Charter-school students get a lesson in judicial activism

The last lesson that thousands of Georgia students might receive from their charter schools was a guest lecture from the state’s Supreme Court. The subject was civics — specifically, what judicial activism looks like.

With one word, four justices rewrote not just the language of the Georgia Constitution but our history of public education. That word, which does not appear in the section of the Constitution dealing with k-12 education but features repeatedly in the majority’s May 16 opinion, is “exclusive.”

The Constitution, the court ruled, grants “local boards of education the exclusive right to establish and maintain, i.e., the exclusive control over, general K-12 public education.”

On the weight of that word, the majority hung a dubious definition of “special schools” that led it to declare the 2008 Charter Schools Commission Act unconstitutional. Now, 16 schools granted charters by the state commission, rather than by local boards of education, may have to close their doors.

All because of a notion of exclusivity that the court didn’t interpret in the Constitution so much as interpolate into it.

The justices added “exclusive” to Article 8, Section 5, Paragraph 1 of the Constitution, which reads: “Authority is granted to county and area boards of education to establish and maintain public schools within their limits.”

Not “The authority.” Not “All authority.” Not “is granted solely.” Not “is granted entirely.” Not “the public schools.” Not “all public schools.”

Any plain reading of “Authority is granted” leaves the distinct, maybe inescapable, possibility the Constitution leaves some authority with the state.

As Attorney General Sam Olens’ motion to reconsider the decision notes, in practice the state spends billions on public education and helps set education policy through the constitutionally mandated State Board of Education — which oversaw the ill-fated Charter Schools Commission.

Not so “exclusive,” huh?

As Olens’ motion notes dryly, the General Assembly when the Constitution was drafted “did know how to use the word ‘exclusive’ and did so elsewhere in Article 8, despite declining its use relative to local school systems.” For example, Article 8 says “The board of regents shall have the exclusive authority to create new public colleges.”

The majority’s notion of exclusivity relies on its account of Georgia’s constitutional and education history. But Justice David Nahmias, in a lengthy dissent, says that account ignores many facts — such as the state’s oversight of schools for black students decades after, according the majority, local “exclusive” control was established.

(In a recent op-ed in the AJC, Douglas Blackmon pointed out the irony — I’d say absurdity — that the majority relied on constitutional language establishing segregated schools to strike down a law with the broad aim of improving education for today’s racial minorities.)

With this faulty reading of the Constitution, the majority determined “special schools” — which the document explicitly allows the state to create — cannot include schools that teach the same subjects to the same kinds of students that locally run public schools teach. This, even if it teaches these subjects differently, and to students considered special for reasons other than the traditional ones of being blind or deaf.

Where does all this leave us? With the slender hope that one of the four justices in the majority will be swayed by the motion to reconsider — or the daunting task of amending the Constitution to make explicit what really wasn’t implicitly challenged in the first place.

That is, it leaves us with few avenues to restore what the Constitution plainly said, until four justices decided it didn’t.

And that, charter-school kids, is judicial activism.

– By Kyle Wingfield

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44 comments Add your comment


June 1st, 2011
6:42 pm

It would have been easier to say judicial activism is when the justices give ruling YOU don’t agree with.


June 1st, 2011
6:54 pm

meant to type “rulings”, but got so excited about being FIRST!

As for the charter schools, why can’t they just apply to the local school board, the one that the constitution gives the authority to, for a renewal of their charter. Have any of them tried yet in light of this ruling? If not, why not? Has any school board pre-emptively declared they would not recharter any of the affected schools? These are questions a journalist might ask, and answer for his readers.

As for stretches, interpreting “authority” to mean “sole authority” takes far less hyperflexibility than the contortionist opinion that money is speech and corporations are people. Now THAT is some grade A judicial activism.

Also related to Georgia’s schools and far more alarming than this court ruling is that 50 million tax dollars are being siphoned off to private schools without any oversight.


