IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

COLUMBUS CITY SCHOOL DISTRICT, :

et al., :
:
Plaintiffs, :
: Case No. 22 CV 67
-vs- : Judge Page
:
STATE OF OHIO, et al., :
:
Defendants, :

DECISION AND ENTRY ON DEFENDANTS’ MOTION TO DISMISS

This case is before the Court on Defendants State of Ohio, Steve Dackin, Ohio Department

of Education, and State of Ohio Board of Education’s (hereafter the “State Defendants”) Motion

to Dismiss. The questions before this Court are whether: (1) Plaintiffs have standing to sue; (2)

Plaintiffs have capacity to sue; and (3) whether Plaintiffs have failed to state a claim under Civ.R.

12(B)(6).

For the reasons set forth in this opinion, the Court denies the State Defendants’ motion to

dismiss.

I. FACTS

Plaintiffs are comprised of public-school districts throughout the state of Ohio (the

“Districts”), four students enrolled in public schools, and the Ohio Coalition for Equity and

Adequacy of School Funding (the “Coalition”). (Amended Complaint, ¶ 21-29). Plaintiffs

initiated this matter by filing a complaint for declaratory judgment and injunctive relief on January

4, 2022 alleging that Ohio’s EdChoice Scholarship Program, as codified within R.C. Chapter 3310

et seq., violates sections of Article VI of the Ohio Constitution. Plaintiffs amended their complaint

on May 26, 2022. The Defendants include the State of Ohio, Superintendent Steve Dackin, The

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Ohio Department of Education, and the State of Ohio Board of Education. (Amended Complaint,

¶ 30, 31, 241, 25).

During the Ohio Constitutional Convention of 1850-1851, proposed provisions about

education and common schools were debated. (Amended Complaint, ¶ 47). The framers of the

Ohio Constitution envisioned a thorough and efficient system of common schools throughout the

state, meaning a system of uniformly well-funded public schools. (Amended Complaint, ¶ 44, 48).

Article VI Section 2 of the Ohio Constitution was thereby adopted, creating the thorough and

efficient system of common schools. (Amended Complaint, ¶ 50).

In 2005, The EdChoice Scholarship Program was enacted; it permitted eligible families

assigned to schools in academic emergency or under academic watch throughout the state to

receive publicly funded vouchers to be applied only towards payments of private schools.

(Amended Complaint, ¶ 52-52). The EdChoice Scholarship Program was expanded in June of

2021 through the passage of House Bill 110 (hereafter “H.B. 110”), which broadened voucher

eligibility and the scope of the program, making vouchers available to students in districts that

were not in academic emergency or under academic watch. (Amended Complaint, ¶ 9, 63). H.B.

110 increased the voucher amounts for eligible students from $6,000 per high school student to

$7,500 and from $4,650 to $5,500 per middle school student. (Amended Complaint, ¶ 64). The

average per pupil amount allotted to public school districts is $4,333 less than the lowest voucher

amount. (Amended Complaint, ¶ 74).

After the Ohio Supreme Court’s ruling in DeRolph, to provide a thorough and efficient

system of common schools pursuant to Article VI Section 2 of the Ohio Constitution, the General

Assembly developed the Cupp-Patterson Fair School Funding Plan (hereafter “Fair School

1 Paragraphs 24 and 25 here are actually paragraphs 32 and 33 of the

misnumbered amended complaint.

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Funding Plan”). (Amended Complaint, ¶ 71-72). However, the Fair School Funding Plan was not

fully funded in 2022 because a portion of the funding was allocated to EdChoice Scholarship

Program Vouchers. (Amended Complaint, ¶ 5, 73). For the 2023 school year, only thirty-three

percent of the Fair School Funding Plan will be funded. Id.

The State Defendants filed a motion to dismiss the original complaint on May 18, 2022

and a motion to dismiss the amended complaint on June 8, 2022. The motion to dismiss the

amended complaint incorporated all the arguments made in the May 18, 2022 filing. The Plaintiffs

oppose the motion.

Defendants’ motion requests dismissal on each of the following grounds: (1) Plaintiffs lack

capacity to sue; (2) Plaintiffs lack standing; (3) the claims within Plaintiffs’ complaint have already

been decided by the United States and Ohio Supreme Courts; and (4) claims against Defendants

the State of Ohio, the Board of Education, and the Attorney General, who do not run the voucher

program, should be dismissed. Each of the grounds will be discussed accordingly.

