HUNSTEIN, Chief Justice.
This appeal involves a constitutional challenge to the 2008 Georgia Charter Schools Commission Act, OCGA § 20-2-2081 et seq. (the "Act"). Appellants/plaintiffs are local school systems
1. (a) "Authority is granted to county and area boards of education to establish and maintain public schools within their limits." Art. VIII, Sec. V, Par. I of the 1983 Georgia Constitution. 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. See
(b) Unlike general K-12 public education, provisions for "special schools" are a more recent addition to our constitution. In 1966, the 1945 Georgia Constitution was amended to give local boards of education the authority to establish "one or more area schools, including special schools such as vocational trade schools, schools for exceptional children, and schools for adult education, in one or more of such political subdivisions." See Ga. L. 1966, § 3, pp. 1026, 1029-1030 (proposing constitutional amendment); Ga. L. 1967, p. 1127 (noting its ratification). This exact language was retained with no significant change when the 1945 Georgia Constitution was replaced by the 1976 Constitution. See Art VIII, Sec. IX, Par. I of the 1976 Georgia Constitution.
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. Art. VIII, Sec. V, Par. I. However, "special schools" are now addressed in an entirely revised paragraph. Art. VIII, Sec. V, Par. VII (a).
Id. This paragraph eliminated the previous constitutional language that included "special schools" as one type of "area school"; authorized the creation of "special schools" by the General Assembly alone or together with the local boards of education; and deleted the three specific examples of "special schools" set forth in the earlier constitutions, thereby authorizing the General Assembly to provide by law for the creation of any type of special school.
(c) In 2008, the General Assembly enacted the Georgia Charter Schools Commission Act
(Emphasis supplied.) OCGA § 20-2-2081 (2). The Commission is also charged with the duty of collaborating with "cosponsors"
2. Appellants contend the Act is unconstitutional because the schools the Commission is authorized to create are not "special schools" under Art. VIII, Sec. V, Par. VII (a). In addressing this challenge to the constitutionality of the Act, we recognize at the outset that
(Citations and punctuation omitted.)
(a) "`Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.' [Cit.]"
(b) In construing the meaning of constitutional language, it can also be useful to consider the understanding expressed by the people involved in the drafting and ratifying of the constitution.
Select Committee on Constitutional Revisions, 1977-1981, Transcript of Meetings, Legislative Overview Committee, Vol. I, meeting of June 18, 1981, p. 67. See also Select Committee on Constitutional Revisions, 1977-1981, Transcript of Meetings, Committee to Revise Article VIII, Vol. III, meeting of the Subcommittee on Local School Systems, September 4, 1980, p. 51, statement by Chairman Thornhill that "[w]e're talking about special schools, and special schools is interpreted as vocational schools, et cetera"; id. at meeting of the Committee to Revise Article VIII, September 23, 1980, p. 29, statement by Chairman Thornhill of the Subcommittee on Local School Systems that the "special schools . . . are schools, vo-tech schools, adult education, exceptional children and so on." Because this consensus view of the meaning of "special schools" is consistent with the previous constitution, it explains why the drafters envisioned the "special schools" paragraph as constituting only "an editorial revision," with the "major change" being the new paragraph's authorization of the creation of special schools "by general or local law." Select Committee on Constitutional Revisions, 1977-1981, Transcript of Meetings, Legislative Overview Committee, Vol. I, meeting of June 18, 1981, p. 65 (subcommittee report by assistant executive director Melvin B. Hill, Jr. to Legislative Overview Committee).
The second matter revealed by the transcripts is that, notwithstanding the decision to delete the three examples of "special schools" contained in the previous constitutions in favor of "broadening" the "special schools" phrase in order to include "any type of
Based on these comments by the drafters and participants in the framing of the 1983 Constitution, we conclude that it was their clearly understood and plainly expressed position that "special schools" in Art. VIII, Sec. V, Par. VII (a) meant those schools that enrolled only students with certain special needs or taught only certain special subjects and did
(c) Finally, "[w]hen interpreting words used in the Constitution the presumption is that they were used according to their `natural and ordinary meaning.' [Cits.]"
It is not necessary here to provide a definitive list of the specific features and characteristics relative to a school itself that
Based on the natural and ordinary meaning of the phrase "special schools" in Art. VIII, Sec. V, Par. VII (a), we hold that schools that "exist as a public school within the [S]tate as a component of the delivery of public education within Georgia's K-12 education system," OCGA § 20-2-2081 (2), and provide "public education to all students," see OCGA § 20-2-2083 (b) (12), do not qualify as "special schools."
3. In order to find a clear and palpable conflict between Art. VIII, Sec. V, Par. VII (a) and the Act, we must determine that the Act is not capable of being construed in harmony with that constitutional provision. See generally
(a) We first respond to the assertion that commission charter schools are special schools because the General Assembly has determined that they are, see OCGA § 20-2-2081 (2), and had a rational basis for that determination. The 1983 Georgia Constitution contains no language allowing the General Assembly itself to define "special schools." Compare, e.g., Art. I, Sec. II, Par. VIII (b) (in provision providing for the legal operation of nonprofit bingo games, "[t]he General Assembly may by law define a nonprofit bingo game").
(b) It is asserted that commission charter schools come within the definition of "special schools" because that term was "broadened" in the 1983 Georgia Constitution by the elimination of the three examples of "special schools" set forth in the prior constitutions, namely, vocational trade schools, schools for exceptional children, and schools for adult education. See Art VIII, Sec. IX, Par. I of the 1976 Georgia Constitution. While the striking of these three examples clearly authorized the General Assembly to create any type of
(c) In reliance on commission charter schools' unique charters, their individualized, performance-based contracts and their educational philosophy, the assertion is made that commission charter schools are "special schools" because they are special in their operation. But every general K-12 public school has an educational philosophy; every general K-12 public school has a "unique operating charter" — whether memorialized in writing or merely implicit in the unique nature of each school's faculty, administration and student body; and every educator in every general K-12 public school is required to teach his or her students in accordance with the same statutory standards of professional performance, see the Georgia Professional Standards Act, OCGA § 20-2-981 et seq., that govern the conduct of all of the State's educators. These are not differences that make commission charter schools "special": they are the same strengths that may be found in all general K-12 schools, whether locally controlled or Commission established.
(d) Turning to the next reason, it is asserted that because of the manner in which commission charter schools are created, i.e., by the Commission by means of the Act passed by the General Assembly, they are "special schools" because they are "outside the ordinary source of schools," i.e., not created by local boards of education. In other words, the Commission has the authority to create "special" schools and schools are "special" because the Commission created them. This circular reasoning aside, there are certainly differences between local boards of education and the Commission. On the one hand, local school boards are comprised of members who live in their schools' districts and must be elected to their positions by the parents and taxpayers residing in the areas from which the students are drawn and the local schools taxes are raised. See Art. VIII, Sec. V, Par. II; Art. VIII, Sec. VI, Par. I. The Commission, on the other hand, is comprised of seven political appointees who are selected by the governor, the president of the Senate (i.e., the lieutenant governor) and the speaker of the House, see OCGA § 20-2-2082 (b); hence, its members are not accountable in any manner either to the parents or to the taxpayers. But Art. VIII, Sec. V, Par. VII (a) speaks of "special schools,"
A corollary of this assertion is that the commission charter schools are "special schools" because they are not directly funded by local school taxes. Aside from the fact that State tax dollars are no more special than local tax dollars — both have the same purchasing power — there is yet again no constitutional significance as to the source of funding that would render a school "special" for purposes of Art. VIII, Sec. V, Par. VII (a).
(e) The final reason asserted for commission charter schools being defined as "special schools" is also the least persuasive. Our attention is directed to one statute, OCGA § 20-2-370, regarding the requirement of a referendum to annul a municipal or independent school district's "special school law"; an opinion from this Court applying that statute, see
In conclusion, none of the proffered reasons enable us to construe the Act in harmony with Art. VIII, Sec. V, Par. VII (a). See generally
4. (a). Although we find the Act unconstitutional solely on the basis that it violates Art. VIII, Sec. V, Par. VII (a), the dissent, relying on
However, even under the liberal application of this inherent authority proposed by the dissent, we are not able to uphold the Act. The problem is twofold. First, the Act contains no safeguards whatsoever to prevent the creation of unconstitutional schools. Compare
Therefore, because narrowing the Act to avoid its unconstitutional infirmities "would be less a matter of reasonable judicial construction than a matter of substantial legislative revision,"
(b) We have carefully considered the remaining arguments raised in support of the Act by the dissent and find them to be without merit.
