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Unofficial Opinion 98-2

Unofficial Opinion 98-2

January 16, 1998
To: 

Senator
District 14

Re: 

The Georgia Constitution authorizes the General Assembly to create special schools. Pursuant to that authority the General Assembly may create a statutory mechanism by which one school could serve a multi- district area and provide for its governance by a governing board appointed by the local boards of the affected systems.

You have asked for my opinion regarding the constitutionality of a legislative proposal to create a mechanism by which three or more school systems could agree to create an across-system-line school to be governed by its own governing board appointed by the local boards of the affected systems. Because the General Assembly is granted broad authority in the Georgia Constitution to create special schools, it is my opinion that the legislative proposal in question is permissible.

You point out that in 1975 this office issued an unofficial opinion, 1975 Op. Att’y Gen. U75-32, on this subject. That opinion concluded that under the constitutional provision that allows two or more local boards of education to contract with each other for the education of pupils, the local boards may enter into such contracts, but the area school may not be governed by a joint board of education. The opinion relies on the case of Tipton v. Speer, 211 Ga. 886 (1955) to support that conclusion.

The question you pose differs from the situations in 1975 Op. Att’y Gen. U75-32 and Tipton v. Speer in that there the multi-district schools were to be created solely by contract, without the benefit of legislation. However, the General Assembly now proposes to enact legislation authorizing multi-district schools where the local boards agree. That legislation is authorized by the Georgia Constitution.

Pursuant to an amendment ratified in 1960, the Georgia Constitution authorizes that:

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; . . . .

Ga. Const., Art. VIII, Sec. V, Para. VII. This amendment has been held effective to authorize multi-district schools in the case of Cason v. State, 217 Ga. 339 (1961). In addressing a contention that this special school amendment to the constitution conflicted with the “local autonomy” provision of the constitution, the Georgia Supreme Court in Cason held that the special school amendment as “the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision.” Id.

Because Tipton v. Speer and 1975 Op. Att’y Gen. U75-32 conclude that joint management of area schools established pursuant to contract is prohibited because it conflicts with constitutional “local autonomy,” both have limited applicability after 1960. They do, however, still apply whenever local boards contract for across-system-line schools outside the structure of whatever legislation may be enacted.

This instant opinion deals only with the ability of the General Assembly to legislate in the area, which is broad indeed. In addition to the plenary power of the General Assembly to enact laws, Bryan v. Georgia Public Serv. Comm’n, 238 Ga. 572 (1977), it has been given specific authority to set up whatever kind of structure it deems appropriate for the creation of special schools, virtually exempting it from the “local autonomy” and other like educational limitations in the Georgia Constitution.

Based on the foregoing, it is my unofficial opinion that the Georgia Constitution authorizes the General Assembly to create special schools. Pursuant to that authority, the General Assembly may create a statutory mechanism by which one school could serve a multi-district area and provide for its governance by a governing board appointed by the local boards of the affected systems.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General


Ga Const., Art. VIII, Sec. V, Para. V. Article VIII, Sec. V, Para. I of the 1945 Constitution (Code 2-6801) granted authority to “counties to establish and maintain public schools within their limits.” With some differences not germane to this discussion, this “local autonomy” provision is carried forward in the Georgia Constitution of 1983 as Art. VIII, Sec. V, Para. I.