June 1st, 2011
7:17 pm

Show me where in the constitution the state government is given the power, outside of the one special case where all the authors of the current constitution acknowledge that one case, to create schools?

Michael H. Smith

June 1st, 2011
7:22 pm

Considering the first option, the second one may not be as daunting a task. Two years is time enough to inform the public and sway legislators. Planning time, Kyle.


June 1st, 2011
7:24 pm

Say What–”Also related to Georgia’s schools and far more alarming than this court ruling is that 50 million tax dollars are being siphoned off to private schools without any oversight.” Now this is newsworthy.


June 1st, 2011
7:28 pm

Isn’t it strange Republicans, including Georgia Republicans, are suing the Federal government over the healthcare law saying the US Constitution spells out the authority the US Government is granted but now when it comes to the GA Constitution, Republicans believe the state is granted authority not specifically spelled out. As saywhat? pointed out “judicial activism” is used by Republicans when they are on the losing end of a court ruling.

fair and imbalanced

June 1st, 2011
7:36 pm

Its sound jurisprudence when you agree with the decision and activism when you dont. Now banning abortion would not be activism, right?

Kyle, take another oath and forget even the slightest chance of an original idea.


June 1st, 2011
7:40 pm

The Court made the constitutionally correct decision. John is “right on” in his assessment.


June 1st, 2011
8:32 pm

It seems to me that authority means all , of course you want to read a limit into authority if the writers of the Georgia constitution had intended that they would have put a limit which they didn’t.

Johnny Angel

June 1st, 2011
9:12 pm

Poor Kyle. The justices need to offer remedial reading classes.

Kyle Wingfield

June 1st, 2011
10:08 pm

You can read the relevant paragraph of the Georgia Constitution here:

But in case you don’t want to click, it states: “Paragraph I. General powers. The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”

So, it does come down to whether one agrees with the court that the locals’ authority is exclusive. If you do, does that mean the state can stop funding local school systems?

Kyle Wingfield

June 1st, 2011
10:09 pm

jd, John and oldguy: As the AG’s motion to reconsider puts it, “unlike the federal government, which has only those powers affirmatively granted to it by the U.S. Constitution, the State government may exercise any power except those withheld by the U.S. and Georgia Constitutions. Ga. Const. Art. III, Sec. VI, Para. I.”

In any case, the Georgia Constitution does expressly give the state power to create “special schools.” It was that affirmative power which the Charter Schools Commission Act cited.

Kyle Wingfield

June 1st, 2011
10:13 pm

Those comments should be flip-flopped in order…fwiw, I’m told our IT folks are still working to fix this comment time-posting problem.


June 1st, 2011
10:33 pm

Kyle, again overreaching. You are not a lawyer, much less a legal scholar. And Sam Olens is not much of a lawyer. But you are both using the same partisan talking points. Who is the activist here?


June 1st, 2011
11:27 pm

Can’t win em’ all.


June 1st, 2011
11:38 pm

Kyle, when it comes down to it, you really have to look at the 1983 definition of “special schools.” That’s when the Constitution was put into effect by the voters, and I think that’s what the justices were looking at when they ruled on special schools. That being said, I think my main objection to the Charter School commission was the fact that an appointed board could overrule my elected officials. I don’t want this board coming in and having authority over my tax dollars and I can’t do something if they behave irresponsibly. I’ve said many times on Maureen Downey’s blog that I supported the creation of Ivy Prep (I live in Gwinnett), but supported the county in the lawsuit. I, as a voter, have every right to vote against a candidate based on his or her actions as I did against Dr. McClure because of his opposition to Ivy Prep.


June 2nd, 2011
12:17 am

Kyle, as you pointed out…“Paragraph I. General powers. The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.” You also included in your blog “Article 8, Section 5, Paragraph 1 of the Constitution, which reads: “Authority is granted to county and area boards of education to establish and maintain public schools within their limits.” If authority is granted to county and area boards of education, then wouldn’t the state establishing and maintaining public schools be inconsistent with Article 8, Section 5, Paragraph 1?


