Georgia Charter Schools Association

Why the Georgia Supreme Court Erred in Ruling the State Charter Schools Commission Unconstitutional

The Supreme Court of Georgia, by a narrow vote of 4-3 on May 16, 2011, ruled that the only alternative charter authorizing body in Georgia, the State Charter Commission, was unconstitutional. Here is the opinion expressed by the majority:

“Authority is granted to county and area boards of education to establish and maintain public schools within their limits. This language continues the line of constitutional authority, unbroken since it was originally memorialized in the 1877 Constitution of Georgia, granting local boards of education the exclusive right to establish and maintain, i.e., the exclusive control over, general K-12 public education. … Our current constitution, approved by the electorate in 1983, yet again preserves the now 134-year-old status quo in regard to exclusive local control over general K-12 public education.”

The Georgia Charter Schools Association, as well as three of the seven Supreme Court justices, vehemently disagrees with the ruling. Justice David Nahmias eloquently, forcefully and convincingly details why the majority opinion is incorrect:


  • “The majority of this Court has announced the new policy and removed the issue from the political process, unless the General Assembly and the people of our State bear the delay and enormous burden required to correct the Court’s error through a constitutional amendment.”


  • “Moreover, local boards of education – entities that are not even mentioned in the Constitution until 1945 – have never had “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 School Superintendent as well. In stark contrast to this shared state and local authority over primary and secondary public education, the Constitution expressly grants the Board of Regents “the exclusive authority to create new public colleges, junior colleges, and universities in the State of Georgia…”
  • “In holding that there is “exclusive local control of general primary and secondary public education in this State”, the Court calls into question the billions of State dollars spent every year on education and the significant role the State has in policy and supervision over systems and teachers. The State has never claimed it has the exclusive authority in education; rather, education law has always been a partnership between the State and local governments. …To hold otherwise, as the Court now does expressly, is a sea change in Georgia’s education law of proportions so great that they render overstatement impossible.”


  • “The majority’s reasoning and its result are terribly wrong, and if this case truly reflects the Court’s position on the public education law of Georgia, it portends dire consequences that go far beyond the issue of state-created charter schools. In addition to being historically and textually wrong, the majority’s premise that local boards of education have ‘exclusive control’ over K-12 public education quietly but directly overrules this Court’s seminal ‘adequate public education’ precedent and throws much of Georgia’s public education law into turmoil. If the majority means what it says, then the balance of authority and responsibility for public education in Georgia has suddenly been flipped upside down. If the local boards of education really have ‘exclusive control’ over K-12 public education, then the State’s many statutes and regulations establishing uniform and minimum guidelines for public schools statewide, are of dubious constitutionality.”


  • It follows that the State, which continues to struggle with severe budget pressures but has continued to spend more on public education than on anything else, needs no longer provide any funding for general primary and secondary public education as a matter of constitutional obligation. Of course, the General Assembly may still choose to do so, but if there is a shortfall, the majority says it is now the local districts’ constitutional duty to raise the necessary taxes.


  • The majority complains that the Commission is not sufficiently accountable to our citizens, but the commissioners are as accountable as the many other appointed officials in our State Government who make decisions that affect every Georgian. The majority also expresses concern for local taxpayers who reside in the areas from which “local school taxes are raised.”


  • “In its quest to strike down the Charter Schools Commission Act of 2008 the majority disregards the ordinary meaning, context, and history of the provision of our State’s Constitution that authorizes the General Assembly to ‘provide by law for the creation of special schools in such areas as may require them.’”
  • “The majority’s illogical reasoning and overbroad conclusion render the “special schools” provision a dead letter, effectively abrogating not just commission charter schools but also the state chartered special schools established under the Charter Schools Act of 1998 and any other ‘special school’ the General Assembly might dare to create. Most peculiar is the majority’s fundamental premise that since 1877, Georgia’s constitutions have granted ‘local boards of education the exclusive right to establish and maintain, i.e., the exclusive control over, general K-12 public education,’ In fact, as demonstrated below, for nearly as long as it has been a State, Georgia has always had both public schools and school systems that were established statewide in each county by general laws, which were often referred to as ‘common’ schools, and individual schools and school systems that the General Assembly established directly through special and local laws, separate from the common county systems and referred to variously in the law as ‘not common,’ ‘independent,’ or “special” schools.’”


  • “The claim that the Georgia Constitution has provided for local school boards to exercise “exclusive control of general K-12 public schools” for well over a century is repeated over and over. Given the majority’s dependence on constitutional history, it is remarkable how little support the majority identifies for its claims. In truth, the majority’s claims are at odds with the actual constitutional history of this State.”
  • “To begin with, the majority’s assertion that “local boards of education” were given exclusive authority over public schools under our constitutions beginning in 1877 is simply inaccurate. The 1877 Constitution contains no mention of local school boards. Indeed, it appears that local – county – school boards are first mentioned in the 1945 Constitution.”