School boards: Charter school law violates constitution

Here is an op-ed that I ran on the Monday education page in the print newspaper. It deals with the new charter schools law and was written by Jeannie M. Henry, Georgia School Boards Association executive director,  and Joseph White, Georgia School Boards Association president and a Mitchell County Board of Education member.

By Jeannie M. Henry and Joseph White

The lawsuits filed by several school districts that challenge the constitutionality of the Georgia Charter Schools Commission and the funding for its schools have created considerable controversy.

It is important that the public not be confused by rhetoric. Georgians need to understand the constitutional distinction between charter schools approved by school boards and those approved by the commission established last year by the Legislature.

Article VIII of the Georgia Constitution clearly recognizes two kinds of public schools: (1) local schools under the control and management of elected boards of education and (2) state special schools.

If the school is created and governed outside the control and management of the local board, then it is a state special school.

The constitution also clearly prohibits the levying of taxes for a special school unless there is a referendum approving it: “No bonded indebtedness may be incurred nor a school tax levied for the support of special schools without the approval of a majority of the qualified voters voting thereon in each of the systems affected.” (Article VIII, Section V, Paragraph VII (a).)

Since the charter schools recently approved by the new Charter Schools Commission are not under the “management and control of the local board,” then we assume they are intended to be state special schools and can only be funded with local tax funds via a referendum.

Understanding the creation of the Charter Schools Commission is important.
The commission is appointed by the state Board of Education based on recommendations from the governor, lieutenant governor and House speaker.

The state board, of course, is appointed by the governor, which means appointees of appointees are approving charter schools and assessing local taxes against local taxpayers, rather than an elected, local board of education.

There is no direct accountability — as stated in the Georgia Constitution (i.e. by referendum) — to the local voters for these funding decisions.

We maintain that commission charter schools cannot be funded with local dollars.

Funding for public education is extremely complex. Students of different ages and abilities are funded very differently and at various levels.
The funding formula is designed to consider numerous variables.

It may cost $6,000 to educate a standard elementary school student, while it may cost $50,000 or more to educate a special-needs elementary school child.

The funding for commission charter schools is based on a per-pupil cost rather than considering the funding formula already in place.

There has been an underlying assumption by lawsuit opponents that the current costs to a local school drop as students leave, so there is no impact on funding at the school level.

However, just as the mortgage and car payment remain the same when a child leaves home, some costs remain even when students leave a school.

Additionally, students who were not in a public school but are now enrolling in the commission schools do not have local funds to “take” with them. So, this additional money is taken straight out of a district’s budget.

Consider that 35 organizations have applied to the state commission for charter school status in this application cycle.

If these schools are approved, how many millions of dollars will be lost?
What impact will there be to school districts — large and small, urban and rural — across Georgia?

What impact will there be on local property taxes? Remember, this is only year one of the commission’s operation.

Local school boards are elected by their community to make decisions that they feel will support student achievement while preserving their role as good stewards of local tax dollars.

The decision to approve a charter school should rest with the local board.

The board and leadership team of a local school district have the knowledge and experience to know whether a charter school is organized and funded for success, or whether students are likely to fall behind.

Just as many charter schools are successful, some are not. It is not enough to say that a charter petition offers something “different.” It must also make sense fiscally and organizationally.

The decision of whether or not to approve a charter is made with a number of factors in mind:

Does the proposed charter meet all legal requirements regarding public schools?

Does the proposed charter school offer something unique that is not already offered in an existing public school and thus offer a real choice to parents?

Does the unique offering focus on increasing student achievement, or does the goal of the charter school appear to be related to satisfying a particular segment of the community without advancing student achievement?

Does the proposed charter include an appropriate funding and management plan that is likely to succeed long-term?

Will the creation of a charter school result in adverse financial or other consequences for the students remaining in the other schools of the district?

These factors should be evaluated by locally elected representatives accountable to the community and not by an appointed board at the state level with no accountability.

