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0E390 - neranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
EAST CLEVELAND CITY SCHOOL
DISTRICT BOARD OF EDUCATION
1843 Stanwood Road
East Cleveland, OH 44112
CASE NO. 18 CV 009035
JUDGE KIM J. BROWN
Plaintiff, FIRST AMENDED VERIFIED
COMPLAINT AND APPLICATION FOR
TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION,
AND DECLARATORY JUDGMENT
vs.
STATE OF OHIO
c/o Ohio Secretary of State
180 East Broad Street, 16th Floor
Columbus, OH 43215
Evidentiary Hearing Requested
and
OHIO DEPARTMENT OF
EDUCATION
25 South Front Street
Columbus, OH 43215
and
PAOLO DeMARIA
Superintendent of Public Instruction
Ohio Department of Education
25 South Front Street
Columbus, OH 43215
SERVE ALSO:
STATE OF OHIO
c/o Mike DeWine, Ohio Attorney General
30 East Board Street, 14th Floor
Columbus, OH 43215
SSS SS SS SS SS SSS SS Seer eeeeeeenrn eee
Defendants.
Plaintiff East Cleveland City School District (“District”) Board of Education (“Plaintiff”
or “Board”) hereby submits its First Amended Complaint to this Court pursuant to Civ.R. 15(A)
against Defendants State of Ohio (“State”), Ohio Department of Education (“ODE”), and Paolo0E390 - pp ranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
DeMaria (“State Superintendent”) (collectively, “Defendants”), and hereby avers and alleges as
follows:
SUMMARY OF THE CASE
1. This case centers on the ability of a school district’s local board of education to make
incremental, positive changes over time to address the needs of the “whole child” and help
its students succeed both academically and in life. Based on an improper reading of Ohio
law, flawed report card, and unconstitutional legislation, Defendants seek to wrest control
away from the Board mid-school year and impose an unelected academic distress
commission (““ADC”) over it —i.e., impose takeover of the District by the State. The Board
seeks to enjoin Defendants from unlawfully placing the District under an ADC. The Board
also seeks declaratory judgment regarding (1) the interpretation of the Ohio law governing
ADCs, and (2) the constitutionality of the legislation which empowered Defendants to
establish an ADC in this manner.
PARTIES, JURISDICTION, AND VENUE
2. The Board is the duly constituted and acting board of education for the District, located in
Cuyahoga County. Pursuant to R.C. §3313.17, the Board is a body politic and corporate,
organized and existing pursuant to the laws of the State of Ohio, capable of suing and being
sued, and capable of contracting and being contracted with.
3. Defendant State is the statewide governmental body that passes legislation through its
General Assembly, which is then signed into law by its Governor. The State oversees,
employs, and directs the other co-Defendants and is ultimately responsible for the State’s
public education system.0E390 - ie ranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
4. ODE oversees the State’s public education system, which includes city, local, and
exempted village public school districts, joint vocational school districts, and charter
schools. The ODE is responsible for administering the school funding system, developing
academic standards and curricula, administering achievement tests and assessments, and
issuing district and school report cards and overall letter grades, among other things. The
ODE is also responsible for the licensing and education of teachers, administrators,
treasurers, superintendents, and other education personnel.
5. The State Superintendent, in his official capacity as Superintendent of Public Instruction,
is responsible for establishing ADCs for any school district that meets the conditions
outlined in R.C. §3302.10 (the “ADC Statute”). The State Superintendent’s responsibility
under the ADC Statute includes appointing three of the five commission members and
designating a chairperson of the ADC. The ADC then appoints a chief executive officer
(“CEO”), who exercises “complete operational, managerial, and instructional control over
the district.” R.C. §3302.10(C)(1).
6. This Court has jurisdiction over this dispute pursuant to R.C. §§2727.02 and 2727.03.
7. Venue is proper in this Court pursuant to Ohio Civ.R. 3.
FACTS COMMON TO ALL CLAIMS
8. The Board restates each and every allegation set forth in Paragraphs 1 through 7 of this
Complaint as if fully rewritten herein.
9. In or around the 2014-2015 school year,' the State and the ODE were scheduled to begin
issuing State report cards to school districts in Ohio, evaluating them on various criteria.
Included in those criteria was student performance on State-required tests.
' A school year, pursuant to R.C. §3313.62, runs from July 1 to June 30 of the succeeding calendar
year.0E390 - L9
IL.
12,
13.
14.
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In or around the 2014-2015 school year, the ODE transitioned to a new test for students
known as PARCC assessments.
Due to testing errors and statewide outcry about the PARCC assessments, on or around
March 16, 2015, the General Assembly created and passed emergency legislation to
insulate students and school districts from the 2014-2015 State test results. 2015 H.B. 7.
The General Assembly declared in House Bill 7 that “immediate action is needed in order
to address in a timely manner issues related to the administration of state elementary and
secondary assessments for the 2014-2015 school year.” Id., at Section 6.
House Bill 7 expanded R.C. §3302.036, commonly known as “Safe Harbor,” which
prevented the ODE from assigning overall letter grades to any school district or building
for the 2014-2015 school year due to the issues with the PARCC assessments.
On or around June 30, 2015, the General Assembly enacted its Fiscal Year 2016-2017
Budget Bill, House Bill 64. 2015 H.B. 64. The Budget Bill defunded the State’s
assessment provider, required a new test provider for the 2015-2016 school year, and
demanded the State Superintendent overhaul the 2015-2016 assessments. Id., at Section
263.620.
With all the changes in testing, the Budget Bill also prevented the ODE from assigning an
overall letter grade to schools for the 2015-2016 and 2016-2017 State report cards. The
Budget Bill enacted R.C. §3302.03(B)(4), which declared, “There shall not be an overall
letter grade for a school district or building for the 2013-2014, 2014-2015, 2015-2016, and
2016-2017 school years.” Id. (eff. Sept. 29, 2015).
In a similar vein, the Budget Bill further expanded the Safe Harbor statute to prohibit the
ODE from assigning overall letter grades to any school district or building for the 2014-
2015, 2015-2016, and 2016-2017 school years. R.C. §3302.036 (eff. Sept. 29, 2015).Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
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16.
18.
19.
The ODE issued a public statement regarding Safe Harbor indicating that, “To give
schools, teachers and students time to adjust, new Ohio law suspends many of the
consequences for the 2014-2015, 2015-2016 and 2016-2017 school years.” ODE, Safe
Harbor Guidance, available at http://education.ohio.gov/Topics/Data/Report-Card-
Resources/Safe-Harbor-Guidance (last accessed July 25, 2018).
The District is in the poorest city in Ohio and the fourth-poorest city in the United States.
According to the most recent census, 61.6% of children in East Cleveland live in poverty.
Comen, America’s Poorest Towns, 24/7 Wall Street (June 11, 2018) (citing U.S. Census
Bureau, American Community Survey (2016)).
Recognizing the realities that come with being the poorest city in Ohio and the fourth-
poorest city in the United States, the District has initiated programs and partnerships that
are designed to meet every student’s academic, wellness, and emotional needs — i.e., to
meet the needs of the “whole child.” Staff have been trained in trauma-informed
classrooms, and the District was the first in the State to create a wellness center. The
District provides medical, mental health, dental, and vision services at no charge to its
students. Similarly, breakfast, lunch, and dinner are available for free to all students. By
addressing the needs of the whole child, the District is overcoming initial obstacles and
positioning students to succeed.
