Scott-Schwalbach v. Rosenblum ( 2022 )

681
On petition to review ballot title filed October 18, considered and taken under
advisement on December 6; ballot title referred to Attorney General for
modification December 30, 2022
Reed SCOTT-SCHWALBACH,
Petitioner,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S069830)
523 P3d 113
Petitioner challenged all parts of the certified ballot title that the Attorney
General prepared for Initiative Petition 5 (2024) (IP 5). If approved, IP 5 would
create a constitutional right for parents to select any kindergarten-through-
twelfth-grade Oregon public school statewide, including any public charter school,
for their children to attend throughout each school year; would require the cho-
sen school district to admit the child for enrollment, with prioritization for admis-
sion based on residency only or, if more applicants than remaining spaces, based
on an “Equitable Lottery” process; and would require the chosen school district
to provide the child with “free and appropriate public education.” Held: (1) The
caption and the “yes” result statement must be modified to describe a major effect
of IP 5, if approved, that discretion currently granted to school districts to admit
nonresident students would be eliminated; (2) the summary must be modified to
inform voters that, upon the exercise of the new constitutional right, home dis-
tricts would experience a fiscal impact.
The ballot title is referred to the Attorney General for modification.
En Banc
Margaret S. Olney, Bennett Harman, LLP, Portland, filed
the petition and reply for petitioner.
Carson L. Whitehead, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. Also on the
memorandum were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
GARRETT, J.
The ballot title is referred to the Attorney General for
modification.
682 Scott-Schwalbach v. Rosenblum
GARRETT, J.
Petitioner seeks review of the Attorney General’s
certified ballot title for Initiative Petition 5 (2024) (IP 5), con-
tending that various aspects do not comply with the require-
ments for ballot titles set out in ORS 250.035(2). We review
the certified ballot title to determine whether it substan-
tially complies with those requirements. See ORS 250.085(5)
(setting out that standard). For the reasons explained below,
we refer the ballot title for IP 5 to the Attorney General for
modification.
I. BACKGROUND
IP 5, a copy of which is attached as an Appendix,
proposes an amendment—entitled “Open Enrollment
Amendment”—to be added to Article VIII of the Oregon
Constitution. The proposal would create a constitutional right
for parents to select any kindergarten-through-twelfth-grade
(“K-12”) Oregon public school statewide, including any public
charter school, for their children to attend throughout each
school year, defined in the measure as a parent’s “chosen
school.” IP 5, §§ 2, 4. Unless an exception set out in the mea-
sure applies, the chosen school district would be required
to admit the child for enrollment in the chosen school.
Id. § 4.
The first exception to required admission provides
that, for any classroom space or program in the chosen
school for each school year, admission priorities would be as
follows: A child residing in the school’s “attendance zone,”
if any,1 would be given “first priority”; a child residing in
the “chosen school district” would be given “second prior-
ity”; and any other child would be given “third priority.”
Id. § 4.a. The second exception provides that the chosen
school district may deny permission to enroll a child resid-
ing outside the chosen school’s attendance zone if no remain-
ing classroom or program capacity exists (with an exception
for enrollments required by federal law); but, before deny-
ing admission, the chosen school district would be required
1
“Attendance Zone” means “an area within a School District that is desig-
nated as the assigned area in which resident parents send a child to a specific
Public School.” IP 5, § 3.e.
Cite as 370 Or 681 (2022) 683
to “make every possible reasonable and good faith effort”
to accept the child into the chosen school. Id. § 4.b. The
third exception provides that, if there were more applicants
for a particular chosen school than remaining available
spaces, then the chosen school district would be required
to select a child for admission to the chosen school through
an “Equitable Lottery” process, id. § 4.c, which “must give
each participating Child an equal chance of selection,” id.
§ 3.i. Finally, in selecting a child to accept, the chosen school
district would be precluded from either denying consent or
giving priority based on a variety of circumstances personal
to the child.2 Id. § 4.d.
Upon admission for enrollment by the chosen school,
the child would become an “Open Enrollment Student.”
That, in turn, would require the chosen school district to
provide the child with “free and appropriate public educa-
tion,” with no need for the child to reapply in subsequent
years for enrollment in the chosen school district. Id.
