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Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035
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IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
EAST CLEVELAND CITY SCHOOL
DISTRICT,
Plaintiff, : CASE NO. 18CVH-9035
v. : JUDGE K. BROWN
STATE OF OHIO, et al.
Defendants.
DECISION AND ENTRY
Rendered this 1% day of February, 2019
This matter is before the Court on the Defendants State of Ohio, the Ohio Department
of Education, and Superintendent of Public Instruction Paolo DeMaria’s (hereinafter
collectively “ODE”) Motion to Dismiss, filed on November 8, 2018. Plaintiff East Cleveland
City School District Board of Education (hereinafter “East Cleveland” or the “District”) filed
its Brief in Opposition on November 16, 2018. Amicus Curiae East Cleveland Education
Association OEA/NEA (hereinafter “East Cleveland Education Association”) and Amici
Curiae Ohio School Boards Association, Buckeye Association of School Administrators, Ohio
Association of School Business Officials, and Ohio Federation of Teachers: (hereinafter
“OSBA Amici”) filed briefs in opposition on that same date. Defendants filed their Reply in
Support on November 21, 2018.
This matter is also before the Court on Plaintiff's Motion for Leave to File Second
Amended Complaint Instanter and Plaintiff's Motion to Compel Discovery, both filed
November 30, 2018. Defendants filed their briefs in opposition on December 14, 2018.
Plaintiff filed its replies in support on December 21, 2018.
1 Amici’s Motion for Leave to File, filed on that same date, is unopposed and is hereby granted.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035
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The motions are ripe for consideration by the Court.
INTRODUCTION
During the 2014-2015 school year, ODE was scheduled to begin issuing state report
cards to districts in Ohio, evaluating them on various criteria. (Amended Compl. P9.) Asa
general matter, that report card includes grades on performance measures in six components,
which reflect a school district’s performance and combine to determine a school district’s
overall grade. R.C. 3302.03(C)(3), O.A.C. Chapter 3301-28. Each component receives the
following weight, which when added together, set the overall grade:
Component Weight Towards Overall Grade
Achievement 20 percent
Progress 20 percent
Graduation Rate 15 percent
Gap Closing 15 percent
Improving At-Risk K-3
Readers 15 percent
Prepared for Success 15 percent
The overall grade is used for a variety of purposes.
Due to testing errors that occurred during the 2014-2015 testing assessments, the 1315t
General Assembly created and passed House Bill 7 to insulate students and school districts
from the 2014-2015 state test results. (Amended Compl. P11.) H.B. 7 expanded R.C.
3302.036, commonly known as “Safe Harbor,” which prevented ODE from assigning overall
letter grades to any school district or building for the 2014-2015 school year. (Id. P12.) While
ODE was permitted to “assign an individual grade to any component,” the report card ratings
for the 2014-2015 school year “[would] have no effect in determining sanctions or penalties”
including use to identify school districts subject to an Academic Distress Commission
(hereinafter “ADC”). 131st General Assembly H.B. 7, R.C. 3302.036.
On June 24, 2015, the 131s' General Assembly passed Amended House Bill 70
(hereinafter “H.B. 70”). (Motion Ex. A.) The ADC statute in H.B. 70 states that the
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superintendent of public instruction shall establish an academic distress commission for any
school that “has received an overall grade of ‘F’ under [R.C. 3302.03(C)] for three consecutive
years.” R.C. 3302.10(A)(1). H.B. 70 also enacted the following uncodified law (hereinafter
the “Uncodified Law”):
If the requirement to assign an overall letter grade for school districts under
division (C) of section 3302.03 of the Revised Code is delayed beyond the
report card issued for the 2015-2016 school year, the Department shall use
equivalencies for the purposes of section 3302.10 of the Revised Code until
such time as the Department is authorized to assign an overall letter grade for
districts:
(2) | Acombination of a grade of “F” for the performance index score and a
grade of “F” for the value-added progress dimension under division (C) of
section 3302.03 of the Revised Code shall be equivalent to an overall letter
grade of “F.”
(Motion Ex. A, H.B. 70, Sec. 6). H.B. 70 was signed by the Governor on July 16, 2015. (Id.)
On June 26, 2015, the 1315t General Assembly passed the Fiscal Year 2016-2017 Budget
Bill, House Bill 64 (hereinafter “H.B. 64”). (Motion Ex. B, H.B. 64.) H.B. 64 extended the
prohibition against ODE from assigning an overall letter grade to schools for the 2015-2016
and 2016-2017 state report cards. The bill enacted amended R.C. 3302.036 which states, in
pertinent part, that:
(A) | Notwithstanding anything in the Revised Code to the contrary, the
department of education shall not assign an overall letter grade under division
(C)(3) of section 3302.03 of the Revised Code for any school district or building
for the 2014-2015, 2015-2016, or 2016-2017 school years, may, at the discretion
of the state board of education, not assign an individual grade to any
component prescribed under division (C)(3) of section 3302.03 of the Revised
Code, and shall not rank school districts, community schools established under
Chapter 3314. of the Revised Code, or STEM schools established under Chapter
3326. of the Revised Code under section 3302.21 of the Revised Code for those
school years. The report card ratings issued for the 2014-2015, 2015-2016, or
2016-2017 school years shall not be considered in determining whether a
school district or a school is subject to sanctions or penalties. However, the
report card ratings of any previous or subsequent years shall be considered in
determining whether a school district or building is subject to sanctions or
penalties. Accordingly, the report card ratings for the 2014-2015, 2015-2016,
or 2016-2017 school years shall have no effect in determining sanctions or
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penalties, but shall not create a new starting point for determinations that are
based on ratings over multiple years.
(B) Provisions from which a district or school district or school is exempt
under division (A) of this section shall be the following:
(3) Provisions for academic distress commissions under former section
3302.10 of the Revised Code as it existed prior to the effective date of this
amendment. The provisions of this section do not apply to academic distress
commissions under the version of that section as it exists on or after the
effective date of this amendment. ...
R.C. 3302.036. H.B. 64 was signed by the Governor on June 30, 2015. (Motion Ex. B, H.B.
64.)
On September 13, 2018, ODE issued report cards to school districts for the 2017-2018
school year. East Cleveland received an overall grade of “F” on the 2017-2018 Report Card.
East Cleveland received notice that an ADC would take over the District pursuant to the ADC
statute. (Amended Compl. P39-40). The notice stated that since East Cleveland had received
an overall grade of “F” based on equivalencies for 2015-2016 and 2016-2017 and an overall
grade of “F” based on all six components for 2017-2018, East Cleveland had received an “F”
on the state report card for three consecutive years, which triggered the obligation to create
an ADC under R.C. 3302.10(A)(1). (Id. P41.)
STANDARD OF REVIEW
Motion to Dismiss
The standard of review for dismissal for want of subject matter jurisdiction pursuant
to Civ. R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in
the complaint. State ex rel. Bush v. Spurlock, 42 Ohio St. 3d 77, 537 N.E.2d 641 (1989).
