SCOG strikes down charter schools commission

On Monday, the Georgia Supreme Court issued a devastating ruling to the school choice movement in the state by overturning the Charter Schools Commission Act of 2008, which created the Georgia Charter Schools Commission; an entity that created schools for some 15,000 students:

[T]he Georgia Supreme Court, in a ruling issued Monday, determined that local boards of education have the sole power to fund and open public charter schools, an opinion that could derail the education of thousands of students. The Supreme Court of Georgia ruled 4-to-3 to strike down as unconstitutional a 2008 Act that authorized creation of a new kind of state charter school called “commission charter schools.”

Georgia has 17 commission charter schools, several of which were anticipating opening their doors in August.

The charter schools could apply for status as state-chartered special schools and keep their doors open. The deadline to open schools in August under that designation has passed, but the state could rush through applications if the state Board of Education agreed to it.
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Lawyers for the seven school districts that launched the lawsuit have said the local share allocation is “illegal” because it was not approved by the voters. The case pit Gwinnett, Bulloch, Candler, DeKalb, Griffin-Spalding and Henry county schools and Atlanta Public Schools against the commission and the state school board.

The high court decided that the charter schools did not fit the definition of “special schools” as envisioned in the state Constitution and should not receive funding. The landmark case is the first to rule on the constitutionality of an alternate authorizer of charter schools that has already opened campuses that are educating students.

Under the current Constitution, which voters approved in 1983, local school boards have exclusive authority to create and maintain K-12 public education, Chief Justice Carol Hunstein writes for the majority. The Constitution only allows the state government to create “special schools.” Yet in the 2008 Act, the State authorized the “Georgia Charter Schools Commission,” whose members are appointed by state officials, to approve petitions for a new type of general K-12 public school known as a “commission charter school.”

Justice David Nahmias, a former United States Attorney, issued a strong, lengthy dissent in the case. SCOG Blog has an excellent summary of it:

Nahmias opened by attacking the majority’s reasoning as “illogical,” saying the majority effectively rendered the existing state-chartered special schools (which are non-Commission schools not contested in this case) unconstitutional, and claiming the majority turned a blind eye to the history of local control in education in Georgia. Nahmias then stated that the result was unfortunate for the children in the Commission charter schools that are already enrolled and thriving, and for the Court’s reputation as a fair and accurate interpreter of the law. Nahmias spent 27 pages of his dissent laying out the history of educational control in Georgia, beginning with the colonial period, before turning to the constitutional analysis of the issues in this case. In his legal analysis, Nahmias finds inconsistencies in the majority’s definitions (“But at least the local systems are respectful of the English language; the majority, searching for a way around this problem, is not”), finds constitutional provisions ignored by the majority, and takes issue with the majority’s historical interpretation of local control for school districts. Nahmias closes by considering the possible reasoning for the majority’s opinion, and concludes it is driven by policy considerations that are not appropriate for a court to consider.

Nahmias gets it right, in my opinion; at least his case is more sound. He also notes that there are charter schools, created by an act of the legislature, that have been in existence since 1998; and there have been no court challenges to the law that led to their creation.

Supporters of charter schools protested the ruling on Tuesday at the state capital at was supposed to be a school choice rally. Legislative leaders are pledging a constitutional amendment to rectify the issue, which could come as early as this summer as legislators will be meeting likely in mid-August to deal with redistricting. Let’s cross out fingers that they can get it pushed through.