Breaking: No GIRFOF This Year

The coalition advocating a proposed constitutional amendment about school funding announced this afternoon that they anticipate not qualifying for the ballot this year. Currently they have about 150,000 signatures and support resolutions from 166 school districts. They would need over 400,000 signature to qualify for the ballot and aim at collecting 50% more than that to ensure they make it.

From the press release:

“We are pleased about the dialogue that our efforts have initiated to finally fix Ohio’s unconstitutional school funding system,” said Jim Betts, spokesperson for The Campaign for Ohio’s Future. “We look forward to building upon this momentum by continuing to collect signatures and working with Governor Strickland.”

They are not insisting that a proposal negotiated with the Governor's office track the language in the current proposed amendment. The situation is shifting somewhat, thanks in large part to the Governor's efforts. Some of the concerns addressed in the amendment have now been addressed in the budget -- most notably higher education and tax relief for seniors.

There are a number of reasons the Coalition elected to announce this at this time. One reason is that they wanted to update local school districts so those districts contemplating a school levy would know that they would not be competing with a statewide education funding issue.

GIRFOF News Part II: The Polls

As I teased last week, a Scott Stephens story over the weekend regarding a poll by Baldwin Wallace showing strong support for the amendment. As you may guess from the story, I got wind of it when Stephens called the Exec. Director of the agency I contract with last week. You may have caught the AP pickup running in today's ABJ. Stephen's piece is the most detailed explication.

Detailed being a relative term. Trying to limn the significance of the result from the news reports is more than a little frustrating. First off, the actual number I heard is 63 percent in favor. Stephens only say “More than two-thirds.” Meanwhile, the poll itself is available no where online. The B-W Public Interest Research Center as yet has no online presence. It apparently is new, but now much work does it take to host a pdf on the College website? And as of now, there is nothing on GIRFOF Central.

Without the poll, it’s hard to evaluate the results. Issue polling is considerably more tricky than candidate polling. The first question to ask is whether the poll summarized the amendment and asked the respondent for an opinion or whether it just referenced the Getting it Right amendment.

Probably it was the former. According to Stephens only about 20% of respondents said they had no opinion. A KnowledgeWorks poll released at the end of May found that a whopping 46% of respondents had neither read nor heard anything about the amendment proposal. If the pollsters just asked for opinion about the amendment it’s unlikely they would get 20% “Don’t Know.”

It’s also possible that B-W just filtered out the people who hadn’t heard of the issue. That being the case, the sample gets much smaller – probably around 400. And by the way, we have no MOE or confidence interval either.

Assuming the 63% figure is solid, it doesn’t leave GIRFOF proponents much room to fall. Recall that the minimum wage issue polled in the high seventies before the launch of the No campaign. And that’s an issue that people understood before the yes campaign, and that is fairly easy to get a brain around. The proposal itself was considerably less complicated than GIRFOF.

With all that, support for the minimum wage dropped around 20% during the No campaign. GIRFOF supporters will need a hell of a Yes campaign to hang on to enough of that 63% to win.

GIRFOF News Part 1: The Signature Collections

Team GIRFOF made the papers last week with a public disagreement about whether the proposal is likely to make the ballot this year. The signature campaign has racked up about 100,000 signatures so far. That’s actually not bad for an all-volunteer effort, but it’s about a quarter of what they need and since the conventional wisdom says you want to overshoot by fifty percent, they have a long way to go.

As a result, some leaders are saying the issue may not hit the ballot until next year. Others say they are still OK for this year. What hasn’t been discussed publicly is how much they are willing to put into paid signature gathering, and how much they will have left for the campaign.

If they are to have a prayer to pass this thing, GIRFOF proponents absolutely must get it on the ballot this year. Otherwise, they will be competing for earned media with a once-in-a-century Presidential campaign and a knock-down, drag out fight over control of a closely divided Congress. They will be buying time during the most expensive campaigns in the history of the planet.

Meanwhile, the opposition will have a year to slowly make the case against the amendment through word of mouth, op-eds and existing social networks. Think that doesn’t matter? Ask Ken Blackwell.

Can I Be Pro-Free Expression Without Being Pro-Lap Dance?

The answer to that question shouldn’t be hard, but for some folks in the lefty blogosphere, it’s apparently a poser. If you haven’t been keeping up, the Ohio Legislature is considering a set of regulations on strip clubs (or gentlemen’s clubs or adult entertainment venues or insert your favorite euphemism here.) Most contentious are regulations on the hours of operation and a requirement that strippers remain six feet from patrons.

The proposals are championed by the proudly wingnutty professional prude Phil Burress and his Ohio chapter of Citizens for Community Values. CCV has threatened to take this proposed legislation, The Community Protection Act, to voters if the legislature doesn’t pass it. (CCV was also a driving force behind the Ohio Defense of Marriage. They seem to think I need a lot of defending.)

I understand opposing anything CCV is for. My knee jerks in that direction as well. But lap dances are not a progressive cause. Strip clubs are not a good to be protected, they are part of the price we pay to live in a free society. When people are granted freedoms, some will use those freedoms unwisely, and the rest of us have to put up with a certain amount of crap as a result. Strip clubs are included among that crap. Progressives shouldn’t be defending a business based on the commodification of women.

