[Cite as Swiech v. Sylvania City School Dist. Bd. of Edn., 2025-Ohio-405.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Jennifer A. Swiech, et al. Court of Appeals No. L-24-1090
Appellants Trial Court No. CI0202203761
v.
Board of Education for the DECISION AND JUDGMENT Sylvania City School Dist., et al. Decided: February 7, 2025
Appellees
***** Andrew R. Mayle, Benjamin G. Padanilam, and Nicole K. Papageorgiou, for appellants.
Jennifer J. Dawon, Amy M. Natyshak, Shawn A. Nelson, and Franceska N. Surinck for appellees.
Hollie F. Reedy, for amici curiae, The Ohio School Boards Association, Ohio Association of School Business Officials, and Buckeye Association of School Administrators.
***** ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Jennifer Swiech, appeals the judgment of the Lucas County Court
of Common Pleas granting summary judgment in favor of appellees, Board of Education
of Sylvania City School District and its transportation director Jim Wolpert (collectively
the “School District”), on her claim that the School District’s bussing scheme violated her constitutional rights to equal protection and the free exercise of religion.1 For the
following reasons, the trial court’s judgment is affirmed.
A. Factual Background and Procedural History
{¶ 2} The underlying facts in this case are undisputed. Swiech is a parent of
elementary-aged children living in the School District, who elects to send her children to
Saint Joseph Parish School (“St. Joe’s), a private Catholic school, for religious reasons.
She desires to fully utilize the School District’s bussing system to send her children to
and from school, but does not do so because of safety concerns, dissatisfaction with the
level of service provided, and timing conflicts with her son’s medication needs.
{¶ 3} The School District is required to provide bussing to students residing within
the district under R.C. 3327.01, which provides, in relevant part,
In all city, local, and exempted village school districts where resident school pupils in grades kindergarten through eight live more than two miles from the school for which the director of education and workforce prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code and to which they are assigned by the board of education of the district of residence or to and from the nonpublic or community school which they attend, the board of education shall provide transportation for such pupils to and from that school except as provided in section 3327.02 of the Revised Code.
R.C. 3327.02 provides a process with administrative protections for the parents that
allows the School District to determine that transportation of certain students is
impractical and to offer payment in lieu of transportation.
1 The notice of appeal was also filed on behalf of co-plaintiffs James and Nicole Vanderweele. Shortly before the scheduled oral argument, the Vanderweeles moved to voluntarily dismiss their appeal, which this court granted.
2. {¶ 1} In accordance with R.C. 3327.01, the School District provides bussing to its
12 public schools as well as to 17 nonpublic or community schools, which include both
religious and non-religious schools. On a normal day, the School District will transport
over 4,200 students within a 90-minute timespan.
{¶ 2} Prior to the 2022-2023 school year, the School District provided direct
bussing for all students of the 12 public schools and for three private, religious schools
located in Sylvania: St. Joe’s, St. Benedict, and Christ the King. Students attending St.
Joe’s were transported directly to school on five to seven busses, and directly home from
school on five or six busses. At times, there would only be seven students on a 72-
student capacity bus. Students attending the remaining 14 nonpublic or community
schools were transported via a “hub and spoke” system whereby the students would first
be transferred to a centralized location before being bussed to school or home.
{¶ 3} During the 2021-2022 school year, the School District experienced the
effects of a nationwide shortage of bus drivers. Between March 2022 and the end of that
school year, the School District had to cancel at least 55 runs, sometimes with little to no
notice. Consequently, the Ohio Department of Education found the School District to be
in noncompliance with the bussing requirements and withheld $100,000 in transportation
funding.
{¶ 4} To address the bussing issues and driver shortage, the School District
developed a new transportation plan for the 2022-2023 school year. As part of that plan,
it eliminated direct bussing for St. Joe’s, St. Benedict, and Christ the King and included
them with the rest of the nonpublic or community schools that operate on the hub and
3. spoke system. Since implementing the new plan, the School District has been forced to
cancel a run only one time and has not been found in noncompliance by the Ohio
Department of Education.
