and, along with Stratton, = gradually=20 concluding that Cook was correct.=20

"We went through something like 14 drafts before we even got a = dissent,"=20 Stratton said.=20

The March 24, 1997, decision shook Ohio. Sweeney=92s majority opinion = ruled the=20 system unconstitutional and gave the governor and legislature one year = to make=20 it lawful:=20

"We send a clear message to lawmakers; the time has come to fix the = system.=20 Let there be no misunderstanding. Ohio=92s public school financing = scheme must=20 undergo complete, systematic overhaul."=20

The majority sent the case back to the trial judge, Linton D. Lewis = Jr. of=20 Perry County, to oversee the legislature=92s efforts to comply with the = court=92s=20 order.=20

Moyer wrote the dissent: "The issues of the level and method of = funding (Ohio=20 schools), and thereby the quality of the system, are committed by the=20 Constitution to the collective will of the people through the = legislative=20 branch."=20

Pfeifer and Douglas worried that the close decision would spark a = firestorm=20 of protests and provide political wiggle room for Voinovich and = lawmakers.=20

"I thought there was a real chance to get six votes, and the failure = to get=20 that hurt a lot in terms of getting the legislature to queue up and = address this=20 right away," Pfeifer said. "The second thing that hurt was Voinovich=92s = initial=20 reaction."=20

Joined by Senate President Richard H. Finan and House Speaker Jo Ann = Davidson=20 at a Statehouse news conference the next day, Voinovich, who had labeled = himself=20 the "education governor," angrily blasted the majority justices, = accusing them=20 of legislating from the bench and suggesting that his administration = might defy=20 the decision.=20

Meanwhile, the state=92s major newspaper editorial boards piled on. = Douglas=20 thinks they were stoked in advance by Voinovich=92s top aides. The = Dispatch called=20 the decision "one highly injudicious lurch." The Plain Dealer of = Cleveland said=20 it could be "construed as a blank check" by Lewis. The Cincinnati = Enquirer said=20 the decision meant that "education policy for 11 million Ohio residents = will be=20 dictated in a rural flyspeck on the state map, by a county judge who = answers to=20 less than one-thousandth of our population."=20

The reaction stung the court=92s majority, subsequently labeled "the = Gang of=20 Four" by Toledo=92s newspaper, The Blade.=20

"We were totally defenseless," Pfeifer said. "We don=92t have spin = doctors. It=20 was like shooting fish in a barrel when they came after us."=20

The four justices sought solace in one another and did not publicly = respond.=20

"There was never any hesitation among the four of us about whether = what we=20 did was right," Douglas said. "Did we vent among ourselves? Of course we = did. We=20 felt at times that we were on a lonely island."=20

Voinovich=92s response to the court order was to ask Ohio voters for = a=20 penny-on-the-dollar increase in the state sales tax to raise $1.1 = billion a=20 year, half for schools and half for property-tax relief. On May 5, 1998, = voters=20 crushed the issue.=20

Meanwhile, the legislature had made changes to the school-funding = formula and=20 had begun pouring hundreds of millions of dollars more into classrooms = and for=20 the construction of new schools. Still, Lewis ruled on Feb. 26, 1999, = that the=20 state had not complied with the Supreme Court=92s order for a "complete, = systematic overhaul" of school funding. The state appealed Lewis=92 = ruling to the=20 Supreme Court.=20

DeRolph II

As the justices gathered for a second time in the deliberation room = to take=20 up the DeRolph case, there wasn=92t much more to say. The pounding the = majority=20 had taken from Voinovich and the press made it easier for Cook, Moyer = and=20 Stratton to restate their position that the case didn=92t belong before = the court.=20

"Now it=92s getting harder, the other three are gone, and there=92s = no hope of=20 getting them," Pfeifer said.=20

This time, Resnick=92s ball was drawn from the bottle. As the four = discussed=20 writing the majority opinion, Pfeifer proposed a drastic approach. He = wanted to=20 create a constitutional crisis, much like the 1985 savings-and-loan = crisis,=20 which required quick action by lawmakers. Pfeifer wanted to tell the=20 administration and legislature that they couldn=92t spend another dime = until the=20 school-funding system was fixed.=20

"I knew it would create a bit of a constitutional crisis and = (legislators)=20 would be enormously angry at us, but I always thought that was the = answer to=20 this. Blame the court and do what=92s right, and go home and say, = =91Geez, folks,=20 the court made us do it.=92 "=20

Sweeney, Resnick and Douglas refused to sign on. Although Pfeifer = tried to=20 reassure him that the crisis would be solved in a week, Douglas said he = couldn=92t=20 take that risk.=20

"I considered it, but then what came into my mind was, what about the = mothers=20 who couldn=92t get their support checks and what about the injured = workers who=20 could lose their homes because the checks wouldn=92t go out? "=20

