GWINNETT COUNTY SCHOOL DIST. v. COX
GWINNETT COUNTY SCHOOL DIST. et al.
v.
COX et al.
S10A1773.
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.
1. Gwinnett County School District; the Bulloch and Candler County School Districts; the DeKalb County School District and the Atlanta Independent School System; and the Griffin-Spalding County and Henry County School Districts.
2. Ivy Preparatory Academy, Charter Conservatory for Liberal Arts and Technology and Heron Bay Academy.
3. Art. VIII, Sec. V, Par. I gives the General Assembly authority only to consolidate existing school systems or portions thereof to operate "under the control and management of a county or area board of education."
4. The 1983 Constitution separated area schools from special schools and addressed area schools in Art. VIII, Sec. V, Par. I.
5. "State chartered special schools" established under the Charter Schools Act of 1998, OCGA § 20-2-2060 et seq., are not in issue in this appeal and we intimate no opinion as to their status under the 1983 Georgia Constitution.
6. A "cosponsor" means "a municipality, county, consolidated government, university or college of the board of regents, technical institution of the Technical College System of Georgia, or regional education service agency which has been authorized by the commission ...." OCGA § 20-2-2081 (3).
7. We recognize that comments made during the transcribed meetings indicate that some participants considered "special schools" in the 1976 Constitution to include only vocational trade schools, schools for exception children and schools for adult education because those were the three examples specifically set forth in the 1976 constitution. See Select Committee on Constitutional Revisions, 1977-1981, Transcript of Meetings, Legislative Overview Committee, Vol. I, meeting of June 18, 1981, p. 76 (comment by assistant executive director Melvin B. Hill, Jr.). However, others expressed the notion that the 1976 Constitution did not limit "special schools" to those three examples. See 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, August 21, 1980, p. 56 (comment by participant Vickie Greenberg). In any event, none of the comments reflect any belief that "special schools" might include within its ambit any general K-12 public schools. See infra.
8. We intimate no opinion on whether, even assuming the General Assembly was constitutionally authorized to define "special schools," it could authorize the establishment of general K-12 schools under the guise of "special schools" so as to usurp the exclusive control over general K-12 public schools placed in local boards of education by Art. VIII, Sec. V, Par. I.
9. For this same reason we reject the argument that opinions by the State Attorney General can determine the meaning of "special schools."
10. The opinions are State Bd. of Education v. County Bd. of Education of Richmond County, 190 Ga. 588 (10 S.E.2d 369) (1940), Searcy v. State of Ga., 91 Ga.App. 603 (86 S.E.2d 652) (1955) and Southern School Supply Co. v. City of Abbeville, 34 Ga.App. 93 (128 SE 231) (1925).
11. Although the dissent also argues that the Act is constitutional because it has been properly applied to create a special school, specifically, a charter school for girls only, it does not explain why a single-sex school is a special school given that local boards of education are also authorized to create single-sex schools. See The No Child Left Behind Act of 2001, 20 USC § 7215 (a) (23), (c). See also, e.g., the single-gender schools in the Atlanta Public Schools system. http://www.atlantapublicschools.us/186110108171719813/site/default.asp
1. The Court's extension of its January 2011 Term with respect to this case, pursuant to OCGA § 15-2-4 (b), has ensured that there is adequate time for the Court to consider the issues and opinions presented as well as any motions for reconsideration that may be filed.
2. This dissent focuses on the "special schools" issue relied on by the majority to reverse the trial court's judgment. To affirm the trial court, the Court would also need to consider and reject the many other constitutional and statutory challenges raised by the appellants against the 2008 Act, the Commission, and the commission charter school appellees. Having also studied those issues carefully, I would affirm the judgment on them as well, largely for the reasons given in the trial court's excellent 30-page order.
3. Alternatively, the reader may skip to Division II below, which cites back to specific sections of this background division as they are relevant to specific aspects of the analysis.
4. McDaniel's review of the history of public education in Georgia is very useful and is consistent with the history presented in this dissent. However, the majority is wrong to call it "comprehensive," Maj. Op. at 2, because the McDaniel Court was focused on the funding of public education rather than the meaning of the "special schools" provision of the 1983 Constitution, which was adopted two years after McDaniel was decided.