5. The record establishes uncontrovertedly that the Georgia Charter Schools Commission Act and the schools established thereunder represent the efforts of well-intentioned people, motivated by their genuine concern over the current condition of this State's general K-12 public education, to provide the children of this State with an alternative and, in some cases, a superior educational opportunity. In holding the Act unconstitutional under the unique provisions of this State's Constitution, we do not in any manner denigrate the goals and aspirations that these efforts reflect. The goals are laudable. The method used to attain those goals, however, is clearly and palpably unconstitutional. Because the Georgia Charter Schools Commission Act violates Art. VIII, Sec. V, Par. VII (a) of the 1983 Constitution of Georgia, we reverse the trial court's order.
6. Our holding here renders it unnecessary to address appellants' remaining constitutional challenges to the Act.
MELTON, Justice, dissenting.
Although I fully concur in the dissent written by Justice Nahmias, I write separately to emphasize the fundamental principles at play in this case. I also believe that it is necessary to point out that, even under the majority's faulty constructs and its incorrect definition of "special schools," these principles, which the majority fails to apply, require a finding that the Charter Schools Commission Act of 2008 ("Act") is constitutional.
Two bedrock rules of statutory construction govern in this matter: (1) in analyzing the Act, we must presume that the statute is, and was intended to be, constitutional; and (2) in the absence of a First Amendment overbreadth claim, the statute cannot be struck down unless it is unconstitutional in all of its applications or lacks a plainly legitimate sweep.
With regard to the first principle, a cursory review of the text of the Act supports the presumption of constitutionality, even under the test articulated by the majority. For example, the Legislative intent behind the Act is facially evident in its provisions regarding the contributions of cosponsors (other entities defined in OCGA § 20-2-2081 (3) such as counties or universities who help support charter schools). OCGA § 20-2-2080 (b) (2) indicates that cosponsors should be sought out to maximize "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." (Emphasis supplied.) In addition, OCGA § 20-2-2083 (b) (12) tellingly gives the Georgia Charter Schools Commission the power to "[c]ollaborate with cosponsors for the purpose of 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." (Emphasis supplied.) Even if one applies the majority's definition of "special schools" as those that "enrolled only students with certain special needs or taught only certain special subjects," these provisions unequivocally support a conclusion that the Act was not unconstitutional. The majority's contrary finding is not logical.
With regard to the second principle, it is untenable to argue that the Act is unconstitutional in all of its applications or lacks a plainly legitimate sweep. In fact, the existence of Ivy Preparatory Academy, a charter school for girls only, proves that the Act meets the majority's constitutional test, as it has been properly applied to create a special school. Again, this remains true even under the definitions set forth in the majority opinion. Perhaps that is why the majority makes no attempt to argue that these particular schools fail its pronounced constitutional standard.
This case should be that simple. The Legislature, whom we must presume intended to act in a constitutional manner, created a law to provide for special charter schools to enhance our educational system, and it included evidence on the face of the statute supporting such a constitutional intent. Nevertheless, the majority looks beyond this basic principle to reach a result that simply cannot be explained in the context of the applicable law and the undisputed facts.
NAHMIAS, Justice, dissenting.
In its quest to strike down the Charter Schools Commission Act of 2008, see OCGA § 20-2-2081 et seq. (the "2008 Act"), 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." Ga. Const. of 1983, Art. VIII, Sec. V, Par. VII (a). 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," Maj. Op. at 2. 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. 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 School Superintendent as well. Thus, understood in the true historical context, commission charter schools are simply the latest iteration of the "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.
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. It is equally unfortunate for this Court's reputation as an institution that fairly and accurately interprets the law and exercises the judiciary's most awesome power — the power to nullify laws enacted through the democratic process — only when that result is clearly and palpably dictated by our Constitution. See
The majority holds that the "special schools" provision of the 1983 Georgia Constitution does not authorize the General Assembly to create "commission charter schools" as provided in the 2008 Act.
The Colonial Period to 1877: County Schools Created by General Laws and "Independent" Schools Created by Special and Local Laws
As explained in
Thus, the original 1777 Constitution included a clause providing that "`schools shall be erected in each county and supported at the general expense of the State, as the legislature shall hereafter point out and direct,'" although limited state funding required these schools to operate as private institutions and rely on tuition fees. Id. at 649 (quoting Article LIV of the 1777 Constitution). Later acts promoted a statewide system of public education, but the results were inconsistent. See id. at 649-651.
In 1868, after the Civil War, a new constitution was adopted that provided that "[t]he general assembly . . . shall provide a thorough system of general education, to be forever free to all children of the State, the expense of which shall be provided for by taxation or otherwise." Ga. Const. of 1868, Art. VI, § 1. This Constitution did not, however, create county boards of education to establish schools; instead, the General Assembly had authority to select any entity it wished to establish and operate the "general education" system.
In 1870, the General Assembly enacted the first comprehensive public school law. See
However, distinct from the statewide county school districts, the General Assembly also separately authorized — sometimes the word "chartered" is used — the creation of other school districts in specific counties and municipalities, as well as individual schools for blind children and deaf children. See Ga. L. 1872, p. 388 (setting forth the local law establishing the Board of Public Education for Bibb County); Ga. L. 1872, p. 456 (setting forth the local law establishing the Board of Education for Richmond County); Ga. L. 1870, p. 481 (setting forth the local law authorizing the City of Atlanta to establish a public school system); Ga. L. 1852, p. 4 (establishing Georgia Academy for the Blind); Ga. L. 1847, p. 94 (establishing Georgia School for the Deaf). In 1872, the General Assembly also revised the 1870 act to expressly acknowledge the existence of these schools separate from the statewide system of county board-controlled schools and to authorize the creation by the General Assembly of new "independent" schools.
Ga. L. 1872, pp. 64, 75. It should also be noted that the local school system appellants in this case (hereafter the "local systems") all agree that the schools for the blind and the deaf qualify as "special schools."
1877 to 1945: The "Common" County Schools and the Growing Number of "Not Common" Schools and County Sub-Districts
In 1877, the State adopted a new constitution. It provided that "[t]here shall be a thorough system of common schools for the education of children. . ., as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise." Ga. Const. of 1877, Art. VIII, Sec. I, Par. I. (emphasis added). The 1877 Constitution also provided that "[e]xisting local school systems shall not be affected by this Constitution. Nothing contained in section first of this article shall be construed to deprive schools in this State, not common schools, from participation in the educational fund of the State . . . ." Art. VIII, Sec. V, Par. I (emphasis added). This constitutional reference to schools created outside the statewide system of county schools as "not common schools" is an early indication that such schools were considered to be "special schools."
In addition, like the 1868 Constitution, the 1877 Constitution did not mention county "boards of education" or assign them the authority to establish and control local schools. Pursuant to the 1870 statute, county school boards may have done so to a large extent, but the General Assembly remained constitutionally free to assign that power to any entity it desired. Thus, as discussed further in Division II (C) below, the majority is simply incorrect when it claims that, since the 1877 Constitution, Georgia's constitutions have granted "local boards of education . . . the exclusive control over . . . general K-12 public education." Maj. Op. at p. 2. To the contrary, in 1906 the General Assembly enacted a law requiring every county board of education in Georgia to divide the county into school districts with clear boundary lines. See Ga. L. 1906, p. 66. These sub-county districts were authorized to raise taxes for their schools and were managed not by the county boards but by local trustees. See id. at 67-69.
Due to both "the tendency of cities and towns to secure charters from the legislature and to withdraw from the county system" and the 1906 law, which allowed the counties to create sub-districts that "fence[d] off the richest portion of the county," a "multiplicity of systems" arose by early in the last century.