II. STANDING AND CAPACITY

A. CAPACITY

Defendants argue that the Coalition and several of the school districts lack capacity to sue

because the statutes governing it do not expressly grant them this power. Plaintiffs respond by

asserting that Defendants’ interpretation of the relevant statutes is erroneous.

“Capacity concerns a determination as to whether an individual may properly sue, either

as an entity or on behalf of another.” Mousa v. Mount Carmel Health Sys., 10th Dist. Franklin No.

12AP-737, 2013-Ohio-2661, ¶ 13. Capacity to sue is an affirmative defense, not a jurisdictional

requirement. Mousa at ¶ 13.

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 Civ.R. 9(A) states

(A) Capacity. It is not necessary to aver the capacity of a party to

sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party. When a party desires to
raise an issue as to the legal existence of any party or the capacity of
any party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity, he shall do so by specific negative
averment, which shall include such supporting particulars as are
peculiarly within the pleader's knowledge.

The pleading burden to deny capacity is on a defendant, and such a denial shall be made with

specificity. Gove Associates, Inc. v. Thomas, 59 Ohio App. 2d 144, 392 N.E.2d 1093, * 145 (9th

Dist.1977). The failure to deny capacity by specific negative averment typically waives the

defense. Wanamaker v. Davis, 2nd Dist. Greene No. 2005-CA-151, 2007-Ohio-4340, ¶ 43; Harris

v. Rossi, 11th Dist. Trumbull No. 2016-T-0014, 2016-Ohio-7163, ¶ 42. Capacity to sue is also

properly raised by a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief

may be granted. Eichenberger v. Woodlands Assisted Living Residence, LLC, 10th Dist. Franklin

No. 12AP-987, 2013-Ohio-4057, ¶ 15.

1. THE COALITION

The Coalition was organized pursuant to R.C. 167.01-02. (First Amended Complaint, ¶

21). The powers of entities like the Coalition are provided for in R.C. 167.03. Defendants point

out that these powers do not include the right to sue. (Mot. Dismiss, May 18, 2022, pg. 4).

Generally, an administrative agency or board that is created by statute has only the powers

that are clearly and expressly granted by statute. Althof v. Ohio State Bd. of Psychology, 10th Dist.

Franklin No. 05AP-1169, 2007-Ohio-1010, ¶ 44, citing State ex rel. Clarke v. Cook, 103 Ohio St.

465, 467, 134 N.E. 655 (1921) (In the context of boards of education.).

Though not specifically authorized to file suit under R.C. 167.03, the Coalition’s power to

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do so is reasonably implied from R.C. 167.03(C), which states, “the council may, by appropriate

action of the governing bodies of the members, perform such other functions and duties as are

performed or capable of performance by the members and necessary or desirable for dealing with

problems of mutual concern.” See City of Shaker Heights ex rel. Cannon v. DeFranco, 2012-Ohio-

3965, 975 N.E.2d 1046, ¶ 18-20 (Finding that though R.C. 167.03(C) did not specifically give an

association of townships the power to lobby other governmental officials, this was implied by the

language of the statute.).

2. THE DISTRICTS

Defendants argue that although the Districts have statutory authority to sue, they lack

capacity to sue in this case because their authority to do so is limited to litigation related to their

other express powers. (Mot. Dismiss, May 18, 2022, pg. 5-6).

Though boards of education only have such powers as conferred by statute, R.C. 3313.17

provides that the board of education of each school district is capable of suing and being sued.

Youngstown City Sch. Dist. Bd. of Educ. v. State, 161 Ohio St.3d 24, 2020-Ohio-2903, 161 N.E.3d

483, ¶ 25. There are no qualifications or limitations to a board of education’s capacity to sue

within the plain language of the statute. See also State ex rel. Sapp v. Franklin County Court of

Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26 (Court could not add an

exception to R.C. 2323.52 that did not include one in its plain language.)

Notwithstanding, the Defendants argue that the capability of a board of education to sue or

be sued has been limited to legal actions that relate to the other capabilities conferred on the board

by statute, such as contracting, acquiring and disposing of real and personal property, and taking

and holding in trust devises of land. (Defendants’ Mot. Dismiss, May 18, 2022, pg. 5-6); Brown v.

Bd. of Educ., 20 Ohio St. 2d 68, 72, 253 N.E.2d 767 (1969), citing Board of Educ. v. Volk, 72 Ohio

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St. 469 (1905). In doing so, they point out that R.C. 3313.17 has not recently changed.

(Defendants’ Mot. Dismiss, pg. 5).

