The Ohio Supreme Court last week heard arguments in a lawsuit challenging the constitutionality of the state鈥檚 system of charter schools, which have been the subject of fierce opposition from teachers鈥� unions and other critics.
The justices鈥� ruling could affect some 66,000 students who attend close to 300 charter schools statewide. Ohio has more charter schools than any other state but Arizona, California, and Florida.
The plaintiffs are seeking a declaration that the state charter law and the current funding system for charters are unconstitutional. They want the court to compel state lawmakers either to change the law before the start of the next school year or halt all state funding for charter schools鈥� now more than $400 million per year鈥攁nd redirect it to local districts.
The court is expected to issue a decision sometime next year.
At the Nov. 29 hearing, which was shown live on the Internet, the plaintiffs鈥� lawyer argued that the charter schools, as they are now set up, should not be considered public schools under Ohio law.
鈥淚t鈥檚 not a public school if it鈥檚 administered by private entities, if it鈥檚 managed by a for-profit corporation, and I think that is the key,鈥� Donald J. Mooney Jr., the plaintiffs鈥� lawyer, told the court.
At the same time, he suggested that charters could be created and operated in a way that would satisfy legal requirements. 鈥淚 think you could have constitutional charter schools,鈥� he said.
The defense challenged many aspects of the plaintiffs鈥� arguments, including the premise that charters, called community schools in Ohio, aren鈥檛 public schools.
鈥淐learly, community schools are public schools,鈥� said Chad A. Readler, a lawyer representing 80 Ohio charters. 鈥淸T]hese schools carry every indicia of a public entity. They don鈥檛 discriminate. They hire state-certified teachers. They鈥檙e publicly funded. They don鈥檛 charge tuition. There鈥檚 no entrance exams. And I think most importantly, they鈥檙e nonsectarian.鈥�
Governance at Issue
Ohio first passed a charter school law in 1997, and the number of such schools鈥攁nd students served鈥攈as climbed steadily since then.
The law, which hands the schools significant autonomy, has been amended several times, in part responding to concerns about poor quality and insufficient oversight of charter schools.
Overall, academic performance from Ohio charters has been lackluster.
Critics point out that the charters have consistently shown weaker achievement than regular public schools. While some charter proponents acknowledge the schools haven鈥檛 lived up to their promise, they note that Ohio charters serve mostly disadvantaged students, and say that a comparison with similar schools reveals a more nuanced picture, with some charters performing better and some worse.
Academics aside, during last week鈥檚 hearing, one justice pointed to the popularity of charter schools.
鈥淥bviously, the concept is popular,鈥� said Justice Paul E. Pfeifer. 鈥淧arents are voting with their feet and sending their kids to charter schools.鈥�
The concept isn鈥檛 popular, however, with some public school groups, which have taken various approaches to opposing charters, including lobbying the legislature, launching public-awareness campaigns, and filing three separate lawsuits.
The case being heard last week, Ohio Congress of Parents and Teachers v. State of Ohio Board of Education, was filed in 2001 by a coalition of public school groups, including the Ohio PTA, the Ohio Federation of Teachers, the Akron Education Association, and the Ohio School Boards Association. Their case is based on 10 statutory and constitutional arguments.
The case was divided into two parts. The first deals with the constitutional challenges, which the high court is considering. The trial court dismissed virtually all of the constitutional claims, but an appeals court reinstated several of them. Both sides appealed to the high court the portions of the ruling that were unfavorable to them.
During the hearing, the justices seemed most interested in the plaintiffs鈥� contention that local school boards should have a role in overseeing charter schools.
鈥淭he question that seems to be your strongest point is the governance of the schools,鈥� Chief Justice Thomas J. Moyer told Mr. Mooney.
鈥淚 think the strongest argument they have is, 鈥榃e鈥檇 be OK with community schools if the school boards were also in control of them,鈥� 鈥� said Justice Evelyn Lundberg Stratton.
While the plaintiffs have focused much attention on for-profit organizations that operate Ohio charters, such as White Hat Management Inc., school districts themselves already sponsor more than one-fifth of the state鈥檚 charters, said Terry Ryan, the vice president for Ohio programs and policy at the Thomas B. Fordham Foundation, a Washington-based think tank that sponsors 10 Ohio charters.
鈥淲hite Hat only runs 26 schools in this state,鈥� Mr. Ryan said. 鈥淵ou would think it鈥檚 basically every charter school in the state.鈥�
Stephen P. Carney, the senior deputy solicitor in the Ohio attorney general鈥檚 office, argued that local control by school districts is not required of charters, because they are funded solely by the state.
鈥淚 get to vote for my state representative and my state senator,鈥� he told the court. 鈥淚 get to vote for the governor. Control of the local school board over levy funds is what animates the concerns in [the state constitution].鈥�
Accountability Debate
The plaintiffs also argue that the standards for charters differ from those for regular public schools.
鈥淭he concept set forth in the constitution in 1851 was that there was going to be a common system [of education] funded on a uniform basis with uniform standards by the state of Ohio,鈥� said Mr. Mooney, who is the brother of Tom Mooney, the OFT鈥檚 president.
He noted a new state law that creates some separate accountability demands for charters. Under that law, enacted this past summer, the state would eventually have to shut down low-performing charters. Mr. Mooney said the legislation, which he argues sets weak academic demands for charters, amounts to 鈥渁ccountability lite.鈥�
But the defense countered that charters are subject to the same state standards as regular public schools, and if anything, are subject to greater accountability.
鈥淭hese schools face a stronger form of accountability than our traditional schools have ever known for 100 years,鈥� said Mr. Carney. 鈥淔irst and foremost, 鈥� if the parents and students don鈥檛 like it, they leave, there goes their funding, the school dries up.鈥� He also said the sponsor or the state may shut them down.
Even some strong charter supporters, however, acknowledge that Ohio hasn鈥檛 done a good enough job holding charters schools accountable for student performance.
Mr. Ryan of the Fordham Foundation said that the new state law was an appropriate step to help out. He also suggested the law would place more pressure on local authorizers to be more assertive with low-performing charters.
鈥淭he fact that so few schools have been closed for academic failure tells you there hasn鈥檛 been a real strong authorizing environment,鈥� Mr. Ryan said. 鈥淭hat鈥檚 changing.鈥�
