Article: Public school advocates and academy supporters in total disagreement before Ohio Supreme Court

Big divide in charter arguments

By Dennis J. Willard and Doug Oplinger
Beacon Journal staff writers

COLUMBUS - On even the most basic issue -- whether charter schools are public -- the two sides disagreed.

And they found little common ground thereafter Tuesday as lawyers for and against charter schools made their cases in a hearing before the Ohio Supreme Court that at times was highly argumentative.

At issue is the constitutionality of 297 charter schools in Ohio, and the $444.5 million in state funds they will receive this year.

The schools enroll more than 66,000 students.

In 2001, a coalition led by the Ohio Federation of Teachers -- Ohio's second-largest teachers union -- filed a suit saying charter schools are unconstitutional.

To date, no state's supreme court has struck down charter schools as unconstitutional.

If Ohio's seven justices followed tradition Tuesday, they met in private after the hearing, discussed their positions, took a preliminary vote and selected who would write the opinions, which could take several months to finalize.

Lawyers in their arguments differed on whether charter schools are held to the same standards as public schools, whether their funding diverts resources from public schools -- particularly in troubled urban districts -- and whether there is adequate public oversight.

The hearing went about twice the allotted time of 30 minutes as justices repeatedly interrupted the lawyers with questions.

Donald Mooney, a lawyer for the teachers union, told the justices that the state legislature, according to the 1851 Ohio Constitution and a 1933 Ohio attorney general's opinion, is required to create a single, common system of schools administered by public officials with uniform funding and standards.

Question of control

Mooney said charter schools are a separate system of schools run by private, for-profit companies with no public oversight.

Chief Justice Thomas Moyer -- who said the plaintiff's strongest point is lack of local control -- pointed out that the Ohio General Assembly has a good deal of constitutional latitude to forge a system of public schools.

He asked why the legislature's power would not include creation of charter schools.

Mooney said the public-school concept is that they are ``owned by the public, administered by public officials, either elected or appointed by public agencies, and that is not what we have here.''

Lawyers for the charter schools disagreed.

``Clearly, charter schools are public schools,'' said Chad Readler, representing charter-school advocates.

Justice Maureen O'Connor, said ``the fact that the legislature created community schools -- is that enough to bring them into the nomenclature of common (public) schools?''

Readler answered that charter schools are public entities. They are publicly funded, do not discriminate, do not charge tuition, are nonsecular, hire state-certified teachers and do not require entrance exams, he said.

Justice Terrence O'Donnell asked whether they are held to the same standards.

``Yes, they are,'' Readler said.

Justice Paul Pfeifer asked if the students take the same tests.

``They do,'' Readler said.

Stephen Carney, a lawyer for the Ohio Board of Education, said there is oversight.

Mooney, however, offered a different perspective. He said charter school teachers are less qualified, often hold only temporary teaching licenses, and have large turnover, and that classrooms are more crowded in charter schools.

Although charter school students are required to take the same tests as traditional public-school pupils, the charters are not punished, taken over or faced with losing their funding for posting poor test scores -- as are public schools, Mooney said.

Carney told the court that charter schools must receive approval from sponsors to open, and these sponsors are regulated by the Ohio Department of Education.

He said schools can be closed if students and families leave, or if the sponsors or Department of Education shuts them down for poor performance.

School financing

On the issue of financing, Mooney acknowledged that the state pays charter schools directly.

``If that is all that is a concern to the court, then we lose on that issue,'' Mooney said. But, he said, ``If you look at the practical consequences, look at it from the point of view of school administrators in Cincinnati, Akron and Cleveland, they are losing money from the state and local share,'' Mooney said.

Justice Pfeifer, who ruled four times that the way Ohio funds public schools is unconstitutional, challenged lawyers for the charter schools to explain why diverting state funds from public schools does not increase the burden on local property owners.

Pfeifer grew testy at times with their responses.

``The posture of the state is, you are running an unconstitutional system,'' Pfeifer said. ``The legislature's response so far is to tweak it and to ignore this court.''

He said the problems in the urban districts highlighted the weaknesses in the school-funding system, and the legislature's response was to drain even more money from the schools.

``The net result is a greater reliance instead of a lower reliance on the real estate taxes -- in direct conflict with the admonitions of this court,'' Pfeifer said.

Carney said no local dollars go to charter schools, and state dollars follow the student. Per-pupil funding is not reduced for a traditional public school when a student transfers to a charter school -- or even to a religious, private school, Carney said.

``I'm not buying the mathematical argument,'' Pfeifer said.

``Sorry, your honor, it's in the statute,'' Carney said.