ECOT appeal on $60M repayment can proceed

Appeals court gives online charter school rare legal victory.

ECOT won a court decision on Tuesday — but no, it wasn’t the big Ohio Supreme Court ruling for which all involved are waiting.

The Ohio 10th District Court of Appeals ruled that the now-closed Electronic Classroom of Tomorrow can proceed with an appeal in Franklin County Common Pleas Court of the state Board of Education’s June 2017 decision to force it to repay an initial $60 million for unverified enrollment. The next year, the board added $20 million to the total.

In addition to the lawsuit pending before the Supreme Court, ECOT attempted to directly appeal the Board of Education’s decision to a Franklin County court. But the court dismissed the appeal, ruling that the board’s ruling was final.

In a 2-1 vote, the appeals court overturned that decision, ruling that the Board of Education conducted a quasi-judicial proceeding, making its decision appealable. The case was returned to the trial court.

“This case has a robust and multifaceted procedural history ... case law and statutes can provide legally persuasive reasoning for allowing this appeal or for dismissing this appeal,” Judge Jennifer Brunner wrote in an 11-page decision.

But ultimately, Brunner, joined by Judge Susan Brown, decided ECOT was entitled to have yet another day in court.

Judge Betsy Luper Schuster dissented, arguing that the board’s decision was final and not subject to appeal.

The court win was a rarity for the online charter school, which up to this point has found no legal success in attempting to stop the state from taking back the taxpayer money it says the school was not entitled to receive.

ECOT and state officials are still awaiting a ruling from the Supreme Court on the school’s effort to block the state from using log-in duration data to determine how much the school should have been paid. The Department of Education found a number of students were not getting anywhere near the 920 hours of minimum educational activity; some rarely ever logged into the school’s system.

ECOT has argued that the state improperly changed the rules for counting students in the middle of the school year, and that state law doesn’t require student engagement as a basis for funding.

The case encountered an unusual twist this week when Justice Pat DeWine, son of the candidate for governor and current Attorney General Mike DeWine, suddenly recused himself from the case. The decision came five months after the court heard oral arguments in the case.