{¶ 5} The resulting plan has increased the amount of time that Swiech’s children
would be on the bus. For the 2022-2023 school year, the Swiech children were scheduled
to be picked up from home at 6:35 a.m. to arrive at school in time for the 8:00 a.m. start.
After dismissal at 2:40 p.m., the children were scheduled to be delivered home at 3:36
p.m. For the 2023-2024 school year, the children were to be picked up at 6:52 a.m. and
delivered home at 3:26 p.m. The route to school involves a transfer and layover at
Northview High School, and the route home involves a transfer and layover at Arbor
Hills Junior High School. Notably, the Swiechs live 1.5 miles from St. Joe’s. She
elected to have her children ride the bus only in the afternoon.
{¶ 6} Swiech initiated the present matter by filing a complaint seeking a
declaratory judgment and permanent injunction.2 In her complaint, she alleged that the
School District’s bussing plan was unlawful in three ways: (1) it violated the statutory
obligation under R.C. 3327.01 to transport students “to and from” school, which implies
no transfers or layovers; (2) it violated the guarantee of equal protection set forth in
Article 1, Section 2 of the Ohio Constitution; and (3) it violated the Free Exercise Clause
under Article I, Section 7 of the Ohio Constitution.
2 The complaint was styled as a class action complaint, but no class has been certified.
4. {¶ 7} Notably, the trial court awarded summary judgment in favor of the School
District on the claim that its bussing plan violated R.C. 3327.01. Swiech assigns no error
relative to that portion of the trial court’s judgment and does not otherwise argue it on
appeal. Thus, this decision will focus only on her equal protection and free exercise
claims.
B. The Parties’ Arguments in Support of Summary Judgment
{¶ 8} Following pretrial discovery, the parties filed competing motions for
summary judgment.
1. Equal Protection
{¶ 9} In her motion, Swiech addressed her equal protection claim by arguing that
R.C. 3327.01 makes no distinction between students who attend nonpublic or community
schools and those who attend public schools, so any differentiation based on geography
or choice of school is irrelevant for purposes of the similarly situated analysis. As such,
she contended that under R.C. 3327.01 her children are similarly situated to their public-
school counterparts, and therefore any disparate treatment violates her equal protection
rights.
{¶ 10} Moreover, even if her children are not similarly situated, Swiech argued
that the School District’s classification is not rationally related to a legitimate government
interest. She posited that issues of drive time, distance, and impracticability cannot be
legitimate considerations because those issues are already accounted for in the statutory
scheme requiring transportation unless it is impracticable, and it is undisputed that the
School District has not made any findings of impracticability. She also asserted that
5. where there is a legitimate interest, such as a shortage of bus drivers, the proposed
solution is not rationally related to that interest because the School District could cut
bussing for high school students—which it is not statutorily required to provide—before
it forced nonpublic or community school elementary students to endure the hub and
spoke scheme.
{¶ 11} Finally, Swiech suggested that the issue could be analyzed under strict
scrutiny instead of rational basis review because it involves her fundamental right to send
her children to a religious school. Under that level of review, she contended that there is
no compelling governmental interest and that the plan is not narrowly tailored to that
interest because other options exist, such as eliminating bussing for high school students.
{¶ 12} The School District, in contrast, argued that Swiech’s children are not
similarly situated to public school students in all relevant respects. Specifically, it noted
that students attending nonpublic or community schools are geographically dispersed
throughout the district, attend schools with different start and end times, and attend
schools with instructional days of different length, all of which affect route efficiency.
For example, students attending St. Joe’s reside in every attendance zone in the district,
and the school begins its day at 8:00 a.m. and ends at 2:40 p.m. In contrast, students
attending one of the School District’s elementary schools all live in the same attendance
zone, and most school days begin after 9:00 a.m. and end at 3:35 p.m. Because of these
differences, the School District treats public school students and nonpublic or community
school students differently.