By upholding the intent of the Georgia Constitution and leaving the control and management of local public schools to a locally elected board of education, the public can be assured that there is accountability — through elections, attending hearings, and communicating with the board — concerning their tax dollars and, most importantly, for achievement levels of their students.

23 comments Add your comment


December 28th, 2009
4:24 pm

This article seems to lay out the questions regarding the constitutionality of the Charter Commission fairly well. I’d love to see a ‘counter point’ piece by advocates of the Charter Commission so that we can have balance.


December 28th, 2009
4:54 pm

I meant to say ‘address’ the questions above…

Maureen Downey

December 28th, 2009
4:57 pm

Ernest, For counterbalance, here is a piece that I ran in November from Tony Roberts, the CEO of the Georgia Charter Schools Association. I posted this when it ran in the paper in November, but I will put it back up so people get both sides.

Five school districts have filed suit against the state of Georgia claiming that the creation and operation of the Georgia Charter Schools Commission is unconstitutional.

Additionally, they seek the closure of two charter schools authorized by the commission: Ivy Preparatory Academy in Gwinnett County and Charter Conservatory for the Arts and Technology in Bulloch County.

We believe that their suits are not only unfounded, but also a slap in the face to the parents and students who have decided to pursue the best public education possible.

First, we must understand what charter schools are. They are free, public, open enrollment schools that any student can attend. They cannot exclude students, they cannot charge tuition, and — like public schools everywhere — they must serve all students who wish to enroll in the school.

We also cannot forget that the commission was made necessary by local district denials of charter school applications. Prior to the creation of the commission, the approval rate for independent, public charter schools by local school districts was abysmal.

Local districts engaged in wholesale denials of charter school petitions with the weak rationale that the new schools would “not be in the best interests of the district.” Districts had no incentive to give objective and fair consideration of proposed charter schools. And most did not. The commission merely creates a level playing field for charter approval.

The districts might have stronger justification if there were not widespread problems with student achievement and graduation rates in traditional public schools.

While Georgia student achievement and graduation rates appear to be moving upward, there are still a lot of schools that do not serve their students well.

So, this issue really becomes, “shall we force children to continue attending schools that fail them?” The intent of the commission is to allow parents an option to seek a better education for their children in charter schools which, by the way, have graduation rates that far exceed state averages while serving a population more likely to be poor.

Ultimately, the lawsuit is about money. None of the districts had any problem when charter schools were authorized and funded at less than half the amount of funding compared to traditional public schools.

Only after the Legislature decided that charter schools should be funded equitably did they file suit.

But how does it make any sense for a district to retain state money for students it no longer teaches? The commission merely allows money to follow the child. Any opposite conclusion flies in the face of all notions of fairness and efficiency.

Districts further claim that the commission usurps their authority to control all public schools within their district and that this violates the Georgia Constitution.

Throughout the legislative process, numerous constitutional and legal experts reviewed the commission bill and deemed it fully constitutional. To be sure, the majority of our state legislators had no concerns about the bill’s constitutionality when they passed it. Neither did Gov. Sonny Perdue when he signed it into law.

These plaintiff districts think the constitution gave them a monopoly on public education. Their fallacious argument is that the state has yielded total authority for public education over to the districts.

However, Article VIII, Section I, Paragraph 1 of the constitution makes the state’s position very clear: “The provision of an adequate public education for the citizens shall be a primary obligation of the state of Georgia.”

The citizens of Georgia want and deserve the best educational opportunities that their tax funds can provide. Ivy Preparatory Academy in Norcross and Charter Conservatory for the Arts and Technology are shining examples of what can be accomplished in public education.

After its first year of operation, Ivy Prep has established itself as one of the top middle schools in the state.

This ethnically and socioeconomically diverse, all-girls school had more than 90 percent of its inaugural sixth-grade class meet or exceed CRCT standards in reading, English/language arts and math, a performance that rivaled or bested other public schools in the Gwinnett school district.

