IN THE SUPREME COURT OF OHIO

State of Ohio ex rei. Ohio Congress of Parents and Teachers, et al., Appellants/Cross-Appellees, Case No. 04-1668 v. State of Ohio Board of Education, et al., Appellees/Cross-Appellants. On Appeal From the Franklin County Court of Appeals, Tenth Appellate District , - - - -

MERIT BRIEF OF APPELLEES/CROSS-APPELLANTS COMMUNITY SCHOOL DEFENDANTS

Donald J. Mooney, Jr. (0014202) ULMER & BERNE LLP 600 Vine Street, Suite 2800 Cincinnati, Ohio 45202-2409 Telephone: (513) 698-5070 Facsimile: (513) 698-5071 dmooney(a:)ulmer.com Counsel for Appellants/Cross-Appellees Stephen P. Carney, Esq. (0063460) Senior Deputy Solicitor Office of the Ohio Attorney General 30 East Broad Street, 1i h Floor Columbus, Ohio 43215-3400 scarney(a:)ag.state.oh. us Counsel for State Appellees/Cross-Appellants

Fordham E. Huffman (0020870) Chad A. ReadIer (0068394) Counsel ofRecord JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus, OH 43215-2673 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 fehuffman@jonesday.com careadler@jonesday.com Counsel for Appellees/Cross-Appellants Community School Defendants Academy of Business & Technology (Toledo), Academy of Cleveland, Academy of Dayton, Alternative Education Academy, Aurora Academy, Autism Academy of Learning, Citizen's Academy, Colin Powell Leadership Academy, Cornerstone Academy, Dayton Academy, The Dayton View Academy, Dohn Community High School, Eagle Heights Academy, East End Heritage

David G. Jennings, Esq. (00404487) Mark Landes, Esq. (0027227) ISAAC, BRANT, LEDMAN & TEETOR LLP 250 E. Broad St., Suite 900 Columbus, Ohio 43215-3742 Counsel for Appellee University of Toledo Charter School Council

Donald C. Brey, Esq. (0021965) Charles R. Saxbe, Esq. (0021952) Timothy Horton, Esq. CHESTER, WILCOX & SAXBE LLP 65 East State Street, Suite 1000 Columbus, Ohio 43215 John B. Schomer, Esq. (0055640) BRENNAN, MANNA & DIAMOND, LLC 75 East Market Street Akron, Ohio 44308 Counsel for Appellee/Cross-Appellant White Hat Management

Community School, The Edge Academy, Electronic Classroom of TomoITow (ECOT), Elyria Community School, The Family Learning Center, Greater Cincinnati Community Academy, Hamilton County Math & Science Academy, HOPE Academy Broadway, HOPE Academy Brown St., HOPE Academy Cathedral, HOPE Academy Chapelside, HOPE Academy Cuyahoga Campus (West), HOPE Academy Lincoln Park, HOPE Academy University Campus, Horizon Science Academy, Cleveland, Horizon Science Academy, Columbus, Ida B. Wells Community Academy, Imani Leadership Institute, Intergenerational School, International Preparatory School, ISUS Trade and Technology Prep Community School of Cincinnati, ISUS Trade and Technology Prep Community School of Dayton, Life Skills Center of Akron, Life Skills Center of Cincinnati, Life Skills Center of Clark County, Life Skills Center of Cleveland, Life Skills Center of Middletown, Life Skills Center of Trumbull County, Life Skills Center of Youngstown, Lighthouse Community School, Lorain Community School, Meadows CHOICE Community School, Millennium Community School, The M.O.D.E.L. Community School, Oak Tree Montessori, Old Brooklyn Montessori School, Omega School of Excellence, Parma Community School, Quest Academy Community School, Rhea Academy, Richard Allen Academy, Richard Allen Preparatory Academy, Riverside Academy, Springfield Academy of Excellence, The Teresa A. Dowd Community School, The Toledo Academy of Learning, W.C. Cupe Community School, W.E.B. DuBois Community Academy, Washington Park Community School, Westpark Community School, Youngstown Community School, Youthbuild Columbus Community School, Gregory Clarett, Michael Frye, Marjorie Gera, Dennis Marsh, Mary Walters, Linda Weeks, and Stephanie Zapka.

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES
INTRODUCTION STATEMENT OF FACTS

iii
1 4

A.
B.

Ohio's Community School Program The General Assembly's Oversight Of Community Schools Plaintiffs' Constitutional Challenge To Ohio's Public Community Schools Community School Defendants' Proposition Of Law No. 1 And Response To Appellants' Proposition Of Law No.1: Ohio's Community School Program Does Not Violate The "Thorough And Efficient System Of Common Schools" Requirement In Article VI, Section 2 Of The Ohio Constitution
A.

4 6 7
8

C.
ARGUMENT

I.

9 10 10 14 15 19 23 26 27 29

Community Schools Are Part Of The State's System Of "Common Schools."

1.

Community Schools Are Public Schools Community Schools Are Publicly Owned Community Schools Are Not Private, Religious Or Nonpublic Schools Community Schools, Like Their Sister Traditional Public Schools, Must Meet Statewide Standards Plaintiffs Mischaracterize The Community Schools' Performance ,

2. 3. 4. 5.
B.

Plaintiffs Fail To State A Viable Claim Under The "Thorough And Efficient" Clause 1. 2. Neither DeRolph Nor Any Other Precedent Authorizes A Cause Of Action Here The Funding Mechanism For Community Schools Satisfies The Thorough And Efficient Clause

II.

Community School Defendants' Response To Appellants' Proposition Of Law No.2: Community Schools Are Independent Of Any School District And Thus Do Not Violate Article VI, Section 3 Of The Ohio Constitution
A.
B.

32 33 35 37

The General Assembly Governs The State's Public Education System Plaintiffs' Authority Confirms The State's Supreme Role In Education Matters Community Schools Are Not School Districts

C.

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TABLE OF CONTENTS (continued) Page

III.

Community School Defendants' Proposition Of Law No.2 And Response To Appellants' Proposition Of Law No. 3: Community Schools, Which Do Not Rely On Local Tax Levies, Do Not Violate Article XII, Section 5 Of The Ohio Constitution Community School Defendants' Proposition Of Law No.3 And Response To Appellants' Proposition Of Law No.4: Funding For Public Community Schools Does Not Violate Sections 4 Or 5 Of Article VIII Of The Ohio Constitution A. Plaintiffs Fail To Allege A Viable Claim Under Article VIII, Section 4 Plaintiffs Fail To Allege A Viable Claim Under Article VIII, Section 5

39

IV.

42 43 44 47
49

B.
V.

Every Other State Court To Consider Similar Claims Has Rejected Them

CONCLUSION

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TABLE OF AUTHORITIES FEDERAL CASES

F.c.c.

v. NextWave Personal Communications Inc. (2003),537 U.S. 293

37 12 9, 34 .44 1, 10

Gilmer v. City ofCleveland (N.D. Ohio 1985),617 F. Supp. 985 Spivey v. State ofOhio (N.D. Ohio 1998),999 F. Supp. 987 Wisconsin v. Yoder (1972), 406 U.S. 205 Zelman v. Simmons-Harris (2002),536 U.S. 639

omo STATE CASES

Bd. ofEduc. ofAberdeen-Huntington Local Sch. Dist. v. State Bd. ofEduc. (4th Dist. 1962), 116 Ohio App. 515 Akron City Sch. Dist. v. Parents ofStudents Attending Edge Academy ofAkron and Ida B. Wells (10th Dist. Mar. 21,2002),2002 WL 433585 Bd. ofEduc. ofMarion Local Sch. Dist. v. Bd. ofEduc. ofMarion Cty. (1958), 167 Ohio St. 543 Bd. ofTrs. ofSch. Teachers' Pension Fundv. State ex reI. Bowers (5th Dist. 1919), 14 Ohio App. 139, affirmed sub nom by Shinnick v. State ex rei. Bowers (1920), 101 Ohio St. 246 Beifuss v. Westerville Bd. ofEduc. (10th Dist. Aug. 12, 1986), 1986 WL 9049 Brady v. Safety-Kleen Corp. (1991),61 Ohio St.3d 624 Butler Cty. Transp. Improvement Dist. v. Tracy (12th Dist. 1997), 120 Ohio App.3d 346 Chambers v. St. Mary's Sch. (1998),82 Ohio St.3d 563 City ofCleveland v. Lausche (8th Dist. 1943), 71 Ohio App. 273 DeRolph v. State (1997), 78 Ohio St.3d 193 DeRolph v. State (2002), 89 Ohio St.3d 1 DeRolph v. State (2002), 97 Ohio St.3d 434 Denison Univ. v. Bd. ofTax Appeals (1965), 2 Ohio St.2d 17 Gerke v. Purcell (1874), 25 Ohio St. 229 Joyce v. Gen. Motors Corp. (1990), 49 Ohio St. 3d 93

36 1, 38 34

11 34 8 .46, 47 7, 37 12
passim

17, 27, 29, 46 27 11 .17 9

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State ex reI. Kauer v. Defenbacher (1950), 153 Ohio St. 268 Kelleys Island Caddy Shack, Inc. v. Zaino (2002), 96 Ohio St.3d 375 Long v. Bd. ofTrs. (10th Dist. 1926),24 Ohio App. 261 Malcolm-Smith v. Goff(8th Dist. Nov. 1, 1999), 1999 Ohio App. LEXIS 4915 rev'd on other grounds (2000), 90 Ohio St. 3d 316 Maumee Valley Guidance Ctr., Inc. v. Witsamgn (10th Dist. Sept. 4, 1980), 1980 Ohio App. LEXIS 12669 Miami Valley Child Dev. Ctrs. v. Dist. 925 Servo Employees Int'l Union (2d Dist. Feb. 22, 2002), 2002 Ohio App. LEXIS 744 Miller v. Korns (1923), 107 Ohio St. 287 State e reI. Eichenberger v. Neff(10th Dist. 1974), 42 Ohio App.2d 69 Okubo
V.

43, 44 9 .47

.34, 35 12 12 17, 29 43,47 38 44 35 8 .34 : 3, 15,30 33 33 37 44 12 43,44

Shimizu (2d Dist. May 24, 2002), 2002 WL 1042086

Perkins V. Stockert (2d Dist. 1975), 45 Ohio App.2d 211 Princeton City Sch. Dist. Bd. v. Zaino (2002), 94 Ohio St.3d 66 Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193 Shaw
V.

Bd. ofEduc. ofCity Sch. Dist. ofColumbus (10th Dist. Apr. 21, 1934), 1934 WL 1788
;

Simmons-Harris V. Goff(1999), 86 Ohio St.3d 1

State ex reI. Bishop v. Bd. ofEduc. ofMt. Orab Vill. Sch. Dist. (1942), 139 Ohio St. 427 State ex rei. Core v. Green (1953), 160 Ohio St. 175 State ex rei. Cuyahoga Cty. 82 Ohio St.3d 496
V.

State Personnel Bd. ofRev. (1998),

State ex reI. Dickman v. Defenbacher (1955), 164 Ohio St. 142 State ex reI. Freedom Communications, Inc. v. Elida Cmty. Fire Co. (1998), 82 Ohio St.3d 578 State ex reI. Leaverton v. Kerns (1922), 104 Ohio St. 550

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State ex rei. Maurer v. Sheward (1994), 71 Ohio St.3d 513 State ex rei. Speeth v. Carney (1955), 163 Ohio St. 159 State ex rei. Taft v. Franklin Cty. Ct. of C. P. (1998), 81 Ohio St.3d 480 State ex rei. Tomino v. Brown (1989), 47 Ohio St.3d 119 State ex reI. Tritt v. State Employment Relations Bd. (2002), 97 Ohio St.3d 280 State Teachers Ret. Bd. v. Bd. ofTax Appeals (1964), 177 Ohio St. 61 Vail v. Plain Dealer Publ'g Co. (1995), 72 Ohio St.3d 279 Wilkinson v. Maurer (10th Dist. Apr. 8, 1993), 1993 WL 114448 Wolf v. Cuyahoga Falls City Sch. Dist. Bd. ofEduc. (1990), 52 Ohio St.3d 222 OTHER STATE CASES In re Grant ofCharter Sch. Application (N.J. 2000), 753 A.2d 687 Council ofOrgs. and Othersfor Educ. v. Engler (Mich. 1997) 566 N.W.2d 208 Utah Sch. Bds. Ass'n v. Utah State Bd. ofEduc. (Utah 2001), 17 P.3d 1125 Wilson v. State Bd. ofEduc. (Cal. Ct. App. 1999), 89 Cal. Rptr.2d 745 STATE CONSTITUTIONAL PROVISIONS
Ohio Const. Art. I, Sec. 7 Ohio Const. Art. VI, Sec. 2 Ohio Const. Art. VI, Sec. 5 Ohio Const. Art. VIII, Sec. 4 Ohio Const. Art. VIII, Sec. 13 Ohio Const. Art. VIII, Sec. 14 Ohio Const. Art. XII, Sec. 5

