GWINNETT COUNTY SCHOOL DIST. v. COX
GWINNETT COUNTY SCHOOL DIST. et al.
COX et al.
Supreme Court of Georgia.
Decided: May 16, 2011.
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 systems1 whose 2009 and 2010 complaints were consolidated by the trial court; appellees/defendants are former State School Superintendent Kathy Cox (in her official capacity), the Georgia Charter Schools Commission, its chairperson and members (in their official capacities), the Georgia Department of Education, and the first three schools chartered under the Act.2 Appellants contend, inter alia, that the Act is unconstitutional because it violates the "special schools" provision in the Georgia Constitution of 1983. See Art. VIII, Sec. V, Par. VII (a). Because our constitution embodies the fundamental principle of exclusive local control of general primary and secondary ("K-12") public education and the Act clearly and palpably violates Art. VIII, Sec. V, Par. VII (a) by authorizing a State commission to establish competing State-created general K-12 schools under the guise of being "special schools," we reverse. 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 McDaniel v. Thomas, 248 Ga. 632 (285 S.E.2d 156) (1981) (setting forth in an appendix, id. at 649-659, a comprehensive review of the history of Georgia public education). Art. VIII, Sec. V, Par. I sets forth the sole delegation of authority in our constitution regarding the establishment and maintenance of general primary and secondary public schools. No other constitutional provision authorizes any other governmental entity to compete with or duplicate the efforts of local boards of education in establishing and maintaining general K-12 schools.3 By providing for local boards of education to have exclusive control over general K-12 schools, our 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 of the children being educated. The 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 the citizens." Art. VIII, Sec. I, Par. I.
(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).4 That paragraph states that
[t]he General Assembly may provide by law for the creation of special schools in such areas as may require them and may provide for the participation of local boards of education in the establishment of such schools under such terms and conditions as it may provide.
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.