A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the claim. State ex rel. Hanson v. Guernsey Cty. Bd.
of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). The Court must take all the material
allegations as admitted and construe all reasonable inferences in favor of the nonmoving
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party. Id. Dismissal of a case pursuant to Civ. R. 12(B)(6) is appropriate only where it appears
beyond a doubt that a party can prove no set of facts in support of its claim which would entitle
it to relief. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063
(1991); Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8* Dist. 1992).
Motion to Amend
Ohio Civ. R. 15(A) provides that the Court “shall freely give leave [to amend the
pleadings] when justice so requires.”
LAW AND ANALYSIS
nt I~ Di nt (Ini retation of Ww
In Count I, East Cleveland asserts that ODE impermissibly relied on East Cleveland’s
report card performance in each of the 2015-2016, 2016-2017, and 2017-2018 school years to
find that an ADC must be established for the District. East Cleveland challenges whether ODE
may use equivalency grades for the 2015-16 and 2016-2017 school years. East Cleveland
further questions, based on alleged mathematical errors and data inconsistencies in ODE’s
2017-2018 preliminary report, whether East Cleveland should have received an overall grade
of “F” on its 2017-2018 report card.
Use of Equivalency Grades for 2015-2016 and 2016-2017 School Years
As to East Cleveland’s initial challenge, the parties appear to agree that the issue of
whether ODE was permitted to use equivalency grades for the 2015-2016 and 2016-2017
school years as part of the basis to establish an ADC is a matter of statutory interpretation.
Defendants argue that East Cleveland’s statutory interpretation fails as a matter of law.
“When considering the meaning of a statute, ‘[the Court’s] paramount concern is the
”
legislative intent of its enactment.” Elec. Classroom of Tomorrow v. Ohio Dep’t of Educ.,
2018-Ohio-3126, P11 (citations omitted). The Court determines that legislative intent by
looking to the language used in the statue, giving those words their plain and ordinary
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meaning while “refraining from inserting or deleting words.” State v. Gonzales, 150 Ohio St.
3d 276, 2017-Ohio-777, P4, 81 N.E.3d 419 (citations omitted). All parts of a statute should be
read together. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. Of Health, 96 Ohio St.3d 250, 2002-
Ohio-4172, P20, 773 N.E.2d 536 (citations omitted). When a statute is unambiguous, this
Court must apply the statute as written. Johnson v. Montgomery, 151 Ohio St.3d 75, 2017
Ohio 7445, P15, 895 N.E.2d 145 (citations omitted).
These same rules apply to uncodified law, which “is part of the law of Ohio.” Maynard
v. Eaton Corp., 119 Ohio St.3d 443, 2008 Ohio 4542, P7 (citations omitted). Uncodified law
is “[lJaw of a special nature that has a limited duration or operation and is not assigned a
permanent Ohio Revised Code section number.” Id.
ODE argues that when read together, R.C. 3302.10, the Uncodified Law, and R.C.
3302.036 permitted ODE to use equivalency grades for the 2015-2016 and 2016-2017 school
years for purposes of ADC eligibility. The Court agrees.
R.C. 3302.10 states that an ADC must be established for a school district that “received.
an overall grade of “F” under division (C)(3) of section 3302.03 of the Revised Code for three
consecutive years.” R.C. 3302.10(A)(1). While R.C. 3302.036(A) imposed a three-year
moratorium on the assignment of overall letter grades, which lapsed after the 2016-17 school
year, it permitted ODE to assign component grades in any school year. Moreover, the
provisions of R.C. 3302.036 barring use of report card ratings for certain purposes “do not
apply to academic distress commissions under the version of that section” in its current form.
R.C. 3302.036(B)(3). Hence, R.C. 3302.036 permits ODE to issue component grades and
consider those component grades in deciding ADC eligibility. Finally, the Uncodified Law
explains how those component grades are to be considered for ADC purposes in school years
that lack an overall letter grade because of the moratorium in R.C. 3302.036(A). H.B. 70,
Section 6. For those school years, ODE will “use . . . equivalencies for the purposes of section
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3302.10 of the Revised Code” until ODE is again “authorized to assign an overall letter grade
for districts.” Id. Further, “[a] combination of a grade of “F” for the performance index score
and a grade of “F” for the value-added progress dimension under division (C) of section
3302.03 of the Revised Code shall be equivalent to an overall letter grade of “F.”” Id.
Accordingly, the Court finds that these statutes required ODE to use equivalency grades for
the 2015-2016 and 2016-2017 school years for ADC eligibility purposes.
East Cleveland and Amici have advanced several arguments to the contrary. The Court
is unpersuaded by such arguments.
First, East Cleveland argues that the “clear and unambiguous language” requiring the
use of “overall grades” in R.C. 3302.10(A)(1) for ADC purposes and prohibiting “overall letter
grades” for the 2015-2016 and 2016-2017 school years in R.C. 3302.036(A) prevail over the
requirement in the Uncodified Law to use equivalency grades for ADC eligibility purposes
during the school years in which an overall letter grade is statutorily prohibited. However,
“[w]here two statutes relate to the same subject matter in a case calling for the application of
both, the statutes should be construed together. ... [I]t is the duty of the court to give effect
to all their terms and provisions and to render them compatible with each other whenever
possible.” Sentinel Security Sys. v. Medkeff, 36 Ohio App. 3d 86, 87, 521 N.E.2d 7 (9 Dist.
1987) (citations omitted). While R.C. 3302.036(A) prohibited ODE from issuing overall letter
grades for the 2015-2016 and 2016-2017 school years, it permitted ODE to issue component
grades and consider those component grades in deciding ADC eligibility. R.C. 3302.036(A).
The Uncodified Law provided ODE is to use equivalencies to determine a school district’s
performance during those years for ADC purposes and that “[a] combination of a grade of “F”
for the performance index score and a grade of “F” for the value-added progress dimension
... Shall be equivalent to an overall letter grade of “F.” H.B. 70, Sec. 6 (emphasis added). The
Court finds no conflict between the relevant statutes and the Uncodified Law.
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East Cleveland next argues that the use of the word “beyond” in the Uncodified Law
means that ODE was not permitted to use an equivalency grade for the 2015-2016 school year.
Specifically, the Uncodified Law states that “[i]f the requirement to assign an overall letter
grade for school districts... is delayed beyond the report card issued for the 2015-2016 school
year, [ODE] shall use . . . equivalencies for the purposes of section 3302.10 of the Revised
Code until such time as [ODE] is authorized to assign an overall letter grade for districts.”
H.B. 70, Sec. 6 (emphasis added). East Cleveland argues that the Uncodified Law only
permits use of equivalency grades beyond or after the 2015-2016 school year report card.
However, the Court finds that the term “beyond” in the Uncodified Law appears in the
sentence’s dependent clause and describes the type of delay that triggers the use of
equivalencies, not the school years in which the equivalencies are required to be used.?
Notably, the General Assembly passed the Uncodified Law on June 24, 2015, and passed the
amended R.C. 3302.036(A), which extended the prohibition against overall grades to the
2015-2016 and 2016-2017 school year report cards, two days later. When the General
Assembly passed the Uncodified Law, the General Assembly was simultaneously considering
extending the prohibition against overall grades to the 2015-2016 and 2016-2017 school year
report cards. Hence, the Uncodified Law directed that if the General Assembly extended the
prohibition on overall grades for more than the 2015-2016 school year report card, which it,
in fact, did two days later, then ODE is required to use equivalencies for ADC purposes until
ODE can again issue overall grades.
