Charter School Authorizer At State Level Deemed Unconstitutional In Georgia

A Georgia Supreme Court decision that challenges a state commission's ability to greenlight the creation of charter schools may have implications for other states seeking to do the same.

Or it may not -- it all depends on the language of their constitutions.

On Monday, Georgia's Supreme Court decision deemed the Georgia Charter Schools Commission -- a state commission that authorizes the creation of charter schools -- unconstitutional, striking down a 2008 law that gave the state the power to create the commission in the first place and allowed the commission to fund charter schools with money that would have otherwise paid for public schools in local districts.

In Georgia, the law arose as an alternate route for allowing the creation of charter schools, which are publicly funded and can be privately run. Georgia's charter school law, passed in the early 1990s, initially gave only local school boards and the state board of education the power to approve the conversion of standard public schools into charter schools, according to the Augusta Chronicle. That law gradually changed, allowing for the creation of startup charter schools -- whose applications local school boards would deny time and time again. In 2008, the state passed a law that established the Georgia Charter Schools Commission and gave it the power to approve and fund charter schools.

Seven large school districts challenged the law, and the court today deemed it unconstitutional because it claimed that charter schools did not fit the Constitution's definition of "special schools" that receive funding. The decision limited the definition of "special schools" to include schools designed to serve the disabled.

Most immediately, the decision is affecting the 17 charter schools authorized by the Georgia state charter commission that were scheduled to open their doors this August, and calls into question the status of open, already-functioning charter schools approved by the state commission.

Beyond Georgia's borders, though, the decision has ramifications for states trying to augment independent charter-school authorizing commissions -- but only if the language in their constitutions is as restrictive as Georgia's.

The decision comes after the federal government increased pressure on states to increase school choice, said Luis Huerta, associate professor of education and public policy at Columbia University's Teachers College. "With Race to the Top funding, many states started lifting the amount on the number of charter schools permissible in their states," Huerta said, referring to the national competition for education grants. "It was a result from what we can call pressure from the fed, or a response from the states to appear more competitive."

At the same time, Huerta said, states faced a budget crunch. "It's leading states like Georgia in the reverse way: Its locales don't want to send the local portion of their student funding to a state authorizer who has authority over kids in their district," he said. "This might be interpreted as an anti-charter approach, but it also might be seen as local boards being expedient and trying to be publicly accountable."

The decision cuts to the heart of a national debate about the role of charter schools in public education. Advocates say that they provide more choices for students with special needs, or who feel underserved by the local schools that service their neighborhood -- they say that the quality of a child's education should not be determined by zip code alone. Critics assert that the creation of charter schools removes resources from local schools and puts students' fate into the hands of external organizations that may have competing interests.

"There's not a consensus nationwide on how much free market there should be in the K-12 education community," said Mark Hyatt, who oversees state charter-school authorization in Colorado. "Having an independent charter authorizer is really all about allowing parents to have a choice if their local district schools aren't serving them."

Now, Nevada, North Carolina, Maine and Wisconsin are currently trying to set up state-level charter authorizers, according to Sarah Johnson, director of media and agency relations for the National Alliance for Public Charter Schools. About six or seven state-level authorizers already exist, she added.

"This case is important because as a number of states in this country are looking to establish state-level authorizers, they want to know what's come before," Johnson said.

The structure of having a state-level or independent body -- independent of local districts -- as an alternate route to starting a charter school, said Kathy Christie, chief of staff of the Education Commission of the States, allows for more flexibility. "Initially, many local school boards just blew charter schools off as something we don't need to do," she said. "In those cases, the general feeling was that those decisions were rather arbitrary, not based on the merits of the charter that had been developed. It was just an outright no."

So, Christie said, an independent state authorizer developed as an appeals process for charter schools denied a start. "It's not necessarily all about the competition," she said. "It's about providing more options for families."

How much does the decision matter? Michael Simpson, assistant general counsel for the National Education Association, says not much. "I don't think this case means anything at all. It is based on two state-specific statutes," he said. "We don't know how many states have these provisions in their law." He added that the NEA has not litigated against any state-level authorizers.

A potential outcome, said Henry Levin, the William H Kilpatrick Professor of Economics & Education at Columbia University's Teachers College, is that it fuels subsequent charter-stopping lawsuits. "One takeaway would be that a variety of charter school detractors would look carefully at their state constitutions to see how close their language was to the language used in Georgia's," Levin said.

Federal law, Levin added, says "virtually nothing" about who can authorize charter schools. "There's no law that the federal government could pass that could change the outcome in Georgia," he said.

Similar lawsuits have hit Colorado and Florida in recent years. As executive director of the Colorado Charter Schools Institute, Hyatt oversees 8,000 students in 26 of the state's charter schools.

He came into his job in 2010, after the law that created the Institute was challenged in court. "The reason that people don't want a statewide authority [authorizing charter schools] is that the districts don't want competition," Hyatt said. "They want to be in control of what happens in their cities." Colorado won the suit, and the institute remained intact.

In Florida, a similar suit ended with the dismantling of its independent authorizer, Florida Schools of Excellence.

"A lot of people were looking to this decision to understand the importance of having a state-level charter school authorizer," Johnson said. "Given that a similar authorizer was held to be constitutional in Colorado, and another one unconstitutional in Florida, people were paying attention to the way the courts would go in Georgia."

Click here to see how different states approve charter schools.