Ohio Supreme Court Upholds Academic Distress Law
Bills in this Story
131-HB70 SCHOOL RESTRUCTURING-DISTRESS COMMISSIONS (Driehaus, D; Brenner)
Mentioned in this Story
Governor Mike DeWine (R)

The General Assembly did not violate constitutional strictures on legislative procedure with its rapid-fire enactment of a school takeover law, nor did it usurp constitutional authority of local school boards, a split Ohio Supreme Court ruled Wednesday.

The decision puts the fate of the controversial law, 131-HB70 (Brenner-Driehaus), back in the Legislature, which debated changes for much of 2019 but reached no resolution.

The ruling came in a jumble of opinions, with Chief Justice Maureen O’Connor writing a lead opinion joined by Justice Patrick Fischer, accompanied by two concurrences and separate dissents from both of the Democratic justices, Michael Donnelly and Melody Stewart.

The law passed in the summer of 2015 to address the persistently low state ratings of Youngstown City Schools, and its three-strike mechanism for school districts receiving consecutive F grades subsequently ensnared Lorain City Schools and East Cleveland City Schools. Under the law, an appointed academic distress commission hires a CEO who assumes operational control of the district, sidelining the elected local board and its administration team. The CEO’s powers can grow the longer the commission is in effect, to include shuttering buildings and suspending portions of labor contracts. Eventually the local board can be replaced with mayoral appointees.

Youngstown school officials quickly sued over the law but lost at the trial and appellate levels. The Ohio Supreme Court took up the case to resolve two questions: if the quick method lawmakers used to amend the distress commission structure into an existing bill and pass it in the space of a day violated procedural requirements in the Ohio Constitution; and whether diminishment of the powers of local elected officials violated a separate section of the constitution.

As originally conceived, HB70 would have enabled districts to create “community learning centers” that embed health and other wraparound services in a building, exemplified by Cincinnati’s Oyler School. The bill as first envisioned passed the House in May 2015 and got one hearing in the Senate Education Committee in early June. On June 24, 2015, Gov. John Kasich sprung an amendment to create the new distress commission structure as a way to address Youngstown’s performance, which was accepted. The revised bill passed both the committee and the full Senate and drew concurrence on changes from the House within hours. (See The Hannah Report, 6/24/15.)

That compressed process for enacting the amendment inspired Youngstown’s challenge to the law under the Ohio Constitution’s three-readings rule in Article II, Section 15(C), which holds that bills should be considered by each chamber on three different days before passage. Youngstown officials charged that the amendment essentially converted the measure into an entirely new bill, resetting the three-day process. They argued the bill had been “vitally altered” under Supreme Court precedent on when changes are substantial enough to rest the process.

Borrowing language from the 1994 ruling State ex rel. Ohio AFL-CIO v. Voinovich, which involved workers’ compensation legislation, O’Connor wrote that the amendments and original bill maintained a “common purpose” of improving underperforming schools. That’s in contrast to 1985’s Hoover v. Franklin Cty. Bd. Of Commrs., involving legislation on criminal law converted wholesale to address hospital construction, which a prior Supreme Court decided met the “vitally altered” threshold.

“Despite the introduced and enacted bills’ differences, they are more similar to the bills at issue in Voinovich, in which we found no vital alteration, than the ones in Hoover, in which the bill had been vitally altered,” the opinion states.

O’Connor expressed sympathy for Youngstown’s argument that the process was different than in Voinovich, where the former governor had long telegraphed his desire for workers’ compensation reforms, but said the three-readings rule “does not require any specific level of deliberation or debate ….”

She repeated the statement from Voinovich that the Supreme Court does not want to be “in the position of directly policing every detail of the legislative amendment process when bills are passed containing a consistent theme.”

The dispute on local board powers focused on the Ohio Constitution’s Article VI, Section 3, which states the following: “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.”

O’Connor noted a variety of prior rulings on the General Assembly’s broad powers to set education policies, and local boards’ restriction to only those powers conferred by law. Constitutional language on local voters’ ability to set the makeup of a local board “does not require that any specific power of authority be vested in the school board,” she wrote.

