The State Board of Education might be the next casualty in Ohio's war on democracy
The Board's districts are illegally gerrymandered and now the General Assembly wants to strip it of its powers
The 2022 elections weren’t great for Ohio Democrats. Despite high hopes for Democrat Tim Ryan in the U.S. Senate race, he lost to Republican J.D. Vance by a decisive, if not overwhelming, margin. While Republican Governor Mike DeWine was a shoo-in for re-election, as were the other statewide elected Republicans, Democrats held out hope that they might win a majority on the Ohio Supreme Court. But they didn’t—and all three candidates lost in landslides.
But there was one bright spot: Democratic candidates won a narrow majority on the officially nonpartisan State Board of Education.
The Democratic majority was somewhat surprising, not least because of Democrats’ poor performance in the state generally, but also because the SBOE districts are based on State Senate districts that the Ohio Supreme Court declared unconstitutional—which may render the SBOE districts unconstitutional themselves.
Not only that, but any hopes that Democrats might have had about using their new majority to actually do something—like pick a new Superintendent, for example—were quickly dashed. Shortly after the Democratic majority on the Board was confirmed, Republicans in the legislature began circulating proposed legislation that would strip away most of the Board’s power, by creating what functionally amounts to a new cabinet department under the supervision of the Governor, relegating the Board and the Superintendent to much narrower roles.
These two issues—the constitutionality of the SBOE districts and the existential threat that it faces from the state legislature—are unrelated. But both issues highlight the extent to which state governments operate in the dark, and to undemocratic ends, all too often.
Let’s start first with the constitutionality of the SBOE districts.
The Ohio State Board of Education was established as a constitutional office in 1953. From 1853 until 1913, Ohio schools were under the control of the elected State School Commissioner. But at the 1912 state constitutional convention, out of a desire to professionalize the management of the state’s public education system, delegates proposed the creation of an unelected, gubernatorially appointed Superintendent of Public Instruction, a change that voters ratified. In 1953, the state legislature decided to switch course—and proposed a constitutional amendment that created the State Board of Education, which was empowered to appoint the Superintendent of Public Instruction. This amendment was ratified, too, and in 1955, the legislature organized the SBOE as an elected body.
Under the initial formulation, the SBOE consisted of twenty-three members, elected from congressional districts as they existed in 1955. Changes to the underlying congressional districts did not automatically change the SBOE districts; this required separate action by the legislature in 1967 before the legislature provided for automatic redistricting beginning in 1971.
In 1993, the General Assembly decided to reform the composition of the SBOE. It slashed the number of elected members to just eleven, and provided for additional appointed members. The eleven SBOE districts were to be drawn by the legislature, and composed of three contiguous State Senate districts. If, however, the legislature did not draw the districts in time, the responsibility for redistricting fell to the Governor. After the legislature rejected a set of proposed maps in 1993, then-Governor George Voinovich had to step in to draw new districts. This happened again in 2002. And in 2012. And then in 2022.
The 2022 redistricting cycle was more dramatic than most previous ones in Ohio. Owing to a series of state constitutional changes ratified by voters in 2015 and 2018, partisan gerrymandering was formally banned, and congressional and state legislative redistricting was ultimately handled by a bipartisan redistricting commission. The commission’s state legislative districts were repeatedly thrown out by the Ohio Supreme Court—and then a federal court stepped in to order the use of maps for the 2022 election. The failure of the commission to draw State Senate districts similarly limited the legislature’s power to draw SBOE districts, and so Governor Mike DeWine stepped in.
The districts that DeWine drew were based on the State Senate districts adopted by the Ohio Redistricting Commission on January 22, 2022—but these maps were declared unconstitutional shortly thereafter by the state supreme court, and a different set of maps was used in 2022 to elect the State Senate. In response, Ohio Democrats asked DeWine to draw a different set of SBOE districts based on the State Senate districts that were actually used, but he declined to do so.
As I noted in the leadup to the election, this likely meant that the SBOE districts themselves were unconstitutional. Though the redistricting reform that took place in Ohio did not include any reform to the process by which SBOE districts were redrawn, they are nonetheless required to be “compact.” And, significantly, the January 22 State Senate maps were declared unconstitutional by the Ohio Supreme Court in part because they were not “compact.” Ergo, if the underlying districts were insufficiently compact, then the combinations of these districts likely weren’t compact, either. But no one sued prior to the election, and so the districts were used.
It’s possible that the SBOE maps will be challenged—but the outcome here is unclear. The new majority on the Ohio Supreme Court is extremely unfriendly to partisan gerrymandering claims, but the Republican majority in the legislature may attempt to draw new districts to try to win a majority, which could trigger questions as to their ability to do so. (That is, it’s unclear under the statute whether mid-decade redistricting could take place.)
The bigger, and more immediate threat, however, is the possibility that the legislature will strip the SBOE of most of its responsibilities.
The proposal by Republican State Senator Bill Reineke to reform the state’s education offices is ostensibly based on the SBOE’s failure to select a new Superintendent of Public Instruction—and a desire to place “the governor in charge of education policy.” In reality, it’s a subversive attempt to facially comply with the state constitution’s provision regarding the State Board of Education and also functionally tear that provision to shreds.
The Ohio Constitution says very little about the State Board of Education. The 1953 amendment merely required that “[t]here shall be a state board of education,” with its manner of selection determined by the legislature, and that “[t]here shall be a superintendent of public instruction, who shall be appointed by the state board of education.” The legislature is then empowered to prescribe “[t]he respective powers and duties of the board and of the superintendent.”
