Supreme Court ponders ECOT's $60 million question
Mar. 2—COLUMBUS — For what was once Ohio's largest online charter school, what state lawmakers meant by the word "final" could be the $60 million question.
The Electronic Classroom of Tomorrow told the Ohio Supreme Court on Tuesday that it was entitled to appeal a decision by the State Board of Education that determined that the state had the right to claw back money for students the school couldn't prove it had taught.
But the state countered that, when lawmakers decided the board's decision was a "final" one, it was telling that it did not add the word "appealable."
The state has accused ECOT of trying to get two bites at the same apple, directly appealing the board's decision in Franklin County Common Pleas Court while simultaneously seeking a Supreme Court order against the board. The high court had dismissed the latter avenue in 2017, so ECOT proceeded in the lower courts where it ultimately lost and worked its way back up to the Supreme Court.
ECOT also accused the state of trying to have it both ways, challenging each avenue of appeal while simultaneously pointing at the other as the correct one.
"We've done our best to try to respond to them, but it's really been a struggle...," ECOT attorney Marion Little, Jr. said. "We simply did not know what position the Department (of Education) was going to take on any particular day of the week."
The state contends that the General Assembly was specific in other areas of statute in spelling out when an order was truly "final" and whether it was or was not subject to appeal. Absent the latter wording, it contends the word "final" in this case meant just that.
"If it does not use 'and appealable' in some way..., then you go to the ordinary meaning of 'final;" said Eric Clark, representing the department.
ECOT opened in 2000, offering a fully virtual education long before coronavirus forced K-12 schools across the state into that position last year.
The school closed in January, 2018, after the state determined that far fewer of its students had logged into the online system long enough to qualify as full time than the school had declared in order to collect per-pupil subsidies.
It determined that it had overpaid the school $60 million — eventually $80 million when another year was added — and began the gradual process of clawing back the money by withholding portions of payments due the school going forward.
As the walls around ECOT closed in, the Toledo-based Educational Service Center of Lake Erie West revoked its sponsorship. The school declared bankruptcy and shut both its literal and virtual doors, leaving roughly 12,000 students to find other options halfway through the school year.
ECOT contends the state changed its interpretation of what constitutes a full-time online student and then retroactively applied it to prior school years. It also contends that pending litigation could put school administrators and employees on the line personally for the funds involved.
Mr. Clark insisted the state was not inconsistent as it fought ECOT at both avenues of possible appeal.
"We only argued in mandamus (before the Supreme Court) that they can't seek both, which they did, which disqualified them from going forward in mandamus," he said.
Since the Supreme Court had simply dismissed that avenue without explanation in 2017, Mr. Clark argued that it's possible the court had considered the merits of ECOT's arguments rather than just the question of where an appeal was appropriate.
As for ECOT's filing simultaneous appeals in two different jurisdictions, Justice Pat DeWine asked, "What else would a good lawyer do in that position?"
Fifth District Court of Appeals Judge Scott Gwin, based in Canton, heard arguments in the place of the high court's newest member, Justice Jennifer Brunner. She sat on the 10th District Court of Appeals panel that ruled against ECOT at that level.
The Supreme Court did not immediately rule.
