Breaking news: Georgia Supreme Court strikes down Charter Schools Commission in 4-3 vote.

Pro charter school forces plan a rally tomorrow but the Supreme Court ruling will cast a pallor over the event. (AJC photo)

In a long-awaited ruling released this morning, the state Supreme Court struck down a state commission that could approve charter schools over the objection of local boards of education and direct local funding to the schools. The vote was 4-3.

“No other constitutional provision authorizes any other governmental entity to compete with or duplicate the efforts of local boards of education in establishing and maintaining general K-12 schools,” the opinion states. “By providing for local boards of education to have exclusive control over general K-12 schools, our constitutions, past and present, have limited governmental authority over the public education of Georgia’s children to that level of government closest and most responsive to the taxpayers and parents of the children being educated.”

The decision is a major victory for school systems and local control but a setback to the burgeoning charter school movement in Georgia. Unclear is the fate of the charter schools approved by the commission, some of which are operating and some of which planned to open this fall.

The ruling has no impact on the 160 charter schools that were approved by local systems, only those 16 approved by the state Georgia Charter Schools Commission:

They include the Georgia Cyber Academy, Georgia Connections Academy, Cherokee Charter Academy (the county’s first charter school), Provost Academy Georgia, Heritage Preparatory Academy, Chattahoochee Hills Charter School, Atlanta Heights Charter School, Fulton Leadership Academy, the Museum School of Avondale Estate , Peachtree Hope Charter School, Coweta Charter Academy at Senoia, Heron Bay Academy, Pataula Charter Academy, Ivy Preparatory Academy in Norcross and the Statesboro’s Charter Conservatory for Liberal Arts & Technology

Charter schools receive public funds to operate under a board-approved charter, or contract, that spells out a plan for improving student achievement and provides benchmarks for measuring this improvement on a five-year time line. If those benchmarks aren’t met, the school is supposed to close.

Up until two years ago, school boards in Georgia had primary power to veto or promote charter schools, but lawmakers felt that the school boards were hostile to charter schools and turned down strong applicants. So, the General Assembly created a commission that not only could approve charters, but redirect monies so that the schools receive their share of local dollars.

And that was the issue that is before the Supreme Court after seven systems — Atlanta, DeKalb, Candler, Coweta, Bulloch, Gwinnett and Griffin-Spalding — sued to have the state law that created the Charter Schools Commission declared unconstitutional. The systems lost their case in Fulton County Superior Court a year ago, but appealed to the Supreme Court in October. (Not all the systems were part of the appeal to the high court,)

The Supreme Court focused on two issues in its ruling: Does the state constitution give the state the right to create charter schools over the objection of local boards of education? The state argued for a broad definition of state-sponsored “special schools,” which have historically been limited to the state-run schools for the blind and deaf. The second point of contention was whether the seven-member Charter Schools Commission was a device for the state to divert local money to charter schools.

In its decision, the court sided with the systems, but now the question is what becomes of the charter schools already approved by the commission. Please note, the majority of charter schools in Georgia were approved by local boards of education and are not affected by this court ruling. This ruling is limited to the 16 approved by the now defunct commission.

However, in the larger picture, the decision ruling undermines the charter movement as it returns control to local boards and reduces the flow of dollars to charter schools approved at the state level.

The state Board of Education can still approve charter schools that were rejected by local boards, but those schools get only state money, no local funding. Consider that local systems provide on average about 45 percent of what it now costs to educate a child. So, it’s a dramatic drop if a charter school loses its local dollars. Without that local funding, it is unlikely that the commission charter schools can pay their bills.

So, will local boards of education step in and “adopt” those schools to maintain the stream of local funding?

The problem is that some of the charter schools approved by the now illegal commission are regional, and thus would require several school boards to “adopt” them. They are the most imperiled by this ruling.

