Opposition to Deborah Cook's Nomination to the U.S. Court of Appeals for the Sixth Circuit

Public Education

Justice Cook was also one of the dissenters in Ohio’s historic school funding case, in which the Ohio Supreme Court held that the state’s financing system for public elementary and secondary schools violated the mandate of the Ohio Constitution that the legislature provide a “thorough and efficient system” of public schools throughout the state. DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) (“DeRolph I”). This ruling upheld a trial court judgment striking down the state’s school financing system after a 30-day trial in which “plaintiff and defense witnesses alike testified as to the inadequacies of Ohio’s system of school funding and the need for reform.” 677 N.E.2d at 734. According to the Supreme Court, that funding system, which relied heavily on local rather than state revenue, had “caused or permitted to continue vast wealth-based disparities among Ohio’s schools, depriving many of Ohio’s public school students of high quality educational opportunities.” 677 N.E.2d at 737-38.
As recounted in the Supreme Court’s decision, the evidence showed that many children in the state were attending aging, deteriorating schools plagued by health and safety problems, including asbestos, outdated sewage systems, inadequate fire alarm systems, leaking roofs and windows, and inadequate plumbing and heating systems. In some schools, chunks of plaster were literally falling from the walls and ceilings. Many of the school districts lacked sufficient funds to purchase textbooks, and even the “accessibility of everyday supplies” was a problem, “forcing schools to ration such necessities as paper, chalk . . . and even toilet paper.” 677 N.E.2d at 744. The Supreme Court held that “exhaustive evidence was presented to establish that the appellant school districts were starved for funds, lacked teachers, buildings, and equipment, and had inferior educational programs, and that their pupils were being deprived of educational opportunity.” 677 N.E.2d at 742. The court directed the legislature to create a new school financing system, and stayed the effect of its decision for a year to enable the legislature to do so.
Justices Cook and Lundberg Stratton joined a dissent written by Chief Justice Moyer that would have upheld the school financing system because it provided “minimum standards,” 677 N.E.2d at 782, and would have ruled that determining the meaning of “thorough and efficient” was a political question left to the state legislature, effectively writing that clause out of the Constitution as unenforceable. Justice Resnick, who concurred in the majority opinion, wrote a separate concurrence in which she took the dissenters to task, stating that “when it is evident that the citizens of Ohio are unable to declare that the General Assembly is providing a ‘thorough and efficient’ system of public schools for all of the students in Ohio, it would be irresponsible for this court to refuse to decide this question under the guise of calling it a ‘nonjusticiable political question.’” 677 N.E.2d at 779 (emphasis added).
After taking the position that whether Ohio had a “thorough and efficient” system of public schools was a nonjusticiable political question, the dissenters nonetheless proceeded to address the merits of the case and would have held, in a section of the dissent entitled “failure of proof,” that the evidence demonstrated that the legislature had “discharged its constitutional duty for funding a ‘thorough and efficient’ system.” 677 N.E.2d at 788. The dissent’s view of the evidence drew harsh criticism from the court majority:

The dissent believes that we rely too heavily upon anecdotal evidence to support our holding that the current system is unconstitutional. Glaringly absent from the dissenting opinion, however, is any consideration of the massive evidence presented to us. There is one simple reason for this noticeable omission. The facts are fatal to the dissent. The dissent wisely recognizes that it could not, in good conscience, address these facts and then conclude that Ohio is providing the opportunity for a basic education. Therefore, it does the only thing that it could do, it ignores them.

677 N.E.2d at 742 (emphasis added).

Three years later, the Supreme Court was asked to consider whether the state was then in compliance with the “thorough and efficient” clause in light of remedial legislation passed after DeRolph I. See DeRolph v. State, 728 N.E.2d 993 (Ohio 2000) (“DeRolph II”). The majority held that it was not, noting in particular that the school funding system continued to rely heavily on local property taxes, which “has resulted in vast disparities among Ohio’s six hundred eleven public school districts due to the differences in revenue generated by each.” 728 N.E.2d at 1013. According to the majority, “[t]he valuation of local property has no connection whatsoever to the actual education needs of the locality, with the result that a system overreliant on local property taxes is by its very nature an arbitrary system that can never be totally thorough or efficient.” 728 N.E.2d at 999. Acknowledging that the legislature had made an effort to comply with DeRolph I, the Court gave the state additional time to comply with the Constitution.

Again, Justices Cook and Lundberg Stratton joined a dissent written by Chief Justice Moyer. Justice Cook also wrote her own dissent, urging the Court to “acknowledge [its] prior misjudgment” in DeRolph I. 728 N.E.2d at 1036. Cook took the position that the “thorough and efficient” clause of the state Constitution “is standardless and incomplete,” id., and contended that the Court had no business playing any role in what she perceived as an attempt to fashion a remedy for the constitutional violation found by the majority. Again, the unwillingness of the dissenters to determine the meaning of the state Constitution was harshly criticized. Justice Pfeifer, who joined the majority decision, wrote a separate concurrence accusing the dissenters of “essentially throw[ing] up their hands in dismay at the difficulty of interpreting two rather common words: ‘thorough’ and ‘efficient’ are, after all, used every day by both common and uncommon people. Their approach strikes at the core of constitutional law, that courts are the final arbiters of what the Constitution means, which was decided long ago. See Marbury v. Madison. . . .[I]t would turn two hundred years of constitutional jurisprudence, dating back to Marbury v. Madison, on its head. It also would allow the General Assembly to continue to disregard the section of the Constitution that mandates a ‘thorough and efficient’ education system.” 728 N.E.2d at 1027 (emphasis added; citation omitted).

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