Nonetheless, many of the posts against the bill have gone beyond the expected arguments about freedom of expression or home rule. In addition to all that, they’ve taken on the cause of the strip club industry as an economic development issue. Yes, strip joints provide jobs. So do meth labs. Or factories that dump mercury in rivers. Or open air markets for grenade launchers. Our libertarian friends are fond of saying that the price of one government program is the price of all of them. Well, the price of one brain-dead economic argument for bad behavior is the price of all of them.

And now Progress Ohio is hosting a press conference for a bunch of strippers d/b/a Dancers for Democracy. Does this embrace of "democracy" mean that they want to put the bill on the ballot and live with the results? I don't think so either. But high-profile liberal blogs are high-fiving over it.

As my daughters grow up and make their way through the world, they will have to deal with men whose view of women has been shaped by the existence, and for some the patronage, of strip joints. I’m not happy about that. I accept it, because allowing free expression includes allowing people to abuse it. But I’m not happy about it. And I certainly don’t celebrate it.

The issue is about freedom – the freedom of individuals to express themselves and the freedom of localities to defend their communities as they see fit. If the bill is amended to be more consistent with constitutional rights or if a court strikes it down, I will be happy with that. But I’ll not fight for more stripping than is constitutionally necessary.

Anti-Tax Group Suing School Districts over GIRFOF Advocacy

The Cincinnati-base anti-tax group C.O.A.S.T – that’s Citizens Opposed to Additional Taxes, though they don’t much like extant taxes either – is suing two school districts for advocating the GIRFOF on their websites.

I haven’t found any press coverage of the suit, though it was filed on the Friday black news hole, so that may be why. Someone sent me a link to the C.O.A.S.T. press release announcing the suit. The release helpfully includes links to pdf’s of the two complaints. Probably by design they chose one defendant school district in each of the two Federal Court districts in Ohio.

The essence of the suit is that the districts have established a forum for discussing the issue and won’t let C.O.A.S.T. use the forum to advance its position. To use magic law words, they are accusing the districts of “viewpoint discrimination” in a “public forum.”

What the C.O.A.S.T. folks seem most upset about is that school districts are advocating for the GIRFOF. C.O.A.S.T. can’t sue about that, however. Generally speaking, the government is allowed to speak, and in fact to hold a point of view. Check out the White House website. They seem to be generally in favor of the war in Iraq.

What the government cannot do is create a forum in which citizens can speak, then only allow those citizens holding a point of view favored by the government to use that forum. That’s why the complaints accuse the schools of establishing fora on their websites. It’s also why C.O.A.S.T. went to the trouble of asking to put their anti-GIRFOF material on the sites before filing the lawsuit.

I can’t tell much about the factual merits of the claim. Both sites appear to have been scrubbed of GIRFOF content. For First Amendment purposes, a forum is something used by people other than the government and its agents – remember the government is allowed to advocate. It appears from the complaints that the school districts did not set up a blog or a bulletin board or any other sort of community site that allows citizens to post content.

The complaints include one potentially ground-breaking allegation. The complaints are nearly identical, differing only in the parties and some factual specifics. The relevant allegation appears in paragraph 11: “the District maintained a forum on its official website . . . for the display (by means of hyperlink) of viewpoints on the Amendment.”

While a forum generally means something available for use by third parties, C.O.A.S.T. is alleging that by linking to a third party’s website, a government entity is opening a forum. I doubt this will fly, but it’s a clever argument.

As I said, the websites for both Ontario Local and East Muskingum are largely GIRFOF free now. Without the links, it becomes much harder for C.O.A.S.T. to maintain the lawsuit. But setting aside whatever feelings I may have about the GIRFOF, I hope someone goes to the mat on this suit. For one thing, the question of whether providing third-party links is tantamount to opening a forum is interesting in a law-and-tech geeky sort of way.

But more importantly, I fear that if school districts simply back down when it comes to GIRFOF advocacy, C.O.A.S.T. will be emboldened to bully them about other issues. After all, if school districts cannot advocate for GIRFOF without creating fora that must be open to all comers, the same could be said about school levies, or testing requirements. For that matter, privatization advocates could argue that they have the right to argue against the very existence of public schools on the district websites.

Team GIRFOF Reacts to the Budget

First off, GIRFOF spokesman Jim Betts reported Friday morning in the Akron Beacon Journal:

Jim Betts, a spokesman for the Campaign for Ohio's Future that is pushing for a school funding amendment on the ballot this fall, said the budget appears to flat-line fund many school districts.

``That hasn't convinced too many people that the governor has demonstrated a real commitment to addressing school funding problems,'' Betts said.

Hmmm. OK, here's the official response from the GIRFOF presser (pdf), posted later on Friday:

“We appreciate Governor Strickland’s expressed commitment to repairing Ohio’s school funding formula, which remains unconstitutional since the first landmark Ohio Supreme Court ruling 10 years ago. However, we are disappointed that under his budget proposal, nearly half of Ohio school districts would receive no additional state dollars next year and nearly 250 would receive no additional funding for the two-year biennium.

“We trust that the Governor and legislature will work with all interested parties to achieve the common goal to gain adequate resources to educate Ohio’s children. The sponsors of the amendment would welcome the opportunity to discuss a permanent comprehensive solution with the Governor and members to the General Assembly. Meanwhile, we anticipate that the constitutional amendment will be on the ballot this November so that the voters of Ohio can express their concerns as well. We are currently collecting signatures to ensure this process.”

Draw your own conclusions.