Over time, however, the large number of independent schools and county sub-districts, established predominantly in cities and towns where wealth was concentrated, led to great inequalities in school funding with rural county systems that had limited property value to tax. See id. at 641, 654-657.
References to "Special Schools" in Georgia Statutory and Case Law
The first references to "special schools" in Georgia law came during this period. References to "special schools" first appear in decisions by this Court about a century ago. These cases relied on the general legislation enacted in the first decade of the 1900's, which provided for a uniform system of laying out school districts within counties, to overturn special acts creating new municipal "special school districts," in accordance with the constitutional rule that prohibits enactment of a special law where there is a general law on the same subject. See, e.g.,
Two years later, the General Assembly enacted a statute, which continues in effect today, that used the term "special school" to refer to a school district established separate from a county school system. See Ga. L. 1926, Ex. Sess., p. 40, § 1, now OCGA § 20-2-370 (providing that municipal school districts that "operat[e] a system of public schools independent of the county school system" may "annul their special school law and become a part of the county school system" using certain procedures). See also
What is notable about all of these references — by the General Assembly, the Justices of this Court, and the Judges of the Court of Appeals — is that they all equate "special schools" to schools or school systems established separate from the statewide, county-based common school systems. Not once is there a suggestion that a "special school" is defined by its students or curriculum.
1945 to 1960: Consolidation of School Creation in the Counties
The 1945 Constitution reflected a major shift in authority over public schools to the county boards of education. The new Constitution grandfathered existing independent school systems, but it otherwise merged all local school districts in a county into one county-wide school district with an improved ad valorem tax system. The exclusive authority to operate each county school system was given to the county board of education, and the creation of new independent school systems was prohibited. See
But the pendulum seems to have swung too far in preventing the creation of new schools outside the control of an individual local system. In 1955, this Court held that the Thomas County Board of Education could not, under the 1945 Constitution, contract to build a new high school to be operated and governed jointly with the independent City of Thomasville Board of Education. See
1960 to 1966: "Area Schools, Including Vocational Trade Schools" Created Jointly by Local Systems
Five years later, in 1960, the Constitution was amended to provide that "[a]ny two or more counties, or any two or more municipalities, or any county and municipality, or combination thereof may jointly establish area schools, including vocational trade schools." Ga. Const. of 1945, Art. VII, Sec. VI, Par. I (d) (emphasis added). See Ga. L. 1960, p. 1259, § 1 (proposing this constitutional amendment); Ga. L. 1961, p. 756 (noting its ratification). Thus, while the Constitution still did not allow the creation of new independent school systems (a prohibition that continues to this day), it once again allowed the creation of individual schools outside the authority and control of a single local board of education, although only by joint agreement of the local districts affected.
1966 to 1976: "Area Schools, Including Special Schools Such as Vocational Trade Schools, Schools for Exceptional Children, and Schools for Adult Education" Created by the General Assembly with Local Voter Approval
In 1966, Article VIII, Section IX of the 1945 Constitution was replaced by amendment. See Ga. L. 1966, pp. 1026, 1026-1027, § 1 (proposing this constitutional amendment); Ga. L. 1967, p. 1127 (noting its ratification). The 1966 Amendment authorized the General Assembly to consolidate multiple county or independent school systems into an "area school district," pursuant to special or local law and with the approval of the voters in the school systems affected. See Art. VIII, Sec. IX, Par. I.
The 1966 Amendment also replaced the 1960 Amendment to Article VII, Section VI, Paragraph I with a new provision regarding the creation of individual "area schools," which contained the first constitutional use of the term "special schools."
See Ga. L. 1966 at 1029-1030, § 3 (emphasis added).
The text of the 1966 Amendment makes several points clear about special schools at that time. "Special schools" were a type of "area school" and included — at a minimum — "vocational trade schools, schools for exceptional children, and schools for adult education." A special school could span more than one political subdivision and thus be beyond the jurisdiction of a single local school board. Indeed, the General Assembly, by local law, would determine the powers of the local boards involved in establishing and operating a special school. But the General Assembly could not create such a school on its own; the voters in the local districts affected would have to approve the school, after which local school tax funds and bond debt could be used in support of the special school.
The 1976 Constitution generally carried forward the public school scheme of the 1945 Constitution, as amended in 1960 and 1966, including incorporating the 1966 "area schools" language virtually verbatim as Article VIII, Section IX, Paragraph I.
The 1983 Constitution: "The General Assembly May Provide by Law for the Creation of Special Schools in Such Areas as May Require Them"
Our current Constitution, which took effect in 1983, again maintained the basic public education scheme of county, area, and pre-existing independent school systems, along with the prohibition on establishing new independent systems. See Art. VIII, Sec. V, Par. I. Local boards of education were again granted the authority to "establish and control public schools within their limits," id., and to manage and control their school systems. Art. VIII, Sec. V, Par. II.
And the 1983 Constitution again separately authorized the General Assembly to create "special schools":
Art. VIII, Sec. V, Par. VII (a).
However, the 1983 provision was different than its predecessors in several important respects. First, the language "areas schools, including special schools" became "special schools in such areas as may require them." Second, the three specific examples of special schools listed in the 1966 Amendment and the 1976 Constitution were deleted.
In addition, the General Assembly was granted the authority to create special schools unilaterally — authority it had not had, at least expressly, since the 1945 Constitution prohibited the creation of any new independent school systems. Although the General Assembly may still provide for local boards of education to participate in the creation of special schools, that is no longer required. Similarly, special schools can now be created without the approval of voters in the school districts affected, although the General Assembly cannot draw on local school taxes or bonds to finance special schools without local voter approval.
The 1993 and 1998 Charter School Acts and the Attorney General Opinions Concluding That the "Special Schools" Provision Authorizes the General Assembly to Create State Chartered Schools
A charter school is a public school that operates under the terms of a charter, which is a performance based contract between the school and the relevant government entity, instead of under all of the statutes and rules that ordinarily govern public education. See OCGA § 20-2-2062 (1) (defining the term "charter"); § 20-2-2065 (a) (providing that charter schools are exempt from state laws and rules governing public education, except as otherwise provided in the education title of the Code or in a charter, and that in exchange for this waiver, charter schools agree to meet or exceed the performance goals included in their charters); Ga. Comp. R. & Regs 160-4-9-.04 (setting forth the rules of the State Board of Education regarding charter schools).
In 1993, the General Assembly authorized the creation of the first public charter schools in Georgia with the enactment of OCGA § 20-2-255. See Ga. L. 1993, p. 1440. The 1993 Act permitted an existing local school under the management and control of a local board of education to become a charter school if it obtained approval from both its local board of education and the State Board of Education. See id. at 1442-1444.
Five years later, in the Charter Schools Act of 1998, the General Assembly repealed the 1993 Act, see Ga. L. 1998 at 1080-1081, and enacted a more comprehensive scheme for charter schools. See OCGA § 20-2-2060 et seq. The 1998 Act authorizes the creation of both "local charter schools" and "state chartered special schools." OCGA § 20-2-2062 (7), (16). A "local charter school" is a school that "operat[es] under the terms of a charter between the charter petitioner and the local board [of education]," § 20-2-2062 (7), and is "[s]ubject to the control and management of the local board of the local school system in which the charter school is located." § 20-2-2065 (b) (2). A "state chartered special school," on the other hand, is a "charter school created as a special school that is operating under the terms of a charter between the charter petitioner and the state board." § 20-2-2062 (16). The 1998 Act specifically invokes the 1983 Constitution's "special schools" provision, defining a "special school" as "a school whose creation is authorized pursuant to Article VIII, Section V, Paragraph VII of the Constitution." § 20-2-2062 (13). The funding mechanism for "state chartered special schools" is set forth in OCGA § 20-22-068.1 (d).