Brown held that a board of education had consented to being sued with respect to real

property that it held under R.C. 3313.17. Brown at 73. Volk held, in part, that no statute existed

that could subject a board of education to liability for the tort of negligence. Volk at paragraph one

of the syllabus. Thus, neither Brown nor Volk specifically limited a school board’s powers to sue

under R.C. 3313.17 as Defendants assert. Both cases are distinguishable in that they dealt with

capacity to be sued and state immunity. Instead, Brown seems to recognize a board of education’s

unqualified capacity to sue. Brown at 73.

The other cases that Defendants rely upon either do not provide binding authority or do not

support their argument. See Board of Education v. Marting, C.P. Madison No. 22692, 7 Ohio Misc.

64, 217 N.E.2d 712, * 70 (Finding no support that a board of education is authorized to file a tort

action.) and Board of Education v. Board of Education, 167 Ohio St. 543, 545-546, 150 N.E.2d

407 (1958) (Holding that a local board of education had no legal interest in the action of a county

board determining the boundaries of the local board’s district.).

Having found that the board of education Plaintiffs have capacity here, it is unnecessary to

address Plaintiffs’ argument that R.C. 2721.01 et seq. provide boards of education with capacity

as “persons” under R.C. 2721.01 and 1.59(C). (Plaintiffs’ Memo. Contra, Jul. 1, 2022, pg. 8-10).

Defendants also suggest that the Plaintiff school districts cannot make a constitutional

challenge to state law. (Mot. Dismiss, May 18, 2022, pg. 6). They rely on Toledo City Scho. Dist.

Bd. of Educ. v. State Bd. of Educ. of Ohio, 146 Ohio St.3d 356, 2016-Ohio-2806, 56 N.E.3d 950,

which Plaintiffs point out, only holds that political subdivisions are not entitled to constitutional

protection from the retroactivity clause of Article II, Section 28 of the Ohio Constitution. Id. at ¶

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40-41; See also Avon Lake City Sch. Dist. v. Limbach, 35 Ohio St.3d 118, 121-122, 518 N.E.2d

1190 (1988) (Holding that school districts may not assert constitutional protections based on due

course of law or due process under the Fourteenth Amendment.). Defendants cite to no precedent

that prohibits a school board or school district from challenging the constitutionality of a statute

under Article VI, Section 2 of the Ohio Constitution.

The Court finds that the Coalition and the Districts have capacity to bring this action.

B. STANDING

Prior to an Ohio court’s considering the merits of a legal claim, the person or entity seeking

relief must establish standing to sue. Ohioans for Concealed Carry, Inc. v. City of Columbus, __

Ohio St.3d __, 2020-Ohio-6724, ¶ 12; See also Mousa v. Mount Carmel Health Sys., 10th Dist.

Franklin No. 12AP-737, 2013-Ohio-2661, ¶ 12 (“A party must have both standing and capacity to

sue to commence a lawsuit.”). “Standing is defined as a party’s right to make a legal claim or seek

judicial enforcement of a duty or right.” State ex rel. Butler Twp. Bd. Of Trs. v. Montgomery

County Bd. Of Comm’rs, 124 Ohio St.3d 390, 2010-Ohio-169, 922 N.E.2d 945, ¶ 19. To find that

a party has standing, the court must examine the rights of the individual parties bringing the action

and determine whether they have asserted a personal stake in the outcome of the action. In re T.S.,

10th Dist. Franklin No. 18AP-270, 2019-Ohio-886, ¶ 4.

Common-law standing requires the litigant to demonstrate that he or she has suffered: (1)

an injury; (2) that is fairly traceable to the defendant’s allegedly unlawful conduct; and (3) that is

likely to be redressed by the requested relief. Ohioans at 1; See also Cuyahoga Cty. Bd. of Commrs.

v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 22 (Requiring an injury in a

manner or degree different than that suffered by the general public for standing to challenge the

constitutionality of a legislative enactment.) quoting State ex rel. Ohio Academy of Trial Lawyers

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v. Sheward (1999), 86 Ohio St.3d 451, 469-470, 1999 Ohio 123, 715 N.E.2d 1062.

Standing may also be conferred by statute. Ohioans at 1. R.C. 2721.03 may confer standing

upon parties if they can demonstrate: (1) a real controversy between the parties; (2) justiciability;

and (3) the necessity of speedy relief to preserve the parties’ rights. Id. at 30, citing

ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St. 3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 17-

19.