June 2nd, 2011
12:37 am

Kyle, to use your point about the word “exclusive”, can that be applied to all sections of the GA Constitution? For instance Paragraph II states “The General Assembly shall apportion the Senate and House districts. Such districts shall be composed of contiguous territory. The apportionment of the Senate and of the House of Representatives shall be changed by the General Assembly as necessary after each United States decennial census.” Since the word exclusive is not in this paragraph, does that mean cities could decide they want to to apportion the Senate and House districts and it would be Constitutional?


June 2nd, 2011
12:46 am

@Kyle…”So, it does come down to whether one agrees with the court that the locals’ authority is exclusive. If you do, does that mean the state can stop funding local school systems?’

No Kyle…ARTICLE VIII, SECTION I, Paragraph I states “Public education; free public education prior to college or postsecondary level; support by taxation. The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation. The expense of other public education shall be provided for in such manner and in such amount as may be provided by law.”

Larry Major

June 2nd, 2011
3:28 am

The exclusive part is two sentences past where you stopped quoting Paragraph I: “No independent school system shall hereafter be established.

The operative word in the Supreme Courts statement is “general” – the exclusive control over general K-12 public education. Since authority is granted to county and area boards AND specifically withheld from all other entities, the authority to operate general K-12 public education is, in fact, exclusive. The justices didn’t read anything into our constitution; they read the entire paragraph.

This leaves the state’s constitutional authority to create “special” schools, which is not an area into which the court wandered, but was specifically raised by Ivy Prep’s attorneys on page 20 of their Motion for Summary Judgment filed on January 14, 2010.

All charter schools, including the now defunct Commission Schools, are public schools which are legally required to serve the same public school students as county and existing independent school systems. Although some schools concentrate in specific areas, the fact remains that charter schools are clearly part of general K12 education.

To expand the legal definition of “special” school to include any school that employs different methods to teach the same public school students results in a logical absurdity since “special” could be applied to any given school. This would destroy the distinction between “special” and “general” rendering sections of the constitution moot. The Supreme Court isn’t allowed to render such decisions.

The original complaint clearly states this legal action would have ended if the Commission agreed to stop over-funding their schools and use the same state funding formula for all public schools. I want a Commission supporter to tell my why you wouldn’t agree to this.

Greta Sustenance

June 2nd, 2011
6:34 am

Kyle, why do we in Georgia have so much trouble interpreting and maintaining our state constitution? And why are there so many constitution “amendments” on the ballot?

A Constitution should be a broad statement of principle and a framework for governance, not a detailed management plan. Do we need to replace the present faulty document with something more suitable?

Interested observer

June 2nd, 2011
7:56 am

Your constitutional argument may have some merit, but does allowing the state to create a school and then ordering the local taxpayers to fund it strike you as conservative government? Whatever happened to the idea of local control?

In you zeal for charter schools, you overlook your alleged commitment to smaller and less intrusive state government. Charter schools are another educational fad that will do little good for overall education in Georgia. What they will do is force local school boards to raise more money, after which you will criticize them for excessive spending.

Question Man

June 2nd, 2011
8:25 am

KW: Why does your definition of “judicial activism” seem turn on whether you agree with a court ruling or a law? And when did you become an expert on the constitutionality of this (or any) law? Isn’t it one thing to agree or disagree with a ruling, and yet another to attack the motives or intellect of the judges?

Johnny Angel

June 2nd, 2011
8:37 am

Do not fret, Kyle. You will still be free to send your children to Ivy Prep — you might be required to pay for some of it out of your own pocket instead of demanding that taxpayers pay for it against their wills though. At least that is what I take away from the following article:


June 2nd, 2011
8:46 am

This law was inconsistent with the State Constitution. And, by the way, judicial activism is in the eye of the beholder.


