Atlanta's John Marshall Law Journal Volume III Issue II

JOHN MARSHALL LAW JOURNAL

Volume III, Number 2

2010

ARTICLES De Jure, De Facto, & D6ji Vu All Over Again: A Historical Perspective of Georgia's Segregation-Era School Equalization Program Kamina A. Pinder & Evan R. Hanson ...................

165

Rationality & Results: Why School Choice Efforts Endure Despite a Lack of Improvement on Student Achievement Nina Gupta

........................................

199

A Tragic Void: Georgia's Failure to Regulate Restraint & Seclusion in Schools Craig Goodmark

...................................

249

The Constitutionality of the Georgia Charter Schools Commission Law Eric Cochling

......................................

287

COMMENTS Is it Really MySpace? Our Disjointed History of Public School Discipline for Student Speech Needs a New Test for an Online Era Benjamin T. Bradford.

...............................

323

Random Drug Testing in Secondary Schools - Where Does Georgia Stand?

Amanda L. Dixson....

...............................

357

Tightening the Bible Belt: Teaching the Good Book in Georgia's Public Schools Gregory A. Frayser.................................

393

The Universal School Vouchers Roadblock: Constitutional & Public Policy Barriers to School Choice in Georgia Amelia A. Ragan

...................................

423

LEGISLATIVE SUMMARIES Georgia General Assembly 2007 Legislative Session: Senate Bill 10: Georgia Special Needs Scholarship Act .....

Georgia General Assembly 2009 Legislative Session: House Bill 149: Move on When Ready Act .............

House Bill 215: Graduating Everyone Matters Act .........

House Bill 251: Quality Basic Education Act; Intra-District School Choice ................................

House Bill 278: Quality Basic Education Act ..............

House Bill 400: Building Resourceful Individuals to Develop Georgia's Economy Act...................

House Bill 501: Educational Programs; Placement and Promotion Policies for Grades One, Two, Four, Six, and ......................................

Seven House Bill 524: Education; Compulsory Attendance Provisions .............................................

House Bill 649: Quality Basic Education Formula; No Voucher Enforced Unless Funded By General Assembly..

Senate Bill 36: Local Board of Education Code of Ethics ..

Senate Bill 114: Military Dependents in Elementary and Secondary Schools .............................

Senate Bill 231: Education; Establish the PROMISE III Teacher's Scholarship; Provide for Eligibility .................................

Requirements Senate Resolution 153: Education Improvement Districts; Provide Creation and Comprehensive Regulation .........

457 471 481 495 505 519

537 547 555 559 565

575 593

Georgia General Assembly 2010 Legislative Session: House Bill 927: Public Schools Disciplinary Tribunals; Bullying; Expand Definition .......................

603 Senate Bill 90: Education; Provide the Option for Parents to Enroll Their Child in Another School Within the Local 615 ..........

School System or in Private School .......

Cite as John Marshall L.J.

ARTICLES

DE JURE, DE FACTO, & DEJA Vu ALL OVER AGAIN: A HISTORICAL PERSPECTIVE OF GEORGIA'S SEGREGATIONERA SCHOOL EQUALIZATION PROGRAM KAMINA A. PINDER EVAN R. HANSON

........................................

I.

INTRODUCTION

II.

BEFORE SCHOOL EQUALIZATION

...............................

The Creationofa System ofPublicEducation .................................... in Georgia .

B. Georgia'sBlack Students Gain Educational Opportunitiesin the Civil War Era.......................

C. The Georgia Constitution of 1877 Reinforces SegregatedEducation...............................

D. Education in Rural Areas Becomes a Priorityin ........ the ProgressiveEra.....................

166 167

A.

III.

THE SCHOOL EQUALIZATION PROGRAM .....................

A. B.

167 171 172 176 180

The PoliticalImpetusfor the Minimum Foundations 180 Programfor Education................................

183 ........ ...................

MFPE. the The Scope of

* Kamina Aliya Pinder is an Associate Professor of Law at Atlanta's John Marshall Law School. I would like to thank my co-author for coming up with the idea to write this piece. I would also like to thank Timothy Murray for his research assistance, Professor Robert D'Agostino, and the staff of the John Marshall Law Journal. **Evan R. Hanson is a fourth year part-time student at Atlanta's John Marshall Law School. I would like to thank Professor Kamina Pinder, without whom this project would have never come to fruition; my wife, Nancy, and my daughters, Sarah and Catherine, for their support; and the staff of the Georgia Archives.

John MarshallLaw Journal

166 C. IV.

.......................

IMPLICATIONS OF THE MFPE AND SIMILAR PROGRAMS ON MODERN SCHOOL FINANCE REFORM........................

A. B. C. V.

The Impact of the MFPE...

[Vol. III 1 84

186

The ContinuedProblems ofEquitable Spending..................... 186 De FactoSegregationand the Continued 192 Achievement Gap............................... ................ 196 Desegregationas D~jei Vu...........

CONCLUSION

........................................

.......

198

I. INTRODUCTION

The modem school finance litigation movement is largely based on the presumption that school funding is correlative to the academic success of poor and minority children. Although the start of this movement is generally recognized as beginning in 1971,1 its more notable precursors are the southern school equalization programs of the 1940s and 1950s. This article explores the impact of Georgia's historic attempt to preserve de jure segregation2 through a school funding program meant to equalize black and white schools; it then compares that program and its effects to current levels of funding and achievement in Georgia's mostly de facto segregated schools.'

1. School finance reform era is recognized as having three waves: claims based on violations of the United States Constitution's Equal Protection Clause; claims based on inequitable expenditures as violative of state constitutions; and the third, and most current, wave, claims that schools and districts are funded insufficiently to meet a standard of adequacy. See generally Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 56 (1973); Brown v. Bd. of Educ., 349 U.S. 294 (1955).

See also JANE FOWLER MORSE, A LEVEL

PLAYING FIELD: SCHOOL FINANCE IN THE NORTHEAST (State Univ. of N.Y.

Press 2007).

2. "De jure segregation" is defined as "[s]egregation that is mandated or permitted by law." BLACK'S LAW DICTIONARY 1479-80 (6th ed. 1990).

3. "De facto segregation" is defined as "[s]egregation that occurs without state authority usually on the basis of socioeconomic factors." BLACK'S LAW DICTIONARY 1479-80 (6th ed. 1990).