Although standing is required to invoke the jurisdiction of the court of common pleas over

a particular action, lack of standing does not affect the subject-matter jurisdiction of the court.

Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, paragraph

three of the syllabus; See also Cox v. Dayton Pub. Schs. Bd. of Educ., 2nd Dist. Montgomery No.

26382, 2015-Ohio-620, ¶ 11 (A motion to dismiss based on standing is not a jurisdictional issue

and should be raised under Civ.R. 12(B)(6).).

An association has standing on behalf of its members when: (1) its members would

otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane

to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit. Buckeye Firearms Found Inc. v. City of

Cincinnati, 2020-Ohio-5422, 163 N.E.3d 68, ¶ 14 (1st Dist.).

1. STUDENT PLAINTIFFS

The State Defendants argue that the Student Plaintiffs do not have standing to sue because

they have not alleged any particularized injury. According to the State Defendants, the Student

Plaintiffs have not shown that their educational experience is harmed by other students’ exercise

of school choice. The State Defendants rely on State ex rel. Walgate v, Kasich and Toledo City

School Dist. Bd. Of Edn. to argue that the Student Plaintiffs have not alleged an injury sufficient

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to have standing. The Court notes that in both Walgate and Toledo City School Dist. Bd. of Edn.

the parents of students filed the action and not the students themselves. See State ex rel. Walgate

v. Kasich, 147 Ohio St. 3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 32-33 (Finding that certain

parent and teacher appellants did not have a direct, personal stake in the outcome because their

interest in ensuring that public schools receive the proper funds is shared by the general public.);

See also Toledo City School Dist. Bd. Of Edn, 2014-Ohio-3741, 18 N.E.3d 505, ¶ 57-59 (10th

Dist.) rev’d on other grounds by Toledo City Sch. Dist. Bd. of Educ. v. State Bd. of Educ. of Ohio,

146 Ohio St.3d 356, 2016-Ohio-2806, 56 N.E.3d 950 (Parent plaintiffs did not have standing where

they failed to allege that their children had been denied special educational opportunities caused

by the Ohio Department of Education’s (ODE) failure to fund their district at the statutory rate.).

The Student Plaintiffs argue that Walgate and Toledo City School Dist. Bd. of Edn. should

be distinguished from their claims because they are students and have been directly harmed by the

State’s actions. They further argue that the funding formula that was established in the Fair School

Funding Plan to meet the State’s obligation to provide a thorough and efficient system of common

schools was not fully funded because of the EdChoice Program. (Amended Complaint, ¶ 73). The

Student Plaintiffs maintain that they receive per pupil core funding of $1,700 and $340

respectively from the State while students receiving EdChoice Vouchers will receive $7,500 per

high school student and $5,500 per grade school student. (Amended Complaint, ¶ 75-76). The

Plaintiffs allege that the expanded EdChoice Voucher Program has resulted in public schools

receiving an inadequate amount of funding per pupil. Id. at ¶ 77. The Plaintiffs also claim that

public school students are faced with overcrowded facilities, inadequate materials, and are

educated in districts with insufficient learning supports. Id. at ¶ 84.

The Student Plaintiffs maintain they have been injured because their schools are not

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receiving the full per pupil funding amount in the Fair School Funding Plan for the requirement of

thorough and efficient common schools to be met. The per pupil amounts for the Student Plaintiffs,

$1,700 and $340 respectively, have resulted in overcrowded facilities, inadequate educational

materials, and insufficient learning supports. This injury is unique to students within the Districts

and is not experienced by the general public. The injury to the students is alleged to have been

caused by the State Defendants decreasing the public school per pupil amount from that in the Fair

School Funding Plain to fund the EdChoice Voucher Scholarship Program. This injury could be

redressed by the Plaintiffs’ requested relief. Therefore, the Court finds that the Student Plaintiffs

have standing to sue in this matter.

2. COALITION AND DISTRICTS

The State Defendants argue that the Districts and the Coalition lack standing to sue because

neither has pleaded a specific injury caused by vouchers. The State Defendants also allege that

the Districts have actually received increased funding. As the Plaintiffs did not identify an

educational program that was cut due to the EdChoice Voucher Scholarship Program, the State

Defendants do not believe the Districts have met the requirements for standing. If the Districts do

not have standing, then the State Defendants argue that the Coalition also does not have standing.

The Districts and the Coalition argue that they have adequately pleaded an injury to have

standing. The Coalition also asserts that it has associational standing.