During the same time that the General Assembly was grappling with how Ohio evaluates
students, teachers, administrators, and school districts through testing and report cards, the
Board and the District were making every effort possible and permitted by law to respond
to new State testing. The District also continued to address the needs of the whole child.20.
21.
22.
23,
24,
25.
26.
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On or around June 24, 2015, the 131st General Assembly passed Amended House Bill 70
(“HB 70”). HB 70 was approved and signed into law on or around July 17, 2015 and went
into effect on October 15, 2015.
When HB 70 was originally introduced in the House of Representatives, it proposed only
to enact three new sections to the Revised Code which permitted local school governing
bodies to create community learning centers in their districts; it was only 10 pages long.
HB 70 was passed by the House and sent to the Senate, where the Senate referred it to
committee.
The Senate committee returned a substitute version of HB 70 which vitally altered the
original bill. HB 70 was so heavily changed that it exploded in length to 77 pages, amended
numerous other provisions of the Revised Code which had not been considered by the
House, enacted additional new sections of the Revised Code, and repealed an existing
section of the Revised Code.
Specifically, substitute HB 70 enacted the current ADC Statute, which was never discussed
in the original bill.
The substitute version of HB 70 was not read and considered on three different days before
its passage. It was only read and considered on one day, and the legislature did not vote to
suspend the requirements of Article II, Section 15(C) of the Ohio Constitution.
The ADC Statute in HB 70 permits the State Superintendent to create a new ADC over a
school district only if that district “has received an overall grade of ‘F’ under [R.C.
3302.03(C)(3)] for three consecutive years.” R.C. §3302.10(A)(1).
HB 70 grants a single individual, a Chief Executive Officer, “complete operational,
managerial, and instructional control of the district, which shall include, but not be limited
to” the powers and duties listed in the ADC Statute. Among other things, HB 70 expressly
627.
28.
29.
30.
31.
32.
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grants the CEO authority to: change the mission of the school and its curriculum; replace
administrators and central office staff; make reductions in staff; contract for services for
the district; modify policies and procedures established by the district board; create a
budget for the district; set class sizes; select instructional materials and assessments;
establish employee compensation; and define employee responsibilities and job
descriptions.
HB 70 also grants the CEO authority to permanently close any or every school within a
district upon the approval of the unelected ADC. HB 70 provides no standards or measures
for permanent school closure.
Also within HB 70 is an uncodified law (the “Uncodified Law”). H.B. 70, at Section 6.
The Uncodified Law states that, “If the requirement to assign an overall letter grade for
school districts under [R.C. 3302.03(C)] is delayed beyond the report card issued for the
2015-2016 school year, [ODE] shall use the following equivalencies for [the ADC Statute]
until such time as [ODE] is authorized to assign an overall letter grade for districts[.]”
The Uncodified Law addresses the possibility of future legislation — ie., if future
legislation were to delay assigning overall letter grades, then ODE would have to use
equivalencies.
Upon information and belief, no future legislation delaying assigning overall letter grades
was ever enacted. Rather, such legislation was enacted prior to HB 70 and prior to the
Uncodified Law.
The Uncodified Law, which is a contingent law, was never triggered.
Defendants nevertheless appear to have interpreted Ohio law to permit the use of
equivalency grades for the 2015-2016 and 2016-2017 State report cards to determine a
school districts’ ADC eligibility.33.
34,
35.
36.
37.
38.
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On or around September 1, 2018, ODE provided preliminary reports to school districts
containing the data on which their 2017-2018 report card grades will be based. A true and
accurate copy of the District’s 2017-2018 Preliminary Report is attached hereto as Exhibit
1 (the “Preliminary Report”).
The Preliminary Report contains numerous mathematical errors on its face. For example,
the Gap Closing Component’s weighted points states “1 x 15.00% = 0.75,” which is
mathematically incorrect. Additionally, the Prepared for Success Component’s weighted
points states “.5 x 15.00% = .200,” which is also mathematically incorrect.
The Preliminary Report contains data inconsistencies on its face. For example, it indicates
three separate Gap Closing “component points” — .500 points, 0.750 points, and 1.00
point — when the data can be expressed only one way. There are also several instances in
which the Component Points indicated in the top half of the Preliminary Report do not
match the Component Points laid out in the calculations on the bottom left side of the
Preliminary Report.
Upon information and belief, the data and information on the Preliminary Report, including
but not limited to that outlined above, are inaccurate, incomplete, and unreliable.
Since the Preliminary Report is the basis for the final report card, the inaccuracy of the
Preliminary Report undermines the accuracy of the District’s final report card. Upon
information and belief, the District may not have actually received an overall grade of “F”
on the 2017-2018 report card because the data and information underlying the overall
report card grade was inaccurate, incomplete, and/or unreliable.
On or around September 13, 2018, the State Superintendent contacted the Superintendent
of the District and represented that the District would be taken over by an ADC this year.39.
40.
41.
42.
43.
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The State Superintendent further represented that he would be contacting the city mayor
and the Board president to discuss appointing members to the ADC that same day.
On or around September 13, 2018, the ODE issued report cards to school districts for the
2017-2018 school year.
On or around September 13, 2018, Defendants sent written notice to the Board and the
District that the District is being taken over by an ADC pursuant to the ADC Statute (the
“Notice”). A true and accurate copy of the Notice is attached hereto as Exhibit 2.
The Notice states, “Since the East Cleveland City School District (the ‘School District’)
has received an overall grade of ‘F’ on the Ohio School Report Card for three consecutive
years, this triggers the obligation to create an academic distress commission under ORC
§3302.10(A)(1).”
The Notice includes a timeline for the creation of the ADC. In the Notice, Defendants
represent that the members of the ADC must be appointed within 30 days of the date of the
Notice — in other words, appointments were to be made as soon as September 14, 2018 and
no later than October 13, 2018. The Notice further states that the ADC will begin to meet
and take action by October of 2018.
Upon information and belief, ADCs have been ineffective, unreliable, and disruptive to
academics, finances, and growth, and they have not been successful in producing the
measurable positive results promised.
Upon information and belief, both the public and the Legislature have since questioned the
utility of ADCs. The 132nd General Assembly recently enacted Senate Bill 216, which
requires the State Superintendent to “review all policies and procedures regarding
academic distress commissions established under section 3302.10 of the Revised Code and
prepare a report of its findings” by “not later than May 1, 2019.” That report will be
9Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
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45.
46.
47.
required to include recommendations for improving the appointment of members to the
ADCs, the duties and powers of the CEOs, and the results of the ADCs.
In or around August of 2018, ODE and the State Superintendent announced a new
education plan for 2019-2024 called “Each Child Our Future.” ODE, Each Child Our
Future, Ohio Strategic Plan __ For _Education: _ 2019-2024, available
http://education.chio.gov/getattachment/A bout/Ohios-Strategic-Plan-for-Education/Final-
Strategic-Plan-Board-Approved.pdf.aspx?lang=en-US (last accessed Sept. 11, 2018), The
new Plan seeks to measure student success beyond State testing and State report cards and
aims to develop the “whole child” — precisely as the Board and the District have been doing
over the past several years.