According to the court’s statement this morning:

The Supreme Court of Georgia has struck down as unconstitutional a 2008 Act that authorized creation of a new kind of state charter school called “commission charter schools.”
With today’s 4-to-3 decision, the high court has reversed a Fulton County court decision and ruled in favor of local school boards, finding that the state-established schools authorized by the 2008 Georgia Charter Schools Commission Act do not fit the definition of “special schools” as envisioned in the state Constitution.Under the current Constitution, which voters approved in 1983, local school boards have exclusive authority to create and maintain K-12 public education, Chief Justice Carol Hunstein writes for the majority. The Constitution only allows the state government to create “special schools.” Yet in the 2008 Act, the State authorized the “Georgia Charter Schools Commission,” whose members are appointed by state officials, to approve petitions for a new type of general K-12 public school known as a “commission charter school.”

“Because our constitution embodies the fundamental principle of exclusive local control of general primary and secondary (“K-12”) public education, and the Act clearly and palpably violates Art. VIII, Sec. V, Par. VII (a) by authorizing a State commission to establish competing State-created general K-12 schools under the guise of being ‘special schools,’ we reverse,” the 24-page majority opinion states.

Charter schools are a relatively recent phenomenon, according to briefs filed in the case. The first opened in 1992 in St. Paul, MN. Georgia’s first, Addison Elementary School, opened three years later in Cobb County. In general, charter schools receive public funds but are not subject to all the rules and regulations that apply to other public schools. Rather, they are held accountable for producing academic results, which are laid out in a performance-based contract, or “charter.” Georgia law in 1993 authorized existing locally-controlled public schools to convert to charter schools and permitted the creation of “start-up charter schools.” Both are now referred to as “local charter schools.” In 1998, the Georgia legislature amended the statute to authorize the creation of state charter schools that are approved by the Georgia Board of Education. In 2008, the legislature passed the Georgia Charter Schools Commission Act, creating the “Georgia Charter Schools Commission” and “commission charter schools.” (A footnote in today’s opinion states that “state chartered special schools” established by earlier legislation are not at issue in this appeal, and “we intimate no opinion as to their status under the 1983 Constitution.”)

In this high-profile case, seven local school districts – Gwinnett, Bulloch, Candler, DeKalb, Atlanta, Griffin-Spalding and Henry – sued former state Superintendent Kathy Cox, the Department of Education, the Charter Schools Commission and three charter schools approved by the Commission. The school districts challenged the 2008 Act claiming, among other things, that the Georgia Legislature lacks constitutional authority to create the “commission charter schools” because they are not “special schools.”

In May 2010, the trial court ruled in favor of the charter schools on the constitutional claims and dismissed other claims. The judge found that the Act is constitutional and that commission charter schools are “special schools.”

Today’s opinion reverses that decision. The Georgia Constitution states that, “[a]uthority is granted to county and area boards of education to establish and maintain public schools within their limits.” This language, the majority opinion states, “continues the line of constitutional authority, unbroken since it was originally memorialized in the 1877 Constitution of Georgia, granting local boards of education the exclusive right to establish and maintain, i.e., the exclusive control over, general K-12 public education.”

“No other constitutional provision authorizes any other governmental entity to compete with or duplicate the efforts of local boards of education in establishing and maintaining general K-12 schools,” the opinion states. “By providing for local boards of education to have exclusive control over general K-12 schools, our constitutions, past and present, have limited governmental authority over the public education of Georgia’s children to that level of government closest and most responsive to the taxpayers and parents of the children being educated.”

The current Constitution also states, however, that “[t]he General Assembly may provide by law for the creation of special schools in such areas as may require them…” At issue in this case is whether “commission charter schools” qualify as “special schools.” Today’s majority opinion says they do not.

“As the language in the Act and the record in this case reflect, the commission charter schools established by the Commission pursuant to the Act are created to deliver K-12 public education to any student within Georgia’s general K-12 public education system,” the majority opinion says. “Commission charter schools thus necessarily operate in competition with or duplicate the efforts of locally controlled general K-12 schools by enrolling the same types of K-12 students who attend locally controlled schools and by teaching them the same subjects that may be taught at locally controlled schools.”

Conditions existing at the time of the adoption of the 1983 Constitution “reflected that ‘special schools’ were those that enrolled only students with certain special needs, e.g., adults, deaf or blind children and those that taught only certain special subjects, e.g., vocational trade schools with jobs-oriented curricula.” The consensus among the drafters of that Constitution was that special schools “were indeed those schools that enrolled only students with certain special needs or taught only certain special subjects,” the majority opinion says. The late House Speaker Thomas B. Murphy, who was a member of the Select Committee on Constitutional Revision, said in reference to the special schools provision: “The reason for this paragraph in the Constitution is it allows the General Assembly to establish schools for the blind, deaf, or people of that nature.”

