Defying an illegal and unjust system: The courage of Kelley Williams-Bolar

In a story that shocked the conscience of many Americans, an Ohio mother of two was jailed and branded with a felony for enrolling her children in a higher performing suburban school district in which she did not reside.   For trying to provide her children a better education, a jury convicted Kelley Williams-Bolar of falsifying documents (“tampering with records”), a felony which will jeopardize her aspirations of becoming a school teacher.    Williams-Bolar, a single mother, works as a teaching assistant for children with special needs, and was only a few credits short of a teaching degree.

Williams-Bolar had registered her children under her father’s address, rather than their actual residence, a fact which the district uncovered with the aid of a private investigator.    The investigator shot video of Williams-Bolar dropping her children off at the bus stop, evidence presented by the prosecution at trial.

Although a jury deadlocked on the grand theft charge, arising from the prosecution’s claim that she “stole” $30,000 worth of educational services from the district, some residents expressed the view that, by sending her children to their community school, there were less funds and opportunities available for the students who resided in the district.  The Superintendent of the district claims that the district lost hundreds of thousands of dollars because of children illegally enrolled in its schools.   But was what Williams-Bolar did wrong?

While this case has attracted national media interest, particularly since the same issues plague so many states, the national media spotlight has not sufficiently drawn attention to important features of Ohio law.   In this context, Williams-Bolar is no mere criminal, even a sympathetic one.   Her actions are a courageous act of protest against an immoral and unfair system of educational provision.

Many Americans may be surprised to learn that there is currently no right to an education under the United States Constitution.  The U.S. Supreme Court held, in San Antonio Independent School District v. Rodriguez, not only that there is no fundamental right to an education under the Constitution, but that, as a consequence, disparities in funding between districts are not cognizable legal claims. [i] School funding equity advocates subsequently shifted their attention to state constitutional provisions.    Such litigation generated several important Ohio Supreme Court rulings.

A lawsuit filed in 1991 (DeRolph v. State of Ohio) against the State of Ohio alleged that Ohio’s system of funding schools violated the Ohio Constitution.   After six years of litigation, the Ohio Supreme Court decided the case in favor of the plaintiffs (DeRolph I), holding that numerous constitutional violations required the General Assembly to substantially revamp the state’s school funding regime.[ii] In particular, the Court singled out the state’s overreliance on local property taxes.   In 1997, 56.2% of school funding was produced by local districts, more than the state and federal share combined.   The Court agreed with Texas Supreme Court’s finding that:

“Property-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves.  Because of their inadequate tax base, they must tax at significantly higher rates in order to meet minimum requirements for accreditation; yet their educational programs are typically inferior. The location of new industry and development is strongly influenced by tax rates and the quality of local schools. Thus, the property-poor districts with their high tax rates and inferior schools are unable to attract new industry or development and so have little opportunity to improve their tax base.”[iii]

 

Although the Ohio General Assembly enacted changes, some cosmetic and some structural,[iv] three years later the Ohio Supreme Court once again reaffirmed that the system of school funding remained unconstitutional (DeRolph II) because of the overreliance on local property taxes, among other deficiencies.[v] The Court instructed the General Assembly to give this problem “its undivided attention.”   The system of local property taxation as the principal source of school funding, the Court explained, is “inherently arbitrary,” since the valuation of local property, which varies from district to district, has no connection with the actual educational needs of the locality.  Moreover, by relying so heavily on local property taxes, the system of educational provision is more accurately characterized as a local service than a statewide system, running counter to the Ohio Constitution’s requirement for a “statewide system of public schools.”[vi]

Further state investments and expenditures, particularly on facilities and building maintenance, were enacted following the Ohio Supreme Court’s ruling.   And, yet again, the case wound its way to the Ohio Supreme Court to review the sufficiency of the legislature’s efforts (DeRolph III).    This time the Court identified specific deficiencies that could be satisfied to rectify the Constitutional defect.[vii] However, upon reconsideration of the case, the Court vacated its DeRolph III decision in DeRolph IV, but reiterated its basic holding that the system of school funding remained unconstitutional.   Because of a lack of consensus, the Court did not elaborate on its holding except to state “DeRolph I and II are the law of the case, and the current school-funding system is unconstitutional.”[viii] That remains the state of law today.

Now, once again, consider the claim that Kelley Williams-Bolar “stole” educational services from Copley-Fairlawn by sending her children to the wealthier, high performing school district rather than the one in which she resided.    If the State of Ohio’s system of public school funding was truly a state-wide system as required by the state’s Constitution, rather than predominantly local, then the idea that one could “steal” educational services from one district while residing in another district would make no more sense than the argument that you could steal medical services by visiting a non-local emergency room.    Moreover, if Ohio complied with the Ohio Supreme Court’s insistence that overreliance on local property taxes is unconstitutional, then the inter-district disparities that prompted Kelley Williams-Bolar to move her children to safer schools would diminish.

Federal law shields affluent, predominantly white suburban districts from the threat of busing by prohibiting desegregation across district lines.[ix] And the Rodriguez decision, which permits inter-district funding inequality, sanctions and even incentivizes the flight and clustering of affluent families into wealthier enclaves.   The consequence is a pernicious cycle of highly segregated, high-poverty districts on the one hand, and affluent, high-performing districts on the other.   If the connection between local property valuation and school quality were severed, the clustering that generates a vicious cycle of opportunity, on the one hand, and poverty, on the other, could be broken.

Ms. Williams-Bolar’s case raises so many complex questions involving class, educational equity, criminal justice, race, and familial status that, in the words of Michelle Alexander, “it’s hard to know where to begin.”  We can begin by examining the unconstitutional system of school funding that produced the inequity she attempted to overcome.  It’s difficult to imagine that her children would have been targeted had they been white, in which case they might have passed as residents.   It’s difficult to imagine that she would have suffered the same fate if her child was a star football or basketball athlete.  In such cases schools actively recruit lower-income students from across district lines.   It’s difficult to understand how we can impose a felony conviction, with all of the attendant lifetime consequences, for a courageous act of civil disobedience against an unjust and illegal system.

Our system of public educational provision is both separate and unequal.   Justice Douglas warned in 1974 that “we are now in a dramatic retreat from the 7-to-1 [Plessy] decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.”[x] At least the Plessy decision required separate, but equal.   The retreat that Justice Douglas observed in just thirty years time became a rout, and the consequences are now fully manifest.  If we are to regain lost ground and fight for a system of fair and equitable educational provision, we need an army of courageous men and women like Williams-Bolar and those who are willing to stand up for them.

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[i]411 U.S. 1 (1973).

[ii] DeRolph v. State, 78 Ohio St.3d 193 (1997)

[iii] Id. at 204.

[iv] In particular, the Ohio General Assembly created a separate education budget, rather than fund education through residual revenues.  In addition, changes were made to funding of capital costs and improvement or school facilities and building maintenance.

[v] DeRolph v. State, 89 Ohio St. 3d 1 (2000)

[vi] Id.

[vii] State v. DeRolph, 93 Ohio St. 3d 309 (2001)

[viii] DeRolph v. State of Ohio, 97 Ohio St.3d 434, 434 (2002)

[ix] Milliken v. Bradley, 418 U.S. 717 (1974).

[x] Milliken v. Bradley, 418 U.S. 717 (1974)