A Brief GIRFOF Note

This past Saturday the organization I contract with, the Ohio Fair Schools Campaign, voted to continue its support of the education amendment. My executive director has understands my objections to the amendment and will not insist that I actively work for it. She also has refrained from even suggesting that I curb my blogging about the amendment. Nonetheless, out of respect for the organization, I am going to step back from my GIRFOF writing. Again, I take this step on my own, not based on any request for Ohio Fair Schools.

Of course, if onr of my friends posts something like the fact that official support on either side of the aisle has completely evaporated, I might point you in his direction.

One Way Around Post-Kelo Reforms

From Eric Mansfield, regarding one aspect of University Park redevelopment:

I had a nice chat with Ted Curtis, Vice President of the University of Akron, today about the proposed football stadium on Exchange Street on the south end of campus. It includes a 25,000-seat stadium and some business development; there will probably be a dorm or two and some classrooms as well. . . The follow-up to all of this is how it’s going over in the neighborhood. Curtis tells me that some home owners whose property is key to the deal have already said they won’t sell. Curtis said he didn’t blink even once; he simply told them “fine, we’ll build around you.” He’s quite serious. Don’t want to [sell] for a fair price? Get ready to be surrounded.

I've always taken a jaundiced view of the conservative vapors over the Kelo decision allowing municipal takings in blighted areas for economic development. The decision itself freely allowed states and municipalities to pass laws to limit the state's power. And the decision itself was an execise in judicial restraint, following well-established case law instead of creating new rights out of whole cloth.

Mansfield item shows the folly of getting overly worked up about the issue. A developer with a kitty of cash will be able to force people out or make them miserable in the process with or without eminent domain.

And when a developer is superior using economic power without resorting to government power, the right won't say boo about it.

Meanwhile, Ohio may have an eminent domain item on the ballot this fall. Finessing the political posturing on the issue will be a challenge.

GIRFOF: Regional Meetings Announced

The Campaign for Ohio’s Future, the ballot committee for the Getting It Right for Ohio’s Future effort is starting their signature gathering campaign with a series of regional meetings. Recall that the Campaign announced that a number of meetings had been scheduled, then announced that they would be rescheduled after the petitions came back from Ohio officialdom.

The first round of meetings appear to be aimed at smaller counties. The meetings in the (loosely defined) NEO area are:

February 20 5:00 p.m.
Mid Ohio Educational Service Center, 890 West 4th Street, Mansfield, OH 44906

February 27 5:00 p.m.
R G Drage Career Technical Center, 6805 Richville Dr. SW, Massillon, OH 44646


February 28 5:00 p.m.
Maplewood Career Center, 7075 St. Rt. 88, Ravenna, OH 44266

The full list of meetings is posted at OSBA.

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.

Education Amendment: The Quinny Poll

Quinnipiac has the first polling about the AWNN. H/t to BSB who is hosting a copy of the release. You can download it an follow along there. It also has plenty of info about Strickland approval and more. I've picked out the relevent questions and chopped out the crosstabs info, mostly due to Blogger's inability to handle tables. Here are the general results, with my thoughts.

We start out with questions about the quality of Ohio schools, whose results are familiar to anyone who has spent time with the issue. People tend to believe that Ohio schools generally are OK, but their schools are great.

42. How would you rate the quality of Ohio's public schools - Excellent, good,
not so good, or poor?

Tot
Excellent 5%
Good 43
Not so good 29
Poor 19
DK/NA 5


43. How would you rate the quality of the public schools in your community - Excellent, good, not so good, or poor?


Tot
Excellent 24%
Good 44
Not so good 18
Poor 12
DK/NA 3

Then we get general questions about spending which are answered generally in the affirmative:

44. In general do you think state spending on the public schools in Ohio should be increased, decreased, or kept about the same?

Tot
Increased 61%
Decreased 5
Same 29
DK/NA 5

45. Do you think state spending on the public schools in Ohio's poorer school districts should be increased, decreased, or kept about the same?


Tot
Increased 70%
Decreased 2
Kept the same 22
DK/NA 5

We have a question about an abstract constitutional amendment. I would like to have seen a question about this specific AWNN just to see how many are aware of it and, of those, what their opinion is. Hopefully that will go in the field sometime soon.

In any event, the idea of an amendment to increase funding to poor schools is popular:

46. Would you support or oppose a constitutional amendment to make sure that more money is spent on the public schools in Ohio's poorer school districts?


Tot
Support 65%
Oppose 27
DK/NA 8

That’s the good news. Here’s the bad news:

47. The proposed constitutional amendment to increase spending on poorer schools in Ohio does not specify how the state should pay for any additional funds needed. Does that make you more likely to support such a plan, less likely, or doesn't it affect your view of the proposal?

Tot
More likely 10%
Less likely 53
No effect 31
DK/NA 5

49. Under the proposed constitutional amendment, public schools, higher education and local government programs would always be funded first, meaning that in cases of shortages, funding to other state programs, such as health care, law enforcement, or social services would be cut back. Does that make you more likely to support such a plan, less likely, or doesn't it affect your view of the proposal?

Tot
More likely 10%
Less likely 55
No effect 29
DK/NA 5

I skipped over Q48 to handle it separately. It illustrates one of the frustration those of us who advocate on this issue experience:

48. Would you support or oppose an increase in state taxes to make sure that more money is spent on the public schools in Ohio's poorer school districts?