The Ohio Supreme Court recently accepted jurisdiction over a constitutional challenge to
HB 70 in Youngstown City School Dist. Bd. of Edn. v. State, No. 2018-1131 (appealing
the decision in Youngstown City School Dist. Bd. of Edn. v. State, 10th Dist. No. 17AP-
775, 2018-Ohio-2532). Among other things, the case asks the Supreme Court to decide
whether HB 70 violates the Ohio Constitution’s Three-Reading Rule and whether HB 70
violates Art. VI, § 3 of the Ohio Constitution. Ohio Constitution, Art. II, § 15(C) and Art.
VI, § 3.
Upon information and belief, none of the school districts in Ohio which have become
subject to an ADC has ever been able to remove itself from the yoke of an ADC once
imposed.
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48.
49.
50.
51.
52.
53.
54,
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COUNT I- DECLARATORY JUDGMENT (INTERPRETATION OF STATE LAW)
The Board restates each and every allegation set forth in Paragraphs 1 through 47 of this
Complaint as if fully rewritten herein.
Pursuant to the ADC Statute, Defendants have no legal authority to establish an ADC for
aschool district unless that district meets the conditions specified under R.C. §3302.10(A).
Defendants have wrongfully and illegally classified the Board and the District as falling
within the ADC Statute as a school district receiving an “overall grade of ‘F’ . . . for three
consecutive years[,]” and have notified the Board of their intent to establish an ADC in
clear violation of Ohio law. Defendants’ classification of the Board under this statute is
premised on the District’s 2015-2016, 2016-2017, and 2017-2018 State report cards.
The “overall grade” referred to in R.C. §3302.10 is defined by reference to R.C.
§3302.03(C)(3) (“Grading Statute”). R.C. §3302.10(A)(1). The Grading Statute requires
the State Board of Education to “establish a method to assign an overall letter grade for a
school district or school building for the 2017-2018 school year and each school year
thereafter.”
Since the Grading Statute only addresses the 2017-2018 report card grade, the 2017-2018
report card is the first year to be considered for purposes of the ADC Statute.
The Uncodified Law was not triggered, so ODE was not permitted to use equivalency
grades for purposes of the ADC Statute.
Even if the Uncodified Law had been triggered, the Uncodified Law only permits ODE to
use equivalencies for overall letter grades for the ADC Statute “beyond the report card
issued for the 2015-2016 school year.” In contravention to the plain language of the
Grading Statute and Uncodified Law, Defendants have classified the District as requiring
155.
56.
57.
58.
59.
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an ADC using an overall grade equivalency for the 2015-2016 report card, which is not
permitted.
The Uncodified Law cannot supersede existing language in a codified statute, such as R.C.
§§3302.03(B)(4) and 3302.036.
Upon information and belief, the District’s 2017-2018 report card grade was based on
inaccurate, incomplete, and unreliable underlying data, and the District may not have
actually received an overall grade of “F” to trigger the “three consecutive years”
requirement under the ADC Statute.
Defendants’ improper interpretations of the relevant statutes places school districts,
including the District, under control of an ADC prematurely and without legal authority.
In order to resolve this controversy, it is necessary for this Court to determine and declare
the Board’s rights and Defendants’ obligations under the relevant statutes, and to determine
which school year starts the count of “three consecutive years” for a school district’s
eligibility for an ADC.
In order to further resolve this controversy, if the Court determines and declares that the
District’s 2017-2018 report card grade would be the third consecutive year for purposes of
ADC eligibility, then it is necessary for this Court to determine and declare whether the
relevant data for the District supported the assignment of an overall grade of “F” to the
District on the District’s 2017-2018 report card.
COUNT II - DECLARATORY JUDGMENT (CONSTITUTIONALITY OF B.B. 70
60.
61.
UNDER ART. Il, § 15(C) OF THE OHIO CONSTITUTIO
The Board restates each and every allegation set forth in Paragraphs 1 through 59 of this
Complaint as if fully rewritten herein.
Art. II, § 15(C) of the Ohio Constitution requires that “every bill shall be considered by
each house on three different days, unless two-thirds of the members elected to the house
1262.
63.
64.
65.
66.
67.
68.
69.
Franklin Count hio Clerk of if - u -
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in which it is pending suspend this requirement and every individual consideration of a bill
or action suspending the requirement shall be recorded in the journal of the respective
house.” See also Hoover v. Bd. of Cty. Commrs., 19 Ohio St.3d 1 (1985).
The three-reading rule is a mandatory rule. See Hoover, supra.
The absence of entries in the legislative journals reflecting that a particular step in the
enactment process have been taken renders the enactment invalid. See Id.
Amended HB 70 was vitally altered from the original HB 70 such that it no longer
contained a common purpose or theme. Upon information and belief, this vital alteration
resulted in 24 of the original sponsors of the bill revoking their sponsorship and voting
against it, and one House member who introduced the original bill also voting against it.
This vital alteration of HB 70 triggered a requirement for three new readings of the
amended bill on three different days before the General Assembly could lawfully pass it.
The legislative journals establish that the amended version of HB 70 was considered on
only one day: June 24, 2015.
Upon information and belief, the General Assembly did not vote to suspend the
requirements of the three-reading rule relative to the consideration of HB 70.
By passing the bill without adhering to the three-reading rule, the Board, the District, the
legislators, and citizens of the State were deprived of the opportunity to discuss and
consider the merits and impact of the bill, including its impact on the evaluation of school
districts.
Because HB 70 violates the three-reading rule of the Ohio Constitution, HB 70 is
unconstitutional and invalid.
1370.
71.
72.
73.
74,
75.
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Because HB 70 is unconstitutional and invalid, the ADC Statute and the Uncodified Law
within HB 70 are also unconstitutional and invalid, and they cannot serve as the basis for
Defendants to establish an ADC over the Board.
COUNT HI —- DECLARATORY JUDGMENT (CONSTITUTIONALITY OF H.B. 70
UNDER ART. VI, § 3 OF THE OHIO CONSTITUTION)
The Board restates each and every allegation set forth in Paragraphs | through 70 of this
Complaint as if fully rewritten herein.
Art. VI, § 3 of the Ohio Constitution states, “Provision shall be made by law for the
organization, administration and control of the public school system of the state supported
by public funds: provided, that each school district embraced wholly or in part within any
city shall have the power by referendum vote to determine for itself the number of members
and the organization of the district board of education, and provision shall be made by law
for the exercise of this power by such school districts.”
The District is a “school district embraced wholly or in part within any city” as set forth in
Art. VI, § 3 of the Ohio Constitution.
In contravention of Art. VI, § 3, HB 70 allows for the complete elimination of a city school
district without consent, debate, or input from the voters in a city school district.
HB 70 violates Art. VI, § 3 of the Ohio Constitution by usurping the powers of city school
districts and their duly-elected boards of education and places all power in the hands of an
unelected CEO and an unelected ADC. HB 70 further violates Art. VI, § 3 of the Ohio
Constitution by allowing the CEO to eliminate every school within a city school district,
thus eliminating the school district itself; allowing the elimination of a city school district
renders Art. VI, § 3 meaningless.
1476.