Because the Districts’ standing may be dispositive, it shall be addressed first. Plaintiffs’

complaint alleges that funding for the EdChoice program depletes resources for public schools

because designated funds are redirected from the schools and allocated to fund the vouchers.

(Amended Complaint, ¶ 5). They assert that the Fair School Funding Plan that was enacted to

meet the Constitutional requirements has not been and will not be fully funded because of the

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EdChoice Vouchers, causing public schools to receive less funds from the State. Id. at ¶ 6-7. In

2021, the expanded EdChoice Voucher Program resulted in approximately $163 million dollars

being diverted from public schools and allocated to private schools. Id. at. ¶ 62. The Plaintiffs also

allege that public school districts are faced with insufficient funds to provide adequate educational

programming to students within their districts and insufficient learning supports to perform their

legal obligations and educate their students. Id. at. ¶ 83. The State Defendants rely on Toledo City

School Dist. Bd. of Edn. to argue that the Districts have not pleaded the denial of specific

educational opportunities. However, the court in Toledo addressed standing where parents did not

plead the denial of specific educational opportunities for their children. Toledo City School Dist.

Bd. Of Edn, 2014-Ohio-3741, ¶ 57-59.

The State Defendants’ argument that the Districts have received more funding than in

previous years is not persuasive at this stage of the proceedings on the issue of standing. The Court

is required to accept all the allegations in the complaint as true, and the allegations revolve around

the Districts not receiving funds through the Fair School Funding Plan that were diverted to the

EdChoice Program, not whether the Districts have received more money than in prior budget years.

The Court finds that the Districts have adequately pleaded an injury that is unique and

different from the general public, that could be redressed through their requested relief, and that

was caused by the State Defendants and the expanded EdChoice Scholarship Program.

The Coalition also has standing to bring its claims through associational standing. The

Districts, as members of the Coalition, have demonstrated their injury and therefore have standing.

The Coalition is organized pursuant to R. C. Chapter 167 and the interests it seeks to protect

concerning the equity and adequacy of school funding are germane to its purpose. Finally, in

meeting the final prong, the relief requested, a declaratory judgment that the EdChoice Program

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violates the Ohio Constitution and injunctive relief to enjoin funding of the program, does not

require the participation of the individual members of the Coalition.

Accordingly, the Court finds that both the Coalition and the Districts have standing.

III. CIV.R 12(B)(6) MOTION TO DISMISS

The Defendants assert that each of the Plaintiffs’ five claims should be dismissed pursuant

to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted. The Defendants

argue that some of these claims are barred by Ohio and U.S. Supreme Court precedent, and that

others fail because insufficient facts have been pled.

A. LEGAL STANDARD

“A motion to dismiss for failure to state a claim upon which relief can be granted pursuant

to Civ.R. 12(B)(6) tests the sufficiency of the complaint.” Brown v. Levin, 10th Dist. Franklin

No.11AP-349, 2012-Ohio-5768, ¶ 15. A Civ.R. 12(B)(6) motion allows the court to consider only

evidence or allegations within the complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206,

207, 6800 N.E.2d 985 (1997).

In reviewing whether a motion to dismiss should be granted, the court must accept all

factual allegations in the complaint as true, and it must appear beyond doubt that the plaintiff can

prove no set of facts entitling him/her to relief. Brown at 15. As long as there is a set of facts

consistent with plaintiff’s complaint which would allow the plaintiff to recover, the court may not

grant a defendant’s motion to dismiss. State ex rel. Jones v. Hogan, 10th Dist. Franklin No. 20AP-

319, 2021-Ohio-526, ¶ 17. “The court need not, however, accept as true any unsupported and

conclusory legal propositions advanced in the complaint.” Id.

B. PRECEDENT

The State Defendants argue that some of the Plaintiffs’ claims fail because they are

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foreclosed by State and/or Federal precedent.

The precedent the State Defendants rely upon are the Zelman, Goff, Ohio Congress of

Parents & Teachers, and DeRolph I cases. While the State Defendants do not indicate the specific

counts that should be precluded because of previous school choice cases, the Court gathers from

its motion that the State Defendants are asking the Court to apply Zelman, Goff and Ohio Congress

of Parents and Teachers to counts one, two, and four, and DeRolph I to all five claims. (MTD, pg.

9, 10, 12, 14, 15).