6. {¶ 13} In analyzing whether the disparate treatment is permitted under the equal
protection clause, the School District first argued that rational basis review, not strict
scrutiny, was the appropriate framework. It noted that because nonpublic students are not
members of a “suspect class” and there is no fundamental right to an education or
transportation to school, the higher level of scrutiny is not warranted.
{¶ 14} Under rational basis review, the School District asserted that based on the
differences between public school students and nonpublic or community school students
it created its bussing plan to advance its legitimate interest in establishing an efficient
transportation plan which provides services to the most students possible. It argued that
the bussing plan was rationally related to that interest, and indeed was effective in
achieving that interest, as evidenced by the near elimination of the number of cancelled
runs from 55 in three months to one in the past two years. Thus, the School District
contended that its bussing plan did not violate Swiech’s equal protection rights.
2. Free Exercise of Religion
{¶ 15} Turning to her free exercise claim, Swiech argued that the Ohio
Constitution affords greater protections than the United States Constitution in that it
applies to direct and indirect encroachments upon religious freedom. According to her,
“[u]nequal service is inherently an indirect interference with attendance at a religious
school and thus amounts to an encroachment upon religious freedom.”
{¶ 16} In response, the School District argued that there was no evidence that its
bussing plan was based on religion. In fact, the evidence demonstrated that all nonpublic
or community school students, whether they attended religious or non-religious schools,
7. were bussed under the same hub and spoke system. In addition, the School District
argued that Swiech could not establish a prima facie free exercise claim because she
could not show an impediment to the exercise of her religion, noting that her children still
attend religious school and are afforded transportation to and from that school, thereby
allowing them to fully exercise their faith by participating in religious classes, mass, daily
prayers, and any sacraments. Furthermore, even if Swiech could establish a prima facie
claim, the School District argued that its bussing plan is necessary and narrowly tailored
to achieve its compelling governmental interest in affording transportation services to the
greatest number of students. Therefore, the School District concluded that it did not
violate Swiech’s right to the free exercise of her religion.
3. Injunctive Relief
{¶ 17} Finally, the School District argued that Swiech was not entitled to
injunctive relief because she (1) failed to establish success on the merits, (2) failed to
establish irreparable harm because her children still attend school every day, (3) failed to
establish no unjustifiable harm to third parties because hundreds of high school students
would be deprived of bussing, and (4) failed to establish that the public interest would be
served by the injunction, to the contrary, the public interest would be harmed because
substantially fewer students would receive bussing services.
D. Trial Court’s Judgment
{¶ 18} Following complete briefing by the parties, the trial court entered its
judgment on March 19, 2024, denying Swiech’s motion for summary judgment, granting
the School District’s motion for summary judgment, and dismissing Swiech’s complaint
8. with prejudice. The trial court determined that Swiech’s equal protection claim must fail
because the classification between public school students and community or nonpublic
school students did not involve a suspect class or fundamental right, and the School
District’s bussing plan was rationally related to the legitimate governmental purpose of
conserving its limited financial resources in the implementation of its transportation plan.
The trial court then determined that Swiech’s free exercise claim also must fail because
she did not demonstrate a prima facie case that the bussing plan had a coercive affect
against her in the practice of her religion. It reasoned that there was no evidence that the
bussing plan compelled Swiech to do anything forbidden by her religion, refrain from
doing something required by her religion, or affirm or disavow a belief forbidden or
required by her religion. Lastly, having determined that Swiech could not succeed on the
merits, the trial court held that her claim for injunctive relief must fail.
E. Assignment of Error
{¶ 19} Swiech timely appealed the judgment of the Lucas County Court of
Common Pleas, asserting one assignment of error for review:
1. The trial court erroneously upheld a school transportation plan that offends appellants’ children’s constitutional rights to the equal protection of law and free religious exercise.
The School District has filed a brief in response, as have amici curiae the Ohio School
Boards Association, Ohio Association of School Business Officials, and the Buckeye
Association of School Administrators, and Swiech has filed her reply.
