Families, districts file lawsuit after learning of delay in enrollment for EdChoice Program

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COLUMBUS, Ohio (WCMH) — A lawsuit, claiming Senate Bill 120 is unconstitutionally delaying the enrollment of the EdChoice Program, was filed with the Ohio Supreme Court Monday on behalf of 15 families and 2 school districts.

Speaking for the plaintiffs is the group “Citizens for Community Values” President Aaron Baer and one of the attorney’s involved with the matter, Brian W. Fox.

The lawsuit puts forward two main claims, first that the delay imposed is unconstitutional because the bill it was passed in does not carry an emergency clause; and secondly they claim the state cannot deny families access to the enrollment because they have a vested interest.​

Baer says because the state released the upcoming eligible schools list for the EdChoice program last November, families and schools that have already begun preparing to potentially participate will be aggrieved if the process is delayed.

The list was posted on the Department of Education’s website several months ago, but a question remains on if that matters since the “official” list really isn’t fully official until enrollment opens, which was slated to be on February 1, 2020.​

Last week lawmakers, at the eleventh hour, passed Senate Bill 120 with an amendment that not only delayed that enrollment period but added a $10 million appropriation to the bill. The appropriation is important, we’ll come back to that.​

The Ohio House of Representatives chose not to add an emergency clause to the bill before overwhelmingly passing it and sending it back to the Ohio Senate. After passing the bill in the late hours of Thursday, many State Representatives left Columbus to go home for the weekend.​

Friday, the Ohio Senate took up the matter and passed the bill as well, albeit begrudgingly with a 24-6 vote, more than enough to meet the number of votes required to pass a bill with an emergency clause.​

Based on the fact there were enough votes to pass the bill with an emergency clause, as long as few in the Senate that voted “yes,” objected to such, it is a wonder why an emergency clause was not used.​

An Emergency Clause as defined by the Glossary of the Senate is:​

A clause that must be included in any bill, other than a bill that levies a tax or makes an appropriation for current expenses, if the bill is to take effect immediately upon passage by the General Assembly and approval by the Governor.​

It allows for the bill to immediately go into effect avoiding a 90-day waiting period like most other legislation.​

The House banked on the appropriation activating the bill immediately, some Senators disagreed.​

It all hinges on if the $10 million appropriation triggers the current expenses portion of the definition as pointed out by Greg Lawson, who is a research fellow with the Buckeye Institute and not an attorney. ​

“My understanding generally speaking is, it usually has to be intrinsically related to ongoing government expenses, and there is a real question here because these are obviously expenses that fall into a different fiscal year.”​

Over the weekend, Speaker of the House Larry Householder (R-Glenford) tweeted his confidence in only adding the appropriation and not going with the indisputable emergency clause to activate it immediately.

“Not my first rodeo!” wrote Householder. “1) LSC researched and drafted amendment. (2) House legal staff reviewed its legality. (3) Outside counsel reviewed amendment. (4) Rep Seitz (highly respected attorney) reviewed and offered the amendment in session.”

State Representative Bill Seitz agrees that this is the crux of the legal matter and also points out the timing of school funding to a different end.​

“The legal question is: Is the appropriation applicable only to expenses in the current physical year or does it cover the full two years of the General Assembly. If it does cover the two years of the General Assembly, then the expenditure would cover a current cost for the upcoming 2020-2021 school year,” said Seitz.​

If the judges rule in his favor then the enrollment window would indeed be moved back to April 1, 2020, far enough into the future that he is confident a fix will be agreed to before the eligible school list is active.​

“People of goodwill can get this resolved in less than 60 days,” said Seitz.​

The eligibility list is at the heart of the Citizens for Community Values second argument, and when it is considered official may lead to determining if families did indeed have a vested interest.​

Seitz doesn’t believe they do.​

One final thing to point out, was an argument Baer was positing about finances.​

He said, when the list was released in November some families started making life altering plans to apply for a voucher they had no guarantee they would get. This allowed them to take on new expenses, fix homes even.​

The entire concept behind EdChoice is to allow families to send their child to the school of their choice in one of two ways by getting financial assistance in doing so.​

The first is based on financial need. They don’t have the money to afford the tuition of sending their child to a private school and the voucher off-sets that amount. Families ranging in income from below 200% of the Federal Poverty Level (which get a full scholarship) to those above that amount (which get a partial scholarship) can apply for the voucher no matter if their school is on the list of eligible schools or not. The state pays this money, none of it comes from public school sources.​

The second is based on school performance. If a school gets a failing grade in any of the six areas tested, which could put a school on the list even though the district as a whole is not a failing school district because of how the State Report Card system is set up, it ends up on the EdChoice eligibility list. Once on the list families can apply for a voucher regardless of their income level to get a full scholarship paid for in large part with funds from the public school district they would be coming from to go to a private school.​

With financial need families not tethered to the eligibility list, the expansion only affects people living in areas where a school is set to be added to that list. ​

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