1. Zelman

In Zelman, the United States Supreme Court was asked to determine whether the State’s

pilot voucher program, which was established to provide educational choices to families with

children in the Cleveland City School District, violated the Establishment Clause of the United

States Constitution. Zelman v. Simmons-Harris, 536 U.S. 639, 644, 122 S.Ct. 2460, 153 L.Ed.2d

604 (2002). The court determined that it did not. Id. at 644.

The program before the court provided financial assistance to families in any Ohio school

district that was or had been under a federal court order. Id. at 644-645. At that time, Cleveland

was the only school district that fell within that category. Id. at 645. The program allowed families

within the Cleveland City Schools District to receive tuition aid for students in kindergarten

through third grade to attend a participating public or private school of their parent’s choosing or

to receive tutorial aid for families choosing to remain enrolled in the Cleveland City Schools. Id.

at 645. Families with income below 200% of the poverty line were given priority and the greatest

amount that a family could receive was 90% of the private school tuition, up to $2,250. Id. at 646.

The checks were made payable to the parents who would then endorse the check over to the private

school of their choice. Id. at 646.

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 In reaching the holding that the Cleveland voucher program did not violate the

Establishment Clause of the United States Constitution, the court determined that there were no

financial incentives for parents to choose a religious school, that it was a neutral program that

allowed parents to choose, and that it could be viewed as assisting poor children in failed schools

and not endorsing religious schooling. Id. at. 654-655.

While the voucher program in Zelman was upheld, the facts and questions before this Court

are distinguishable. Here, the Plaintiffs complaint alleges that the size and scope of the voucher

program has been greatly expanded since Zelman. (Amended Complaint at ¶ 63, 65, 102).

EdChoice provides vouchers to a broad range of families and has eliminated the previous cap on

the number of vouchers that could be approved. Id. Plaintiffs also allege that unlike the voucher

program before the Zelman court, the funds of all students receiving EdChoice Program vouchers

bypasses students’ parents and are transferred directly to private schools from the state budget

instead of to public schools. Id. at ¶ 88.

Taking all of the Plaintiffs’ allegations in the complaint as true, the Court does not find that

Zelman forecloses any of their claims at this juncture in the proceedings.

2. Goff

In Goff, the question before the Ohio Supreme Court was whether the school voucher

program in Cleveland violated the following constitutional provisions: (1) the Establishment

Clauses of either the United States or Ohio Constitutions; (2) the School Funds Clause of the Ohio

Constitution; (3) the Thorough and Efficient Clause of the Ohio Constitution; (4) the Uniformity

Clause of the Ohio Constitution; or (5) the one-subject rule. The court held that the Cleveland

voucher program, at that time, did not violate those constitutional provisions. Simmons-Harris v.

Goff, 86 Ohio St.3d 1, 4, 1999-Ohio-77, 711 N.E.2d 203 (1999).

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 In 1995, the Ohio General Assembly established a Pilot Project Scholarship Program,

known as the School Voucher Program. Id. at 1. The School Voucher Program required the State

Superintendent of Public Instruction to provide scholarships for students in the Cleveland City

School District. Id. The students could use the voucher to attend a private school or an adjacent

public school. Id. The voucher amount did not exceed $2,500 and the General Assembly placed a

limit on the appropriated amount for vouchers. Id. The checks to private schools were sent to the

school in the parents’ names. Id. The parents were then required to endorse the check over to the

school. Id.

In viewing the facts and coming to the conclusion that the School Voucher Program did

not violate various provisions of the United States and Ohio Constitution, the court noted that

implicit within the state’s obligation to establish a “thorough and efficient system of common

schools,” is a prohibition against the establishment of a system of uncommon (or nonpublic)

schools financed by the state. Id. at 11. The court went on further to state the success of private

schools should not come at the expense of the public education system or public-school teachers.

Id. It was determined that the School Voucher Program, at that current funding level, did not

violate Article VI Section 2 of the Ohio Constitution. Id.

The court in Goff emphasized that the current funding level of the voucher program before

it did not violate provisions of the Ohio Constitution. However, Plaintiffs allege that the EdChoice

Voucher Program after H.B.110 is very different from that in Goff. Plaintiffs point to the following

differences between the Goff voucher program and EdChoice after H.B. 110: (1) in 2021,

approximately $163 million was diverted to private schools; (2) there is no longer a limit on the

number of vouchers that can be awarded; (3) checks are now endorsed by the private school and

the parent; (4) funds are transferred directly to the private schools; and (5) the Fair School Funding

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Plan has not been fully funded because of the EdChoice Program. (Amended Complaint, ¶ 62, 65,

73, 87, 88). Plaintiffs also maintain that there are districts where private schools received more

public dollars through the EdChoice voucher program than the public-school district receives in

core foundation funding. (Amended Complaint, ¶ 80). In considering Goff and taking the

Plaintiffs’ allegations as true, the Court does not find that claims one, two, and four cannot proceed.