East Cleveland further argues that ODE’s statutory interpretation required ODE to
issue an equivalency grade for the 2014-2015 school year as well. However, as argued by
? East Cleveland relies upon a statement by the LSC which questions the application of the Uncodified Law
to the 2015-2016 school year. However, as East Cleveland acknowledges, “[a]lthough the court is not bound
by such analysis, we may refer to [LSC] when we find them helpful and objective.” Meeks v. Papadopulos,
62 Ohio St. 2d 187, 191, 40 N.E.2d 159, 162 (1980) (citations omitted). The Court finds that the text of the
statute clarifies any question raised by the LSC.
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ODE, “[a] statute is presumed to be prospective in its operation unless expressly made
retrospective.” R.C. 1.48. Both H.B. 70, which amended R.C. 3302.10 and included the
Uncodified Law, and H.B. 64, which amended R.C. 3302.036(A), took effect at or near the
beginning of the 2015-2016 school year. The versions of R.C. 3302.10 and R.C. 3302.036(A)
in effect during the 2014-2015 school year not only prohibited an overall letter grade be issued
for that school year, but also prohibited consideration of that school year’s performance for
purposes of the ADC statute. Accordingly, the Uncodified Law and the amended versions of
R.C. 3302.10 and R.C. 3302.036(A) were directed at current/upcoming school years and did
not direct or permit ODE to calculate and use equivalency grades for the prior 2014-2015
school year for ADC purposes.
East Cleveland additionally argues that ODE may not use equivalency grades for the
2015-2016 or 2016-2017 school years, because the Governor signed H.B. 64 before he signed
H.B. 70 causing the Uncodified Law to not be triggered. However, legislative intent is
evidenced by the actions of the General Assembly, not the actions of the Governor. Here, the
General Assembly first passed H.B. 70, which included the Uncodified Law, and H.B. 64,
which triggered the Uncodified Law, two days later. The order in which the Governor signed
these bills into law is not determinative of the General Assembly’s intent when passing them.
The OSBA Amici offer an additional argument that the Uncodified Law did not trigger
until September 2016, when the 2015-2016 report card issued without an overall letter grade.
However, as held above, the General Assembly expressed its intent when it passed H.B. 70
and then passed H.B. 64. When the General Assembly passed H.B. 64, it extended the
prohibition against overall letter grades to the 2015-2016 and 2016-2017 school years, and
triggered the Uncodified Law, which required ODE to issue equivalency grades for those
upcoming school years and to use such equivalency grades for ADC purposes. The timing of
ODE’s actual issuance of the 2015-2016 report card or that General Assembly could have
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repealed H.B. 64 before issuance of such report card are irrelevant. The General Assembly
prohibited the issuance of overall letter grades for 2015-2016 and 2016-2017 when it passed
H.B. 64. That action triggered the Uncodified Law requiring the use of equivalency grades
for those school years for ADC purposes.
In its proposed Second Amended Complaint, East Cleveland attempts to bolster its
argument on this issue with three new allegations: (1) ODE officials stated that the language
of the Uncodified Law was confusing (Sec. Amend. Compl. P33), (2) that the Value-Added
measure (one of the ways of determining equivalency grades) was changed for the 2015-2016
school year after the 2015-2016 school year had ended via amendments to O.A.C. 3301-28-
06 (Id. P34), and (3) that a school district could receive a passing overall grade but a failing
equivalency grade (Id. P35). These new allegations do not change the Court’s analysis. First,
even if someone at ODE stated in an email that the language of the Uncodified Law was
confusing, such a statement is not dispositive of and does not change the Court’s statutory
interpretation analysis in this case. See e.g. IBEW, Local Union No. 8 v. Kingfish Elec., LLC,
2012-Ohio-2363, P20, 971 N.E.2d 425 (6" Dist.) (finding that “to be binding, admission must
be of a material and competent fact, not merely a legal conclusion or statutory definition”).
Second, East Cleveland’s claims as to the 2015-2016 school year challenge the statutory
interpretation of R.C. 3302.10, R.C. 3302.036 and the Uncodified Law. Plaintiff has made no
challenge to O.A.C. 3301-28-06. Finally, whether a school district could have received a
passing overall grade but a failing equivalency grade during the 2015-2016 and 2016-2017
school years is irrelevant as the General Assembly prohibited the issuance of overall letter
grades and mandated the use of equivalency grades for ADC purposes for those school years.
For all the above reasons, the Court finds Plaintiff's challenge to ODE’s use of
equivalency grades for the 2015-2016 and 2016-2017 school years fails as a matter of law.
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Use of Overall Grade of “F” on 2017-2018 Report Card
Defendants argue East Cleveland fails to allege any specific mathematical errors or
data inconsistencies that would have supported a change in East Cleveland’s overall grade of
“F” for the 2017-2018 school year.
Specifically, in its Amended Complaint, East Cleveland alleges that ODE’s Preliminary
Report for East Cleveland contained mathematical errors and data inconsistencies on its face.
(Amended Compl. P37.) In its proposed Second Amended Complaint, East Cleveland alleges
that: (1) ODE knew there were errors in the way it calculated enrollment for East Cleveland
(Sec. Amended Compl. P40); (2) at least one of East Cleveland’s 2017-2018 grades was being
reported differently (one as passing and one as failing) in different ODE systems (Id. P41);
(3) the discrepancy between East Cleveland’s grades was because a third-party vendor, to
whom ODE has abdicated its statutory responsibilities over the Value-Added calculation,
caused additional errors in the report card calculations (Id. P42-43, 46); (4) ODE does not
and cannot independently verify the calculations that vendor provides for the report card
Value-Added measure (Id. P46); (5) East Cleveland’s final report card did in fact contain
egregious data errors (Id. P44); (6) at least one ODE official “found some errors in her black
box files” related to East Cleveland (Id. P45); and (7) ODE knew and admitted “there are
winners and losers depending on what data are used” to calculate a district’s grade (Id. P35).
As stated by East Cleveland, “since Ohio is a notice-pleading state, Ohio law does not
ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta
U.S.A. Corp., 95 Ohio St. 3d 416, 423-24, 2002-Ohio-2480, P29, 768 N.E.2d 1136. “[A]
complaint need only contain ‘a short and plain statement of the claim showing that the party
is entitled to relief.’ Consequently, ‘as long as there is a set of facts, consistent with the
plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss.” Id. (citations omitted).
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East Cleveland has alleged that ODE supplied a defective report card for the 2017-2018
school year based on inaccurate and flawed data and calculations. The Court agrees with East
Cleveland that it is not required at the pleading stage to state with specificity the piece of data
which was defective and would have resulted in an increase in East Cleveland’s overall grade.
Accordingly, East Cleveland’s allegations meet the pleading requirements under Ohio law.
Counts II and III — Declaratory Judgment (Constitutionality of H.B. 70
These Counts are stayed pending the Ohio Supreme Court’s decision in Youngstown
City Sch. Dist. Bd. of Edn. v. State, No. 2018-1131, 2018 Ohio 4285. See e.g. Phillips v.
