You are here

Official Opinion 2001-9

Official Opinion 2001-9

November 2, 2001
To: 

State School Superintendent

Re: 

Interpretation of the Charter Schools Act amendment relating to state charter schools

You have asked a number of questions about charter schools created by a charter contract between the State Board of Education (hereinafter “State Board”) and the charter petitioner. The questions arise out of an amendment to the Charter Schools Act of 1998, O.C.G.A. §§ 20-2-2060 through -2071, that allows the State Board to grant a state charter in cases in which the local board of education has refused to approve the charter petition. See O.C.G.A. § 20-2-2064(d) (amended by 2000 Ga. Laws 618, 720-21).

GENERAL DISCUSSION

The Charter Schools Act of 1998 originally provided for a three party contract between the charter petitioner, the local board of education, and the State Board. 1998 Ga. Laws 1080, 1084-85 (amended by 2000 Ga. Laws 618, 720-21). As stated in 1997 Op. Att’y Gen. U97-8, “[c]harter schools are authorized by O.C.G.A. § 20-2-255 to ‘provide a means whereby local schools may choose to substitute a binding . . . performance based contract approved by both state and local boards of education’ for rules, regulations, policies and state statutes. The proposal is brought by the local school system to the State Board through the mechanism of a petition which must include several components, including a ‘proposal to directly and substantially involve the parents of students enrolled in the school as well as the faculty, instructional staff, and the broader community in the process of creating the petition and in carrying out the terms of the charter.’ O.C.G.A § 20-2-255(d)(4).” Id. at 125.

The statutory framework in 1998 was such that a local school board’s approval was necessary before the petition could even be presented to the State Board of Education. See O.C.G.A. § 20-2-2064. Then, in 2000, the General Assembly added subsection (d), apparently to address the problem of local systems’ refusing to approve charters even when they met the criteria set out in the Act. Subsection (d) authorizes the State Board, pursuant to the constitutional authority to create special schools, to grant a state charter when a petition meets the statutory requirements of O.C.G.A. § 20-2-2063 and is in the public interest. O.C.G.A. § 20-2-2064(d); GA. CONST. Art. VIII, Sec. V, Para. VII; see also 1998 Op. Att’y Gen. U98-2.

At the outset it is instructive to examine the actual language of the constitutional provision for a “special school.”

The General Assembly may provide by law for the creation of special schools in such areas as may require them and may provide for the participation of local boards of education in the establishment of such schools under such terms and conditions as it may provide; but no bonded indebtedness may be incurred nor a school tax levied for the support of special schools without the approval of a majority of the qualified voters voting thereon in each of the systems affected. Any special schools shall be operated in conformity with regulations of the State Board of Education pursuant to provisions of law. The state is authorized to expend funds for the support and maintenance of special schools in such amount and manner as may be provided by law.

GA. CONST., Art. VIII, Sec. V, Para. VII(a). In the 2000 amendment, the General Assembly acted pursuant to the above authority and authorized the State Board of Education to create a special charter school. However, the amendment to the Act did not create any new provisions for the management of this new kind of school nor did it specifically state that all of the existing charter school provisions apply to the new schools.

For instance, the Act still provides that a charter is “an academic or vocational performance based contract . . . between the state board, a local board of education, and a charter petitioner.” See O.C.G.A. § 20-2-2062(1) (emphasis added). It could be argued that since the local board has refused to approve the charter it should not be a party to the charter contract when subsection (d) is invoked. However, if the Act is interpreted to “read out”1 any involvement of the local board in the operation of the new charter schools, there is no statutory provision for the mechanics of funding and oversight of the state charter school. Charter schools that have been approved by the local board are governed by O.C.G.A. §§ 20-2-2065(a)(2) (control by local school board) and 20-2-2068(d) (allotment of state grants). Furthermore, such an interpretation would require that other statutory provisions for charter schools be ignored. See, e.g., O.C.G.A. § 20-2-2063(5) (petition must provide for control and management by the local school board). Because of those difficulties, I have concluded that the General Assembly intended that the state charter schools be governed by the same statutory provisions as charter schools that were approved by the local school boards.

In arriving at the meaning of an ambiguous statute, there are several rules of statutory construction that may be used. First, the intent of the legislature must be ascertained, “keeping in view at all times the old law, the evil, and the remedy.” O.C.G.A. § 1-3-1(a). In the absence of any legislative history or other method of determining intent, certain presumptions are utilized as appropriate. One of those presumptions is that the legislature was aware of the state of the law at the time it enacted the legislation in question. See State v. Davis, 246 Ga. 761 (1980). In this case, the legislature is presumed to have had in mind the existing scheme for funding and oversight of charter schools in general and the interpretation of that statute in 1997 Op. Att’y Gen. U97-8. That opinion concluded that it was possible for the General Assembly to create a charter school without the approval of the local board of education by creating a “special school” pursuant to Art. VIII, Sec. V, Para. VII of the Georgia Constitution.