Tot
Support 47%
Oppose 47
DK/NA 6

Great. You want more money for schools, but you don’t want to pay for it and you don’t want it to come from other big-ticket items in the budget. Yes, and I want a free Maserati and a date with Uma Thurman. Thanks for the guidance, Ohio.

And now a little more good news for amendment proponents. Sort of.

50. Currently the governor and state legislature decide school funding levels for Ohio public schools. Do you think a special commission that includes members who have worked in the schools should be appointed to make funding decisions for Ohio's public schools or should the governor and legislature continue to do that?


Tot
Special commission 64%
Governor/legislature 27
DK/NA 9

I say sort of because it reminds me so much of the RON campaign. Polls consistently showed that people favored an independent redistricting commission until the ads started running about the specifics of the actual commission proposed. Then people started to balk.

Polls on ballot issues are of even more limited utility than office campaigns. An issue campaign is very much a conversation about the specifics of the proposal. A question like this is a snapshot of one instant in the conversation, and it’s the instant when people are just starting to hear about the specifics of how the Special Commission will work.


Finally a couple of generic question about the budget which again show the difficulties in campaigning on programs without a tax base.

53. How serious do you think Ohio's budget problems are - Very serious, somewhat serious, not too serious or not at all serious?

Tot
Very serious 43%
Smwht serious 43
Not too serious 7
Not at all serious 1
DK/NA 6


54. As you may know Governor Strickland says the state is in worse financial
condition than he expected when he took office. If it turns out there is a shortage of state funds, would you prefer -- raising taxes to keep state services at their current level or cutting state services to keep taxes at their current level?

Tot
Raising taxes 34%
Cutting services 51
DK/NA 16

I expect the poll to have a real affect. I expect it will stiffen the resolve of the proponents of the amendment to go forward with the amendment as is. That makes me nervous. We know from this poll that the base for such an amendment is 65%. It doesn’t take much to whittle that down to 49% and the poll gives a fair amount of guidance to those who plan to campaign against.

If you don’t like the way this is playing out, now is the time to say something. The Getting It Right website includes contact information for many of the players. If you have strong opinions about the way this is playing out, use the list. Let these people hear how you feel.

Amendment Updates

Radio silence today because I spent most of it in Columbus for work. I leaned a bunch of interesting stuff I can’t share and some mundane stuff I can.

So far the AWNN is moving along the pipeline apace. The AG has signed off on the petition language and sent it off to the Ballot Board who will decide whether it can go forward as one proposed amendment or if it must be divided. The Board currently consists of:

Sec. of State Jennifer Brunner
Sen. Randy Gardner
Rep. John Husted
Sen. Ray Miller
William Morgan (citizen member)

By statute, the board shall:

Examine, within ten days after its receipt, each written initiative petition . . . to determine whether it contains only one proposed law or constitutional amendment so as to enable the voters to vote on a proposal separately. . . If the board determines that the initiative petition contains more than one proposed law or constitutional amendment, the board shall divide the initiative petition into individual petitions containing only one proposed law or constitutional amendment so as to enable the voters to vote on each proposal separately.
(R.C. § 3505.062, if you are in to such things)

Meanwhile, a couple of interesting items you can check out while waiting, breathlessly I'm sure, for my next amendment post. Michael Douglas wrote a piece in the ABJ Sunday hitting most of the right notes. He got hold of a Bill Phillis email I saw last week as well and used it as a springboard for arguing that school funding reform must by necessity come out of the political process.

The video of the rollout press conference is up, but not on the Getting It Right website. Instead you can find it on the website of Ohio School Boards Association which aggressively frontpages the effort. The best part is last where lead speaker Jim Betts answers about a thousand reporter questions about separation of powers.

Finally, I note a couple of lessons this effort could learn from the Minimum Wage campaign. As I noted in my Hello Muddah, Hello Faddah post about RootsCamp, I attended a session by Anna Landmark who managed the campaign. Two bits of information from her presentation jumped out, mostly to verify conventional wisdom.

First, she said that the campaign just barely scraped together enough signatures to get on the ballot. This despite starting collection before the Nov. ’05 election (I collected signatures at polls as I was doing visibility for RON.) Also, despite having enthusiastic support from union workers and progressive activists, loads of volunteer collectors and some paid gatherers. If you sit all the way through the press conference video, you will hear Betts say that the campaign doesn’t plan to use paid solicitors for the signature phase. We’ll see.

The other datum of interest was the poll numbers. At the beginning of the campaign, the idea of raising the minimum wage polled in the seventies. By the end, the issue passed with 56% of the vote. And this in a Democratic year.

Conventional wisdom says that in the course of a ballot issue campaign, support goes steadily down. Voters are inherently cautious. A voter may find ten, twenty, thirty reasons of vote against a ballot issue and the voter needs only one reason to vote no. Once a “No” campaign starts, the opposition will pick apart the bill and tease out those details that make voters uncomfortable. Like creating two entirely new boards that exist to write reports. Or giving near-total authority to the State School Board. Or including a sixty word sentence that means nothing.

Proponents have a long, long way to go on this thing.

Education Amendment (E): The Sentence About Nothing

It’s taken all my willpower not to skip ahead to this. This post is about the most amazing sentence I’ve seen in a piece of legislation, enacted or proposed, EVER. It appears as the last sentence in section (E), the section that governs deposits to and disbursements from the Education Trust Fund. It reads:

No School District or joint vocational school district shall receive any greater amount from the School Trust Fund than that which, when combined with the district’s required School District Local Revenue Contribution, exceeds the amount necessary to ensure the opportunity for a High Quality Education for each of the Public School Pupils of the Public School District for any year.