Accordingly, as state law exists today, the Ohio State Board of Education selects the Superintendent of Public Instruction, who serves as the chief administrative officer of the state Department of Education. The SBOE has the power to issue administrative rules and regulations relating to how the Department is run and how the state’s public schools are managed. This setup—an elected board with rulemaking authority and an appointed superintendent as the head of the department—is fairly typical across the country.
Ohio Republicans’ proposal destroys this status quo. The 2,144 page piece of legislation proposed by Senator Reineke renames the Department of Education as the Department of Education and Workforce, ousts the Superintendent as the chief administrative officer of the Department, and replaces the Superintendent with a gubernatorially appointed Director of Education and Workforce. It also reduces the SBOE’s duties to supervising teacher licensure and discipline, territorial transfers between school districts, and selecting the Superintendent. The Superintendent, in turn, is reduced to serving as the secretary of the board.
In short, though the state constitution’s provisions are technically complied with—there is a state board of education, and it does select a superintendent of public instruction—they are also rendered meaningless.
For Ohio Republicans, who have gerrymandered themselves into near-permanent majorities in the General Assembly and are now talking about gerrymandering the state’s appellate courts and raising the threshold for voter approval of initiated constitutional amendments, this is just another effort to kill off any way that their power might be interrupted by the voters.
It’s also possibly unconstitutional.
The idea that a legislature might attempt to transfer away the duties of a constitutional office—and this may come as a surprise—is not unheard of. The Wisconsin Secretary of State and Treasurer are likely the most infamous examples. They have been reduced to entirely useless offices, and the weakest elected secretary of state and treasurer, respectively, in the country, following years of having every one of their meaningful duties whittled away and transferred elsewhere. And while those changes haven’t been seriously contested in Wisconsin, they have elsewhere.
Prior to 2003, Minnesota had an elected State Treasurer, an office that was established in the constitution with some specific duties, but with additional duties as “shall be prescribed by law.” In 1985, the legislature transferred most of the Treasurer’s statutory powers to the appointed Commissioner of Finance. Robert Mattson, the then-Treasurer, challenged the constitutionality of this change. The Minnesota Supreme Court held that the 1985 law was unconstitutional. It noted at the outset that many other states had the “shall be prescribed by law” language to describe the duties of constitutional officers, and that
[a]ppellate courts in these jurisdictions have consistently held that the prescribed-by-law provision does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.
Many of these opinions, the court noted, relied on the common understanding of what some officials were and what their “core functions” were. A good example of this was in American Legion Post No. 279 v. Barrett, where the Illinois Supreme Court held that
Nothing in the constitution further defines the duties of the State Treasurer. This court has held that those duties are such as are to be implied from the nature of the office and of them he may not be deprived or relieved.
Turning to the dispute over the Minnesota State Treasurer’s duties, the state supreme court noted that the 1985 statutory change “transfers all of the State Treasurer’s independent power over the receipt, care and disbursement of state monies, functions that constitute the very core of the office.” This, the court concluded, was not allowed. “To allow the legislature to abolish all such functions of an executive office is to allow it to do violence to the title the drafters afforded the office and the core functions necessarily implied therefrom.”
Accordingly, it struck down the statutory change. But in doing so, it noted that the law “was precipitated by the actions of the individual occupying the state treasurer position”—and further observed that “[i]f the individual occupying the office should be removed,” the legislature has the power of impeachment, and that “[i]f the position is no longer warranted for the efficient administration of state government,” the legislature could propose a constitutional amendment abolishing the office. In the end, the legislature did just that, and in 1998, the voters ratified an amendment abolishing the office.
Though Ohio has long had a large number of elected offices, a great many of which were constitutionally established, to the best of my knowledge, the Ohio Supreme Court has not been presented with a similar dispute. Accordingly, in laying out the Minnesota Supreme Court’s decision in State ex rel. Mattson v. Kiedrowski, I don’t mean to suggest that Ohio courts would come to the same result. (The Ohio Supreme Court may well disagree with the rulings of its sister courts.)
Instead, I present Mattson as an example of an analogous dispute. Owing to dissatisfaction with an incumbent officeholder, the legislature sought to remove almost all of his statutory duties while paying lip service to the state constitution’s bare-minimum requirements. Indeed, the constitutional language regarding the Ohio State Board of Education and Superintendent of Public Instruction—“shall be prescribed by law”—is identical to the language of the Minnesota Constitution.
It remains to be seen if the legislature will go through with this plan. Though Republicans hold sizable majorities in both chambers, and the bill reorganizing the Department of Education has already passed the Senate, it faces less certain odds in the House. At the start of this legislative session, State House Democrats teamed up with a number of Republicans to jointly elect Jason Stephens as Speaker of the House. The impact of the coalition is unclear at this point—as is Stephens’s willingness to honor any commitments he made to the Democrats who helped elect him—but it may stall the bill. And in any event, even if it does pass, whether the new conservative majority on the Ohio Supreme Court will strike it down is also unclear.
It’s also possible that, regardless of how the proposed reorganization of the Department of Education turns out, Ohio Republicans may attempt to permanently end the issue by converting the State Board of Education into an appointed body (which the constitution would permit) or proposing a constitutional amendment to abolish the body outright. Ohio Republicans are certainly not alone in questioning the existence and powers of their elected state board of education; following a failure by conservatives to take control of the Nebraska Board of Education last year, state legislators are considering an amendment to make the body appointed. They should be warned, however—voters have historically been supportive of their power to elect state education officials, and have rejected amendments that would deny them that power.