77,
78.
79.
80.
81.
82.
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Because HB 70 violates Art. VI, § 3 of the Ohio Constitution, HB 70 is unconstitutional
and invalid.
Because HB 70 is unconstitutional and invalid, the ADC Statute and the Uncodified Law
within HB 70 are also unconstitutional and invalid, and they cannot serve as the basis for
Defendants to establish an ADC over the Board.
COUNT IV - TEMPORARY RESTRAINING ORDER
The Board restates each and every allegation set forth in Paragraphs 1 through 77 of this
Complaint as if fully rewritten herein.
Defendants, as indicated in the Notice, are taking immediate action to create an ADC, and
they intend to establish the full ADC by no later than October 13, 2018.
Defendants’ action in creating the ADC is premature and unlawful. Specifically, for the
reasons outlined above and herein, the District has not received three overall “F” grades
which would trigger the ADC Statute, and HB 70 is unconstitutional.
The Board has already suffered and will continue to suffer immediate irreparable harm
because of its wrongful classification under the ADC Statute, the unlawful conduct of
Defendants in notifying the Board that the District is subject to the provisions of the ADC
Statute, and Defendants’ taking action to establish the ADC.
Unless Defendants are enjoined from establishing an ADC over the District, the Board and
the District will suffer and continue to suffer irreparable harm, including the imposition of
an ADC (from which no school district has ever been released), disruption in services
offered to and academic progress being achieved by the students and administration in the
middle of an academic year, and other harm.
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83.
84,
85.
86.
87.
88.
The Board has no adequate remedy in the ordinary course of law. There is no appeals or
reconsideration process in the ADC statute.
Contemporaneously with the filing of the original Complaint, the Board filed a Motion for
a Temporary Restraining Order and Memorandum in Support of the Motion pursuant to
this Count.
As outlined above and herein and in the contemporaneous filings of Paragraph 84, a
temporary restraining order is necessary to prevent further harm and maintain the status
quo until this Court can hold a hearing on the Board’s request for a preliminary injunction
(outlined in Count V below).
COUNT V — PRELIMINARY AND PERMANENT INJUNCTION
The Board restates each and every allegation set forth in Paragraphs 1 through 85 of this
Complaint as if fully rewritten herein.
The Board has suffered and will continue to suffer irreparable harm because of its wrongful
classification under the ADC Statute and the unlawful conduct of Defendants in declaring
that the Board and the District are subject to the ADC Statute.
Unless Defendants are enjoined from creating an ADC and proceeding under the ADC
Statute, the Board and the District will suffer and continue to suffer irreparable harm. That
harm includes, but is not limited to:
a. Reconstituting schools during the 2018-2019 school year;
b. Replacing school administrators, teachers, and staff during the 2018-2019 school
year,
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d. Encouraging students to enroll in other schools, including private or charter
schools, which will destabilize and decrease the Board’s funding, and which will
force the Board and the District to cut programming offered to students;
e. Other harm to be established at further hearings on this matter.
89. This harm is particularly irreparable in a community like East Cleveland, where the District
and the Board are a hub of safety, reliability, and stability for children and families residing
within the District’s boundaries.
90. None of the irreparable injury outlined above is recoverable from the State at law, so the
Board has no adequate remedy in the ordinary course of law.
91. The granting of injunctive relief will impose no burden upon Defendants, and no third
parties will be harmed by the granting of the injunctive relief.
92. The public interest will be served by granting the Board injunctive relief.
93. Plaintiff is not required to post a bond or other security in relation to this claim.
WHEREFORE, Plaintiff respectfully requests relief as follows:
1. For Count I, that this Court declare the rights and obligations of the parties, and further
declare that:
a. Pursuant to R.C. §3302.03(B)(4) and R.C. §3302.036, the 2017-2018 school year
is the first year for which Defendants are legally permitted to assign an overall letter
grade for a school or school district;
b. Pursuant to R.C. §3302.10, an ADC cannot be appointed until a school district has
been assigned “three consecutive years” of overall “F” grades;
c Pursuant to R.C. §3302.10, the earliest possible date an ADC could be appointed
for a school district is after the release of the 2019-2020 Report Card;
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d. Defendants lack the legal authority under R.C. §3302.10 and related statutes to
assign an overall grade of “F” for Plaintiff for school years 2015-2016, 2016-2017
and 2017-2018; and
e, The State Superintendent lacks the legal authority to appoint an ADC for the
District.
2. For Count II, that this Court declare HB 70 unconstitutional and invalid for violation of the
Ohio Constitution’s Three-Reading Rule.
3. For Count III, that this Court declare HB 70 unconstitutional and invalid for violation of
Art. VI, § 3 of the Ohio Constitution.
4. For Count IV, that the Court issue a temporary restraining order against Defendants
enjoining them from taking any steps toward creating an ADC over Plaintiff and its school
district until this Court can hold an evidentiary hearing on Plaintiff's request for a
preliminary injunction.
5. For Count V, that the Court issue a preliminary injunction for the duration of this lawsuit —
and ultimately a permanent injunction — enjoining Defendants from taking any steps toward
enacting an ADC over Plaintiff and the District until this Court determines the rights and
obligations of the parties as outlined above and herein.
6. That this Court award Plaintiff its reasonable attorney fees and costs incurred in this matter
pursuant to R.C. §2335.39.
18Frankli i . Y -
0E390 - i742" lin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
7. That this Court award such other and additional relief, in law or equity, as it may deem just
and proper.
Respectfully submitted,
/s/ Donna M. Andrew
Donna M. Andrew, Esq. (0066910)
Christian M. Williams, Esq. (0063960)
Brian J. DeSantis, Esq. (0089739)
Samantha A. Vajskop, Esq. (0087837)
Pepple & Waggoner, Ltd.
Crown Centre Building
5005 Rockside Road, Suite 260
Cleveland, OH 44131-6808
Tel.: 216-520-0088
Fax: 216-520-0044
E-mail:dandrew@pepple-waggoner.com
cwilliams@pepple-waggoner.com
bdesantis@pepple-waggoner.com
svajskop@pepple-waggoner.com
Attorneys for Plaintiff East Cleveland
City School District Board of EducationFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
0E390 - L25
VERIFICATION
1, Dr. Myrna Loy Corley, being duly sworn, hereby verify the following:
1, Tam the Superintendent of the East Cleveland City School District.
2. 1 have read the allegations contained in the foregoing First Amended Verified
Complaint and Application for Temporary Restraining Order, Preliminary Injunction, and
Declaratory Judgment, and all of the facts alleged therein are true and accurate to the best of my
knowledge.
LM Mahe Libby,
Dr. Myrna 1, dy Corley Super intengeft
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Sworn to and subscribed before me this
a4
Zt Public
\ ig
ROSERT RAMSEY,
20Franklin C i - Y -
0E390 - ud gan jin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035
CERTIFICATE OF SERVICE
I hereby certify that on the 1st day of November, 2018, a copy of the foregoing First
Amended Verified Complaint and Application for Temporary Restraining Order, Preliminary
Injunction, and Declaratory Judgment was served by Court Notice of Electronic Filing (“NEF”)
and/or electronic mail to the following:
Douglas R. Cole, Esq.
David J. Twombly, Esq.