Sixty words guaranteed to make your head hurt if you read them enough. If you’re like me, you’ll need to read this several times to be confident you’ve really gotten it. Here it is again:

No School District or joint vocational school district shall receive any greater amount from the School Trust Fund than that which, when combined with the district’s required School District Local Revenue Contribution, exceeds the amount necessary to ensure the opportunity for a High Quality Education for each of the Public School Pupils of the Public School District for any year.

If you think you understand what it means except that it can’t mean that because that means nothing, you’ve got it right. For those of you still confused, try it again with the key words highlighted:

No School District or joint vocational school district shall receive any greater amount from the School Trust Fund than that which, when combined with the district’s required School District Local Revenue Contribution, exceeds the amount necessary to ensure the opportunity for a High Quality Education for each of the Public School Pupils of the Public School District for any year.

Weeding out the qualifiers and subclauses it means the following: No district can receive more money than what would be more than what they need. Let the modifiers cancel each other out and it means that a district can get more than they need. You’ve heard of a double negative; this is a double superlative.

I don't know definitively what it is supposed to mean. I can guess, based on some history that I will annoyingly continue to keep confidential, but I don’t know for sure. I do know that someone should be asking. Someone should ask the proponents of the measure what the sentence is supposed to mean. Is it a typo? If it’s a typo, shouldn’t it be fixed before we go gathering signatures?

And if it’s not a typo, what is it? Why does the amendment include a sixty word sentence that means absolutely nothing? W, at the risk of being impertinent, TF?

Education Amendment Sec. (D) -(E): GSM

Follow along as I read out loud.

Sections (D)(3)-(4) and (E) are where the amendment gets financial on us. After the State Board of Education determines the components of a quality education in (D)(2), it then does another study in (D)(3) to determine how much those components cost.

This two-part approach – determine the components of a quality education, then determining how much they cost – directly responds to one of the central concerns the Supreme Court had in the DeRolph case. The Court found that Ohio’s education funding was residual. That is, the state figured out about how much it had to spend on education and that’s what it spent.

Residual funding, by the way, can be quite the exercise. The State funds schools using a per-pupil formula, with various add-ons and multipliers mixed in. To engage in residual funding, the State presumably figures out how much they have, runs the formula backwards to figure out what that comes to on a per-pupil basis, sets the per-pupil or foundation amount and tinkers with the variables, then the whole thing runs forward and you have a school system.

The two-part approach in (D)(2)-(3) tries to get away from all that. There is something to be said for determining what makes a high-quality education independent of cost consideration. One of the strengths of the AWNN is the requirement that the state cost out what is needed for schools.

Next, (D)(4) which basically says that the General Assembly can’t stop the School Facilities program.

Section (E) says as much as you are going to get about how this is funded. The General Assembly must deposit in the Education Trust Fund money enough to fund what the Department of Education has determined constitutes a high quality education. The only funding mechanism identified is the one already in place – net proceeds from the Lottery. Aside from that, it’s up to the GA to come up with the money.

All this is why critics of the proposal say the amendment has no cap. In fact, the proponents concede – nay celebrate – the fact. They even graphically represent it. I’ve reproduced art from a page on the website which they use to illustrate the effect of the amendment. In converting the image from .gif to .jpeg, my software made it look more reasonable by creating discrete gradients. Check out the original where the top of the post-amendment graph dissolves effervescently into the heavens.

The difficulty facing the framers is that a specific budget cap arguably doesn’t really belong in a Constitution. Constitutions are for procedures and principles. Budget figures belong in budget bills. But it’s a challenge to proponents of this amendment to reassure voters that the state can sustain amount of spending the amendment will require. (And it will be a challenge to explain why they shy away from budget specific figures for K-12 education when they get specific on other areas.)

Once this thing is in effect, it’s an open question what a court would do if the General Assembly just said, “Eh,” and refused to fully fund the Education Trust Fund. It’s hard to imagine any court, much less the one we have now, ordering a legislature to impose a tax. Theoretically, a court could order deposits into the Fund, but what if all the revenue streams are already encumbered? The bottom line – there does come a point where the legislature is still the legislature.

School Funding Reset.

"And you may ask yourself, 'Well, how did I get here?"

Comments, both on- and offline, make it clear that my attempt at a neutral tone about the amendment isn’t fooling anyone. No, I’m not a fan. It has some good ideas but takes them too far. I’ll continue to unpack the amendment in the manner I’ve been doing. But first, a review of why this has come to pass.

I started (and didn’t finish) an ambitious project retracing the history of the school funding movement from the beginnings of the DeRolph case to present day. You can read what I wrote as background for part of what I’m going to say. Also, if you’ve seen the Next Step for Akron presentation, you’ve heard all this before.

I’m not going to restate the school funding formula as it stood at the time of DeRolph. You can read my previous post on that if need be. Suffice it to say school funding is done on a per-pupil basis starting with something called the foundation amount.

The DeRolph Court wrote a long, broad-based opinion that purposely avoided holding that “Thing X is wrong with school funding, fix it and you’re done.” Nonetheless, the Court identified three aspects of the school funding system it found particularly troubling:

• Residual Funding – The fact that the state bases funding on how much money it wants to spend rather than what it needs to spend to actually create a thorough and efficient system.
  
