State Supreme Court decision was not fatal to charter schools

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

33 comments Add your comment

Dr. Craig Spinks/ Augusta

July 25th, 2011
5:07 am

So let’s amend our state constitution to allow for the election of our state BOE then let such an elected state-level body grant charters, Mr. Cox.

Dunwoody Mom

July 25th, 2011
6:57 am

No one wanted to stop the growth of charter schools, though we have to stop pretending that they are the “answer” to the ills of public education. Those of us felt that these schools should not be taking dollars from the local school district.

But, he’s right, charters are not going anywhere. Despite the fact that over half of the schools that were labeled “failing” in the state of “Florida were charter schools. the Dept. of Education gave a $49 million grant to Florida to “create new high-quality charter schools”. This on top of the fact that no public schools in Florida will be receiving state money for school construction and maintenance.

Sheer madness.

Charter schools are PUBLIC SCHOOLS

July 25th, 2011
7:57 am

Before all the folks that love to post erroneous info on charters begin, here’s the Georgia Department of Education FAQ on Charters. Check it out first if you want to know more about charter schools:
http://www.doe.k12.ga.us/pea_charter.aspx?PageReq=PEACSGENFAQ

By the way Dunwoody Mom, I don’t think charters are “the answer”, but I do think they are “an answer”. They certainly extend the reach of public school to more families that would otherwise choose home-schooling or private school.

Hey Erroll, How does Sharon Pitts remain YOUR Chief of Staff?

July 25th, 2011
8:13 am

Deerwood Academy? Was it a charter school or some kind of suped-up public school or just a cheatin’ machine?

By the way, I think that Erroll the Bureaucrat is nervous. He needs Sharon Pitts to lead him around by the hand. Or, is this what Sam Williams wants?

Charter schools are NOT “the” or “an” answer; charter schools just drain resources and brains from the regular public schools. They, be definition, don’t operate by the same rules and then they brag if they have any success at all.

Hypocrite Hunter

July 25th, 2011
9:15 am

Good grief…an unbiased analysis by the attorney for the bureacracy? Why not just let Beverly Hall fill out the forms for us.

The fact is that CREDO wasn’t working (for the most part) from the worst performing school systems in the nation (uhhh…that would be us) or facing a tilted battle in which school systems and their infrastructure make up sometimes five times the size of local government with little functional elected oversight. The reason the charter laws were enacted orignally was to try and correct for pompous educrats that have tried to destroy competition and innovation. Will some of the projects fail? Probably. Will doing the same thing over and over while our children enjoy a 40% graduation failure rate at ever increasing costs show any improvement? Probably not.l

FBT

July 25th, 2011
9:15 am

The bias of the opinion of Mr. Cox is evident. He knows who butters his bread and is attempting to protect the institutions. He can spin all he wants, but parents are waking up and demanding high quality choices for their children.

catlady

July 25th, 2011
9:21 am

I think one thing charters can do is provide a lab school for new ideas of “what works.” in my system, parents are trying to get a charter to continue to provide a small school atmosphere. The cool thing about their proposal is it could be such a lab school–the demographics of the area is just the same as the other schools, the only difference being that the parents of the area to be served by the charter are much more involved, much more invested, in their children’s education. What a great opportunity! Of course, there is no way in h3ll that the local system will ever approve the charter; will, in fact work against the efforts of the charter group. Yet we could learn so much from this opportunity.

A Conservative Voice

July 25th, 2011
9:33 am

After listening to former Governor Jeb Bush on FNC, I am of the opinion we (state of georgia) should hire him as a consultant to straighten out the worst school systems in the country. I know, I know, there are some really good public schools in our state; however, there are also those systems where most everyone should be fired and new people brought in……several in the metro area come to mind.

ChristieS.

July 25th, 2011
9:40 am

I don’t understand the reasoning behind charter schools, actually. If there are truly populations of students not being served in their public schools, why cannot the local boards of education create magnet or even micro-magnet programs within their districts?

I’m originally from Broward County, Florida. I went through k12 in the 70s and early 80s in what was then the 7th largest school district in the nation. In order to create the best opportunities for our students, the county school board created magnet programs for tech, science, math, medicine, engineering, performing arts, and a host of others.

