Ohio's Chief Justice Presses ECOT on Funding Fight: 'How Is That Not Absurd?'

Feb 13, 2018

(Clockwise starting bottom left) Doug Cole, Chief Justice Maureen O’Connor, Marion Little.
Credit THE OHIO CHANNEL / THE OHIO CHANNEL

Attorneys for the now-closed Electronic Classroom of Tomorrow and the Ohio Department of Education traded jabs before the Ohio Supreme Court over how the state should fund schools and if that funding should be tied to just enrollment or student participation. 

The attorneys fighting before the Ohio Supreme Court weren’t debating the impact the school had on students and teachers. Instead, they had one question to answer: Should the school’s funding be tied to attendance and participation or just enrollment?

The state says ECOT owes back at least $80 million for students it claimed were enrolled at the online charter school but couldn’t be verified.

Representing ECOT was Marion Little, who argued that funding for the school should be based on enrollment, not daily attendance or participation -- which he says is the standard for traditional brick and mortar schools.

“Absolutely your honor: in a traditional school there is no measurement of duration whatsoever. Funding is premised solely on enrollment," Little said. "It doesn’t matter whether the student goes to school, it doesn’t matter if the student is sick, delinquent, engaged whatsoever there is no consequence to a brick and mortar school.”

'It is ECOT, not the department, that asks this court to ignore or rewrite statutory text.'

But Doug Cole with the Ohio Department of Education says state law clearly spells out the connection between full-time equivalency, which is to say student participation, and funding.

“The Department of Education asks this court to apply the funding statute according to its plain language. Full stop. That is what we ask," Cole said. "Contrary to ECOT’s arguments it is ECOT, not the department that asks this court to ignore or rewrite statutory text and it is ECOT, not the department that is seeking to impose its own policy preferences onto the language that the General Assembly crafted.”

A lot of students, a little time
In 2015, the education department reviewed ECOT’s claim that it had 15,000 students enrolled, and found that ECOT could only verify about 40 percent of the full-time students it claimed it had. This was after a long dispute over whether the school was required to hand over student log-in information.

That review and a subsequent one a year later resulted in the state deciding to claw back $80 million, sapping ECOT’s funding. The school closed last month after ECOT’s sponsor voted unanimously to suspend its charter. As many as 12,000 students and hundreds of staff and faculty were affected.  

'There are other ways of testing if a community school is discharging its responsibility.'

Little, arguing for ECOT, told the court that Ohio law bases funding on enrollment, not duration of student participation, which lead Chief Justice Maureen O’Connor to ask:

“The testimony was, ‘Even if a student does not attend, ECOT is still entitled to the full per capita," O'Connor said. 

“That would be the testimony," Little said, "of all witnesses on the enrollment methodology."  

“OK. Let me ask you, stop," O'Connor said. "How is that not absurd?”

“How is this absurd?” Little said.

“How is it not absurd?” Connor responded. 

“I don’t think it’s absurd because there are other ways of testing if a community school is discharging its responsibility," Little said. "So we make a distinction between how is funding done over how are school evaluated.”

Little went on to say that state school report cards are another way to test if a school is teaching its kids. It should be noted that ECOT has consistently received “F’s” on its report cards.

'Absurd'
Another argument from ECOT is that, for years, the state based its full-time equivalency review on teacher certification records, but then suddenly raised the bar to include student log-in information. ECOT says that was done retroactively.

'Receipts! Nobody said anything about receipts.'

Cole hit back, using the same word that the Chief Justice used -- “absurd." He said the law requires students to have a certain number of hours of learning and that schools should expect to prove that.

“If the IRS on your tax return you list a bunch of expenses and the IRS doesn’t ask to see the receipts. And then all of the sudden, after not asking to see the receipts for three years, they say, ‘Well you’ve listed these expenses, we’d love to see the receipts.' And you say ‘Receipts! Nobody said anything about receipts," Cole said. 

There was no mention in the arguments of Bill Lager, the founder of ECOT who has taken in around $200 million as a vendor of operational and software support for the school. He’s also donated millions to the Republican Party and its candidates over the years – including Justices Terrence O’Donnell and Pat DeWine, who did not recuse themselves from the case.

Two previous court decisions have backed the state’s case. Rulings by the Supreme Court usually take four to six months.