Monday, February 12, 2007

The GIRFOF, Section (E)(3): Superboard.

OK, let’s get back to the Education Amendment or, GIRFOF as we’re now supposed to call it.

First a few press clips. Kirk Schuring is again making noise about proposing his own school funding fix, according to the Wooster Daily Record. He's talking about some sort of tax shift.

A couple of editorials over the weekend blasted the GIRFOF. One from rightish blowhard Peter Bronson from the Enquirer manages to make it sound worse than it is (He claims erroneously the unelected Advisory Commission determines what the budget is. Catch up on that point here.) Another from the Warren Trib-Chron on spending and education achievement not only compares dissimilar inhabitants of the fruit bowl, it misses the point that what schools in Ohio need is a stable, reliable funding source and the current system provides the opposite.

So, on to the amendment. For now, we’re going to skip over Section (E)(2), in which the amendment changes how the local share of school funding is calculated. Section (2), intertwines with Sections (H) and (K) to rewrite the foundation formula. Together they are worth three or four posts.

But we had been talking to this point about the legal structure, as opposed to the financial structure of the GIRFOF, and I want to stay on that topic with Section (E)(3), Legislative Override. As we’ve seen before, the amendment vests in the State Board of Ed. the power to determine what educational components are required to provide the high-quality education that has been declared a fundamental right. The Board also determines how much those components cost.

The General Assembly’s job in all this is to put money in the Education Trust Fund and, presumably, pass the spending bills that do what the State Board says. So far as education spending goes, the amendment has elevated the State Board of Ed to the legislative body in charge of education spending and reduced the General Assembly to the role of comptroller.

Section (E)(3) gives the GA something else to do. The legislature can override the State Board’s determination of the costs of a high-quality education by passing an alternative spending bill by a 3/5 majority, provided that the alternative bill funds “essentially the same components, programs and services as determined by the State Board of Education.” The amendment is silent on the Governor’s role, but since the override is a bill, presumably he can veto it. Of course, since 3/5 is more than is required to override a veto, it’s pretty much a moot issue. Once passed and signed by the Governor or overridden, it then automatically goes to the Supreme Court for an expedited appeal.

This is as much check on the prerogatives of the State Board as the amendment offers. A three-fifths majority is beyond the usual 2/3 one generally sees for a supermajority. This is a super-duper majority. So if you can get a super-duper majority of legislatures to agree on a cost bill, go through whatever rigmarole is necessary if Governor vetoes it and the Supreme Court agrees to it, the General Assembly can change how much is spent on education.

But note that the GA can only override on the issue of costs for “essentially the same components.” The amendment offers neither the legislature nor the Governor a mechanism for checking the Board’s discretion in determining the components of a high quality education. And remember that the amendment states that the Board’s determination becomes the definition of a thorough and efficient system of common schools. According to the plain language here, it takes that determination out of the hands of the Supreme Court and gives it to the Board.

When asked in the rollout press conference about the power given to the State Board, spokesman Jim Betts repeatedly cited the "checkes and balances" written into the amendment (view it here). Here they are. These are the checks; it's an open question how much balance is left.

There are, of course, other checks. The Governor still appoints a large swath of the Board, when there terms come due. The legislature funds the Board and the ODE that staffs them, and the GIRFOF doesn’t guarantee that funding. And the Supreme Court could punt on the provisions that allow the Board to determine what constitutes a thorough and efficient system of schools, ruling instead that the Board is still just an administrative agency and subject to the same judicial review as always.

Those things could check the power of the Board. But under the plain language of the amendment, the Board decides what constitutes a high quality education and the three traditional branches of government can do little to change it. People supporting this amendment need to be able to support that system.

UPDATED in response to comments. Never claimed to be a math whiz.


Daniel Jack Williamson said...

"A three-fifths majority is beyond the usual 2/3 one generally sees for a supermajority."

"A three-fifths majority (60%)is beyond the usual 2/3 (67%) one generally sees for a supermajority."

"A" 60% "majority is beyond the usual" 67% "one generally sees for a supermajority."


Eric said...

Ohio Supreme Court could punt ... ruling instead that the Board is still just an administrative agency

Once the state establishes a fundamental right, can't SCOTUS step in to ensure due process and equal protection? Can the takings clause apply to a state-recognized fundamental right?

Pho said...


Good questions. I think SCOTUS would steer clear of any case involving a state-created fund. right unless the underlying claim was equal protection. I think they'd let the Ohio Supremes determine what process is due. Takings is only about property, not rights.

I assume we are talking about a hypothetical SCOTUS. The current SCOTUS wouldn't touch a case like this, even to limit the right. It just goes against the jurisprudential grain of too many of the current justices to get involved in a state law case like this.