• Phantom Revenue – A trick of the funding system that makes a district’s local revenues remain flat and its state share go down as property values increase. More here.
  
• Overreliance on Property Taxes – Because the state makes local districts pay too high a share, differences in property wealth are reflected in differences in funding for schools.
  

The Court’s ruling and subsequent rulings admonished the State to fix these three problems. Instead, the General Assembly increased the foundation amount, started the parity aid program, tried a pseudo-costing-out methodology that was quickly changed when it started spitting out numbers the GA didn’t like.

The Supreme Court issued three more decisions, none giving the state a clean bill. By the time of DeRolph IV, Court personnel had lurched to the right and the original dissent by then-Justice Cook on justiciability grounds was looking good. If DeRolph I had been decided by the DeRolph IV court, I believe it would have gone the other way, at least on justiciability.

As it was, a conservative court was unwilling to overrule itself in the course of a single case. Instead, DeRolph IV declared again that the system was unconstitutional, admonished the state to fix it and relinquished jurisdiction over the case. The Court said it would no longer hear the case. To mix Biblical metaphors, they washed their hands, saying, “Go, and sin no more.”

Since then we’ve had two budget bills pass. And the result has been, well, same as it ever was.

Going into the first budget cycle the statute was written to guarantee a 2.8% increase in the foundation amount yearly. In the 04/05 budget (passed in 2003), the GA dropped that increase to 2.2%. Mind you, 2.8% didn’t cover cost of living increases, much less the greater increases in the cost of running a school system (mostly due to increases in the cost of health insurance and utilities.)

The statute also had built in increases in the Cost of Doing Business Factor. Instead the GA cut the factor in half. They also monkeyed with other parts of the formula, gave parity aid to charter schools and generally did mischief.

In the 06/07 budget they did more of the same. You can read my summary of that one.

What really irks me about that budget cycle is the after-effect of the tax changes. We were told by people in the administration and the legislature not to worry, that the tax reform would grow business in Ohio, more than making up for the lost revenues, in particular the losses locally due to the elimination of tangible business property taxes.

Twice since then the legislature has had the happy task of deciding what to do with increased tax revenue. Twice the legislature chose to apply that money to further rounds of tax cuts – cuts that didn’t even make sense from a growth perspective. The fact that we didn’t believe them at the time doesn’t keep the proof that they lied from stinging.

As you read the proposed amendment, you will sense a fundamental lack of trust in the legislature. That lack of trust in real, and has a strong basis in history. Some folks of a different political stripe my comment about this with unions or that with overhead. I agree with a lot of that. But I also understand why nothing is on the table – no one trusts the legislature any more.

So that’s why I still believe in doing what I do. That’s why I was willing to give the amendment process a chance. And that’s why, to tip my hand a bit, I’m willing to use my tiny soapbox here to add a few drops to what I hope to be an overwhelming swell of opinion that sweeps the parties back to the table to fix this thing and make it a viable alternative.

So, that’s how we got where we are. Now, back to parsing the amendment, in which we ask ourselves:

“MY GOD! WHAT HAVE I DONE?!”

The Amendment, Sec. (C) and (D): Three Boards, Two New

I'm hearing indications that the proponents of the AWNN are pressing on, so we shall as well. Remember you can follow along here.

Sections (C) and (D) deal with the boards that will do the stuff the amendment requires. The amendment actually creates two new boards – the Education Accountability Commission and the Education Advisory Commission – as well as broadly expanding the powers of the State Board of Education.

Section (C) creates the Accountability board. As is usually the case in constitutional provisions, the language is very basic – only that the commission is created, how its members are appointed, and some restrictions on who gets to serve (three former or current public school district employees.) The General Assembly is to fill in the details, including what sort of staff the Commission gets.

Staffing is important because the Commission’s mandate is as follows:

The Education Accountability Commission shall monitor and annually report to the Governor, the General Assembly, the State Board of Education and the public regarding the extent to which the resources necessary to provide the components of a high quality public education as required by this section are being delivered in a cost efficient and effective manner and the degree to which they are successful in improving pupil performance, together with such recommendations for improvement as the Commission determines.

A tall order. Presumably this means “monitoring” the spending of 612 school districts, plus Education Service Centers that serve them and perhaps the State School Board itself. They monitor and report. It should be noted that per the amendment, that’s as far as it goes. They report.

Reports are fine things. I’m all about reports. I got my first op-ed published due to my high dudgeon that there would be fewer reports about education in Ohio. But according to the amendment, the Commission’s authority goes no farther than that. It’s conceivable that the General Assembly could give a little more teeth to the Commission’s report, but as we will see as we get deeper into this, that’s a little hard to do given the broad discretion given the State Board of Education.

Next, in (D)(1), the amendment creates the Education Advisory Commission. Their job is to . . .wait for it . . . advise. The State Board of Education, as it turns out. (D)(1) tells you who sits on this Commission and how the eighteen members are appointed. When you head down to (D)(2), that’s when things get interesting.

The first sentence of (D)(2) zips through most of the meat of this thing, so you have to look sharp. In the middle of a sentence about the State Board of Education's new job, it tells you what the Education Advisory Commission does: “[the OBE shall] in concert with the Education Advisory Commission . . .” so the Advisory Commission works in concert with OBE. Presumably OBE is also working in concert with the State School Superintendent and the staff at the Ohio Department of Education as well. And again, the General Assembly determines staff of the Advisory Commission.