Three state charter schools established under the 1998 Act retain that status today, including the Odyssey School, whose Georgia Cyber Academy provides on-line education for students throughout the State in grades K-10. See http://www.k12.com/gca/ (Georgia Cyber Academy website); http://www.doe.k12.ga.us/pea_charter.aspx (Georgia Department of Education web page containing a list of all Georgia charter schools). Of note, there are no published court opinions in which the 1998 Act or the creation of these schools has been challenged as unconstitutional, nor did the local systems expressly challenge them in this litigation — although the majority opinion will unfortunately have the effect of rendering them unconstitutional.
On the other hand, in two opinions, one unofficial and one official, the Attorney General concluded that the General Assembly has expansive power to create "special schools," including state charter schools pursuant to the 1998 Act. See 2001 Op. Atty. Gen. 2001-9 (concluding that the 1983 Constitution's "special schools" provision authorizes the General Assembly to create state charter schools pursuant to the 1998 Act); 1997 Op. Atty. Gen. U97-8 (concluding that the 1983 "special schools" provision authorizes the General Assembly to create state charter schools without the approval of the local board of education for the school system in which the charter school would be located). See also 1998 Op. Atty. Gen. U98-2 (concluding that the 1983 Constitution gives the General Assembly "specific authority to set up whatever kind of structure it deems appropriate for the creation of special schools").
The 2008 Charter Schools Commission Act
This case involves the Charter Schools Commission Act of 2008. See OCGA § 20-2-2080 et seq. Experience under the 1998 Act led to concerns that local school boards would not approve charter school petitions and that funding for the alternative, the state charter schools, was too limited. See Review of Selected 2008 Georgia Legislation, 25 Ga St U L Rev 47, 51-52 (Fall 2008) (noting that 26 of the 28 charter school petitions submitted in Georgia were denied in 2007). After extensive hearings, floor debate, and amendments, the 2008 Act passed by a vote of 114-40 in the House of Representatives and 30-21 in the Senate. See id. at 50-67.
The 2008 Act opens with the following legislative findings and statement of intent:
OCGA § 20-2-2080.
The act created the seven-member Georgia Charter Schools Commission, appointed by the State Board of Education from recommendations by the Governor (for three commissioners), the President of the Senate (two), and the Speaker of the House (two). See § 20-2-2082 (a)-(b). Commissioners must hold at least a college degree and should be "a group of diverse individuals representative of Georgia's school population who [have] experience in finance, administration, law, education, public school teaching, and school governance." § 20-2-2080 (b).
The Commission's primary function is to develop "commission charter schools." A commission charter school is expressly defined in terms of the 1983 Constitution's "special schools" provision as a "charter school authorized by the commission pursuant to this article [of the Education Code] whose creation is authorized as a special school pursuant to Article VIII, Section V, Paragraph VII of the Constitution." OCGA § 20-2-2081 (2). The Commission is charged with, among other responsibilities, approving or denying petitions for commission charter schools according to rules and regulations established by the State Board of Education. See § 20-2-2083 (a) (1).
The funding mechanism for commission charter schools is set forth in OCGA § 20-2-2090; it is much less favorable for local school systems than the funding mechanism for the state charter schools created under the 1998 Act, as the local systems receive reduced state and federal funding in proportion to the number of students residing in their districts that choose to attend commission charter schools. Because the same "special school" arguments can be made, but have not been made, against the 1998 Act as against the 2008 Act, it is apparent that this funding difference is what motivated this lawsuit and the efforts of the local systems to have the Commission Charter Schools Act deemed unconstitutional. But as the trial court held and I fully agree, there is nothing unconstitutional about the funding scheme set up by the 2008 Act. Because the majority evidently can find no traction in the local systems' attack on the funding scheme (or in the many other arguments the appellants raise) as the ground for striking down the statute, the majority must rely on the "special schools" argument, which has the consequence of also nullifying any state charter schools established under the 1998 Act.
The Three Commission Charter School Appellees
The three appellee schools in this case are Ivy Preparatory Academy, Charter Conservatory for Liberal Arts and Technology ("CCAT"), and Heron Bay Academy — the first three commission charter schools approved in Georgia. Each of the schools first petitioned its local district to operate as a local charter school under the 1998 Act, but their petitions were all denied. Before 2008, Ivy Prep and CCAT each obtained approval to operate as a state charter school. After the 2008 Act took effect, Ivy Prep, CCAT, and Heron Bay each obtained approval from the Commission to operate as a commission charter school.
Ivy Prep is located in Gwinnett County, and its charter permits it to enroll students from Gwinnett and DeKalb Counties and to continue to enroll the students from outside those two counties who were enrolled when it became a commission charter school. The record indicates that Ivy Prep has a total of about 300 students from ten school districts, including Gwinnett, DeKalb, and Atlanta. Ivy Prep is a single-gender school that "provides a rigorous, college preparatory program for young women," ultimately in grades 6 to 12, including "an extended day, week, and year educational program and . . . two hours of English/language arts and mathematics instruction on a daily basis." Ivy Prep's charter requires its students to perform at a higher level than their peers in the Gwinnett County Public Schools System in reading, math, social studies, and science. Ivy Prep's student population is about 68% African-American, 10% Hispanic, 11% Asian, 6% Caucasian, and 5% multiracial. Nearly 40% of the students come from low income families. Ivy Prep's students have outscored their peers in surrounding school systems on standardized testing, sometimes significantly, and have surpassed "adequate yearly progress" standards, enabling the school to obtain federal Title I funds.
CCAT is located in Bulloch County, and its charter permits it to enroll students from Bulloch County and to continue to enroll the students from other districts who were enrolled when it became a commission charter school. CCAT has about 1,100 students from six school districts, including Bulloch and Candler. Also serving students in grades 6 to 12, CCAT offers "a year round program with multi-age, student-centered classrooms featuring pedagogy that is based on constructivist and multiple intelligence learning." To meet the performance objectives in its charter, CCAT's middle school students must meet or exceed the mean and median scores of their peers statewide on the CRCT exam in each content area; its high school students must perform similarly well on statewide high school graduation, writing, and end-of-course tests. About 41% of CCAT's students come from low income families, and special education students constitute 14% of the school. CCAT has an average graduation rate of 92%, placing it in the top three schools in Georgia over the last seven years. The school has also been honored by the Georgia Department of Education multiple times for having one of the highest graduation rates for students with disabilities, and it has been a Title I Distinguished School for the last seven years.
Heron Bay is located in Spalding County and was scheduled to begin operating during the 2011-2012 academic year with students from the GriffinS-palding and Henry County School Districts. It was to open as a K-6 grade school offering "an extended day and extended school that will incorporate foreign language instruction for all students in all grade levels beginning in Kindergarten." Its charter required its students to perform above their peers in the Henry and Spalding County school systems' non-charter schools on standardized tests and to substantially increase test scores each year. Like all of the state charter and commission charter schools, any student who resides in its area may apply to enroll in Heron Bay, with a random selection process ensuring an equal chance of admittance, without discrimination on any basis that would be illegal if used by a local school system, and in full compliance with state and federal laws regarding education of students with disabilities and other special education needs and English language learners. See OCGA § 20-2-2066 (b)-(c); Ga. Comp. R. & Regs 160-4-9-.04 (5) (a) (5) (v), (vi), (x) and (5) (a) (7) (iii).
The Federal "Race to the Top" Program
With the support of President Obama and the United States Department of Education, in February 2009, Congress enacted a law providing $4.35 billion for the
http://www2.ed.gov/programs/racetothetop/executive-summary.pdf., p. 2. One of the criteria for the grants is "[e]nsuring successful conditions for high-performing charter schools and other innovative schools." Id. at p. 11. Among other things, this criterion includes consideration of the extent to which (1) "[t]he State has a charter school law that does not prohibit or effectively inhibit increasing the number of high-performing charter schools," (2) the State has laws that "encourage charter schools that serve student populations that are similar to local district student populations, especially relative to high-need students," and (3) the State's charter schools receive "equitable funding compared to traditional public schools, and a commensurate share of local, State, and Federal revenues." Id. at p. 11.
