Greater Hts Academy v. Zelman

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiffs-Appellants, -
GREATER HEIGHTS ACADEMY, et al.,
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No. 06-4162
v.
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DR. SUSAN TAVE ZELMAN, et al., -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 06-00498—Algenon L. Marbley, District Judge.
Argued: March 12, 2008
Decided and Filed: April 18, 2008
Before: KEITH, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Albin Bauer II, EASTMAN & SMITH, Toledo, Ohio, for Appellants. Reid T. Caryer,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF:
Albin Bauer II, EASTMAN & SMITH, Toledo, Ohio, for Appellants. Reid T. Caryer, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
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OPINION
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DAMON J. KEITH, Circuit Judge. This case arises from a 42 U.S.C. § 1983 Fourteenth
Amendment claim filed by two Ohio community schools, Greater Heights Academy and W.C. Cupe
Community School (“Appellants”), against three Ohio public officials, Dr. Susan Tave Zelman,
Ohio Superintendent of Public Instruction, Dr. Paulo A. DeMaria, Associate Superintendent for the
Center for School Finance of the Ohio Department of Education (ODE), and Todd L. Hanes,
Director of ODE’s Office of Community Schools (collectively, “Appellees”). Appellants sought
injunctive relief consisting of a prayer for the receipt of state educational funds pursuant to Ohio
Rev. Code § 3314.08 and an opportunity for a hearing prior to the denial of funding. Concluding
that community schools are political subdivisions and barred from asserting Fourteenth Amendment
claims against state officials, the district court dismissed Appellants’ suit under Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief may be granted. The sole issue on appeal is
whether Appellants are political subdivisions that therefore cannot invoke the protection of the
Fourteenth Amendment against the state of Ohio.
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I.
Ohio community schools, also known as “charter schools,” provide non-traditional public
education to students from kindergarten through grade twelve. Chapter 3314 of the Ohio Revised
Code sets forth the operation and funding of community schools. All community schools contract
with an authorized “sponsor” that provides oversight and support to the school, ensuring that they
comply with state requirements. Ohio Rev. Code §§ 3314.02(C)(1), (D); Ohio Admin. Code § 3301-
102-05. The sponsor may be either a public educational entity or a 501(c)(3) tax-exempt entity.
Ohio Rev. Code §§ 3314.02(C)(1)(a)-(f). Additionally, the sponsorship contract must comply with
the criteria of Ohio Revised Code § 3314.03. Sponsors decide whether to place a community school
on probation, suspension, or permanently terminate the community school’s contract because of
non-compliance with state and federal educational requirements. Ohio Rev. Code §§ 3314.07,
3314.072, 3314.073. In turn, sponsors must seek ODE approval for preliminary agreements,
according to criteria, procedures, and deadlines established by the ODE. Ohio Rev. Code
§ 3314.015(B). The ODE, in addition, may revoke approval of a sponsor and assume direct
sponsorship of a community school in the event that a sponsor becomes unwilling or unable to
complete its duties. Ohio Rev. Code § 3314.015(C).
Ohio community schools are financed solely by state educational funds that are diverted from
Ohio school districts and awarded on a per pupil basis. Ohio Rev. Code § 3314.08. Under ODE
funding procedures, after community schools submit their enrollment data, traditional school
districts are permitted to “flag” certain students who they believe do not actually attend the
community school. Traditional public schools and state officials may later remove the error flag.
Where error flags remain, the state automatically denies payment for flagged students. Disputes
about flagged students may be resolved during the ODE’s “reconciliation” period. In this case, the
Cleveland Municipal School District and Columbus City School District flagged a number of
students on Appellants’ lists. As a result, Appellants did not receive payment for those students.
They were not provided the opportunity for a hearing prior to the denial of payment.
II.
Appellants contend that the district court erred in finding that Appellees are ‘political
subdivisions’ and therefore unable to invoke the protections of the Fourteenth Amendment. This
Court reviews a district court’s dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) de novo.
Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir. 1997); Allard v. Weitzman (In re
DeLorean Motor Co.), 991 F.2d 1238, 1239-40 (6th Cir. 1993).
It is well established that political subdivisions cannot sue the state of which they are part
under the United States Constitution. City of Trenton v. New Jersey, 262 U.S. 182, 186-87, 43 S.
Ct. 534, 67 L. Ed. 937 (1923) (With respect to political subdivisions, “the state is supreme and its
legislative body . . . may do as it will, unrestrained by any provision of the Constitution of the United
States.”); City of Newark v. New Jersey, 262 U.S. 192, 196, 43 S. Ct. 539, 67 L. Ed. 943 (1923)
(“The regulation of municipalities is a matter peculiarly within the domain of the state.”); South
Macomb Disposal Auth. v. Washington Twp., 790 F.2d 500, 505 (6th Cir. 1986) (“The relationship
between [political subdivisions] is a matter of state concern; the Fourteenth Amendment protections
and limitations do not apply.”). An entity is a political subdivision of a state if it is a creation of the
state, if its power to act rests entirely within the discretion of the state, and if it can be destroyed at
the mere whim of the state, “unrestrained by any provision of the Constitution of the United States.”