16 43 16, 35 44 49 33 9 15 34

48, 50 .48 49 48

32 9, 15,26 46 43 46 46 39

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FEDERAL CONSTITUTIONAL PROVISIONS AND STATUTES

26 U.S.C. 501(c)(3) Pub. L. No. 107-110 (H.R. 1) (2002) 11, 14 .45

STATE STATUTES
R.C. 121.22 R.C. 319.28 R.C. Chapter 323 R.C. 901.80 R.C. 1702.01(C) R.C. 1702.01(P) R.C. 2921.42 R.C. 2921.43 R.C. 3301.0710 R.C. 3301.0712 R.C. 3301.0715 Former R.C. 3301.78 (repealed) R.C. 3301.79 R.C. 3302.03 R.C. 3311.01 R.C. 3311.19 R.C. 3311.71 R.C. 3313.534 R.C. 3313.608 R.C. 3313.81 R.C. 3313.813(C)(I)-(3) R.C. 3313.91 R.C. 3313.98 R.C. 3313.981 R.C. 3314.01 R.C. 3314.01(B) R.C. 3314.011 15 41 41 46 11, 14 11 14 14 19 19 19 20 21 20 37 18 18 21 21 28 28 18 40, 41 41 10 2, 3, 10,37 22

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R.C. 3314.012(B) R.C. 3314.015 R.C. 3314.02(A)(1) R.C. 3314.02(C) R.C. 3314.02(C)(1) R.C. 3314.023 R.C. 3314.03 R.C. 3314.03(A) R.C. 3314.03(A)(1) R.C. 3314.03(A)(2)-(4) R.C. 3314.03(A)(3) R.C. 3314.03(A)(7) R.C. 3314.03(A)(8) R.C. 3314.03(A)(10) R.C. 3314.03(A)(11) R.C. 3314.03(A)(11)(a) R.C. 3314.03(A)(11)(c) R.C. 3314.03(A)(11)(d) R.C. 3314.03(A)(11)(e) R.C. 3314.03(A)(11)(f) R.C. 3314.03(A)(11)(g) R.C. 3314.03(A)(13) R.C. 3314.03(A)(18) R.C. 3314.03(A)(22) R.C. 3314.03(A)(24) R.C. 3314.03(B) R.C. 3314.03(D)(5) R.C. 3314.03(11)(d) R.C. 3314.06 R.C. 3314.06(E) R.C. 3314.07 R.C. 3314.07(B)(2) R.C. 3314.072

20 13 12 5 12 22 13 21 11 21 19 10 22 10 19 19, 21 10, 17 19,20,21,38 22 21 19 13 22 25 20 19 13 47 10 21 13 22 12, 13,22

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R.C. 3314.073(A) R.C. 3314.074(A) R.C. 3314.08 R.C. 3314.08(A)(1) R.C. 3314.08(A)(10) R.C. 3314.08(B)(1) R.C. 3314.08(B)(2) R.C. 3314.08(B)(L) R.C. 3314.08(C) R.C. 3314.08(D) R.C. 3314.08(1) R.C. 3314.10 R.C. 3314.11 R.C. 3316.20 R.C. Chapter 3317 R.C. 3317.01 R.C. 3317.011 R.C. 3317.012 R.C. 3317.02 R.C. 3317.02(N) R.C. 3317.022(A)(1) R.C. 3317.024(K) R.C. 3318.02-.38 R.C. 3318.50(B) R.C. 3318.50(C) R.C. 3318.50(D) R.C. Chapter 3365 R.C. 3365.02 R.C. 3706.041-042 R.C. 5705.1 0 R.C. 6109.30

13 14,45 10, 19 39 40 40 19 19 40 39,40 10 10 13 46 40 39 40 39 39 40 40 28 31 45 46 45 41 40 46 41 46

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OTHER AUTHORITIES
House Bill 66 , 4 6 7 38 .14, 15 17 43 36

House Bill 364 (effective Apr. 2003) House Bill 94 (effective Sept. 2001) Ohio Administrative Code 3301-29-01 Ohio Ethics Comm'n, Adv. Op. No. 2003-01 Community Schools (Oct. 17,2003) 1933 Ohio Op. Atty. Gen. No. 1409 1996 Ohio Op. Atty. Gen. No. 96-060 (Nov. 21, 1996), 1996 WL 708356 Proceedings and Debates of the Constitutional Convention of the State of Ohio - 1912

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INTRODUCTION
In this peculiar case, one element of Ohio's public school system claims that another element of the public school system, by its very existence, violates the Ohio Constitution. The plaintiffs raising these constitutional questions include members and supporters of Ohio's traditional public schools, a system that dates back some 150 years. The group they seek to expel from the public school ranks is Ohio's family of charter schools, called "community schools." The community school program "is part of a broader undertaking by the State to enhance the educational options" of Ohio's schoolchildren living in challenged school districts, where students have historically underachieved. Zelman v. Simmons-Harris (2002),536 U.S. 639,647. The program affords innovative Ohioans the opportunity to offer public education to students and their parents seeking an alternative to a traditional public school, allowing those students the chance to fmd the educational environment that best suits their individual needs. In this way, community schools complement the State's existing traditional public schools. Despite these worthy efforts, critics of the program remain. Chief among them are the Ohio Federation of Teachers and Akron City School District as well as the other plaintiffs in this action, who, it seems, have made little effort to conceal their dislike for parental choice. For reasons that seem more political than prudent, plaintiffs aim to close the community school doors for good. Specifically, they are asking the Court to invoke the state constitution to end a program enjoyed by the nearly 60,000 children who currently attend one of Ohio's 240
1

Suit Aims at Charter Schools, Columbus Dispatch, May 15,2001 ('''Students are being exploited and parents are being deceived,' said Tom Mooney, president of the Ohio Federation of Teachers.") (Supp. 1); Akron City Sch. Dist. v. Parents afStudents Attending Edge Academy ofAkron and Ida B. Wells (10th Dist. Mar. 21, 2002), 2002 WL 433585, at *1, 4-5 (detailing Akron's unlawful refusal to bus children attending start-up community schools, which forced those schools to cut "programs, food service, and supply purchases, including computers and workbooks" to pay for student transportation).

1 See

community schools. But their constitutional arguments are without legal support, and are based on a skewed understanding of the community school program. In claiming that the schools are incompatible with the constitutional requirement of a system of "common schools," plaintiffs overlook the fact that community schools are "public school[s], ... part of the state's program of education." R.C. 3314.01 (B). They are publicly funded, nonsectarian, and open to all students. In addition to adhering to state and federal standards, including proficiency testing and the No Child Left Behind Act, community schools must also adhere to their contract with their public sponsor, which requires the schools to comply with a host of other standards. On top of that, community schools are subject to the State's continued oversight, and, unlike their traditional public school counterparts, the demands of parents. Without interested parents, no community school can remain open. Plaintiffs also overlook the fact that there is no precedent for their sweeping claims. Most conspicuous is their argument that community schools violate the requirement that Ohio's schools be "thorough and efficient," a claim that relies on the series of decisions in DeRolph. Plaintiffs read those cases to say that Article VI, Section 2 of the Ohio Constitution authorizes a cause of action whenever a party associated with the public education system believes it has been impacted unfairly by some measure of education law, no matter how great or widespread the alleged injury. But those decisions, as all recall, arose under unique circumstances far different from those alleged here, constituting a "wholesale constitutional attack" on Ohio's system of funding public elementary and secondary education." DeRolph v. State (1997),78 Ohio St.3d 193, 197. This case, in contrast, involves a narrow challenge to a subset of the school funding laws, and is at bottom simply a fight over education policy. Crediting plaintiffs' argument would

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transform the thorough and efficient clause into a vehicle for constitutional suit after suit by parties who in one way or another are unhappy with some aspect of our education system. Nor are plaintiffs' other constitutional claims any more meritorious. For instance, they contend that community schools are "school districts" even though the General Assembly has made clear that they are not. See R.C. 3314.01(B) (stating that a community school is "independent of any school district"). They contend that local tax dollars are spent on community schools in violation of our state constitution, yet concede that "money given to community schools comes from the State's bank account." Appellants' Merit Brief ("App. Br.") at 45 (emphasis added). And they contend that public community schools that are publicly regulated and carry out a public purpose cannot be the beneficiaries of public funding, despite mountains of precedent to the contrary. None of these claims are viable as a matter oflaw. The Court has already rejected similar constitutional arguments in the setting of school choice. See Simmons-Harris v. Goff(l999), 86 Ohio St.3d 1, 16-17 (school vouchers). Although the Court ultimately struck down the voucher program, it did so only because the law enacting the program violated the one-subject rule. In rejecting a number of other constitutional grounds for striking the law, the Court observed that the program did "not have an impermissible legislative purpose or effect," and that the General Assembly, in enacting the parental choice program, "took extraordinary measures" to target school districts "in need of state assistance." Id. at 10, 13. Like the voucher program, the community school law creates a "significant, substantive program" to assist children in educational need. Unlike private vouchers, it does so within the framework of our public school system. While the community school defendants disagree with plaintiffs' views on public education, we do not suggest that their voices be silenced. Political debate, particularly in the

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education arena, helps drive our State's public policy. And while the opponents of parental choice may have lost the political debate thus far, additional rounds are already underway. See House Bill 66 (proposing further modifications to the community school program). Admittedly, Ohio's community schools have experienced some growing pains in their delicate first years of operation. No one, however, could fairly expect perfection at this early stage. Indeed, the most ardent supporters of traditional public schools surely would agree that those schools suffer some imperfections too even after more than 150 years of operation in Ohio. Yet these initial imperfections coupled with their policy preferences are all plaintiffs offer to support their legal theories. Their thinly-veiled attempt to carry this public policy debate to the halls of our legal system should come to an end. As the trial court recognized, counts four through seven of plaintiffs' complaint fall far short of presenting viable constitutional theories.
STATEMENT OF FACTS

A.

Ohio's Community School Program.

To enhance its system of public schools, in 1997 Ohio implemented a public community school program, empowering innovative Ohioans and parents to participate more directly in the State's education system. The program allows individuals, consistent with strict guidelines, to create public educational opportunities. In Akron, for example, the founders of the Edge Academy "embarked on a two-year campaign to research successful schools, with the ultimate goal of providing the best learning opportunities to Edge Academy students." In re Transp. of
Community Sch. Students, Rep. & Recomm. at 6 (Mar. 8, 2000) (Supp. 10). Parents of children

with autism founded The MODEL School in Maumee. Likewise, Meadows CHOICE in Oregon offers a "specialized, therapeutic environment for children ages 8 to 14 with behavioral, learning and physical disabilities." Community Schools: Preliminary Rep., Legislative Office of Educ. Oversight, at 30 (2002) ("2002 LOEO Rep.") ("Plaintiffs' Supp. ("PIs' Supp.") 463). What
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plaintiffs uncharitably describe as a "motley collection" of schools, App. Br. at 13, is in truth an effort to serve those students who have been least served by a traditional public school. Given their place in the public education system, it is no surprise that community schools in many ways mirror traditional public schools. Both sets of schools receive State tax dollars. Like traditional public schools, community schools are not private, parochial, or voucher schools. Community school students do not take entrance exams or pay tuition but instead are admitted on a first come, first served, space-available basis (or through a lottery if necessary) without regard to race, color, sex, national origin, or disability. The schools' goals are the same education. And they share the same ultimate objective for students graduation.

Community schools, of course, are not carbon copies of traditional schools. Indeed, each system enjoys subtle differences and flexibilities. As to enrollment, for example, traditional schools often serve large, broad-based populations, with less ability to offer some specialized programs. Community schools, on the other hand, can serve smaller, targeted populations, including specific grade levels, learning disabled students, and dropouts, and can tailor their programs accordingly. In terms of oversight, while both sets of schools must answer to their school boards, a community school is also responsible to its public sponsor and the State, and must keep the parents that choose to enroll their children in the school satisfied. These slight differences help shape the distinctive features of Ohio's public school programs, which is exactly the point. Were community schools replicas of their sister public schools, that would defeat the program's overarching purpose of offering an innovative way to complement traditional schools. With 60,000 students and their parents having turned to the community school of their choice, the schools play an increasingly important role in our public education system. They serve children in our State's "challenged school districts," R.C. 3314.02(C), where many students

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regrettably have not achieved at the level intended by the drafters of our education system. For students in grades K-8, for example, W.E.B. DuBois Academy in Cincinnati's "over the Rhine" neighborhood offers low-income children an intensive educational experience, including a longer school day, with the goal of enabling those students to compete with students in better-funded suburban schools. For the learning-challenged community, Ohio's 27 Summit Academies enroll children with Attention Deficit Hyperactivity and Asperger's disorders, many of whom were inadequately served by their previous public school. And for dropouts and at-risk students ages 16-22, the 24 Life Skills Centers offer students the chance to earn a high school diploma in an alternative high school setting. See Amici Curiae Community School Parent-Teacher Organizations at 3-21. Community schools serve a second, equally important purpose: They offer Ohio's parents a more direct role in their children's education. Parents decide whether to enroll their children in a community school and they can decide, at any time, to remove their children from the school. This allows parents to hold the schools accountable for their performance, and it has resulted in parents taking an increasingly active role in their children's education. See, e.g., Dayton Education in 2001: The Views of Citizens and Parents (Oct. 2001) (Supp. 75-76, 93).