CCAT consistently graduates 100 percent of its students, outperforming both of the two traditional public high schools in Bulloch County and significantly higher than the state average.

Additionally, the number of students enrolling in college after graduation from CCAT is a full 20 percent higher than the state average.

It is no secret that charter schools in Georgia, especially independent public charter schools, outperform their peers in traditional public schools statewide. The opponents of charter schools claim that having charter schools harms the traditional public schools.

However, these opponents have not produced a single study that supports that claim. To the contrary, several university studies have concluded that the presence of quality charter schools increases the health and performance of traditional public schools.

There’s a lot more riding on this suit than the settling of a theoretical constitutional question.

The most basic and most important question is: “What is best for the children?”


December 28th, 2009
6:07 pm

“Ultimately, the lawsuit is about money”; I’d say money and power but they two pretty much go hand-in-hand.


December 28th, 2009
6:35 pm

Thanks Maureen! It helps to see the position of those supporting the Charter Commission.


December 28th, 2009
7:27 pm

Those who seek absolute power, even though they seek it to do what they regard as good, are simply demanding the right to enforce their own version of heaven on earth. It seems these school boards view their authority as absolute while being deaf, dumb and blind to the needs of their own children. There is no desire out of local boards to increase school choice which is truly competitive. We are then left with school choice which is created in the image of the local board. This God like approach by local boards will only inhibit quality reform measures in the state.


December 28th, 2009
10:01 pm

These boards seem to think that they are the only local voice. If they don’t control a school, then it’s not a locally-desired school? Correct me if I’m wrong, but all 5 approved commission schools had a groundswell of local support – they wouldn’t have been approved otherwise.

This is nothing new – entrenched powers protecting their turf and cash from new ideas.

The boards should spend more of their time and our money improving the schools, and less time fighting local people who take things into their own hands.

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December 29th, 2009
7:15 am

Maybe the school boards should look at how these charter schools are “reaching” the students. Especially if they are meeting or exceeding state required test. If these kids are learning what is the problem…..


December 29th, 2009
7:23 am

How about the data specialist in College Park who wants the nationaaly certified bonus, even though she doesn’t teach. I remember analyzing data for Gwinnett Public Schools hope grant. I had to explain to the district’s head of instruction the problems involving hispanic students eligible for Hope Grant. (This was before our govenor and state legislature set the policy.) Of course, even though I possess a B.S. in Psychology and a B.B.A. in Information systems, I was told by GCPS teachers (Wendall Jackson)in human resources I wasn’t qualified to teach. How then does a teacher get into a data specialist role and expect additional money? There is a culture of corruption within our public schools. Those in charge benefit by voting themselves raises. There are few checks and balances. Schools Boards do not reflect the community beliefs, unless it is understood that keeping people in the dark is an appropriate use of power.


December 29th, 2009
7:35 am

School Boards do not reflect the community. Look at the teacher who wants the additional pay (federal) for being a data specialist in Clayton County. I remember having to explain to the Gwinnett Public Schools head of instruction the eligibility problems Hispanic students had under Hope Grant. (This was before the gov. and state legislature set policy.) Even though I possess a B.S. in psychology and a B.B.A. in information science a teacher, Wendall Jackson, then head of personnel, said I wasn’t qualified to teach. WHy should a teacher get additional funds for being a data specialists? There is a culture of corruption within the public school system. Students and parents want change. Enough of the whining and crying from people like Wilbanks. He doesn’t run the school system, it runs itself with few checks and balances.


December 29th, 2009
9:47 am

School boards are elected by the people of the county the represent. If they do not reflect the will of the people in the county, how the heck did they get there? If they get elected and go against the will of the people, vote them out.

