State Supreme Court delays decision on charter case

By D. Aileen Dodd

The Atlanta Journal-Constitution

In a rare move, the Georgia Supreme Court decided Wednesday to delay handing down an opinion over who has the power to fund and open public charter schools.

The constitutional challenge filed by seven local school districts against a state charter school board threatened to derail the education of thousands of students.

A spokesperson for the court said it has the option to delay deciding on certain cases within an established term, but it is "unusual" for the court to do so. No date has been set on when the court may decide the case.

"This is relatively unusual for the court," said Mark Peevy, executive director of the Georgia Charter Schools Commission. "We are still in the same boat. All along we were expecting some sort of split decision."

The two-year legal battle began in 2009 when the Georgia Charter Schools Commission, a state board, got into the business of approving and funding charter schools that were denied by local school boards. The case pit Gwinnett, Bulloch, Candler, DeKalb, Griffin-Spalding and Henry county schools and Atlanta Public Schools against the commission and the state school board.

Georgia's charter school law, which allows the state to give rejected charter petitions a second look, is considered among the country's most progressive. It helped Georgia win $400 million in federal Race to the Top grant funds promoting innovation in education.

But leaders of some of the state's largest school systems say the 2008 Georgia law creating the charter commission is unconstitutional. Georgia is one of only a handful of states with a constitution that gives school boards franchise authority to "establish and maintain" schools. There is a big financial stake for local schools: When the state approves a charter school, potentially millions of dollars leave local school budgets and follow charter school enrollees.

The attorneys in the case said the high court's decision to delay indicates the court's desire to issue a carefully reasoned opinion. Its decision will have wide impact on how Georgia public schools are expanded and funded.

"I think this indicates that the court is split on the issue in some fashion," Peevy said.

Mike Bowers, a former state attorney general, who argued before the state Supreme Court that the commission is illegally approving and funding schools said it is “impossible” to speculate why a decision in the case was delayed.

“They have extended the time until further order – that could be anytime,” said Bowers, who is representing Gwinnett Schools in the case. “I have been practicing law for 37 years and I don’t remember seeing this before. I maintain it’s a big case. Why they have done what they have done, I have no idea.”

So far, the state commission has approved 17 schools -- nine of which currently serve students. Commission schools anticipate a combined enrollment of more than 15,000 students in the fall.

A similar constitutional challenge in Florida went in favor of local school districts and disbanded the alternate authorizer, the Florida Schools of Excellence.

Georgia's 121 charter schools -- most approved by local boards -- educate more than 62,300 students, about 4 percent of the state's public school students. The public school campuses promise the state they'll produce results in student achievement in exchange for flexibility from certain state education mandates. Charter students take state standardized tests and do not pay tuition.

Bruce Brown, who represented charter schools in the case, has said, "The Georgia Constitution is very clear that public education is a shared responsibility of the state and local government." The Georgia Constitution allows the Legislature to create "special schools."

But Bowers, attorney for Gwinnett Schools, argued that only schools for disabled students were considered as "special schools" in 1983 when that provision was written in the state constitution.

Brown said a favorable view of that argument, however, could open state schools, including those in the juvenile justice system, to litigation.

Peevy said he and all of the schools the board approved believe the state Supreme Court will uphold Fulton County Superior Court's May 2010 ruling that the commission is constitutional. If not, he said the commission would help get the students placed.

Peevy said he would be working with legislators and the state Department of Education to see what could be done for the commission schools. They could seek status as state "special charter schools" if the Georgia Board of Education is willing to consider waiving application deadlines and approving them fast.

“The letter of intent for a school to start this coming fall was February 2010 – obviously that deadline is missed,” said Matt Cardoza, spokesman for the state Department of Education.

Cardoza said if State Schools Superintendent John Barge felt it was a priority he could ask the board to “expedite” the approval process, but the commission charters would still have to go through the application process. “The schools weren’t authorized through us.”

Peevy said many of the commission charter schools felt that they could not go back to their local school districts to reapply for approval after already being rejected before. Campuses that draw from multiple districts never had to apply to a single local school board and don’t have a regional option. They would have to downsize.

Some legislators have said they would be willing to suggest fixes to the law to keep the commission schools open and serving students in their care.

“We have already passed crossover day, we would have to work with a bill that already made it across if there was something that we could do here,” Peevy said.