B.

The General Assembly's Oversight Of Community Schools.

In 1997, Ohio became the 28th state to enact some form of charter school law, and today twelve more states have followed suit, with the number of public charter schools around the country exceeding 3,000. Enacted during the Voinovich administration, Ohio's program maintains strong support today. Along the way, the General Assembly has been quick to modify the program in response to its past experiences and future outlook to enhance its chances for success. See, e.g., House Bill 364 (enhancing the Department of Education's oversight role for

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community schools) (effective April 2003); House Bill 94 (implementing new standards for terminating a community school's contract) (effective Sept. 2001). Past and current legislation also confirms that the legislative process is alive and well in Ohio. It is the legislature, of course, where public policy is debated and shaped. The debate surrounding House Bill 364, for example, included both proponents and opponents of community schools, including the Ohio Federation of Teachers and other litigants in this case. That debate will continue. Indeed, if past practice is any indicator, the General Assembly, as it has done at least three times already, will continue to make the refinements called for by the community schools' experiences and developments and, ultimately, by the voters. See Chambers v. St. Mary's Sch. (1998),82 Ohio St.3d 563,566-67 ("citizens of the state may shape the nature of legislation" by "changing the makeup of the General Assembly at the voting booth").

C.

Plaintiffs' Constitutional Challenge To Ohio's Public Community Schools.

Despite the General Assembly's goal of enhancing educational options and its continued legislative oversight, plaintiffs hope to pull the plug on Ohio's innovative development for public education through this lawsuit. After a series of amended complaints, the defendants now include the State Board of Education, White Hat Management, and nearly all community schools in existence at the time of the last amended complaint (the "community school defendants"). Plaintiffs pursued multiple theories in the trial court. Given the number of parties and claims, the trial court and counsel agreed to resolve first plaintiffs' overarching constitutional challenge to R.C. Chapter 3314. See Plaintiffs' Third Amended Complaint (counts four - seven). Accordingly, the community school defendants filed a Motion for Judgment on the Pleadings on plaintiffs' constitutional claims, which the trial court granted. (Plaintiffs' Appendix ("Apx.") 7.) Plaintiffs' claims under Article VI, Section 3, Article VIII, Sections 4 and 5, and Article XII,

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Section 5 of the Ohio Constitution were rejected on their merits. (Apx. 18-21,27.) Their claims under Article VI, Section 2 were dismissed on res judicata grounds. (Apx. 24 (citing DeRolph).) The court of appeals affirmed the dismissal of plaintiffs' claim that community schools, which are not controlled by school districts, violate Article VI, Section 3. (Apx.44.) The court also took a dim view of plaintiffs' claim that community schools are improperly serving private interests with public money in violation of Article VIII, Sections 4 and 5 (Apx. 46-47), as well as their claim that the schools are not "common schools." (Apx.38-39.) Nevertheless, because the trial court, in the appeals court's view, improperly dismissed plaintiffs' Article VI, Section 2 claims on res judicata grounds, the court remanded the Article VIII claims as well as the Article VI, Section 2 claims to the trial court for it to address whether those theories raised legally viable claims. (Apx. 43, 47.) Further, the court remanded for factual development plaintiffs' claim that local "taxes fund community schools" in violation of Article XII, Section 5. (Apx.45.) At the jurisdictional stage in this Court, both sides, through appeals and cross-appeals, asked the Court to address the legal merits of all of plaintiffs' constitutional claims. The Court in
turn accepted all of the propositions of law submitted by the parties save for defendants'

propositions of law addressing the res judicata effects of DeRolph.

ARGUMENT

Plaintiffs assert four related constitutional challenges to Ohio's community school laws. Because "[a]lllegislative enactments enjoy a presumption of constitutionality," each claim should be met with a skeptical eye. Sedar v. Knowlton Constr. Co. (1990),49 Ohio St.3d 193, 199. When a statute's validity is challenged on constitutional grounds, the Court's sole function "is to determine whether it transcends the limits of legislative power." Brady v. Safety-Kleen
Corp. (1991),61 Ohio St.3d 624,632 (quotation omitted). A "court has nothing to do with the

policy or wisdom of a statute. That is the exclusive concern of the legislat[ure]." Id. -8-

Plainly, none of plaintiffs' novel claims come close to clearing the high bar for stating a viable constitutional theory. A statute should not be declared "unconstitutional unless it appears beyond a reasonable doubt that the legislation and the constitutional provision are clearly incompatible." Kelleys Island Caddy Shack, Inc. v. Zaino (2002), 96 Ohio S1.3d 375,376 (citation omitted). Put differently, a "statute must be enforced unless it is in clear and irreconcilable conflict with some express provision of the Constitution." Spivey v. State ofOhio (N.D. Ohio 1998),999 F. Supp. 987, 999. For each of their claims, plaintiffs fail to allege or show a "clear and irreconcilable conflict" with the state constitution, let alone do so "beyond a reasonable doubt." Because plaintiffs fail to allege facts that would merit judgment in their favor, the trial court's decision granting judgment on the pleadings to defendants should be affirmed. See Vail v. Plain Dealer Publ'g Co. (1995), 72 Ohio S1.3d 279,283 (reversing appellate court's reversal of trial court's dismissal); Joyce v. Gen. Motors Corp. (1990),49 Ohio S1. 3d 93,96 (same; "a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof').

I.

Community School Defendants' Proposition Of Law No.1 And Response To Appellants' Proposition Of Law No.1: Ohio's Community School Program Does Not Violate The "Thorough And Efficient System Of Common Schools" Requirement In Article VI, Section 2 Of The Ohio Constitution.
As nearly all Ohioans now know, our Constitution provides that the "General Assembly

shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State ...." Art. VI, 2. Citing this constitutional provision, plaintiffs allege that the community school program fails both the "common schools" and "thorough and efficient" requirements. As to the former, plaintiffs allege in count five of their complaint that community schools are not common schools "because they are not owned by the public" and are "allowed to operate

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with different and diminished standards." (Apx.38-39.) The appeals court disagreed, holding that community schools are "part of the system of common schools." (/d.) As to the latter, plaintiffs' count six alleges that community school funding laws "divert[] funds from city school districts," rendering the State's public education system less than thorough and efficient. (/d.) Although it reversed the trial court's dismissal of this claim, the court below offered nothing to recommend it. On the narrow ground that the asserted res judicata effect of DeRolph did not bar this claim, the appeals court remanded both counts five and six because "the trial court erred in not reaching the merits of the" viability of those claims as a matter oflaw. (Apx. 43,45-46.) Today, the Court should put an appropriate end to these unmeritorious claims.

A.

Community Schools Are Part Of The State's System Of "Common Schools." 1. Community Schools Are Public Schools.

In pressing their claim that "community schools are not 'common schools' or 'public schools,'" App. Br. at 22, plaintiffs are quick to brush aside the plain terms ofR.C. Chapter 3314, which confirm that a community school is a "public school, ... part of the state's program of education." RC.3314.01(B). The schools are publicly funded, see RC. 3314.08, and open to all students, see RC. 3314.01, facts that have already been cited with approval by the United States Supreme Court. See Zelman, 536 U.S. at 673 ("[P]arents in the Cleveland schools have an array of nonreligious options.... Not surprisingly, respondents present no evidence that any students ... were denied slots in a community school or a magnet school. Indeed, the record suggests the opposite with respect to community schools.") (O'Connor, l, concurring). Community schools must hire state certified teachers, see RC. 3314.03(A)(1 0), 3314.10, and meet racial-balance requirements. See R.C. 3314.03(A)(7), 3314.06. They are nonsectarian, and they charge no tuition. See RC. 3314.03(A)(II)(c), 3314.08(1); Zelman, 536 U.S. at 654 ("Families that choose a community school ... pay nothing. ").

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Measured against this statutory backdrop, there can be little doubt that community schools are public schools. The courts have long deferred to the legislature's determination as to what is considered "public" in the education realm, and plaintiffs offer no compelling reason for invalidating the community school's status as public schools under Chapter 3314. See, e.g.,

Denison Univ. v. Bd. of Tax Appeals (1965),2 Ohio St.2d 17, syl. ~ 1 ("words 'public colleges

*** academies *** and public institutions oflearning' ... include a private institution oflearning
conducted in a lawful manner without any view to profit and open to all members ofthe public") (citation omitted); Bd. ofTrustees ofSch. Teachers' Pension Fund v. State ex rei. Bowers (5th Dist. 1919), 14 Ohio App. 139, 142 ("term 'public school,' as generally accepted, is one which is supported and sustained in whole or in part by public taxation, and which is regulated by statutory law"), affirmed sub nom by Shinnick v. State ex rei. Bowers (1920), 101 Ohio St. 246. Plaintiffs' characterization of community schools as private entities entirely ignores the program's underlying principles, to say nothing of Chapter 3314. Every school must be either a "nonprofit corporation," if formed before April 8, 2003, or a "public benefit corporation," if formed thereafter. R.C.3314.03(A)(1). As a result, the schools must be operated for public rather than private goals. Schools formed as public benefit corporations must be "organized for a public or charitable purpose." R.C. 1702.01(P). The school must be "recognized as exempt from federal income taxation under section 501(c)(3) of the 'Internal Revenue Code,'" id., meaning that it must be a corporation formed for "educational purposes, ... no part of the net earnings of which inures to the benefit of any private shareholder or individual." 26 U.S.C. 501 (c)(3). Likewise, a school established as a non-profit corporation is formed "otherwise than for the pecuniary gain or profit." R.C. 1702.01(C). Any revenue that exceeds expenses "is not distributable to [the school's] members, directors, officers, or other private persons." Id. In their

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role as non-profits, community schools continue the State's rich tradition of allowing publicly funded non-profits to supply essential public services, including mental health, community, fire protection and children's services, as well as public zoos and gardens. 2 Further, community schools are publicly "sponsored." Each school must have a sponsor, and each sponsor must be a public education provider or public education-oriented non-profit.

See R.C. 3314.02(A)(l) and (C)(l). Current sponsors include: school districts, including those in
Cincinnati, Dayton, and Reynoldsburg; public universities, including the University of Toledo; and educational service centers ("ESCs"), including the Lucas County ESC. For 2005-06, sponsors will include additional districts and county ESCs as well as education-oriented nonprofits approved by the Department of Education, including the Fordham Foundation, which supports research and projects of national significance in elementary and secondary education. Plaintiffs are thus off base in arguing that the "schools are run by, and responsible to, only their private founders." App. Br. at 22. To start, each school is responsible to its sponsor. Every school "will be held accountable for their compliance with the terms of the contracts they enter into with their school's sponsors." R.C.3314.072. Those contracts, which are dozens of

2 Maumee Valley Guidance Ctr., Inc. v. Witsamgn (lOth Dist. Sept. 4, 1980), 1980 Ohio App. LEXIS 12669, at *1, 4 (Guidance Center is "a nonprofit corporation providing community mental health services" that "has been funded with public money since its creation. "); Gilmer v. City olCleveland (N.D. Ohio 1985),617 F. Supp. 985, 985-86 ("Hiram House Camp is a nonprofit organization which runs several [youth] summer camps in the Cleveland area. A sizable portion of its funding is obtained from public sources"); State ex reI. Freedom Communications, Inc. v. Elida Cmty. Fire Co. (l998), 82 Ohio St. 3d 578, 579 (Community Fire Company is a nonprofit that "serves its local community by providing fire protection, and it receives the vast majority of its income from to\\'nship tax levies."); Miami Valley Child Dev. Ctrs. v. Dist. 925 Servo Employees Int'l Union (2d Dist. Feb. 22, 2002) 2002 Ohio App. LEXIS 744, at *2-3, (Child Development Center is "a private, not-for-profit Head Start grantee" that receives public tax support); City olCleveland V. Lausche (8th Dist. 1943), 71 Ohio App. 273, 280 (approving of City's contract with "the Cleveland Museum of Natural History, a corporation not for profit," to operate and maintain Cleveland's "zoological garden[,] a proper municipal activity ... for which it may la\\fully make expenditures of public funds").