§ 5.a., b. If adopted, IP 5 would apply to “schooling provided
from July 1, 2025, onwards.” Id. § 7.3
The Attorney General prepared a draft ballot title
for IP 5, ORS 250.065(3), and the Secretary of State circu-
lated that ballot title for public comment, ORS 250.067(1).
After considering substantive comments received, the
Attorney General modified her draft ballot title, ORS
250.067(2)(a), and certified the following ballot title to the
Secretary of State:
“Amends Constitution: Parent may select any
K-12 public/charter school; priority for residents,
returning students; admissions lottery
“Result of ‘Yes’ Vote: Parent may select any K-12
public/charter school statewide. Admission priority for res-
idents, returning students; no criteria/other preferences
allowed. If space limited, lottery used.
2
Those circumstances include “race, religion, creed, sex, gender, ethnicity,
political belief, national origin, disability, terms of an individualized education
program, income level, proficiency in the English language or athletic ability.”
IP 5, § 4.d.
3
IP 5 contains other provisions not summarized here. As noted, it is set out
in full in the Appendix.
684 Scott-Schwalbach v. Rosenblum
“Result of ‘No’ Vote: ‘No’ vote retains current law. No
constitutional right to select among public schools. Schools
may prioritize admission for sibling preference, academics,
at-risk status, other criteria.
“Summary: Amends constitution. Currently, parents
may transfer children between K-12 public schools, when
permitted by district. Schools may have non-discriminatory
criteria for magnet programs/charter schools, including
academics, at-risk status, sibling preference. Measure gives
parents right to select any public/charter school statewide.
Priority given first to resident of attendance zone (assigned
area where resident sends child to specific school); second
to district resident; third to outside district. No admission
criteria/other preference allowed. When space limited,
school must use lottery for each priority level, give child
equal chance of selection. Returning students do not need
to reapply. Admission open throughout school year. District
not required to transport child outside assigned attendance
zone. State adopts uniform application for enrollment.
Applies starting July 2025.”
Petitioner is an elector who timely submitted com-
ments about the Attorney General’s draft ballot title for IP 5
and who is dissatisfied with all parts of the certified ballot
title. See ORS 250.085(2) (describing who may challenge cer-
tified ballot title). We conclude, as explained below, that the
caption, the “yes” result statement, and the summary must
be modified.
II. ANALYSIS
A. Caption
We begin with the caption, which must, in 15 or
fewer words, “reasonably identif[y] the subject matter” of
the proposed measure. ORS 250.035(2)(a). Petitioner argues
that the wording in the caption of the certified ballot title for
IP 5—“[p]arent may select any K-12 public/charter school”—
is problematic because voters will not understand that, under
IP 5, schools are required to admit students “on demand,” so
long as they have capacity to do so. The Attorney General
acknowledges that IP 5 would remove discretion currently
granted by statute to school districts, effectively transfer-
ring that authority to parents. See ORS 339.133(5)(a) (if a
parent seeks admission to a school in a district where the
Cite as 370 Or 681 (2022) 685
parent does not reside, the district has discretion whether
to admit the student, which requires written consent from
both the sending and receiving districts); ORS 339.127
(setting out factors that a school district may not consider
when determining whether to admit nonresident students
or establishing any terms of consent, and setting out other
processes relating to consent); ORS 339.128 (setting out fac-
tors that a school district may not consider when choosing to
admit nonresident students, for districts that charge admis-
sion to nonresident students). But, she argues, the “core
legal effect” of IP 5 is the new right granted to parents, not
the removal of discretion from school districts. As explained
next, we disagree.
The “subject matter” of a proposed measure is its
“actual major effect” or, “if the measure has more than one
major effect, all such effects (to the limit of the available
words).” Whitsett v. Kroger, 348 Or 243, 247, 230 P3d 545
(2010). To determine the subject matter, we first examine
the words of the proposed measure, as well as “the changes,
if any, that the proposed measure would enact in the context
of existing law.” Kain/Waller v. Myers, 337 Or 36, 41, 93 P3d
62 (2004).
