1 Political Lawyering: an Examination of Marc Dann's Lawsuits Against

Political Lawyering: An Examination of Marc Dann’s Lawsuits Against Ohio Community Schools Zach Mason Role of the State Attorney General April , 2012 Some of Ohio’s charter schools—known there as “community schools”—have struggled severely. One exemplary statistic comes from the Cincinnati-based Harmony School, where in the 1998-99 school year, only 10% of the school’s sixth grade students passed the Ohio state proficiency test for reading in a year for which the state average was a 53.2% pass rate and the state standard for the test was 75%.1 More broadly, in 2007, over half of the 328 community schools in Ohio received a grade of D or F on the state’s school report card.2 The failure of many of Ohio’s community schools comes in the context of a larger debate over the role of charter schools in American education that has been raging for over 20 years. Interestingly, the debate involves many of the issues important to state attorneys general and yet it has drawn little attention from the generals themselves.3 For one thing, the debate is highly political, due in large part to teachers unions, which generally oppose charter schools and also generally provide serious financial and other support to Democratic candidates for office. As a group of public officials most of whom have been elected, one might think state attorneys general would be more interested in charter schools. In addition, the charter school debate presents fundamental questions about the appropriate role of the various branches and levels of American government. As executive branch officials who do most of their work through the 1 Complaint at ¶ 31, State, ex rel., Dann v. Harmony School (Ohio Misc. 2008) 2 Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, http://www.nytimes.com/2007/11/08/us/08charter.html?pagewanted=all. 3 Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, http://www.nytimes.com/2007/11/08/us/08charter.html?pagewanted=all. 1 judicial branch, attorneys general might be likely to appear more in charter school issues. The charter school debate also raises questions of the public good and welfare, questions with which attorneys general are usually highly concerned. Yet it took until 2007 for a state attorney general to engage the issue head-on.4 In 2007, then-Attorney General of Ohio Marc Dann initiated lawsuits against three Ohio community schools. These lawsuits were remarkable for three reasons. Not only would the lawsuits test the schools themselves, but they would also test the boundaries of attorney general involvement in legislative questions. It would further demonstrate the extent to which the political nature prosecutorial discretion can affect litigation. In essence, Dann’s suits alleged that the schools’ underperformance required the courts to shut down the schools.5 The lawsuits were not only unusual because no attorney general had directly sued to shut down charter schools before, but they were also unusual because of Dann’s legal theory: He argued that the schools qualified as charitable trusts under state law and therefore they fell under the Attorney General’s oversight of public charities.6 In the end, the lawsuits would fail, but not before three different attorneys general handled them. This variety of principals provides an interesting insight into the role of prosecutorial decision and demonstrates the extent to which these particular lawsuits were politically motivated. This paper examines Dann’s lawsuits in several parts. First, it discusses the constitutional, legislative, and judicial background of Ohio’s community schools and assesses the failures of community schools. Then, it examines Dann’s legal challenges to community 4 Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, http://www.nytimes.com/2007/11/08/us/08charter.html?pagewanted=all. 5 Complaint at Introduction, State, ex rel., Dann v. Harmony School (Ohio Misc. 2008) 6 State, ex rel., Rogers v. New Choices Community School, 2009 WL 2857360 at *4 (Ohio Ct. App.). 2 schools and considers the political motivations of those suits. Next, it discusses the outcomes of the lawsuits and assesses the roles of the three Attorneys General who helmed the cases. Finally, it concludes with a description of the political and legal mastery of Attorney General Richard Cordray’s challenge to community schools on different grounds. I. THE HISTORY OF OHIO’S COMMUNITY SCHOOLS A. The Constitutional and Legislative Framework of Community Schools The Ohio Constitution’s Thorough and Efficient Clause requires the state’s Legislature to create a school system. Article VI, Section 2 reads: “The General Assembly shall make such provisions, by taxation or otherwise, as, with the income arising from the school trust fund, will secure a through and efficient