Sean Stiff, Esq.
Carrie M. Lymanstall, Esq.
Organ Cole, LLP
1330 Dublin Road
Columbus, OH 43215
Attorneys for Defendants
State of Ohio, Ohio Department
of Education, and Superintendent
of Public Instruction Paolo DeMaria
/s/ Donna M. Andrew
Donna M. Andrew, Esq. (0066910)
Attorney for Plaintiff East Cleveland City
School District Board of Education
21
Preview
0E390 - neranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO EAST CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION 1843 Stanwood Road East Cleveland, OH 44112 CASE NO. 18 CV 009035 JUDGE KIM J. BROWN Plaintiff, FIRST AMENDED VERIFIED COMPLAINT AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND DECLARATORY JUDGMENT vs. STATE OF OHIO c/o Ohio Secretary of State 180 East Broad Street, 16th Floor Columbus, OH 43215 Evidentiary Hearing Requested and OHIO DEPARTMENT OF EDUCATION 25 South Front Street Columbus, OH 43215 and PAOLO DeMARIA Superintendent of Public Instruction Ohio Department of Education 25 South Front Street Columbus, OH 43215 SERVE ALSO: STATE OF OHIO c/o Mike DeWine, Ohio Attorney General 30 East Board Street, 14th Floor Columbus, OH 43215 SSS SS SS SS SS SSS SS Seer eeeeeeenrn eee Defendants. Plaintiff East Cleveland City School District (“District”) Board of Education (“Plaintiff” or “Board”) hereby submits its First Amended Complaint to this Court pursuant to Civ.R. 15(A) against Defendants State of Ohio (“State”), Ohio Department of Education (“ODE”), and Paolo0E390 - pp ranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 DeMaria (“State Superintendent”) (collectively, “Defendants”), and hereby avers and alleges as follows: SUMMARY OF THE CASE 1. This case centers on the ability of a school district’s local board of education to make incremental, positive changes over time to address the needs of the “whole child” and help its students succeed both academically and in life. Based on an improper reading of Ohio law, flawed report card, and unconstitutional legislation, Defendants seek to wrest control away from the Board mid-school year and impose an unelected academic distress commission (““ADC”) over it —i.e., impose takeover of the District by the State. The Board seeks to enjoin Defendants from unlawfully placing the District under an ADC. The Board also seeks declaratory judgment regarding (1) the interpretation of the Ohio law governing ADCs, and (2) the constitutionality of the legislation which empowered Defendants to establish an ADC in this manner. PARTIES, JURISDICTION, AND VENUE 2. The Board is the duly constituted and acting board of education for the District, located in Cuyahoga County. Pursuant to R.C. §3313.17, the Board is a body politic and corporate, organized and existing pursuant to the laws of the State of Ohio, capable of suing and being sued, and capable of contracting and being contracted with. 3. Defendant State is the statewide governmental body that passes legislation through its General Assembly, which is then signed into law by its Governor. The State oversees, employs, and directs the other co-Defendants and is ultimately responsible for the State’s public education system.0E390 - ie ranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 4. ODE oversees the State’s public education system, which includes city, local, and exempted village public school districts, joint vocational school districts, and charter schools. The ODE is responsible for administering the school funding system, developing academic standards and curricula, administering achievement tests and assessments, and issuing district and school report cards and overall letter grades, among other things. The ODE is also responsible for the licensing and education of teachers, administrators, treasurers, superintendents, and other education personnel. 5. The State Superintendent, in his official capacity as Superintendent of Public Instruction, is responsible for establishing ADCs for any school district that meets the conditions outlined in R.C. §3302.10 (the “ADC Statute”). The State Superintendent’s responsibility under the ADC Statute includes appointing three of the five commission members and designating a chairperson of the ADC. The ADC then appoints a chief executive officer (“CEO”), who exercises “complete operational, managerial, and instructional control over the district.” R.C. §3302.10(C)(1). 6. This Court has jurisdiction over this dispute pursuant to R.C. §§2727.02 and 2727.03. 7. Venue is proper in this Court pursuant to Ohio Civ.R. 3. FACTS COMMON TO ALL CLAIMS 8. The Board restates each and every allegation set forth in Paragraphs 1 through 7 of this Complaint as if fully rewritten herein. 9. In or around the 2014-2015 school year,' the State and the ODE were scheduled to begin issuing State report cards to school districts in Ohio, evaluating them on various criteria. Included in those criteria was student performance on State-required tests. ' A school year, pursuant to R.C. §3313.62, runs from July 1 to June 30 of the succeeding calendar year.0E390 - L9 IL. 12, 13. 14. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 In or around the 2014-2015 school year, the ODE transitioned to a new test for students known as PARCC assessments. Due to testing errors and statewide outcry about the PARCC assessments, on or around March 16, 2015, the General Assembly created and passed emergency legislation to insulate students and school districts from the 2014-2015 State test results. 2015 H.B. 7. The General Assembly declared in House Bill 7 that “immediate action is needed in order to address in a timely manner issues related to the administration of state elementary and secondary assessments for the 2014-2015 school year.” Id., at Section 6. House Bill 7 expanded R.C. §3302.036, commonly known as “Safe Harbor,” which prevented the ODE from assigning overall letter grades to any school district or building for the 2014-2015 school year due to the issues with the PARCC assessments. On or around June 30, 2015, the General Assembly enacted its Fiscal Year 2016-2017 Budget Bill, House Bill 64. 2015 H.B. 64. The Budget Bill defunded the State’s assessment provider, required a new test provider for the 2015-2016 school year, and demanded the State Superintendent overhaul the 2015-2016 assessments. Id., at Section 263.620. With all the changes in testing, the Budget Bill also prevented the ODE from assigning an overall letter grade to schools for the 2015-2016 and 2016-2017 State report cards. The Budget Bill enacted R.C. §3302.03(B)(4), which declared, “There shall not be an overall letter grade for a school district or building for the 2013-2014, 2014-2015, 2015-2016, and 2016-2017 school years.” Id. (eff. Sept. 29, 2015). In a similar vein, the Budget Bill further expanded the Safe Harbor statute to prohibit the ODE from assigning overall letter grades to any school district or building for the 2014- 2015, 2015-2016, and 2016-2017 school years. R.C. §3302.036 (eff. Sept. 29, 2015).Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L10 16. 18. 19. The ODE issued a public statement regarding Safe Harbor indicating that, “To give schools, teachers and students time to adjust, new Ohio law suspends many of the consequences for the 2014-2015, 2015-2016 and 2016-2017 school years.” ODE, Safe Harbor Guidance, available at http://education.ohio.gov/Topics/Data/Report-Card- Resources/Safe-Harbor-Guidance (last accessed July 25, 2018). The District is in the poorest city in Ohio and the fourth-poorest city in the United States. According to the most recent census, 61.6% of children in East Cleveland live in poverty. Comen, America’s Poorest Towns, 24/7 Wall Street (June 11, 2018) (citing U.S. Census Bureau, American Community Survey (2016)). Recognizing the realities that come with being the poorest city in Ohio and the fourth- poorest city in the United States, the District has initiated programs and partnerships that are designed to meet every student’s academic, wellness, and emotional needs — i.e., to meet the needs of the “whole child.” Staff have been trained in trauma-informed classrooms, and the District was the first in the State to create a wellness center. The District provides medical, mental health, dental, and vision services at no charge to its students. Similarly, breakfast, lunch, and dinner are available for free to all students. By addressing the needs of the whole child, the District is overcoming initial obstacles and positioning students to succeed. During the same time that the General Assembly was grappling with how Ohio evaluates students, teachers, administrators, and school districts through testing and report cards, the Board and the District were making every effort possible and permitted by law to respond to new State testing. The District also continued to address the needs of the whole child.20. 