So, 19 members of the State Board of Education, 18 members of the Advisory commmission, plus the State Superintendent and ODE staff. And are what all these folks they doing in what we hope is harmony? “[E]ach budget biennium, conduct objective, reliable and validated studies as appropriate to define the Educational Components of a High Quality Public Education for all Public School Pupils for the next succeeding budget biennium.” There’s more about what sorts of things the State Board is supposed to look at, then this:

The Educational Components as so identified shall, when fully funded, constitute a thorough and efficient system of common schools as required by Section 2 of Article VI of this Constitution.

You could, I suppose, read that as saying that what the Board is supposed to do is pick the components needed to create a thorough and efficient system. But what the sentence appears to be saying is that the components the Board selects are, ipso facto, what a thorough and efficient system requires.

What we lawyers call"Administrative Law" is it's own practice field. Many of the smartest (and geekiest) lawyers end up there because it is so complicated and arcane. Admin lawyers need to know the circumstances under which a court can review and administrative action, when a decision can be deemed arbitrary and capricious and on. I'd have to do some serious work to get back up to speed on Admin Law to figure out how all this works. But not now. With that last sentence, the State Board of Education's selection of educational components becomes a constitutional mandate.

Remember this. It gets mighty important later on.

Unpacking the Amendment, Pt. 1: Know Your Rights.

As the Dispatch notes, the education amendment is gaining few friends but plenty of enemies. If I really want to write a series of posts about this thing, I need to get going.

By the way, anyone besides me think this thing needs a name? Right now the name would be something like “The amendment proposed by the Coalition for Ohio’s Future d/b/a Getting it Right for Ohio’s Future.” That could stand to be tightened up a bit. I’d suggest to the proponents something like the Right to Learn Amendment, but who listens to me?

On to the Amendment. Let’s skip over the definitions for a minute. Reading the definitions out of context is causing people to get worried for no reason. In a statute or constitution, definitions matter only insofar as they define terms that appear in the statute.

The first substantive provision is Section B which proclaims:

Each Public School Pupil has a fundamental right to the opportunity for a High Quality Public Education. Such right shall be guaranteed by the state, as provided in this amendment, for all Public School Pupils, regardless of school district property values, income levels or other demographic or geographic factors.

Now we need to look at the definitions to begin understanding what that means. In the definitions section, “Public School Pupil” is defined as “any individual who is required by law to attend, or who does attend a public school operated by a Public School District as defined herein.” Some people have been asking about private school students, charter school students, voucher school students. The amendment applies to them all in that it guarantees each an opportunity for a high-quality education. That doesn’t mean they have a right to state-funded improvements in, say, a private school. It doesn’t mean that Life Skills will be forced actually offer a decent education. As long as the public school district where they live offers a high-quality education, the provision is fulfilled.

The definition of a high quality education sets a fairly high bar: "all of those educational components, programs and services necessary to prepare each Public School Pupil to carry out the duties of citizenship and to function at the highest level of his or her abilities in post-high school education programs or gainful employment." If you read the definition of "Educational Components," the bar gets arguably higher.

The fundamental right provision changes the law in two ways. First, it creates a personal right to education. The provision in the constitution now states only that the state has a duty to maintain a thorough and efficient system of common schools. Second, because the right is declared a fundamental right, it opens the door to (caution, legalese ahead) heightened scrutiny equal protection analysis.

What?

The 14th amendment to the US Constitution guarantees that equal protection under the law. The line of cases interpreting this provision use different standards depending on nature of the claim. If the issue involved either a suspect classification (race, religion, national origin among others) or a fundamental right, the court imposes strict scrutiny. What you need to know: high bar. Difficult to defend the action. In most other cases (gender not included) the standard is rational basis. What you need to know: if it’s rational basis, game over. The court can always find a rational basis.

By declaring education a fundamental right, the amendment may overcome the barrier to judicial action erected by the Supreme Court in San Antonio Independent School District v. Rodriguez. That was the one equal protection case based on wealth of school districts that the Court considered.

Problem is, Rodriguez was decided on three lines. One was that education is not a fundamental right. A second is that a system in which different school districts have different tax bases doesn’t classify citizens in a way that runs afoul of equal protection. The third is that such a case is not justiciable.

Justiciability is one of the terms courts use to say they are bailing on an issue out of concerns about separation of powers. For example, sometime after the resolution authorizing use of force in Iraq, a bunch of citizens (including Dennis Kucinich) sued claiming the Congress hadn’t properly declared war. The court dismissed the case as nonjusticiable – the courts will refuse to get involved in controversies involving war. The DeRolph dissent was based in large part on justiciability.

So how will this change affect how courts decide education cases? That’s not at all clear. I’ve been told that in 14 states education has been declared a fundamental right, but I can’t find a case where that was done in a constitution. From this summary of state constitutional provisions, it looks like those that include an education guarantee do so with some version of what Ohio has – a duty imposed on the legislature to maintain the system. Some courts have uses such clauses to declare a fundamental right. For instance, the North Carolina Supreme Court found that a similar provision in their constitution guarantees each child a right to a sound basic education.

The section on its face solves the fundamentality problem. The bit about the guarantee holding regardless of where a student lives may solve the classification problem. But neither by itself solves the justiciability problem.