June 2nd, 2011
9:07 am

Nice article Kyle. And yes judicial activism in its purest form.

A solid reminder of the New Haven firemen’s case where the Court rewrote a law passed by Congress. Another case of judicial activism in its purest form.

And of course the all time judicial activism champ, Bush v Gore.


June 2nd, 2011
9:11 am

Kyle, Interesting article. While I don’t have a child in a Charter school. I do find the heated debate from both sides interesting. The BOE’s has the power (and funding) to create public/government schools and The Charter School Commission was attempting to offer an alternative to the one size fits all general school. One has to simply look that the overall abysmal record of Georgia public school testing scores to determine that there needs to be some type of change. Georgia ranks at, or near the bottom of scoring every year. Granted, there are some Atlanta area schools that do better than average in testing. However, those are the exception, not the rule. This lawsuit has the appearance that it is to maintain the current status and funding of the current programs. So, in lay terms it comes down to money and politics. Wow, that’s a shocker.

The State will make some type of legislative move to “save” this option, the politics pundits are already at work.

Buzz G

June 2nd, 2011
9:30 am

I don’t know which is the bigger mess. The education system in Georgia, or the justice system.

It is time for the Tea Party to rise again.


June 2nd, 2011
11:17 am

The Constitution makes clear (and the Court ignored) that primary responsibility for public education resides with the state. The establishment of the Commission, and the funding mechanism that used exclusively state tax revenues (a point NOT contested in the ruling, ironically), were the direct result of these local boards using their exclusive authority to deny 100% of the charter petitions brought before them in 2007. All 26. It is statistically improbable that all 26 were unworthy. Ivy Prep was one of those 26, and their CRCT scores – operating as a state-approved and funded public school – were among the best in the state…DESPITE the fact that their enrollment is predominately from an at-risk population.

Charters are meant to be experiments that can demonstrate new strategies that can work for everyone everywhere. The state has a constitutional responsibility to secure such opportunities for all students. The Commission was intended to incent the local boards of education to improve. Instead, over money (and clearly not over achievement), they sued.

In a complete sham of a ruling, they think they won.

The children of Georgia lost, but in the long run (when, for instance, the state starts to cede the responsibility for funding public education to the locals by reducing the state contribuition) so will the locals boards and taxpayers suffer. The Attorney General, who is directly elected by all Georgia taxpayers, is correct to object.


June 2nd, 2011
11:18 am

And so is Kyle!

Gator Joe

June 2nd, 2011
11:31 am

If you wish to see what real judicial activism looks like, just look at the behavior of the Right Wing appointees to the US Supreme court. As for charter schools, it is just another step in the plan to destroy, and do away with, the public school system. Instead of shoring up and improving the public system, you and others on the Right would prefer charter schools and vouchers (the Right loves that word) for religious private schools. Every child in America has a right to a quality education, at least K-12.

that's goofy

June 2nd, 2011
11:37 am

Perhaps your should title this column: A lesson in Legislative Inactivism “judicial activism”

Want to put the blame somewhere? Take a look at Chip Rogers and others in the GOP that claim to support charter schools. They knew in 2008 that the commission would be challenged and could lose. Instead of using 3 years to amend the Constitution they worried about Sunday beer sales and the right to pack heat in a church or park.

that's goofy

June 2nd, 2011
11:40 am

I support the majority of charter schools. They are public schools and must do all that public schools do – but it can be creative. Most importantly: teachers, parents and students are accountable of making gains in learning. Do not, will not support vouchers to private schools.

While I do not like the ruling by the SC – I think it is correct. “Authority is granted to county and area boards of education to establish and maintain public schools within their limits.” Not some of the authority. Not occasional authority. Not authority except when… It grants authority.