To interpret “special schools” under the Constitution “as including those schools that are indistinguishable in every constitutionally significant manner from general K-12 schools established and maintained by local boards of education would render the ‘special’ in ‘special schools’ meaningless,” the majority states.

Today’s opinion concludes that, “[t]he record establishes uncontrovertedly that the Georgia Charter Schools Commission Act and the schools established thereunder represent the efforts of well-intentioned people, motivated by their genuine concern over the current condition of this State’s general K-12 public education, to provide the children of this State with an alternative and, in some cases, a superior educational opportunity. In holding the Act unconstitutional under the unique provisions of this State’s Constitution, we do not in any manner denigrate the goals and aspirations that these efforts reflect. The goals are laudable. The method used to attain those goals, however, is clearly and palpably unconstitutional.” Joining the majority are Justices Robert Benham, Hugh Thompson and P. Harris Hines.

In a dissent, Justice David Nahmias writes that “[c]ontrary to the majority’s untenable opinion, the 1983 Georgia Constitution does not prohibit the creation of the Charter Schools Commission or commission charter schools.”

Calling the majority’s reasoning “illogical” and its conclusion “overbroad,” the dissent says that today’s ruling effectively abolishes not only commission charter schools as unconstitutional but also the “state chartered special schools”  created by the Charter Schools Act of 1998 and “any other ‘special school’ the General Assembly might dare to create.”

“Today four judges have wiped away a small but important effort to improve public education in Georgia – an effort that reflects not only the education policy of this State’s elected representatives but also the national education policy of the Obama Administration,” says the 75-page dissent. “That result is unnecessary, and it is unfortunate for Georgia’s children, particularly those already enrolled and thriving in state charter schools.  It is equally unfortunate for this Court’s reputation as an institution that fairly and accurately interprets the law and exercises the judiciary’s most awesome power – the power to nullify laws enacted through the democratic process – only when that result is clearly and palpably dictated by our Constitution.”

References to “special schools” first appeared in Georgia law nearly a century ago. “What is notable about all of these references – by the General Assembly, the Justices of this Court, and the Judges of the Court of Appeals – is that they all equate ‘special schools’ to schools or school systems established separate from the statewide, county-based common school systems,” the dissent says.  “Not once is there a suggestion that a ‘special school’ is defined by its students or curriculum.”

“The ordinary meaning of the constitutional text, its context and history, prior usage, and basic language and logic all support the conclusion that ‘special schools,’ as that phrase is used in the 1983 Constitution, are simply individual public schools that are created by the General Assembly separate from the general county and area school systems,” the dissent says. “Special schools certainly may include schools for students with special needs, like the existing area schools for blind and deaf children, and schools that teach special subjects, like vocational trade schools. But the Legislature’s authority is not limited to creating those two types of special schools.”

The majority’s “assertion that ‘local boards of education’ were given exclusive authority over public schools under our constitutions beginning in 1877 is simply inaccurate,” the dissent says. The 1877 Constitution contains no mention of local school boards, which are not mentioned until the 1945 Constitution. Furthermore: “The General Assembly has created schools and school systems independent of the common county systems since the early years of this State, and the 1983 Constitution restored its power to create such special schools (but not school systems) without any local system approval or participation.” Local school boards have never had exclusive control over general K-12 public education, “because that control has always been shared with and regulated by the General Assembly and, since 1870, by the State Board of Education and State School Superintendent as well,” the dissent says. “The majority may be able to change our law, but it cannot change our history.”

The majority’s concern that commission charter schools duplicate the efforts of local school boards in creating general K-12 schools is also misplaced, the dissent says, given that less than 1 percent of the state’s nearly 2,300 public schools are commission charter schools, state charter schools established by the 1998 act, or area schools for the deaf and blind.

