Back to School: The DeRolph Decision

Very long, tedious law review articles can be and have been written about the first DeRolph decision. It's one of those "Get yer tenure article here" cases for law professors. I won't do that to you. Though the main opinion runs dozens of pages, not including two separate concurrences and two separate dissents, the arguments on the two sides can be fairly easily summarized.

All of which is to say, don't get your shorts in a bunch, Mr./Ms. Actual Lawyer, about the brief treatment here. This is all about having a reference point for lay readers.

The majority decision starts with a summary of the school funding system. The Court’s summary highlights a number of aspects of the funding system that sabotage the efforts of property-poor school districts to establish viable schools.

First and, judging from the majority’s tone, most offensive to the court, the state school funding system is residual. The state does not determine how much it costs to educate students, then allocate that money. Rather, the General Assembly figures out about how much it has to spend on education, then works backwards, tweaking the formula to come out to about that total.

Other features of the Ohio funding system that raised the court’s ire were House Bill 920, phantom revenue, and the over-reliance on local property taxes.

The court then recites pages and pages of evidence of abysmal conditions in small rural school districts. The court concluded that 1) these conditions were the inevitable result of the weak state funding system and 2) a system that creates these conditions is not a thorough and efficient system of public schools.

Then, in probably the most portentous and controversial move, the court tells the General Assembly to go fix it, without laying out exactly what a fixed system would look like. The court was caught in a dilemma. If it laid out lots of specifics, the majority would be accused of legislating from the bench. On the other hand, just saying “bad system; go fix it” doesn’t give the litigants much to go on. By choosing door number 2, the court practically guaranteed the eventuality of DeRolph II.

The dissent quibbles with most of the majority’s conclusions. But the centerpiece of the dissent is its finding that the controversy is not justiciable. The doctrine of justiciability is seldom used, a cynic would say because it requires someone with power to refrain from using it. It says that some constitutional controversies are beyond the reach of the court. The classic example is the war powers clause of the U.S. Constitution. Dennis Kucinich may have been fighting the good fight when he sued saying that Congress did not properly declare war in Iraq, but as a court case it was over before it began. Courts in America will never wade into the bog of war making.

And the dissenters said it is even so with school funding. By the dissent’s formulation, the General Assembly, not the courts, should determine what constitutes a thorough and efficient system of schooling. In light of the subsequent history of the DeRolph litigation, this argument seems in retrospect the most credible.

Aside from invoking justiciability, the dissent quibbles with the fact and disputes the majority’s equal protection analysis. What? Equal Protection analysis? There was equal protection analysis? Well, no, but you wouldn’t know that from reading the dissent. The point of the majority was that if a system produces schools that cannot provide the most basic elements of education, that system is not a thorough and efficient system. In the dissent’s hands, this morphs into an argument that the education clause mandates education equity. This isn’t what the majority says, but the dissent convincingly argues it down, nonetheless.

Next Week: The Court has spoken. Now what?