School levy debates: Is Ohio's system constitutional?

COLUMBUS, Ohio (WCMH) -- Less than one month before the Nov. 5 election, taxpayers in Westerville, Reynoldsburg and other central Ohio suburbs are considering their votes on property tax levies to support schools.

The March primaries did not favor local school levies, and districts are gearing up again to ask for support. Debates about levies often call school leadership into question -- such as in Hilliard, where levy opponents allege the district's issue lies within spending -- but the root of the issue may lie further up the democratic process. State legislators have been grappling with how to fund Ohio's schools for nearly 30 years.

Locally, Ohio’s public schools receive funding from levies and bonds put onto ballots by school districts, which are based on property taxes. At the state level, funding is provided to public schools through the foundation formula, which combines state funds, local property taxes and federal funds to determine how individual districts and schools are funded. 

Over 25 years ago, the Ohio Coalition for Equity and Adequacy of School Funding formed and spearheaded a landmark case, DeRolph v. Ohio, which alleged the funding system for public schools was unconstitutional.

In a series of four decisions, the Ohio Supreme Court agreed with the Coalition. The Ohio Constitution says the state must create a “thorough and efficient system” of public schools, and the courts found the funding system did not live up to those requirements. 

In part, the court took issue with an overreliance on property taxes and the School Foundation Program, which made up most of school funding. Through various factors, the Foundation program left rural and low-income districts behind, and wealthier districts benefited from better funding from higher property taxes.

Originally, Ohio was given one year to fix its funding system. Different attempts have been made since, including the most recently enacted system, known as the Fair School Funding Plan. This bipartisan effort was presented by some legislators as the first constitutional funding plan because it considered a wide range of factors in its formula, such as technology or instructional costs.

The Fair School Funding Plan was enacted in the 2023 biennial budget alongside other changes to the educational systems in Ohio. Simultaneously, the budget expanded the state’s voucher program so any student regardless of income can be eligible for a state-sponsored scholarship to attend private school. The budget also stripped the Ohio Board of Education of much of its powers, reassigning them to a governor-appointed cabinet position.

William Phillis has been the executive director of the Ohio Coalition for Equity and Adequacy of School Funding since 1992, in the first years of DeRolph. Although the Coalition won the lawsuit, Phillis said the state is still not holding up its end of the deal.

“The Fair Funding formula moved Ohio to at least the trajectory of a constitutional system,” Phillis said. “They had the money to fully fund the system, but then in the middle of the night, they funded this voucher program.”  

The constitutionality remains unclear. In March, the Wake Forest Law Review argued Ohio still relies heavily on property taxes that lead to significant funding disparities among districts, making it unconstitutional. In 2020, the Fordham Institute asserted changes have fixed the system enough to make it constitutional, pointing to how the per-pupil spending in Ohio has risen significantly over the past 30 years.

Even those responsible for implementing a constitutional policy differ in opinion.

“The school funding system and formula in Ohio has been constitutional for decades,” Spokesperson for Ohio Senate Republicans John Fortney said. “At an average spending level of more than $14,000 per pupil, Ohio’s school funding system remains constitutional.” 

“I believe that the Fair School Funding Plan is a good-faith effort to address DeRolph and enact a constitutional system of school funding,” Senate Democratic Leader Nickie Antonio said. “However, it has not been fully funded and does not adequately address overreliance upon property taxes by school districts.”

In 1997, Ohio spent just over $5 billion on K12 education, or around $9.8 billion today. Fortney points to the $13.5 billion invested by state legislators this year as proof the state is investing adequately in education. 

Fortney also said Ohio has spent over $14 billion on state-sponsored construction. The state of facilities in districts that felt left behind by the system of funding before the lawsuit was a big concern in the DeRolph trials, and Fortney pointed to the establishment of the Ohio School Facility Commission, which has built or renovated schools across 300 districts.

Antonio said although state spending has invested in public schools, Ohio has also “drastically increased” funding for private school vouchers, which make up around $1 billion of the $13.5 billion investment. She alleged this funding detracts from fully funding the Fair School Funding Plan, in turn rendering it short of constitutionality.

Ohio's education department validates both:

Ohio’s biennial budget for FY 24 and FY 25 continues the record investment of state dollars in primary and secondary education. Much of this money is distributed through the continued phase-in of the foundation funding formula first implemented in FY 22, along with expanded access to school choice through universal access to the EdChoice scholarship program.

Ohio Department of Education and Workforce

Over 25 years after DeRolph, the Coalition is suing the state again, this time over the voucher system, which they allege is unconstitutional. Phillis said the system takes money away from public schools, and accused lawmakers of prioritizing private education, pointing to the $5.5 million one-time spending toward private school renovations in a 2024 budget bill.

Proponents of the expanded voucher program argue it gives parents a choice in where they send their students. The debate was originally scheduled to go to trial on Nov. 4, but the Franklin County Common Pleas Court rescheduled it on Oct. 3 because of the volume of the case. A new date has not yet been filed.