Published Online: December 6, 2005
Published in Print: December 7, 2005, as Ohio Supreme Court to Rule on Charter Law

Ohio Supreme Court to Rule on Charter Law

Fate of nearly 300 charter schools may hinge on decision.

The Ohio Supreme Court last week heard arguments in a lawsuit challenging the constitutionality of the state’s system of charter schools, which have been the subject of fierce opposition from teachers’ unions and other critics.

The justices’ ruling could affect some 66,000 students who attend close to 300 charter schools statewide. Ohio has more charter schools than any other state but Arizona, California, and Florida.

The plaintiffs are seeking a declaration that the state charter law and the current funding system for charters are unconstitutional. They want the court to compel state lawmakers either to change the law before the start of the next school year or halt all state funding for charter schools— now more than $400 million per year—and redirect it to local districts.

The court is expected to issue a decision sometime next year.

At the Nov. 29 hearing, which was shown live on the Internet, the plaintiffs’ lawyer argued that the charter schools, as they are now set up, should not be considered public schools under Ohio law.

“It’s not a public school if it’s administered by private entities, if it’s managed by a for-profit corporation, and I think that is the key,” Donald J. Mooney Jr., the plaintiffs’ lawyer, told the court.

At the same time, he suggested that charters could be created and operated in a way that would satisfy legal requirements. “I think you could have constitutional charter schools,” he said.

The defense challenged many aspects of the plaintiffs’ arguments, including the premise that charters, called community schools in Ohio, aren’t public schools.

“Clearly, community schools are public schools,” said Chad A. Readler, a lawyer representing 80 Ohio charters. “[T]hese schools carry every indicia of a public entity. They don’t discriminate. They hire state-certified teachers. They’re publicly funded. They don’t charge tuition. There’s no entrance exams. And I think most importantly, they’re nonsectarian.”

Governance at Issue

Ohio first passed a charter school law in 1997, and the number of such schools—and students served—has climbed steadily since then.

The law, which hands the schools significant autonomy, has been amended several times, in part responding to concerns about poor quality and insufficient oversight of charter schools.

Overall, academic performance from Ohio charters has been lackluster.

Critics point out that the charters have consistently shown weaker achievement than regular public schools. While some charter proponents acknowledge the schools haven’t lived up to their promise, they note that Ohio charters serve mostly disadvantaged students, and say that a comparison with similar schools reveals a more nuanced picture, with some charters performing better and some worse.

Academics aside, during last week’s hearing, one justice pointed to the popularity of charter schools.

“Obviously, the concept is popular,” said Justice Paul E. Pfeifer. “Parents are voting with their feet and sending their kids to charter schools.”

The concept isn’t popular, however, with some public school groups, which have taken various approaches to opposing charters, including lobbying the legislature, launching public-awareness campaigns, and filing three separate lawsuits.

The case being heard last week, Ohio Congress of Parents and Teachers v. State of Ohio Board of Education, was filed in 2001 by a coalition of public school groups, including the Ohio PTA, the Ohio Federation of Teachers, the Akron Education Association, and the Ohio School Boards Association. Their case is based on 10 statutory and constitutional arguments.

The case was divided into two parts. The first deals with the constitutional challenges, which the high court is considering. The trial court dismissed virtually all of the constitutional claims, but an appeals court reinstated several of them. Both sides appealed to the high court the portions of the ruling that were unfavorable to them.

During the hearing, the justices seemed most interested in the plaintiffs’ contention that local school boards should have a role in overseeing charter schools.

“The question that seems to be your strongest point is the governance of the schools,” Chief Justice Thomas J. Moyer told Mr. Mooney.

“I think the strongest argument they have is, ‘We’d be OK with community schools if the school boards were also in control of them,’ ” said Justice Evelyn Lundberg Stratton.

While the plaintiffs have focused much attention on for-profit organizations that operate Ohio charters, such as White Hat Management Inc., school districts themselves already sponsor more than one-fifth of the state’s charters, said Terry Ryan, the vice president for Ohio programs and policy at the Thomas B. Fordham Foundation, a Washington-based think tank that sponsors 10 Ohio charters.

“White Hat only runs 26 schools in this state,” Mr. Ryan said. “You would think it’s basically every charter school in the state.”

Stephen P. Carney, the senior deputy solicitor in the Ohio attorney general’s office, argued that local control by school districts is not required of charters, because they are funded solely by the state.

“I get to vote for my state representative and my state senator,” he told the court. “I get to vote for the governor. Control of the local school board over levy funds is what animates the concerns in [the state constitution].”

Accountability Debate

The plaintiffs also argue that the standards for charters differ from those for regular public schools.

“The concept set forth in the constitution in 1851 was that there was going to be a common system [of education] funded on a uniform basis with uniform standards by the state of Ohio,” said Mr. Mooney, who is the brother of Tom Mooney, the OFT’s president.

He noted a new state law that creates some separate accountability demands for charters. Under that law, enacted this past summer, the state would eventually have to shut down low-performing charters. Mr. Mooney said the legislation, which he argues sets weak academic demands for charters, amounts to “accountability lite.”

But the defense countered that charters are subject to the same state standards as regular public schools, and if anything, are subject to greater accountability.

“These schools face a stronger form of accountability than our traditional schools have ever known for 100 years,” said Mr. Carney. “First and foremost, … if the parents and students don’t like it, they leave, there goes their funding, the school dries up.” He also said the sponsor or the state may shut them down.

Even some strong charter supporters, however, acknowledge that Ohio hasn’t done a good enough job holding charters schools accountable for student performance.

Mr. Ryan of the Fordham Foundation said that the new state law was an appropriate step to help out. He also suggested the law would place more pressure on local authorizers to be more assertive with low-performing charters.

“The fact that so few schools have been closed for academic failure tells you there hasn’t been a real strong authorizing environment,” Mr. Ryan said. “That’s changing.”

PHOTO: Ohio Supreme Court Chief Justice Thomas J. Moyer, left, and Justic Paul E. Pfeifer listen to lawyer Donald J. Mooney Jr. as he argues against the state's charter school law on Nov. 29.
—Will Shilling/AP

Vol. 25, Issue 14, Pages 25,27

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