June 2nd, 2011
12:19 pm

I would love to see all public school funding come from the state, collected from income tax and corporate taxes. Property taxes should be used for county/city gov’t only. Fund every student equally. The locals can still spend the money on their overpaid admins if they want, but the teachers are the workers, the management are just support.

Former Reagan Republican

June 2nd, 2011
12:29 pm

The GOP preaches local control and decentralization of government ,but they don’t deliver. That’s why I’m now a Libertarian. I have no problen with charter schools,but when the local BOE turns it down the state has NO right to over rule them.


June 2nd, 2011
12:35 pm

…. and ya wonder why so many more people are making the choice to home school their children (and still pay property tax to support the local public/government school).
@Jefferson, the people of South GA would love that idea, as they don’t have the tax base to spend as much as North Fulton.

do-dah do-dah

June 2nd, 2011
6:55 pm

When you don’t like the rules try and skirt the rules to get your way. Then when the courts call you on it you can complain about activist judges. If you really want to see activist judges look at the 4 Republican stooges on the supreme court. What a complete joke they have become. Every ruling depends on Kennedy.


June 2nd, 2011
11:52 pm

@goofy, do-dah et al: aptly named. If you really believe all authority properly resides with local boards, we would still have different schools for blacks and whites in Georgia. Read your history. Read this excellent op-ed in the AJC: The state had to intervene. The situation is not so very different now. Local boards are failing our children, and the parents are demanding options. It is not outrageous to say that providing an excellent public education is the civil rights issue of today.

that's goofy

June 3rd, 2011
12:42 am

@ Charter Starter: really? You want to compare segregation to denying charter schools? Perhaps you need to read history. Maybe start with Brown v Board of Education Topeka. US law trumps state law. Every public school graduate knows that.

I read the op-ed by Mr. Blackmon. It focused on the racists intent of 1877 GA Constitution. The US Constitution if full of similar phrasing and ideas – skipped over during the reading of the Constitution in the US House. I hope the State Supreme Court thinks differently than those that drafted the original document.

Chip and the GOP could’ve amended the GA Constitution… but they didn’t.

And it is outrageous to say education is the civil rights issue of today. When police set dogs onto parents supporting choice then maybe it won’t be a ridiculous comparison.


June 4th, 2011
8:23 pm

It is a shame that the Georgia Supreme court ended the GOP legislatures attempt to resegregate public schools in Georgia. The argument for Chater Schools is that they work better because of the lack of state mandates (spending controls) that ironically were hoist upon the local districts by the many of the same legislators that are decrying this decision. If that theory worked remove all state mandates and let the local districts develop a plan to educate the children in their district free of the meddling of that state. But this GOP legislature and Governor only beleive in federalism when criticizing the federal government, but local control of school districts is too much of a stretch for this bunch.

Rob Woodall wants you to keep paying for his healthcare, while you pay for your own healthcare, and help your elderly parents pay their healthcare

June 4th, 2011
9:01 pm

Wait a minute. I’ve got an idea. We need to do away with publicly funded education altogether. Who says it should be one’s right to an education. If you want to educate your kiddies maybe your employer should provide education for your family. If you work for an employer that doesn’t offer education then let’s create a pool of private educators and let them compete for your business. If you lose your job and can’t afford to keep paying for your child’s education, well then you’ll have to try to live without educating your kids for a while until you can get back to work. Hopefully a catastrophic education emergency doesn’t befall someone in your family when you don’t have a job because that might just bankrupt you. But I guess you should have done a better job of planning for educational emergencies.

I think this just might work.


