Mike Klein Online

Georgia Supreme Court Throws Thousands of Charter Students into Limbo

The Georgia Supreme Court decision that struck down the state’s charter school commission is a long-awaited opinion that seems likely to throw thousands of students into education limbo and dismantle a growing network of existing and approved charter schools.

The Supreme Court ruled 4-3 in favor of the challenge by seven public school systems to a 2008 state law that created the Georgia Charter Schools Commission. The law gave the GCSC the authority to authorize and fund charter schools with state and local dollars.  Some schools that received state commission charters were initially turned down by local boards of education.

It is now apparent the Supreme Court has been deeply divided since oral arguments last October. Predictions of a quick ruling before year-end vanished. The Court took the highly unusual step in March to announce it would delay its ruling with no date specified. The review lasted seven months.

The majority opinion focused on a strict interpretation of “special schools” which the 1983 state Constitution defined as schools established to help students with special needs, for example, blind, deaf and vocational or adult students. The 2008 law sought to expand “special schools” to include charter schools which did not exist when the Constitution was amended 28 years ago.

Chief Justice Carol W. Hunstein wrote the 24-page majority opinion:

“Labeling a commission charter school as ‘special’ does not make it so when the students who attend locally-controlled schools are no less special than those enrolled in commission charter schools and the subjects taught at commission charter schools are no more special than the subjects that may be available at locally-controlled schools.”

The majority opinion underscored a strict, traditional view of local control over school systems:

“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 (the State Constitution) by authorizing a State commission to establish competing State-created general K-12 schools under the guise of being “special schools,” we reverse.”

The Commission would have enrolled up to 16,500 students in 17 schools this fall. After the ruling, state Schools Superintendent John Barge said his office will begin to examine “what flexibility can be offered for these schools.”

Justice David E. Nahmias wrote the 74-page primary dissent:

“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. That result is unnecessary, and it is unfortunate for Georgia’s children, particularly those already enrolled and thriving in state charter schools.”

The dissent also took strong exception to the majority opinion view of local control:

“Moreover, local boards of education – entities that are not even mentioned in the Constitution until 1945 – have never had and do not today have ‘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 Superintendent as well.”

The dissent continued, “Thus, understood in the true historical context, commission charter schools are simply the latest iteration of ‘special schools’ that have long been created by the General Assembly outside the ‘common’ local school systems in Georgia. The majority may be able to change our law, but it cannot change our history.”

Hunstein was joined in the majority by Justices Robert Benham, P. Harris Hines and Hugh Thompson. Nahmias was joined in the minority by Justices George Carley and Harold D. Melton.

Melton quoted directly from the Charter Schools Commission Act in a second dissent that noted the 2008 General Assembly sought to create “access to a wide variety of high-quality educational options for all students regardless of disability, race or socioeconomic status, including those students who have struggled in a traditional public school setting.”

Melton wrote the law specifically referred to “providing the highest level of public education to all students, including, but not limited to, low-income, low-performing, gifted and underserved student populations and to students with special needs.”

All Georgia charters are public schools. The first Georgia charter schools law passed in 1993 and was modified five years later.  Under the 1998 law, state or local boards could authorize charter schools. Most charters are brick-and-mortar schools; some are online learning models.  Georgia has more than 60,000 students in charter schools.

The 2008 law was the first update in ten years and it caused a ruckus.  The new legislation enabled petitioners who were turned down by local school boards to appeal to a new state commission. Local school districts lose funds that follow students to state charter schools.  This change coincided with the rapid expansion of online learning companies whose products compete with local school districts.

The majority opinion said very little about redirection of state and local education dollars, even though that has been hotly debated and was widely considered to be the real reason for the lawsuit filed by Gwinnett, Atlanta, DeKalb and four other school districts.  The majority’s 24-page ruling focused almost entirely on historical and current definitions of special schools.

Writing the dissent, Nahmias said, “Because the majority evidently can find no traction in the local systems’ attack on the funding scheme … as the ground for striking down the statute, the majority must rely on the ‘special schools’ argument, which has the consequence of nullifying any state charter schools established under the 1998 Act.”

Ironically, Georgia public education innovation in the charter schools sector was one reason the state received a $400 million Race to the Top grant from President Barack Obama’s administration.  Now the state Supreme Court decision means charter commission schools will lose tens of millions of dollars.  They will be forced to find a new lifeline or perhaps cease to exist.

(Mike Klein is Editor at the Georgia Public Policy Foundation)

May 16, 2011 - Posted by mikekleinonline | Uncategorized | Chief Justice Carol Hunstein, Georgia Charter Schools Commission, Georgia Public Policy Foundation, Georgia Supreme Court, Justice David Nahmias, Justice Harold Melton, Mike Klein