In the first sentences of an opinion issued last week by the state Supreme Court, Chief Justice Carol Hunstein declared without qualification that the Georgia Charter School Commission was illegal because of an “unbroken ... constitutional authority” existing since the adoption of the 1877 Constitution giving only “local boards of education” the power to create k-12 public schools. As a result, schools for 15,000 underserved children soon may be forced out of business.
But it’s the next sentence in the 1877 Constitution — left out of the court’s opinion — that reveals the true aim of “local control” in education in that era and punctures the logic of disallowing the charter commission a say in education today.
It reads: “Separate schools shall be provided for the white and colored races.”
Arguing law with the Georgia Supreme Court may be above my pay grade. But I do know something about Georgia history. And it is astonishing that the court’s four-member majority, without the tiniest acknowledgement of Georgia’s history of racially abusive statutes, tainted court rulings and educational malpractice with regard to black children, would unblinkingly rely on one of the bleakest moments in the state’s political and legislative past for the foothold of its ruling.
Instead, the majority asserts that on the basis of the “134-year-old status quo,” it was unconstitutional for the Legislature to have created a special commission with the authority to approve public charter schools in districts where local school boards refused to allow them. (The Legislature maintained that such schools are legal under a provision in the Constitution allowing the state to create “special schools;” Hunstein and three other justices found that charter schools are not special enough to qualify.) As a result, 16 schools authorized by that commission have been declared illegal.
Contrary to the court’s opinion, the 1877 Constitution says nothing about granting exclusive authority to “local school boards;” it also references only the creation of elementary schools — not kindergarten or high school as Hunstein wrote.
Far more problematic is that the entire purpose of the constitution of 1877 was to do away with laws adopted just after the Civil War that awarded African-Americans the right to vote, the right to use the courts, other freedoms, and that gave the state Legislature the explicit authority and obligation to ensure the establishment of a system of general education for all Georgia children — no matter what color they were. No such thing previously had existed.
It had been a crime in Georgia to teach a black person to read from 1829 until the end of the Civil War. To the revulsion of many white people, politicians and jurists in Georgia, the first schools opened to African-Americans in the late 1860s and were swarmed with thousands of formerly enslaved black people. During the brief period that they could freely participate in Georgia politics, the Legislature for the first time mandated the widespread establishment of truly public schools — for everyone.
The new Constitution was a white supremacist document specifically designed to reverse those reforms. Its adoption coincided precisely with the withdrawal from the southern states of federal troops who for a decade had preserved the fragile legal rights of slaves freed in the war. Leading the constitutional convention in 1877 was Robert Toombs, the once slave-owning U.S. senator who had led Georgia’s secession from the Union in 1861. Toombs famously called slavery “a mild and humane” system that should have grown from the 4 million people held in 1860 to at least 11 million by 1900.
The Constitution of 1877 — indeed that very sentence that the court’s majority ignored — was a cornerstone for the racial apartheid that dominated and distorted Georgia for the next century. Using the 1877 Constitution, the Georgia Legislature began shifting the power to operate public schools into the hands of white-dominated local school boards that everyone knew could be counted on to rigidly maintain segregation and to woefully underfund schools for black children.
Local school boards funneled the vast majority of education funds and tax collections exclusively into classrooms set aside for white children. Schools for African-American children were so abysmal — some operating for as few as three months a year, without books, desks, and hardly any teachers — that in 1911 the state Department of Education created a “Division of Negro Education” that eventually took over the supervision of schools for 177,000 African-American students.
So much for the court’s alleged “unbroken” record of local school boards having the exclusive authority over schools.
Only with decisive decisions by the U.S. Supreme Court in 1968 and 1969 did local school boards in Georgia begin an authentic dismantling of the segregation mandated in 1877.
Charter schools have proven themselves as a successful mechanism of bringing dramatically stronger educational offerings to children grossly dis-served by conventional public schools. The ultimate irony of the court’s ruling last week is that it is African-Americans, inner-city children and isolated rural students who — yes, 134 years later — are still suffering from the abysmal legacy of 1877 that have benefited most from charter schools. In this ruling, the majority of the Supreme Court stands with one foot on the white supremacist logic of a discredited and horrifying era, while stepping with the other on the backs of yet another generation of ill-served Georgia children. Pray that they did so blindly, and in ignorance.
Douglas A. Blackmon is a founder of an Atlanta charter school, a board member of the Georgia Charter Schools Association and the Pulitzer Prize-winning author of “Slavery by Another Name.”
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