June 5th, 2011
11:07 am

The Supreme Court of Georgia has done a terrible disservice to local school districts with this ruling. Previously, the State was required by the Constitution to make public education a primary responsibility. This ruling wipes that completely away. The state NOW HAS NO OBLIGATION TO PAY QBE OR OTHER STATE-RAISED TAX FUNDS TO LOCAL SCHOOL DISTRICTS. Are all the nay-sayers to Mr Wingfield’s comments here prepared to have your local taxes raised by double to make up the difference for a possible removal of state funding? That is the logical conclusion to the erroneous and over-extended ruling that local school boards have “exclusive” authority over local K-12 schools. And, to all those who listen to the oversimplified logic of “if you don’t like the decisions of your local school board members, then you should elect new ones.” You are so right. Last election, at least four anti-charter school board members were kicked out in favor of those who were more responsive to parental choice. Good luck “exclusive” local school boards in getting state funds for your “exclusive” responsibility now.

Charter Haters Have No Argument

June 5th, 2011
7:39 pm

To “goofy” and all you other charter haters:

Here is the end-all, be-all point of this argument, which proves the four justices were wrong in their majority decision. As Kyle points out in his column, a point initially made in the motions to reconsider submitted by the charter school lawyers and AG Sam Olens, the word “exclusive” NEVER APPEARS in the State Constitution in the place where the justices say it does in their opinion. They PLACED the word there.

Now, they are all smart folks, and so one should surmise they knew exactly what they were doing when they decided to inject the word “exclusive” into the passage. They knew their argument was flimsy at best, so to bolster it, they added a word — “exclusive” — before the word “authority.”

That’s it, plain and simple. The fact is, the Constitution, as written and re-approved in 1983 DOES NOT GIVE EXCLUSIVE AUTHORITY to create public schools to the local boards. Ask yourself, why IS the word “exclusive” used when talking about the power to establish public COLLEGES/UNIVERSITIES, but IS NOT used for k-12 public schools? Do you think it was coincidence, or some sort of oversight? I think NOT!

I don’t understand what’s so hard about that, Goofy, for folks like you to understand. If you weren’t so blinded by your dislike for charter schools, you would see that.

And as a Black Man, I can tell you that quality public education IS INDEED the civil rights issue of this generation! Though we still have a long way to go in terms of racial equality, particularly in our judicial system and in hiring/the workplace (specifically when it comes to the awarding of state government contracts), a quality education goes a long way toward closing that gap between non-whites and whites. And again, as an educated Black Man, I can fully attest to that.

To say that you can’t equate this fight for quality public education for all children, with the Civil Rights Movement because no one is having dogs sicked on them is pretty ridiculous. Using that logic, the Black Farmers who have been struggling to collect the compensation owed them from their lawsuit against the Dept. of Ag, is not a civil rights issue either because those farmers are not in danger of being hung from trees anymore! Sorry for the horrific visual image that congers but it points out the asinine nature of “goofy’s” comment to Charter Starter.

Also, for the 1 MILLIONTH time, NO LOCAL TAX DOLLARS WENT TO FUND COMMISSION-APPROVED SCHOOLS. Not one penny of the local tax digest anywhere in Georgia was touched.

The bottom line is, while charter schools are not the cure-all, magic bullet for transforming public education, they are a piece of the puzzle. They are, in many cases, successful. And this has nothing to do with party partisanship or politics. I have never voted for a Republican but on the issue of charter schools — which most Republicans appear to be in favor of — they are on the right side.

The proper thing to do would be to ask yourself, what is best for the children/students and their families.Once you do that, it will become even more clear that the four majority justices were wrong, “goofy” is wrong and all charter school haters are wrong. Let’s hope one of the four justices does just that and changes his/her mind.


June 5th, 2011
9:53 pm

Its amazing how Republicans take local control as an article of faith until they disagree with how that local control manifests itself at which point these same Republicans are all too quick to bring the full weight of the state down on the local institution with which they disagree. Also, the issue of state funding of public schools was instituted to level the playing field between poor counties and rich counties in order that there might be a baseline from which each county could budget teacher salaries. I’m sure there are some counties that would gladly prefer to fully fund their school budgets if they were able to keep that portion of state fees and taxes that were raised by that county. Now I wonder if there are any Republicans out there that could or would support that kind of local control!