No. 2]

De Jure,De Facto, & D4jd Vu All Over Again

I67

Part II provides a brief overview of Georgia's early system of public education up until 1949, while Part III explores the political factors-with a focus on its dual priorities of preserving segregation and improving education for rural white children-that led to the passage of Georgia's school equalization program, the 1949 Minimum Foundation Program for Education ("MFPE"). This section details the changes the MFPE program brought to Georgia's public school system, including the challenges policymakers faced in implementing the program and its degree of success.

Finally, Part IV demonstrates, through an update on Georgia's public school system, that the educational challenges black and poor children faced during the de jure period of segregation still exist (albeit to a lesser degree) throughout the state's de facto segregated public school system. While it is beyond the scope of this article to propose solutions to low academic achievement in Georgia, it is the authors' hope that this exploration of the history of education funding in Georgia may provoke ideas about how to avoid repeating the mistakes of the past.

II. BEFORE SCHOOL EQUALIZATION A. The Creation ofa System ofPublicEducation in Georgia Georgia's first Constitution of 1777 included a provision that That compelled the state to support public education.' education clause was eliminated from the Georgia Constitution of 17891 but returned in the Constitution of 1798, which provided for "seminaries of learning to be supported by the legislature."' Based on this language, the General Assembly 4. GA. CONST. of 1777, art. LIV; OSCAR H. JOINER, A HISTORY OF PUBLIC EDUCATION INGEORGIA, 1734-1976 14 (gen. ed., R. B. Bryan Co. 1979). In

1783, Georgia established its first academy in Augusta. Id. 5. GA. CONST. of 1789. This Constitution was modeled after the U.S. Constitution; it was the shortest of Georgia's Constitutions with the fewest provisions and did not include the specific directive for education. See The of 1789, The Constitution New Georgia Encyclopedia, (last visited http://www.georgiaencyclopedia.org/nge/Article.jsp?id=h-588 Mar. 22, 2010).

6. GA. CONST. of 1798, art. IV, ยง 13.

168

John MarshallLaw Journal

[Vol. III

issued charters for private academies in several counties;' these academies were not public common schools, but instead, were designed to educate children whose parents were financially able to pay the tuition necessary to attend.' Between 1790 and 1817, any public education monies available for public education went into the academies, and no public funds were allocated to children of parents unable to pay academy tuition.9 By 1817, political leaders began to recognize that an educated populace better served the democratic form of government. 0 That same year, a legislative committee lent its recommendation to the creation of a fund to finance free schools throughout the state." The Georgia legislature responded by establishing a "Poor School Fund" ("Fund") for children of parents unable to pay the tuition of the local academies in 1822.12 The Fund was to be allocated among the counties based on the number of poor children per county, but a year later, Governor Clarke informed the Georgia General Assembly that the $12,000 Fund had not been distributed because so many areas failed to account for the number of poor children."

To many politicians in the state legislature, the Poor School Fund became a "troublesome but necessary evil." 4 The Fund's ad hoc nature led to counties experimenting with their school 7. DIGEST OF THE LAWS OF THE STATE OF GEORGIA 132-34 (Horatio Marbury & William H. Crawford eds., Seymour, Woolhopter, & Stebbens 1802).

8. JOINER, supra note 4, at ix-x, 20. The Academy system, established by legislative action, was based on a curriculum that was classical in nature, stressing mathematics, English grammar, Latin and Greek; and was seen as a preparatory step for attending a university. Id. 9. Id. at 20. While academies may have been chartered by the state, parents were still responsible for tuition, preventing much of the population from accessing education. Id. 10. DOROTHY ORR, A HISTORY OF EDUCATION IN GEORGIA 69 (Univ. of N.C. Press 1950).

I1. Id. 12. JOINER, supra note 4, at ix, 11 (describing the academies and explaining that they provided for no more than three years of basic reading, writing, and arithmetic at public expense).

13. ORR, supra note 10, at 77. Some advocates of education thought the Poor School Fund could be made more effective and inviting to counties by expansion. This led to a $20,000 appropriation for the fund in 1824. Id. 14. Id. at 78.

No. 2]

De Jure,De Facto, & Dijd Vu All Over Again

169

systems," and hardly a year went by without the legislature modifying the law in some form.' 6 In response to the deficiencies of the existing system of school funding, Georgia established "a general system of education by common schools" in 1837.17 The Bill to Establish a General System of Education

by Common Schools proposed to fund education through a distribution of surplus funds from the Federal Treasury" and to combine one-third of the surplus, the Poor School Fund, and the academic fund to finance the new system.' 9 However, economic factors forced the legislature to rescind the Bill before it could come into effect.2 0 Within five years, state economic prospects improved, and, through the "Poor School Law," the state legislature assigned management of the Poor School Fund to justices of inferior courts. 2' These justices, upon recommendation from a grand 15. Id. Houston County attempted to consolidate the Academy Funds with its Poor School Funds, while in Gwinnett County, legislation was adopted to establish free schools in 1826. Id. 16. Id. at 79-80. Among the changes was legislation in 1826 that required the governor to withhold distribution until an accounting of all white children. However, because four counties failed to make such an account, no funds were distributed in 1827. Id. 17. Id. at 92-93. The Common School system of 1837 was at this point The State formed a Georgia's most comprehensive education plan. committee to study the education system of other areas, the New England States in particular, in order to study their school systems. The committee's report was used as the basis for a bill to install a general system of education by common schools, and while the bill passed in 1837, the economic crisis generated by the panic of 1837 led to the postponement of its actual establishment until January 1, 1839. Id. 18. Id. at 89. President Andrew Jackson had been notoriously tough with states that had previously refused to collect tariffs for the federal government; consequently, he was able to pay off the national debt, and the U.S. ran surpluses for several years. JON MEECHAM, AMERICAN LION: ANDREW JACKSON IN THE WHITE HOUSE 167, 298 (Random House 2008).

19. JOINER, supra note 4, at 28.

20. ORR, supra note 10, at 89. The Panic of 1837 was followed by a long depression brought on by excessive speculation, particularly in agriculture.

