ECOT asks high court to restore its funding

2/13/2018

COLUMBUS — Clinging to hope of reopening its virtual doors, what was once Ohio’s largest online school on Tuesday urged the Ohio Supreme Court to halt state efforts to claw back tens of millions in past aid.

The Electronic Classroom of Tomorrow shut down last month after its Toledo sponsor, the Educational Services Center of Lake Erie West, cut it off, leaving an estimated 12,000 students scrambling to find other options at the school year’s halfway point.

But the school hopes a high-court ruling that the state overstepped its authority, accompanied by an order requiring it to return tens of millions it has already withheld, will restore solvency to the school so that it can reopen this fall.

The case before the high court started as a fight over the state’s moves to claw back $60 million in allegedly unjustified subsidies from the 2015-16 school year by reducing current-year aid by $2.5 million per month. The Ohio Department of Education maintains that ECOT failed to demonstrate that all students it claimed as enrolled were logged on enough to qualify as full-time-equivalent students.

Since then the state determined that the school owes it another $19.2 million for 2016-17. The State Board of Education on Monday ratified the state’s move, bringing ECOT’s total repayment bill to just under $80 million.

ECOT argued that the state applied a double standard when it comes to charter e-schools.

“In a traditional school, there is no measure of duration whatsoever,” ECOT attorney Marion Little said. “The funding is premised solely upon enrollment. It doesn’t matter whether the student goes to school. It doesn’t matter whether the student is sick, delinquent, and engaged whatsoever. There is no consequence for a brick-and-mortar school.”

It maintains that it met its duty by offering educational opportunities to its enrolled students.

“According to ECOT, there’s a 30-day timer,” said Douglas R. Cole, representing the Department of Education. “A student logs in for one or two minutes, that restarts the clock. We now go another 30 days and we ask, ‘Has the student logged in for at least a minute?’ They don’t check whether the student has even accessed a learning opportunity during that log-in period.

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

ECOT claims the state changed midstream the way it counts online students and retroactively applied it. It has lost with that argument at every level of court to date.

Chief Justice Maureen O’Connor asked Mr. Little about Mr. Cole’s suggestion that the school expects to be fully funded even when a student only briefly logs onto the system.

“If enrollment is the test, subject to the 105-hour [30-day] rule, that’s how it results,” he said.

The chief justice then interrupted.

“How is that not absurd?” she asked.

The court will rule at a later date.

Justices Terrence O’Donnell and Patrick DeWine were the first to jump in with questions during Tuesday’s arguments, despite the filing of ethics complaints questioning their participation in such a case.

The groups Common Cause and ProgressOhio filed a grievance with the court’s Office of Disciplinary Counsel pointing out that ECOT’s founder, William Lager, contributed more than $3,000 to Justice O’Donnell’s campaigns and the justice had spoken at an ECOT commencement.

The grievance has been referred to the chief justice and the Ohio Courts of Appeals for preliminary review.

Meanwhile, the disciplinary counsel’s office filed its own formal complaint against Justice DeWine, questioning whether he has invited an appearance of impropriety by considering cases involving his father, Attorney General Mike DeWine. Mr. Cole is acting as special counsel to Mr. DeWine in the ECOT case.

Justice Judith French, whose husband is a magistrate in Franklin County Common Pleas Court where the case began, did recuse herself. She was replaced by Fifth District Court of Appeals Judge W. Scott Gwin.

Contact Jim Provance at jprovance@theblade.com or 614-221-0496.