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
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
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
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
Prepared: May 23, 2011
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