Board of Education, Princeton City School District, Board of Education, Reading Community City School District, Board of Education, North College Hill City School District, and Board of Education, Kings Local School District v. Ohio State Board of Education, Ohio Department of Education and Ted Sanders, Superintendent of Public Instruction State of Ohio

Decision Date17 August 1994
Docket Number94-LW-1665,C-930214
CourtOhio Court of Appeals

Civil Appeal From Hamilton County Court of Common Pleas

Rendigs, Fry, Kiely & Dennis and John W. Hust, Esq., No. 0027121, 900 Central Trust Tower, Cincinnati, Ohio 45202, for Plaintiffs-Appellants,

Lee Fisher, Attorney General of Ohio, and Karin E. Wilson, Esq., No. 0047221, Education Section, 30 East Broad Street, 15th Floor, Columbus, Ohio 43266-0410, for Defendants-Appellees.



This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, and the briefs and the arguments of counsel.

In 1989, the Ohio General Assembly created the Educational Management Information System ("EMIS"). R.C. 3301.0714. EMIS is a statewide computer information network for Ohio public schools. EMIS has three main components: the statute itself (R.C. 3301.0714); a rule (Ohio Adm.Code 3301-14-01); and guidelines. Four local boards of education--Princeton, Reading, Kings, and North College Hill ("appellants")--challenged the constitutionality of all three components.[1] Appellants brought a declaratory judgment action against the Ohio State Board of Education ("state board"), the Ohio Department of Education ("department of educa-tion"), and Ted Sanders, the state superintendent of public instruction.[2] The department of education consists of the state board and the superintendent. The department of education is the administrative unit through which the board seeks to administer EMIS. R.C. 3301.13 and 3301.0714(A).

In the action below, the court invalidated the portion of the statute that required school officials to collect staff social security numbers. Pursuant to R.C. 1.50, the court severed that section of the statute. The court, however, upheld the remaining portions of EMIS.

In this appeal, appellants challenge the trial court's judgment in two assignments of error. In the first assignment, they argue that R.C. 3301.0714 is an improper delegation of legislative authority. Specifically, they contend that the legisl-ature cannot allow an administrative body to create rules and guidelines without using the rulemaking process provided in the Administrative Procedure Act, R.C. Chapter 119 ("APA"). In the second, appellants contend that R.C. 3301.0714 violates the federal Family Educational and Privacy Rights Act, Section 1232g, Title 20, U.S.Code ("FEPRA"). FEPRA denies federal funds to schools that release certain student education records. For the reasons that follow, we overrule both assignments of error.


Our analysis of appellants' delegation argument begins with the fundamental proposition that the legislative power of this state is vested in the general assembly. Section 1 Article II, Ohio Constitution. The Ohio General Assembly has a "plenary grant of power" to pass any statute that does not conflict with the state or federal constitutions. State ex rel. Jackman v. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161-62, 224 N.E.2d 906, 909. One constitutional limit on the general assembly is the prohibition against delegating "legislative power." Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 342, 55 N.E.2d 629, 635; see, also, Panama Refining Co. v. Ryan (1935), 293 U.S. 388, 55 S.Ct. 241 (federal analog). Given that limit, however, the general assembly constitutionally may delegate rulemaking authority to subordinate boards and agencies. Belden at 342, 55 N.E.2d at 635.

Delegation of rulemaking authority is a necessary response to the increasing complexity of modern government. In re Adoption of Uniform Rules and Regulations Relating to Valuation of Real Property (1959), 169 Ohio St. 445, 455, 160 N.E.2d 275, 281-82; Zangerle v. Evatt (1942), 139 Ohio St. 563, 573, 41 N.E.2d 369, 373-74; 1 Davis & Pierce, Administrative Law Treatise (1994) 77-79, Section 2.6; 3 Stein, Mitchell & Mezines, Administrative Law (1993), 13-2, Section 13.01. Concerning school boards specifical-ly, the Ohio Supreme Court has recognized a particular need to allow the legislature to delegate broad powers. Ohio Assn. of Public School Employees v. Stark Cty. Bd. of Edn. (1992), 63 Ohio St.3d 300, 304, 587 N.E.2d 293, 296 ("OAPSE"), citing Panama Refining. As a general matter, if the legislature provides a sufficient policy statement in the enabling statute, the delegation of rulemaking is proper. In re Rules at 455, 160 N.E.2d at 281-82; Matz v. J.L. Curtis Cartage Co. (1937), 132 Ohio St. 271, 276, 7 N.E.2d 220, 224-25. In the words of Justice Cardozo in his dissenting opinion in Panama Refining, which dissent is cited with approval in Matz, the statute must define policy so that the rule is "canalized within banks that keep it from overflowing." Matz at 280, 7 N.E.2d at 225. When the rule is not "unconfined and vagrant" it is a permissible delegation of legislative authority. Matz at 280, 7 N.E.2d at 225.