Examining the words of IP 5, it is apparent that
its express actual major effect is the creation of a new, uni-
lateral constitutional “right” conferred to parents to select
chosen schools for their children. When that new right is
considered in light of existing law, however, the measure’s
subject matter concomitantly encompasses the significant
change that petitioner has identified: The elimination of
school district discretion to admit nonresident students.
Stated another way, the measure, in effect, would transform
the discretionary admission authority that the legislature
has conferred to school districts into a constitutional, uni-
lateral authority that may be exercised by parents (absent
capacity constraints and subject to other narrow exceptions).
That significant change is an actual major effect
that the caption must describe within its 15-word limit. See
Unger v. Rosenblum, 361 Or 814, 818, 401 P3d 789 (2017)
(concluding that Attorney General’s caption did not ade-
quately describe a second major effect of a measure proposing
686 Scott-Schwalbach v. Rosenblum
acceptance of digital signatures on initiative and referenda
petitions); see also generally Caruthers v. Kroger, 347 Or 660,
667, 227 P3d 723 (2010) (proposed measure to guarantee a
new constitutional “right” to have an initiative or referen-
dum signature “count” would have set aside statutory or
rule-based “impediments” to “counting” such signatures—
which was an important aspect of the “true subject matter”
of the measure that must be included in the caption); Mabon
v. Myers, 333 Or 252, 257, 39 P3d 171 (2002) (caption of ballot
title for measure seeking to replace existing judicial oaths
with new oath was insufficient in part because it gave no
indication that the measure would replace or subsume exist-
ing oaths). The caption therefore must be modified to high-
light that paradigm shift to voters.
B. “Yes” Result Statement
We turn to the “yes” result statement, which must
be a “simple and understandable” statement not exceeding
25 words that “describes the result” if the proposed measure
is approved. ORS 250.035(2)(b). We agree with one of peti-
tioner’s challenges to the “yes” result statement that relates
to our discussion about the caption—that current law
authorizes school districts to exercise discretion in decid-
ing whether to admit or deny nonresident students, but the
“yes” result statement does not explain that such discretion
would be eliminated if IP 5 is approved. The “yes” result
statement, like the caption, therefore must be modified. See
Mabon, 333 Or at 257-58 (requiring modification to “yes”
result statement that, like the caption, did not mention the
scope of the change that would result from adoption of the
proposed measure—that a new constitutional judicial oath
would replace or subsume existing oaths).
C. Summary
The summary of a ballot title must contain “a con-
cise and impartial statement” not exceeding 125 words
that “summariz[es] the * * * measure and its major effect.”
ORS 250.035(2)(d); see also McCann/Harmon v. Rosenblum,
354 Or 701, 708, 320 P3d 548 (2014) (the purpose of the
summary is “to give voters enough information to under-
stand what will happen if the initiative is adopted”); Witt
v. Kulongoski, 319 Or 7, 10 n 3, 872 P2d 14 (1994) (to the
Cite as 370 Or 681 (2022) 687
extent permitted by the statutory word limit, the summary
must describe a measure’s multiple subjects, purposes, and
effects). Petitioner contends that the summary in the cer-
tified ballot title for IP 5 should identify the “destabiliz-
ing impact on school funding” that would result from the
proposed measure’s adoption—specifically, the impact that
would flow from the requirement (stated here in petition-
er’s words) that “state school support dollars follow the
student[.]” See IP 5, § 5.b. (once enrolled in a school within
the chosen school district, that district “shall provide the
Open Enrollment Student with free and appropriate public
education”).
The Attorney General responds that the summary
appropriately omits any discussion about school funding,
reasoning that IP 5 would have no “direct effect” on how the
state funds public schools because it would not change cer-
tain aspects of current law. For example, she continues, by
statute, school funding is provided to school districts based on
the number of residents who attend. ORS 327.008 - 327.113.
And, when students transfer between districts pursu-
ant to an interdistrict transfer agreement, the funding
already follows the student. See OAR 581-021-0019(2)(a)
(pursuant to ORS 339.127 (cited earlier), a school district
may enroll a nonresident student “and receive State School
Fund money for the student” if the affected school districts
and the student’s parent (or guardian or person in a paren-
tal relationship) all have signed an Interdistrict Transfer
Agreement).