9. II. Law and Analysis
{¶ 20} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Lorain Natl. Bank. v. Saratoga Apts., 61
Ohio App.3d 127, 129 (9th Dist. 1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine
issue as to any material fact exists; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the
nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
A. Equal Protection
{¶ 21} Swiech first argues that the trial court erred in awarding summary judgment
to the School District on her equal protection claim under Ohio’s constitution.
{¶ 22} Article I, Section 2 of the Ohio Constitution provides,
All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.
{¶ 23} Traditionally, the Equal Protection Clause of the Ohio Constitution has
been treated as providing the same protection as the Equal Protection Clause of the
United States Constitution. See Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 2010-
Ohio-4908, ¶ 17 (“The federal and Ohio equal-protection provisions are ‘functionally
equivalent,’ . . . and ‘are to be construed and analyzed identically.’” (Internal citations
omitted for readability.)); State v. Williams, 2010-Ohio-2453, ¶ 38; Eppley v. Tri-Valley
10. Local School Dist. Bd. of Edn., 2009-Ohio-1970, ¶ 11; State v. Thompson, 2002-Ohio-
2124, ¶ 11; Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ.,
87 Ohio St.3d 55, 60 (1999). In State v. Mole, 2016-Ohio-5124, three justices, joined by
a fourth, concurring justice, introduced some doubt regarding the traditional view by
recognizing the possibility that the Equal Protection Clause of the Ohio Constitution may
be interpreted to provide greater protections than its federal counterpart, but they had no
occasion to do so in that case because they held that the relevant statutory provision was
violative of equal protection under both the federal and state constitutions. Id. at ¶ 14-23.
Subsequent to Mole, however, the Ohio Supreme Court has on several occasions repeated
that the two guarantees are “functionally equivalent.” See State ex rel. Maras v. LaRose,
2022-Ohio-3852, ¶ 17; State v. Moore, 2018-Ohio-3237, ¶ 22; State v. Aalim, 2017-Ohio-
2956, ¶ 29. Recently, this court has similarly recognized the view that the two are
“functionally equivalent” and “are to be construed and analyzed identically.” See
Taxiputinbay, LLC v. Put-In-Bay, 2023-Ohio-1237, ¶ 33 (6th Dist.); Kinzel v. Ebner,
2023-Ohio-164, ¶ 79 (6th Dist.).
{¶ 24} In this case, Swiech does not argue that the Ohio Constitution affords
greater protection than the United States Constitution. Therefore, in accordance with the
above, we will apply the traditional equal protection analysis.
{¶ 25} The purpose of the Equal Protection Clause “is to secure every person
within the State’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through duly
constituted agents.” Kinzel at ¶ 79, quoting Village of Willowbrook v. Olech, 528 U.S.
11. 562, 564 (2000). “Simply stated, the Equal Protection Clauses require that individuals be
treated in a manner similar to others in like circumstances.” Taxiputinbay at ¶ 33,
quoting Burnett v. Motorists Mut. Ins. Co., 2008-Ohio-2751, ¶ 30, quoting McCrone v.
Bank One Corp., 2005-Ohio-6505, ¶ 6.
{¶ 26} The touchstone is whether the comparators are similar in all relevant
aspects. “Although citizens are entitled to equal protection under the law, governments
are ‘free to draw distinctions in how they treat certain citizens.’” Ferguson v. State,
2017-Ohio-7844, ¶ 30, quoting Park Corp. v. Brook Park, 2004-Ohio-2237, ¶ 19. “The
Equal Protection Clause does not forbid classifications. It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.”
Id., quoting Park Corp. at ¶ 19, quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
1. Rational Basis Review Applies
{¶ 27} The first step in analyzing an equal protection claim is determining the
appropriate standard of review. Id. at ¶ 31; see Sherman v. Ohio Pub. Emps. Retirement
Sys., 2020-Ohio-4960, ¶ 14; Taxiputinbay at ¶ 34. “When a claim involves a
fundamental right or a suspect class, the government’s action is subject to a higher level
of scrutiny.” Sherman at ¶ 14, citing Adamsky v. Buckeye Local School Dist., 73 Ohio
St.3d 360, 362 (1995). “But when no such right or class is involved, the government’s
action is subject to rational-basis review; it will be upheld ‘if it is rationally related to a
legitimate government interest.’” Id., quoting State v. Williams, 2010-Ohio-2453, ¶ 39.
