A decade ago, the Ohio Supreme Court issued the first of four rulings that the state school-funding system was unconstitutional. This week, The Dispatch looks at their lingering effects.

Deliberations raged for seven years at the Ohio Supreme Court, where political and philosophical discord among the seven justices sometimes overshadowed the weighty issue at hand.

The justices declared Ohio?s system of funding schools unconstitutional four times, the first ruling arriving 10 years ago this week. The story of how they made those decisions has never been told, but now it can be based on exclusive Dispatch interviews with four of the seven justices.

They wrote brilliantly and stretched the bounds of credulity. They soared sublimely at times and crashed inanely at others.

One justice, for instance, wanted to shut down state government until the legislature fixed the school-funding system. Two others, desperate to get rid of the case, switched their positions and vainly tried to impose a solution, only to eat crow. Three justices, meanwhile, bet dinner on the cost of that solution.

The case had a face: Nathan DeRolph, the 15-year-old highschool freshman at Sheridan High School in Perry County who lent his name to the 1991 lawsuit against the state by 550 school districts.

And it had a profound impact. Since the Supreme Court first ruled the school-funding system unconstitutional on March 24, 1997, the state has spent billions on new schools, increased per-student aid 66 percent, and spent hundreds of millions in extra money for poor schools.

Even two of the three Republican justices who originally ruled that the court had no business taking the DeRolph case now say schoolchildren in Ohio are better off for the lawsuit being filed.

"There?s just no question that DeRolph has had a positive impact on schools," Chief Justice Thomas J. Moyer said.

"Even though I maintained it did not belong in our court, the political reality is there is much more attention focused on education than there used to be before the case," Justice Evelyn Lundberg Stratton said.

Yet, critics say the system remains unconstitutional because it relies too heavily on the unequal yields of local property taxes, forcing scores of school districts to live a hand-tomouth existence, begging their voters every few years for more money.

As The Dispatch this week focuses on the state of primary and secondary education in the post-DeRolph era, it attempts to reconstruct the Supreme Court?s deliberations in possibly the most consequential and famous case in state history. Four justices ? Moyer, Stratton and fellow Republicans Andrew Douglas and Paul E. Pfeifer ? agreed to be interviewed. Republican Deborah L. Cook and Democrats Alice Robie Resnick and Francis E. Sweeney declined.

DeRolph I

On Sept. 10, 1996, Moyer had let the two sides argue the case for 90 minutes, an hour longer than usual. Afterward, as the justices took their seats at the round oak table in the deliberation room, the words of school-coalition attorney Nicholas A. Pittner rang in Douglas? ears.

"I?m not asking you to do the General Assembly?s job; I?m asking you to do your job."

Douglas viewed the case as having the gravity of the U.S. Supreme Court?s 1954 Brown v. Board of Education decision, in which Chief Justice Earl Warren cajoled a partly reluctant court to rule unanimously that a separate education for whites and blacks was not an equal education.

Even before the Ohio justices began deliberating, Douglas had made up his mind: "My vote was clear and unequivocal. We had to do something."

He and Pfeifer, two maverick Republicans who nurtured reputations for siding with the little guy, wanted to send a signal to Gov. George V. Voinovich and the GOPcontrolled General Assembly by giving DeRolph the imprimatur of a 7-0 decision.

But as they went around the table, that quickly became impossible.

Cook dug in her heels. Schoolfunding decisions, she said, were left by the people to the governor and lawmakers, not the court. She never budged from that position.

"I always thought that was so bizarre, because the state never raised that argument," Pfeifer said. "The state never argued that the Supreme Court of Ohio doesn?t have jurisdiction to interpret the constitution."

Arguing in order of seniority, a majority emerged within the first five justices: Douglas, Resnick, Pfeifer and Sweeney all favored ruling the system unconstitutional. Moyer and Stratton were inclined to join Cook but left an impression with the other four that a 6-1 outcome was possible depending on how the majority decision was written.

"I was certainly much more open to being persuaded," Moyer said.

"Cook?s position was pretty clear: No way; that?s it," Stratton said. "I tried to be open-minded. I said, ?OK, I?ve heard the evidence, read the briefs; I?m going to look at whether there?s anything here that might persuade me.? "

Per tradition, Douglas, the senior justice, reached under the table for the leather bottle containing seven little balls with numbers on them to determine which justice in the majority would write the case. It was a task that Douglas, mindful of his legacy as he approached mandatory retirement at age 70, had wanted for himself. But the ball with Sweeney?s number came out.

