School referendum opponents sue, claiming “misleading” ballot language

Opponents of Georgia’s proposed constitutional amendment to let the state take over low-performing schools have filed a lawsuit in the hope of stopping the measure if it wins at the next election.

Political and legal observers say the suit filed in Fulton County Superior Court Tuesday faces long odds against a ballot question worded for broad appeal to voters. The referendum asks whether the state should be allowed to “intervene” in “chronically failing” schools. It doesn’t mention that a new superintendent answering only to the governor would have authority to take control of those schools and the local tax dollars that flow to them.

The lawsuit seeks a court injunction to block implementation if voters approve the referendum.

The plaintiffs argue that both the ballot question adopted by two-thirds of the General Assembly and an associated “preamble” written by a handful of political leaders are “misleading” and that the wording “propagandizes” the issue. They hope the courts will undo the election if the measure, which will appear on the Nov. 8 ballot as “Amendment 1,” passes.

“They know they’re lying. They know they’re deceiving people,” said the Rev. Timothy McDonald, of Atlanta. The former leader of the Concerned Black Clergy of Metro Atlanta is a veteran of political fights. He was joined in filing the suit by an Atlanta mother and a Coweta County teacher.

The three defendants are top Republican elected officials. One, Lt. Gov. Casey Cagle, said in a statement that he and other leaders must “put our students first, especially those in chronically failing schools.” He lamented how “politicized” the issue has become. As leader of the GOP-dominated Senate, he helped to write some of the language the lawsuit targets, as did Gov. Nathan Deal, another defendant along with Secretary of State Brian Kemp.

The constitutional amendment is a major Deal initiative, and he has shown little patience for critics, including school boards, that have defied him. His office did not respond to a request for comment. But Tom Willis, a former Deal aide who is leading the political campaign to pass the ballot initiative, issued a statement calling the lawsuit “a last-minute media stunt engineered by outside special interest groups in order to generate publicity.” He said the plaintiffs “are playing political games” with the futures of the 68,000 or so students in the more than 120 schools currently eligible to be taken over if the amendment passes.

“It’s unconscionable to hold these students hostage simply to generate news headlines,” Willis said.

Kimberly Brooks, the plaintiff with a child in Atlanta Public Schools, said she got involved in school policy, regularly attending community meetings, after the district’s test-cheating scandal. The district is still imperfect, she said, but at least the superintendent was appointed by a local school board that she helped elect. The governor’s superintendent would be too distant, she said, adding that she believes the constitutional amendment is capitalizing on scandals like the one in Atlanta. “Yeah, we have problems. No one disagrees with that,” she said. “But I believe this was an opportunity for them to take my rights away.”

Georgia has minimal laws dictating how ballot questions should be written, but Gerry Weber, one of the lawyers who filed this lawsuit, said there is court precedent for throwing out a ballot question deemed “affirmatively misleading.”

He said the preamble, which introduces the ballot question and, unlike the question itself, was not voted on by the General Assembly, is his most vulnerable target. It says the state would be empowered to fix failing schools “through increasing community involvement.” The legislation does require community “feedback” and “engagement,” but makes it clear that all major decisions would be made by the new superintendent of the new state Opportunity School District.

No ballot lawsuit has been successful in several decades, including one tried by McDonald four years ago against a constitutional amendment authorizing the state to approve the creation of charter schools. Voters overwhelmingly approved that measure, leading to the creation of the State Charter Schools Commission.

“This is not even as close as the previous cases,” said one observer, Robert Highsmith, a lawyer with a focus in election law who served as legislative counsel to former Republican Gov. Sonny Perdue. Ballot questions are necessarily short, and the courts consider it the voters’ responsibility to educate themselves, he said. “I think this lawsuit has an extremely low likelihood of getting any traction at all.” But Steve Anthony, who recently retired from lecturing on state politics at Georgia State University and served as chief of staff to longtime Democratic House Speaker Tom Murphy, said he thinks the measure has a fighting chance. “The fact that they left out the takeover part, I think, is a good start,” he said.

Weber, the plaintiffs’ lawyer who also handled McDonald’s lawsuit four years ago, admitted he has a hard case to fight. “But,” he said, “we think it’s important for voters to know what this amendment actually does.”

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Staff writer Greg Bluestein contributed to this article.