{¶ 28} At issue in this case is the classification between public school students and
nonpublic or community school students for purposes of transportation by bus. To be
12. entitled to heightened scrutiny, Swiech must demonstrate that this classification involves
either a fundamental right or a suspect class. Notably, she makes no argument on this
issue, simply stating without any explanation or legal support that “strict-scrutiny applies
here.”
{¶ 29} On the issue of whether transportation to and from school by bus is a
fundamental right, we note that Ohio courts have recognized that education itself is not.
Novak v. Revere Local School Dist., 65 Ohio App.3d 363, 367 (9th Dist. 1989); see also
Plyler v. Doe, 457 U.S. 202, 223 (1982) (“Nor is education a fundamental right; a State
need not justify by compelling necessity every variation in the manner in which
education is provided to its population.”); Rowitz v. McClain, 2019-Ohio-5438, ¶ 21
(10th Dist.) (“Courts have rejected classifying things such as education, safe housing, and
public welfare assistance as fundamental rights.”); Danckaert v. Cuyahoga Community
College Found., 2017-Ohio-1159, ¶ 26 (8th Dist.) (“[W]hile education is not a
fundamental right, a university may not arbitrarily dismiss a student without due process
of law.”); Menke v. Ohio High School Athletic Assn., 2 Ohio App.3d 244, 245 (1st Dist.
1981) (“Education is not one of the rights that has been recognized by the Supreme Court
as being ‘fundamental.’”). Thus, because education is not a fundamental right, “there can
be no fundamental right to transportation to school or reimbursement in lieu of
transportation.” Novak at 367.
{¶ 30} Nor are nonpublic or community school students members of a suspect
class. “[T]he class of students who attend non-public schools . . . is not ‘saddled with
such disabilities, or subjected to such a history of purposeful unequal treatment, or
13. relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process.’” Id., quoting San Antonio Indep.
School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
{¶ 31} Therefore, because this case does not involve a fundamental right or a
suspect class, rational basis review applies.
2. The School District’s Bussing Plan is Rationally Related to a Legitimate Government Interest
{¶ 32} Rational basis review consists of a two-step analysis. “We must first
identify a valid state interest. Second, we must determine whether the method or means
by which the state has chosen to advance that interest is rational.” Sherman at ¶ 15,
quoting McCrone v. Bank One Corp., 2005-Ohio-6505, ¶ 9. A government’s action will
not be held to violate the Equal Protection Clause, and a plan of classification will not be
invalidated unless it is clearly arbitrary and unreasonable. Id., quoting McCrone at ¶ 9.
“Thus, provided that the [government action] is rationally related to a government
interest, it will be upheld.” Id. However, rational basis review “does not mean toothless
scrutiny.” Mole, 2016-Ohio-5124, at ¶ 28. “Even in the ordinary equal protection case
calling for the most deferential of standards, we insist on knowing the relation between
the classification adopted and the object to be attained.” Id., quoting Romer v. Evans,
