COLUMBUS, Ohio — A Columbus judge has punted the GOP effort to overhaul the K-12 public education system by taking the power away from the Ohio Dept. of Education and giving it to the governor's office. This is going to create a crisis, according to Gov. Mike DeWine.
On Tuesday, the Ohio Department of Education should cease to exist, according to new state law. What it is replaced with is the Department of Education and Workforce, which falls underneath the governor's oversight.
At 5 p.m. Monday, Franklin County Judge Karen Held Phipps decided that the temporary restraining order against the overhaul that is currently in effect would remain in place until Oct. 5, then saying until a decision is made in the case. News 5 is trying to clarify if that means a decision is coming out on Thursday.
The people Ohioans voted for to oversee primary and secondary education may lose their duties unless a court permanently stops the state.
"There's a democratically-operated opportunity for the citizens to weigh in state school policy," Board member Teresa Fedor said. "That goes into a black hole if we don’t get this injunction."
Right now, the board is responsible for what K-12 education looks like in the state.
Starting after the Nov. 2022 election, seven of the 11 elected seats are held by Democrats. The elected seats ensure that the total board can't pass all resolutions it wants, since it needs a 2/3 majority. Of the 19 total seats, eight were appointed by Gov. DeWine. Now, with 12 GOP seats, a Democrat would need to switch over for policy to pass. This could change depending on attendance.
But a provision in the state budget strips the members from developing education policy, establishing financial standards and implementing programs. Those duties would be given to the governor's new Department of Education and Workforce.
Fedor and six other members filed a lawsuit, arguing the state constitution protects the state board’s independence.
Held Phipps issued a temporary restraining order (TRO) on the change in mid-September.
Read more about the lawsuit on News 5 Cleveland's media partner Ohio Capital Journal.
This is a power grab, Fedor added.
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"The constitution outlines that we are the ones that control what duties and responsibilities you have," state Rep. Josh Williams (R-Oregon) said. "You can't grab something from someone else when you have the right to it."
The board is unaccountable, Williams said. The BOE has failed to find a superintendent and delayed their actual jobs to debate culture war issues they have no jurisdiction over.
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"We have lost faith and confidence in our state board," the lawmaker added.
Case Western Reserve University law professor Jonathan Entin helped explain that this is a gray area in the law.
"The legal question is: what's the line between the constitutional provisions that protect the independence of the state board of education and the legislature's discretion to structure some of the day-to-day responsibilities?" Entin said.
The TRO makes Fedor feel optimistic, she said.
"Pause on the transfer of powers under the governor's bureaucracy and people can continue to rely on the elected school board members to be their voice," Fedor said.
With all of the uncertainty, Gov. Mike DeWine and Lt. Gov. Jon Husted held a joint press conference after the decision.
Although the administration is opposing the lawsuit, they are following the court's orders — despite that causing "what would appear at least to be a crisis," DeWine said.
"A literal reading of the court's order would mean that tomorrow morning, there would be no department in existence at all to exercise the normal and historic functions of the Department of Education, which oversees the school systems of the State of Ohio," DeWine said in the rather confusing press conference.
DeWine seemingly held the event to clarify that he, like the journalists, was confused about how Tuesday will work.
"I can't let this chaos, which will ensure to start tomorrow, actually happen," he said.
It is unclear how DeWine plans to control this situation when his hands are tied.
Both the governor and Husted argued that the court needed to stop the TRO. Statehouse reporter Morgan Trau asked the pair if this whole situation could be comparable to a government shutdown, since employees wouldn't be able to do their jobs or technically, get paid, under the new department.
Everyone who shows up to work will get paid, the governor assured, but then provided more commentary on his frustration.
"These are essential functions of government — these are our kids, for heaven's sake," the governor responded. "We got a court order that's not totally clear. We are going to follow it. We're gonna do what it tells us to do that we can understand, but we have to be about the people's business."
Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.