21. 22. 23, 24, 25. 26. Fi it i . Y - 0F390 - Lranstin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 On or around June 24, 2015, the 131st General Assembly passed Amended House Bill 70 (“HB 70”). HB 70 was approved and signed into law on or around July 17, 2015 and went into effect on October 15, 2015. When HB 70 was originally introduced in the House of Representatives, it proposed only to enact three new sections to the Revised Code which permitted local school governing bodies to create community learning centers in their districts; it was only 10 pages long. HB 70 was passed by the House and sent to the Senate, where the Senate referred it to committee. The Senate committee returned a substitute version of HB 70 which vitally altered the original bill. HB 70 was so heavily changed that it exploded in length to 77 pages, amended numerous other provisions of the Revised Code which had not been considered by the House, enacted additional new sections of the Revised Code, and repealed an existing section of the Revised Code. Specifically, substitute HB 70 enacted the current ADC Statute, which was never discussed in the original bill. The substitute version of HB 70 was not read and considered on three different days before its passage. It was only read and considered on one day, and the legislature did not vote to suspend the requirements of Article II, Section 15(C) of the Ohio Constitution. The ADC Statute in HB 70 permits the State Superintendent to create a new ADC over a school district only if that district “has received an overall grade of ‘F’ under [R.C. 3302.03(C)(3)] for three consecutive years.” R.C. §3302.10(A)(1). HB 70 grants a single individual, a Chief Executive Officer, “complete operational, managerial, and instructional control of the district, which shall include, but not be limited to” the powers and duties listed in the ADC Statute. Among other things, HB 70 expressly 627. 28. 29. 30. 31. 32. Fi it i . Y - 0F390 - iaganktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 grants the CEO authority to: change the mission of the school and its curriculum; replace administrators and central office staff; make reductions in staff; contract for services for the district; modify policies and procedures established by the district board; create a budget for the district; set class sizes; select instructional materials and assessments; establish employee compensation; and define employee responsibilities and job descriptions. HB 70 also grants the CEO authority to permanently close any or every school within a district upon the approval of the unelected ADC. HB 70 provides no standards or measures for permanent school closure. Also within HB 70 is an uncodified law (the “Uncodified Law”). H.B. 70, at Section 6. The Uncodified Law states that, “If the requirement to assign an overall letter grade for school districts under [R.C. 3302.03(C)] is delayed beyond the report card issued for the 2015-2016 school year, [ODE] shall use the following equivalencies for [the ADC Statute] until such time as [ODE] is authorized to assign an overall letter grade for districts[.]” The Uncodified Law addresses the possibility of future legislation — ie., if future legislation were to delay assigning overall letter grades, then ODE would have to use equivalencies. Upon information and belief, no future legislation delaying assigning overall letter grades was ever enacted. Rather, such legislation was enacted prior to HB 70 and prior to the Uncodified Law. The Uncodified Law, which is a contingent law, was never triggered. Defendants nevertheless appear to have interpreted Ohio law to permit the use of equivalency grades for the 2015-2016 and 2016-2017 State report cards to determine a school districts’ ADC eligibility.33. 34, 35. 36. 37. 38. Fi it i . Y - 0F390 - Lrganstin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 On or around September 1, 2018, ODE provided preliminary reports to school districts containing the data on which their 2017-2018 report card grades will be based. A true and accurate copy of the District’s 2017-2018 Preliminary Report is attached hereto as Exhibit 1 (the “Preliminary Report”). The Preliminary Report contains numerous mathematical errors on its face. For example, the Gap Closing Component’s weighted points states “1 x 15.00% = 0.75,” which is mathematically incorrect. Additionally, the Prepared for Success Component’s weighted points states “.5 x 15.00% = .200,” which is also mathematically incorrect. The Preliminary Report contains data inconsistencies on its face. For example, it indicates three separate Gap Closing “component points” — .500 points, 0.750 points, and 1.00 point — when the data can be expressed only one way. There are also several instances in which the Component Points indicated in the top half of the Preliminary Report do not match the Component Points laid out in the calculations on the bottom left side of the Preliminary Report. Upon information and belief, the data and information on the Preliminary Report, including but not limited to that outlined above, are inaccurate, incomplete, and unreliable. Since the Preliminary Report is the basis for the final report card, the inaccuracy of the Preliminary Report undermines the accuracy of the District’s final report card. Upon information and belief, the District may not have actually received an overall grade of “F” on the 2017-2018 report card because the data and information underlying the overall report card grade was inaccurate, incomplete, and/or unreliable. On or around September 13, 2018, the State Superintendent contacted the Superintendent of the District and represented that the District would be taken over by an ADC this year.39. 40. 41. 42. 43. Fi it i . Y - 0F390 - iarqensiin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 The State Superintendent further represented that he would be contacting the city mayor and the Board president to discuss appointing members to the ADC that same day. On or around September 13, 2018, the ODE issued report cards to school districts for the 2017-2018 school year. On or around September 13, 2018, Defendants sent written notice to the Board and the District that the District is being taken over by an ADC pursuant to the ADC Statute (the “Notice”). A true and accurate copy of the Notice is attached hereto as Exhibit 2. The Notice states, “Since the East Cleveland City School District (the ‘School District’) has received an overall grade of ‘F’ on the Ohio School Report Card for three consecutive years, this triggers the obligation to create an academic distress commission under ORC §3302.10(A)(1).” The Notice includes a timeline for the creation of the ADC. In the Notice, Defendants represent that the members of the ADC must be appointed within 30 days of the date of the Notice — in other words, appointments were to be made as soon as September 14, 2018 and no later than October 13, 2018. The Notice further states that the ADC will begin to meet and take action by October of 2018. Upon information and belief, ADCs have been ineffective, unreliable, and disruptive to academics, finances, and growth, and they have not been successful in producing the measurable positive results promised. Upon information and belief, both the public and the Legislature have since questioned the utility of ADCs. The 132nd General Assembly recently enacted Senate Bill 216, which requires the State Superintendent to “review all policies and procedures regarding academic distress commissions established under section 3302.10 of the Revised Code and prepare a report of its findings” by “not later than May 1, 2019.” That report will be 9Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L15 45. 46. 