There's a good chance-logically speaking-that Attorney General Nancy Rogers will not appeal the latest rejection of the state's claim that a poorly performing charter school violates the Ohio charitable trust law (see here).
First, the Nov. 24 decision by a Hamilton County Common Pleas judge rejecting Rogers' attempt to close the Harmony Community School is the third time in three months a court has turned down the AG's interpretation of the statute, so precedent is building. Second, the 30-day deadline for appealing the decision falls just before Ohio Treasurer Richard Cordray becomes the new attorney general in January.
Rogers-and Cordray-may feel that, given the budget cuts now being made across the board in state government (see here), spending tens of thousands of additional dollars on a rejected legal theory may not be a prudent use of taxpayer money.
As Gadfly has argued from the start, it never was (see here). The Hamilton County case was one of a trio of lawsuits launched by former Attorney General Marc Dann, at the behest of the Ohio Education Association (see here). The OEA originated the novel and now twice-discredited legal claim that the schools are charitable trusts and that their dismal academic performance violated the law. In ruling against the AG, Hamilton County Common Pleas Judge Jody M. Luebbers echoed a September ruling in Montgomery County Common Pleas Court in favor of the New Choices charter school. Unfortunately for taxpayers, Rogers decided to appeal the New Choices decision.
The AG lost another case, against Miami Valley Academies in Dayton, in Montgomery County earlier in November.
Harmony is not out of the woods since Luebbers did rule that the AG's case against the school for allegedly failing to keep up its workers' compensation premiums can go forward.
However, Luebbers was blunt on the charitable trust idea. "Simply put, nowhere in [state law] does it state that the attorney general has the authority to shut down a community school through its powers over charitable/public trusts," Luebbers wrote in her decision, adding that "...if the General Assembly desired the attorney general to have this authority, they would have specifically granted it."
And, it is important to remember, state law has been in place that forces persistently failing charter schools-those ranked F on the state's academic rating system for three consecutive years-to close. Two will close at the end of this year and 23 are at risk for closure in 2010 (see here).
There is a right way and a wrong way to go after failing charters, and the AG is absolutely going about it in the wrong way.
UPDATED: The online version of this article was updated 12/5/08.