Law & Courts

Ga. Ruling Leaves Charters’ Fate Uncertain

By Erik W. Robelen — May 20, 2011 6 min read

With a 4-3 ruling this week from its supreme court, Georgia has become the second state in which a state-level commission created explicitly to approve and oversee charter schools has been struck down by legal action.

The development leaves in limbo for the moment the educational fate of some 2,500 students enrolled in a set of eight charters the Georgia commission oversees, though efforts were under way by the local schools and their backers to find a way to stay open. As of Thursday, the schools were still operating.

The ruling seems to fly in the face of national momentum to form such state chartering bodies, which many charter advocates argue can both lift roadblocks to opening more of the independent public schools and bring stronger oversight to ensure high quality.

But critics in Georgia, including a set of school systems that filed suit, charged that the law establishing that state’s commission usurped the local authority of school districts and inappropriately drained public money from those systems.

Not counting Georgia, seven states, plus the District of Columbia, have similar statewide charter boards, according to the Chicago-based National Association of Charter School Authorizers. That tally includes a board in Indiana just getting started under legislation Gov. Mitch Daniels, a Republican, signed this month.

Meanwhile, legislative chambers in at least five other states—Illinois, Missouri, Montana, North Carolina, and Oklahoma—have approved bills this year that would institute such state boards, the association says.

While the Georgia ruling was widely seen by charter proponents as a big setback in that state, several experts said it was not necessarily a harbinger for blocking charter school commissions elsewhere. They noted that relatively few states have language akin to that in Georgia’s constitution.

“I don’t think we’re looking at a domino effect here,” said Paul O’Neill, an education lawyer based in New York City and the author of the Charter School Law Deskbook. “There’s really only a handful of states with constitutional provisions like this one.”

A Florida law creating a state charter board was struck down in 2008 by a court in that state, but no schools had been opened under the Florida panel. In Colorado, which is said to have a constitutional provision similar to Georgia’s, a legal challenge several years ago failed.

A ‘Special’ School?

In Georgia, the high court ruled May 16 that the 2008 law creating the Georgia Charter Schools Commission conflicted with a provision of the state constitution granting local boards of education “exclusive control” over general K-12 schools. A constitutional provision allowing the state to operate “special schools,” such as vocational schools, does not authorize the state to control charter schools, the court said.

“[O]ur constitutions, past and present, have limited governmental authority over the public education of Georgia’s children to that level of government closest and most responsive to the taxpayers and parents,” Chief Justice Carol W. Hunstein wrote in the decision in Gwinnett County School District v. Cox.

In a lengthy dissent, Justice David E. Nahmias wrote: “Today, four judges have wiped away a small but important effort to improve public education. ... That result is unnecessary, and it is unfortunate for Georgia’s children.”

The Georgia law in question created the independent charter commission, with its seven members appointed by the state board of education based on recommendations from the governor and legislative leaders.

The charter board was charged with approving or denying petitions to create charter schools, as well as providing oversight of academic and financial matters, with authority to shut charter schools down.

Choosing Authorizers

Increasingly, charter proponents are paying more attention to the critical role of charter authorizers, and suggest that independent state charter boards are an especially promising vehicle to provide careful and fair review of charter applications and effective oversight once the schools open.

“The development of statewide chartering commissions or boards where this is all they do is likely the best structure to ensure quality within the charter school sector,” said Greg Richmond, the president and chief executive officer of the National Association of Charter School Authorizers.

The most prevalent type of authorizer nationwide is the school district, though a variety of other entities have authority to play that role, depending on the state, from universities to mayor’s offices and state education agencies.

Mr. Richmond argues that most districts are ill-equipped to be effective charter authorizers, and may have a bias against approving them, fearing competition and the potential loss of aid for students who leave the regular school system.

Several charter proponents said the Georgia legislation was driven by a concern that charter applicants were not being given a fair hearing by local districts.

But Angela Palm, the director of policy and legislative services for the Georgia School Boards Association, which filed a friend-of-the-court brief in support of the plaintiff school districts, rejects that point of view. She said districts have vetted charter applicants carefully both for quality and how the proposed schools fit with existing needs.

“They’re responsible to all of the taxpayers in the district,” she said of local school boards. “There has to be an economy of scale.”

Opponents of the Georgia panel focused on the issues of local control and school funding. With each student who left the district for a commission-approved charter, the district lost a portion of its per-pupil state aid pegged to what the local contribution would have been.

“That left a hole in the school district budget,” said Ms. Palm, who estimated the loss at about $3,500 per student in fiscal 2011.

Said Calvine Rollins, the president of the Georgia Association of Educators: “The court’s decision reaffirms [our] belief that public charter schools should remain under the management and control of their local school boards.”

But Mr. Richmond said the local-control argument rings hollow.

“To suggest that the only people who get to decide how education is delivered are school boards strikes me as being something from another century,” he said.

Tony Roberts, the president and CEO of the Georgia Charter Schools Association, said charter supporters are determined to keep the eight charter schools in question open and to restore the state commission. Another eight schools were slated to open this coming fall.

“A movement is already afoot to introduce legislation to amend our constitution,” Mr. Roberts said.

State officials said this week that they are working to determine the timing and effect of the ruling, which came near the end of the academic year, as well as the options the schools may have to continue operating next year under a different status.

“The state stands ready to help in whatever way necessary to ensure that the education of the students in these schools is not compromised,” Georgia state Superintendent John D. Barge said in a statement after the ruling.

The Georgia ruling came the same day that Indiana state Superintendent Tony Bennett appointed the first executive director of the new Indiana Charter School Board.

“We hope to attract some of the top-quality [charter] operators in the country,” he said, and “emphasize high-quality charter schooling.”

Asked whether he was worried about a legal challenge, Mr. Bennett said the preliminary information he’s received suggests the state would not be vulnerable to a lawsuit similar to those brought in Georgia or Florida, but he’s not taking anything for granted.

“We’re obviously going to do a deeper dive into it,” he said.

This article includes material from Contributing Writer Mark Walsh.
A version of this article appeared in the May 25, 2011 edition of Education Week

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