The prices of cotton, slaves, and land all dropped precipitously, causing Georgia's state bonds to be repudiated and Georgia's access to credit to dry up. Id. 21. Id. at 100-01. The Poor School Law of 1843 also established a permanent fund comprised of 1,744 shares of capital stock in the Bank of the

170

John MarshallLaw Journal

[Vol. III

jury, were authorized to levy and collect an extra tax, to be combined with whatever funds were received from other sources, to add to the Poor School Fund.2 2 Yet, the Poor School Law left an already unstable system of education even weaker; justices often failed to hold grand juries, and, consequently, only fifty-three of ninety-three counties applied for funds.2 3 As a result, in 1850, per-pupil expenditures dropped precipitously to less than sixty-three cents, a four dollar decrease from twelve years earlier.2 4 Furthermore, there was often a failure to appropriate sufficient funds to pay teachers.25 The refusal of justices to account for poor children led the legislature, in 1857, to give the Education Commissioner the power to hold justices in contempt if counts were not made.26 By 1858, there was growing public support for universal public education,27 and the legislative session passed a bill establishing a new plan for the funding of education in Georgia.2 8 Then, a year later, the legislature amended the law to establish local county boards of education to manage schools."

State of Georgia, 890 shares of stock of the Bank of Augusta, and all available assets of the Central Bank; unfortunately, for many years, little from this permanent fund was spent on education. Id. 22. Id.

23. Id. 24. Id. 25. When courts did not convene sessions or grand juries, no taxes were levied, and consequently, districts often did not pay their teachers. See, e.g., Johnson v. Governor, 17 Ga. 179 (1855).

26. 1857 Ga. Laws 9-10. The 1857 law made no provision for maintaining either the academy or the poor school fund. Id. 27. See HELEN FIELDER, A SKETCH OF THE LIFE AND TIMES AND SPEECHES OF GOVERNOR JOSEPH E. BROWN 157, 607-08 (Springfield Printing Co. 1883) (noting that Governor Joseph E. Brown, a vocal promoter of public education for white children in Georgia, argued that a system of schools should be established so that every free white child should have the right to attend); see also ORR, supra note 10, at 157, 173. The period between 1846 and 1860 saw a dramatic turnaround in Georgia's financial fortunes. The price of cotton had risen gradually and steadily since the crash of 1837. This return to prosperity encouraged groups such as the Southern Central Agricultural Society to lobby for a system of common schools. Id. 28. 1858 Ga. Laws 49-51. The 1858 law relied upon a $100,000 annual draw from the net earnings of the Western and Atlantic Railroad to fund schools. Id. 29. 1859 Ga. Laws 29-3 1.

No. 2])

De Jure, De Facto, & Dijd Vu All Over Again

171

B. Georgia'sBlack Students Gain EducationalOpportunities in the Civil War Era The growing support of public education in Georgia did not extend to everyone. At the turn of the 19th century, as was common with states in the antebellum south, Georgia did not provide for the education of blacks; in fact, the laws of the time explicitly prohibited teaching slaves or free persons of color to read.3 0 The first step towards educating blacks in Georgia began in 1864 at a meeting among Secretary of War Henry Stanton, Union General William Tecumseh Sherman, and five or six leading black ministers just after the Civil War.31 Parties to the meeting agreed that there should be free schools available for the freed men, and a short time thereafter, Georgia's first school for blacks was opened in a building that had previously served as a slave market.32 Immediately following the Civil War, the However legislature mandated a free public school system. the act provided that only free white inhabitants between the ages of six and twenty-one were eligible to be students in the new free schools.34 Cities that established public schools under this system focused on the education of white children, leaving the education of blacks to northern charities and the Freedman's Bureau. 3s Later, Georgia's Constitution of 1868 required the State to fund, through poll and liquor taxes, "a thorough system 30. See, e.g., Bryan v. Walton, 14 Ga. 185 (1853). Whites were subject to a fine of $500 and imprisonment in the common jail for teaching freed blacks to read. A free black person who dared teach other freedmen to read was subject to whipping in addition to the fine. Id. 31. W.E.B. Du Bols & AUGUSTUS DILL, THE COMMON SCHOOL AND THE NEGRO AMERICAN 56 (Atl. Univ. Press 1911).

32. Id. While not a public school, this marked the first time a free school was available to teach Georgia's blacks.

33. 1866 Ga. Laws 58-65.

34. Id. at 59. The law also made provisions for the free education of disabled and indigent soldiers of Georgia under 30. Id. 35. ASA H. GORDON, THE GEORGIA NEGRO, A HISTORY 150 (Edwards Bros. 1937). In 1865 the Freedman's Bureau reported that there were 66 schools in Georgia, staffed by 66 teachers and serving 3,500 pupils. The New England Freedman's Aid Society and the American Missionary Association supported 62 schools, while the Union Commission and the Freedman's Aid Society of the Methodist Episcopal Church spent $20,000 on black education in Georgia. Id.

John MarshallLaw Journal

172

[Vol. III

of general education, to be forever free to all children of the State. "36 On October 13, 1870, the Georgia Legislature enacted "An Act to Establish a System of Public Instruction."" The first schools under this new system were opened the following summer (including Georgia's first public schools for blacks)."

These schools were suspended a year later due to a lack of funding 39 as nearly $330,000 of the school funds were appropriated for other purposes. 4 0 From 1871 to 1874, the legislature repeatedly failed to enact a general local tax law to fund public schools.4 1 Conservative southerners saw a system of public education as a symbol of Reconstruction, and many white politicians demanded that only taxes directly paid by black citizens be used to support black schools. 42 The failure to properly fund the public school system led Georgia to revisit public education as a state-wide priority,4 3 and by 1874, every county had some form of publicly-funded education.4 C. The GeorgiaConstitution of 1877 Reinforces Segregated Education In 1877, Georgia adopted a post-Reconstruction constitution that enshrined the concept of racially separate education and 36. GA. CONST. of 1868, art. 2, ยง 1; see supra, note 25 and accompanying text. Later that same year, Congress ratified the Fourteenth Amendment of the United States Constitution guaranteeing equal protection under the law to all persons. U.S. CONST. amend. XIV, ยง 1.

37. 1870 Ga. Laws 49-61.