3. Ohio Congress of Parents and Teachers

The Ohio Supreme Court in Ohio Congress of Parents and Teachers was tasked with

answering the question of whether community schools, also known as charter schools, violated the

Thorough and Efficient Clause and other portions of the Ohio Constitution. State ex rel. Ohio

Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857

N.E.2d 1148, ¶ 4. The court determined that the establishment and funding of community schools

pursuant to Chapter 3314 of the Ohio Revised Code did not violate Section 2 Article VI of the

Ohio Constitution. Id. at ¶ 74.

In 1997 the Ohio General Assembly enacted Chapter 3314 of the Ohio Revised Code. R.C.

Chapter 3314 allowed for the establishment of community schools, which were independently

governed public schools funded by the state. Id. at ¶ 5. Community schools cannot charge tuition.

Id. at ¶ 7. They must also comply with many statewide academic standards. Id. The Ohio

Department of Education must approve and monitor the community schools’ sponsors and issue

reports on the schools’ academic programs, operations, legal compliance, and financial condition.

Id. at ¶ 8. In their complaint, Plaintiffs distinguish community schools from private schools that

charge tuition and are not required to comply with the same statewide academic standards and

other requirements for public schools. (Amended Complaint, ¶ 90, 91,92, 93, 94, 95).

While the court in Ohio Congress of Parents and Teachers determined that community

16
schools did not violate the Thorough and Efficient Clause, this Court does not find it appropriate

to extend the holding in that case to the facts of this matter at the motion to dismiss stage.

4. DeRolph I

The question before the Ohio Supreme Court in DeRolph I, was whether then-current

legislation to fund public elementary and secondary schools violated the Thorough and Efficient

Clause of the Ohio Constitution. DeRolph v. State, 78 Ohio St.3d 193, 198, 677 N.E.2d 733 (1997).

The court held that the funding scheme for financing public education was unconstitutional. Id. at

213.

The public-school districts in DeRolph I suffered from a lack of funds, teachers, buildings,

and equipment, and had inferior educational programs. Id. at 205. The students were also being

deprived of educational opportunity. Id. The court made this determination after receiving

exhaustive evidence. Id.

The State Defendants argue that because the Plaintiffs do not allege a lack of teachers,

buildings, and equipment, that they have not made a true thorough and efficient claim. (MTD, pg.

12). They go on to point out that the court in DeRolph stated, “A thorough and efficient system of

common schools includes facilities in good repair and the supplies, materials and funds necessary

to maintain these facilities in a safe manner, in compliance with all local, state and federal

mandates.” DeRolph I at 213.

Plaintiffs allege that the Fair School Funding Plan has not been fully funded. (Amended

Complaint, ¶ 73). They also allege that public school districts are faced with insufficient operating

funds to provide adequate educational programming and insufficient learning supports to meet

legal obligations and educate students. (Amended Complaint, ¶ 83, 84). The complaint further

alleges that the public-school students are faced with overcrowded facilities and inadequate

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materials. (Amended Complaint, ¶ 84).

The Court does not find the State Defendants’ argument that DeRolph I forecloses

Plaintiffs’ claims persuasive. Plaintiffs allege that school districts cannot provide adequate

educational programming and insufficient learning supports to meet legal obligations. While the

complaint does not state exactly that there is a, “lack of teachers, building and equipment,” this

Court cannot draw the conclusion that Plaintiffs’ complaint alleging inadequate educational

programming and insufficient learning supports to meet its legal obligations fails to state a claim.

Having considered the facts in the complaint and the arguments for dismissal pursuant to

Civ. R. 12(B)(6), the Court does not find that the Plaintiffs can prove no set of facts entitling them

to relief as to their five claims.

C. EQUAL PROTECTION

The parties disagree whether the Court must apply strict scrutiny or rational basis review

to Plaintiffs’ equal protections claims. Assuming for the moment that the more permissive rational

basis test is appropriate, an equal protection claim may only be disposed of on a Civ.R. 12(B)(6)

motion to dismiss if it can be shown that there is a reasonably conceivable state of facts that could

provide a rational basis for the classification. Sherman v. Ohio Pub. Emples. Ret. Sys., 10th Dist.

