Plain Local Sch. Dist. Bd. of Educ. v. DeWine

• Decision Date: 11 September 2020
• Docket Number: Case No. 2:19-cv-5086
• Citation: 486 F.Supp.3d 1173
• Parties: PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs, v. Mike DEWINE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

486 F.Supp.3d 1173

PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs,

v.Mike DEWINE, et al., Defendants.

Case No. 2:19-cv-5086

United States District Court, S.D. Ohio, Eastern Division.

Filed September 11, 2020

Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Gregory C. Djordjevic, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiff Plain Local School District Board of Education.

Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiffs C.L., J.L., B.H., C.H.

Frank J. Reed, Jr., Frost Brown Todd LLC, Aaron T. Brogdon, Stephen Eric Chappelear, Eastman & Smith, Columbus, OH, for Defendants Paolo Demaria, Laura Kohler, Charlotte McGuire, Linda Haycock, Kirsten Hill, Jenny Kilgore, Lisa Woods, Antoinette Miranda, Sarah Fowler, John Hagan, Stephanie Dodd, Nick Owens, Meryl Johnson, Eric Poklar, Cindy Collins, Mark Lamoncha, Martha Manchester, Steve Dackin, Reginald Wilkinson.

Frank J. Reed, Jr., Frost Brown Todd LLC, Stephen Eric Chappelear, Eastman & Smith, Columbus, OH, for Defendant Mike Toal.

Scott M. Zurakowski, Amanda M. Connelly, Joseph J. Pasquarella, Mathew E. Doney, Owen J. Rarric, Krugliak, Wilkins, Griffiths & Dougherty Co., LPA, Canton, OH, for Defendant Village of Hills And Dales.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

In this action, Plaintiffs challenge, under both federal and state law, Ohio Revised Code § 3311.242, which they refer to as the "Fast-Track Transfer Statute."¹ Plaintiffs now move for summary judgment on their claims.² ECF No. 129. Defendants oppose Plaintiffs’ motion and separately move for summary judgment. ECF Nos. 137 & 138. Additionally, Ohio School Boards Association and Ohio Education Association ("Movants") move for leave to file an amicus curiae brief. ECF No. 60. Finally, Defendant Village of Hills and Dales ("Hills and Dales") moves to amend the parties’ prior Agreed Order regarding Plaintiffs’ motion for a temporary restraining order. ECF No. 104.

For the following reasons, Movants’ motion for leave to file an amicus curiae brief is GRANTED. The State Board Defendants’ motion for summary judgment is DENIED WITH PREJUDICE IN PART AND DENIED WITHOUT PREJUDICE AS MOOT IN PART . Hills and Dales’ motion for summary judgment is GRANTED IN PART AND DENIED WITHOUT PREJUDICE AS MOOT IN PART . Plaintiffs’ motion for summary judgment is GRANTED IN PART AND DENIED WITHOUT PREJUDICE AS MOOT IN PART . Hills and Dales’ motion to amend the Agreed Order is DISMISSED AS MOOT .

I. FACTS

Hills and Dales is an incorporated village in Stark County, Ohio. Ans. ¶ 26, ECF No. 34. It is located entirely within Jackson Township. McKibben Dep. Ex. 1 at 6, ECF No. 144-1 at PAGEID # 20131. In 1954, Hills and Dales had the opportunity to choose which public school system to join; it chose Plaintiff Plain Local School District.

Over the years, Plain Local School District's student body has become more diverse. Plain Local School District's student body was 94% white in 2000. Martinsek Decl. at 3, ECF No. 110; id. at Ex. 23, ECF No. 111-8 at PAGEID # 13194. By 2005, Plain Local School District reported its student body as 86.1% white and 13.9% minority. Jordan Decl. Ex. 1. ECF No. 108. That same year, Jackson Local School District's student body was reported as being 94.4% white and 5.6% minority. Id. By 2019, Plain Local School District was 71.96% white and 28.04% minority while Jackson Local School District was 87.07% white and 12.93% minority. Rausch Dep. Ex. 5, ECF No. 118 at PAGEID # 14562. Thus, over the past 15 years, Plain Local School District's student body has diversified faster than Jackson Local School District's. Moreover, in fiscal year 2019, the State of Ohio categorized 42.37% of students in Plain Local School District as "Disadvantaged." Rausch Dep. Ex. 5, ECF No. 118 at PAGEID # 14562. That same year, it categorized only 16.26% of Jackson Local School District's students as "Disadvantaged." Id.

Over the past twenty years, Hills and Dales has remained overwhelmingly white. The 2000 census showed that Hills and Dales was 95% white and 5% minority (including 0.4% black). Jordan Decl. Ex. 4, ECF No. 108 at PAGEID # 2025. By 2010, Hills and Dales was 92.8% white and 7.2% minority (including 0% black residents). Martinsek Decl. Ex. 6 at 2, ECF No. 110 at PAGEID # 2489.

