Update on Ohio’s Controversial Territory Transfer Law

Update on Ohio’s Controversial Territory Transfer Law

OEPI’s Winter/Spring 2020 newsletter provided an overview of the issues involved in the changes made to the “Territory Transfer” provisions of the Ohio Revised Code as part of the FY20-21 budget bill (HB 166), passed in July 2019.  This article recaps the new territory transfer provisions and the issues involved with the new rules that allow certain township residents to place territory transfer petitions directly on the ballot.  This article also provides an update on the outcomes of territory transfer petitions on the March/May primary and August special election ballots as well as those petitions that will be placed on the November ballot. Finally, this article provides an update on a recent federal court ruling on the provision.

The New Territory Transfer Ballot Petition Provision
At almost literally the 11^th hour in the FY20-21 budget process in late June 2019, the legislature included a provision in the Conference Committee’s version of the budget bill which provides a much easier route for certain township residents to move from one school district to another. This provision, which had originally been included in the House-passed version of the budget, was removed by the Senate and then subsequently added back during the conference committee process. Contained in Ohio Revised Code 3311.242, it allows residents of a township that is located in more than one school district to vote to move their property from one school district to another.

Whereas existing Ohio law required the State Board of Education to approve the transfer of any territory from one school district to another, the newly enacted legislation allows any number of residents of a township which is located in more than one school district to file a petition proposing the transfer with the county board of elections, with a vote at the next primary, general or special election. The only requirement of the petition is that it must contain the signatures of at least 10% of the individuals residing in the territory proposed to be transferred who have voted in the most recent general election. Crucially, only the electors residing in the territory proposed to be transferred would be allowed to vote at the election on whether the territory transfer should be approved, with only a simple majority vote required for approval. Other township residents and residents of the school districts that the territory would be transferred from or to are not allowed to vote on the territory transfer.

Additionally, the newly enacted legislation does not establish a minimum number of petitioners required, which means that a single person could successfully file a territory transfer petition as long as they voted in the most recent general election. Furthermore, in the event that there is more than one petitioner, there is no requirement that the petitioners live adjacent to one another, meaning that the territory to be transferred can be a series of unconnected parcels as long as the parcels in question are adjoining to the boundary of the school district to which they are transferring. Imagine a street where residents in every other home wish to be transferred to a different school district. A petition that has each of these houses included would be valid (so long as the petition contains the signatures of at least 10% of the qualified electors who voted in the last general election), and only those in the proposed transfer area would be allowed to vote.

This law also allows residents who may not want their property included in the territory transfer to be included in the petition. As stated above, a petition to transfer territory from one district to an adjoining school district requires only 10% of the qualified electors voting in the last general election to sign the petition. By way of example, this means that a petition to transfer may be filed that includes homes in which families intentionally purchased their properties in a particular school district to ensure their children attend a neighborhood elementary school. They would have no say as to whether their property is included in the proposed property transfer placed on the ballot as long as the 10% threshold is satisfied. It is also important to note that these property transfer decisions are made by a simple majority vote. Therefore, the only way for these property owners to prevent their properties from being transferred is for a majority of the property owners included in the proposed territory to vote “no” in the election. As reflected in Table 1 below, some of the ballot issues have resulted in split votes, with these communities reporting stories of neighbors pitted against neighbors.

Finally, the newly enacted law could have a much larger impact statewide than even many close observers of Ohio education policy matters might expect. There are 1,309 townships in Ohio that contain multiple school districts. They represent a 2010 collective population of almost 5.7 million people– nearly half the state. Furthermore, according to Policy Matters Ohio, over 500 school districts in Ohio share a township with another district, which would make them eligible for the new transfer process.  Clearly, the potential impact of this new territory transfer provision on Ohio school district boundaries could be much more significant than many might have expected at the time that it was enacted.

Territory Transfer Petitions on the Ballot Thus Far
Two territory transfer petitions were filed in time for the March 2020 Primary Election and both impacted the Plain Local School District in Stark County. One petition was filed by a group of eight homeowners located on a cul-de-sac in Plain Local. They petitioned for their properties to be transferred to North Canton City Schools. However, the first petition filed was by a small group of residents of the Village of Hills and Dales. These petitioners requested that their territory be transferred from Plain Local School District to the Jackson Local School District. Plain Local, which stands to lose over $600,000 as a result of the territory transfer, filed suit in a federal court to block the action on the basis that the new process denies them due process and also that it could increase segregation and undermine students’ rights to an equal education.

The fact that the residents of Hills and Dales were the first to exercise their rights under the new law should be no surprise as the State Board of Education blocked a previous attempt by more than 100 Hills and Dales residents to transfer from Plain Local to Jackson Local in 2005. This decision was later upheld by the Ohio Supreme Court. More recently, Hills and Dales village council minutes from February 2018 recorded the village’s desire for an alternative to the existing territory transfer process.