As I have said on multiple occasions, my elected representatives have said no to certain charter schools only to be overruled by an appointed board that I, as a tax-paying citizen, have no say in. This is not a matter of whether or not I support a particular charter school. It is a matter of the authority of the voter and the Constitution of the State of Georgia (which was put in place by the voters of this state) to regulate the education of the children in this state. If we want this charter commission, I propose the General Assembly do the following: put a Constitutional Amendment on the ballot in November, let us vote and make it an elected board. That would solve a lot, if not all, of the controversy of the legality of this new system.

Shannon, M.Div.

December 29th, 2009
9:51 am

Dan, if there is genuinely local support for these charter schools, then there should be no problem with a local vote to that effect.

The Tony Roberts post by Maureen suggests to me that the charter schools were seeking an end-run around local school boards, because they felt the local boards were not adequately giving them a fair hearing. I would argue that taking this to the court system is more appropriate than a legislative remedy. The system as currently set up, where the legislature can approve charter schools for local districts without the districts even voting on whether they should be taxpayer-funded seems to me to be wrong. If the state wants to do this, the state can fund them with state dollars–not local dollars, and not even with state money designated for local schools.

Looks to me like this is another chapter in the ongoing conservative attempt to privatize schools.


December 29th, 2009
9:59 am

There are charter schools getting turned down by the local school board (especially if the school system’s not doing that well) simply because of the money that will be taken out of the local system’s budget and turned over to the charter school. Also, it seems that sometimes the local school boards are almost intimidated by the charter schools and concerned that the charter school will find a (legal;) way to reach the same kids that the local schools have been unable to help succeed – which will make the local schools look bad.

jim d

December 29th, 2009
11:19 am


“the state can fund them with state dollars–not local dollars,”

That is eactly what they are doing and are being sued over. What they have proposed is witholding state funding from the public schools in the amount that the county would have to have come up with to provide for these students had they sayed in one of the county run schools that was failing these students.

Shannon, M.Div.

December 30th, 2009
10:57 am

jim d, according to Maureen’s original post, local taxes are being assessed to fund these charter schools without a referendum. If that’s inaccurate, could you point me toward some accurate info?

jim d

December 30th, 2009
11:42 am

I’m afraid I missed that part of Ms. Downey’s clim, can you point me towards that? To my knowledge Ms. Downey has not voiced an opinion as to if this is actually local money or if it is state money.

However it would appear that that may not be the case for Jeannie M. Henry, Georgia School Boards Association executive director, and Joseph White, Georgia School Boards Association president and a Mitchell County Board of Education member, who actually authored the op-ed peice that Ms. Downey posted. and it would appear that these two may have a vested interest in the outcome of any legal actions.

The actual wording was in the article the AJC did on Ivy prep—–The crux of the BoE’s lawsuit against the State is the supposed *diversion* of around $850,000 in QBE funding that Gwinnett felt they were entitled to even though those students were not in the system.

Gwinnetts law suit isn’t about the money (so to speak) it is more about the constitutionality of the commission. But we all know it is about the money and continued control by one James Alvin Wilbanks.

Here’s a link to the actual complaint filed with the Fulton County superior court.

jim d

December 30th, 2009
11:43 am

Mo can you free one up?

jim d

December 30th, 2009
12:03 pm

Shannon to save reading the entire complain here’s Gwinnetts contention regarding the money.

Because the Charter Commission authorized a reduction in Plaintiff’s QBE earnings
proportional to locally levied revenues, such reduction in Plaintiff’s QBE earnings to fund Ivy
Preparatory Academy allows the Defendants to do indirectly what they cannot do directly within
the parameters of the Georgia Constitution: use locally levied school tax revenue to fund
Commission charter schools.


December 31st, 2009
12:47 pm

I have been reading that the Commission has approved mostly private managed charter schools that are bilking our tax money. That I do not agree with. I think a better solution should be that a standard for charter review should be for the entire state so that charters get a fair shake with the local boards. I do not want to see my tax money being used to fill the pockets of wealthy private management owners. There are problems with this all of the country. Charters and innnovation are what is needed in education. Privatizing education is another story altogether.