STATE CONSTITUTIONS AND CONTROL OF CHARTERS

A look at states with "local control" of K-12 education in their constitutions and what that may mean for charter school "authorization," that is, the process of reviewing applications and approving the opening of charters.

As the funding and oversight of charter schools debates heat up, the question of who---states or local school districts---can authorize charters has come up again, this time before the Supreme Court of Georgia in Gwinnett County School Dist. v. Cox. In its May 16, 2011 ruling, written by Chief Justice Carol Hunstein, the court held that local districts---not the State---have exclusive control over charter authorization in Georgia. The state argued that charters are "special schools," as defined in Georgia, but the court explained in detail why that is not the case.

Similarly back in December 2008, Judge Edward T. Barfield of the Florida First District Court of Appeal authored that court's ruling in Duval County Sch. Bd. v. State Bd. of Educ., declaring that the state could not create a parallel system for chartering schools because local districts have exclusive control. In both cases, a statute creating a state commission to authorize charters was deemed unconstitutional and invalidated.

The common thread in these cases is Florida and Georgia's respective state constitutional provisions giving local districts exclusive control over schools within their district.

The majority of state constitutions appear to vest control over K-12 education in the State. However, four more states: Kansas, Maine, Mississippi, and Montana vest that power in local school districts. The respective constitutions provide in relevant part:

Florida: "In each school district there shall be a school board ... the school board shall operate, control and supervise all free public schools within the district ... ." Fla. Const. Art. IX, 4 (a)-(b).

Georgia: "Authority is granted to county and area boards of education to establish and maintain public schools within their limits." Ga. Const. Art. VIII, V, Para. I.

Kansas: "Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards." Kan. Const. Art. 6, 5.

Maine: "A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools." Me. Const. art. 8, Pt. 1, 1.

Montana: "The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law." Mont. Const., Art. X 8.

Mississippi: "NOTE: Former Section 205 empowered the Legislature to establish and maintain free public schools and the term or terms thereof in each county of the state. The repeal of Section 205 of Article 8 of the Mississippi Constitution of 1890 was proposed by Laws, 1987, Ch. 671 (House Concurrent Resolution No. 9), and upon ratification by the electorate on November 3, 1987, was deleted from the Constitution by proclamation of the Secretary of State on December 4, 1987." Miss. Const. Art. 8, 205.  

Even though Florida and Georgia are on the short list of states to invalidate state commissions intended to authorize charters, it will be interesting to see what the future holds for the other four states. In April 2011, Montana House Bill 603, which would have created a commission to authorize charters in that state, died in committee. Currently, the state of Montana has no charter schools.

In Kansas, the authority to authorize charters is in the hands of local school boards of education, under K.S.A. 72-1904.

In January 2011, Maine Senate Bill LD 1553 was introduced to create a "State Charter School Commission," which would have the power to authorize charters. Presently, there are no charter schools in the state of Maine. The bill has yet to be voted on, but if it passes, it could engender a challenge under the Maine Constitution.

Mississippi is unique in that its current charter school statute, passed in 2010, allows for "conversion charter schools" only. These schools must be "chronically under-performing" to be converted to operation under a contract between the State Board of Education and a "local management board" of a "conversion charter." Miss. Code Ann. 37-165-5. However, the conversion charters remain a part of the local school district. Therefore, the Mississippi State Board of Education might argue that it is exercising its supervisory authority to "help" underperforming schools.

It is important to note that the Mississippi Constitution does not explicitly vest control of K-12 education in local school districts. However, it may be that with the repeal of Miss. Const. Art. 8, 205 (which once vested exclusive control over K-12 education in the state) that power shifted to local school districts.

Prepared: May 23, 2011