After an unsuccessful first application, Georgia's second application for Race to the Top funds, submitted in June 2010, highlighted in bold print the enactment of the 2008 Charter Schools Commission Act, explaining that it was designed "to ensure that charter school applicants have an opportunity to apply to more than one authorizer." http://www2.ed.gov/programs/racetothetop/ phase2-applications/georgia.pdf. See also Democrats for Education Reform, Race to the Top Series, #5: Growing Innovative Charter Schools, p. 4 (June 17, 2009) ("Race to the Top states should have multiple charter school authorizers, so that no one entity can bottleneck the charter school approval process."). One of the application reviewers specifically noted Georgia's "strong state Charter School Commission," http://www2.ed.gov/programs/racetothetop/ phase2-applications/comments/georgia.pdf, p. 8, and all reviewers gave Georgia a perfect score on this point. See http://www2.ed.gov/programs/racetothetop/ phase2-applications/score-sheets/georgia.pdf. Georgia was ultimately selected to receive $400 million in Race to the Top funding.
A Sense of Context: State Chartered Schools Are Less then One Percent of Georgia's K-12 Public Education System
Since these lawsuits were filed in 2009 and 2010, the Commission has approved several more commission charter schools and state charter schools converting to commission charter school status. See http://www.doe.k12.ga.us/ pea_charter.aspx. This long but important background discussion will end with a few numbers that are useful in evaluating the majority's claim that commission charter schools "duplicate the efforts of local boards of education in establishing and maintaining general K-12 schools." Maj. Op. at 3. There are nearly 2,300 individual public schools in Georgia, serving nearly 1.7 million students. See http://app3.doe.k12.ga.us/ows-bin/owa/fte_pack_enrollgrade.display_proc; http://app3.doe.k12.ga.us/ows-bin/owa/fte_pack_school_count.display_count. Thirteen years after the 1998 Act and three years after the 2008 Act, fewer than 1% of those schools are state-chartered pursuant to the General Assembly's "special schools" authority, and fewer than 1% of public school students attend those schools.
The Ordinary Meaning of "Special Schools"
The question that controls this case is what makes a public school "special" as that term is used in Article VIII, Section V, Paragraph VII of the 1983 Constitution.
The first place that we usually look to determine the ordinary meaning of words is a good dictionary. See
As discussed in Division I (I-J) above, commission charter schools — and the three appellee schools in particular — are different from "common," "general," or "ordinary" K-12 public schools in Georgia in multiple ways. Most significantly, each charter school is individually created by the Commission, exercising authority delegated by the General Assembly. They are established outside a local school system, pursuant to an individualized, performance-based contract, and the schools are not required to abide by all of the statutes and regulations that ordinarily govern public education. The charter schools are also different from ordinary public schools in the way they are managed, overseen, and funded.
Tellingly, the majority gets around to mentioning the "natural and ordinary meaning" principle of constitutional interpretation only as a "final" consideration in its opinion, see Maj. Op. at 12 — and even then it studiously avoids reference to any dictionary or other source of ordinary understanding, because those sources demonstrate that "special" just means different from the norm. The majority contends that "special" in this context means "special student body" or "special curriculum." Id. at 13. The first of these restrictive definitions is also proposed by the local systems, who argue that "special schools" has the narrow connotation of "special needs schools," "special education schools," or "special student schools."
It would have been easy, of course, for the drafters of the 1983 Constitution (or the 1966 Amendment or 1976 Constitution, for that matter) to include such limiting adjectives, if such a limitation were intended. But they did not do so. The local systems and the majority say that we need to look to other principles of interpretation to find the limited meaning, and we will examine and reject those arguments below. But it is important at the outset to identify a gaping hole in both the local systems' and the majority's textual arguments.
The Local Systems' Incomplete Restrictive Meaning and the Majority's Illogical Restrictive Meanings
Whatever "special schools" means in the 1983 Constitution, no one has argued that it is narrower than the three examples that were listed in the 1966 Amendment and 1976 Constitution and then deleted in 1983 — "vocational trade schools, schools for exceptional children, and schools for adult education."
But at least the local systems are respectful of the English language; the majority, searching for a way around this problem, is not. In theory, the word "special," as used to modify "schools," could have the limited meaning "special student body." Or it could have the limited meaning "special curriculum." But students and curricula are two very different things — and they are only two of the many characteristics that could make a school "special." A single adjective used in a single phrase does not normally have two (but only two) limited and different meanings. Instead, writers trying to convey such dual and limited meanings would be expected to use the additional modifiers the majority inserts into our Constitution today.
Trying to gloss over this defect, several portions of the majority opinion elide the two distinct meanings, indicating that a "special school" must have both a distinctive student body and a distinctive curriculum. See Maj. Op. at 8, 13. But that approach runs into the same problem as the local systems' approach. A school for exceptional students (like the disabled or the gifted) might have unusual students, but teach the standard curriculum; a vocational trade school might have an unusual curriculum, but ordinary students. Both types of schools, however, are unquestionably described in our Constitution with the single adjective "special." This single adjective must have one meaning and must encompass, at a minimum, the diverse types of schools that everyone agrees are "special." There is such a definition — schools are "special" if they are created by the General Assembly separate from the "common" schools established by the local school systems.
The majority's position that what defines a "special school" is its unique students or curriculum, and that what entity creates the school is irrelevant, see Maj. Op. at 18-19, raises another problem too. Many large local school systems have established schools attended only by special needs students; moreover, a local school system could create, perhaps with approval from the State Board of Education or other local districts but without any action by the General Assembly, a local school that is as unique in its student body or the subjects it teaches as any school that could ever be created by the General Assembly or the Charter Schools Commission. Under our Constitution, what would such a school be called? Under the majority's interpretation, the school's unique student body and curriculum would make it a "special school." But our Constitution expressly authorizes only the General Assembly to create a "special school." In my view, a local school for special students is simply another local school, because a "special school" is defined not by its student body or the subjects it teaches, but by its creation by the General Assembly outside of the common county school system. My view, unlike the majority's, is consistent with the ordinary meaning of the words used in our Constitution.
The Absence of "Charter Schools" in 1983
The local systems also contend that because no "charter schools" existed in 1983, commission charters schools cannot possibly come within the meaning of "special schools" as used in the 1983 Constitution. This contention was pressed by the local systems in their initial briefs, although they backed away from it in the briefs they submitted after oral argument and the majority does not give it any credence. That is because it is baseless. The application of the words used in a Constitution is not restricted to things and circumstances that existed at the time it was ratified. Otherwise, to give just a couple of the more obvious examples, the First Amendment to the United States Constitution would not apply to "speech" communicated electronically or digitally or to Jehovah's Witnesses, Seventh-Day Adventists, or the Church of Jesus Christ of Latter Day Saints, none of which yet existed as "religions" in 1791, when the Bill of Rights took effect. Thus, this Court has explained that a constitutional attack on a statute will fail "`if upon analysis it appears that the only novelty in the legislation is that approved principles are applied to new conditions.'"
The proper standard for applying old constitutional words to new circumstances was set forth in
Id. at 22. The question, therefore, is not whether the people of Georgia who framed and ratified the 1983 Constitution contemplated the existence of "charter schools," but rather whether schools that are created by the General Assembly outside the local school systems through individual charters, and that differ from local schools in numerous ways, could come within the meaning of "special schools" as citizens in 1983 understood that term — starting with the ordinary meaning of the words used.
The Constitutional Context
We should not stop with the dictionary definitions of isolated words, however, because it is important to view the words in the context of the legal document in which they appear — another indication of meaning available to any drafter of or citizen voting to ratify a Constitution. See
In particular, the "special schools" concept seems analogous to the longstanding "special legislation" provision, which deals with the relationship between laws that apply generally to the entire State and laws that are specific and limited. See Art. III, Sec. VI, Par. IV (a) ("Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law . . . ."). As discussed in Division I (C) above, in the early 1900's, this Court applied the "general law" provision to negate the General Assembly's efforts to create, by special and local laws, new school districts within counties, because there were general laws establishing the common county school systems and their school districts. See, e.g.,
Because this broader constitutional context does not support its position, the majority ignores it. It discusses only the narrower context of the particular constitutional section at issue. See Maj. Op. at 2-4. That section is appropriate to consider — but it also does not support the majority's position. The majority correctly says that the "special schools" provision of Article V, Section V, Paragraph VII (a) of the 1983 Constitution must be read in conjunction with Paragraph I of that section, which states in full:
This provision is indeed illustrative, as is Paragraph II, which provides that "[e]ach school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law," and Paragraph III, which provides that "[t]here shall be a school superintendent of each system appointed by the board of education who shall be the executive officer of the board of education." (Emphasis added.)