47. required to include recommendations for improving the appointment of members to the ADCs, the duties and powers of the CEOs, and the results of the ADCs. In or around August of 2018, ODE and the State Superintendent announced a new education plan for 2019-2024 called “Each Child Our Future.” ODE, Each Child Our Future, Ohio Strategic Plan __ For _Education: _ 2019-2024, available http://education.chio.gov/getattachment/A bout/Ohios-Strategic-Plan-for-Education/Final- Strategic-Plan-Board-Approved.pdf.aspx?lang=en-US (last accessed Sept. 11, 2018), The new Plan seeks to measure student success beyond State testing and State report cards and aims to develop the “whole child” — precisely as the Board and the District have been doing over the past several years. The Ohio Supreme Court recently accepted jurisdiction over a constitutional challenge to HB 70 in Youngstown City School Dist. Bd. of Edn. v. State, No. 2018-1131 (appealing the decision in Youngstown City School Dist. Bd. of Edn. v. State, 10th Dist. No. 17AP- 775, 2018-Ohio-2532). Among other things, the case asks the Supreme Court to decide whether HB 70 violates the Ohio Constitution’s Three-Reading Rule and whether HB 70 violates Art. VI, § 3 of the Ohio Constitution. Ohio Constitution, Art. II, § 15(C) and Art. VI, § 3. Upon information and belief, none of the school districts in Ohio which have become subject to an ADC has ever been able to remove itself from the yoke of an ADC once imposed. 100E390 - L 48. 49. 50. 51. 52. 53. 54, fganktin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 COUNT I- DECLARATORY JUDGMENT (INTERPRETATION OF STATE LAW) The Board restates each and every allegation set forth in Paragraphs 1 through 47 of this Complaint as if fully rewritten herein. Pursuant to the ADC Statute, Defendants have no legal authority to establish an ADC for aschool district unless that district meets the conditions specified under R.C. §3302.10(A). Defendants have wrongfully and illegally classified the Board and the District as falling within the ADC Statute as a school district receiving an “overall grade of ‘F’ . . . for three consecutive years[,]” and have notified the Board of their intent to establish an ADC in clear violation of Ohio law. Defendants’ classification of the Board under this statute is premised on the District’s 2015-2016, 2016-2017, and 2017-2018 State report cards. The “overall grade” referred to in R.C. §3302.10 is defined by reference to R.C. §3302.03(C)(3) (“Grading Statute”). R.C. §3302.10(A)(1). The Grading Statute requires the State Board of Education to “establish a method to assign an overall letter grade for a school district or school building for the 2017-2018 school year and each school year thereafter.” Since the Grading Statute only addresses the 2017-2018 report card grade, the 2017-2018 report card is the first year to be considered for purposes of the ADC Statute. The Uncodified Law was not triggered, so ODE was not permitted to use equivalency grades for purposes of the ADC Statute. Even if the Uncodified Law had been triggered, the Uncodified Law only permits ODE to use equivalencies for overall letter grades for the ADC Statute “beyond the report card issued for the 2015-2016 school year.” In contravention to the plain language of the Grading Statute and Uncodified Law, Defendants have classified the District as requiring 155. 56. 57. 58. 59. Franklin hio Clerk - Yu - 0E390 - uf jin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 an ADC using an overall grade equivalency for the 2015-2016 report card, which is not permitted. The Uncodified Law cannot supersede existing language in a codified statute, such as R.C. §§3302.03(B)(4) and 3302.036. Upon information and belief, the District’s 2017-2018 report card grade was based on inaccurate, incomplete, and unreliable underlying data, and the District may not have actually received an overall grade of “F” to trigger the “three consecutive years” requirement under the ADC Statute. Defendants’ improper interpretations of the relevant statutes places school districts, including the District, under control of an ADC prematurely and without legal authority. In order to resolve this controversy, it is necessary for this Court to determine and declare the Board’s rights and Defendants’ obligations under the relevant statutes, and to determine which school year starts the count of “three consecutive years” for a school district’s eligibility for an ADC. In order to further resolve this controversy, if the Court determines and declares that the District’s 2017-2018 report card grade would be the third consecutive year for purposes of ADC eligibility, then it is necessary for this Court to determine and declare whether the relevant data for the District supported the assignment of an overall grade of “F” to the District on the District’s 2017-2018 report card. COUNT II - DECLARATORY JUDGMENT (CONSTITUTIONALITY OF B.B. 70 60. 61. UNDER ART. Il, § 15(C) OF THE OHIO CONSTITUTIO The Board restates each and every allegation set forth in Paragraphs 1 through 59 of this Complaint as if fully rewritten herein. Art. II, § 15(C) of the Ohio Constitution requires that “every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house 1262. 63. 64. 65. 66. 67. 68. 69. Franklin Count hio Clerk of if - u - 0E390 - its jin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 in which it is pending suspend this requirement and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house.” See also Hoover v. Bd. of Cty. Commrs., 19 Ohio St.3d 1 (1985). The three-reading rule is a mandatory rule. See Hoover, supra. The absence of entries in the legislative journals reflecting that a particular step in the enactment process have been taken renders the enactment invalid. See Id. Amended HB 70 was vitally altered from the original HB 70 such that it no longer contained a common purpose or theme. Upon information and belief, this vital alteration resulted in 24 of the original sponsors of the bill revoking their sponsorship and voting against it, and one House member who introduced the original bill also voting against it. This vital alteration of HB 70 triggered a requirement for three new readings of the amended bill on three different days before the General Assembly could lawfully pass it. The legislative journals establish that the amended version of HB 70 was considered on only one day: June 24, 2015. Upon information and belief, the General Assembly did not vote to suspend the requirements of the three-reading rule relative to the consideration of HB 70. By passing the bill without adhering to the three-reading rule, the Board, the District, the legislators, and citizens of the State were deprived of the opportunity to discuss and consider the merits and impact of the bill, including its impact on the evaluation of school districts. Because HB 70 violates the three-reading rule of the Ohio Constitution, HB 70 is unconstitutional and invalid. 1370. 71. 72. 73. 74, 75. Frankli i . : - 0E390 - Lig" lin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 Because HB 70 is unconstitutional and invalid, the ADC Statute and the Uncodified Law within HB 70 are also unconstitutional and invalid, and they cannot serve as the basis for Defendants to establish an ADC over the Board. COUNT HI —- DECLARATORY JUDGMENT (CONSTITUTIONALITY OF H.B. 70 UNDER ART. VI, § 3 OF THE OHIO CONSTITUTION) The Board restates each and every allegation set forth in Paragraphs | through 70 of this Complaint as if fully rewritten herein. Art. VI, § 3 of the Ohio Constitution states, “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.” The District is a “school district embraced wholly or in part within any city” as set forth in Art. VI, § 3 of the Ohio Constitution. In contravention of Art. VI, § 3, HB 70 allows for the complete elimination of a city school district without consent, debate, or input from the voters in a city school district. HB 70 violates Art. VI, § 3 of the Ohio Constitution by usurping the powers of city school districts and their duly-elected boards of education and places all power in the hands of an unelected CEO and an unelected ADC. HB 70 further violates Art. VI, § 3 of the Ohio Constitution by allowing the CEO to eliminate every school within a city school district, thus eliminating the school district itself; allowing the elimination of a city school district renders Art. VI, § 3 meaningless. 1476. 77, 78. 79. 80. 81. 82. 