See City of Trenton, 262 U.S. at 187; see also South Macomb Disposal Auth., 790 F.2d at 504(“Being a subdivision of the state, the ‘State may withhold, grant or withdraw powers and privileges
[from a municipality] as it sees fit.’” (quoting id. at 187) (alteration in original)). In determining
whether a particular entity is a political subdivision, courts look to statutory and case law. South
No. 06-4162 Greater Heights Academy, et al. v. Zelman, et al. Page 3
Macomb Disposal Auth., 790 F.2d at 506; Delta Special Sch. Dist. No. 5 v. State Bd. of Educ. for
Ark., 745 F.2d 532, 533 (8th Cir. 1984).
After considering Ohio’s statutory and case law, as well as the substantive control that Ohio
exerts on its community schools, it is apparent that community schools are political subdivisions of
the state. First, Ohio’s statutory law establishes community schools as political subdivisions.
Section 2744.01(F) of the Ohio Revised Code defines “‘[p]olitical subdivision’ or ‘subdivision’ [as]
a municipal corporation, township, county, school district, or other body corporate and politic
responsible for governmental activities in a geographic area smaller than that of the state. ‘Political
subdivision’ includes, but is not limited to, a . . . community school established under Chapter 3314.”
(emphasis added). As a political subdivision, community schools are immune from liability in civil
actions. Ohio Rev. Code § 2744.02(A)(1).
Ohio’s collective bargaining statute similarly enumerates community schools as one of
Ohio’s political subdivisions, stating that “public employer” “means the state or any political
subdivision of the state . . . including . . . [the] governing authority of a community school
established under Chapter 3314. [sic] of the Revised Code.” Ohio Rev. Code § 4117.01(B). In
addition to Ohio statutory law, the Ohio Supreme Court has expressly found that community schools
are political subdivisions for which the state may assume debt. State ex rel. Ohio Congress of
Parents & Teachers v. State Bd. of Educ., 111 Ohio St. 3d 568, 586, 857 N.E.2d 1148 (2006).
Community schools, moreover, bear many of the characteristics of a political subdivision
under the control of the State. Like other political subdivisions, “the State may withhold, grant or
withdraw powers and privileges [from a community school] as it sees fit. However great or small
its sphere of action, it remains the creature of the State exercising and holding powers and privileges
subject to sovereign will.” South Macomb Disposal Auth., 790 F.2d at 504 (quoting City of Trenton,
262 U.S. at 187) (quotation marks omitted). For instance, community schools were created by state
legislation. See Ohio Rev. Code Chapter 3314. Section 3314.01(B) of the Ohio Revised Code
expressly characterizes community schools as “public school[s], independent of any school district,
and part of the state’s program of education.” Moreover, both community school students and
traditional public school students must pass the same proficiency, achievement, and diagnostic tests.
Ohio Rev. Code § 3314.03(A). They are also subject to the same facility requirements and health
and safety standards. Ohio Rev. Code § 3314.05. Although sponsors are responsible for overseeing
compliance with state regulations, Ohio Rev. Code §§ 3314.07, 3314.072, 3314.073, sponsors are
under the command of the ODE. The ODE approves and monitors sponsors, and “[i]f a sponsor
becomes unwilling or unable to complete its duties, the ODE may revoke approval to act as a
sponsor and assume direct sponsorship of the community school in question for up to two years.”
State ex rel. Ohio Congress of Parents & Teachers, 111 Ohio St. 3d at 570; Ohio Rev. Code
§ 3314.015.
Furthermore, community schools must conform to a variety of general state regulations.
They are required to comply with public records laws and the same bookkeeping standards as
traditional public schools. Ohio Rev. Code §§ 149.43, 3314.03(A)(8). They must also abide by
open meeting laws governing political subdivisions. Ohio Rev. Code §§ 121.22, 3314.03(A)(11).
Moreover, community school teachers receive the benefits of the Ohio public retirement system.
Ohio Rev. Code § 3307.01. Ohio also raises taxes for the purpose of funding community schools,
Ohio Rev. Code § 3314.08, and funds remaining upon a community school’s closing are returned
to the state’s general fund. Ohio Rev. Code § 3314.074(A). Additionally, community schools must
be open to all residents with narrow exceptions and must be nonsectarian and non-discriminatory.
Ohio Rev. Code §§ 3314.06(A), 3314.03(D)(1).
Given the statutory and case law expressly naming community schools as political
subdivisions, as well as the many institutional characteristics of community schools that establish
No. 06-4162 Greater Heights Academy, et al. v. Zelman, et al. Page 4
their position as part and parcel of Ohio’s system of public education, the district court did not err
in finding that community schools, as political subdivisions, are barred from invoking the
protections of the Fourteenth Amendment. Ohio has created community schools “to give parents
a choice and give educators ‘the opportunity to establish limited experimental educational programs
in a deregulated setting.’” State ex rel. Ohio Congress of Parents & Teachers, 111 Ohio St. 3d at
576 (quoting 1997 Am. Sub. H.B. No. 215, § 50.52, Subsection 2(B), 147 Ohio Laws, Part I, 2043).
In conducting this experiment, however, Ohio has not relinquished its power to create, govern or
even destroy community schools. Accordingly, we hold that the relationship between Ohio
community schools and traditional public schools “is a matter of state concern; the Fourteenth
Amendment protections and limitations do not apply.” South Macomb Disposal Auth., 790 F.2d at
505.
III.
For the aforementioned reasons, we AFFIRM the decision of the district court.