Paragraph VII (a), by contrast, reads:
Read in context, Paragraphs I-III of this section of the Constitution plainly create a public education scheme in which every county, as well as every existing area and independent school system, has an elected board of education and a school superintendent who are charged with establishing, maintaining, managing, and controlling the public schools in their respective jurisdictions (limits). There is no restriction on the types of students these schools can serve or the types of subjects these schools can teach. The General Assembly and the local school systems have very limited authority to alter the school system structure; no new independent school systems can be established, and no consolidation of existing systems can be accomplished except by act of the General Assembly approved by the voters of the affected systems.
But there is something else too. There is in Paragraph VII the grant of authority to the General Assembly to create not new school systems but new schools — "special schools in such areas as may require them." The General Assembly "may" provide for local boards to participate in establishing such schools, but it is not required to do so. Indeed, there is no requirement of local involvement of any kind, with the caveat that local school taxes and bond debt cannot be used to support a special school without local voter approval. Unlike with the school systems, there is no provision for these schools to have a school board or school superintendent, or be to managed or controlled by any local board; instead, special schools are to be operated under regulations issued by the State Board of Education. And like the public schools "establish[ed] and maintain[ed]" by the local school systems, Paragraph VII places no restriction on the types of students these "special schools" can enroll or the types of subjects these schools can teach.
So what is most fundamentally different — "special" — about the "special schools"? The text and context give no reason to think that it is their student bodies or the subjects they teach those students. What makes them unusual is that "special schools" can be created by the General Assembly independent of the local school systems, separate from the schools in those systems and the control and management of their local boards and superintendents. This meaning of "special schools" was indeed indicated as far back as the 1877 Constitution, which used the term "not common schools" to refer to the schools the General Assembly created by special or local law outside the scheme of "common schools" that were established by in every county. See Division I (B) above. To argue against this meaning of "special schools," the majority must depart from the constitutional text and context and natural and ordinary meaning and venture into constitutional history and "technical meaning." But those ventures are no more successful.
The majority's analysis turns on its assertion that "[t]he constitutional history of Georgia could not be more clear that, as to general K-12 public education, local boards of education have the exclusive authority to fulfill one of the `primary obligation[s] of the State of Georgia,' namely, `[t]he provision of an adequate public education for its citizens.'" Maj. Op. at 3 (quoting Ga. Const. of 1983, Art. VIII, Sec. I, Par. I). The majority relies primarily on the language of Article VIII, Section V, Paragraph I, quoted in the previous subdivision, which, the majority alleges, "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." Maj. Op. at 2. 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.
Moreover, while county and independent school boards have existed since the creation of local school systems, and traditionally have been granted substantial authority and autonomy, that is largely a matter of legislative policy, not constitutional dictate. Since 1870, Georgia has had a State Board of Education and a State School Commissioner (or Superintendent) with broad authority to regulate primary and secondary public education pursuant to laws enacted by the General Assembly. See, e.g., Division I (A) above; Ga. Const. of 1983, Art. VIII, Sec. II, Par. II ("The State Board of Education shall have such powers and duties as provided by law."); OCGA § 20-2-140 (providing that the State Board of Education shall adopt a core curriculum for K-12 that local boards of education must follow). Thus, far from being "exclusive" for 134 years, Maj. Op. at 4, local boards' "control over general K-12 public education" in their respective jurisdictions has long been and remains today directed and limited by an extensive set of statutes, see generally OCGA Title 20, Chapter 2 (Elementary and Secondary Education chapter of the Education Code), as well as extensive rules and regulations, see generally Ga. Comp. R. & Regs. Title 160 (rules of the Georgia Department of Education). Indeed, a local system that wants to establish a local charter school must comply with the governing statutes and regulations. See OCGA §§ 20-2-2063; 20-2-2064 (d); 20-2-2064.1 (b).
The reality, as reviewed at length in Division I above and as reflected in the structure of our current Constitution, is that public education in Georgia, including the general primary and secondary education that is its main component, has always been a responsibility divided between the "common" county school systems created by general laws and the entirely separate "independent" or "special" schools and school systems created by special or local laws. The "county" boards of education referenced in the 1945 Constitution's version of the provision on which the majority relies, and the "county and area boards" referenced in the current Constitution, have never had a monopoly on "general" public education in this State, because independent schools and school systems have always existed and overlapped the general county scheme. Only by trying to blend the independent schools into the common county schools and ignoring the powers of the General Assembly and the State Board of Education can the majority try to make its argument.
It is true that the existence of schools independent of the general county systems has sometimes caused problems for public education, particularly for equitable funding, and so the General Assembly's authority to create new schools separate from the common schools has ebbed and flowed over the past two centuries. See Division I (A-G). In particular, since 1945 the General Assembly has been expressly prohibited from creating new independent school systems. However, the constitutional authority to create new schools separate from any local school system was revived with the 1960 "area schools" Amendment (if the affected local systems agreed) and expanded with the 1966 "area schools, including special schools" amendment (if the General Assembly acted and the voters in local districts approved). The 1983 Constitution gave the power to create such "special" schools back to the General Assembly alone (so long as the special schools were not supported with local school taxes or bonds). Moreover, any limitation that might have been indicated by the three specific types of special schools listed in the 1966 Amendment and the 1976 Constitution was eliminated in 1983.
"Special Schools" as a Technical Term of Art
Because the ordinary meaning, context, and history of the 1983 Constitution's "special schools" provision all fail to support the narrow "special students schools" reading that the local systems seek, or the "special students or special curriculum schools" reading that the majority proposes, they must claim that the phrase should be understood as a specialized term of art. However, neither the local systems nor the majority have identified anything about the nature or context of the "special schools" provision that would show that the term was used "in a technical sense," as needed to rebut the presumption that the term carries its ordinary meaning.
References to "Special Schools" in Statutes and Case Law
The local systems direct us to the Adequate Program for Education in Georgia Act of 1974, an important piece of public education legislation which provided that the "[t]he State Board of Education shall annually determine the amount of funds needed for the operation of the State schools for the deaf and blind and such other special schools for exceptional persons as may be established by the State Board of Education." Ga. L. 1974, p. 1045, 1051. The APEG Act indicates that the General Assembly in 1974 understood "special schools" to include "schools for exceptional students" like deaf and blind students. That is no surprise, since "schools for exceptional children" were among the three types of "special schools" specifically listed in the 1966 Amendment. See Division I (F) above. However, this legislation cannot fairly be read as limiting special schools to that single category, because the constitutional amendment enacted eight years earlier also described "vocational trade schools . . . and schools for adult education" as types of special schools.
As discussed in Division I (C) above, in the decades before the term "special school" first appeared in the Constitution in 1966 (as well as in a statute that remains in effect today and a 1981 case from this Court), the General Assembly, this Court, and the Court of Appeals all used the term "special school" to refer to schools and school systems independent of the "common" county school systems — a meaning that is consistent with the ordinary meaning, context, and history of the constitutional provision. In stark contrast, the local systems and the majority have not identified any uses of the term "special school" in our pre-constitutional law that limited it to schools for special needs students or schools teaching special subjects.
I do not contend that these limited examples of pre-1966 usage are overwhelming evidence; then again, I am not the one trying to prove that "special schools" mean something other than what those words ordinarily mean, that some much more limited meaning is so "clear and palpable" as to justify this Court's nullifying as unconstitutional a statute enacted through the democratic process.
Thus, it is truly astounding that the majority — which is seeking to place an extra-ordinary meaning on the term "special school" — derides this evidence of pre-constitutional meaning as "a few brief instances of ill-considered language" and "unrelated to the `special school' provision first incorporated into our constitution in 1966." Maj. Op. at 20. "Special schools" as independently-created schools is how Georgia's legislators and appellate judges appear to have understood and used the term before people much like them drafted the constitutional language. To the majority, however, any evidence undermining its conclusion is simply not "pertinent." Id.
