Article (Kostyu): Ohio’s top court to decide fate of charter schools

Canton Repository

11/30/05

By PAUL E. KOSTYU COPLEY

COLUMBUS BUREAU CHIEF

COLUMBUS - The debate over the constitutionality of the state’s public school system found itself before the Ohio Supreme Court once again. This time the issue is whether community or charter schools run by private companies are unconstitutional.

The court’s decision, which is expected in several months, could be critical in determining whether charter schools, many run by David L. Brennan and his Akron-based White Hat Management, will cease to exist in Ohio. Brennan, a Republican, has donated thousands of dollars to the campaigns of the Republican justices who heard the case Tuesday.

In a packed courtroom with the audience spilling into an adjacent room, where the hearing was shown on closed-circuit TV, the two sides argued their cases and responded to a constant flow of questions from the justices for more than an hour, a half-hour longer than the schedule allowed.

Justice Paul E. Pfeifer said the charter schools “start in a deep hole” because the Supreme Court has ruled four times that the current system of funding schools is unconstitutional and the Legislature has ignored those rulings.

He said the creation of charter schools was an “overlay” of the problem and not a fix to overcome the court’s so-called DeRolph decisions, which said school funding put too much reliance on property taxes. He said charters appear to create a “greater reliance on real estate taxes.”

Pfeifer rhetorically asked Stephen P. Carney, who represented the state Department of Education, if the court rules charters unconstitutional “would that make any difference to the Legislature?”

A group of advocates for Ohio’s traditional public school systems, including parents, teachers, school administrators, school board members and taxpayers, filed suit in 2001 challenging the constitutionality of the 1997 legislation that created charters.

Their attorney, Donald J. Mooney Jr., said the law ignores the intent of Ohio’s founders when they wrote the state’s constitution. He said in 1851 there was a “mish-mash” of schools competing with each other and the founders wanted to create one common or public school system. He said charter schools sponsored by public school districts do not violate the constitution, but those operated by private companies, whether for profit or not-for-profit, do because a separate system is created that uses tax money, is exempt from a range of administrative regulations and performance standards and lacks local oversight by elected school boards.

Chad A. Readler, who represented charter schools, told the justices that charters meet the criteria for being public because they must comply with the state’s open meetings and records law, must meet the same educational standards as traditional schools and oversight is provided by the state Department of Education and parents, who can withdraw their children if they are unhappy with the results.

Mooney said the charters received $424 million in state support last year. He said 26 schools closed in the last three to four years and “the assets are lost,” including the state’s ability to recover its share.

Justice Terrence O’Donnell asked Mooney if his argument also applied to home schools, but Mooney called that “a different kettle of fish” because the Legislature doesn’t send money to parents who home school their children.

Justice Alice Robie Resnick said private, parochial schools also don’t receive state money.

Mooney said that there has to be a common system that provides public accountability, which cannot be delegated to a private entity. “It’s not public if it’s managed by a for-profit company,” he said.

Readler said charter schools are open to any student, are nonsectarian and do not require an entrance exam. He said the constitution’s call for a common school system only applies to city schools. “It doesn’t say every school has to have a school board,” he said.

But Justice Evelyn Lundberg Stratton pointed out that charter schools exist in urban districts, which would seem to indicate an elected school board would be required.

“These are not city schools,” he responded. “The state has the authority to organize school programs as it sees fit.”

Carney said the charters are constitutional public schools because they meet conditions for funding, governance and standards.

Reach Copley Columbus Bureau Chief Paul E. Kostyu at (614) 222-8901 or e-mail: paul.kostyu@cantonrep.com