By James P. Kelly and Benjamin Scafidi
Unless and until the Georgia Constitution is amended, the era of direct or indirect state control over public K-12 education is over.
For decades, the state has invested billions of dollars in local public schools. In doing so, the state assumed that the State Board of Education and local public school boards were partners under the Georgia Constitution for providing the adequate public education to citizens required under the Constitution. To render that partnership an effective one, through the years, the legislature has enacted laws, and the state school board has promulgated rulings and regulations, that mandated certain programs and policies at the local school district level.
Along the way, the legislature passed laws permitting local school boards to approve public charter schools to add some innovation, parental and community involvement, and competition in public education. When local school boards started rejecting qualified charter school applicants, the legislature authorized a state charter schools commission to award charters to state-chartered schools that would receive state funding, which would be offset against funds that are normally awarded to local public school districts.
In May 2011, the Supreme Court of Georgia decided that the Georgia Charter Schools Commission Act of 2008 was unconstitutional. In doing so, the Court decided that, since 1877, each Georgia Constitution has granted local boards of education the exclusive right to establish and maintain, i.e., the exclusive control over, general K-12 public education. The Court determined that state-chartered public schools are not “special schools” and, if treated as such, would enable the state to create a system of public schools that would unlawfully compete with local public schools in contravention of the Georgia Constitution.
Because, under the Georgia Constitution as interpreted by the Georgia Supreme Court, local boards of education have exclusive control over K-12 public education in Georgia, the state has no constitutional authority to control, manage, or regulate public education in Georgia. The state-local partnership in K-12 education is officially a one-way street, with state money flowing to local public schools with no strings able to be attached.
By virtue of the Court’s decision, as only a short list of examples, the following state mandates and interventions in local public education would appear to be prima facie unconstitutional:
- Mandating that local public schools teach the nationally recognized Georgia curriculum.
- Mandating that local public schools administer any exams, including state-created exams based on the Georgia curriculum, such as CRCTs, EOCTs, etc.
- Requiring that public schools report financial and academic data to the state.
- Allowing state interventions or sanctions for low academic achievement, educator cheating on state exams, or financial mismanagement.
- Enforcing the 2010 school board governance bill, which was designed to improve local school board performance and accountability.
- Enforcing SB 184, which prevents using seniority as the sole determinant when there are teacher layoffs (also known as “last-in first-out”). This bill has passed both legislative bodies and awaits the Governor’s signature.
- Requiring that Georgia teachers receive fair dismissal rights (tenure).
- Requiring that local public schools have small class sizes.
- Requiring that teachers be paid at least as much as the state salary schedule.
- Requiring that local public schools hire only certified teachers.
- Requiring that state taxpayer funds appropriated for specific programs or projects actually be spent on those programs or projects.
On the surface, the Court’s decision is, philosophically, a conservative one, in that it limits the power of a higher level of government in order to preserve the power of a lower level of government. In theory, if not in practice, a local school board elected by the voters of a community should be more responsive and accountable to those voters than a state school board, the members of which are appointed by the Governor.
Yet, following the conservative line of thought, most voters expect their state government to conduct its core functions in an efficient and effective manner, with scarce taxpayer dollars being used to achieve a maximum “return on investment.” Now that the state has no authority to ensure that local school systems are doing their best to help the state satisfy its constitutional obligation to adequately educate its citizens, prudent legislators must consider other options.
The state is subject to two opposing litigation possibilities: 1) the possibility of lawsuits from teacher groups and local school systems to eliminate unconstitutional state mandates pertaining to local public schools and 2) the possibility of taxpayer and parent lawsuits arguing that, by failing to hold local school districts accountable for results, the state is failing to adequately educate its citizens.
The most effective way for the state to avoid possible litigation would be to amend the Georgia Constitution to restore a meaningful role for the state in K-12 public education.
(James P. Kelly is a Senior Fellow with the Georgia Public Policy Foundation and President of Solidarity Center for Law and Justice, P.C., an Atlanta-based civil and human rights law firm. Benjamin Scafidi is a Senior Fellow with the Georgia Public Policy Foundation and an Associate Professor of Economics and Director of the Economics of Education Policy Center at Georgia College & State University.)