38. W.E.B. Du Bois & DAVID L. LEWIs, BLACK RECONSTRUCTION IN AMERICA, 1860-1880 651 (Simon & Schuster 1999).

39. Du Bois & DILL, supra note 31, at 56.

40. JOINER, supra note 4, at 82.

41. Du Bois & DILL, supra note 31, at 56.

42. JOINER, supra note 4, at 86. To ensure that white tax dollars were not used to support black schools, the Legislature passed a law in 1874 requiring separate tax returns for blacks and whites and to require the comptroller general to exhibit them separately in his reports. Id. 43. ORR, supra note 10, at 89.

44. GA. P'SHIP FOR EXCELLENCE IN EDUC., EDUCATION POLICY PRIMER:

EDUCATION

IN

GEORGIA

12

(2008),

available

http://www.gpee.org/fileadmin/files/pdf/Education-inGA.pdf EDUCATION POLICY PRIMER).

at

[hereinafter

No. 2]

De Jure,De Facto, & Dija Vu All Over Again

173

provided funding for public schools via state taxes; 4 5 thereafter, Georgia's public education took the form with which it would be associated for almost a century, a system of publiclyfinanced schools segregated on the basis of race.

Georgia embraced the banner of "separate but equal" legitimized by Plessy v. Ferguson,46 but Georgia's racially divided system was anything but equal. In fact, the only education related case the Supreme Court heard between Plessy and Brown v. Board of Education,4 7 which overturned Plessy fifty-eight years later, was a case that began in Georgia.4 8 In that case, Cummings v. Richmond County Board of Education,49 the Richmond County Board of Education closed the county's black high school, yet continued to fund the operation of the county's white high school. 0 The Court rejected the plaintiffs claim that this use of tax dollars violated the Equal Protection Clause of the U.S. Constitution.5 ' Writing for the majority of the Court, Justice Harlan opined that, despite the inequalities of the racially segregated school system, state taxation was a state matter in which the federal government should not interfere unless there was a blatant violation of the Equal Protection Clause and hostility to "the colored population. "52 After Cummings legitimated separate and unequal education funding, racial disparities in education remained pronounced.

45. GA. CONST. of 1877, art. VIII, ยง I (specifying that education need only be "separate" but did not call for equal education and stating "[t]here shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races").

46. Plessy v. Ferguson, 163 U.S. 537 (1896) (affirming state-imposed racial segregation by holding that, so long as the legal and political right of the races were equal, social inequalities did not violate the Equal Protection Clause under the Fourteenth Amendment).

47. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

48. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 45 (Oxford Univ. Press 2004).

49. Cumming v. Bd. of Educ., 175 U.S. 528 (1899).

50. Id. at 530-41.

51. Id. at 543-45.

52. Id. at 545.

174

John MarshallLaw Journal

[Vol. III

Georgia's McMichael Law of 1905 "required that each county be divided into school districts and given the right to vote to tax property for school funds."" The McMichael Law was the culmination of many years of planning by the Georgia Teachers Association to bring local taxation to the entire state of Georgia.5 4 The law, which required the submission of a constitutional amendment, provided that an election could be called in counties without delay and that a tax of "not more than one half of one percent could be levied" if it were approved by two-thirds of the voters.55 However, the broad discretion given to the local school boards by the McMichael Law allowed widespread abuse."6 Furthermore, a majority of the school districts laid out by the McMichael Law either proposed no local taxes, had their proposed taxes defeated at the ballot box, or voted to allow a minimum tax on property of low value leaving insufficient funds for the operation of schools."

Wealthier districts could vote for a minimum tax and still have sufficient revenue to fund their schools.

Moreover, because the local, white school boards controlled the common school fund and local revenues, black schools were dependent on their willingness, or more commonly their unwillingness,5 9 to provide funding for black students.6 0 While the McMichael Law provided that counties could levy taxes to provide for improved elementary schools, no such 53. 1906 Ga. Laws 61-72.

54. ORR, supra note 10, at 260.

55. Id. at 261. Since the McMichael Law required a constitutional amendment to become law, it was not until the next general election, in 1904, that it was ratified by popular vote. County boards of education used the provisions of the act to cordon off the richest parts of a county and levy taxes for only that district. Id. 56. Id. at 260.

57. JOINER, supra note 4, at 222.

58. Id. 59. See, e.g., JOHN DITTMER, BLACK GEORGIA IN THE PROGRESSIVE ERA,

1900-1920 145 (Univ. of Ill. Press 1977) (quoting Resolutions of the Sixteenth Annual Conference, in Du Bois & DILL, supra note 31, at 6-8 (citing numerous disparities between black and white education expenditures including that, in 1905, the average monthly salary of white teachers was $42.85 while black teachers earned an average monthly salary of $19.88)).

60. The state appropriated the common school funds but the local school boards had final control of how those funds were allocated. ORR, supra note 10, at 315.

No. 2]

De Jure, De Facto, & Dijd Vu All Over Again

175

provision was made to establish and support high schools.' In 1912, the Stovall Amendment and the Elders-Carswell Bill responded to that deficiency by expanding the state school system to provide for public high schools,62 again without much consideration (mental or fiscal) to black schools.63 For example, in Atlanta, there were thirty-eight grammar schools, a boys' high school, a high school and commercial school for girls, and five night schools for its 17,000 white children.6r Yet, there were only eleven grammar schools for the slightly more than half of 10,000 black school-aged population actually enrolled in school.65 The per capita expenditure for black schools was $1.71 compared to $15 for white schools.6 6 Along with legitimizing segregation in public schools, Georgia's 1877 Constitution limited state funding to elementary schools and the state university.67 Because education was primarily funded at the local level (with public high schools funded exclusively at the local level), urban schools were more likely to have a stronger system of education while rural schools 61. 1906 Ga. Laws 61-72. By 1903 there were only seven four-year high schools in Georgia, all of which were white. ORR, supra note 10, at 263.

62. The Stovall Amendment struck the restrictive language, which allowed for the support only of elementary education, from the Constitution and allowed at last public support for high schools while the Elders-Carswell Bill appropriated to the local government funds to support high schools.

JOINER, supra note 4, at 179, 201.

63. See EDUCATION POLICY PRIMER, supra note 44, at 12; see also DITTMER, supra note 59, at 144 ("Educational opportunities in the state were so limited that a 1911 Atlanta University study concluded: 'It is certain that of the Negro children 6 to 14 years of age not 50 percent had a chance today to learn to read and write and cipher correctly."'). In 1911, there was no public high school in Georgia for black students. Id. 64. DITTMER, supra note 59, at 14.

