E-school, state take fund­ing fight to Ohio Supreme Court

The Morning Journal (Lorain, OH) - - LOCAL NEWS - By Julie Carr Smyth

COLUM­BUS » Ohio Supreme Court jus­tices be­gan weigh­ing ar­gu­ments in a hot-but­ton case over how Ohio cal­cu­lated fund­ing for one of the na­tion’s largest on­line char­ter schools af­ter grilling both sides’ at­tor­neys for nearly an hour on Tues­day.

The case’s out­come will de­ter­mine the sur­vival of the now-closed Elec­tronic Class­room of To­mor­row, and it also could have a broader im­pact on the over­sight and fund­ing of other vir­tual schools whose ac­count­abil­ity has been drawn into the fray.

Mar­ion Lit­tle, an at­tor­ney for ECOT, ar­gued that the Ohio Depart­ment of Ed­u­ca­tion over­stepped its au­thor­ity when it de­cided to use stu­dent learn­ing time, rather than en­roll­ment, for its cal­cu­la­tion.

The re­vised cri­te­ria showed ECOT in­flated its at­ten­dance for the 20152016 school year and owed the state a $60 mil­lion re­fund. An ad­di­tional $19 mil­lion has been or­dered re­paid for last year.

Lit­tle told jus­tices the state should have used en­roll­ment ex­clu­sively to cal­cu­late how much ECOT was paid, as is the case with brick-and-mor­tar schools.

“In a tra­di­tional school, there is no mea­sure­ment of (learn­ing time) du­ra­tion what­so­ever. Fund­ing is premised solely on en­roll­ment,” he said. “It doesn’t mat­ter whether the stu­dent goes to school. It doesn’t mat­ter whether the stu­dent is sick, delin­quent, en­gaged what­so­ever. There is no con­se­quence to a brickand-mor­tar school.”

Jus­tices ap­peared skep­ti­cal, re­peat­edly ques­tion­ing ECOT’s in­sis­tence that it was wronged.

State at­tor­ney Dou­glas Cole said the school’s in­ter­pre­ta­tion of state law is that it can col­lect full pay­ment for stu­dents with­out doc­u­ment­ing a sin­gle minute’s learn­ing.

“The depart­ment says that’s an ab­surd re­sult and this court should be very leery about read­ing that in­tent into what the Gen­eral Assem­bly wrote,” Cole said.

Chief Jus­tice Mau­reen O’Con­nor di­rected Cole’s ar­gu­ment to Lit­tle, af­ter con­firm­ing the school’s be­lief that state law re­quires no stu­dent learn­ing at ECOT to be doc­u­mented.

“How is that not ab­surd?” O’Con­nor asked.

Lit­tle said the state’s case was un­fairly, and in­ac­cu­rately, con­flat­ing state fund­ing and stu­dent per­for­mance.

“There are other ways of test­ing whether a com­mu­nity school is dis­charg­ing its re­spon­si­bil­ity,” he said. “We make a dis­tinc­tion be­tween how is fund­ing done and how are schools eval­u­ated.”

Cole said the state’s re­quests for ECOT to pro­vide specifics on stu­dents’ ac­tiv­i­ties — which the school has ar­gued were made retroac­tively — have par­al­lels in other ar­eas of gov­ern­ment.

“I don’t think a sort of head-in-the-sand de­fense gets you too far with re­spect to claims of un­fair­ness about retroac­tiv­ity,” he said.

He likened the Ed­u­ca­tion Depart­ment’s ap­proach to ECOT to that of the In­ter­nal Rev­enue Ser­vice, which may ac­cept a per­son’s ex­penses at face value for years and, af­ter a pe­riod of years, come back and ask for re­ceipts.

About three dozen ECOT sup­port­ers demon­strated out­side the court­house as the ar­gu­ments were heard.

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