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pages long, cover subjects ranging from curriculum to school safety and facilities to finances and administration. In addition, each contract must set forth the sponsor's "duties," which include monitoring a school's compliance with state law and the contract, monitoring academic, fiscal and operational performance, and "interven[ing] in the school's operation to correct problems" as necessary. R.C.3314.03(D)(5). If appropriate, a sponsor may place a nonconforming school on "probationary status." RC.3314.073(A). For more serious or repeat violations, the sponsor may suspend a school's operation or terminate the contract. R.C. 3314.07, 3314.072. Because a contract "shall not exceed five years," R.C. 3314.03(A)(13), each school must produce results without delay, something that is not always true for other public schools. Community schools are also responsible to and regulated by the State. See, e.g., RC. 3314.03 (school contracts must be filed with the state superintendent), 3314.11 (creating a "state office of community schools" to "facilitate the management of the community schools program"). In addition to its direct regulation, the State also regulates the schools through its oversight of their sponsors. The Department of Education is "responsible for the oversight of sponsors," a responsibility it carries out by approving new sponsors and monitoring their effectiveness, reporting each year to the Governor and General Assembly on the academic and operational success of community schools as well as their legal compliance, and "mak[ing] legislative recommendations to the general assembly designed to enhance the operation and performance of community schools." RC.3314.015. And just as a school enters into a contract with its sponsor, the sponsor in tum enters into a detailed contract with the Department of Education setting forth the state requirements a sponsor must impress upon the school. Perhaps most importantly, community schools are responsible for satisfying the parents who enroll their children. Parents choose to send their children to community schools, and they

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can choose to withdraw them at any time. Without satisfied parents, no community school can remain open. Community schools, in short, face a heightened tri-Ievel system of accountability unique in Ohio's public education program. In the final analysis, community schools meet all relevant tests for a public body, starting with their designation by the legislature as "public schools" and continuing to their public function and their accountability to other public bodies.

2.

Community Schools Are Publicly Owned.

Plaintiffs are equally offbase in alleging that community schools are not owned by the public, and thus are not part of the constitutional "system of common schools." App. Br. at 2325. This argument is factually ungrounded, because the schools are publicly owned. Unlike a private company, there are no shareholders or other "owners" who stand to profit financially from the school's success. See RC. 1702.01(C) (for a nonprofit, its "net earnings or any part of them is not distributable to, its members, directors, officers, or other private persons"); 26 U.S.c.

501(c)(3) (for a public benefit corporation, "no part of the net earnings" may "inure[] to the
benefit of any private shareholder or individual"). If a school closes, chapter 3314 requires that the school's assets go first to school employees' retirement funds, school employees' and private creditors, if any are owed compensation. RC.3314.074(A). Any remaining funds "shall be paid to the state treasury." Id. It follows that community schools, like traditional public schools, are "owned" by the public and the State as part of the State's public education system. Indeed, just like a traditional school board, a community school board has no ownership interest in the school and is highly regulated. "[M]embers of the governing board of a community school are 'agents' of the state and, therefore, 'public officials' subject to the provisions ofRC. 2921.42 (the public contract law) and R.C. 2921.43 (the supplemental compensation law)." Ohio Ethics Comm'n, Adv. Op. No. 2003-01 Community Schools, at 8 (Oct. 17,2003) (board members "of a community school are bound by the provisions ofR.C. - 14-

Chapter 102 [sic]. pursuant to the terms of the [sponsorship contract]"). A community school board's members must also comply with Ohio ethics laws and related statutes, see id., as well as with the Open Meetings Act and other laws applicable to public boards. See R.C. 121.22.

3.

Community Schools Are Not Private, Religious Or Nonpublic Schools.

If a plain reading of the Revised Code does not resolve plaintiffs' "common schools" claim, case law coupled with a practical understanding of our education system should put an end to the debate. The constitutional "common schools" requirement does not demand absolute uniformity between every public school. As a legal matter, Article VI's common schools requirement is at heart a prohibition against publicly funded private or sectarian schools. See Ohio Const. Art. VI, Sec. 2 ("no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state"). At most, "implicit within this obligation" to provide a system of common schools "is a prohibition against the establishment of a system of uncommon (or nonpublic) schools financed by the state." Simmons-Harris, 86 Ohio St.3d at 11 (rejecting "common schools" challenge to Cleveland voucher program). Because community schools are public, nonsectarian schools that are publicly sponsored, publicly owned, and free and open to all, they easily satisfy the common schools requirement. In repeatedly alleging that community schools are "private" and "privately owned," App. Br. at 22-23, plaintiffs do so without any supporting case precedent. Instead, they turn to quotes from selected constitutional Framers. Id. at 17-20. One can fairly wonder what use these remarks have in this setting, as "the debates of a body that forms a constitution or law are proverbially unsafe guides for its interpretation." Wilkinson v. Maurer (lOth Dist. Apr. 8, 1993), 1993 WL 114448, at *9 (quoting Exch. Banko/Columbus v. Hines (l853), 3 Ohio St. 1,46-47). That is particularly true here in light of the straight-forward constitutional provision plaintiffs cite. "The first step in determining the meaning of a constitutional provision is to look at the - 15 -

language of the provision itself. Where the meaning of a provision is clear on its face, we will not look beyond the provision in an attempt to divine what the drafters intended it to mean. '"
State ex rei. Taft v. Franklin Cty. Ct. of C. P. (1998),81 Ohio St.3d 480, 481. "[I]mprecise

speeches by individual drafters" like those plaintiffs cite do not "give courts carte blanche to ignore the plain language of a constitutional provision." State ex reI. Maurer v. Sheward (1994), 71 Ohio St.3d 513,522 ("drafters were precise when they wrote the reporting provision"). Further, neither the quotes of the Framers nor the oft-cited law review article collecting those quotes provide any support for plaintiffs' argument. See App. Br. at 17 (quoting the article prepared by Assoc. Prof. O'Brien and a law student (the "O'Brien" article)). As the article notes, the Framers aimed to undo the then-existing "tuition-based schooling arrangements" and prevent "tax support for private or sectarian schools" to avoid a rival system of publicly funded "sectarian schools." Id at 19-20 (quoting O'Brien at 640). "Central to [the specific] meaning" of the phrase "common school" is thus "the requirement that the publicly-supported school system educate children of all classes, religions, and ethnic backgrounds together." Id. That is an apt description of community schools, which are nonsectarian and open to all students, at no charge. Accordingly, while it may be true that "[w]ithout constant effort, upkeep, oversight, and reform, the common schools cannot satisfy the educational needs of a complex, diverse democracy," O'Brien at 637, the General Assembly's enactment of the community school program embodies all of these hallmarks. That is likely why the article's constitutional criticism is aimed chiefly at school vouchers. Id. at 587 ("[t]he authors of this paper, however, suggest that the ethos or constitutional visions of the common school is at odds with expanding programs that support private and religious choice"). The authors never conclude that Ohio's public and nonsectarian community schools violate the Constitution. Nor did the Framers, who sought to

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"make free education more generally available." App. Br.at 17 (citation omitted). Community schools have done just that, offering a free public education to 60,000 Ohio schoolchildren. Because community schools must be nonsectarian and open to all students, plaintiffs' citations to cases addressing parochial schools deserve little reflection, most notably Gerke v.
Purcell (1874),25 Ohio St. 229, where the Court addressed whether a Roman Catholic parochial

school house could be considered "public" for state tax purposes. What does deserve reflection is that the language plaintiffs and amicus OEA describe as "this Court's statement," App. Br. at 23; OEA Amicus Br. at 2-6, comes not from the Court's decision but rather from the position put forward by the plaintiff in that case. See Gerke, 25 Ohio St. at 234 (quoting the "plaintiff in error"). The Court's actual decision reads much differently, and it establishes a broad definition for what may be considered "public" in the education realm: "If the use is of such a nature as concerns the public, and the right to its enjoyment is open to the public upon equal terms, the use will be public ...." ld. at 241. This aptly describes community schools. The same considerations were at issue in the dated Attorney General Opinion plaintiffs cite, which addressed public funding for schools run by "organizations being in control of certain religious groups." App. Br. at 24 (citing 1933 Ohio Op. Atty Gen. No. 1409). But community schools, it bears repeating, must be nonsectarian. R.C. 3314.03(A)(11)(c). Nor is the opinion's conclusion that a common school is one that is "maintained from public funds raised by of any help to plaintiffs, as that definition

taxation or from school funds otherwise obtained" -

is fully applicable to community schools. 1933 Ohio Op. Atty. Gen. No. 1409, at 1290, syi. ~2. In requiring a system of common schools, our state constitution "calls for the upbuilding of a system of schools throughout the state." DeRolph v. State (2000), 89 Ohio St. 3d 1, 5 (quoting Miller v. Korns (1923), 107 Ohio St. 287,297). The State has answered that call

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through a multifaceted system of public schools, including community schools, which augment the statewide system. Perhaps the best indicator of the community school's "common" nature is that school districts are turning to them to meet parental demand. "Five of the Big Eight urban districts in Ohio Akron, Canton, Cincinnati, Dayton and Toledo sponsor charter schools,"

and Columbus and Cleveland may soon do the same. Columbus district plans to sponsor charter schools, Columbus Dispatch (May 2, 2005). At the same time, these and other districts have opened 48 "conversion community schools." App. Br. at 5; accord Ohio School Boards Ass'n Informational Meeting Memo (Aug. 1, 2002) (promoting plaintiff OSBA's "open meeting for school districts that are considering sponsorship of a conversion community school")(Supp. 110). Finally, as a practical matter, public schools must be allowed some flexibility in their administration, curriculum, and organization while still satisfying the common schools requirement. Today, many traditional schools utilize that flexibility in ways that often mirror the educational notions underlying the community school program. In Cleveland, a district where its board members are appointed, see R.C. 3311.71, the district has used a large grant from the Bill

& Melinda Gates Foundation to begin creating "a unique opportunity for Cleveland to develop a
system of small, autonomous, high schools that make teaching and leaming personalized." See www.kwfdn.org (Nov. 19,2003 news release). The Dayton school district has opened the Stivers School for the Arts, which, like many community schools, focuses on a specialized curriculum ("clustered" academic instruction with a strong emphasis on the arts) and serves expanded grade levels (the only public school in the district designated for grades 7-12). See www.stivers.org. And joint vocational districts across the State, which are often run by board members of county ESCs (the same ESCs, coincidentally, that sponsor community schools, see R.C. 3311.19), offer specialized programs emphasizing vocational education. See R.C. 3313.91.

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4.

Community Schools, Like Their Sister Traditional Public Schools, Must Meet Statewide Standards.

To the extent plaintiffs' "standards" argument has any bearing on the constitutional analysis, it bears noting that community schools, contrary to plaintiffs' suggestion, are not "exempt from virtually all statewide standards applicable to legitimate public schools." App. Br. at 14. The General Assembly, State Board, and Department of Education have acted to ensure the accountability of community schools through rigorous testing, standards, and regulations. These standards are imposed in the first instance by the sponsor contract. Each school must submit to its sponsor "a comprehensive plan for the school," RC. 3314.03(B), which includes "an accountability plan that includes measurable performance goals." 2002 LOEO Rep. at 8 (PIs' Supp. 441). As part of its contractual and statutory duties, each school must administer and report all state-mandated proficiency, achievement, diagnostic, and graduation tests, subjecting each school to the same statewide standards faced by traditional public schools. RC. 3314.03(A)(3)&(1l), 3301.0710, 3301.0712, 3301.0715. The schools also face enrollment audits and must file Annual Reports with parents and sponsors. RC. 3314.08(B)(2)&(L), 3314.03(A)(l1 )(a)&(g). The latter requires reporting of all state-required testing and financial data as well as parent satisfaction, teacher, and off-year testing data. RC.3314.03(A)(11)(d). Further, each school must comply with dozens of other requirements "as if it were a school district." Id. (listing applicable RC. sections). And with the passage of House Bill 364, community schools must comply with additional regulations, including enrollment and funding standards that meet or exceed those placed upon traditional public schools. Id.; RC. 3314.08. All told, the "means by which community schools assess the academic performance of their students is similar to that of traditional public schools." 2001 LOEO Rep. at v (PIs' Supp. 869).

