On Tuesday, February 13, oral arguments were heard from both sides at the Ohio Supreme Court in the Electronic Classroom of Tomorrow vs. Ohio Department of Education case.  After a lengthy two-year legal battle, hundreds of hours of testimony, thousands of pages of court documents, and scouring of numerous legal statutes, it all boiled down to the Ohio Department of Education attorney Doug Cole focusing on what he considered to be “absurd.”  Interestingly enough, Chief Justice O’Connor and the news media also jumped on the “absurd” bandwagon.

Douglas Cole, a lawyer for the Ohio Department of Education admits double standard for eschools.

According to the Merriam-Webster, absurd means “ridiculously unreasonable, unsound, incongruous, extremely silly or ridiculous, having no rational or orderly relationship to human life, meaningless, lacking order or value.”  So let’s look at what they found to be “absurd.”  Cole stated that ECOT’s interpretation of the school funding statute was “absurd” because ECOT said it was entitled to full payment for students even if a student only logs in once every 30 days and does not access a single learning opportunity.  Cole pointed out that the Ohio Supreme Court strives to interpret statutes in such a way as to avoid an absurd result.  As part of his argument, he claimed the Ohio Supreme Court must rule for the Ohio Department of Education because this ECOT claim was an absurd result.

In order to properly rule on this case, I sure hope that the Supreme Court Justices actually look at facts and statutes instead of opinions on what is or is not “absurd” as well as what was the law at that time and not ECOT’s interpretation.

Marion Little, lawyer for ECOT helps to clear up the state's blurry argument

Looking at the Auditor of States website, one document can be used to address all that transpired in the courtroom that day.  It is the “Second Report on Community School Student Attendance Counts” from Auditor of State Yost dated May 23, 2016.  Let’s look at the take-aways from this document. 

Student Funding Based on Enrollment

Ohio’s school funding is largely based on enrollment as supported, in parr , by student counts and attendance, as opposed to estimates of the amount of learning that takes place (page 5-6). 

During student count week in October, all schools take attendance to determine the enrollment of a school that is then used for funding purposes.  Once a student has been deemed enrolled in a district and maintains that "enrollment status" throughout the school year, the Full Time Equivalency (FTE) is 1 and full funding is provide to the district for that student.  IMPORTANT: Notice above it states that school funding is NOT based on the amount of learning that takes place – i.e., durational data.  Those are Auditor of State Yost’s words not ECOT’s.

Learning Opportunities

All community schools must OFFER a minimum of 920 hours of learning opportunities (i.e., instructional hours) each school year. Attendance at a community school is defined by Ohio Rev. Code §3314.03 as participation in learning opportunities provided by a community school in accordance with the community school’s educational plan approved by the sponsor in its contract (page 7). 

ECOT does OFFER 920 hours of learning opportunities.  ECOT students are to participate in the learning opportunities.  But remember from point #1 enrollment is the basis for school funding not attendance or participation in the PROVIDED learning opportunities. It is also important to remember that just like traditional schools, eSchool services and expenses are being incurred for "enrolled students" even when they are not actively participating in learning opportunities.

Instructional hours in a community school are defined by learning opportunities PROVIDED to a student. Pursuant to Ohio Rev. Code §3314.03(A)(23) and Ohio Admin. Code (OAC) §3301-102-02, learning opportunities mean classroom-based or non-classroom-based supervised instructional and educational activities that are defined in the community school’s sponsor contract and are: (1) Provided by or supervised by a licensed teacher (2) Goal-oriented, and (3) Certified by a licensed teacher as meeting the criteria established for completing the learning opportunity. Instructional hours in a community school’s day include recess and time for changing classes, but not the lunch period (page 7). 

All ECOT classes are goal-oriented and are facilitated/taught by highly qualified licensed teachers.

Withdrawn Students

For students who have withdrawn, the community school must enter the pro-rated hours of enrollment up to the point of withdrawal (page 7). 

Here is where Full Time Equivalency (FTE) comes into play – when a student is no longer enrolled, from that point on the money follows the student to the next district – remember students under 18 must be enrolled in a school to avoid truancy.  Therefore both districts receive a share of the student funds based on the amount of time the student was in each district.)  The total numbers of hours are those prorated hours the student was actually enrolled.  Ohio Rev. Code §3317.034(C) requires a community school student's enrollment shall be considered to cease on the date on which any of the following occur:

(1) The district [community school] receives documentation from a parent terminating enrollment of the student.

(2) The district [community school] is provided documentation of a student's enrollment in another public or nonpublic school.

(3) The student ceases to participate in learning opportunities provided by the school. (Commentary:  See point #5 below for further explanation on this.

In addition, Ohio Rev. Code §3314.03(A)(6)(b) requires community schools to develop procedures for withdrawing a student from the school if the student fails to participate in one hundred five consecutive hours of learning opportunities without a legitimate excuse (page 7). 

ECOT followed this 105 hour law and developed a procedure.  ECOT derived a 30-day measure from the 105 rule that includes five-hour school days and weekends since ECOT is open 24 hours a day 7 days a week.  If a student did not engage in a learning opportunities, the student was contacted numerous times by classroom teachers, student support specialists, and the attendance office in an effort to get the student to re-engage.  The student and parents also received assistance from our orienteers, guidance counselors, parent liaisons, and regional satellite offices.