The dissent says “[t]he majority is cagey about exactly what it is holding.” The majority argues that commission charter schools cannot be considered “special schools” because they do not differ in their student bodies or curricula from general public schools. Yet, “there are very few public schools that enroll a student body consisting only of girls, like Ivy Prep,” one of the three charter commission schools being sued. “If such an obvious factor as gender does not differentiate a student body, then what factors do?” the dissent says. “The majority does not say.”

According to the majority, the baseline to which a “special school” must be compared “is not the average or ordinary local school in Georgia but any local school that exists or might ever be created in our State – that is, any school that ‘local boards of education are also authorized to create,’” the dissent says. “Indeed, in rejecting the suggestion that a state chartered school’s unique operating charter is relevant, the majority says that, like the children in Lake Wobegon, in Georgia no public school is average.” The majority’s conclusion that a special school “must enroll students categorically different from those at a locally controlled school or teach subjects wholly unlike those that may be taught in locally controlled schools,” renders the Constitution’s special school provision “a dead letter,” the dissent says.

In conclusion, the dissent says that “the policy position that the majority of this Court reads into our Constitution today contravenes the education policy established by both our State’s Republican Governor and Republican-majority General Assembly that passed the 2008 Act and our nation’s Democratic President and the Democratic-majority Congress that funded the ‘Race to the Top’ Program from which Georgia has received $400 million in funding, in part due to the State’s multiple charter school authorizers.”

Judges have no special competence in education policy, and “litigation is ill-suited to gather the sort of information and make the sort of nuanced and balanced assessments required for good social policy,” the dissent says. “Courts should strike down education-related legislation only where the Constitution ‘clearly and palpably’ prohibits the policy determination at issue. That is not the case here.”

“But the policy debate and the political process no longer matter,” says the dissent. “The majority of this Court has announced the new policy and removed the issue from the political process, unless the General Assembly and the people of our State bear the delay and enormous burden required to correct the Court’s error through a constitutional amendment.” Joining the dissent are Presiding Justice George Carley and Justice Harold Melton.

Justice Harold Melton writes a separate dissent “to emphasize the fundamental principles at play in this case.” He writes that “even under the majority’s faulty constructs and its incorrect definition of ‘special schools,’ these principles, which the majority fails to apply, require a finding that the Charter Schools Commission Act of 2008 is constitutional.”

“Two bedrock rules of statutory construction govern in this matter,” his dissent says. The first is that “we must presume that the statute is, and was intended to be, constitutional.” The second is that short of a claim that the statute improperly impinges upon a First Amendment right, such as free speech, “the statute cannot be struck down unless it is unconstitutional in all of its applications….”

As to the first principle, even a cursory review of the Act supports the presumption it is constitutional, this dissent says. For example, in provisions related to cosponsors, the Act suggests that cosponsors should be sought out to maximize “access to a wide variety of high-quality educational options for all students regardless of disability, race or socioeconomic status, including students who have struggled in a traditional public school setting.”

“Even if one applies the majority’s definition of ‘special schools’ as those that ‘enrolled only students with certain special needs or taught only certain special subjects,’ these provisions unequivocally support a conclusion that the Act was not “unconstitutional,” the dissent says.

As to the second principle, “it is untenable to argue that the Act is unconstitutional in all of its applications or lacks a plainly legitimate sweep.” The existence of Ivy Preparatory Academy, an all-girls charter school and one of three sued by the local boards, “proves that the Act meets the majority’s constitutional test, as it has been properly applied to create a special school.”

The Georgia Legislature “created a law to provide for special charter schools to enhance our educational system, and it included evidence on the face of the statute supporting such a constitutional intent,” the dissent says. “Nevertheless, the majority looks beyond this basic principle to reach a result that simply cannot be explained in the context of the applicable law and the undisputed facts.”

Attorneys for Appellants (school districts): Michael J. Bowers, T. Joshua Archer, Joshua Moore, Thomas Cox, Gerald Edenfield, Susan Cox, Charles Aaron, Timothy Shepherd, A.J. Welch, Jr.

Attorneys for Appellees (charter schools): Bruce Brown, Jeremy Berry, E. Claire Carothers, Thurbert Baker, former Attorney General, Dennis Dunn, Dep. A.G., Stefan Ritter

–From Maureen Downey, for the AJC Get Schooled blog