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