On the one hand, the Attorney General is correct
that IP 5 might not directly affect the current statutory
scheme pertaining to school funding.4 And, of course, the
extent of the potential impact of the proposed measure on
school district finances cannot be presently known. See gen-
erally Ascher v. Kulongoski, 322 Or 516, 523, 909 P2d 1216(1996) (summary did not require modification to describe
an anticipated, but not expressly identified or measured,
loss of federal funding that would result from adoption of
4
The Attorney General appears to agree with petitioner’s assessment that,
pursuant to section 5.b., IP 5 would require state school support dollars to follow
the student.
688 Scott-Schwalbach v. Rosenblum
proposed measure). But it is not speculative that IP 5, as
a constitutional matter, would require a chosen school dis-
trict to provide an open enrollment student “with free and
appropriate education,” for as long as the student remains
enrolled in that district. IP 5, § 5.b. Neither is it speculative
that the measure, if adopted, would have some fiscal impact
on school districts, to the extent that parents exercise their
new right: For each parent who selects and sends their child
to a school outside their home district, the home district
would experience a fiscal impact, because funding must fol-
low the student.
In short, IP 5 would have a nonspeculative fiscal
consequence attributable to the rule that funding follows
the student—a feature of present law that is not mentioned
in the Attorney General’s proposed ballot title, and without
which voters cannot appreciate that effect of the measure.
Although we disagree with petitioner that the summary
must describe what he characterizes as the potential “desta-
bilizing” impact on school funding that would flow from
adoption of the proposed measure, we conclude that it must
contain information sufficient to inform voters that parents’
exercise of the new constitutional right would have the non-
speculative fiscal consequences that we have described. See
generally Caruthers v. Myers, 343 Or 162, 169-70, 166 P3d
514 (2007) (citing Kain/Waller, 337 Or at 40-44, in the con-
text of discussing summary requirements, for the proposi-
tion that “a particular feature of a proposed measure may,
depending on its prominence and centrality, be either the
‘subject matter’ or an ‘effect’ of that measure”); Caruthers,
343 Or at 169-70 (summary for a proposed statewide law
concerning residential tax assessments must mention what
the court characterized as an unquestionable and “notice-
able loss of revenue that will have a significant impact
through the local government system” if the proposed mea-
sure were adopted).5 The summary accordingly must be
modified.
5
Cf. Kane v. Kulongoski, 319 Or 88, 91, 272 P3d 981 (1994) (explaining that,
although the fiscal effect of a measure may qualify as a major effect that must
be included in the summary, such effects must be clear, not merely speculative;
declining to require summary to include a “prediction” about the potential fiscal
impact of a proposed repeal of constitutional property tax limits).
Cite as 370 Or 681 (2022) 689
III. CONCLUSION
In sum, we conclude that the caption, the “yes”
result statement, and the summary of the certified ballot
title for IP 5 all require modification. We therefore refer
the ballot title to the Attorney General for modification, as
described in this opinion.6
The ballot title is referred to the Attorney General
for modification.
6
We have considered petitioner’s other challenges to the certified ballot title
for IP 5 and have concluded that none has merit under the “substantial compli-
ance” standard set out in ORS 250.085(5).
690 Scott-Schwalbach v. Rosenblum
APPENDIX
OPEN ENROLLMENT AMENDMENT
Whereas, every Oregon child deserves an equal opportunity
to receive a quality education;
Whereas, an Oregon family’s zip code or income level should
not be a barrier to what education their children receive;
Whereas, parents are now aware that education comes in
different forms, some of which do not fit the needs of their
children;
Whereas, no child should be trapped in a particular school
or form of schooling that does not fit the educational needs
of the child;
Whereas, parents have the primary right and duty to edu-
cate their children;
Whereas, parents are uniquely aware of what is best for
their children;
Whereas, parents want to choose the schooling options
to ensure that their children receive the best education
possible;
Therefore, Be It Enacted by the People of the State of Oregon:
OPEN ENROLLMENT AMENDMENT
1. This Section is added to Article VIII of the Oregon
Constitution. This Section shall be called the Open
Enrollment Amendment.
