DeRolph v. State: R.I.P.
Ohio’s school-funding system has been tied up in litigation for more than six years, having been reviewed by the Ohio Supreme Court on five different occasions. The school-funding case, known as DeRolph vs. State, is finally over, and appropriately, it went out with a whimper. A majority on the high court recently held that “the duty now lies with the General Assembly” to develop an educational system consistent with Ohio’s Constitution. Too bad it took so long for a majority of the justices to come to this realization.
In 1997, Chief Justice Thomas Moyer wrote a dissenting opinion in the first school-funding decision, pointing out that determining the appropriate funding system for public schools requires a series of policy decisions that the courts are not in position to make. These decisions, which are political budgetary value judgments, require, according to Moyer, “a balancing of interests that are textually and traditionally committed to the General Assembly.” Moyer concluded that “the judicial branch is neither equipped nor empowered to make these kinds of decisions.”
Unfortunately, for the past six years the court has forced the General Assembly to make budgetary and education policy decisions with an eye toward satisfying an overreaching majority of the court, instead of focusing on developing a sound system for funding schools.
Education policy has focused on spending hundreds of millions of additional dollars on the existing system, which is failing to prepare Ohio’s schoolchildren adequately. The General Assembly did not have the freedom to try new and innovative solutions, such as expanding the successful Cleveland school-voucher program or providing education tax credits to enhance school choice, because it was focused on satisfying the court’s dictates.
The Ohio Constitution gives the General Assembly the authority to use its power of taxation to create a thorough and efficient system of schools throughout the state. Samuel Quigley, one of the delegates to Ohio’s Second Constitutional Convention in 1850-51, summarized this authority as a “grant of power to the legislature” to raise the funds and “to carry out in detail” a good and efficient system of common school education.
The framers of the Ohio Constitution left it to the legislature’s discretion to determine the details of the system for funding schools. They did not intend for the judiciary to dictate these public-policy decisions from the bench. In this way, the Ohio Constitution is modeled after the U.S. Constitution. James Madison’s vision for the American form of government was one where legislators enact public policy through the law-making process and the courts ensure the laws enacted by the legislature are neutrally and fairly applied.
Over the past decade, on major public-policy matters, including school funding, tort reform and workers-compensation reform, a majority of the justices turned the framers’ intended separation of powers on its head. The court has effectively made itself a superlegislature willing to second-guess any law enacted by the General Assembly and signed by the governor.
Ohioans appear to have had enough of the activist Ohio Supreme Court and have recently elected judicial candidates who have pledged to act with restraint. For example, this past November, former Lt. Gov. Maureen O’Connor, who pledged to interpret the law, not make it up from the bench, was elected to replace one of the most egregious activist justices, Andrew Douglas, who retired. In a separate election, Justice Evelyn Stratton, who has been a frequent dissenter from the activist majority, was re-elected despite a well-funded challenge.
The recent school-funding decision, effectively ending the court’s role in dictating education policy to the General Assembly, gives hope that Ohio’s highest court is ready to return to its traditional role as a neutral arbiter. If so, the General Assembly will be able to focus on enacting new and effective solutions to Ohio’s crisis in education without having to worry about the judiciary’s overreaching interference.
David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute.