The legislature is also presumed to be aware of the constitutional authority of local boards of education. See GA. CONST. Art. VIII, Sec. V, Paras. I and II.2 With all of these things in mind and intending to correct the problem of a meritorious charter petition that was nevertheless not approved by the local board, the General Assembly may have reasonably concluded that the pre-existing charter school provisions, such as having the local school system oversee the charter school, apply to state charter schools authorized by the State Board of Education pursuant to subsection (d) of O.C.G.A. § 20-2-2064.

Reinforcing that conclusion is the “golden rule” of statutory construction, requiring a court to “follow the literal language of the statute ‘unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.’” Telecom*USA v. Collins, 260 Ga. 362, 363 (1990), quoting Department of Transp. v. City of Atlanta, 255 Ga. 124, 137 (1985) (Clarke, J., concurring). It does not produce an “absurdity” to give meaning to all the terms of the statute and apply the existing provisions of the Charter School Act to the state charter schools. There may be some limited circumstances in which too literal an adherence to this principle might produce an absurdity. For instance, in O.C.G.A. § 20-2-2061(1) the intention of the General Assembly is stated as providing a means for substituting a “performance based contract approved by both state and local boards of education” for state and local rules. Obviously state charter schools will not be approved by a local school board. Instead that intent could be read to include, as a substitute for local approval, the mechanism added by subsection (d) for state approval of meritorious charter petitions. See O.C.G.A. § 20-2-2064(d).

Based on the above general discussion I have concluded that state charter schools are subject to the control and management of local boards. The local school board must treat the state charter no less favorably than the other schools in the district and local school boards must supply local funding except that if a tax levy or bonded indebtedness is required for that funding, it must be approved by a local referendum. In addition, the state charter schools are entitled to federal and state grants on the same conditions as other charter schools. The State Board has been given the power in the Georgia Constitution to promulgate regulations regarding the operation of state charter schools and local boards of education would have to comply.

1.

Are state charter schools subject to the management and control of the local board of education pursuant to Art. VIII, Sec. V, Para. II of the Georgia Constitution? If not, does their creation violate the prohibition against the formation of new independent school systems in Art. VIII, Sec. V, Para. I of the Georgia Constitution?

As discussed above, the Act’s provisions regarding the operation and funding of charter schools should be construed to apply to state charters as well. Thus, the state charter schools are subject to the control and management of the local board of education as the Act requires in O.C.G.A. §§ 20-2-2065 and 20-2-2063(5).

2.

What funds or funding schemes are the state charters granted by subparagraph (d) entitled to? Do they receive state FTE3 funds and other state grant funds, federal funds, and local funds? If they are entitled to these funds, are the funds to be administered through the local board of education where the charter is located or in some other manner?

Since the state charters have the benefits of the same statutory provisions as the local charters, they have the same funding schemes as the local charters do. For instance, state charter schools could qualify for special education funding from the federal government pursuant to 20 U.S.C. § 1411 and for various state grants pursuant to O.C.G.A. § 20-2-2068(d).

3.

Are the state charters to be treated “no less favorably” than other local schools as set forth in O.C.G.A. § 20-2-2068? If so, does this include the provision of local funds?

Since all of the existing charter school statutes apply to state charters, O.C.G.A. § 20-2-2068(d) applies and the local system is obliged to treat the state charter school “no less favorably than other local schools located within the applicable school system.” Id.

4.

Must any state charter granted under the provisions of O.C.G.A. § 20-2-2064(d)(1) meet the same requirements and definitions of other charter schools that are set forth in the Charter Schools Act? Can the state board mandate additional requirements for these state charters?

Yes, the state charter must meet the same requirements and definitions as other charter schools in the Charter Schools Act. The local board has constitutional authority to manage and control schools within its system but its authority is limited by the constitutional provision for special schools allowing the General Assembly to “provide for the participation of local boards of education in the establishment of [special] schools under such terms and conditions as it may provide.” See GA. CONST., Art. VIII, Sec. V. Para. VII. Therefore, the General Assembly may invade the constitutional province of the local school board under the aegis of a coordinate constitutional provision.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General


1 “It is contrary to the generally accepted principles for construing statutes to ‘read out’ any part of the statute as ‘mere surplusage’ unless there is a clear reason for doing so.” Porter v. Food Giant, Inc., 198 Ga. App. 736, 738 (1991).

2 This presumption is confirmed by explicit reference to the “control and management” of the local board of education as a required element of the charter petition in O.C.G.A. § 20-2-2063(5). Those exact words are used to describe the authority of a local board over its school system in Art. VIII, Sec. V, Para. II of the Georgia Constitution.

3 “Full-time equivalent.” See O.C.G.A. § 20-2-160(b).