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Like their sister public schools, community schools also receive annual State-issued "report cards." R.C. 3314.012(B) (ODE "shall issue an annual report card for each community school"). This reporting requirement was enhanced in 2003 by the enactment of House Bill 3, which put Ohio in compliance with the accountability measures mandated by No Child Left Behind and which applies equally to traditional and community schools. The heart of those revisions are found in R.C. 3302.03, which lists the data that must be included in a traditional school's report card. Amended RC. 3314.012(B) in turn requires that the report card issued to a community school "shall include all information applicable to school buildings under division (A) of section 3302.03," including rating them as "excellent, effective, needs continuous improvement, is under an academic watch, or in a state of academic emergency." R.C.3302.03. Plaintiffs' contention that community schools are "exempt" from House Bill 3 is thus at odds with the plain terms of the Revised Code. App. Br. at 29-30. As just explained, the federally mandated ratings implemented by House Bill 3 apply to all schools. The Bill's remaining provisions primarily amend RC. 3302.04, and amended R.C. 3314.03(A)(24) requires that each community "school will comply with section 3302.04 of the Revised Code" save for division (F), which addresses low-performing schools. The sponsor contract, of course, already addresses what will happen if a community school fails to meet expectations. At bottom, plaintiffs' argument appears to rest on their belief that community schools are exempt from 11 "standards" identified in the State Auditor's 2002 report. App. Br. at 25-26. This contention fails for a host of reasons. For one, that report as well as the various audits cited by plaintiffs confirm that community schools are subject to state audits and oversight, and thus state "standards." For another, many ofthe "standards" plaintiffs cite no longer apply to traditional schools. See former RC. 3301.78 (25-pupillimit in bilingual classrooms) (repealed).

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Others would never be applicable to a community school. See R.C. 3301.79 (setting the number of psychologists and speech pathologists for a school district). And others never should be. See RC. 3313.534 (Zero Tolerance Discipline). Considering that many students turn to a community school after violating a "Zero Tolerance" or similar policy at their traditional school, if that provision applied to community schools, as plaintiffs urge, see App. Br. at 26, these students would have little hope for obtaining a public education. At all events, the "standards" the Auditor identified do apply to community schools. Many, like the Fourth grade guarantee, see RC. 3313.608, apply directly. Compare App. Br. at 26 (citing RC. 3313.608) with RC. 3314.03(A)(Il)(d) (community schools "will comply with sections ... 3313.608"). Others apply through mandatory provisions in the sponsor contracts:
Traditional Schools Community Schools

Minimum curricular standards

Addressed in sponsorship contract approved by sponsor, see RC. 3314.03(A)(2)-(4); see also RC. 3313.03(A)(11)(d) (community schools "will comply" with RC. 3301.0712, 3301.0715). Must be defined in sponsor contract as 920 minimum total hours, see RC.3314.03(A)(Il)(a). Covered in contract, see RC. 3314.03(A) (contract must specify school's "education program [and] academic goals to be achieved"). Community schools, as set forth in their sponsorship contracts, must establish a high school curriculum, which is measured against applicable state tests, see RC. 3314.03(A)(2)-(4) and (11)(f).

Length of school year Course of study High school curriculum

For gifted children, Chapter 3314 incorporates the functional equivalent of Chapter 3324 by requiring each school to state in its contract a specific population the school will serve and a program appropriate for doing so. See RC. 3314.06(E) (community schools for gifted children). Plaintiffs entirely ignore two other performance indicators: attendance and parent satisfaction. As to attendance, "[v]irtually all comparisons involving student attendance favored

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community schools." 2002 LOEO Rep. at iv-v (PIs' Supp. 430-31). And as to parent satisfaction, the advantage again lies with community schools. For "virtually every survey question, community school parents were more satisfied with their school, on average, than traditional school parents and these differences were statistically significant." Id. Nor are plaintiffs correct in suggesting that community schools are "exempt" from financial management standards. App. Br. at 30. Community schools must prepare and file a financial plan and undergo periodic state audits in the same manner as traditional public schools.

See R.C. 3314.03(A)(8)&(l8) (sponsor contract shall specify "[r]equirements for financial audits
by the auditor of state"). And like treasurers for school districts, "fiscal officers" for community schools must be "licensed" and complete "not less than sixteen hours of continuing education classes." R.C. 3314.011. Sponsors also take an active role in overseeing community school finances. See R.C. 3314.023 ("sponsor shall meet with the governing authority of the school and shall review the financial records of the school at least once every two months"). Further, community schools "shall comply with Chapter 102 of the Revised Code," which addresses public officers and financial ethics. R.C. 3314.03(A)(lI)(e).

Over and above the requirements faced by traditional schools, community schools face two additional- and unique measures of accountability. First, a sponsor may shut down a

school. If a school falls short in meeting its statutory and contractual obligations, the sponsor can "terminate a contract prior to its expiration." R.C. 3314.07(B)(2), 3314.072 (schools "will be held accountable for their compliance with the terms of the [sponsor] contracts"). Traditional schools, on the other hand, do not face this form of educational "death penalty." Accordingly, while recent statutory changes now require underperforrning traditional schools to sit for review

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by an "Accountability Task Force" and perhaps the imposition of an "improvement plan," App. Br. at 29-30, underperforming community schools, since the program's inception, risk more than just the threat of an improvement plan. They risk termination of their contract. See Amici Curiae Community School Sponsors at 30 (identifying partial list of schools closed by sponsors). Second, community schools must meet the standards of parents that enroll their children in the schools. Parents choose to send their children to community schools, and without satisfied parents, no school can remain open. By all accounts, the schools continue to meet this ultimate accountability measure. This year, community schools enrolled nearly 60,000 students, with many schools keeping waiting lists, and enrollment is expected to rise next year. The number of parents turning to community schools is the best indicator of their overall performance. All told, community schools face strict standards imposed by three distinct sources. Any one can independently shut down the school and, in the case of the State, the entire program altogether. None of this, it seems, is true for traditional public schools.

5.

Plaintiffs Mischaracterize The Community Schools' Performance.

Although the relevance of their contentions is never made clear, plaintiffs at various points refer to what they believe is the "dismal record" of Ohio's community schools. App. Br. at 6. As a legal matter, one can fairly wonder about the significance of these claims. Indeed, if DeRolph is any precedent, to the extent community schools are underperforming, or to the extent that school facilities may be lacking in some respect, see id. at 32, the remedy would be to increase state support for those schools, not shut them down. Equally flawed is plaintiffs' reliance on community school students' performance on statewide testing as a basis for their constitutional claims. See App. Br. at 6-8. As an initial matter, this contention, if it does anything, single-handedly submarines their overriding "lack of standards" argument. The annual state-sponsored proficiency testing for community school - 23 -

students proves that the State has implemented statewide standards for community schools. Nor do plaintiffs cite a single case holding that low proficiency scores constitute a constitutional violation and mandate an end to the program. No traditional public school, to our knowledge, has ever been shut down for low proficiency scores. Even if low scores could somehow constitute a constitutional violation, considering that community schools remain in their delicate first years of operation, "it is too early to draw definitive conclusions about the[ir] performance." 2002 LOEO Rep. at i (PIs' Supp. 427). Indeed, because students are often enrolled in their community school for a short period, perhaps even six months or less, before they take proficiency tests, those students' results are better indicators of the students' progress at their previous school rather than the quality of their new community school. Accord 2001 LOEO Rep. at iii ("89% of community school students came from public schools") (PIs' Supp. 867).3 To the extent these early returns deserve reflection, plaintiffs fail to note that community schools have shown continued improvement in proficiency testing. See Comm. Sch. Proficiency History (Supp. 114-15). Nor do they note that "[i]n terms of proficiency test results, most of the comparisons between matched community and traditional schools showed no conclusive differences." 2002 LOEO Rep. at v (PIs. Supp. 431). And traditional schools, keep in mind, have a ISO-year head start. Add in the fact that community schools often serve students who previously underachieved and face greater societal challenges, and one can fairly wonder how traditional schools do not far outperform community schools. Id. at 6-7 (community schools
3 See Edge Academy staff shocked at pupils' lack of reading skills, Akron Beacon Journal (Oct. 11, 1999) (Edge Academy, a "new Akron community school[,] grew from a desire to teach [reading] better than any school in the area. Even so, the results of the first round of reading tests given to pupils this fall were unexpected and startling. Every third-grader at Edge failed a grade-level placement test that found many pupils reading at a point far behind where they should be - with a few pupils reading barely above kindergarten leveL .. All of Edge Academy's pupils, except the kindergartners, attended the Akron public schools last year.") (Supp. 111-12).

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serve "more minority students and more students in poverty than the districts as a whole") (PIs' Supp. 439); 2001 LOEO Rep. at ii-iii ("[m]ost community schools enroll a greater proportion of students in poverty than their corresponding city school district") (PIs' Supp. 866-67). For these and other reasons, plaintiffs' portrayal of the community schools' performance merits little consideration, in particular their critique of community schools by comparing their performance to all Ohio districts. See id. at 6-8. Considering that community schools were created primarily to serve students in challenged districts, to compare the schools to every district, challenged or not, gives analogy a bad name. And when measured against challenged urban districts, community schools fare far better. For example, in 2003-04, one community school was rated "excellent," many others rated "effective," and still more rated "continuous improvement." ld. at 7-8, (PIs' Supp. 225-28). During that same period, according to ODE's website, not a single one of the "Big 8" urban districts rated "excellent" or "effective." One rated "continuous improvement" the rest rated "academic watch" or worse.

Equally unreliable as a basis for a constitutional analysis are the handful of examples of "mismanagement" plaintiffs sprinkle throughout their brief. These isolated examples are from individual schools' first years of operation, during the program's infancy. App. Br. at 27-28 (for two schools in first year of operation in 1999, one needed to supply additional documents as part of state-mandated audit and the other could not send textbooks home at night). Improvements at these schools, enhanced sponsor oversight, and modifications by the legislature continue to resolve any initial shortcomings. See R.C. 3314.03(A)(22) (both ODE and public health and safety officials may inspect and close unsatisfactory or unsafe facilities). Regrettably, the same cannot be said for the traditional system, where many schools continue to be beleaguered by

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mismanagement, with little consequence. In recent years, seven of Ohio's "Big Eight" districts have been declared to be in "academic emergency," yet none have faced the threat of closure.

B.

Plaintiffs Fail To State A Viable Claim Under The "Thorough And Efficient" Clause.

Just as plaintiffs fail to state a viable claim under the "common schools" requirement of Article VI, Section 2, they similarly fail to assert a viable claim under its "thorough and efficient" clause. The chief complaint plaintiffs raise on this score is the loss of state tax dollars realized by districts when a student opts to enroll in a community school. (Apx. 39 ("appellants allege that the funding method used to support community schools diverts funds from city school districts[,] depriving those school districts of the ability to provide a thorough and efficient system of common schools").) This is not the first time that school districts have turned to the courts in an effort to boost school revenue. The more widely-known effort came in DeRolph, where the Court recognized a host of concerns inherent in the State's system of public education, and where the General Assembly responded with a series of new laws, directing vast new sums into building schools and funding public education. While the State's additional efforts no doubt lead to cuts in other state programs and perhaps an increased pinch in the pocketbooks of taxpayers, no Ohioan should be ashamed of the State's efforts to improve our public schools. The intent underlying today's funding challenge, however, is not nearly as high-minded as the last. In seeking to restore funding districts have lost by students enrolling in community schools, the districts ask that the community school laws be declared unconstitutional and the community school doors closed to the thousands of students who have turned to the schools as an alternative to their local public school. Far from the forward-looking position they took in

DeRolph, today plaintiffs ask that Ohio's education initiatives be rolled back. Progress, it seems,
is acceptable only when it amounts to enhanced funding for traditional school districts.

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1.

Neither DeRolph Nor Any Other Precedent Authorizes A Cause Of Action Here.