Franklin No. 18AP-181, 129 N.E.3d 974, * 982 (2019). A law is constitutional under the rational

basis test if it is reasonably related to a legitimate governmental interest. Simpkins v. Grace

Brethren Church of Del., 149 Ohio St. 3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 35.

Because a motion to dismiss is procedural and the rational basis standard is substantive, a

court must accept as true all allegations and reasonable inferences therefrom within the complaint

and apply those facts in light of the rational basis standard. Sherman v. Ohio Pub. Emples. Ret.

Sys., 163 Ohio St. 3d 258, 2020-Ohio-4960, 169 N.E.3d 602, ¶ 18. A Civ.R. 12(B)(6) motion

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directed at an equal protection claim fails when it does not provide enough information for a

plaintiff to attempt to negate every conceivable rational basis or for the trial court to find that a

rational basis for the classification exists sufficient to overcome an equal protection challenge.

Sherman, 129 N.E.3d 974 at 983. To prevail, the State Defendants must identify a rational basis

and explain how the EdChoice voucher system is reasonably related to that rational basis before

their motion to dismiss may be considered. Id.

Here, the State Defendants put forward two rational bases for the disparity in funding per

pupil at public schools and private schools that receive EdChoice vouchers: (1) accounting for an

underlying difference in facilities funding; and (2) to increase competition between public and

private (voucher receiving) schools.

The State Defendants’ first articulated rational basis is that the difference between per pupil

funding at public schools and private schools receiving EdChoice vouchers exists because public

schools receive more funding specifically related to facility maintenance, whereas, private schools

receive only EdChoice vouchers. However, Plaintiffs’ amended complaint alleges that the

underfunding of public schools has resulted in overcrowded facilities. (Amended Complaint, ¶ 84-

85). Plaintiffs also aver that this overcrowding is a direct result of a lack of funding to public

schools compared to private schools receiving EdChoice vouchers. Id. Assuming these allegations

to be true and drawing all reasonable inferences in favor of Plaintiff as required at this stage of the

proceedings, the Court cannot find that this rational basis articulated by the State Defendants is

reasonably conceivable. For the purposes of the State Defendants’ Civ.R. 12(B)(6) motion to

dismiss, the Plaintiffs have negated this conceivable rational basis.

The State Defendants’ second rational basis fails the Sherman test because, although they

cite studies that correlate academic improvements with vouchers, they fail to explain how vouchers

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that are significantly higher in funding compared to the funding available per public school student

promote this interest. Thus, they have not explained how the disparity in funding alleged within

Plaintiffs’ amended complaint is rationally related to an increase in competition.

Accordingly, the Court finds that the Plaintiffs’ Equal Protection claim can proceed.

D. NAMED DEFENDANTS

The State Defendants argue that the State of Ohio and the State of Ohio Board of Education

are irrelevant defendants and should be dismissed. They argue that the State of Ohio should be

dismissed because the complaint does not state a claim against it as it only states that the State of

Ohio is a Defendant in this action. (Amended Complaint, ¶ 30). The State Defendants assert that

the Board of Education should be dismissed because it does not have any responsibilities regarding

vouchers, but simply directs ODE to use certain accounting systems when implementing programs.

The Plaintiffs argue that both defendants should remain because the State of Ohio is

responsible for maintaining a thorough and efficient system of education and because the Board

of Education was a proper defendant in DeRolph. “The responsibility for maintaining a thorough

and efficient school system falls upon the state.” DeRolph v. State, 78 Ohio St. 3d 193, 210, 677

N.E.2d 733 (1997). The State Board of Education is authorized to administer and supervise the

allocation and distribution of all state funds for public school education and prescribe the systems

of accounting as necessary and proper. R.C. § 3301.07(C).

Because the Court finds that both the State of Ohio and the State of Ohio Board of

Education are proper parties to this case, their request for dismissal is denied.

IV. CONCLUSION

After reviewing the pleadings, motions, and arguments of counsel, the Court finds that

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Defendants’ motion to dismiss pursuant to Civ. R. 12(B)(6) is not well-taken, and is hereby

DENIED.

IT IS SO ORDERED.

Copies to all parties.

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 Franklin County Court of Common Pleas

Date: 12-16-2022

Case Title: COLUMBUS CITY SCHOOL DISTRICT ET AL -VS- STATE OF

OHIO ET AL
Case Number: 22CV000067

Type: ORDER

It Is So Ordered.

/s/ Judge Jaiza Page

Electronically signed on 2022-Dec-16 page 22 of 22