65. Id. JR., & CLARENCE C. FERGUSON, 66. ALBERT P. BLAUSTEIN DESEGREGATION AND THE LAW: THE MEANING AND EFFECT OF THE SCHOOL SEGREGATION CASES 103 (Rutgers Univ. Press 1957).

67. EDUCATION POLICY PRIMER, supra note 44, at 12. The Georgia Constitution provided "[t]here shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of

which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races." GA. CONST. of 1877, art. VIII, ยง 1.

John MarshallLaw Journal

176

[Vol. III

barely eked by. 68 There was a marked disparity between the educational funding and achievement of prosperous districts versus their poorer, mostly rural, neighbors; moreover, the more prosperous communities increased their educational advantages as their wealth grew.69 School attendance and graduation rates of white and black schools in rural counties trailed the urban districts, and by the turn of the century, the old Academy system had virtually disappeared, replaced in rural areas by a system of several smaller schools.70 Funding in many rural schools was only sufficient to run the schools for three to five months, and qualified teachers in rural areas left for more populous and prosperous areas, leaving behind only those teachers poorly equipped, poorly paid, and often unqualified for the rural area teaching positions.71 D. Education in Rural Areas Becomes a Priorityin the ProgressiveEra Between 1890 and 1920, rural legislators increasingly recognized the disparities between the state's urban and rural schools, 72 and the Progressive Era educational campaigns of 1900 to 1915 resulted in greater appropriations of funds for the public education of white children in the South.7 3 In 1916, the Georgia General Assembly enacted legislation that made school attendance compulsory for "all children between the ages of eight and fourteen." 74 Three years later, the Georgia legislature passed a constitutional amendment that was the first in a series See generally EDUCATION POLICY PRIMER, supra note 44.

69. ORR, supra note 10, at 250. The great number of small school districts under this system allowed more prosperous districts, including cities and towns to separate themselves from their less fortunate neighbors. Id. 70. Id. 68.

7 1. Id.

72. This period is recognized as the "Progressive Era" and is characterized by a push for governmental reform and increased state services throughout the country. DITTMER, supra note 59, at xi; see also JOINER, supra note 4, at 210. In the Georgia House of Representatives, the charge for better rural education was led by George Carswell who had served several years on the County Board of Education of rural Wilkinson County. Id. 73. KLARMAN, supra note 48, at 45 (noting that local school boards were the arbiters of how school funds were allocated).

74. 1916 Ga. Laws 101.

No. 2]

De Jure,De Facto, & Deji Vu All Over Again

177

of legislative attempts to address the urban-rural disparity; it required counties to "levy a local tax of not less than one nor more than five mills for the support of schools."" Through the Barrett-Rogers Act of 1919, the Georgia legislature appropriated $100,000 to rural school districts to facilitate the consolidation of their many small schools into larger and more efficient schools.76 Additionally, for the first time, the state established a Board of Education comprised of laypeople as opposed to "professional school leaders and ex officio Seven years later, Georgia passed the 1926 leaders.""

Equalization Act, 78 which earmarked a portion of gasoline taxes to equalize educational opportunities among districts.79 Following the Progressive Era of the early twentieth century, the Foundations Movement of the 1930s and 1940s called for an equalization of educational opportunities among white children.so In 1937, the legislature passed the "Seven Month School Law" and the "Equalization of Educational Opportunities Law," which required all schools to have sevenmonth terms, setup a system of local pay supplements, provided for free textbooks, and set specific provisions to equalize financial support to counties and cities.'

While Georgia seemed committed to the improvement of rural schools, the legislature showed minimal, if any, interest in the poor state of black schools. As the Foundations Movement improved education for poor rural white schools, it actually heightened racial disparities because the local school boards

75. 1919 Ga. Laws 66. None of these laws addressed the disparities between black and white schools. In fact, the distribution of public school funds was left to the individual school districts resulting in a continuation of the disparate funding between white and black schools. Id. 76. 1919 Ga. Laws 287-88.

77. Id. 78. 1926 Ga. Laws, Extraordinary Session 39-40.

79. Id. These laws did not address the disparities between black and white schools.

80. Thomas V. O'Brien, Georgia's Response to Brown v. Board of Education: The Rise and Fall of Massive Resistance, 1949-1961 3 (1992) (unpublished Ph.D. dissertation, Emory Univ.) (on file with Hugh F. MacMillan Law Library, Emory Univ.) (noting that the Foundations movement did little to nothing to improve education for black children).

81. 1937 Ga. Laws 882-901.

178

John MarshallLaw Journal

[Vol. III

appropriated the majority of education funds to white schools.82 Consequently, in the late 1930s and early 1940s, things were bad (but improving) for Georgia's rural white students, but worse (and not improving) for black students. In 1940, there were more blacks in Georgia than in any other state (comprising thirty-four percent of the state's population);" yet Georgia provided nominal funds for black schools at a very small percentage of their white counterparts.8 4 For example, by the 1944-1945 school year, black students comprised approximately 34% of public school enrollment, but black schools were allocated only 14% of Georgia's public school funds. 5 This disproportionate distribution of funds left black schools with less than one-fifth of public school funding to allocate among over one-third of public school enrollment.

Consequently, Georgia's black schools were substandard and often lacked the physical improvements and amenities that local school boards allocated to white schools in the same area. 86 Black teachers' salaries were, on average, half that of white teachers, 87 and teachers in Georgia's black schools taught, on 82. KLARMAN, supra note 48, at 45 (noting that local school boards were the arbiters of how school funds were allocated).

83. Aaron Brown, The Education of Negroes in Georgia, 16 J. NEGRO EDUC. 347, 347 (1947) (citing the Sixteenth Census of the United States noting that 360,283 were children between the ages of five and nineteen) (internal citation omitted).

84. ORR, supra note 10, at 312; see also DITTMER, supra note 59, at 145 (noting that "as late as 1930 three fourths of Georgia's Negro public schools were shabby, one-room affairs in remote rural areas").