Plaintiffs' asserted precedent for this claim is the series of decisions in DeRolph. They read those cases to say that the thorough and efficient clause authorizes a cause of action whenever a party associated with the public education system disagrees with some measure of education law. This is a novel reading of the Ohio Constitution, and a novel reading of DeRolph. Those decisions, as all recall, arose under unique circumstances far different from those alleged here. The DeRolph litigation constituted a "wholesale constitutional attack on Ohio's system of funding public elementary and secondary education." DeRolph v. State (1997), 78 Ohio St.3d 193, 197; see also DeRolph v. State (2000), 89 Ohio St. 3d,1, 6 ("It is impossible to overstate the scope of the challenge presented to the State by this case. "). The claimed deprivations were widespread: "School districts were starved for funds, lacked teachers, buildings, and equipment, and had inferior educational programs." DeRolph I, 78 Ohio St.3d at 205. And the result was a call for "a complete systematic overhaul" of the State's public education system. DeRolph v. State (2002), 97 Ohio St.3d 434,435 (quotation omitted). On those heightened grounds, the case was pursued as a violation of the Ohio Constitution. See id. Plaintiffs may not maintain a thorough and efficient claim absent the dramatic deprivations brought to light in DeRolph. See DeRolph I, 78 Ohio St.3d at 210-211 ("Ohio does not provide many of its students with even the most basic of educational needs. "). In a case like this one, where the perceived injury is far less, the scope of the challenge far narrower, and the nature of the claim far different, DeRolph simply does not authorize a viable claim under the thorough and efficient clause. Unlike DeRolph, which constituted a "wholesale constitutional attack" on Ohio's public school system, this case at bottom involves one set of public schools suing another based largely upon the latter's alleged exemption from a small subset of the State's

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education laws. In other words, far from representing "a troubling constitutional issue," today's case amounts to little more than a policy dispute over the wisdom of one small but popular aspect of the State's education system. Whether viewed as relying on an improper reading of
DeRolph or as raising a true political question reserved to the legislature for resolution, plaintiffs'

theory is legally deficient. See id. at 267 ("[t]he level and method offunding beyond those minimum standards constitute ... a nonjusticiable political question") (Moyer, C,J., dissenting). Taking plaintiffs' theory to its logical extremes, seemingly any change in Ohio's school laws that touch upon funding would give rise to a thorough and efficient claim. Take the school lunch program, for example. Under Ohio law, a district "may establish food service, provide facilities and equipment, and pay operating costs in the schools under its control for the preparation and serving oflunches ... to the pupils." R.C.3313.81. In some instances, the State requires a district to provide a breakfast and lunch program. R.C.3313.813(C)(1)-(3). To help offset these costs, the State distributes funds to the districts. See R.c. 3317.024(K). Should the State decide to lessen its commitment to these programs, under plaintiffs' theory impacted schools would have a thorough and efficient claim. If the State makes a 10% reduction in lunch funds to help fund another part of the public education system, a claim arises, even if, like here, the amount of state funds spent on public schools remains the same. Under plaintiffs' elastic reading of our Constitution, any alteration to school funding laws, no matter how slight, constitutes a injury of constitutional proportion. That has never been the law in Ohio. But if plaintiffs' claims are allowed to stand, that decision would seemingly authorize constitutional suit after suit by parties who in some way are unhappy vvith aspects of the State's education system or education policy. The impact of such a precedent cannot be overstated. In this case, one group of public schools is suing other public schools. And if plaintiffs' view of the

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law is correct, other suits are soon to follow. One district will sue another over the effect of an Ohio law. Parents, believing that other parents are faring better under our education laws, will sue districts or the State. Schools will sue each other. The possibilities are endless. While such claims seemed entirely imaginary just a decade ago, the future is entirely uncertain. The Court should draw an appropriate end to this effort to dramatically expand the asserted right to make education policy through court precedent.

2.

The Funding Mechanism For Community Schools Satisfies The Thorough And Efficient Clause.

Even if plaintiffs have some precedential basis for their thorough and efficient claims, and in our view there is none, they nevertheless fail to viably claim that community schools threaten the thoroughness and efficiency of Ohio's public school system. Under any standard, the community school laws easily satisfy Article VI, Section 2. As an initial matter, it is exceedingly difficult to accept plaintiffs' contention that the State's support for public community schools jeopardizes the entire system's constitutionality. The public education system must be viewed as a whole, not as a host of unconnected individual schools. The Ifattainment of efficiency and thoroughness in th[e] system of common schools is expressly made a purpose, not local, not municipal, but state-wide. If DeRolph II, 89 Ohio St.3d 1, at syl.~ 2 (quotation omitted). The legal inquiry considers the statewide system, one that includes traditional and community schools. And from a statewide perspective, the system is not rendered unconstitutional when a student decides to move from one public school to another, thereby causing one public school to lose some state funding to another. Cf Miller v. Korns (1923), 107 Ohio St. 287, 289 (If[u]nder section 2, article VI, ... appropriation by the Legislature of funds raised in one school district to the needs of other school districts is made in pursuance of a legitimate ... public purposeIf). In the end, the same amount is spent on public education.

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Even if the State's financial support for one aspect of its public school system could somehow render the entire system unconstitutional, plaintiffs do not allege facts supporting their remarkable theory. Considering that community schools are public schools, the State's support for these schools and the children they teach does nothing to lessen its commitment to a "thorough and efficient system of common schools." Case law, most notably Simmons-Harris, confirms this understanding. There, the Court rejected the plaintiffs' argument that the Statesponsored Cleveland Voucher program interfered with the State's obligation to provide a through and efficient system of common schools, holding that the program did not "undermine[] the state's obligation to public education." 86 Ohio St.3d at 11. The same is true here. In fact,

Simmons-Harris is the harder case. Unlike the highly publicized and controversial voucher
program, which allowed parents to use public dollars (in the form of a State voucher) at private schools, community schools do not divert money from public schools. Community schools, in truth, are public schools, an integral piece of the State's system of public education. As to thoroughness, community schools augment the State's system by serving students whose needs may not have been met by a traditional school. Many parents choose to emoll their children in a community school due to their children's unsatisfactory experience in a traditional public school and their belief that the child will benefit from a school targeted to her particular needs. See Parents are Happy, at 10 (June 2000) ("[P]arents believe that community schools are meeting local educational needs that could not be addressed at other schools in their area. ") (Supp. 127). For example, nearly half of the schools "target 'at-risk' students, such as adjudicated youth, dropouts, students who have failed Ohio's proficiency tests, or students with various developmental or learning disabilities." 2001 LOEO Rep. at iv (PIs' Supp. 868).

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And as to efficiency, consider that community schools operate with less per-pupil funding than their sister city public schools. According to the Department of Education, in FY 2003, for example, community schools received on average just over $6,000/student in state funding. That same year, the Cincinnati school district, like other urban districts, according to its treasurer, spent over $lO,OOO/student, see PIs' Supp. 62, ~10, which amounts to over 50% more per-pupil funding for urban districts as compared to community schools. That funding gap continues to grow. In FY 2004, city school districts, including Cincinnati ($ 12,965/student), Cleveland ($11,121/student), and Dayton ($11,772/student), spent on average nearly $12,000 per student. See Ohio Dep't of Educ. FY 2004 Per Pupil Expenditures. The primary reason for this disparity is that community schools have no access to local property taxes. Nor do they receive capital financing dollars through the Ohio School Facilities Commission, see R.C. 3318.02-.38. With this in mind, it is entirely unclear how plaintiffs have been injured by the State's actions. School districts, contrary to plaintiffs' suggestion, App. Br. at 10-13, are fully funded for the students they enroll. At the same time, the students moving to community schools in many instances represent those that presented the greatest challenges to their traditional public school; many community school students performed poorly at their former school, requiring more attention from teachers and a greater commitment of school resources. See Charter school offers 2nd chance, Cleveland Plain Dealer (Nov. 1, 1999) (If Life Skills community school "gives [at-risk kids] that feeling that now they have a chance, lets them map out their plans, forgives them, if you will, for their past educational sins, then these kids may have a real chance.") (Supp. 133). With community schools taking on these challenges, traditional schools may better address the needs of their current students.

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In short, far from a constitutional threat to public education, the community school program is in truth an example of the General Assembly's continuing effort to satisfy its constitutional "duty ... to pass suitable laws ... to encourage schools and the means of instruction." Ohio Const. Art. I, 7. By meeting the needs of students ill-served by a traditional public school, community schools enhance the public school system's ability to satisfy the constitutional thorough and efficient requirement. See Amicus Curiae Buckeye Community Hope Foundation at 5-6. With this in mind, striking the program would create more constitutional problems than it would purportedly solve. All told, it is exceedingly clear that plaintiffs' thorough and efficient claim is wholly deficient.

II.

Community School Defendants' Response To Appellants' Proposition Of Law No.2: Community Schools Are Independent Of Any School District And Thus Do Not Violate Article VI, Section 3 Of The Ohio Constitution.
Plaintiffs' fourth cause of action is premised primarily upon the constitutional provision

governing the creation of the public school system. Citing Article VI, Section 3's requirements that the General Assembly provide "for the organization, administration and control of the public school system of the state supported by public funds," and that each school district "have the power by referendum vote to determine for itself the number of members and the organization of the district board of education," plaintiffs argue that community schools must be controlled by school districts. See App. Br. at 33. As the court of appeals held, however, "[n]othing in Section 3, Article VI, precludes the General Assembly from" creating "community schools as part of the state's program of education but independent of school districts." (Apx. 44.) Because community schools are public schools created pursuant to the State's overriding authority over public education, the decision below should be affirmed.

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A.

The General Assembly Governs The State's Public Education System.

In arguing that public schools must be controlled by school districts, plaintiffs ignore the "broad powers" granted to the General Assembly to organize and administer the public school system. Through Article VI, "the General Assembly is given broad powers to provide a thorough and efficient system of common schools by taxation and for the organization, administration and control thereof." State ex rei. Core v. Green (1953), 160 Ohio St. 175, syL
~1;

see also State Teachers Ret. Bd v. Bd ofTax Appeals (1964), 177 Ohio St. 61, 62;

DeRolph I, 78 Ohio St.3d at 266 n.15 ("the Constitution grants the General Assembly even broader discretion in education matters") (Moyer, C.J., dissenting). Those broad powers include control over every facet of public education. The "General Assembly has the power to provide for the creation of school districts, for changes and modifications thereof, and for the methods by which changes and modifications may be accomplished...." Core, 160 Ohio St. at 180 (legislature may abolish an election method of changing the size and territory of school districts). "Our state Constitution makes the state responsible for educating our youth." DeRolph L 78 Ohio St.3d at 211. In meeting this responsibility, "the General Assembly possesses the power to prescribe the system of education which shall prevail throughout the state...." State ex reI. Bishop v. Bd ofEduc. ofMt. Drab Vill. Sch. Dist. (1942), 139 Ohio St. 427, 441. This authority includes directing state-created agencies to carry out the State's mandate. "[I]n pursuance of such authority [the General Assembly] may direct those agencies created by it, viz., the various boards of education," as it sees fit. Id. With this in mind, to accept plaintiffs' claim that Chapter 3314 violates the constitution by creating community schools "without the consent of, or supervision by, locally elected school boards," App. Br. at 33, one would first need to wash away the legislature's supreme role in our State's education system, to say nothing of established court precedent. Ohio courts routinely approve of the legislature's ability to organize the school - 33 -

system as it believes necessary, even where those actions directly impact a local district and school board. In Spivey v. State ofOhio (N.D. Ohio 1998), for example, an Ohio federal court rejected a constitutional challenge to a state law creating a new classification of school district, known as a "municipal school district," and vesting power in the mayor to organize and control the district's school board. 999 F. Supp. 987, 991. In holding that the General Assembly's actions did not violate the Constitution, the court recognized the legislature's "authority to provide for the creation of school districts, for changes and modifications thereto and for the methods by which changes and modifications may be made." Id. at 997-98 (citation omitted). A local board of education, on the other hand, "is a mere instrumentality of the state to accomplish its purpose in establishing and carrying forward a system of common schools throughout the state." Shaw v. Bd. ofEduc. ofCity Sch. Dist. ofColumbus (10th Dist. Apr. 21, 1934), 1934 WL 1788, at *5 (citations omitted). "School boards are creations of statute and have no more authority than what has been conferred on them by statute...." Wolfv. Cuyahoga Falls

City Sch. Dist. Bd. ofEduc. (1990),52 Ohio St.3d 222, 223; see also Bd. ofEduc. ofMarion Local Sch. Dist. v. Bd. ofEduc. ofMarion Cty. (1958), 167 Ohio St. 543, 545. Revised Code
Title 33, which encompasses Chapter 3314, "extensively governs the day-to-day conduct of school boards," leaving a "relatively narrow scope of discretion" to local school boards. Beifuss

v. Westerville Bd. ofEduc. (10th Dist. Aug. 12, 1986), 1986 WL 9049, at *2. Against this
backdrop, plaintiffs' suggestion that state-directed education policy must first be approved or consented to by local school boards is untenable. "[I]t is beyond dispute that measures which are implemented to promote an efficient system of education are matters of statewide rather than local concern." Malcolm-Smith v. Goff(8th Dist. Nov. 1, 1999), 1999 Ohio App. LEXIS 4915, at *21 ,rev'd on other grounds (2000), 90 Ohio St.3d 316,317.

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"[I]fthe delegates" to the constitutional convention "had intended that" school districts control every public school, "they would have so provided. They did not," and the Court "should not add words that the drafters omitted." State ex rei. Taft, 81 Ohio StJd at 482. While the Constitution reserves certain powers to districts, those powers must be viewed against the backdrop of the State's supreme role in all education matters. No local powers can "impair the power of the General Assembly to implement legislation designed to improve public schools" so long as those powers do not impinge any constitutional limitations. Malcolm-Smith, 1999 Ohio App. LEXIS 4915, at *21; Princeton City Sch. Dist. Bd. v. Zaino (2002), 94 Ohio St.3d 66, 76.

B.

Plaintiffs' Authority Confirms The State's Supreme Role In Education Matters.