5. Thus, Article VIII, Section V, Paragraph I of the 1945 Constitution provided that
[a]uthority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education.
Article VIII, Section VII, Paragraph I provided that
[a]uthority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general law . . . . No independent school system shall hereafter be established.
And Article VIII, Section XII, Paragraph I provided that
[t]he fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the County Board of Education) upon the dollar of all taxable property in the county located outside independent school systems.
6. The Georgia Cyber Academy was originally part of the Odyssey School, a brick-and-mortar school in Coweta County that in 2001 became the first state charter school approved in Georgia. The two schools recently had separate petitions approved so that they could become commission charter schools as of July 1, 2011 — or so they thought, there being no such schools after today's decision.
7. These three types of "special schools" appear to be illustrative, not limiting, given that they were introduced by the word "including." To the extent that these examples might have operated to limit the scope of "special schools," however, they were deleted in 1983 and the presumption is that, when limiting language is removed from a law, the law should no longer be read as including such limits. See Transp. Ins. Co. v. El Chico Rests., 271 Ga. 774, 776 (524 S.E.2d 486) (1999) (holding that the legislature's deletion of limiting language when amending a statute must be presumed to be "a matter of considered choice" so that the law cannot be read to maintain the limitation at issue).
8. I recognize the possibility that I may have missed some relevant piece of the historical record. But I have at least tried to cite specific materials from our constitutional history; moreover, because legislation is presumed to be valid, it is the majority that must demonstrate that our constitutional history supports its finding that the Commission Charter Schools Act is "clearly and palpably" unconstitutional.
9. The 1877 Constitution did include a taxation provision allowing the General Assembly to grant to "counties, upon the recommendation of two grand juries, and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation . . . ." Art. VIII, Sec. IV, Par. I (emphasis added).
10. Of course, in earlier periods of our history single-sex public schools were more common, as illustrated by the well-known Boys High School and Girls High School in Atlanta. This raises the added problem, under the majority's approach, of a school that is "special" when it is created but later loses its distinctiveness, in terms of student body or subjects taught, as local schools change. Does a "once-but-no-longer special" school become unconstitutional?
11. Even if the Commission were not abrogated but instead directed to define "special schools" using the majority's narrow interpretation, the creation of commission charter schools would be effectively deterred by the majority's brooding presence as a micromanager of "specialness." Who would want to put in the considerable time and effort needed to organize a charter school — even one with an extremely unusual student body or curriculum — and seek approval for it from the Commission, and what parents would risk enrolling their children in a start-up commission charter school, knowing that a lawsuit and this Court lay lurking in the future, where a few judges might decide that the school was not quite "special" enough in their opinion, rendering the school a nullity and leaving its students to find a new educational home?
12. See, e.g., Georgia Dept. of Educ., CTAE Annual Report 2009, available at http://public.doe.k12.ga.us/DMGetDocument.aspx/CTAE_2009_Annual_Report_final.p df?p=6CC6799F8C1371F682073500733C6C8C2C2F0A3B069682C67F4701BF03730 783&Type=D (report of Georgia's Career, Technical and Agricultural Education program, which coordinates vocational education for grade 6-12 students in public schools statewide).
13. To overstate the threat supposedly posed by commission charter schools to the local school systems, the majority cites the portions of the 2008 Act that say that "[a] commission charter school shall exist as a public school within the state as a component of the delivery of public education within Georgia's K-12 education system," OCGA § 20-2-2081 (2), and that the Commission should collaborate with cosponsors like cities, counties, and colleges "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," § 20-2-2083 (b) (12). See Maj. Op. at 5, 14. These provisions do not direct the Commission to duplicate the entire local public education structure. Instead, the first merely provides that commission charter schools must be in-state public (not private) schools in the K-12 education system (as opposed to the higher education system that is also part of Georgia's public education structure). The second emphasizes that commission charter schools — like every other public school in Georgia — may not discriminate against any type of student and indeed should seek to improve public education for the poor, the needy, and the gifted.