85. Brown, supra note 83, at 353.

86. ORR, supra note 10, at 314; see also GA. JEANES SUPERVISOR, FINAL REPORT ON DEKALB COUNTY, SCHOOLS (1936) (noting that DeKalb County

had fifteen schools for blacks, with eleven of them having two or fewer teachers). This report also noted that two-thirds of the black schools had pit toilets and that these schools were encountering problems handling large groups without enough teachers. Id. See also Brown, supra note 83, at 347, 349 (observing that "a large percentage" of black elementary schools were housed in "churches and lodge halls").

87. STEPHEN G. N. TUCK, BEYOND ATLANTA: THE STRUGGLE FOR RACIAL EQUALITY IN GEORGIA 1940-1980 15 (Univ. of Ga. Press 2001);

Brown, supra note 83, at 349 ("Annual salaries of white elementary teachers averaged $620 in 1929-1930 while those for Negro teachers averaged $240; in 1944-1945, the white teachers received an average of $1130 while Negro elementary teachers received an average salary of only $540.").

No. 2]

De Jure,De Facto, & D4jd Vu All Over Again

179

average, forty-three students compared to thirty students in white schools." Teacher training was also disparate. During the 1944-1945 school year, black elementary school teachers had completed only an average of two years of college, while white teachers had completed an average of three years. 9 During this time, Georgia's black students received, on average, 153 days of education compared to 170 days for white students. 90 Also, in the mid-1940s, 142 elementary schools for black students met the minimum standards for state accreditation while 864 elementary schools for white students met these same standards. Likewise, 491 white four-year high schools were state accredited while only 90 black four-year high schools were accredited.9 1 The late 1940s brought about great pressure for social change in the country and a push for equality for black citizens. The Roosevelt administration's New Deal, which spurred a federal campaign to help the poor a decade earlier, increased the Increased urbanization number of black professionals. 92 resulted in cities that were less racially restrictive with regard to voting and social separation; moreover, blacks of the urban south had a rising middle class that benefitted from the segregated economy and used its economic power for social change. 93 Blacks recognized more power through increased education (particularly in urban areas) and its corollary ability to engage in successful social protest. 94 The rise of black political power was critical to this rapid social change. In the years after the Smith v. Allwright 95 88. TUCK, supra note 87, at 15.

89. Brown, supra note 83, at 349.

90. Orley Ashenfeler et al., Evaluating the Role of Brown v. Board of Education in School Equalization,Desegregation, and the Income ofAfrican Americans, 8 AM. L. & ECON. REv. 213, 217 (2006).

91. Brown, supra note 83, at 349.

92. Id. at 110.

93. Id. at 103 (also noting that white violence and, more specifically, lynchings were more common in rural than urban areas).

94. Id. ("Illiteracy rates for southern blacks aged ten and over fell from 76.2 percent in 1880 to 26 percent in 1920. In 1900 only about 1,000 blacks attended college in the United States, but by 1930 roughly 20,000 did.").

95. Smith v. Allright, 321 U.S. 649 (1944) (holding that denying blacks the right to vote in primary elections was a violation of the Fifteenth Amendment of the U.S. Constitution).

180

John MarshallLaw Journal

[Vol. III

decision struck down the white primary, black voter registration rose exponentially in the South, with the fastest increase in voter registration occurring in Georgia-from 20,000 in 1940 to 125,000 in 1947.96 After WWII, blacks who had fought for their country and black community leaders were less willing to endure the humiliation of being treated as subhuman.9 7 Concurrently, a black political class with growing confidence moved to increase the quality of black education.98 The rising social consciousness and increasing legal challenges to segregation in education imparted on southern whites a growing recognition that threats to the institutionalized system of segregated schools were inevitable. It was in this political environment that Georgia's school equalization program came into being.

III. THE SCHOOL EQUALIZATION

PROGRAM

A. The PoliticalImpetus for the Minimum Foundations Programfor Education In 1945, Georgia adopted a new Constitution that drastically reshaped the state's education policy by consolidating and reducing the number of school tax districts, increasing the minimum tax rate for schools, and granting the authority to extend public schooling from eleven to twelve grades. 99 The next year, the state embarked on a broad study to identify the problems of Georgia schools and make recommendations for their improvement.100 This study was a cooperative effort of 96. KLARMAN, supra note 48, at 236-53.

97. Id. at 104.

98. O'Brien, supra note 80, at 3.

99. GA. CONST. of 1945, art. VIII. Among the provisions of the 1945

Constitution were a lay board of education, an 85% reduction in the number of school tax districts, a simplification of procedures for voting on school bonds, the professionalization of the office of county school superintendent, the authority to extend the public school system from eleven to twelve grades, and an increase in the maximum tax rate for schools from five to fifteen mills. Id.; see also JOINER, supra note 4, at 387.

100. JOINER, supra note 4, at 387-88 (citing OMER C. ADERHOLD, A SURVEY OF PUBLIC EDUCATION OF LESS THAN COLLEGE GRADE IN GEORGIA: A REPORT TO THE GENERAL ASSEMBLY OF GEORGIA BY ITS SPECIAL

No. 2]

De Jure, De Facto, & Dija Vu All Over Again

18 1

more than 20,000 lay and professional people to assess the deficiencies of Georgia's education system. 0 ' The study led the legislature and chief proponent, Governor Herman Talmadge, to propose the Minimum Foundation Program for Education, a program designed to improve the quality of education for rural white children while maintaining the system of segregated education. 102 Despite the MFPE's affirmation of segregationist principles, staunch segregationists opposed any attempt to improve black education at public expense, going so far as to oppose the spending of any white tax dollars on black education. 03 Former Georgia Speaker of the House and political powerhouse Roy Harris led the opposition; while Harris vigorously supported school equalization for poor rural whites, he preferred dismantling the entire Georgia system of public education to equalizing black and white schools.104 Talmadge in turn argued COMMITTEE ON EDUCATION (1947) and stating the study's recommendation

were of critical importance to the passage of the MFPE. 101. Peggy Steelmon, Growth and Development of the Georgia Education Association, 184 (1966) (unpublished Ph.D. dissertation, University of Georgia) (on file with Horace W. Sturgis Library, Kennesaw State University) (noting that among the deficiencies cited by the study were: "(1) School term of only seven months, (2) Salaries too low, (3) Insufficient numbers of teachers, (4) Inadequate funds for supplies and other operating costs, (5) Not enough aid for transportation, (6) No financial aid for school construction").

