By J. Randolph Evans

On May 16, 2011, the Georgia Supreme Court by a 4-3 margin struck down
as unconstitutional the law that allows a state commission to supplement
local schools with charter schools. For students in charter schools –
like the Ivy Prep School, an all girls school that ‘provides rigorous,
college preparatory program for young women’ (68% African-American and
40% from low income families), the court’s decision dampens the hopes of
thousands (parents and students) to escape a public education system
that has failed generations of students in Georgia. (Notably, as
described in the dissent, “Ivy Prep’s students have outscored their
peers in surrounding school systems on standardized testing, sometimes
significantly, and have surpassed ‘adequate yearly progress’ standards .
. ..”)

Why? Chief Justice Carol Hunstein along with Justices Robert Benham,
Harris Hines, and Hugh Thompson, held that Georgia’s 1983 constitution
vests local boards of education with the “exclusive right to establish
and maintain, i.e., the exclusive control over, general K-12 public
education.”

The Georgia constitution does in fact vest certain governmental powers
in a number of specific boards, offices, and positions. For example,
the 1983 constitution provides that “[t]he legislative power of the
state shall be vested in a General Assembly which shall consist of a
Senate and a House of Representatives.”

“. . . .[T]he State Board of Pardons and Paroles shall be vested with
the power of executive clemency, including the power to grant reprieves,
pardons and paroles; to commute penalties, to remove disabilities
imposed by law; and to remit any part of a sentence for any offense
against the state after conviction.”

“The chief executive powers shall be vested in the Governor.” The list
goes on.

And, when the framers of Georgia’s constitution wanted to vest
‘exclusive’ power somewhere, they clearly knew how to do it. For
example, Georgia’s 1983 constitution states: “The judicial power of the
state shall be vested exclusively in the following classes of courts. .
..”

So, while lightly regarded by many, the framers of Georgia’s
constitution did know how to vest exclusive power when they wanted to.
Where is the language vesting ‘exclusive’ jurisdiction to add schools in
local school boards? Simply, it does not exist.

There is no provision in Georgia’s constitution saying that the power to
create schools “shall be vested exclusively in” local boards of
election. Yes, in the 1983 constitution “[a]uthority is granted to
county and area boards of education to establish and maintain public
schools within their limits.” And, it also says, “[t]he provision of an
adequate public education for the citizens shall be a primary obligation
of the State of Georgia.”

This is not rocket science. How does Georgia’s highest court get
unconstitutional without ‘vested exclusively’ language? Like the
court’s decision striking down caps on excessive non-economic damages
(like pain and suffering), the court left year 2011 and went into
another time warp.

According to the court, Georgia’s constitution must be limited to what
the world was like (using the court’s words – “conditions existing”) at
the time Georgia adopted its constitution.

Really? 1983? How soon they forget.

In 1983, Georgia’s schools were among the worst in and consistently
performed at or near the bottom of all schools in the United States. Is
1983 really where the court wants to lock Georgia into? (Neal Boortz
must be going crazy – a constitutionally protected public school system
that fails?)

Of course, in 1983, computers and the internet were largely unheard of.
Does anyone seriously think that former Speaker Tom Murphy (who probably
never actually turned on a computer in his life) considered and ruled
out a state charter for the boundary-less Odyssey School “whose Georgia
Cyber Academy provides on-line education for students throughout the
State in grades K-10.”?

Really?

Such interpretations give the framers far too much credit. Unlike the
U. S. Constitution which has been in place since its adoption in 1787,
with only 27 amendments, Georgia has adopted 9 new constitutions since
the original Rules and Regulations of the Colony of Georgia (1777, 1789,
1789, 1861, 1868, 1877, 1945, 1976, and 1983). In fact, Georgia’s prior
constitution was only 5 years old when the Georgia legislature approved
Georgia’s current constitution (September 25, 1981). Basically, Georgia
has changed constitutions about as often as UGA and Georgia Tech changes
coaches.

In the real world, it is virtually impossible for Georgia to move
forward when it has a court that keeps taking it backward.

In his dissent, Justice David Nahmias noted, “four judges have wiped
away a small but important effort to improve public education in
Georgia.” Georgia students need all the help and choices that they can
get. The court’s decision is a serious setback for a state trying to do
better.