517 U.S. 620, 632 (1996).
{¶ 33} Under the first step, we hold that the School District in this case has a
legitimate governmental interest in the conservation and efficient use of its resources to
meet its requirement to provide transportation under R.C. 3327.01. Hensley v. Toledo
14. Area Regional Transit Auth., 121 Ohio App.3d 603, 612 (6th Dist. 1997) (recognizing
that “the state had a legitimate interest in providing a means of access to educational
facilities for students, while not unduly burdening the resources of the school district”);
see also Menefee v. Queen City Metro, 49 Ohio St.3d 27, 29 (1990) (“[A] state has a
valid interest in preserving the financial soundness of its political subdivisions.”), citing
Shapiro v. Thompson, 394 U.S. 618, 633 (1969); State ex rel. Ferguson v. Court of
Claims of Ohio, Victims of Crime Div., 2003-Ohio-1631, ¶ 32 (“Conserving scarce
resources is a legitimate purpose.”); Fabrey v. McDonald Village Police Dept., 70 Ohio
St.3d 351, 353 (1994) (“The Supreme Court of the United States has declared that the
preservation of fiscal integrity is a valid state interest.”); Kagy v. Toledo-Lucas Cty. Port
Auth., 121 Ohio App.3d 239, 244 (6th Dist. 1997) (holding that a statute allowing a
political subdivision to immediately appeal an immunity decision serves a legitimate
governmental purpose in conserving the fiscal resources of the political subdivision).
{¶ 34} Turning to the second step, it is worth noting that Swiech does not
challenge the trial court’s judgment that the School District’s bussing plan complies with
its obligation under R.C. 3327.01. The issue then is not whether the School District has
failed to provide bussing for nonpublic or community school students while providing
bussing for public school students. Nor is the issue whether the School District
inappropriately circumvented paying Swiech in lieu of providing transportation based
upon a finding of impracticality under R.C. 3327.02. Indeed, under the undisputed facts
of this case as judged by the trial court, the School District offers statutorily compliant
transportation to Swiech’s children. Thus, the issue is whether the School District’s
15. bussing plan violates equal protection only in the manner of the transportation that is
provided.
{¶ 35} Swiech argues that the manner of transportation violates equal protection
because her children are similarly situated to public school children in all relevant
aspects. Further, she argues that the School District’s reliance on the efficient use of
limited resources to justify its bussing plan is irrational in light of the fact that it
voluntarily expends resources to provide bussing services to public high school students
who are not statutorily required to receive them. Both arguments challenge the rational
relationship between the classification and the legitimate governmental interest, and they
will be addressed in turn.
{¶ 36} As to the first argument, Swiech contends that because R.C. 3327.01 and
3327.02 already contemplate factors such as geographical dispersion, number of students,
start and end times, travel time, and available alternatives, those factors are irrelevant for
determining whether there should be a classification between public school students and
nonpublic and community school students. Her position may have some merit if the
issue was one class receiving transportation while the other did not. However, as noted
above, both classes receive statutorily compliant transportation, and the issue is only the
manner in which that transportation is provided. As such, it is rational and reasonable to
classify public school students separately from nonpublic and community school students
based on the differences in how many students attend each school, where the students are
located in relation to their school, and when the schools start and end.
16. {¶ 37} To be sure, the classifications may not be perfect as the transportation
needs for some nonpublic or community school students may differ greatly than those for
other nonpublic or community school students—for example, transportation to nonpublic
or community schools located outside of the School District versus transportation to St.
Joe’s, which is located near the center of the School District. However, “[a] State does
not violate the Equal Protection Clause merely because the classifications made by its
[actions] are imperfect. If the classification has some ‘reasonable basis,’ it does not
offend the Constitution simply because the classification ‘is not made with mathematical
nicety or because in practice it results in some inequality.’” Sherman, 2020-Ohio-4960,
at ¶ 15, quoting McCrone, 2005-Ohio-6505, at ¶ 8. Here, it is reasonable that the smaller
number of students attending St. Joe’s would be transported in a different manner than
their public-school counterparts based on the fact that the St. Joe’s students are dispersed
throughout the entire school district and start and end school at a different time.
{¶ 38} As to the second argument, Swiech contends that it is “nonsensical” for the
School District to claim that a lack of resources justifies bussing nonpublic and
community school students via the hub and spoke system while simultaneously providing
direct transportation to and from school for high school students, who are not statutorily
entitled to receive any transportation. Swiech’s argument is one of fit, i.e., how closely
does the action relate to the goal, and what other alternatives exist. Under rational basis
review, however, courts are “compelled” to accept the government’s generalizations
“even when there is an imperfect fit between means and ends.” Pickaway, 2010-Ohio-
4908, at ¶ 32, quoting Am. Assn. of Univ. Professors, 87 Ohio St.3d at 58, quoting Heller
17. v. Doe by Doe, 509 U.S. 312, 321 (1993). The fit “is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or empirical data.”