As a result of these legal precepts and administrative necessities, the Ohio General Assembly has developed an extensive body of administrative law. The legislature has created a complex of administrative agencies with both quasi-legislative and quasi-judicial powers. See, generally, R.C. 119.01(A). It also created the elaborate statutory framework of the APA to govern the activities of those administrative bodies. R.C. 119.01-13. The APA, which itself is a creation of the legislature, was passed in 1943. 120 Ohio Laws 358. The legislature required certain agencies with rulemaking power to use the APA notice-and-hearing procedures. R.C. 119.01(A). The general assembly also listed certain boards and agencies to which the notice-and-hearing provisions of the APA do not apply. R.C. 119.01(A). When those agencies have acted within their statutorily delegated boundaries, the Ohio Supreme Court has approved the legislature's delegation of rulemaking authority.[3]

As a general matter, the rulemaking functions of the depart-ment of education, which includes the state board, are subject to R.C. Chapter 119. R.C. 3301.13; Rossford Exempted Village School Dist. v. State Bd. of Edn. (1989), 45 Ohio St.3d 356, 358, 544 N.E.2d 651, 653. Concerning the statutory policy directives in EMIS, the legislature indicated that it wanted the state board to create a vast computer network to collect, compile, and report certain kinds of data. R.C. 3301.0714. The statute specifically detailed the data that the legislature wanted compiled and reported. The statute directed the state board of education to collect information on student participation, performance, class-room enrollment, and demographics. R.C. 3301.0714(B). In addition, ostensibly to ensure accountability, the legislature required the board to prepare a report for public distribution based on this information. R.C. 3301.0714(H). With this degree of specificity, this EMIS statute has provided more exact policies and standards than previous cases in which the Ohio Supreme Court has approved rulemaking delegation. See, generally, OAPSE at 304, 587 N.E.2d at 296; In re Rules at 455, 160 N.E.2d at 281-82.

Pursuant to this "canalized" policy statement, the statute directed the state board to adopt a rule for EMIS and develop guidelines within the confines of that rule for the establishment and maintenance of the system. R.C. 3301.0714(A). The state board promulgated the rule for the operation of EMIS through the rulemaking process outlined in R.C. 119.01-13. As the legislature directed, however, the board did not create the guidelines within the APA. R.C. 119.01(C).

The trial court was persuaded that the legislature intended for the "guidelines" to be exempt from R.C. Chapter 119. There-fore, the court reasoned, the statute, rule, and guidelines were valid.[4] Even though we agree with the decision of the trial court, we come to our conclusion for a different reason. For the purposes of the APA, the legislature has defined the term "rule," but not the term "guideline." R.C. 119.01(C) and 111.15(A)(1). By analyzing the substance, rather than the nomenclature, of these provisions, we accept the attorney general's argument that these are guidelines, not rules.

When the legislature created EMIS, it directed the state board to create a rule to implement the information system. The board did that by enacting Ohio Adm.Code 3301-14-01 within the rulemaking process in R.C. Chapter 119. In the statute, the legislature gave the state board ex-plicit instructions on what information to include in the system. It left to the guidelines only the procedures for how to identify, collect, implement, and report the data. The rule tracks the statute and describes, in general terms, procedures to be developed to implement the EMIS information system. The rule, therefore, is constitutionally sound. See, generally, Peachtree Development Co v. Paul (1981), 67 Ohio St.2d 345, 351, 423 N.E.2d 1087, 1093.

The guidelines, on the other hand, are a kind of instruction manual showing methods and alternatives to identify, compile collect and report the data. For example, the statute creates the duty for districts to report the "numbers of students receiving each category of instruction service, such as * * * specialized instruction programs." R.C. 3301.0714...

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