Finding little support in the plain terms of the Ohio Constitution, to say nothing of the legions of cases interpreting those provisions, plaintiffs again turn to statements by Ohio's constitutional Framers and a law review article. See App. Br. at 35-37. At close inspection, however, one soon realizes that these second-tier authorities in truth serve to confirm the State's superior role in crafting and implementing a statewide public education system. As plaintiffs note, before the addition of Article VI, Section 3, "students were enrolled in public schools with very little supervision by, or influence of, the state," which led to a "movement for centralization" of power. App. Br. at 35 (quoting O'Brien at 634). The result was a constitutional provision that put "unified control over the educational system of the state in the hands of the lawmaking body representing the whole of the state." Id. at 36 (quoting Delegate Knight). These statements make clear that the responsibility for creating and implementing a public school system is in the hands ofthe State, not local districts, as it had been previously. See id. at 18 (quoting O'Brien at 617) (describing former system as a "patchwork" of local arrangements).

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Indeed, there can be little doubt that amended Section 3 "specifically lodges all power in the lawmaking body of the state to organize, administer, and control the educational system of the state." Proceedings and Debates ofthe Constitutional Convention ofthe State ofOhio 1912, at 1499.4 The amendment established "unquestioned authority on the part of the lawmaking power of the state to make such changes from time to time, under state control and under state centralized legislation, as the advancing of the state education and the demands of education in the state require," id. at 1929, authority the State exercised to satisfy the demands of parents in underperforming districts. That the State maintains this authority was true at the time ofthe 1912 convention, and is equally true today. DeRolph I, 78 Ohio St.3d at 212-13 ("the establishment, organization and maintenance of public education are the state's responsibility"). Plaintiffs' case law, including Board ofEducation ofAberdeen-Huntington Local School District v. State Board ofEducation (4th Dist. 1962), see App. Br. at 35, points to the same conclusion. There, the appeals court agreed that "control of schools reposes ... in the Legislature of our state." 116 Ohio App. 515, 518. In doing so, the court concluded, contrary to plaintiffs' view here, that "control of schools is and always has been vested in the Legislature of our state and not in the local school boards." Id. at 521. Equally unavailing as a constitutional concern is plaintiffs' contention that "Chapter 3314 denies ... accountability to ... voters with respect to community schools." App. Br. at 40. Our Constitution, it bears repeating, vests the State with the ultimate authority over the system of education. In exercising that authority, the State, through representatives elected by local voters, See also id. at 1500 (" [t]he first three lines [of Section 3] must be adopted in order to establish definitely that the state shall for all time, until the constitution is further amended, have complete control over the educational system"), 1915 ("It is intended to provide that the lawmaking power may use it whenever the time is ripe for it."), 1916 ("it does give to the state, beyond any question, the right to fix the standard and the right to organize the entire system").
4

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has created public community schools. The voters retain the right to change the legislature's makeup, and thus to shape this and other legislation. See Chambers v. St. Mary's Sch. (1998), 82 Ohio St.3d 563,566-67 ("If the constituents are unhappy with policy determinations made by members of the General Assembly, they can change the makeup of the General Assembly at the voting booth. Thus, in effect, citizens of the state may shape the nature of legislation. "). Local school boards, for their part, retain control over the schools that are part of the local school districts, and local voters continue to elect those board members as well as their representatives in the legislature. Nothing in this arrangement violates the Ohio Constitution.

C.

Community Schools Are Not School Districts.

Against this mountain of precedent, plaintiffs shift course, arguing that community schools are "the equivalent of school districts," and thus must be controlled by elected local school boards in accordance with Article VI, Section 3. App. Br. at 37-38. State law, however, makes plain that a community school is not a "school district." One need look no further than Chapter 33l4's opening section, which explains that a community school is "independent of any school district," and therefore not a district. R.C.3314.01(B). Had the legislature intended that community schools serve as school districts or, alternatively, be controlled by districts, they would have said as much in the Revised Code. Tellingly, they did not. See State ex rel. Cuyahoga Cty. v. State Personnel Bd. ofRev. (1998),82 Ohio St.3d 496, 499 (court must "give effect to the words used and not to insert words not used"). The remaining sections of the Revised Code confirm that community schools are not school districts. "A phrase is sometimes best known by the statutory company it keeps," F.CC

v. NextWave Personal Communications Inc. (2003),537 U.S. 293, 313 (Breyer, J., dissenting),
and the Revised Code makes clear that the phrase "school district" does not apply to community schools. R.C. 3311.01, titled "styling of school districts," states that the "school districts of the - 37 -

state shall be styled 'city school districts,' 'local school districts,' 'exempted village school districts,' and 'cooperative education school districts'" as well as "joint vocational school districts" and "vocational school districts." Notably absent from that list is a "community school district." On top of that, Ohio Administrative Code 3301-29-01, governing community school EMIS reporting, speaks of the "city, exempted village, or local school district in which the community school is located," proving that a community school, although physically located in a school district, is not one itself. The application of statutory construction rules leads to the same result. When a legislature "'includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.''' Okubo v. Shimizu (2d Dist. May 24, 2002), 2002 WL 1042086, at *4 (quoting Russello v. United States (1983), 464 U.S. 16,23). With this in mind, it is noteworthy that the Revised Code at times states that a community school "will comply" with various sections of the Revised Code "as if it were a school district." R.C. 3314.03(A)(11)(d). In other instances, however, it makes no mention of community schools being treated like districts. If community schools are school districts, there would be no need to treat a community school "as if it were a school district" in selected instances. Nor would the oft-cited Framers find any appeal in plaintiffs' argument. The Framers specifically referenced "school district[s]" in debating the amendment that added the current Article VI, Section 3. See, e.g., App. Br. at 37 (quoting Delegate Doty). Interpreting this debate and the amendment that followed to mean the Framers intended that Article VI, Section 3 apply to bodies that are not "school district[s]" would truly be a "perfectly preposterous situation." Id.

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III.

Community School Defendants' Proposition Of Law No.2 And Response To Appellants' Proposition Of Law No.3: Community Schools, Which Do Not Rely On Local Tax Levies, Do Not Violate Article XII, Section 5 Of The Ohio Constitution.
Plaintiffs next argue that the community school laws violate Article XII, Section 5, which

requires that "every law imposing a tax shall state, distinctly, the object of the same, to which only, it shall be applied." In plaintiffs' view, the method for funding community schools improperly diverts local tax levies to the schools without the consent of local voters. See App. Br. at 41. To the extent plaintiffs are correct that locally raised education tax dollars may be spent by the local district only, id. at 44, plaintiffs still do not assert a viable constitutional claim. While it is true that districts lose some funding when a student leaves, Article XII, Section 5 comes into play only if local tax dollars leave the district. And not a single penny of local tax money is used to fund community schools. Indeed, state law makes clear that tax dollars financing community schools come exclusively from the State. See R.C. 3314.08(D) (ODE "shall annually pay to a community school" amounts to fund the school). In other words, funds raised by local levies "imposing a tax" for local schools are "applied" to local schools "only." Plaintiffs admit that "the money given to community schools comes from the State's bank account." App. Br. at 45. They made the same admission in their complaint, something that understandably caught the court of appeals' eye. (Apx. 45 (plaintiffs "admit in their complaint that the funding for community schools comes from the state").) The court below nevertheless concluded that this claim deserved further consideration by the trial court. Plainly, it does not. Every district receives money from the State to finance its schools. See R.C. 3317.01. As the Court knows better than most, the amount of funding each district receives is derived from an admittedly complicated formula. Put simply, the State guarantees that every child attending a public school will be funded at a basic minimum level, commonly known as the "base formula amount." R.C. 3314.08(A)(l), 3317.012, 3317.02. In calculating a district's

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preliminary funding estimate, the State multiplies the "base formula amount" by the number of children attending a public school in the district, includin,g those choosing to attend a community school within the district's geographical boundaries. RC. 3314.08(B)(l). That total is then multiplied by a "[c]ost-of-doing-business" factor derived by consideration of the district's county of operation. RC.3317.02(N). Through this methodology, the State calculates the preliminary funding level for each district. A district's funding comes through a mix of local and state tax dollars. As to local tax dollars, each district contributes 23 mills, multiplied by the value of its local tax base, towards its funding level. See RC. chapter 3317. Once those local tax dollars, or the "charge off amount," R.C. 3317.022(A)(1), are deducted from the district's funding level, the remaining amount needed to fund the district comes from the State. For example, if a district's base formula amount multiplied by the "cost of doing business" totals $100 million, and its local share (or charge off amount) is $40 million, the remaining $60 million is made up by the State. See Dep't ofEduc. SF-3 Rep., Akron City Sch. Dist., Lines SA, 5B, 6, 18 (Supp. 134). From the State's payment to a district (called an "SF-3 payment," RC. 3314.08(A)(10)), several deductions may be made, including deductions for open enrollment, post-secondary open enrollment, and community schools. See R.C. 3313.98,3365.02. For each student in a particular district that opts to attend a community school, the State deducts approximately $5,000 from the base amount of state tax dollars owed to the district. See RC. 3314.08(C). Those deducted state tax dollars in turn are awarded to the appropriate community school. In no circumstance may the community school deductions exceed the SF-3 amount. See id. As a result, the tax dollars
financing community schools come directly from the State, not local tax levies. See

R.C. 3317.011 (Distribution of Income Tax Receipts); RC. 3314.08(D).

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The procedures for collecting and distributing funds from local school levies cements this conclusion. Tax dollars raised by school districts through local levies are certified to the tax duplicate by the county auditor, see RC. 319.28, and are collected by the county treasurer, see R.C. chapter 323. The treasurer deposits the collected taxes into a "special fund" for the exclusive use and benefit of the levying school. RC.5705.10. Local school levy taxes are never diverted to the State or any other entity without the school board's approval. Accordingly, while plaintiffs prefer to view each child as supported in part by local funds and in part by state funds, see App. Br. at 41, the truth of the matter is that when a student leaves a district for a community school, no local tax dollars leave with her. This is no different than when a student moves from one district to another. It is also no different than when a student opts to participate in the State's open enrollment program, which allows students from a participating district to attend a school in another participating district and results in a similar deduction in the original district's state funding, see RC. 3313.98, 3313.981 or when a student opts to participate in the State's post-secondary options program, which allows high school students to enroll in college using state money that would otherwise go to a district, see RC. chapter 3365. These programs would also fall at the hands of plaintiffs' constitutional sword, if their reading of our Constitution were correct. Thankfully, it is not. Simply put, "[i]t is a misnomer that local funding follows the student to the community school." See Memo from Sen. R. Gardner, Chairman, Education Committee, to All Senators, at 1 (May 21,2002) (Supp. 135). As the Senate's education dean confirms, "[t]he truth is that the community school funding formula works identically to the way the formula works when a student transfers between two regular public school districts." Id. Because the "local property tax raised by 23 mills remains the same regardless of how many students attend school in [a]

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district," the local share stays constant even when a student leaves a district for a community school, a private school or another district. Id. at 2 (Supp. 136). When a student leaves one district for another, the "state funding follows the student from one public school district to a second public school district. When there is a community school involved, state funds follow the student from a public school district to a public community school." Id. at 4 (Supp. 138). "[O]nly the state funding follow[s] these students to their community school." Id. at 3 (Supp. 137); 2002 LOEO Rep. at 1 ("Charter schools are state-funded public schools.") (PIs' Supp. 434). Plaintiffs, to their credit, seem to agree. In their brief, they write that "money given to community schools come from the State's bank. account." App. Br. at 45. Their counsel, moreover, has confirmed that "the State of Ohio makes ... payments to" community schools, and, in turn, "deducts those payments from state funds otherwise distributable to public school districts." Letter from D. Mooney to Sup't Zelman and Auditor Petro, at 1 (Jan. 11,2002) (Supp. 139). No school district, to our knowledge, has ever written a check to a community school.

As made clear by their pleadings, plaintiffs are undoubtedly unsatisfied with the current system for funding public schools. School funding, to be sure, has been and continues to be a matter of earnest debate. Seemingly every public school including community schools -

would like a larger share of the State's limited resources. That policy perspective, however, is irrelevant to the constitutional analysis under Article XII. Because no local tax dollars leave the district for a community school, plaintiffs' constitutional claim must be dismissed.

IV.

Community School Defendants' Proposition Of Law No.3 And Response To Appellants' Proposition Of Law No.4: Funding For Public Community Schools Does Not Violate Sections 4 Or 5 Of Article VIII Of The Ohio Constitution.
Rounding out their laundry list of constitutional violations, plaintiffs contend that

community schools are "private" entities that may not receive State funding. According to - 42-

plaintiffs, our Constitution forbids the State from funding public community schools through loan guarantees set forth in R.C. 3314.08(J), 3318.50 and 3318.52. (Apx. 46; App. Br. at 46.) In the proceedings below, the appeals court took a dim view of plaintiffs' claims, noting that plaintiffs themselves "do not dispute that Section 4, Article VIII, does not apply to state funding of a non-profit corporation operating for a public purpose." (Apx. 46.) The same is true for Section 5, which also does not prohibit lending to a public, education-oriented entity.

A.

Plaintiffs Fail To Allege A Viable Claim Under Article VIII, Section 4.