In a 4-3 decision on May 11, 2000, the court upheld Lewis again, = although=20 Resnick=92s majority opinion oozed praise for the millions more that = Gov. Bob Taft=20 and lawmakers had allocated to primary and secondary education.=20

In a separate concurring opinion, Douglas mischievously established a = fictitious "George" character and blamed him for failing Ohio=92s = schoolchildren.=20 Court observers quickly ascribed a revenge factor =97 Douglas = retaliating against=20 Voinovich for bringing so much heat against the majority.=20

"It was only coincidental that the governor=92s name was George," = Douglas said=20 recently with a laugh.=20

After the second ruling, Taft and lawmakers continued to pour = millions more=20 into primary and secondary education and, on June 20, 2001, the court = heard=20 arguments on whether the latest measures met the court=92s mandate.=20

DeRolph III

Now more than four years after the court had rendered its first = De-Rolph=20 verdict, Moyer was desperate to get rid of the case. Stratton, too, was = alarmed=20 by the legislative turmoil and unpredictability for school districts = created by=20 two successive rulings that the funding system was unconstitutional.=20

In moves they acknowledged defied their aversion to legislating from = the=20 bench, Moyer and Stratton agreed to join a new majority to craft a=20 school-funding fix and impose it upon the legislature.=20

"It was not typical for a majority of the court to say it=92s still=20 unconstitutional and this is precisely what you have to do to make it=20 constitutional," Moyer said. "I was uncomfortable with that but felt = that every=20 rule has an exception, and to me this was the exception because there = was so=20 much at stake in terms of the disruption and uncertainty.=20

"I was uncomfortable with the court having the General Assembly = reporting=20 back to it, like we were monitoring them and all that. What really = helped was we=20 were able to agree, the four of us, that there wasn=92t a whole lot more = they had=20 to do."=20

Stratton, educated in missionary schools in Thailand, had approached = the=20 DeRolph case from the first day "with this attitude from life = experiences that=20 it=92s more than money that makes education work."=20

Still, she reasoned that there was no way to undo the original = majority=20 decision holding the funding system unconstitutional and, in an effort = to end=20 the case, decided to accept "a pragmatic compromise to solve an impasse = I=20 believe has occurred too long."=20

Douglas was willing to join a new majority, but Sweeney and Resnick, = while=20 still believing the system was unconstitutional, adamantly refused to = tell=20 lawmakers how to fix it. Moyer and Stratton had hoped to persuade Cook = to change=20 her position, but she remained intransigent. So, Pfeifer was needed.=20

Thus, a new majority was formed in the deliberation room =97 Moyer, = Stratton,=20 Pfeifer and Douglas. And this time, Moyer=92s ball came out of the = bottle.=20

That=92s when the horse-trading began.=20

The hardest part of the DeRolph case always was =97 and remains =97 = finding a=20 solution that reduces the reliance on local property taxes in the = constitutional=20 quest for a thorough and efficient system of schools.=20

Rumors abounded that Douglas worked behind the scenes with Sen. Jeff=20 Jacobson, R-Vandalia, on a solution, but both denied they ever talked = while the=20 case was pending. Likewise, Moyer denied that his phone conversations = with=20 officials in the governor=92s office ever were to discuss the case.=20

The four justices finally arrived at a remedy requiring the = legislature to=20 change the calculation of basic state aid to school districts and to = speed up=20 full implementation of parity aid, a supplement for poorer school = districts.=20

One afternoon, Pfeifer and Douglas met with Moyer in his Rhodes Tower = office=20 overlooking the Statehouse and debated how much their impending fix = would cost=20 the legislature.=20

Moyer and Pfeifer cited Department of Education evidence in court = briefs that=20 would put the cost between $300 million and $400 million. Douglas said = the cost=20 would be $1 billion or more. Pfeifer bet him dinner, and Moyer said = he=92d buy=20 dessert if Douglas was right.=20

On the night of Sept. 6, 2001, the day the new majority ruled that = the system=20 remained unconstitutional but provided lawmakers with a road map for = fixing it,=20 Pfeifer was on the phone to Douglas.=20

"He called me at 6 o=92clock that night and said, =91Where do you = want to eat?=92 "=20 Douglas recalled.=20

Hours after the decision was released, Senate President Finan was the = first=20 to publicly estimate that the court=92s fix would cost $1.2 billion, = rather than=20 the $300 million Moyer, Stratton and Pfeifer had thought. Later, state = budget=20 analysts and officials for the school coalition agreed with the $1.2 = billion=20 price tag.=20

"I remember being truly taken aback," Stratton said.=20

She and Moyer made public statements indicating that their decisions = were=20 based on faulty data in the case briefs; Pfeifer interpreted those = statements as=20 improper invitations to the state to ask the court to reconsider the = case.=20