Id., quoting Am. Assn. of Univ. Professors at 58.
{¶ 39} The undisputed facts in this case demonstrate that prior to adopting the
current bussing scheme, the School District had difficulty ensuring enough drivers and
maintaining all its routes and was found to be in noncompliance with its requirement to
provide transportation. Since implementing the new plan calling for the transportation of
all nonpublic and community school students via the hub and spoke system, the School
District has had to cancel a route only one time and has not been found in
noncompliance. In addition, as described in Wolpert’s affidavit, it is rational that it
would be more efficient to pick up nonpublic and community school students with busses
already driving through an area than to have separate, overlapping busses for public
school students and nonpublic or community school students.
{¶ 40} Thus, the School District’s plan is rationally related to the goal of
conservation and efficient use of public resources in providing bus transportation, even
though other alternatives such as eliminating bussing for high school students may exist.
{¶ 41} Further, this result is consistent with Hensley v. Toledo Area Regional
Transit Authority, in which this court held that the Toledo Public Schools’ use of metro
buses instead of yellow school buses to transport approximately sixty percent of its
students did not violate equal protection, reasoning that “the board’s use of both its own
yellow school buses and TARTA buses ensures that the maximum number of students is
18. transported to school and promotes a thorough and efficient system of common schools.”
Hensley, 121 Ohio App.3d 603, 613 (6th Dist. 1997).
{¶ 42} In sum, because the classification at issue does not involve a fundamental
right or a suspect class, and because the School District’s actions in transporting
nonpublic and community school students via a hub and spoke system is rationally
related to its legitimate government interest in the conservation and efficient use of public
resources in providing statutorily required bus transportation, the trial court did not err
when it awarded summary judgment in favor of the School District on Swiech’s equal
protection claim.
B. Free Exercise
{¶ 43} Swiech alternatively argues that the School District’s bussing plan violates
her right to freely exercise her religion under Ohio’s constitution.
{¶ 44} Article 1, Section 7 of the Ohio Constitution states,
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. . . . Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.
{¶ 45} The Ohio Constitution’s free exercise protection is broader than that found
in the United States Constitution. Humphrey v. Lane, 89 Ohio St.3d 62, 67 (2000).
The Ohio Constitution allows no law that even interferes with the rights of conscience. The federal Constitution concerns itself with laws that prohibit
19. the free exercise of religion. By its nature the federal Constitution seems to target laws that specifically address the exercise of religion, i.e., not those laws that tangentially affect religion. Ohio’s ban on any interference makes even those tangential effects potentially unconstitutional.
(Emphasis sic.) Id. Thus, for religiously neutral, evenly applied government actions that
interfere with the rights of conscience, “the state [action] must serve a compelling state
interest and must be the least restrictive means of furthering that interest.” Id. at 68.
“That protection applies to direct and indirect encroachments upon religious freedom.”
Id.
{¶ 46} “To state a prima facie free exercise claim, the plaintiff must show that his
religious beliefs are truly held and that the governmental enactment has a coercive affect
against him in the practice of his religion.” Id., citing State v. Whisner, 47 Ohio St.2d
181, 200 (1976). The burden then shifts to the State “to prove that the regulation furthers
a compelling state interest.” Id. at 69. “Once that aspect has been satisfied, the state
must prove that its regulation is the least restrictive means available of furthering that
state interest.” Id.
{¶ 47} Swiech argues that the trial court erred when it determined that she did not
state a prima facie free exercise claim. She asserts that the record shows that she has
sincerely held religious beliefs, that she acted on those beliefs by enrolling her children in
a religious school, and that she and her children “are afforded lesser transportation
service as a consequence of this exercise.” She contends that receiving lesser
governmental benefits due to the exercise of religion tends to be coercive, and therefore
20. the burden should shift to the School District to demonstrate that the bussing plan is the
least restrictive means of serving a compelling interest.