For all the historical significance of the case, Pfeifer was struck by how short the deliberations were, a half-hour max, maybe 20 minutes. As they left the room, he said, "I still thought we would come out 6-1."

During the ensuing months, in the justices? offices and the court?s anterooms, the deliberations, often one-on-one, continued spontaneously and ubiquitously. Moyer and Sweeney, who had come to admire each other, "had very good discussions about it, and I think he was always hopeful he could persuade me to join the majority opinion," Moyer said.

But Moyer was doing his own research and, along with Stratton, gradually concluding that Cook was correct.

"We went through something like 14 drafts before we even got a dissent," Stratton said.

The March 24, 1997, decision shook Ohio. Sweeney?s majority opinion ruled the system unconstitutional and gave the governor and legislature one year to make it lawful:

"We send a clear message to lawmakers; the time has come to fix the system. Let there be no misunderstanding. Ohio?s public school financing scheme must undergo complete, systematic overhaul."

The majority sent the case back to the trial judge, Linton D. Lewis Jr. of Perry County, to oversee the legislature?s efforts to comply with the court?s order.

Moyer wrote the dissent: "The issues of the level and method of funding (Ohio schools), and thereby the quality of the system, are committed by the Constitution to the collective will of the people through the legislative branch."

Pfeifer and Douglas worried that the close decision would spark a firestorm of protests and provide political wiggle room for Voinovich and lawmakers.

"I thought there was a real chance to get six votes, and the failure to get that hurt a lot in terms of getting the legislature to queue up and address this right away," Pfeifer said. "The second thing that hurt was Voinovich?s initial reaction."

Joined by Senate President Richard H. Finan and House Speaker Jo Ann Davidson at a Statehouse news conference the next day, Voinovich, who had labeled himself the "education governor," angrily blasted the majority justices, accusing them of legislating from the bench and suggesting that his administration might defy the decision.

Meanwhile, the state?s major newspaper editorial boards piled on. Douglas thinks they were stoked in advance by Voinovich?s top aides. The Dispatch called the decision "one highly injudicious lurch." The Plain Dealer of Cleveland said it could be "construed as a blank check" by Lewis. The Cincinnati Enquirer said the decision meant that "education policy for 11 million Ohio residents will be dictated in a rural flyspeck on the state map, by a county judge who answers to less than one-thousandth of our population."

The reaction stung the court?s majority, subsequently labeled "the Gang of Four" by Toledo?s newspaper, The Blade.

"We were totally defenseless," Pfeifer said. "We don?t have spin doctors. It was like shooting fish in a barrel when they came after us."

The four justices sought solace in one another and did not publicly respond.

"There was never any hesitation among the four of us about whether what we did was right," Douglas said. "Did we vent among ourselves? Of course we did. We felt at times that we were on a lonely island."

Voinovich?s response to the court order was to ask Ohio voters for a penny-on-the-dollar increase in the state sales tax to raise $1.1 billion a year, half for schools and half for property-tax relief. On May 5, 1998, voters crushed the issue.

Meanwhile, the legislature had made changes to the school-funding formula and had begun pouring hundreds of millions of dollars more into classrooms and for the construction of new schools. Still, Lewis ruled on Feb. 26, 1999, that the state had not complied with the Supreme Court?s order for a "complete, systematic overhaul" of school funding. The state appealed Lewis? ruling to the Supreme Court.

DeRolph II

As the justices gathered for a second time in the deliberation room to take up the DeRolph case, there wasn?t much more to say. The pounding the majority had taken from Voinovich and the press made it easier for Cook, Moyer and Stratton to restate their position that the case didn?t belong before the court.

"Now it?s getting harder, the other three are gone, and there?s no hope of getting them," Pfeifer said.

This time, Resnick?s ball was drawn from the bottle. As the four discussed writing the majority opinion, Pfeifer proposed a drastic approach. He wanted to create a constitutional crisis, much like the 1985 savings-and-loan crisis, which required quick action by lawmakers. Pfeifer wanted to tell the administration and legislature that they couldn?t spend another dime until the school-funding system was fixed.