"We=92re not supposed to announce how we=92re going to vote and to me = that was a=20 clear signal: =91File a motion for reconsideration, I=92ll grant it,=92 = and I think=20 that=92s an ethical violation," Pfeifer said.=20

Moyer said the statements were not out of line: "The amount was so = high that=20 I would think the state would have filed for reconsideration regardless = of what=20 anybody said."=20

Taft asked the court to reconsider its third DeRolph decision on = Sept. 17,=20 2001. While his motion was pending, messages were secretly passed = between the=20 coalition of suing schools and the administration to assess interest in=20 discussing a settlement. Nothing happened, and on Dec. 13, 2001, the = court=20 appointed Howard S. Bellman, a Wisconsin mediator, to oversee settlement = negotiations.=20

Three months later, Bellman notified the court that mediation had = failed. The=20 case was back before the justices. Mindful that Douglas would be forced = to=20 retire at year=92s end, Moyer thought it was crucial for the case to end = on this=20 court=92s watch.=20

"We hope we can count to four before Dec. 31," he told a reporter.=20

DeRolph IV

Back in the deliberation room, the old majority =97 Sweeney, Resnick, = Douglas=20 and Pfeifer =97 had reunited to, for a fourth time, declare the system=20 unconstitutional, effectively restoring the DeRolph I and II rulings. = Despite=20 the tremendous strides made by Taft and the legislature, the majority = ruled anew=20 that they had failed to make "a complete systematic overhaul of the=20 school-funding system."=20

Cook, once again, didn=92t budge, and Moyer and Stratton reluctantly = joined=20 her. After going out on a limb to prescribe a school-funding remedy in = DeRolph=20 III, Moyer was prepared to fine-tune that remedy and get rid of the = case.=20 However, he couldn=92t get a fourth vote.=20

"I still felt that we should put an end to it by telling the General = Assembly=20 what you need to do," Moyer said.=20

Stratton said she wanted to join Moyer to amend the DeRolph III = solution but=20 saw the futility of that position when the other four plus Cook balked.=20

"In any other normal case, if you have faulty data, you do a motion = to=20 reconsider, you get the true data and you amend the decision to reflect = the true=20 data," Stratton said. "They didn=92t do that."=20

In the end, she opposed the finding of unconstitutionality but agreed = to give=20 up the case, an option floated after the justices had left the = deliberation=20 room. Pfeifer, a Bucyrus hog farmer, was assigned the writing when his = ball=20 rolled out of the bottle.=20

"Francis (Sweeney) was the one who came to me as I was writing it and = said,=20 =91You know, I think we ought to cut this case loose.=92 I was not very = receptive=20 and said, =91Let me think about it for a while,=92 and I went home and = got on the=20 tractor and thought about it for a while."=20

Here is what Pfeifer thought as November wore on: Maureen O=92Connor, = Taft=92s=20 lieutenant governor, had just been elected to the court to replace = Douglas at=20 year=92s end. If the court again ordered the governor and legislature to = report=20 back what they had done to fix the system, Pfeifer conjectured, they = merely=20 "will tweak it a little bit and send it back to us with the belief that = it will=20 be ruled constitutional" with O=92Connor on the court.=20

Although he said that he had never discussed the matter with = O=92Connor,=20 Pfeifer said, "I concluded that Francis was right, and the best position = in=20 which we could leave the school districts of this state that brought = this=20 litigation was one final declaration that it=92s still unconstitutional, = dismiss=20 the case, and then (the state) can=92t come running back with a new = court and=20 suddenly get it blessed as constitutional."=20

Douglas floated one last-ditch proposal to force a solution by the = state.=20

"We were coming very close to the only thing left was to put Taft in = jail, or=20 the General Assembly in jail," he said. "I felt there was an obligation = for us=20 to take a step back."=20

Douglas wanted to make state Auditor Jim Petro and Treasurer Joseph = T. Deters=20 defendants in the case, "and then order them not to pay the General = Assembly, or=20 the court, until this matter is resolved. We wouldn=92t have to put = anybody in=20 jail." The other justices balked.=20

On Dec. 11, 2002, the court ruled 4-3 that Ohio=92s school-funding = system=20 remained unconstitutional and ordered lawmakers to fix it. Then, the = court=20 relinquished its jurisdiction in the case.=20

Moyer and Pfeifer told reporters at the time that the court expected = the=20 legislature to comply with its order. But Taft and legislative leaders,=20 heartened that the court had given up its hammer, said they didn=92t = have to do=20 anything.=20

"The DeRolph case is over," Taft declared.=20

mailto:%20jhallett@dispatch.com<= /A>=20