In one concurring opinion, Justice Sharon Kennedy wrote that the three-readings challenge should have been denied simply because it’s not a matter for the courts. Citing an 1854 precedent, Kennedy wrote that the three-readings rule is “directory” and enforceable only by the Legislature. That prior ruling characterized it as follows: “This is an important provision, without doubt; but, nevertheless, there is much reason for saying that it is merely directory in its character, and that its observance by the assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts.” The three-readings rule was updated in via constitutional amendment in the 1970s to require three “considerations,” and Kennedy wrote that Hoovers holdings violate the intent of the framers of that amendment, the Oho Constitutional Revision Commission.

Justice R. Patrick DeWine concurred with Kennedy’s opinion.

Justice Judith French wrote separately to also express a desire to overrule Hoover. “While I respect the principles of stare decisis, it is time to overrule Hoover because it was wrongly decided, it presents a rule that defies practical workability, and abandoning it would not create an undue hardship for those who have relied upon it.”

Hoover has become unworkable as precedent because “courts are being called upon to review every step of the legislative amendment process,” French wrote.

“The legislative journals reflect that each house of the General Assembly considered some version of HB70 three times before its passage. Our inquiry ends there,” she wrote.

In his dissent, Donnelly wrote that developers of the 1973 amendment converting readings to considerations had rejected proposals to simply eliminate the section and leave such details to legislative rule.

“The drafters understood the three-considerations rule to be a safeguard against hasty action and the courts are the means to enforce that safeguard … While no one disputes that improving failing public schools is an important cause, the ends do not justify the means. This court can respect the powers of the General Assembly without relinquishing its duty to enforce the Constitution,” he wrote.

“Today, a majority of the court discards the three-consideration rule set forth in the Constitution and accepts in its place the far less bothersome rule of one-and-done. In an egregious display of constitutional grade inflation, the majority gives passing marks to an act that was not considered three times by either house,” he wrote.

Stewart noted changes to the bill’s title to reflect the distress law amendments demonstrate the scope of the revision. “The lead opinion concludes that both bills had the same common purpose – to improve underperforming schools. ‘Purpose’ and ‘subject’ are not synonymous; two different subjects could serve the same purpose. Administering intravenous antibiotics to someone with an infected limb or amputating that limb both serve the same purpose – getting rid of the infection. But the subject of those medical treatments, clearly, is not the same. In any event, the amendments to HB70 were so significant that they overwhelmed the original purpose to create community learning centers. No further proof is needed than the lead opinion’s description of the amendments – those amendments had nothing to do with the community learning centers and they added an additional 67 pages to the original bill. To determine whether an amendment is germane to the subject matter of the proposed bill, we should inquire whether the new matter fits under the original title of the bill. Using this test, it becomes apparent that the amendment sponsors themselves did not believe that the original title of HB70 accurately describes the bill as amended,” she wrote.

Many legislators have expressed a desire to change the distress law, but the House and Senate are at odds about how to do so. The House has passed legislation to disband the three existing commissions and institute a school improvement model that does not allow the state to assert control over local operations. The Senate Education Committee developed a revised takeover model that would give districts more time to improve and cover some costs of hiring turnaround experts, but would retain the state’s authority to assert control in the event low state ratings persist.

Absent agreement, lawmakers used the state budget to institute a moratorium on forming new commissions until Oct. 1 of this year. As a practical matter, the moratorium will extend longer, since the report card grades that trigger formation of commissions are suspended for this academic year under emergency coronavirus laws in HB197 (Merrin-Powell.) Gov. Mike DeWine agrees the law should be changed but has said it would be a mistake to simply abolish the existing commissions. (See The Hannah Report, 1/30/20.)

Wednesday’s ruling could revive litigation temporarily on hold in Mahoning County over the pending dissolution of Youngstown’s board. Under HB70, districts under a distress commission more than four years are to have their elected boards replaced by mayoral appointees. Visiting Judge Thomas Pokorny enjoined the mayor, Jamael Tito Brown, from making such appointments while the Supreme Court was deliberating on the constitutionality of the distress law. (See The Hannah Report, 12/9/19.)

Story originally published in The Hannah Report on May 13, 2020.  Copyright 2020 Hannah News Service, Inc.