102. JOINER, supra note 4, at 387-88. Georgia was not alone in its plans to evade integration via school equalization; both Mississippi and South Carolina instituted similar programs. However, neither Mississippi nor South Carolina's program was of the same scale as Georgia's, and, like Georgia's, both were doomed to failure in their stated goal of preserving de jure segregation. Georgia spent nearly double South Carolina's 75 million dollar building program, which was even larger than Mississippi's program.

Id. See also DAVID ROBERTSON, SLY AND ABLE: A POLITICAL BIOGRAPHY OF JAMES F. BYRNES 507-10 (W.W. Norton & Co. Inc. 1994); Charles C. Bolton, Mississippi's School Equalization Program, 1945-1954: A Last Gasp to Try to Maintain a Segregated Educational System, 66 J. S. HIST. 781, 797 (2000).

103. O'Brien, supra note 80, at 4.

104. Id. at 3; see also BLAUSTEIN & FERGUSON, supra note 66, at 258 (noting that, rather than desegregate, Georgia policymakers proposed to close the public schools and lease their facilities to private owners committed to promoting continued segregation).

182

John MarshallLaw Journal

[Vol. III

that northern "agitators" were attempting to move black children into white schools and that school equalization under the MFPE would perpetuate segregation under the banner of separate but equal.10 Initial attempts to finance the MFPE faltered when a referendum to finance the program was defeated by a three to one vote.106 However, the political climate of 1949 foreshadowed significant challenges to segregation, and as school segregation schemes began to fall to Equal Protection Clause challenges, 0 7 staunch segregationists-perhaps believing that maintaining separate facilities for blacks and whites was more important than ideological opposition to spending white tax dollars on black education-joined Governor Talmadge in pushing the MFPE through the legislature.'0 8 At the 1950 Georgia Democratic Convention, Harris-led delegates voted to support fully funding the MFPE within the separate-but-equal doctrine.'"0 The following year, Governor Talmadge forced a 3% statewide sales tax through the legislature that raised over $200 million for education, and would be used to fully fund the MFPE's equalization of education throughout the state."10 The MFPE forever changed the scope of the state's involvement in 105. O'Brien,supra note 80, at 5.

106. Steelmon, supra note 101, at 192.

107. See, e.g., Sipuel v. Bd. of Regents, 332 U.S. 631 (1948) (requiring that the plaintiff be admitted to the previously all white University of Oklahoma's law school, noting "[t]he State must provide [legal education] for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group"); see also Sweatt v. Painter, 338 U.S. 865 (1949) (granting writ of certiorari to review the Texas Supreme Court's decision that opening a law school for blacks should defeat Sweatt's Fourteenth Amendment challenge to whites-only admissions policy at the University of Texas).

108. Steelmon, supra note 101, at 192. The MFPE passed on February 18, 1949, with one vote against it in the Senate and two dissenting votes in the House. Id. 109. O'Brien, supra note 80, at 3. The NAACP's complaint in Cooper v.

Aaron, 358 U.S. 1 (1958), specifically attacked the issue of inequity in Georgia's funding of black schools and came on the heels of Sweatt, 338 U.S. 865 and McLaurin v. Okla. State Regents, 339 U.S. 637 (1950) (desegregating the University of Oklahoma). Both cases were decided only months before the August 1950 Georgia State Democratic Convention.

Sweatt, 338 U.S. 865; McLaurin, 339 U.S. 637.

110. 1951 Ga. Laws 360-81.

No. 2]1

De Jure,De Facto,& D4jd Vu All Over Again

I183

education and was the first time that Georgia made a serious effort to fiscally support black schools at anywhere near the level of white schools, albeit with goal of preserving de jure segregation."'

B. The Scope of the MFPE The MFPE was built around the concept of using universal minimum standards of funding as a tool for school equalization." 2 Section I of the MFPE declared it was "the public policy of the State of Georgia that educational opportunities for all citizens of this state shall be equalized."' 1 3 Although this language was similar to Georgia's earlier equalization legislation in its stated goal, it was the broad scope and specificity with which the MFPE attacked funding disparities that made it such a revolutionary piece of legislation, particularly in the South. Along with the unprecedented magnitude of state educational expenditures, the MFPE set up a non-discriminatory means of allocating state education funds, even going so far as to require districts to guarantee that funds would be appropriated on a non-discriminatory basis.114 The MFPE also established a nine-month school year"' and gave students in public schools access to free textbooks."'6 It also mandated that teachers, principals, supervisors, and superintendents be certified by the state pursuant to the rules

il. NUMAN V. BARTLEY, THE CREATION OF MODERN GEORGIA 206 (Univ. of Ga. Press 1990). Talmadge used a combination of political armtwisting, the threat of educational integration, and the promise of future prosperity brought about by better education, to garner support for the 3% sales tax. Id. 112. 1949 Ga. Laws 1406-22.

113. Id. 114. R.O. Johnson, Desegregation of Public Education in Georgia - One Year Afterward, 24 J. NEGRO EDUC. 228-30 (1955) (also noting that this program did not address the fact that Georgia still made no provision for blacks in higher education).

115. The Act established that, from and after July 1, 1949, the public schools of Georgia shall be operated for at least nine months during each school year and that each month should consist of twenty school days. 1949 Ga. Laws 1409.

116. 1949 Ga. Laws 1417-18.

184

John MarshallLaw Journal

[Vol. III

and regulations of the State Board of Education.1 7 It provided for calculating Teacher-Pupil Ratios based on population density; however, these ratios were calculated separately for whites and blacks." 8 Large sections of the MFPE were devoted to revenue and expenditures.1 9 The MFPE established the "Minimum Foundation Program Fund" to support the program.12 0 Section six established a minimum teacher salary schedule that did not differentiate among grades or subjects taught.' 2 ' The MFPE gave the State Board of Education the ability to calculate the funding needs of local systems with regards to pupil transportation.' 2 2 It also provided detailed calculations on how expenditures for schools should be calculated, how to determine a locality's ability to pay for these programs, and how the state would fund the difference between a locality's costs and its ability to pay for programs.' The MFPE provided that, should a local unit of administration fail to comply with one or more provisions of the program, the State Board of Education could withhold payments from the MFPE fund until districts were in full compliance.' 2 4 Most significantly, the MFPE set a budget that totaled $96 million for education in Georgia, $69 million of which would come from the state.125 C. The Impact of the MFPE Between 1950 and 1958, the MFPE increased Georgia's expenditures on public education from $53 million to $150 117. 1949 Ga. Laws 1409.