2. Each Parent has the right to choose the Public School
which the Parent’s Child attends as provided in this
Section.
3. For purposes of this Section:
a. “Parent” means an Oregon resident who is a par-
ent, guardian, custodian or other person with the
authority to act on behalf of the Child.
b. “Child” means an Oregon resident of school atten-
dance age for grades Kindergarten through twelfth
Cite as 370 Or 681 (2022) 691
grade (“K-12”) who is eligible to enroll in an Oregon
K-12 public school.
c. “Public School” means an Oregon public school pro-
viding education to any child in K-12, including
charter schools.
d. “School District” means a public school district
established by the state.
e. “Attendance Zone” means an area within a School
District that is designated as the assigned area in
which resident parents send a child to a specific
Public School.
f. “Resident School District” means the School District
in which the Child resides.
g. “Chosen School” means the Public School chosen by
the Parent for the Child to attend under this Section.
h. “Chosen School District” means the School District
that includes the Chosen School.
i. “Equitable Lottery” means the process to select a
Child to attend a Chosen School under this Section
in the event that there are more applicants who
wish to attend a Chosen School than there is space
in the Chosen School. The process must give each
participating Child an equal chance of selection.
j. “School Year” means the time Oregon public school
students receive education services during a twelve-
month period.
4. As a method of voluntary school choice for a Child, a
Parent whose Child is not then subject to expulsion or
suspension in the Child’s current school has the right
throughout each School Year to choose any Public School
within the state for the Parent’s Child to attend, for the
appropriate grade level. Except as provided below, the
Chosen School District shall then admit a Child for
enrollment at the Chosen School under this Section.
a. For any classroom space or program in the Chosen
School for each School Year, a Child who is a resident
692 Scott-Schwalbach v. Rosenblum
of the Attendance Zone of the Chosen School shall
be given first priority if the Chosen School has an
Attendance Zone; any other Child who is a resident
of the Chosen School District shall be given second
priority; and a Child who is not a resident of the
Chosen School District shall be given third priority.
b. The Chosen School District may deny a Child out-
side the Attendance Zone of the Chosen School per-
mission to enroll in the Chosen School if there is
no remaining classroom space or capacity within a
particular program, unless enrollment is required
by federal law. Prior to denying the Child, the
Chosen School District shall make every possible
reasonable and good faith effort to accept the Child
under this Section.
c. If there are more applicants for the Chosen School
than there are remaining spaces available for the
same priority level, the Chosen School District shall
select a Child to attend the Chosen School by an
Equitable Lottery process.
d. In selecting a Child to attend the Chosen School,
the Chosen School District may not deny consent
nor give priority based on race, religion, creed, sex,
gender, ethnicity, political belief, national origin,
disability, terms of an individualized education pro-
gram, income level, proficiency in the English lan-
guage or athletic ability.
e. Once a Child is admitted for enrollment by the
Chosen School, the Child shall become an Open
Enrollment Student.
5. An Open Enrollment Student shall be considered a res-
ident of the Chosen School District.
a. The Chosen School District shall accept all credits
toward graduation earned by the Child in any pre-
vious School District, private school, or homeschool.
b. Once enrolled in a school within the Chosen School
District, and unless expelled, the Chosen School
District shall provide the Open Enrollment Student
Cite as 370 Or 681 (2022) 693
with free and appropriate public education, and the
Open Enrollment Student shall not need to reapply
in subsequent years for enrollment in the Chosen
School District.
c. Except as required by federal law, the Chosen School
District shall not be required to provide transpor-
tation outside the Attendance Zone of the Chosen
School District to an Open Enrollment Student.
d. The Resident School District shall provide the
Chosen School District with a complete copy of the
Open Enrollment Student’s school records.
6. To enable a Parent to make an informed decision about
open enrollment under this Section, each School District
shall make readily and easily available to a Parent of
the School District detailed information about the state-
wide, year-round open enrollment application process,
including a simple statewide application form, how and
where to obtain and submit the application form, whom
to contact with questions about open enrollment, and
when and how notification of acceptance or denial will
be provided to the Parent by the School District.
7. This Section applies to schooling provided from July 1,
2025, onwards.