Conrad, 15 Dist. No. C-020302, 2002-Ohio-7080; Guerriero v. Dept. of Rehab. and Corr.,
11" Dist. No. 2001-A-0062, 2002-Ohio-5140.
Motion mpel
Section 1(a)-(e) Requests
In the requests at issue, East Cleveland seeks information relating to the data that
formed the basis of East Cleveland’s 2015-2016, 2016-2017, and 2017-2018 report cards. East
Cleveland asserts that certain categories of documents covered by these requests have not
been produced by ODE.
ODE claims that, while the data used to generate East Cleveland’s report cards largely
comes from the District, ODE has produced over 45,000 documents in response to East
Cleveland’s requests. ODE further objects that the data related to the 2015-2016 and 2016-
2017 school years is irrelevant to East Cleveland’s claims as East Cleveland is not claiming
any error as to the information in those report cards. ODE also objects that East Cleveland
has not met and conferred with ODE to explain why the voluminous documents produced by
ODE are not responsive.
East Cleveland counters that the information is relevant as several of the report card
measures for the 2017-2018 report card look back to East Cleveland's prior years’ report card
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performance to determine a grade for the current year. East Cleveland further counters that
ODE uses some data and calculations from sources other than the District in generating the
report card and that ODE has not provided all such information.
The Court finds that East Cleveland is permitted discovery relating to data and
calculations for the 2015-2016 and 2016-2017 school years, but only to the extent such data
and calculations were relied upon by ODE in the calculation of East Cleveland’s 2017-2018
report card. Plaintiff is directed to identify and ODE is directed to produce such remaining
discovery.
Section 2 Requests
In the requests at issue, East Cleveland seeks information relating to responsive
documents which may have been destroyed in accordance with ODE’s records retention
schedule. Specifically, ODE stated in its General Objections that it “objects to the extent the
discovery requests seek documents beyond ODE’s record retention policies.” East Cleveland
states that pursuant to the instructions to its First Set of Discovery requests that ODE was
eas
required to state for each such document whether it is “destroyed,” “explain the circumstances
surrounding and authorization for such disposition and state the date or approximate date
thereof” and to “state any available means of identifying such document.”
ODE objects that because East Cleveland’s requests included no time limitation or
definition of a relevant time period, ODE is not able to know what responsive records may
have been created and destroyed, let alone the contents of any such now non-existent
documents. The Court agrees. East Cleveland’s request to compel such information is denied.
Section 3(a) Request
In this request, East Cleveland seeks information relating to persons involved in
drafting H.B. 70. As the Court has dismissed and/or stayed East Cleveland’s claims relating
to H.B. 70, East Cleveland's request to compel such information is denied.
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Section 3(b) and (c) Requests
In these requests, East Cleveland seeks information relating to the State
Superintendent’s involvement in the appointment of members and CEO of the ADC for East
Cleveland. East Cleveland asserts that the timing of the State Superintendent’s actions and
whether ODE is conforming with the requirements of R.C. 3302.10 is relevant to the type,
extent, and timing of the harm it will suffer if injunctive relief is not granted.
ODE objects that the identities of all persons consulted about appointments to the
ADC and all communications by the State Superintendent relating to such appointments are
irrelevant to the issues in this case. ODE further objects that even if the communications
relating to the composition of the ADC have any bearing on whether the ADC should be
enjoined in its operation, East Cleveland has all the information it needs to assess timing of
the appointment of members and CEO of the ADC and their qualifications. Specifically, the
timeline of such appointments is set by statute and information relating to the qualifications
of the appointed ADC members is available to East Cleveland. The Court agrees. East
Cleveland’s request to compel such information is denied.
Section 3(d) Request
In this request, East Cleveland seeks information concerning Am. Sub. S.B. 216, which
requires the State Superintendent to perform a review of and provide recommendations to
the General Assembly to improve ADCs. East Cleveland asserts that it seeks information
regarding the State Superintendent’s recommendations to address shortcomings and
improvements needed in ADCs, because it is relevant to the harm ADCs currently cause to
other school districts and which East Cleveland is likely to suffer.
ODE objects that the information sought is irrelevant. Specifically, ODE argues that
Am. Sub. S.B. 216 was passed after East Cleveland filed this action and requires a report to
the General Assembly by May 1, 2019, to include recommendations to improve existing ADCs,
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which is irrelevant to whether East Cleveland was properly subject to an ADC pursuant to
existing law.
The Court finds East Cleveland’s request, which seeks all documentation relating to
the State Superintendent’s ongoing review and ultimate recommendations, is “an overly
broad discovery request in hopes of stumbling across unforeseen information that aids [the
District’s] case.” Insulation Unlimited, Inc. v. Two J’s Properties, Ltd., 95 Ohio Misc. 2d 18,
705 N.E.2d 754, 757 (Miami C.P. 1997) (citing Bland v. Graves, Ohio App. 3d 644, 659, 620
N.E.2d 920, 929-30 (9' Dist. 1993)). East Cleveland’s request to compel such information is
denied.
Section 4 Requests
The Court finds East Cleveland’s arguments in Section 4 of its Motion to be moot.
CONCLUSION
Accordingly, the Defendants’ Motion to Dismiss, filed on November 8, 2018, and
Plaintiffs Motion for Leave to File Second Amended Complaint Instanter and Plaintiff's
Motion to Compel Discovery, both filed November 30, 2018, are hereby GRANTED in part
and DENIED in part. Plaintiff's Second Amended Complaint is hereby deemed filed
instanter. However, Plaintiffs claims relating to ODE’s use of equivalency grades for the
2015-2016 and 2016-2017 school years are hereby DISMISSED, and Counts II and III are
hereby STAYED.
IT IS SO ORDERED.
Page 15 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035
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Franklin County Court of Common Pleas
Date: 02-01-2019
Case Title: EAST CLEVELAND CITY SCHOOL DISTRICT -VS- STATE OF
OHIO
Case Number: 18CV009035
Type: ENTRY
It Is So Ordered.
