ODE versus Justice Gorsuch
By Cyndy Rees
On November 6, 2017, the Ohio Department of Education filed a brief in the ECOT litigation before the Ohio Supreme Court. ODE argues that the funding statute allows it to impose a “durational participation” standard on e-schools (and only on e-schools) such that its financial clawbacks on online schools are perfectly legal.
The main thrust of ODE’s argument appears to be that the Supreme Court must give “deference” to both the lower courts’ ruling and that “deference” must be given to ODE’s interpretation of any ambiguous language. For those not steeped in administrative law, “deference” is the last refuge of state (and federal) bureaucrats who want to impose their will on society, elected representatives and the judiciary be damned.
Relying upon what is known at the federal level as the “Chevron doctrine,” ODE’s case for “deference” is rooted in an infamous U.S. Supreme Court case that allowed agency deference over certain statutory interpretation questions.
Chevron deference has been in the news recently—as conservative legal scholars and defenders of democratic government decry the power awarded to unelected, agenda-driven agencies that too often appear beyond the reach of public accountability. In fact, the newest member of the U.S. Supreme Court, Justice Neil Gorsuch, has written eloquently about how the doctrine itself is unconstitutional, or he put it in a widely-circulated opinion, it is “a judge-made doctrine for the abdication of the judicial duty.”
Many conservative legal scholars agree.
As Ilya Somin writes in the Washington Post, “Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the president or to the bureaucrats that work for him in the executive branch. Indeed, a major part of the purpose of separation of powers is to ensure that the branch that enforces the law is separate from the one that has the final say over its interpretation. That is what enables the judiciary to serve as an effective check on the power of the other branches of government.”
In the ECOT case, ODE argues the funding statute makes the duration of student participation directly relevant to funding, and that ODE is allowed to define student participation for funding purposes as it sees fit.
Not surprisingly, in attacking ECOT’s argument to the contrary, the agency sets aside the legal doctrine of “Separation of Powers,” simply declaring it “has nothing to do with the case.” (ECOT had argued this doctrine precludes ODE from overstepping its authority).
Further, ODE seeks deference with respect to their interpretation of the word “offered.” Even though ECOT explained that “offering” learning opportunities does not necessarily equate to students “receiving” such opportunities, ODE asserts that as an administrative agency, they alone get to decide how to interpret the commonly used word. And in their view, “offered” can mean to “provide” or “supply.”
Finally, ODE disrespects former members of the General Assembly as “irrelevant” and “ECOT/Eschool Insiders” for their Amicus Brief supporting ECOT’s interpretation of the law. Retired lawmakers who submitted the brief include former Speaker of the Ohio House William G. Batchelder, former Chairman of the House Committee on Finance and Appropriations Charles Calvert, and former state representatives Mike Gilb, James Trakas, and Bryan Williams. ODE argues their collective view is entitled to absolutely “no weight.” But if the court were to give deference to anyone or any entity, it would be most logical for that deference to be directed toward elected members of the General Assembly who passed the funding statute to further school choice statewide. Not unelected bureaucrats bent on destroying it.
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