Both Stark County territory transfer petitions were approved at the ballot in the primary, which was delayed from March to May.

Eight different petitions were filed in Wood County for the August 4, 2020 special election by residents wishing to transfer from the Bowling Green City School District to five different adjoining school districts, including Patrick Henry Local, Elmwood Local, Eastwood Local, McComb Local and Otsego Local. Four of the eight territory transfer petitions were approved by voters (see Table 1 below).  Since the eight petitions were the only issues on the ballot, the school district is required pay all costs for the election.

Finally, two territory transfer petitions have been placed on the November 3, 2020 general election ballot.  One petition would transfer a portion of Washington Township in Sandusky County from the Fremont City School District to the Gibsonburg Exempted Village School District, and the second petition would transfer a portion of Laurel Township in Hocking County from the Logan Elm Local School District to the Logan-Hocking Local School District.

Table 1 below provides a summary of the territory transfer petitions placed on the ballot in 2020 as a result of the newly implemented law.  Note that two of the Bowling Green territory transfer petitions (McComb Local & Patrick Henry Local #3) passed by a vote of 1-0, demonstrating that the contention above that a single property owner could unilaterally decide to move from one school district to another without the consent of either school district is not just a theoretical construct.

Table 1: Territory Transfer Provisions Placed on the Ballot in 2020

Prospects for Change
Based on the above description, it would be difficult to find another piece of legislation passed in Ohio in recent memory as undemocratic as the new territory transfer provision. When faced with a law which enables a small minority of voters to unilaterally choose their school district in contradiction to more than 60 years of legally established territory transfer practice, there are only two options for nullifying it: the first is for the Plain Local federal lawsuit to result in a ruling that the law is unconstitutional, and the second is for the legislature to simply repeal it.

Recognizing the severity of the precedent that was being set, the Ohio House of Representatives in early 2020 amended Senate Bill (SB) 89 to place a sunset provision on the new territory transfer law. The sunset provision would have effectively repealed the new territory transfer provision on September 1, 2020.  However, SB 89 was also tied to the EdChoice voucher debate, and differences between the House and Senate versions of the bill had not been resolved when the legislature recessed in late March 2020 in the midst of the Coronavirus health emergency. As a result, SB 89 has not yet been brought to a vote and the September 1^st sunset date in the bill is now behind us. However, even if SB 89 had been passed, the September 1 date would still have allowed the eight Bowling Green territory transfer provisions to appear on the August ballot, as well as the Fremont and Logan Elm petitions now on the November ballot.

The next election in Ohio after the November 3^rd general election is the May 4, 2021 primary election. The deadline for placing issues on the ballot in Ohio is 90 days prior to the election date, which in the case of the May 2021 primary would be February 2, 2021. Thus, in order to put an end to this highly undemocratic practice, Ohio needs a piece of legislation enacted to repeal the territory transfer petition provision no later than February 2021 (which would make the May primary the last possible election date).

Federal Court Rules on Territory Transfer Law
Of course, the other option for putting an end to these undemocratic territory transfers is for Plain Local to receive a favorable ruling in its lawsuit.  In fact, on September 11^th, U.S. District Court Judge Michael H. Watson ruled that the territory transfer statute was unconstitutional because it violated the “one-subject” rule of the Ohio Constitution, which provides that no bill shall contain more than one subject, which should be clearly expressed in its title. In his decision, Judge Watson held that the territory transfer provision was a “mere rider tactically inserted into the must-pass budget bill in order to secure its passage” and “has no discernible practical, rational, or legitimate relationship to the state budget, and, therefore, its inclusion in the same violates the one-subject rule.”

This ruling renders RC 3311.242 unconstitutional and prevents the six territory transfers that have been approved by voters from proceeding. It also removes the statutory authority that previously supported the two territory transfers slated to be on the November ballot (however, it is possible that voters will still see the issues on their ballots due to the timing of the decision and when the ballot forms were printed). The Village of Hills and Dales can appeal this ruling, which of course could mean that Judge Watson’s lower court ruling could be overturned.

Finally, Judge Watson’s ruling was based only on the one-subject rule and therefore does not directly rule on the substantive merits of the case (namely that the territory transfer law could increase segregation and undermine students’ rights to an equal education).  This appears to leave open the door for the Ohio legislature to reinsert the territory transfer law into another piece of legislation to which it does bear a legitimate connection, or to attempt to enact it as its own stand-alone bill. Therefore, for those interested in seeing an end to this haphazard territory transfer process, a legislative solution seems both more expedient and more definitive than waiting for the Plain Local case to be fully resolved.