Under Article VIII, Section 4, the "credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation." Citing this provision, plaintiffs contend that state funding for community schools constitutes an unconstitutional loaning of the State's credit to a corporation, making the State a joint owner of a private business enterprise. Their claims fail for a host of reasons. First, to our knowledge Section 4 has never been applied in such a plainly public setting. It addresses the "giving or loaning of the state's credit to or in aid of a private business enterprise." State ex reI. Kauer v. Defenbacher (1950), 153 Ohio St. 268,282 (emphasis added); State ex rei. Leaverton v. Kerns (1922), 104 Ohio St. 550, 554 (Section 4 "relate[s] to private business enterprises"). While Section 4 might invalidate a law that entangles directly the State in private business activities, for example, where state property is used to build a shopping center, see State ex reI. Eichenberger v. Neff(10th Dist. 1974),42 Ohio App.2d 69, 75, it has never been applied to invalidate an award of public funds to public entities.

Second, Section 4 does "not apply to transactions" where, like here, "one governmental
entity furnishes credit or assistance to another governmental entity." 1996 Ohio Op. Atty. Gen. No. 96-060, 1996 WL 708356, at *10 (Nov. 21, 1996) (citing State ex rei. Speeth v. Carney (1955), 163 Ohio St. 159). That is why the Legislative Services Commission concluded that the "Ohio Constitution does not prohibit the State from guaranteeing commercial loans to or issuing - 43 -

bonds for the benefit of community schools for the renovation or construction of facilities." LSC Research Mem., R-123-3384 (Dec. 1,2000) (Supp. 143). Transfers of public funds from one governmental entity, here the Department of Education, to another governmental entity, community schools, offend none of Ohio's constitutional limitations.

Third, community schools, which were created to further the State's public school system,
advance a public purpose, thereby satisfying Section 4. See State ex reI. Tomino v. Brown (1989),47 Ohio St.3d 119, 122 (rejecting challenge to Cleveland ordinance authorizing $20,000,000 in lending to private purchasers of low-income housing as program was "undertaken for the public welfare"); State ex reI. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 149-50; Kerns, 104 Ohio St. at 550, syl.,-r,-r 1,2 (rejecting challenge to statute "furnishing aid to independent agricultural societies" as state money "is in aid of a public institution designed for public instruction [and] the advancement ofleaming"); Perkins v. Stockert (2d Dist. 1975), 45 Ohio App.2d 211, 218-20 (rejecting challenge to law funding "New Community authorit[ies]" to assist private entities with community development, as each authority "is a public organization created for a public purpose"). Community schools advance perhaps the greatest public purpose a state may undertake "educating our youth." DeRolph I, 78 Ohio St.3d at 211. A state has "a

high responsibility for education of its citizens." Wisconsin v. Yoder (1972),406 U.S. 205, 213. It follows that a community school is a "public organization created for a public purpose," educating Ohio's children. Kauer, 153 Ohio St. at 282. As in Kauer, where the Court upheld an award of funds to the Turnpike Commission, awarding funds to community schools "does not constitute a gift or loan of the credit of the state" prohibited by Section 4. Id. at 282-83.

B.

Plaintiffs Fail To Allege A Viable Claim Under Article VIII, Section 5.

Plaintiffs are equally offbase with their contention that the Ohio Constitution forbids the State from funding public community schools through loan guarantees set forth in - 44-

R.C. 3314.08(J), 3318.50 and 3318.52. Those statutory provisions allow community schools, to the extent supporting funds exist in the Community School Classroom Facilities Loan Guarantee Fund, to secure funding for building classroom facilities. See R.C. 3318.50(B). As the federal government has recognized, perhaps the greatest challenge facing charter schools is securing appropriate and adequate facilities. In 2001, President Bush signed the No Child Left Behind Act, with the goal of improving all public schools, including charter schools. Among other things, the law creates a comprehensive program aimed at assisting charter school development by "encouraging the States to provide support to charter schools for facilities fmancing in an amount more nearly commensurate to the amount the States have typically provided for traditional public schools." See Pub. 1. No. 107-110 (H.R 1) 5201 (2002). Like the federal government, Ohio, through the Classroom Facilities Fund, offers assistance to community schools facing this operational challenge. RC. 3318.50(B) authorizes the State to assist community schools in obtaining "classroom facilities." The State may guarantee "up to eighty-five-per cent of the sum of the principal and interest on a loan made" to a school by a private lender, but only if"the applicant is creditworthy" and the new facilities "meet applicable health and safety standards." Id. To the extent a school could not fulfill its debt at some future point, the lender would first collect from the school itself. Cf RC. 3314.074(A). Plaintiffs gain little legal traction in arguing that the facilities program violates Article VIII, Section 5, which prohibits the State from "assum[ing] the debts... of any corporation." App. Br. at 46-47. The State may only pay on a debt to the extent the Classroom Facilities Fund allows. See RC. 3318.50(D) ("[a]ny payment made ... as a result of a default on a loan guaranteed under this section shall be made from moneys in the community school classroom facilities loan guarantee fund"). The State has allocated $10,000,000 to the Fund, and

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no additional money can be paid out to a lender seeking to collect on a school's defaulted loan. See R.C. 3318.50(C) Accordingly, to the extent a private lender's claim is not satisfied by a school's assets, and to date there have been no defaults or claims against the Fund, even if that Fund ever was fully depleted, this is no different than the State directly awarding $10,000,000 to community schools for facilities, something the State undoubtedly has the power to do. Community schools, moreover, do not fall under Article VIII's definition of a "corporation." They are just like other public schools which, notably, receive State funding, to say nothing of the State's credit, in many ways. See R.C. 3316.20 (School district solvency assistance fund); DeRolph II, 89 Ohio St. 3d at 25 (citing state-sponsored lending for districts). Considering that the Constitution authorizes State lending in a number of areas of public interest, including to enhance economic development, see Art. VIII, 13, to foster public housing, see Art. VIII, 14, and to "increase opportunities to the residents of this state for higher education," Art. VI, 5, it is exceedingly difficult to believe that lending for public community schools has no place under our Constitution. Taking plaintiffs' theory to its logical conclusion, the State's lending programs aimed at improving Ohio's air quality and drinking water and promoting the "state's agricultural areas" and "agribusiness" would all seemingly violate the Constitution. 5 No one, to our knowledge, save for plaintiffs, has ever even hinted at that remarkable conclusion. Case law confirms that the Facilities Fund does not require the State to impermissibly assume debts of a corporation. See Butler Cty. Transp. Improvement Dist. v. Tracy (l2th Dist. 1997), 120 Ohio App.3d 346. In Butler County, the appeals court held that a proposed lease between the Transportation Improvement District and the Department of Transportation did not
5 See R.C. 3706.041-.042 (Ohio air quality development authority may issue loans to build air quality facilities), 6109.30 (director of "drinking water protection fund" may make "loans to owners and operators of public water systems for emergency remediation of threats of contamination to public water supplies"), 901.80 (Family farm loan program).

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violate Section 5. Id. at 359. In reaching that conclusion, the court cited the provision's limited scope, noting that it "applies only to certain political subdivisions of the state and not all of them.

It does not apply to many other types of political subdivisions in Ohio, such as school districts .. . ." Id. (emphasis added). The same should be true when it comes to community schools.
Because the schools share some characteristics ofa school district, see R.C. 3314.03(l1)(d) (a school "will comply with" certain Revised Code sections "as if it were a school district"), it follows that community schools are also not governed by Section 5. To the same effect is Long v. Board ofTrustees (lath Dist. 1926),24 Ohio App. 261, where the appeals court held that Ohio State University's establishment and maintenance of a bookstore, requiring the University "to assume indebtedness and contract debts in connection therewith," id. at 262, did not violate the Constitution. The "formal assumption by the Ohio State University of the debts of the Co-operative Company does not, in our judgment, fall within the prohibition of Section 5, Article VIII, of the Constitution." !d. at 264. The court approved the University's action because, like here, the "State University, by its board oftrustees, has been given general authority by statute to maintain a university and to provide for the control and government thereof, and that authority would include an enterprise reasonably incidental to the main purpose of the University." Id. at 266; see also Neff, 42 Ohio App.2d at 76 (the "right of the lessor[-public university] to re-enter the premises upon default of the lessee" does not violate Section 5). These cases together with Ohio's tradition of providing State funds to further public purposes confirm that community school funding meets all constitutional requirements.

V.

Every Other State Court To Consider Similar Claims Has Rejected Them.
Ohio is not the first state where charter school opponents, having failed to convince

lawmakers to revoke charter school legislation, have turned to the courtroom in an attempt to achieve their public policy preferences through burdensome litigation. And perhaps not - 47-

surprisingly, those courts have rebuffed these efforts, holding that charter schools have a constitutionally-preserved role in a state's system of public education. In California, its court of appeals rejected a constitutional challenge to the California Charter Schools Act of 1992, see

Wilson v. State Bd. ofEduc. (Cal. Ct. App. 1999),89 Cal. Rptr.2d 745, including arguments that
the law permitted the unlawful abdication of state control over public schools, permitted the private control of public funds, and "undermined the system of common schools." The California court agreed that the legislature properly used its constitutionally-preserved discretion in permitting other parties to determine school curriculum and course of study. Id. at 751 ("Having created the charter school approach, the Legislature can refine it and expand, reduce or abolish charter schools altogether.... [T]he Legislature retains ultimate responsibility for all aspects of education, including charter schools."). At the same time, the court rejected the notion that charter schools undermine the "system of common schools" mandated by the state constitution. Because California's charter schools, like those in Ohio, must meet statewide standards and conduct pupil assessment, see id. at 753, and because the system "guards against the flow of funds to schools outside the system," id., the court rejected the constitutional claims. The Michigan, New Jersey, and Utah Supreme Courts have reached the same conclusion. Michigan's Supreme Court, for example, has rejected claims nearly identical to those asserted here, holding that charter schools are public schools because, like in Ohio, "the state controls the money" and "exercises control over" the schools. Council ofOrgs. and Others for Educ. v.

Engler (Mich. 1997),566 N.W.2d 208, 216. The fact that a Michigan charter school "is run by a
private board of directors" that is not selected by local voters did not make the school any less "public." Id. at 217-19; see also In re Grant ofCharter Sch. Application (N.J. 2000), 753 A.2d 687 (rejecting challenge to charter schools under state's constitutional requirement of a "through

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and efficient system" of public schools); Utah Sch. Bds. Ass'n v. Utah State Bd. ofEduc. (Utah 2001), 17 P.3d 1125, 1128 (rejecting claim that charter school laws violate state constitution by allowing the Utah Department of Education to implement controls "specific and local in nature," including "redirect[ing] local school district revenues"); see also Amici Curiae Charter School Leadership Council and Supporting National and State Charter School Organizations at 2-4. Ohio's Constitution also reserves a place for community schools in its public school system.

CONCLUSION
At day's end, plaintiffs fail to cite any constitutional theory compelling the dramatic conclusion they urge. Plainly, the Governor, General Assembly and State Board of Education have the power to implement the public school system that they believe will best serve Ohio's schoolchildren. The State's political leaders enacted the program a few short years ago, and they could just as easily end the program. Indeed, if the schools ultimately do not enhance the public education system, as plaintiffs have loudly forecasted, that could well be the result. But it is exceedingly difficult to believe that these policy disputes have any place before the courts. Nor can one accept plaintiffs' suggestion that they are ill-equipped to participate in the political and legislative process. See App. Br. at 10 n.l O. From 1998-2002, the supporters of Ohio's traditional public schools made more than $2.8 million in expenditures in Ohio through their political action committees. See Political Contributions By Certain Traditional Public School-Affiliated Groups (Supp. 145). In 1999-2000, the Ohio Education Association was Ohio's top organizational contributor (other than political parties). See PIs' Trial Court Ex. R-2. Plaintiffs' claims about the political nature of Ohio's system of education confirm that these issues, absent a plain constitutional violation, should be left to the legislature. See State ex
reI. Tritt v. State Employment Relations Bd. (2002), 97 Ohio St.3d 280, 284 ("policy preferences

may not be used to override valid legislative enactments"). The views of proponents and - 49-

opponents of community schools are all well represented in the halls of the legislature. It is there, not here, that these policy-based disputes should be addressed. See In re Grant ofCharter
Sch. Application, 753 A.2d at 691 (liThe three school districts challenging the facial validity of

the Act ... essentially disagree with the legislative decision to allow charter schools to become part of the provision of public education in our state. That argument has been made, and lost, before the Legislature. "). Because plaintiffs fall far short of alleging a viable constitutional claim, counts four through seven of their amended complaint should be dismissed as a matter of law.

Dated: June 20, 2005

Respectfully submitted,

Fordham E. Huffman (0020870) Chad A. ReadIer (0068394) Counsel ofRecord JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus,OH 43215-2673 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 Counsel for Appellees/Cross-Appellants Community School Defendants

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