{¶ 48} The School District, on the other hand, argues that there is no evidence that
its bussing plan tangentially interferes with Swiech’s ability to freely exercise her
religion. During discovery, Swiech described that she exercises her sincerely held
religious beliefs by attending mass, observing religious holidays, making all applicable
sacraments, attending catholic school, volunteering with the church and school, and
participating in Catholic Youth Organization sports. The School District argues that its
transportation plan does not impede Swiech’s ability to engage in any of those activities
in any way. Furthermore, the School District argues that its bussing plan is narrowly
tailored to achieve its compelling interests in affording transportation services to the
greatest number of students possible and avoiding an Establishment Clause violation by
giving preferential treatment to St. Joe’s.
{¶ 49} Upon review, we first note that Swiech’s argument that she receives lesser
governmental benefits as a consequence of the exercise of religion lacks nuance.
Swiech’s children receive different transportation not because she is exercising her
religion, but because she chooses to send them to a nonpublic or community school. All
students residing in the School District who attend a nonpublic or community school are
similarly transported regardless of whether they attend a religious or non-religious
school. For example, students that attend the Toledo School for the Arts, Maumee Valley
Country Day School, Northwest Ohio Classical Academy, and Central Academy of Ohio
are all transported via the hub and spoke system.
21. {¶ 50} In any event, we agree with the School District that its bussing plan does
not have a coercive affect against Swiech in the practice of her religion. While the
bussing plan may impact Swiech’s and her children’s sleep schedules, work schedules,
and medication schedules, it does not interfere with their ability to practice their religion.
Indeed, the School District’s bussing plan ensures that Swiech’s children are able to
attend their chosen religious school on time every day. Therefore, Swiech has not
demonstrated a prima facie claim that her free exercise protections have been violated,
and the trial court did not err when it awarded summary judgment to the School District
on that claim.
C. Injunctive Relief
{¶ 51} Finally, the trial court did not err in granting summary judgment to the
School District on Swiech’s claim for injunctive relief.
{¶ 52} “The grant of a permanent injunction is an ‘extraordinary remedy in equity
where there is no adequate remedy available at law.” Gimex Properties Corp., Inc. v.
Reed, 2022-Ohio-4771, ¶ 60 (6th Dist.), quoting City of Toledo v. State, 2018-Ohio-2358,
¶ 15. “Injunctive relief ‘is not available as a right but may be granted by a court if it is
necessary to prevent a future wrong that the law cannot.’” Id., quoting Garono v. State,
37 Ohio St.3d 171, 173 (1988).
{¶ 53} A party seeking a permanent injunction bears the burden of establishing, by
clear and convincing evidence, that (1) the plaintiff has prevailed on the merits; (2) the
plaintiff will suffer irreparable injury if the injunction is not granted; (3) no third parties
will be unjustifiably harmed if the injunction is granted; and (4) the public interest will be
22. served by the injunction. Id. at ¶ 61-62; Miller v. Miller, 2005-Ohio-5120, ¶ 10-11 (11th
Dist.). Here, because Swiech has not prevailed on the merits, the trial court did not err in
denying injunctive relief. See Taxiputinbay, 2023-Ohio-1237, at ¶ 45 (6th Dist.).
III. Conclusion
{¶ 54} For the foregoing reasons, we hold that the trial court did not err when it
awarded summary judgment to the School District on Swiech’s claims that the bussing
plan violated her rights to equal protection and the free exercise of religion. Accordingly,
Swiech’s assignment of error is not well-taken.
{¶ 55} The judgment of the Lucas County Court of Common Pleas is affirmed.
Swiech is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________ JUDGE John R. Willamowski, V.J. ____________________________ Juergen A. Waldick, V.J. JUDGE CONCUR. ____________________________ JUDGE
Judges John R. Willamowski and Juergen A. Waldick, Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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