"I knew it would create a bit of a constitutional crisis and (legislators) would be enormously angry at us, but I always thought that was the answer to this. Blame the court and do what?s right, and go home and say, ?Geez, folks, the court made us do it.? "

Sweeney, Resnick and Douglas refused to sign on. Although Pfeifer tried to reassure him that the crisis would be solved in a week, Douglas said he couldn?t take that risk.

"I considered it, but then what came into my mind was, what about the mothers who couldn?t get their support checks and what about the injured workers who could lose their homes because the checks wouldn?t go out? "

In a 4-3 decision on May 11, 2000, the court upheld Lewis again, although Resnick?s majority opinion oozed praise for the millions more that Gov. Bob Taft and lawmakers had allocated to primary and secondary education.

In a separate concurring opinion, Douglas mischievously established a fictitious "George" character and blamed him for failing Ohio?s schoolchildren. Court observers quickly ascribed a revenge factor ? Douglas retaliating against Voinovich for bringing so much heat against the majority.

"It was only coincidental that the governor?s name was George," Douglas said recently with a laugh.

After the second ruling, Taft and lawmakers continued to pour millions more into primary and secondary education and, on June 20, 2001, the court heard arguments on whether the latest measures met the court?s mandate.

DeRolph III

Now more than four years after the court had rendered its first De-Rolph verdict, Moyer was desperate to get rid of the case. Stratton, too, was alarmed by the legislative turmoil and unpredictability for school districts created by two successive rulings that the funding system was unconstitutional.

In moves they acknowledged defied their aversion to legislating from the bench, Moyer and Stratton agreed to join a new majority to craft a school-funding fix and impose it upon the legislature.

"It was not typical for a majority of the court to say it?s still unconstitutional and this is precisely what you have to do to make it constitutional," Moyer said. "I was uncomfortable with that but felt that every rule has an exception, and to me this was the exception because there was so much at stake in terms of the disruption and uncertainty.

"I was uncomfortable with the court having the General Assembly reporting back to it, like we were monitoring them and all that. What really helped was we were able to agree, the four of us, that there wasn?t a whole lot more they had to do."

Stratton, educated in missionary schools in Thailand, had approached the DeRolph case from the first day "with this attitude from life experiences that it?s more than money that makes education work."

Still, she reasoned that there was no way to undo the original majority decision holding the funding system unconstitutional and, in an effort to end the case, decided to accept "a pragmatic compromise to solve an impasse I believe has occurred too long."

Douglas was willing to join a new majority, but Sweeney and Resnick, while still believing the system was unconstitutional, adamantly refused to tell lawmakers how to fix it. Moyer and Stratton had hoped to persuade Cook to change her position, but she remained intransigent. So, Pfeifer was needed.

Thus, a new majority was formed in the deliberation room ? Moyer, Stratton, Pfeifer and Douglas. And this time, Moyer?s ball came out of the bottle.

That?s when the horse-trading began.

The hardest part of the DeRolph case always was ? and remains ? finding a solution that reduces the reliance on local property taxes in the constitutional quest for a thorough and efficient system of schools.

Rumors abounded that Douglas worked behind the scenes with Sen. Jeff Jacobson, R-Vandalia, on a solution, but both denied they ever talked while the case was pending. Likewise, Moyer denied that his phone conversations with officials in the governor?s office ever were to discuss the case.

The four justices finally arrived at a remedy requiring the legislature to change the calculation of basic state aid to school districts and to speed up full implementation of parity aid, a supplement for poorer school districts.

One afternoon, Pfeifer and Douglas met with Moyer in his Rhodes Tower office overlooking the Statehouse and debated how much their impending fix would cost the legislature.

Moyer and Pfeifer cited Department of Education evidence in court briefs that would put the cost between $300 million and $400 million. Douglas said the cost would be $1 billion or more. Pfeifer bet him dinner, and Moyer said he?d buy dessert if Douglas was right.

On the night of Sept. 6, 2001, the day the new majority ruled that the system remained unconstitutional but provided lawmakers with a road map for fixing it, Pfeifer was on the phone to Douglas.

"He called me at 6 o?clock that night and said, ?Where do you want to eat?? " Douglas recalled.