/s/ Judge Kim Brown
Electronically signed on 2019-Feb-01 page 16 of 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035
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Court Disposition
Case Number: 18CV009035
Case Style: EAST CLEVELAND CITY SCHOOL DISTRICT -VS-
STATE OF OHIO
Motion Tie Off Information:
1. Motion CMS Document Id: 18CV0090352018-1 1-1699910000
Document Title: 11-16-2018- MOTION FOR LEAVE TO FILE -
NON-PARTY: OHIO SCHOOL BOARDS ASSOCIATION
Disposition: MOTION GRANTED
2. Motion CMS Document Id: 18CV0090352018-1 1-0999890000
Document Title: 11-09-2018-MOTION TO DISMISS -
DEFENDANT: STATE OF OHIO
Disposition: MOTION GRANTED IN PART
3. Motion CMS Document Id: 18CV0090352018-1 1-3099980000
Document Title: 11-30-2018-MOTION TO EXTEND TIME -
PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT
Disposition: MOTION GRANTED IN PART
4. Motion CMS Document Id: 18CV0090352018-1 1-3099910000
Document Title: 11-30-2018-MOTION FOR LEAVE TO FILE -
PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT
Disposition: MOTION GRANTED IN PART
5. Motion CMS Document Id: 18CV009035201 8-1 1-3099970000
Document Title: 11-30-2018- MOTION TO COMPEL DISCOVERY -
PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT
Disposition: MOTION GRANTED IN PARTFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035
0E512 - N93
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N76 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CIVIL DIVISION EAST CLEVELAND CITY SCHOOL DISTRICT, Plaintiff, : CASE NO. 18CVH-9035 v. : JUDGE K. BROWN STATE OF OHIO, et al. Defendants. DECISION AND ENTRY Rendered this 1% day of February, 2019 This matter is before the Court on the Defendants State of Ohio, the Ohio Department of Education, and Superintendent of Public Instruction Paolo DeMaria’s (hereinafter collectively “ODE”) Motion to Dismiss, filed on November 8, 2018. Plaintiff East Cleveland City School District Board of Education (hereinafter “East Cleveland” or the “District”) filed its Brief in Opposition on November 16, 2018. Amicus Curiae East Cleveland Education Association OEA/NEA (hereinafter “East Cleveland Education Association”) and Amici Curiae Ohio School Boards Association, Buckeye Association of School Administrators, Ohio Association of School Business Officials, and Ohio Federation of Teachers: (hereinafter “OSBA Amici”) filed briefs in opposition on that same date. Defendants filed their Reply in Support on November 21, 2018. This matter is also before the Court on Plaintiff's Motion for Leave to File Second Amended Complaint Instanter and Plaintiff's Motion to Compel Discovery, both filed November 30, 2018. Defendants filed their briefs in opposition on December 14, 2018. Plaintiff filed its replies in support on December 21, 2018. 1 Amici’s Motion for Leave to File, filed on that same date, is unopposed and is hereby granted.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N77 18CVH-9035 The motions are ripe for consideration by the Court. INTRODUCTION During the 2014-2015 school year, ODE was scheduled to begin issuing state report cards to districts in Ohio, evaluating them on various criteria. (Amended Compl. P9.) Asa general matter, that report card includes grades on performance measures in six components, which reflect a school district’s performance and combine to determine a school district’s overall grade. R.C. 3302.03(C)(3), O.A.C. Chapter 3301-28. Each component receives the following weight, which when added together, set the overall grade: Component Weight Towards Overall Grade Achievement 20 percent Progress 20 percent Graduation Rate 15 percent Gap Closing 15 percent Improving At-Risk K-3 Readers 15 percent Prepared for Success 15 percent The overall grade is used for a variety of purposes. Due to testing errors that occurred during the 2014-2015 testing assessments, the 1315t General Assembly created and passed House Bill 7 to insulate students and school districts from the 2014-2015 state test results. (Amended Compl. P11.) H.B. 7 expanded R.C. 3302.036, commonly known as “Safe Harbor,” which prevented ODE from assigning overall letter grades to any school district or building for the 2014-2015 school year. (Id. P12.) While ODE was permitted to “assign an individual grade to any component,” the report card ratings for the 2014-2015 school year “[would] have no effect in determining sanctions or penalties” including use to identify school districts subject to an Academic Distress Commission (hereinafter “ADC”). 131st General Assembly H.B. 7, R.C. 3302.036. On June 24, 2015, the 131s' General Assembly passed Amended House Bill 70 (hereinafter “H.B. 70”). (Motion Ex. A.) The ADC statute in H.B. 70 states that the Page 2 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N78 18CVH-9035 superintendent of public instruction shall establish an academic distress commission for any school that “has received an overall grade of ‘F’ under [R.C. 3302.03(C)] for three consecutive years.” R.C. 3302.10(A)(1). H.B. 70 also enacted the following uncodified law (hereinafter the “Uncodified Law”): If the requirement to assign an overall letter grade for school districts under division (C) of section 3302.03 of the Revised Code is delayed beyond the report card issued for the 2015-2016 school year, the Department shall use equivalencies for the purposes of section 3302.10 of the Revised Code until such time as the Department is authorized to assign an overall letter grade for districts: (2) | Acombination of a grade of “F” for the performance index score and a grade of “F” for the value-added progress dimension under division (C) of section 3302.03 of the Revised Code shall be equivalent to an overall letter grade of “F.” (Motion Ex. A, H.B. 70, Sec. 6). H.B. 70 was signed by the Governor on July 16, 2015. (Id.) On June 26, 2015, the 1315t General Assembly passed the Fiscal Year 2016-2017 Budget Bill, House Bill 64 (hereinafter “H.B. 64”). (Motion Ex. B, H.B. 64.) H.B. 64 extended the prohibition against ODE from assigning an overall letter grade to schools for the 2015-2016 and 2016-2017 state report cards. The bill enacted amended R.C. 3302.036 which states, in pertinent part, that: (A) | Notwithstanding anything in the Revised Code to the contrary, the department of education shall not assign an overall letter grade under division (C)(3) of section 3302.03 of the Revised Code for any school district or building for the 2014-2015, 2015-2016, or 2016-2017 school years, may, at the discretion of the state board of education, not assign an individual grade to any component prescribed under division (C)(3) of section 3302.03 of the Revised Code, and shall not rank school districts, community schools established under Chapter 3314. of the Revised Code, or STEM schools established under Chapter 3326. of the Revised Code under section 3302.21 of the Revised Code for those school years. The report card ratings issued for the 2014-2015, 2015-2016, or 2016-2017 school years shall not be considered in determining whether a school district or a school is subject to sanctions or penalties. However, the report card ratings of any previous or subsequent years shall be considered in determining whether a school district or building is subject to sanctions or penalties. Accordingly, the report card ratings for the 2014-2015, 2015-2016, or 2016-2017 school years shall have no effect in determining sanctions or Page 3 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N79 18CVH-9035 penalties, but shall not create a new starting point for determinations that are based on ratings over multiple years. (B) Provisions from which a district or school district or school is exempt under division (A) of this section shall be the following: (3) Provisions for academic distress commissions under former section 3302.10 of the Revised Code as it existed prior to the effective date of this amendment. The provisions of this section do not apply to academic distress commissions under the version of that section as it exists on or after the effective date of this amendment. ... R.C. 3302.036. H.B. 64 was signed by the Governor on June 30, 2015. (Motion Ex. B, H.B. 64.) On September 13, 2018, ODE issued report cards to school districts for the 2017-2018 school year. East Cleveland received an overall grade of “F” on the 2017-2018 Report Card. East Cleveland received notice that an ADC would take over the District pursuant to the ADC statute. (Amended Compl. P39-40). The notice stated that since East Cleveland had received an overall grade of “F” based on equivalencies for 2015-2016 and 2016-2017 and an overall grade of “F” based on all six components for 2017-2018, East Cleveland had received an “F” on the state report card for three consecutive years, which triggered the obligation to create an ADC under R.C. 3302.10(A)(1). (Id. P41.) STANDARD OF REVIEW Motion to Dismiss The standard of review for dismissal for want of subject matter jurisdiction pursuant to Civ. R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in the complaint. State ex rel. Bush v. Spurlock, 42 Ohio St. 3d 77, 537 N.E.2d 641 (1989). A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the claim. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). The Court must take all the material allegations as admitted and construe all reasonable inferences in favor of the nonmoving Page 4 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N80 18CVH-9035 party. Id. Dismissal of a case pursuant to Civ. R. 12(B)(6) is appropriate only where it appears beyond a doubt that a party can prove no set of facts in support of its claim which would entitle it to relief. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991); Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8* Dist. 1992). Motion to Amend Ohio Civ. R. 15(A) provides that the Court “shall freely give leave [to amend the pleadings] when justice so requires.” LAW AND ANALYSIS nt I~ Di nt (Ini retation of Ww In Count I, East Cleveland asserts that ODE impermissibly relied on East Cleveland’s report card performance in each of the 2015-2016, 2016-2017, and 2017-2018 school years to find that an ADC must be established for the District. East Cleveland challenges whether ODE may use equivalency grades for the 2015-16 and 2016-2017 school years. East Cleveland further questions, based on alleged mathematical errors and data inconsistencies in ODE’s 2017-2018 preliminary report, whether East Cleveland should have received an overall grade of “F” on its 2017-2018 report card. Use of Equivalency Grades for 2015-2016 and 2016-2017 School Years As to East Cleveland’s initial challenge, the parties appear to agree that the issue of whether ODE was permitted to use equivalency grades for the 2015-2016 and 2016-2017 school years as part of the basis to establish an ADC is a matter of statutory interpretation. Defendants argue that East Cleveland’s statutory interpretation fails as a matter of law. “When considering the meaning of a statute, ‘[the Court’s] paramount concern is the ” legislative intent of its enactment.” Elec. Classroom of Tomorrow v. Ohio Dep’t of Educ., 2018-Ohio-3126, P11 (citations omitted). The Court determines that legislative intent by looking to the language used in the statue, giving those words their plain and ordinary Page 5 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N81 18CVH-9035 meaning while “refraining from inserting or deleting words.” State v. Gonzales, 150 Ohio St. 3d 276, 2017-Ohio-777, P4, 81 N.E.3d 419 (citations omitted). All parts of a statute should be read together. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. Of Health, 96 Ohio St.3d 250, 2002- Ohio-4172, P20, 773 N.E.2d 536 (citations omitted). When a statute is unambiguous, this Court must apply the statute as written. Johnson v. Montgomery, 151 Ohio St.3d 75, 2017 Ohio 7445, P15, 895 N.E.2d 145 (citations omitted). These same rules apply to uncodified law, which “is part of the law of Ohio.” Maynard v. Eaton Corp., 119 Ohio St.3d 443, 2008 Ohio 4542, P7 (citations omitted). Uncodified law is “[lJaw of a special nature that has a limited duration or operation and is not assigned a permanent Ohio Revised Code section number.” Id. ODE argues that when read together, R.C. 3302.10, the Uncodified Law, and R.C. 3302.036 permitted ODE to use equivalency grades for the 2015-2016 and 2016-2017 school years for purposes of ADC eligibility. The Court agrees. R.C. 3302.10 states that an ADC must be established for a school district that “received. an overall grade of “F” under division (C)(3) of section 3302.03 of the Revised Code for three consecutive years.” R.C. 3302.10(A)(1). While R.C. 3302.036(A) imposed a three-year moratorium on the assignment of overall letter grades, which lapsed after the 2016-17 school year, it permitted ODE to assign component grades in any school year. Moreover, the provisions of R.C. 3302.036 barring use of report card ratings for certain purposes “do not apply to academic distress commissions under the version of that section” in its current form. R.C. 3302.036(B)(3). Hence, R.C. 3302.036 permits ODE to issue component grades and consider those component grades in deciding ADC eligibility. Finally, the Uncodified Law explains how those component grades are to be considered for ADC purposes in school years that lack an overall letter grade because of the moratorium in R.C. 3302.036(A). H.B. 70, Section 6. For those school years, ODE will “use . . . equivalencies for the purposes of section Page 6 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N82 18CVH-9035 3302.10 of the Revised Code” until ODE is again “authorized to assign an overall letter grade for districts.” Id. Further, “[a] combination of a grade of “F” for the performance index score and a grade of “F” for the value-added progress dimension under division (C) of section 3302.03 of the Revised Code shall be equivalent to an overall letter grade of “F.”” Id. Accordingly, the Court finds that these statutes required ODE to use equivalency grades for the 2015-2016 and 2016-2017 school years for ADC eligibility purposes. East Cleveland and Amici have advanced several arguments to the contrary. The Court is unpersuaded by such arguments. First, East Cleveland argues that the “clear and unambiguous language” requiring the use of “overall grades” in R.C. 3302.10(A)(1) for ADC purposes and prohibiting “overall letter grades” for the 2015-2016 and 2016-2017 school years in R.C. 3302.036(A) prevail over the requirement in the Uncodified Law to use equivalency grades for ADC eligibility purposes during the school years in which an overall letter grade is statutorily prohibited. However, “[w]here two statutes relate to the same subject matter in a case calling for the application of both, the statutes should be construed together. ... [I]t is the duty of the court to give effect to all their terms and provisions and to render them compatible with each other whenever possible.” Sentinel Security Sys. v. Medkeff, 36 Ohio App. 3d 86, 87, 521 N.E.2d 7 (9 Dist. 1987) (citations omitted). While R.C. 3302.036(A) prohibited ODE from issuing overall letter grades for the 2015-2016 and 2016-2017 school years, it permitted ODE to issue component grades and consider those component grades in deciding ADC eligibility. R.C. 3302.036(A). The Uncodified Law provided ODE is to use equivalencies to determine a school district’s performance during those years for ADC purposes and that “[a] combination of a grade of “F” for the performance index score and a grade of “F” for the value-added progress dimension ... Shall be equivalent to an overall letter grade of “F.” H.B. 70, Sec. 6 (emphasis added). The Court finds no conflict between the relevant statutes and the Uncodified Law. Page 7 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N83 18CVH-9035 East Cleveland next argues that the use of the word “beyond” in the Uncodified Law means that ODE was not permitted to use an equivalency grade for the 2015-2016 school year. Specifically, the Uncodified Law states that “[i]f the requirement to assign an overall letter grade for school districts... is delayed beyond the report card issued for the 2015-2016 school year, [ODE] shall use . . . equivalencies for the purposes of section 3302.10 of the Revised Code until such time as [ODE] is authorized to assign an overall letter grade for districts.” H.B. 70, Sec. 6 (emphasis added). East Cleveland argues that the Uncodified Law only permits use of equivalency grades beyond or after the 2015-2016 school year report card. However, the Court finds that the term “beyond” in the Uncodified Law appears in the sentence’s dependent clause and describes the type of delay that triggers the use of equivalencies, not the school