The Franklin County Court of Common Pleas has issued a temporary restraining order (“TRO”) blocking Governor DeWine and other state agents from implementing the provisions of Ohio House Bill 33 (“HB 33”) that create the Department of Education and Workforce (“DEW”) and strip the State Board of Education of many of its powers. Under the provisions of HB 33, the Ohio Department of Education would be reorganized into the DEW. The DEW would be run by a Director appointed by the Governor. The State Board of Education would have the majority of its powers transferred to the DEW and would retain control of educator licensure and school district territory transfers. These changes were scheduled to take effect on October 3, 2023.
On September 19, 2023, seven members of the State Board of Education filed a lawsuit against the State of Ohio and Governor DeWine in the Franklin County Court of Common Pleas regarding the formation of the DEW through HB 33. The Plaintiffs allege the provisions of HB 33 that pertain to the creation of the DEW violate the Ohio Constitution. The Complaint styles this portion of HB 33 as the “Education Takeover Rider.” The Education Takeover Rider consists of more than 1,300 pages of HB 33.
According to the Complaint, the provisions of the Education Takeover Rider were originally contained in Senate Bill 1 (“SB 1”). However, SB 1 stalled in committee and was never voted on by the General Assembly. Provisions originally found in SB 1, that were added to HB 33, included the creation of statutes that: (1) create the Department of Education and Workforce (the “DEW”); (2) mandate that the DEW be headed by a Director appointed by the Governor with the advice and consent of the Ohio Senate; (3) mandate that the Director appoint two Deputy Directors; and (4) transfer nearly all of the Board’s duties and responsibilities to the Director.
The Complaint alleges that the Education Takeover Rider was added during a “last-minute” Senate conference committee and was never voted on by the House. The Complaint alleges that the Education Takeover Rider is a different subject than the primary purpose of HB 33; thus, its inclusion is prohibited by Article II, Section 15(D) of the Ohio Constitution. The Complaint further alleges that the Education Takeover Rider is unconstitutional because it was only read one time, in violation of the three-reading rule of Article II, Section 15(C) of the Ohio Constitution. Finally, the Complaint alleges that the Education Takeover Rider is unconstitutional because it turns the State Board into an “empty shell” by removing its powers in violation of Article VI, Section 4 of the Ohio Constitution. The Complaint seeks a declaratory judgment from the court that the Education Takeover Rider is unconstitutional. The Complaint also seeks “temporary, preliminary and permanent injunctive relief” which would prohibit the Education Takeover Rider from going into effect – including prohibiting Governor DeWine from appointing a Director of the DEW.
On September 21, 2023, the Court granted Plaintiffs’ request for a TRO regarding the Education Takeover Rider portion of HB 33. To establish entitlement to a TRO, a party must demonstrate: (1) a substantial likelihood of success on the merits; (2) imminent threat of irreparable harm if the TRO is not granted; (3) the absence of harm to others if the TRO is granted; and (4) that the public interest would be served by the issuance of a TRO.
In granting Plaintiffs’ request for a TRO, the Court only found it necessary to review Plaintiffs’ first argument – that the inclusion of the Education Takeover Rider violates the “single-subject rule continued in Article II, Section 15(D) of the Ohio Constitution.” This provision states, in relevant part: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The Court found that Ohio courts have held this provision exists to prevent the General Assembly from engaging in “logrolling.” The Court explained that “logrolling” occurs when legislators “combine a disharmonious group of proposals in a single bill so that they may consolidate votes and pass provisions that may not have been acceptable to a majority on their own merits.” The Court concluded that the “primary subject” of HB 33 was “balancing state expenditures against state revenues to ensure continued operation of state programs.” The Court also concluded that the Education Takeover Rider provisions cited by Plaintiffs “appear to relate to a different subject.”
In granting the TRO, the Court concluded:
- There is a substantial likelihood that Plaintiffs will prevail on the merits of their claims and that inclusion of the Education Takeover Provision violates the single-subject rule.
- Plaintiffs have made the requisite showing of irreparable harm if the injunction is not granted.
- No third parties will be unjustifiably harmed by an injunction.
- Enjoining the implementation of the Education Takeover Provision while the merits of Plaintiffs’ challenges are heard by the court serves the public’s interest in ensuring that the General Assembly passes, and the Governor enforces, only constitutional legislation.
Consequently, Governor DeWine (and other state agents) are enjoined from implementing, enforcing or acting pursuant to R.C. 3301.13, 3301.111, 3301.12 and 3301.07. This includes:
- Creating the DEW as contemplated by R.C. 3301.13(A);
- Appointing a director of the DEW as contemplated by R.C. 3301.13(A); and
- Transferring all of the State Board’s powers and duties to the DEW as contemplated by R.C. 3301.13(C).
A hearing on Plaintiffs’ request for a preliminary injunction is set for October 2, 2023.
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Weston Hurd LLP attorneys regularly assist school districts in all aspects of school law. For further information please contact Christina Peer at cpeer@westonhurd.com or any of the education law attorneys.