0E390 - waganntin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 Because HB 70 violates Art. VI, § 3 of the Ohio Constitution, HB 70 is unconstitutional and invalid. Because HB 70 is unconstitutional and invalid, the ADC Statute and the Uncodified Law within HB 70 are also unconstitutional and invalid, and they cannot serve as the basis for Defendants to establish an ADC over the Board. COUNT IV - TEMPORARY RESTRAINING ORDER The Board restates each and every allegation set forth in Paragraphs 1 through 77 of this Complaint as if fully rewritten herein. Defendants, as indicated in the Notice, are taking immediate action to create an ADC, and they intend to establish the full ADC by no later than October 13, 2018. Defendants’ action in creating the ADC is premature and unlawful. Specifically, for the reasons outlined above and herein, the District has not received three overall “F” grades which would trigger the ADC Statute, and HB 70 is unconstitutional. The Board has already suffered and will continue to suffer immediate irreparable harm because of its wrongful classification under the ADC Statute, the unlawful conduct of Defendants in notifying the Board that the District is subject to the provisions of the ADC Statute, and Defendants’ taking action to establish the ADC. Unless Defendants are enjoined from establishing an ADC over the District, the Board and the District will suffer and continue to suffer irreparable harm, including the imposition of an ADC (from which no school district has ever been released), disruption in services offered to and academic progress being achieved by the students and administration in the middle of an academic year, and other harm. 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L21 83. 84, 85. 86. 87. 88. The Board has no adequate remedy in the ordinary course of law. There is no appeals or reconsideration process in the ADC statute. Contemporaneously with the filing of the original Complaint, the Board filed a Motion for a Temporary Restraining Order and Memorandum in Support of the Motion pursuant to this Count. As outlined above and herein and in the contemporaneous filings of Paragraph 84, a temporary restraining order is necessary to prevent further harm and maintain the status quo until this Court can hold a hearing on the Board’s request for a preliminary injunction (outlined in Count V below). COUNT V — PRELIMINARY AND PERMANENT INJUNCTION The Board restates each and every allegation set forth in Paragraphs 1 through 85 of this Complaint as if fully rewritten herein. The Board has suffered and will continue to suffer irreparable harm because of its wrongful classification under the ADC Statute and the unlawful conduct of Defendants in declaring that the Board and the District are subject to the ADC Statute. Unless Defendants are enjoined from creating an ADC and proceeding under the ADC Statute, the Board and the District will suffer and continue to suffer irreparable harm. That harm includes, but is not limited to: a. Reconstituting schools during the 2018-2019 school year; b. Replacing school administrators, teachers, and staff during the 2018-2019 school year, c. Re-opening collective bargaining agreements;Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L22 d. Encouraging students to enroll in other schools, including private or charter schools, which will destabilize and decrease the Board’s funding, and which will force the Board and the District to cut programming offered to students; e. Other harm to be established at further hearings on this matter. 89. This harm is particularly irreparable in a community like East Cleveland, where the District and the Board are a hub of safety, reliability, and stability for children and families residing within the District’s boundaries. 90. None of the irreparable injury outlined above is recoverable from the State at law, so the Board has no adequate remedy in the ordinary course of law. 91. The granting of injunctive relief will impose no burden upon Defendants, and no third parties will be harmed by the granting of the injunctive relief. 92. The public interest will be served by granting the Board injunctive relief. 93. Plaintiff is not required to post a bond or other security in relation to this claim. WHEREFORE, Plaintiff respectfully requests relief as follows: 1. For Count I, that this Court declare the rights and obligations of the parties, and further declare that: a. Pursuant to R.C. §3302.03(B)(4) and R.C. §3302.036, the 2017-2018 school year is the first year for which Defendants are legally permitted to assign an overall letter grade for a school or school district; b. Pursuant to R.C. §3302.10, an ADC cannot be appointed until a school district has been assigned “three consecutive years” of overall “F” grades; c Pursuant to R.C. §3302.10, the earliest possible date an ADC could be appointed for a school district is after the release of the 2019-2020 Report Card; 17Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L23 d. Defendants lack the legal authority under R.C. §3302.10 and related statutes to assign an overall grade of “F” for Plaintiff for school years 2015-2016, 2016-2017 and 2017-2018; and e, The State Superintendent lacks the legal authority to appoint an ADC for the District. 2. For Count II, that this Court declare HB 70 unconstitutional and invalid for violation of the Ohio Constitution’s Three-Reading Rule. 3. For Count III, that this Court declare HB 70 unconstitutional and invalid for violation of Art. VI, § 3 of the Ohio Constitution. 4. For Count IV, that the Court issue a temporary restraining order against Defendants enjoining them from taking any steps toward creating an ADC over Plaintiff and its school district until this Court can hold an evidentiary hearing on Plaintiff's request for a preliminary injunction. 5. For Count V, that the Court issue a preliminary injunction for the duration of this lawsuit — and ultimately a permanent injunction — enjoining Defendants from taking any steps toward enacting an ADC over Plaintiff and the District until this Court determines the rights and obligations of the parties as outlined above and herein. 6. That this Court award Plaintiff its reasonable attorney fees and costs incurred in this matter pursuant to R.C. §2335.39. 18Frankli i . Y - 0E390 - i742" lin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 7. That this Court award such other and additional relief, in law or equity, as it may deem just and proper. Respectfully submitted, /s/ Donna M. Andrew Donna M. Andrew, Esq. (0066910) Christian M. Williams, Esq. (0063960) Brian J. DeSantis, Esq. (0089739) Samantha A. Vajskop, Esq. (0087837) Pepple & Waggoner, Ltd. Crown Centre Building 5005 Rockside Road, Suite 260 Cleveland, OH 44131-6808 Tel.: 216-520-0088 Fax: 216-520-0044 E-mail:dandrew@pepple-waggoner.com cwilliams@pepple-waggoner.com bdesantis@pepple-waggoner.com svajskop@pepple-waggoner.com Attorneys for Plaintiff East Cleveland City School District Board of EducationFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 0E390 - L25 VERIFICATION 1, Dr. Myrna Loy Corley, being duly sworn, hereby verify the following: 1, Tam the Superintendent of the East Cleveland City School District. 2. 1 have read the allegations contained in the foregoing First Amended Verified Complaint and Application for Temporary Restraining Order, Preliminary Injunction, and Declaratory Judgment, and all of the facts alleged therein are true and accurate to the best of my knowledge. LM Mahe Libby, Dr. Myrna 1, dy Corley Super intengeft STATE OF OHIO ) ) SS: COUNTY OF CUYAHOGA ) Sworn to and subscribed before me this a4 Zt Public \ ig ROSERT RAMSEY, 20Franklin C i - Y - 0E390 - ud gan jin County Ohio Clerk of Courts of the Common Pleas- 2018 Nov 01 1:41 PM-18CV009035 CERTIFICATE OF SERVICE I hereby certify that on the 1st day of November, 2018, a copy of the foregoing First Amended Verified Complaint and Application for Temporary Restraining Order, Preliminary Injunction, and Declaratory Judgment was served by Court Notice of Electronic Filing (“NEF”) and/or electronic mail to the following: Douglas R. Cole, Esq. David J. Twombly, Esq. Sean Stiff, Esq. Carrie M. Lymanstall, Esq. Organ Cole, LLP 1330 Dublin Road Columbus, OH 43215 Attorneys for Defendants State of Ohio, Ohio Department of Education, and Superintendent of Public Instruction Paolo DeMaria /s/ Donna M. Andrew Donna M. Andrew, Esq. (0066910) Attorney for Plaintiff East Cleveland City School District Board of Education 21