system of common schools throughout the state.”7 The General Assembly duly complied and has ever since had a public school system which resembles most public education in America through the latter half of the nineteenth and most of the twentieth centuries. This system was not immune to challenge and change, of course. Private schools always provided an alternative for those who could afford them and Ohio did not escape the dramatic changes in the gender and race dynamics of K-12 enrollment and curriculum, but for the most part, the structure of the system went undisturbed. In 1997, however, the Ohio General Assembly authorized the use of charter schools by enacting R.C. Chapter 3314.8 Called “community schools,” these schools are able to operate without having to comply with many of the rules applicable to traditional public schools.9 Ohio’s authorization of community schools came in the context of a national debate and a growing acceptance of them. While Democrats had generally opposed charter schools, by 1997, 7 OHIO CONST. art. VI, §2. 8 Am.Sub.H.B. No. 215., 147 Ohio Laws, Part I, 909, 1187. 9 A list of the laws inapplicable to community schools is laid out in OHIO REV. CODE ANN. §3314.04. 3 they were becoming more widely viewed as an intriguing option for school reform, with even President Bill Clinton endorsing charters.10 Importantly, Chapter 3314 was passed during a decade of Republic rule in Ohio, in which experimentation with market-based solutions was sweeping the state.11 The fact that the community school system was politicized from the beginning ended up playing an important role in the political nature of the lawsuits Dann would eventually file. At any rate, the popularity of community schools exploded in Ohio over the decade after they were first authorized. By 2006, over 66,000 students attended Ohio’s 297 community schools, which received $444 million in state aid.12 In creating these schools, the General Assembly declared it intended the law’s effects would include “providing parents a choice of academic environments for their children and providing the education community with the opportunity to establish limited experimental education programs in a deregulated setting.”13 The deregulation was not unlimited, however, as community schools are still required to meet many of the academic standards applicable to traditional public schools.14 Under Chapter 3314, creation of a community school begins with a school contracting with a sponsor, which must be approved by the Ohio Department of Education (“ODE”).15 10 Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, http://www.nytimes.com/2007/11/08/us/08charter.html?pagewanted=all. 11 Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, http://www.nytimes.com/2007/11/08/us/08charter.html?pagewanted=all. 12 Catherine Candisky, Charters Face Supreme Test: Sides Will Debate the Constitutionality of Schools in Front of State’s Top Court, COLUMBUS DISPATCH, Nov. 26, 2005, available at http://oh.aft.org/index.cfm?action=article&articleID=58cb63f4-795a-465b-b932-3827bc9516e9 13 State, ex rel., Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio.St.3d 568, 569 (2006) (citing Am.Sub.H.B. No. 215, Section 50.52, Subsection 2(B), 147 Ohio Laws, Part I, 2043). 14 OHIO REV. CODE ANN. §3314.03(A)(11). Community schools are also responsible for facility maintenance, health and safety codes, and regulations of that sort. Id. 15 OHIO REV. CODE ANN. §3314.015(A). 4 Sponsors are then responsible to the ODE for compliance with state academic standards.16 Those standards include the same graduation test that students in traditional public schools are required to pass and proficiency and achievement tests.17 Community schools are independent of the school district in which they are geographically located, but are still a part of the state program of education.18 One interesting aspect of Ohio’s community schools is that, unlike in most states, commercial companies rather than non-profits run a large number of the schools.19 Community schools are prohibited from charging tuition by the General Assembly, and instead they receive their funding from the state, largely based on the number of students in a given school.20 Each student comes with a subsidy taken out of the aid Ohio would have given to the school in which the student would otherwise be enrolled.21 Community schools receive no money directly from localities.22 B. The Failures of Community Schools Still in his first year as Governor of Ohio, Ted Strickland pulled no punches in his assessment of the community school system, saying in 2007, “Perhaps somewhere, charter schools have been implemented in a defensible manner, where they have provided quality, but the way they’ve been implemented in Ohio has been shameful.

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