years in which the equivalencies are required to be used.? Notably, the General Assembly passed the Uncodified Law on June 24, 2015, and passed the amended R.C. 3302.036(A), which extended the prohibition against overall grades to the 2015-2016 and 2016-2017 school year report cards, two days later. When the General Assembly passed the Uncodified Law, the General Assembly was simultaneously considering extending the prohibition against overall grades to the 2015-2016 and 2016-2017 school year report cards. Hence, the Uncodified Law directed that if the General Assembly extended the prohibition on overall grades for more than the 2015-2016 school year report card, which it, in fact, did two days later, then ODE is required to use equivalencies for ADC purposes until ODE can again issue overall grades. East Cleveland further argues that ODE’s statutory interpretation required ODE to issue an equivalency grade for the 2014-2015 school year as well. However, as argued by ? East Cleveland relies upon a statement by the LSC which questions the application of the Uncodified Law to the 2015-2016 school year. However, as East Cleveland acknowledges, “[a]lthough the court is not bound by such analysis, we may refer to [LSC] when we find them helpful and objective.” Meeks v. Papadopulos, 62 Ohio St. 2d 187, 191, 40 N.E.2d 159, 162 (1980) (citations omitted). The Court finds that the text of the statute clarifies any question raised by the LSC. Page 8 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N84 18CVH-9035 ODE, “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” R.C. 1.48. Both H.B. 70, which amended R.C. 3302.10 and included the Uncodified Law, and H.B. 64, which amended R.C. 3302.036(A), took effect at or near the beginning of the 2015-2016 school year. The versions of R.C. 3302.10 and R.C. 3302.036(A) in effect during the 2014-2015 school year not only prohibited an overall letter grade be issued for that school year, but also prohibited consideration of that school year’s performance for purposes of the ADC statute. Accordingly, the Uncodified Law and the amended versions of R.C. 3302.10 and R.C. 3302.036(A) were directed at current/upcoming school years and did not direct or permit ODE to calculate and use equivalency grades for the prior 2014-2015 school year for ADC purposes. East Cleveland additionally argues that ODE may not use equivalency grades for the 2015-2016 or 2016-2017 school years, because the Governor signed H.B. 64 before he signed H.B. 70 causing the Uncodified Law to not be triggered. However, legislative intent is evidenced by the actions of the General Assembly, not the actions of the Governor. Here, the General Assembly first passed H.B. 70, which included the Uncodified Law, and H.B. 64, which triggered the Uncodified Law, two days later. The order in which the Governor signed these bills into law is not determinative of the General Assembly’s intent when passing them. The OSBA Amici offer an additional argument that the Uncodified Law did not trigger until September 2016, when the 2015-2016 report card issued without an overall letter grade. However, as held above, the General Assembly expressed its intent when it passed H.B. 70 and then passed H.B. 64. When the General Assembly passed H.B. 64, it extended the prohibition against overall letter grades to the 2015-2016 and 2016-2017 school years, and triggered the Uncodified Law, which required ODE to issue equivalency grades for those upcoming school years and to use such equivalency grades for ADC purposes. The timing of ODE’s actual issuance of the 2015-2016 report card or that General Assembly could have Page 9 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N85 18CVH-9035 repealed H.B. 64 before issuance of such report card are irrelevant. The General Assembly prohibited the issuance of overall letter grades for 2015-2016 and 2016-2017 when it passed H.B. 64. That action triggered the Uncodified Law requiring the use of equivalency grades for those school years for ADC purposes. In its proposed Second Amended Complaint, East Cleveland attempts to bolster its argument on this issue with three new allegations: (1) ODE officials stated that the language of the Uncodified Law was confusing (Sec. Amend. Compl. P33), (2) that the Value-Added measure (one of the ways of determining equivalency grades) was changed for the 2015-2016 school year after the 2015-2016 school year had ended via amendments to O.A.C. 3301-28- 06 (Id. P34), and (3) that a school district could receive a passing overall grade but a failing equivalency grade (Id. P35). These new allegations do not change the Court’s analysis. First, even if someone at ODE stated in an email that the language of the Uncodified Law was confusing, such a statement is not dispositive of and does not change the Court’s statutory interpretation analysis in this case. See e.g. IBEW, Local Union No. 8 v. Kingfish Elec., LLC, 2012-Ohio-2363, P20, 971 N.E.2d 425 (6" Dist.) (finding that “to be binding, admission must be of a material and competent fact, not merely a legal conclusion or statutory definition”). Second, East Cleveland’s claims as to the 2015-2016 school year challenge the statutory interpretation of R.C. 3302.10, R.C. 3302.036 and the Uncodified Law. Plaintiff has made no challenge to O.A.C. 3301-28-06. Finally, whether a school district could have received a passing overall grade but a failing equivalency grade during the 2015-2016 and 2016-2017 school years is irrelevant as the General Assembly prohibited the issuance of overall letter grades and mandated the use of equivalency grades for ADC purposes for those school years. For all the above reasons, the Court finds Plaintiff's challenge to ODE’s use of equivalency grades for the 2015-2016 and 2016-2017 school years fails as a matter of law. Page 10 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 OE512 - N86 18CVH-9035 Use of Overall Grade of “F” on 2017-2018 Report Card Defendants argue East Cleveland fails to allege any specific mathematical errors or data inconsistencies that would have supported a change in East Cleveland’s overall grade of “F” for the 2017-2018 school year. Specifically, in its Amended Complaint, East Cleveland alleges that ODE’s Preliminary Report for East Cleveland contained mathematical errors and data inconsistencies on its face. (Amended Compl. P37.) In its proposed Second Amended Complaint, East Cleveland alleges that: (1) ODE knew there were errors in the way it calculated enrollment for East Cleveland (Sec. Amended Compl. P40); (2) at least one of East Cleveland’s 2017-2018 grades was being reported differently (one as passing and one as failing) in different ODE systems (Id. P41); (3) the discrepancy between East Cleveland’s grades was because a third-party vendor, to whom ODE has abdicated its statutory responsibilities over the Value-Added calculation, caused additional errors in the report card calculations (Id. P42-43, 46); (4) ODE does not and cannot independently verify the calculations that vendor provides for the report card Value-Added measure (Id. P46); (5) East Cleveland’s final report card did in fact contain egregious data errors (Id. P44); (6) at least one ODE official “found some errors in her black box files” related to East Cleveland (Id. P45); and (7) ODE knew and admitted “there are winners and losers depending on what data are used” to calculate a district’s grade (Id. P35). As stated by East Cleveland, “since Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 423-24, 2002-Ohio-2480, P29, 768 N.E.2d 1136. “[A] complaint need only contain ‘a short and plain statement of the claim showing that the party is entitled to relief.’ Consequently, ‘as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.” Id. (citations omitted). Page 11 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N87 18CVH-9035 East Cleveland has alleged that ODE supplied a defective report card for the 2017-2018 school year based on inaccurate and flawed data and calculations. The Court agrees with East Cleveland that it is not required at the pleading stage to state with specificity the piece of data which was defective and would have resulted in an increase in East Cleveland’s overall grade. Accordingly, East Cleveland’s allegations meet the pleading requirements under Ohio law. Counts II and III — Declaratory Judgment (Constitutionality of H.B. 70 These Counts are stayed pending the Ohio Supreme Court’s decision in Youngstown City Sch. Dist. Bd. of Edn. v. State, No. 2018-1131, 2018 Ohio 4285. See e.g. Phillips v. Conrad, 15 Dist. No. C-020302, 2002-Ohio-7080; Guerriero v. Dept. of Rehab. and Corr., 11" Dist. No. 2001-A-0062, 2002-Ohio-5140. Motion mpel Section 1(a)-(e) Requests In the requests at issue, East Cleveland seeks information relating to the data that formed the basis of East Cleveland’s 2015-2016, 2016-2017, and 2017-2018 report cards. East Cleveland asserts that certain categories of documents covered by these requests have not been produced by ODE. ODE claims that, while the data used to generate East Cleveland’s report cards largely comes from the District, ODE has produced over 45,000 documents in response to East Cleveland’s requests. ODE further objects that the data related to the 2015-2016 and 2016- 2017 school years is irrelevant to East Cleveland’s claims as East Cleveland is not claiming any error as to the information in those report cards. ODE also objects that East Cleveland has not met and conferred with ODE to explain why the voluminous documents produced by ODE are not responsive. East Cleveland counters that the information is relevant as several of the report card measures for the 2017-2018 report card look back to East Cleveland's prior years’ report card Page 12 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N88 18CVH-9035 performance to determine a grade for the current year. East Cleveland further counters that ODE uses some data and calculations from sources other than the District in generating the report card and that ODE has not provided all such information. The Court finds that East Cleveland is permitted discovery relating to data and calculations for the 2015-2016 and 2016-2017 school years, but only to the extent such data and calculations were relied upon by ODE in the calculation of East Cleveland’s 2017-2018 report card. Plaintiff is directed to identify and ODE is directed to produce such remaining discovery. Section 2 Requests In the requests at issue, East Cleveland seeks information relating to responsive documents which may have been destroyed in accordance with ODE’s records retention schedule. Specifically, ODE stated in its General Objections that it “objects to the extent the discovery requests seek documents beyond ODE’s record retention policies.” East Cleveland states that pursuant to the instructions to its First Set of Discovery requests that ODE was eas required to state for each such document whether it is “destroyed,” “explain the circumstances surrounding and authorization for such disposition and state the date or approximate date thereof” and to “state any available means of identifying such document.” ODE objects that because East Cleveland’s requests included no time limitation or definition of a relevant time period, ODE is not able to know what responsive records may have been created and destroyed, let alone the contents of any such now non-existent documents. The Court agrees. East Cleveland’s request to compel such information is denied. Section 3(a) Request In this request, East Cleveland seeks information relating to persons involved in drafting H.B. 70. As the Court has dismissed and/or stayed East Cleveland’s claims relating to H.B. 70, East Cleveland's request to compel such information is denied. Page 13 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N89 18CVH-9035 Section 3(b) and (c) Requests In these requests, East Cleveland seeks information relating to the State Superintendent’s involvement in the appointment of members and CEO of the ADC for East Cleveland. East Cleveland asserts that the timing of the State Superintendent’s actions and whether ODE is conforming with the requirements of R.C. 3302.10 is relevant to the type, extent, and timing of the harm it will suffer if injunctive relief is not granted. ODE objects that the identities of all persons consulted about appointments to the ADC and all communications by the State Superintendent relating to such appointments are irrelevant to the issues in this case. ODE further objects that even if the communications relating to the composition of the ADC have any bearing on whether the ADC should be enjoined in its operation, East Cleveland has all the information it needs to assess timing of the appointment of members and CEO of the ADC and their qualifications. Specifically, the timeline of such appointments is set by statute and information relating to the qualifications of the appointed ADC members is available to East Cleveland. The Court agrees. East Cleveland’s request to compel such information is denied. Section 3(d) Request In this request, East Cleveland seeks information concerning Am. Sub. S.B. 216, which requires the State Superintendent to perform a review of and provide recommendations to the General Assembly to improve ADCs. East Cleveland asserts that it seeks information regarding the State Superintendent’s recommendations to address shortcomings and improvements needed in ADCs, because it is relevant to the harm ADCs currently cause to other school districts and which East Cleveland is likely to suffer. ODE objects that the information sought is irrelevant. Specifically, ODE argues that Am. Sub. S.B. 216 was passed after East Cleveland filed this action and requires a report to the General Assembly by May 1, 2019, to include recommendations to improve existing ADCs, Page 14 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N90 18CVH-9035 which is irrelevant to whether East Cleveland was properly subject to an ADC pursuant to existing law. The Court finds East Cleveland’s request, which seeks all documentation relating to the State Superintendent’s ongoing review and ultimate recommendations, is “an overly broad discovery request in hopes of stumbling across unforeseen information that aids [the District’s] case.” Insulation Unlimited, Inc. v. Two J’s Properties, Ltd., 95 Ohio Misc. 2d 18, 705 N.E.2d 754, 757 (Miami C.P. 1997) (citing Bland v. Graves, Ohio App. 3d 644, 659, 620 N.E.2d 920, 929-30 (9' Dist. 1993)). East Cleveland’s request to compel such information is denied. Section 4 Requests The Court finds East Cleveland’s arguments in Section 4 of its Motion to be moot. CONCLUSION Accordingly, the Defendants’ Motion to Dismiss, filed on November 8, 2018, and Plaintiffs Motion for Leave to File Second Amended Complaint Instanter and Plaintiff's Motion to Compel Discovery, both filed November 30, 2018, are hereby GRANTED in part and DENIED in part. Plaintiff's Second Amended Complaint is hereby deemed filed instanter. However, Plaintiffs claims relating to ODE’s use of equivalency grades for the 2015-2016 and 2016-2017 school years are hereby DISMISSED, and Counts II and III are hereby STAYED. IT IS SO ORDERED. Page 15 of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N91 Franklin County Court of Common Pleas Date: 02-01-2019 Case Title: EAST CLEVELAND CITY SCHOOL DISTRICT -VS- STATE OF OHIO Case Number: 18CV009035 Type: ENTRY It Is So Ordered. /s/ Judge Kim Brown Electronically signed on 2019-Feb-01 page 16 of 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N92 Court Disposition Case Number: 18CV009035 Case Style: EAST CLEVELAND CITY SCHOOL DISTRICT -VS- STATE OF OHIO Motion Tie Off Information: 1. Motion CMS Document Id: 18CV0090352018-1 1-1699910000 Document Title: 11-16-2018- MOTION FOR LEAVE TO FILE - NON-PARTY: OHIO SCHOOL BOARDS ASSOCIATION Disposition: MOTION GRANTED 2. Motion CMS Document Id: 18CV0090352018-1 1-0999890000 Document Title: 11-09-2018-MOTION TO DISMISS - DEFENDANT: STATE OF OHIO Disposition: MOTION GRANTED IN PART 3. Motion CMS Document Id: 18CV0090352018-1 1-3099980000 Document Title: 11-30-2018-MOTION TO EXTEND TIME - PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT Disposition: MOTION GRANTED IN PART 4. Motion CMS Document Id: 18CV0090352018-1 1-3099910000 Document Title: 11-30-2018-MOTION FOR LEAVE TO FILE - PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT Disposition: MOTION GRANTED IN PART 5. Motion CMS Document Id: 18CV009035201 8-1 1-3099970000 Document Title: 11-30-2018- MOTION TO COMPEL DISCOVERY - PLAINTIFF: EAST CLEVELAND CITY SCHOOL DISTRICT Disposition: MOTION GRANTED IN PARTFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 01 1:39 PM-18CV009035 0E512 - N93