Hours after the decision was released, Senate President Finan was the first to publicly estimate that the court?s fix would cost $1.2 billion, rather than the $300 million Moyer, Stratton and Pfeifer had thought. Later, state budget analysts and officials for the school coalition agreed with the $1.2 billion price tag.

"I remember being truly taken aback," Stratton said.

She and Moyer made public statements indicating that their decisions were based on faulty data in the case briefs; Pfeifer interpreted those statements as improper invitations to the state to ask the court to reconsider the case.

"We?re not supposed to announce how we?re going to vote and to me that was a clear signal: ?File a motion for reconsideration, I?ll grant it,? and I think that?s an ethical violation," Pfeifer said.

Moyer said the statements were not out of line: "The amount was so high that I would think the state would have filed for reconsideration regardless of what anybody said."

Taft asked the court to reconsider its third DeRolph decision on Sept. 17, 2001. While his motion was pending, messages were secretly passed between the coalition of suing schools and the administration to assess interest in discussing a settlement. Nothing happened, and on Dec. 13, 2001, the court appointed Howard S. Bellman, a Wisconsin mediator, to oversee settlement negotiations.

Three months later, Bellman notified the court that mediation had failed. The case was back before the justices. Mindful that Douglas would be forced to retire at year?s end, Moyer thought it was crucial for the case to end on this court?s watch.

"We hope we can count to four before Dec. 31," he told a reporter.

DeRolph IV

Back in the deliberation room, the old majority ? Sweeney, Resnick, Douglas and Pfeifer ? had reunited to, for a fourth time, declare the system unconstitutional, effectively restoring the DeRolph I and II rulings. Despite the tremendous strides made by Taft and the legislature, the majority ruled anew that they had failed to make "a complete systematic overhaul of the school-funding system."

Cook, once again, didn?t budge, and Moyer and Stratton reluctantly joined her. After going out on a limb to prescribe a school-funding remedy in DeRolph III, Moyer was prepared to fine-tune that remedy and get rid of the case. However, he couldn?t get a fourth vote.

"I still felt that we should put an end to it by telling the General Assembly what you need to do," Moyer said.

Stratton said she wanted to join Moyer to amend the DeRolph III solution but saw the futility of that position when the other four plus Cook balked.

"In any other normal case, if you have faulty data, you do a motion to reconsider, you get the true data and you amend the decision to reflect the true data," Stratton said. "They didn?t do that."

In the end, she opposed the finding of unconstitutionality but agreed to give up the case, an option floated after the justices had left the deliberation room. Pfeifer, a Bucyrus hog farmer, was assigned the writing when his ball rolled out of the bottle.

"Francis (Sweeney) was the one who came to me as I was writing it and said, ?You know, I think we ought to cut this case loose.? I was not very receptive and said, ?Let me think about it for a while,? and I went home and got on the tractor and thought about it for a while."

Here is what Pfeifer thought as November wore on: Maureen O?Connor, Taft?s lieutenant governor, had just been elected to the court to replace Douglas at year?s end. If the court again ordered the governor and legislature to report back what they had done to fix the system, Pfeifer conjectured, they merely "will tweak it a little bit and send it back to us with the belief that it will be ruled constitutional" with O?Connor on the court.

Although he said that he had never discussed the matter with O?Connor, Pfeifer said, "I concluded that Francis was right, and the best position in which we could leave the school districts of this state that brought this litigation was one final declaration that it?s still unconstitutional, dismiss the case, and then (the state) can?t come running back with a new court and suddenly get it blessed as constitutional."

Douglas floated one last-ditch proposal to force a solution by the state.

"We were coming very close to the only thing left was to put Taft in jail, or the General Assembly in jail," he said. "I felt there was an obligation for us to take a step back."

Douglas wanted to make state Auditor Jim Petro and Treasurer Joseph T. Deters defendants in the case, "and then order them not to pay the General Assembly, or the court, until this matter is resolved. We wouldn?t have to put anybody in jail." The other justices balked.

On Dec. 11, 2002, the court ruled 4-3 that Ohio?s school-funding system remained unconstitutional and ordered lawmakers to fix it. Then, the court relinquished its jurisdiction in the case.

Moyer and Pfeifer told reporters at the time that the court expected the legislature to comply with its order. But Taft and legislative leaders, heartened that the court had given up its hammer, said they didn?t have to do anything.

"The DeRolph case is over," Taft declared.

jhallett@dispatch.com