Attorney General Opinions
In a similar vein, the majority drops a footnote saying that "the State Attorney General can[not] determine the meaning of `special schools.'" Maj. Op. at 16 n. 9. Of course, the Attorney General's interpretation of Georgia law is not binding on this Court, but our appellate courts have looked to such opinions as persuasive authority. See, e.g.,
Statements by Drafters of the 1983 Constitution
In construing our Constitution, we also sometimes look to the understanding expressed by people directly involved in drafting the document. See
Like the local systems, the majority cites a few statements by drafters indicating that the "special schools" provision was talking about "vocational schools, et cetera" and would allow the General Assembly to create additional schools for the deaf and blind and other "exceptional children." See Maj. Op. at 9-10. These references to the types of "special schools" that were listed in the then-existing 1976 Constitution, while understandable because constitutional language is often discussed in relation to its current objects, are not limiting. See
More significantly, the evidence is not so one-sided. For example, in a meeting of the Committee to Revise Article VIII in August 1980, Melvin B. Hill, Jr., who served as the Assistant Executive Director of the Select Committee on Constitutional Revision, explained that he did not include a list of the types of special schools in the new draft "because I thought that even a definition of special schools should be provided by [statutory] law." Select Committee on Constitutional Revisions, 1977-1981, Transcripts of Meetings, Committee to Revise Article VIII, Vol. III, Aug. 21, 1980, p. 53. When committee members were asked later in the same meeting if they would like to "specify the kinds of special schools we have in mind," LeAnna Walton responded, "I think this is sufficient. I think when you start naming them you could think of fifty million different kinds. I think it's better not to name them at all, let the laws provide like you say." Id. at 55. Chairman Donald Thornhill responded that he wanted to ensure the term was broad, stating that "[i]f you name one or two, that limits it to them." Id.
The best evidence, of course, is not what various framers said to each other at various points during the process, but what they ultimately drafted together — the actual Constitution that the citizens of Georgia then ratified. The 1983 Constitution deleted the three examples of special schools, indicating that, to the extent those examples ever limited the scope of the term, it had now been broadened to "clearly authoriz[e] the General Assembly to provide by law for the creation of any type of
The Illogical Results of the Majority's Interpretation
The majority's construction of the "special schools" provision also leads to results that are illogical and again contravene basic principles of constitutional interpretation.
If Special Schools Need Only Have a Different Student Body or Teach a Different Curriculum from the Typical Local School in Georgia, the Majority Should Not Strike Down the 2008 Act on Its Face or As Applied to the Appellee Charter Schools
The majority opinion is somewhat cagey about what the "local school" baseline is to which a "special school" is to be compared; it is also inconsistent as to just how different a special school must be in terms of its student body and curriculum. At times the majority speaks of special schools as having to be different in their student bodies and curricula from local K-12 schools in general. See, e.g., Maj. Op. at 12, 14. If the point of comparison is the "average" or "general" or "typical" local school in Georgia, then — as Justice Melton's additional dissent emphasizes — the majority's opinion is wrong both in striking down the Commission Charter Schools Act on its face and in reversing the trial court's judgment as to the three charter school appellees without any as-applied examination of those schools.
It is not clear how one would go about defining the "average" or "typical" local public school in Georgia; the variations between and within school systems across the State — between, for example, urban schools with mostly disadvantaged students, the most well-funded suburban schools, and rural schools in sparsely populated counties — can be enormous. But it is indisputable that the general K-12 local school in Georgia has a student body that includes both boys and girls; there are very few public schools that enroll a student body consisting only of girls, like Ivy Prep.
Similarly, I have seen no evidence that Georgia's "general" K-12 local schools offer "a year round program with multi-age, student-centered classrooms featuring pedagogy that is based on constructivist and multiple intelligence learning" like CCAT. Why is that curriculum not sufficiently different to qualify as "special"? Again, the majority does not say.
If a "special school" is to be compared to the ordinary local school and must only differ to some extent, then the Charter Schools Commission could create all sorts of commission charter schools that should satisfy constitutional scrutiny, even if the three charter schools at issue in this case are not "different" enough to satisfy the majority. If that is the case, the majority errs in striking down the 2008 Act on its face. See
In the normal course of constitutional adjudication, this Court would clearly hold what a "special school" is, and the Commission would then be limited to creating such schools, since the Commission is authorized to create only "special schools" as defined in the Constitution. See OCGA § 20-2-2081 (2) (defining the "commission charter school" as a "charter school authorized by the commission . . . whose creation is authorized as a special school pursuant to Article VIII, Section V, Paragraph VII of the Constitution"). Particularly given the Constitution's broad grant of authority to the General Assembly to "provide by law" for the creation of special schools, this Court would also normally defer substantially to the General Assembly and the administrative commission it has established in deciding whether the differences in students and curriculum proposed by a commission charter school are sufficient.
Moreover, before proceeding to strike down a statute on its face, this Court would normally consider as-applied challenges, in this case the constitutionality of the 2008 Act as applied to create the three appellee commission charter schools. The majority does not describe in any detail the student bodies or curricula of those schools to explain why the students attending or subjects taught at Ivy Prep, CCAT, and Heron Bay are not sufficiently "special" as compared to local schools. The majority does none of this because to do it might leave alive a sliver of the concept of commission charter schools, which the majority instead seeks to eliminate entirely.
If a Special School Must Be "Categorically Different" in Students and Curriculum from Any School that "Local School Boards Are Also Authorized to Create," Then the "Special Schools" Provision Is a Dead Letter
The majority's response to Justice Melton's dissent clarifies, however, that the baseline to which the majority believes a "special school" must be compared is not the average or ordinary local school in Georgia, but any local school that exists or might ever be created in our State — that is, any school that "local boards of education are also authorized to create." Maj. Op. at 23 n.11. Indeed, in rejecting the suggestion that a state chartered school's unique operating charter is relevant, the majority says that, like the children in Lake Wobegon, in Georgia no public school is average. "[E]very general K-12 school has `a unique operating charter' — whether memorialized in writing or merely implicit in the unique nature of each school's faculty, administration and student body." Maj. Op. at 17. Moreover, the majority ultimately concludes that to be a "special school," the school's student body or curriculum must be not just reasonably or even substantially different from any local school's. Instead, the special school "must enroll students categorically different from those at a locally controlled school or teach subjects wholly unlike those that may be taught in locally controlled schools." Id. at 19 (emphasis added).
If that is true, I agree that the majority must strike down the 2008 Act on its face, because no commission charter school could ever be created that meets that demanding test. But if that is true, then it equally true that no "special school" of any kind could withstand such scrutiny, which renders Article VIII, Section V, Paragraph VII (a) of our Constitution a dead letter. This exposes another fundamental defect in the majority's interpretation, because as the majority recognizes, "[e]stablished rules of constitutional construction prohibit us from any interpretation that would render a word superfluous or meaningless." Maj. Op. at 13 (citing
Under the majority's definition, no school can be "special," because the range of students educated in and subjects taught in "general" county and independent school systems across Georgia is nearly boundless. Among other things, every local school system must enroll (and some local districts have entire schools devoted to) gifted, disabled, and other "exceptional students," see OCGA § 20-2-152 (a)-(b), and many local schools also provide adult education and vocational subjects.
To cite just one local school system as an example, along with enrolling a wide array of special needs students and teaching an enormous variety of subjects in its regular schools, the DeKalb County School System has 14 "school centers" including a K-12 school for students with severe and profound multiple disabilities (the Margaret Harris Comprehensive School); an academy for students up to the adult age of 20 who have not been successful in traditional schools but wish to earn a high school diploma (the Gateway to College Academy); and the DeKalb High School of Technology South, which offers technical diplomas and seals. See generally http://www.dekalb.k12.ga.us/schools/centers/index.html (DeKalb County School System website).