A student who enters at the beginning of a school year and remains enrolled for the full school year will generate an FTE of 1.0. Students who do not remain enrolled for the entire school year or who enter after the start of a school year will have FTE’s less than 1.0, reflecting the portion of the school year they were enrolled … ODE does not provide additional funding for a community school student with a FTE of greater than 1.0 (page 8). 

There is a 10 hour a day cap to avoid an FTE of greater than 1.0 since it is possible for a student to work up to 24 hours in a day.

Attendance Vs. Enrollment

Community schools are funded based on annualized enrollment, not attendance. However, there is an important nexus between student attendance and enrollment for Foundation funding purposes. Students are considered as enrolled in a community school until the last day of attendance due to permissible student withdrawal or closure of the community school. Pursuant to the statutes and rules outlined in ODE’s EMIS and other manuals, schools must provide documentation that clearly demonstrates students have participated in learning opportunities, either through attendance or evidence that a student has logged into an online learning system. Students with excused absences remain enrolled and will be funded. Community school students with unexcused absences, however, must be withdrawn upon reaching 105 consecutive hours of non-attendance (page 10).

This is important.  School funding is again stated as based on enrollment not attendance or durational data.  Also ECOT provided documentation that students participated through attendance that was taken as evident when the student logged into the online portal.

The 105 Hour Rule

105 Hour Attendance Rule and Temporary Assistance for Needy Families (TANF) – Ohio Rev. Code Section 3314.03 (A)(6)(b) requires community schools to maintain procedures for withdrawing students who fail to participate in one hundred five consecutive hours without a legitimate excuse. Also, as part of maintaining certain benefits under the Federal TANF program and in lieu of working, students must remain enrolled in school. Despite significant periods of non-attendance, community schools are funded for students until they are withdrawn for truancy upon 105 consecutive hours of absences.  As an example, under existing law, a charter school must withdraw a student who misses more than 105 consecutive hours of school. That amounts to nearly a month. If the student misses 104 hours, then shows up for a single day, the student gets a new 105-hour clock, and the school is not required to withdraw the student – and the school continues to receive funding for that student. In effect, it is possible for a student to show up for as few as 10 days of school and receive funding for an entire year (page 34). 

THIS WAS THE LAW as explained by Auditor of State Yost in May 2016. Remember the information provided above from Auditor of State Yost can be found on his website in the “Second Report on Community School Student Attendance Counts” dated May 23, 2016.  It clearly stated that enrollment equaled funding. 

Even though there was no change to the school funding statute, the Ohio Department of Education took it upon themselves to create an un-legislated un-lawful policy to conduct an FTE review of ECOT for the school year 2015-2016 based on student durational data. 

Therefore, ECOT sued the ODE.

Regardless whether you agreed with the school funding statute or whether you thought it was absurd, it was the law at that time.  If the Ohio Department of Education attorney Doug Cole or Chief Justice O’Connor think it was absurd, that is something they should take up with the General Assembly not ECOT.  ECOT was just following the law.

If you are interested in more details about the school funding law for community schools prior to August 2016, I would suggest you read Auditor of State Yost’s entire document.  It is very insightful.  Also check out what Auditor of State Yost’s timeline reveals:


It states the new durational funding policy did not begin until August 2016 - ODE Releases FTE Manual - Attendance/Duration will **NOW** be required for funding.

So how was ECOT audited by the ODE using the new policy for the 2015-2016 school year and required to payback $60 mil for that school year if the new policy did not begin until August 2016?

Hmmm ...

Maybe that is why Auditor of State Yost stated that the ODE was the worst run state agency as shown on May 24, 2016 by the Toledo Blade article titled “Auditor rips state education agency.” 


So we ask you...

When it comes to how ODE funds/defunds Ohio students, what's most absurd....

Answer A: Funding based on enrollment snapshots measured on a few planned donut/pizza party attendance drive days for traditional public schools?

Enrollment & Donuts

Enrollment & Donuts


Answer B: Funding based on daily durational login time to an arbitrarily determined minimum amount for eSchool students.... complete with a retroactive and unconstitutional child-defunding penalty?


Answer C: The State of Ohio refusing all compromise, care or consideration to defund a school to closure in the middle of a school year displacing and in many cases destroying over 12,000 Ohio students and hundreds of out state's most-dedicated educators?




Author: Laura Beth McNamara

Contributing Writer: Jeremy Aker

ECOT is currently involved in a legal action with the Ohio Department of Education. The department is moving to limit school choice by ripping funding away from ECOT and other eSchools based on selective and retroactive enforcement of absurd attendance rules. ECOT is challenging the ODE in the Ohio Supreme Court.

We need your help. Please Take Action Now to support school choice and ECOT in Ohio.

The views, opinions and positions expressed by authors and interviewees on ECOT PALS blogs are the author's and interviewees alone, and do not necessarily reflect the views, opinions or positions of The Electronic Classroom of Tomorrow (ECOT) or any other individual or group. Would you like your opinion or story to be published on the ECOT PALS blog? Please contact us to inquire.

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