In 2004, Hills and Dales attempted to transfer from Plain Local School District to Jackson Local School District. Jordan Decl. ¶¶ 5–8, ECF No. 109; id. at Ex. 5, ECF No. 109 at PAGEID ## 2042–44. At that time, there were only two mechanisms for transferring territory between school districts: Ohio Revised Code Sections 3311.06 and 3311.24. Hills and Dales attempted to transfer pursuant to § 3311.24. Id. at ¶ 5.

All transfers under § 3311.24 had to be approved by the State Board of Education ("State Board") and were governed by Ohio Administrative Code § 3301-89, et seq. O.R.C. § 3311.24(A) (2005); Ohio Admin. Code § 3301-89-01(A) (2005).³ The State Board's primary consideration in deciding whether to approve a transfer request was "the present and ultimate good of the pupils concerned." Ohio Admin. Code § 3301-89-01(F) (2005). In making that determination, the State Board (and a hearing officer if a hearing was held) had to consider the affected school districts’ answers to the following pertinent questions:

(1) Why is the request being made?

(2) Are there racial isolation implications?

...

(9) Will the loss of either pupils or valuation be detrimental to the fiscal or educational operation of the relinquishing school district?

...

Ohio Admin. Code § 3301-89-02(B) (2005).

A hearing officer was appointed and presided over a two-day hearing regarding Hills and Dales’ 2004 transfer petition. Jordan Dec. ¶ 6, ECF No. 109; id. at Exs. 2–3, ECF No. 109 at PAGEID ## 1540–2012. In support of the transfer petition, Hills and Dales argued that it identified with the Jackson Local community, the Jackson Local high school was closer to Hills and Dales than was the Plain Local high school, and travel to Jackson Local schools would be safer than travel to Plain Local schools. E.g. Jordan Dec. Ex. 2 (Hrg. Tr. 11:22–12:3; 13:7–14:4; 16:13–17:5), ECF No. 109 at PAGEID ## 1550–51. Plain Local School District challenged the transfer attempt, arguing that it would erode Plain Local School District's finances and diversity and open the floodgates for future transfer petitions. Id. at PAGEID # 1562.

In addition to considering the testimony, exhibits, and information submitted by the parties, including the statutory questions listed above, the hearing officer was required to also consider these pertinent concerns before issuing her recommendation to the State Board:

(5) The transfer shall not cause, preserve, or increase racial isolation;

...

(8) The pupil loss of the relinquishing district should not be such that the educational program of that district is severely impaired;

...

Ohio Admin. Code § 3301-89-03(B) (2005).

The hearing officer recommended the State Board deny the proposed transfer as denial was "in the best interest of children." Jordan Dec. Ex. 4 (2005 R&R), ECF No. 109 at PAGEID # 2017. She found that the transfer "would result in Hills and Dales Village transferring from a more racially and socio-economically diverse to a less racially and socio-economically diverse school district," although the change due to the Hills and Dales transfer, alone, "would not be considerable." Id. at PAGEID # 2030. Nonetheless, "transferring the highest income white territory of Plain Local to the wealthier and less racially and socio-economically diverse Jackson Local district," she concluded, "implicate[d] the racial impact concerns about territory transfers that The Department of Education" included in Ohio Revised Code § 3311.24 and Ohio Administrative Code § 3301-89, et seq. Id. at PAGEID ## 2031–32. Those racial and socio-economic implications, coupled with "the negative financial consequences" to Plain Local School District as well as Hills and Dales’ "failure to prove their community, time, safety, and distance contentions"⁴ led the hearing officer to recommend denial. Id. at PAGEID ## 2031, 2033–34, 2037–39.

The State Board adopted a resolution accepting that recommendation and denying the transfer request, Jordan Dec. Ex. 5, ECF No. 109 at PAGEID # 2044, and court challenges to the State Board's determination were dismissed. Hills & Dales v. Ohio Dep't of Edu. , No. 06AP-1249, 2007 WL 2812988 (Ohio Ct. App. Sept. 28, 2007) ; appeal not accepted for review , 117 Ohio St. 3d 1424, 882 N.E.2d 445 (2008).

Since then, Hills and Dales, primarily through Councilmen David Peppard and Patrick Dunn, has continued to search for a way to transfer to the Jackson Local School District. Peppard Dep. 90:4–11, 91:5–99:14, 103:11–104:16, 113:25–114:20, 201:8–202:10, ECF No. 123 (testifying the topic was raised approximately once per quarter from 2016 to 2019 and Patrick Dunn was researching in 2019 the possibility of a transfer); Dunn Dep. 74:22–84:10, ECF No. 122. These efforts included proposing a land swap between Jackson Township and Plain Township and requesting legislation to facilitate a transfer. See generally id. ; Schilling Dep. 4, ECF No. 119. In 2018, Hills and Dales surveyed its residents to gauge their interest in transferring to Jackson Local School District. Martinsek Decl. Ex. 21, ECF No. 110 at PAGEID ## 10581–85. However, the State Board could not reconsider a renewed transfer request under Ohio Revised Code § 3311.24 unless it determined "that significant change ha[d] taken place subsequent to the filing of the original request." Ohio Admin. Code § 3301-89-01(E). This provision effectively foreclosed transfer under § 3311.24 because it is undisputed that no significant change had occurred...