Indeed, this defect in the majority's interpretation extends to one type of school that the appellant local systems have always said, and the majority seems to acknowledge, are the quintessential "special school" — schools for blind and deaf children like the Georgia School for the Deaf, the Georgia Academy for the Blind, and the Atlanta Area School for the Blind. Those schools teach their students subjects like reading, math, and science that are included in Georgia's general primary and secondary school curriculum — subjects not different, much less "wholly unlike those that may be taught in locally controlled schools." Maj. Op. at 19. And not all deaf and blind students attend those three area schools; some attend their local schools, which are required by state and federal law to provide public education to such disabled students. See OCGA §§ 20-2-133; 20-2-152; 20-2-281; 20 USC § 1400 et seq. (the Individuals with Disabilities Education Act). Thus, schools that enroll only blind and deaf students do not "enroll students categorically different from those at locally controlled schools." Maj. Op. at 19. Just as they are authorized to create a single-sex school like Ivy Prep, "local boards of education are also authorized to create" a school for deaf or blind children, and so, under the majority's view, such schools cannot be "special." Maj. Op. at 23 n.11. Fortunately, the three existing schools created outside the local systems to educate Georgia's deaf and blind children should survive the majority's opinion, under the Constitution's grandfather clause for special schools created prior to 1983. See Ga. Const. of 1983, Art. VIII, Sec. V, Par. VII (b). But four judges of this Court have decreed that there shall be no more of them.
As noted in Division I (I) above, the local systems have never challenged the constitutionality of the Charter Schools Act of 1998 or the "state chartered special schools" created under that act — which, unlike the 2008 Act, has no effect on the state and federal funds that the local systems receive. Nevertheless, and notwithstanding the majority's purported disclaimer, see Maj. Op. at 5 n.5, it is clear that the majority's conclusion applies equally to invalidate those state-chartered schools, whose student bodies and curricula do not (and could never) meet the majority's test. I expect that this will come as a surprise to those schools and the many parents who have enrolled their children there.
The ordinary meaning of the constitutional text, its context and history, prior usage, and basic language and logic all support the conclusion that "special schools," as that phrase is used in the 1983 Constitution, are simply individual public schools that are created by the General Assembly separate from the general county and area school systems. Special schools certainly may include schools for students with special needs, like the existing area schools for blind and deaf children, and schools that teach special subjects, like vocational trade schools. But the Legislature's authority is not limited to creating those two types of special schools.
It is hard to understand why the majority is so determined to eviscerate the special schools provision. Running through the majority opinion, however, are several obvious policy views. First, there is the view that local boards of education should have "exclusive" control over general K-12 public education. Local school boards have broad control over the schools in their districts. As demonstrated above, however, it is incorrect as a matter of both history and current law to say that such control is "exclusive" of the General Assembly and the State Board of Education and that no schools providing regular primary and secondary public education have been created or can be created outside the scheme of local (county and area) school systems established by the Constitution. The General Assembly has created schools and school systems independent of the common county systems since the early years of this State, and the 1983 Constitution restored its power to create such special schools (but not school systems) without any local system approval or participation.
The majority also repeatedly expresses concern that the General Assembly will use its authority to create "special schools" to "duplicate the efforts of local boards of education in establishing and maintaining general K-12 schools." Maj. Op. at 3. But unless such duplication is deemed to exist whenever an individual special school resembles any local school that exists or could be created in the State — in which case there can be no "special schools" at all, as discussed in the previous subdivision — no significant duplication exists to date. As noted at the end of Division I above, well under 1% of the almost 2,300 public schools in Georgia are commission charter schools, state chartered special schools established under the 1998 Act, or area schools for the deaf and blind. That is hardly "duplication" of the local school systems — the 99% component of K-12 public education.
Moreover, no substantial duplication is ever likely to exist without amendment of the Constitution. The number of special schools is unlikely to grow exponentially, in part because "special schools" must be created as individual schools, rather than part of a school system. Even if commission charter schools prove successful and popular, it would be impractical for the Commission to try to control, manage, and operate, on a school-by-school basis, the number of individual schools that would be required to meaningfully duplicate Georgia's existing local schools. The Commission cannot establish schools where and as needed on its own volition, but instead considers whatever charter petitions are submitted; it has no superintendent; and it has no authority to raise funds for the operation of special schools through taxes or borrowing, to set a curriculum, to hire or fire teachers, to provide for student meals and transportation, or to otherwise operate the schools that it charters. See OCGA § 20-2-2083. In addition, the State has no ability to increase the funding available for its charter schools except by increasing taxes statewide. To run commission charter schools as an interconnected system or group of systems that could substantially replicate the local school systems would require a constitutional amendment. Thus, the majority's concerns about "duplication" are both premature and speculative — the type of concerns that cannot justify ruling that a statute like the Commission Charter Schools Act of 2008 is unconstitutional today, on its face. See
Finally, and relatedly, the majority believes that local school systems should not have to "compete" to any extent with commission charter schools or other special schools, i.e., that local schools should have a monopoly on "general" K-12 public education in Georgia. Maj. Op. at 3. As shown above, that belief is not rooted in constitutional law or history. Purely as a matter of policy, it can be argued that public education should be enhanced solely by improving local school systems, including by increasing the number of charter schools established under local control, rather than by shifting any efforts or resources to state chartered special schools. But it can also be argued that public education in Georgia will be improved to a greater extent by having an entity in addition to the local school boards that can authorize charter schools and by creating some schools outside the control of the local systems — or at least that doing so is a worthy experiment.
I do not know which side of that policy debate is correct. I am a judge, not a policymaker, and "`the courts are not permitted to concern themselves with the wisdom of an act,'" only with whether legislation is clearly prohibited by a constitutional provision.
More fundamentally, I recognize that judges have no special competence in education policy and that litigation is ill-suited to gather the sort of information and make the sort of nuanced and balanced assessments required for good social policy. Today's majority disregards the wise remarks this Court made 30 years ago regarding our role in reviewing education legislation:
Some local public school systems (and no doubt some Georgia citizens as well) oppose commission charter schools, and they fear reductions in revenue that will make their important work more difficult. But the local systems are far from defenseless in the political process that shapes education policy in Georgia. Beyond their own political power, the members and constituents of every local school board are also constituents of their state legislators, the School Superintendent, and the Governor, and thus they have considerable influence over how our state government exercises the "special school" authority granted under our Constitution. The majority complains that the Commission is not sufficiently accountable to our citizens, see Maj. Op. at 18, 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." Id. However, under the express terms of the Constitution's "special schools" provision and the statutory formula for funding commission charter schools, see OCGA § 20-2-2090, local school taxes may be used to support a charter school only if the citizens of the local areas affected vote to do so. Not a single dollar of local school taxes goes, directly or indirectly, to commission charter schools. They receive only state and federal funds, and Georgians may hold their state and federal public officials accountable for this expenditure as much as any other use of their state and federal taxes.
But the policy debate and the political process no longer matter. 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.
To all of this, the majority replies, "We have carefully considered the remaining arguments raised in support of the Act by the dissent and find them to be without merit." Maj. Op. at 24. Apparently we must all take it on faith that the majority has convincing responses to the many flaws in its textual, historical, and logical analysis identified above. In reality, the majority's refusal to address those criticisms indicates that it has no persuasive responses. But perhaps the majority's inability to justify its result will prove beneficial in the long run, since it makes it more likely that today's misguided decision will not infect this Court's law in the future. As a former Justice of the Illinois Supreme Court once noted, "an opinion which does not within its own confines exhibit an awareness of relevant considerations, whose premises are concealed, or whose logic is faulty, is not likely to enjoy either a long life or the capacity to generate offspring." Walter V. Schaefer, Precedent and Policy, 34 U Chi L Rev 3, 11 (1966).
Contrary to the majority's untenable opinion, the 1983 Georgia Constitution does not prohibit the creation of the Charter Schools Commission or commission charter schools. Nor do any of the other challenges raised by the appellants have merit. I would therefore affirm the judgment of the trial court, and so I dissent.
I am authorized to state that Presiding Justice Carley and Justice Melton join in this dissent.
Article VIII, Section VII, Paragraph I provided that
And Article VIII, Section XII, Paragraph I provided that