Not all programs had a stand-alone school. Many were micro-magnet programs that operated within the regular schools. What the BOE did was work to ensure that teachers hired at that school were suitable to teach the magnet population, whether they worked directly in the program or not. This enabled the non-magnet students to benefit from the same type of teaching the magnet students were receiving. They also deliberately placed many of their STEM (before STEM was even cool) programs in historically underperforming and/or poor districts in order to deliberately integrate these schools and raise the quality of education for the local population.

You know what? It worked. The medicine and engineering program was placed at a school deep in the heart of our lowest SES neighborhood. Within four years, that school was completely turned around academically for the entire student body. Their overall graduation rate of non-magnet students began to rise quickly. It also had a great benefit for the local neighborhood. The residents became PROUD of their school and began to take greater interest in school functions beyond the football and basketball teams. There were very similar results in the other micro-magnet programs spread across the county.

I don’t understand why, if indeed the true argument is about the quality of students’ educations, our local boards of education can’t do something similar. Micro-magnets would be cheaper all around than paying for stand-alone magnets or charters.

Dunwoody Mom

July 25th, 2011
10:21 am

@A Conservative Voice…you are aware that the schools in Florida are as much of a mess, if not more, than those here in Georgia?

B. Killebrew

July 25th, 2011
10:27 am

Hear, hear, Christie S.

catlady

July 25th, 2011
10:36 am

Local boards CAN do something; they choose the status quo.

New Leadership at APS

July 25th, 2011
11:22 am

Mr. Davis is Sharron Pitts your Chief of Staff or Dr. Hall Chief of Staff ?

ChristieS.

July 25th, 2011
11:30 am

@catlady – I agree. That’s my point. If the local BoE wants to keep their students in traditional public school, they must change the way they look at “traditional” education.

BlondeHoney

July 25th, 2011
11:31 am

I agree completely with ChristieS. I’m from SoFla as well and both my boys attended magnets, a science micro magnet in middle school & their high school was Miami Coral Reef, the county’s only all-magnet school. They received an exceptional education & Coral Reef is an A school, consistently making the top 50 of Newsweek’s list of top performing high schools. Why Georgia doesn’t look more at magnet programs is a mystery to me.

catlady

July 25th, 2011
11:56 am

BlondeHoney: All the money that Georgia COULD be spending on schools goes elsewhere, like a park dedicated to fishing, huge tax breaks for aviation companies and car manufacturing, and other “more important” efforts. Public schools are far down the line, and moving farther fast.

Dr NO

July 25th, 2011
12:00 pm

FBT

July 25th, 2011
1:09 pm

catlady: Georgia already spends almost 50% of its tax dollars on education. How much should be spent? It’s not about more money, it’s about value.

Doris M

July 25th, 2011
1:59 pm

Why not make all public schools charter schools? Then parents can select which school has the program best suited for their child(ren).

Inman Park Boy

July 25th, 2011
2:42 pm

Inasmuch as he is a paid advoicate for the public school status quo, not sure he was the correct person to write this. Borders on unethical unless you give the other side equal time.

A Conservative Voice

July 25th, 2011
4:13 pm

@Dunwoody Mom

July 25th, 2011
10:21 am
@A Conservative Voice…you are aware that the schools in Florida are as much of a mess, if not more, than those here in Georgia?

Obviously, “Dunwoody Mom”, you don’t watch FNC…..tsk, tsk,…….wake up before it’s too late :)

thomas

July 25th, 2011
4:23 pm

Doris M’s comment made me wonder – do charter schools have to provide transportation to their students? Can we start charging parents some fees for transportation? I bet a huge amount of school budget is spent on transportation.

d

July 25th, 2011
4:52 pm

Education in Georgia (as told by the General Assembly):
*Put countless regulations in place to bind the public schools and make them look bad.
*Offer charters as a way around the regulations that we put on the public schools so it looks like we’re actually doing something.
*Call traditional public schools a failure.

d

July 25th, 2011
4:53 pm

Oh, I forgot one,
*Fail to fully fund traditional public schools according to QBE because they’ll just fail anyway.

