Families, school districts take EdChoice issue to Ohio Supreme Court

COLUMBUS (WCMH) — A lawsuit claiming Senate Bill 120 is unconstitutionally delaying the enrollment of the EdChoice Program was filed with the Ohio Supreme Court Monday on behalf of 15 families and two school districts.

Speaking for the plaintiffs is the group Citizens for Community Values President Aaron Baer and one of the attorneys involved with the matter, Brian W. Fox, of the law firm Graydon Head & Ritchey.

The lawsuit puts forward two main claims: first, the delay imposed is unconstitutional because the bill it was passed in does not carry an emergency clause, and second, they claim the state cannot deny families access to the enrollment because they have a vested interest.

Baer said because the state released the upcoming eligible schools’ list for the EdChoice program last November, families and schools that have already begun preparing to potentially participate will be aggrieved if the process is delayed, adding the schools have a vested interest based on expectation.

The list was posted on the Department of Education’s website several months ago, but a question remains on if that matters since the “official” list really isn’t fully official until enrollment opens, which was slated to be Feb. 1.

Last week, lawmakers, at the eleventh hour, passed Senate Bill 120 with an amendment that not only delayed the enrollment period, but added a $10 million appropriation to the bill.

The Ohio House of Representatives chose not to add an emergency clause to the bill before overwhelmingly passing it and sending it back to the Ohio Senate. After passing the bill in the late hours Thursday, many State Representatives left Columbus to go home for the weekend.

On Friday, the Ohio Senate took up the matter and passed the bill as well, albeit begrudgingly with a 24-6 vote, more than enough to meet the number of votes required to pass a bill with an emergency clause, which the Senate-approved version also did not include.

Based on the fact there were enough votes to pass the bill with an emergency clause, as long as few senators who voted yes objected to such, it is a wonder why an emergency clause was not used.

An emergency clause as defined by the glossary of the Senate is:

A clause that must be included in any bill, other than a bill that levies a tax or makes an appropriation for current expenses, if the bill is to take effect immediately upon passage by the General Assembly and approval by the Governor.

It allows for the bill to immediately go into effect avoiding a 90-day waiting period like most other legislation.

The House banked on the appropriation activating the bill immediately while some senators disagreed.

It all hinges on if the $10 million appropriation triggers the current expenses portion of the definition as pointed out by Greg Lawson, who is a research fellow with the Buckeye Institute and not an attorney.

“My understanding, generally speaking, is it usually has to be intrinsically related to ongoing government expenses, and there is a real question here because these are obviously expenses that fall into a different fiscal year,” Lawson said.

Over the weekend, Speaker of the House Larry Householder (R-Glenford) tweeted his confidence in only adding the appropriation and not going with the indisputable emergency clause to activate it immediately.

“Not my first rodeo!” wrote Householder. “(1) LSC researched and drafted the amendment. (2) House legal staff reviewed its legality. (3) Outside counsel reviewed amendment. (4) Rep Seitz (highly respected attorney) reviewed and offered the amendment in session.”

State Rep. Bill Seitz agrees that this is the crux of the legal matter, and also points out the timing of school funding to a different end.

“The legal question is, is the appropriation applicable only to expenses in the current fiscal year or does it cover the full two years of the General Assembly?” Seitz said. “If it does cover the two years of the General Assembly, then the expenditure would cover a current cost for the upcoming 2020-2021 school year.”

If the judges rule in his favor, then the enrollment window would indeed be moved back to April 1, 2020, far enough into the future that he is confident a fix will be agreed upon before the eligible school list is active.

“People of goodwill can get this resolved in less than 60 days,” said Seitz.

The eligibility list is at the heart of the Citizens for Community Values’ second argument, and when it is considered official, it may lead to determining if families did indeed have a vested interest.

Seitz doesn’t believe they do.

One final thing to point out was an argument Baer was positing about finances. He said that when the list was released in November, some families started making life-altering plans to apply for a voucher they had no guarantee they would get. This allowed them to take on new expenses.

The entire concept behind EdChoice is to allow families to send their children to the school of their choice by getting financial assistance to do so.

The first way families can qualify for financial aid is based on financial need. They don’t have the money to afford the tuition of sending their child to a private school and the voucher offsets that amount. Families ranging in income from below 200% of the Federal Poverty Level (who will get a full scholarship) to those above that amount (who will get a partial scholarship) can apply for the voucher no matter if their school is on the list of eligible schools or not.

It is up for the state to pay that money, with none of it coming from public school sources.

The second way to get financial assistance is based on school performance. If a school gets a failing grade in any of the six areas tested, it ends up on the EdChoice eligibility list. The failing school will end up on the list even if the school’s district as a whole is not a failing school district. This is due to how the state’s school report card system is set up.

Once on the list, families of students in that school can apply for a voucher regardless of their income level to get a full scholarship, which would be paid in a large part with funds from the public school district. This could essentially funnel public school money into a private school.

With financial need families not tethered to the eligibility list, the expansion only affects people living in areas where a school is set to be added to that list.