Problem is, Rodriguez isn’t going anywhere. Rodriguez was decided in 1972 when the Court was still giddily riding the wave of Warren-era activism. Of the recent Court conservatives, only Renquist sat at that time. On that Court the the plaintiffs ended up on the bad end of a 5-4 decision. On a court dominated by conservatives like Ohio’s, an attempt to move beyond Rodriguez into a heightened scrutiny equal protection analysis is likely a nonstarter, even with this new language added in.

So the fundamental right language by itself won’t necessarily move a recalcitrant Supreme Court. It does set the stage for some of the guarantees explicitly laid out in other provisions of the amendment. That’s coming up.

No TELlin'

No more TEL. No more albatross. No more easy puns.

What a difference a year makes. Last year this time I was driving regularly to Columbus to attend meetings of the Coalition for Ohio's Future, dedicated to fighting something called TABOR. The coalition, strong and growing as it was, ran scared. In early polls TABOR was getting approval ratings in the low seventies. TABOR proposals were popping up all over the country as hard right conservatives planning ’06 runs on a radical TINY GOVERNMENT agenda used their sponsorship of TABOR to build name recognition and grassroots support. Word was Blackwell was doing the same thing here. We were bracing for a hard, multimillion dollar fight. We were dreading the double-whammy of TABOR in ’05 and Blackwell in ‘06. Prof. W. and I didn’t just talk about moving out of state, we were actively looking.

Then, miraculously, Blackwell blinked first. Republican leadership, which wasn’t at all happy with TABOR was genuinely scared of RON. They convinced J. Ken to file one day late to put it on the ’06 ballot. J. Ken made with the brave face, but it was pure retreat.

As has been true of retreat through the ages, the TABOR retreat gave J. Ken’s adversaries the advantage. First, voters in Colorado, the only state with a budget cap like TABOR, voted to release themselves from its grip for five years. It was a rebuke so firm that the previous “TABOR or if you prefer TEL” nomenclature changed forever to just “TEL.” J. Ken pretty much ignored TA-, er, TEL throughout the postelection fall, save for the occasional tap with a 9 ½ foot pole. It was bad enough that the Ohio Taxpayer’s Association, one of TEL’s more ardent supporters, ponied up for robocalls to light a fire under Blackwell.

Meanwhile, anti-TEL forces were regrouping and seeking reinforcements. The delay meant more time for the Coalition to talk to local government groups about what a disaster TEL would be for them. More groups came out against it, newspapers constantly denigrated it, and Jim Petro made opposition to it the centerpiece of his primary campaign.

So now it is gone. Maybe. I still haven’t seen legal authority for anyone to remove it from the ballot. Supposedly if the issue committee agrees unanimously it will be removed. All well and good, but if anyone farther out there than Blackwell on taxes and budget wants to sue to reinstate it, it’s an open question whether they will succeed. A lawsuit by the Coalition to knock it off the ballot on technicalities may succeed, but again another group may intervene to defend TEL, leaving it all an open question.

So what does this mean moving forward? For Blackwell it means a radical change in narrative. J. Ken’s story so far was that he was the One True Republican. He was the authentic heir to the Reagan mantle with W’s “Decider” persona layered on top. The economic straights of Ohio were to be blamed, not on the Republican theory of governance, but on pretenders unworthy of the letter R. All of this put Blackwell on the outs with the Republican establishment, which is where he wanted to be. He ran as much against his own party’s lite conservatism as against Ted Strickland.

Oh, um, do-over. Blackwell the decider has now decided his centerpiece is no longer worth pursuing. Blackwell the keeper of the conservative flame has extinguished his most conservative proposal. Blackwell the outsider has now made a backroom deal with the party whose legacy of failure he now inherits.

Republicans are calling this a victory – kind of like the poker player who folds after a bad bet congratulates himself for not chasing his opponent’s raise. True, no TEL is better for J. Ken than TEL. But he’s in a far weaker position than anyone would have dared dream a year ago. Strickland is predictably crowing about it and is hopefully devising strategies to remind people that J. Ken had one idea and has admitted it was a stinker. If Strickland is sufficiently deft, he may be able to taint J. Ken’s other dubious proposals – 65%, leasing out the turnpike – as equally defective products of Blackwell’s policy mill.

Meanwhile, times will be tough in Ohio under Baby TEL. Blackwell’s one victory in this is perpetuating the Ohio’s “Out-of-Control Spending” meme. As someone who has worked with and/or has ties law enforcement, health care, K-12 education and higher education, I can’t see where all that out-of-control money went. If anyone is getting fat outside the bad investment industry, I’d sure like to hear about it. With a rebounding economy and reformed tax structure, things were looking up. Now BabyTel will keep the legislature from replacing what they have cut.

I’ve been digging through the various factoids used to perpetuate the spending meme and will report sometime in the future about what I find. It’s an article of faith among Democratic political consultants that government spending is indefensible. Maybe. But Republicans have spent decades changing the conventional economic wisdom on the government’s role in the economy (and not all for the bad – price controls anyone? I thought not.) Democrats need to devise ways to talk about government activity that go beyond winning the next election or parroting the last focus group. Republicans are winning because they trained for a marathon where Democrats keep running sprints.

I must admit to some pangs about TEL’s demise. The issue was one that prompted me to get into blogging in the first place. My second post ever was anti-TEL. I had planned to blog the hell out of it over the summer. But now, we may be able to engage in a more measured discussion about what we want out of government and what it can provide.

Stay Tuned.