Struggling Teacher

July 25th, 2011
5:11 pm

Charter schools are the wrong solution. Until the mainstream public schools can set their own rules like the charter schools are allowed to do, then they should not be allowed to funnel public school money into their special interest group coffers.

Larry Major

July 25th, 2011
5:42 pm

The way it stands now, the state can approve any charter school they want and these schools will get full state QBE funding.

When it comes to local funding, there are only two possibilities – either local taxpayers want to fund it or they don’t. State approved schools need only to request a local referendum to find out.

If local voters approve funding, the school gets the same local funding as all their system schools rendering the BOE’s denial meaningless. It’s a perfect check on local elected officials because local voters can functionally override the BOE’s denial without waiting for board members to run for re-election.

If local voters deny local funding, it means the majority agrees with their BOE’s denial.

What, exactly, is the problem?

ChristieS.

July 25th, 2011
5:58 pm

Well, Larry, one problem is the cost of holding a ballot referendum election if it’s not a regular election cycle. This isn’t a problem if the referendum is held during normal election activities.

I’m just wondering why the local boards would not want micro-magnets in their systems. Is it costs? What? It would seem to me to be a better idea to have magnets located in current schools, as long as those magnets are also open to the general school population. Any infrastructure resources and facility improvements need to be for the use of both magnet and non-magnet students.

Why pay the outside management costs associated with charters when a magnet can do the same thing?

Active in Cherokee

July 25th, 2011
10:20 pm

It think many of you breezed over some of his important points:
1) The Supreme Court ruling did not make Charter Schools illegal – even the ones approved by the commission were granted state special school status.
2) The Supreme Court ruling did confirm that the spending of local funds is controlled by the local government. That was the single biggest reason the commission was overturned
3) The Supreme Court ruling did confirm the local government has the authority to operate and oversee all of the public schools within its district.

These outcomes are correct according to the consitution and the local government needed to be proctected in its rights. If the local government’s power was overturned, then that would open the floodgate for state control of police departments, sheriff departments, fire departments, ultility companies, and numerous other things controlled/funded at the local level. If the national government sees the states grabbing power, whats to stop them from finding/adding loopholes in its constitution. Needless to say, I don’t want that and I think many of you would agree.

Active in Cherokee

July 25th, 2011
10:25 pm

@Christine S. – I’ve been saying it for weeks on here and glad to see someone else post it. I believe the ‘mini-magnets’ and built in STEM programs are the way to go for so many reasons. Glad to see someone else posting for a reasonable ‘choice’ that would be the best plan in many of the successful systems in the suburbs rather than building totally new schools and/or paying a for-profit company to rent a building (in some cases they own).

B. Killebrew

July 25th, 2011
11:36 pm

I agree Sharon Pitts aka Beverly Hal's chief must go

July 28th, 2011
9:38 am

She must go to validate APS reform, take her boytoy Mueller also

BJ Van Gundy

July 31st, 2011
4:19 pm

“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). ”

While the anti-public charter school crowd loves to quote these sorts of statistics…. it is hardly honest to do so without full understanding of where these children come from.

Using these same sort of statistics: 50% of public school children in regular public schools, perform BELOW the system average as compared with 37% in charter schools.

See?

Here’s the rest of the story as well. MOST of the children in the public charter schools come from system public schools that are BELOW the system average, therefore, if the public charter that takes kids from a system public school that is BELOW the system average and then has those kids perform AT the system average, it indicates that the public charter is performing OVER what would have been indicated.

The fact is, if a public charter opened nearby me, let’s say an elementary school, I WOULDN’T be inclined to move my kids to it… because my kids attend Simpson Elementary in Gwinnett County which happens to be an excellent school. HOWEVER. What would happen would be that parents that have kids in Lawrenceville, Corley, Hopkins, Radloff, Lilburn, and several more may consider moving their kids to that school…. since ALL of these schools already perform BELOW the the system average. What would the have to lose, and statistically… based upon the charter school statistics quoted above… they have a 63% chance of the school performing above what their current school does.

It is simply simpleminded and dishonest for this attorney to try to make this case with such statistics.