Thomas A. Cox is an education lawyer and litigator with the Atlanta office of Carlock, Copeland & Stair, LLP. He has represented the Atlanta and DeKalb school systems in the lawsuit successfully challenging the constitutionality of the state Charter Commission Act.
Here is his take on the recent state Supreme Court decision that continues to reverberate:
By Thomas A. Cox
The state Supreme Court’s recent decision declaring the state’s Charter Commission Act unconstitutional has generated intense reaction among charter school advocates, including calls to amend the state’s constitution. Before embarking on the serious and extended process of altering the historical constitutional framework governing public education, advocates and legislators should pause to consider a few points.
First, the Supreme Court’s decision impacts only a few charter schools. According to the Department of Education, 121 charter schools operated in 2010-2011. Of those, only the eight charter schools created by the state commission (plus eight more that were scheduled to open this fall) were affected by the decision. The majority of charter schools, which have been approved by locally elected school boards, are not impacted in any way. Moreover, there is no evidence that a state commission is necessary for charter schools to flourish.
The number of charter schools in the state had been increasing rapidly even before the Charter Commission approved its first school, having risen from 35 in 2004-05, to 71 in 2007-08, to 121 in 2010-11. Based on information from the Center for Educational Reform, only 11 states have more charter schools than Georgia.
Second, the Supreme Court’s decision affirmed the constitutional principle that local school boards are responsible for the “management and control” of local public schools. The court was interpreting a constitutional provision allowing the General Assembly to create “special schools” but only “in such areas as may require them.” The court held that this provision did not authorize a state commission, acting in its sole discretion, to approve charter schools that had been rejected by local school boards. Whatever one’s opinions regarding the collective wisdom and judgment of locally elected school boards, those boards are given the responsibility under the state constitution for managing public schools and setting property tax rates to pay for them.
In passing the Charter Commission Act, the General Assembly not only created a politically appointed state commission that could override decisions by local school boards denying charter applications, but it also empowered that commission to re-direct local tax revenues to private corporations and individuals who operate those locally unapproved schools.
For the Supreme Court to have allowed this law to stand would have effectively eviscerated the concept of local control of public education.
Third, the state continues to approve and fund state-level charter schools even in the face of the Supreme Court’s decision. The DOE has announced that former commission charter schools that had not been approved by local school boards may nevertheless continue to operate this year as “state-chartered special schools” under a 1998 statute that was not directly challenged in the Supreme Court case. The governor’s office announced Thursday that eight such schools will also be receiving $10 million in additional state funding during the upcoming year.
By these actions, state leaders are figuratively thumbing their noses at the Supreme Court, whose opinion in the Charter Commission case rejects virtually every conceivable argument that could be made defending the constitutionality of these state charter schools.
Fourth, local school boards should and do play an important role in evaluating charter applications. Like many other educational “reformers” before them, some enthusiastic advocates hail charter schools as the prescription for what ails American public education. Increased competition and choice offered by charter schools, they argue, should improve educational outcomes. The empirical evidence to date, however, offers slim support for this position.
The CREDO study, conducted out of Stanford University in 2009, analyzed the performance of charter schools nationwide in comparison to public schools serving similar student populations. In measurements of student achievement, the report found that only 17 percent of charter schools out-performed the regular public schools, whereas 37 percent performed worse than the public schools. (The remaining 46 percent showed no difference in student performance from the public schools). There are exceptional charter schools, just as there are exceptional public schools, but granting a “charter”— and turning over large sums of public money — to private individuals or corporations does not ensure that the resulting school will provide positive educational outcomes. Local school boards have a responsibility to examine charter applications and approve only those that will serve the interests of the system’s students.
Working in cooperation with local school systems, charter schools can play an important role in fostering and implementing innovative approaches to improving student achievement. By holding that charter schools must be approved by locally elected school boards, and be accountable to the local taxpayers who are funding those schools, the Georgia Supreme Court did nothing to prevent the continued growth of charter schools.
Members of the General Assembly should reflect long and hard before attempting to amend the state constitution to take the decision to approve charter schools out of local hands and transfer it to unaccountable state political appointees.
–From Maureen Downey, for the AJC Get Schooled blog