Gwinnett County Sch. Dist. v. Cox

• Decision Date: 16 May 2011
• Docket Number: No. S10A1773.,S10A1773.
• Citation: 268 Ed. Law Rep. 983,710 S.E.2d 773,289 Ga. 265
• Parties: GWINNETT COUNTY SCHOOL DISTRICT et al.v.COX et al.
• Court: Georgia Supreme Court

289 Ga. 265
710 S.E.2d 773
268 Ed. Law Rep. 983
11 FCDR 1734

GWINNETT COUNTY SCHOOL DISTRICT et al.
v.
COX et al.

No. S10A1773.

Supreme Court of Georgia.

May 16, 2011.

West CodenotesHeld UnconstitutionalWest's Ga.Code Ann. §§ 20–2–2081, 20–2–2082, 20–2–2083, 20–2–2084, 20–2–2085, 20–2–2086, 20–2–2087, 20–2–2088, 20–2–2089, 20–2–2090, 20–2–2091, 20–2–2092

[710 S.E.2d 775]

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Statesboro, Susan W. Cox, Charles P. Aaron, Balch & Bingham, T. Joshua R. Archer, Michael J. Bowers, Atlanta, Joshua M. Moore, Smith, Welch & Brittain, A.J. Welch, Jr., McDonough, Santana T. Flanigan, Timothy N. Shepherd, Griffin, Thomas A. Cox, Atlanta, for appellants.McKeena, Long & Aldridge, Bruce P. Brown, Ellen C. Carothers, Jeremy T. Berry, Atlanta, Turner, Bachman & Garrett, Judson H. Turner, Robert L. Fortson, Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant General, for appellees.Harben, Hartkey & Hawkins, Phillip L. Hartley, Martha M. Pearson, Buckley & Klein, Michael E. Kramer, Arnall, Golden & Gregory, Sarina M. Russotto, Atlanta, Gilbert, Harrell, Sumerford & Martin, Mark M. Middleton, Mark D. Johnson, Brunswick, RobbinsFreed, Joshua B. Belinfante, Alexa R. Ross, Atlanta, Andrew W. Broy, amici curiae.HUNSTEIN, Chief Justice.

[289 Ga. 265] This appeal involves a constitutional challenge to the 2008 Georgia Charter Schools Commission Act, OCGA § 20–2–2080 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 [289 Ga. 266] 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, 285 S.E.2d 156, 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

[710 S.E.2d 776]

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, pp. 1026, 1029–1030 § 3 (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. [289 Ga. 267] 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.

(c) In 2008, the General Assembly enacted the Georgia Charter Schools Commission Act ⁵ pursuant to which it established the Georgia Charter Schools Commission, OCGA § 20–2–2082 (“the Commission”), and authorized the Commission, inter alia, to “assist in the establishment of commission charter schools throughout this state.” OCGA § 20–2–2083(b)(1). A “commission charter school” is defined as

a charter school authorized by the [C]ommission ... whose creation is authorized as a special school pursuant to Article VIII, Section V, Paragraph VII of the Constitution. 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.(Emphasis supplied.) OCGA § 20–2–2081(2). The Commission is also charged with the

[710 S.E.2d 777]

duty of collaborating with “cosponsors” ⁶ for “the purpose of providing the highest level of public education to all students, including, but not limited to, low-income, low-performing, [289 Ga. 268] gifted, and underserved student populations and to students with special needs.” (Emphasis supplied.) OCGA § 20–2–2083(b)(12). As the language in the Act and the record in this case reflect, the commission charter schools established by the Commission pursuant to the Act are created to deliver K–12 public education to any student within Georgia's general K–12 public education system. Commission charter schools thus necessarily operate in competition with or duplicate the efforts of locally controlled general K–12 schools by enrolling the same types of K–12 students who attend locally controlled schools and by teaching them the same subjects that may be taught at locally controlled schools.

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

all presumptions are in favor of the constitutionality of an act of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this [C]ourt must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, ... the burden is on the party alleging a statute to be unconstitutional to prove it.

(Citations and punctuation omitted.) Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 38(1), 684 S.E.2d 856 (2009).

(a) “ ‘Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.’ [Cit.]” Clarke v. Johnson, 199 Ga. 163, 166, 33 S.E.2d 425 (1945). As discussed above, at the time the 1983 Constitution was adopted, local boards of education had been constitutionally vested for more than 100 years with the exclusive control over the establishment and maintenance of general K–12 public education. See Division 1(a), supra. The “special schools” were not competitors with locally controlled schools in regard to the education of general K–12 students; rather, the scope of special schools was demonstrated by the examples of “special schools” expressly contained in Georgia constitutions since 1966. Examples of “special schools” were “vocational trade schools, schools for exceptional children, and schools for adult education.” See Ga. L.1966, p. 1030 § 3. As each of these examples of “special schools” helps to demonstrate, the constitutionally significant matters that made a school “special” were a matter directly related to the school itself—its student body and its curriculum. In [289 Ga. 269] light of these long-standing constitutional examples, we recognize that the “conditions existing” at the time of the adoption of the 1983 Constitution...