The MFPE required that all teachers, principals, supervisors, or superintendents hold a certificate from the State Board of Education, certifying their qualifications for the position.

However, the certification requirements did not extend to elected county school superintendents. Id. 118. 1949 Ga. Laws 1410.

119. 1949 Ga. Laws 1406-22.

120. 1949 Ga. Laws 1408.

121. 1949 Ga. Laws 1409-10.

122. 1949 Ga. Laws 1411-12. Notably, in calculating the density of pupils per square mile, the law required white students and blacks to be calculated separately. Id. 123. 1949 Ga. Laws 1412-13.

124. 1949 Ga. Laws 1419.

125. 1949 Ga. Laws 1422.

No. 2]

185

De Jure,De Facto, & Dijai Vu All Over Again

million, and by 1961, Georgia was expending more than 50% of its tax revenues on education 126 To facilitate the MFPE's objective of equalizing black schools in order to preserve legal segregation, Governor Talmadge designated more than half the initial spending, approximatley thirty million dollars, to black schools even though black students made up only one third of the total enrollment in Georgia schools.127 The state began an effort to consolidate and expand black schools.128 When Georgia engaged in a $200 million school building program, more than half of those funds went toward construction and improvement of black schools. 12 9 In the 1949 - 1950 school year, there were 1596 white schools and 2310 black schools.' 30 Of the 1300 one-teacher schools in Georgia, 1,254 were black.'"' Within a decade, through school consolidation and building, the total number of schools had dropped to 1,930 (of which there were 341 white high schools and 177 black high schools);132 the number of one-teacher schools dropped to only fourteen.133 Moreover, the MFPE equalized teachers' salaries and effectively ended the disparity between the pay of white and black educators. In the 1949-1950 school year, the average 126. State of Ga., Joint Comm. on Educ., Report on Public Educ.

Expenditures, 101st Gen. Assem 5, 19, 21 (1962).

127. TUCK, supra note 87, at 77.

128. See ANN SHORT CHIRHART, TORCHES OF LIGHT: GEORGIA TEACHERS

& THE COMING OF THE MODERN SOUTH 230 (Univ. of Ga. Press 2005). For

example, Hall County's Oliver's School was transitioned from a general school with grades up to grade eight to an elementary-only school. The influx of state funds also allowed for the provision of buses to transport rural black children of Hall County to the improved schools of the county seat in Gainesville. Id. 129. Letter from T.A. Carmichael, Dir. of Negro Educ., Ga. Dep't of Educ., to Don Rawlins (copy on file with author).

130. GA.

DEP'T OF

SCHOOLS (1959-1960)

EDUC.,

STATISTICAL

SUMMARIES

OF GEORGIA

[hereinafter STATISTICAL SUMMARIES]

(including

statistics from the prior decade).

While it may seem odd that there were more black schools than white schools given their populations, this is merely a statistical aberration caused by the large number of one-teacher black schools.

131. Id. 132. Id. 133. GA. DEP'T OF EDUC., MISCELLANEOUS INFO. ON GA. PUBLIC SCHS.

(Dec. 29, 1960). Four of the fourteen one-teacher schools in 1960 were special schools, not regular one-teacher schools. Id.

John MarshallLaw Journal

186

[Vol. III

teacher earned only $1997 per year.13 4 By 1960, schools for whites employed 23,602.5 teachers, black schools employed 10,123, and average teacher salaries, both black and white, had risen to $3802.'11 IV. IMPLICATIONS OF THE MFPE AND SIMILAR PROGRAMS ON MODERN SCHOOL FINANCE REFORM

A. The ContinuedProblems ofEquitable Spending The tremendous impact of the MFPE could not fully compensate for the much lower starting point of black schools.

For example, during the 1959-1960 school year, black students had lower rates of attendance,' 36 completed school at a lower rate than whites, and often were not promoted to the next grade at the same rate as their white counterparts.3 " By the 1960s, state funding began to decrease under the MFPE. Following the start of school integration in Georgia, the MFPE was reauthorized, with a renewed focus on "minimum" standards in 1964.138

However, throughout the 1960s, the

percentage of education funds supplied by the state declined and by 1971, state support had dropped to 58%, with state funds accounting for only 55% of Georgia education funding over the following three years.'3 9 Subsequently, both black and white students from grades four through twelve increasingly lagged in

academic performance.14 0 After newly-elected Governor Jimmy Carter took office in 1971, he noted that the MFPE was not adequate for financing 134. Id. 135. STATISTICAL SUMMARIES, supra note 130. The 23,603.5 teachers for

white schools include part-time teachers who were counted as fractional fulltime teachers. Id. 136. Id. 137. Id.

138. 1964 Ga. Laws 3-49.

139. McDaniel v. Thomas, 285 S.E.2d 156, 158 (Ga. 1981).

140. JOINER, supra note 4, at 472. Among other problems to be addressed by the APEG was the tendency of some districts to refuse state and federal funds for school consolidation and maintaining a small school system.

DEANNA L. MICHAEL, JIMMY CARTER AS EDUCATIONAL POLICYMAKER 83

(State Univ. of N.Y. Press 2008).

No. 2]

De Jure,De Facto, & D4jd Vu All Over Again

187

the educational needs of Georgia students.141 Carter proposed a new program to address the deficiencies of the MFPE, and the legislature responded, adopting the Adequate Program for Education in Georgia ("APEG") in 1974.142 The APEG was the most comprehensive and constructive Georgia education law to date. 143 It outlined requirements for instructional programs, including special education,'" support services,145 and the financial foundations of the program.14 6 The APEG was funded through local, state, and federal funds.147 Despite its comprehensiveness, the APEG was a relatively short-lived bridge between the segregation era of the MFPE and Georgia's current system of funding public education. In 1983, at the request of Governor Joe Frank Harris, the Georgia legislature established the Education Review Commission. 148 Governor Harris believed that the continued deficiencies of Georgia's education system, plus the innovations brought about by new technologies, demanded that the APEG be reformed.149 Key to the Governor's thinking was the progression from a "minimum" standard of education to an "adequate" education, finally moving to a "quality" education.5 0 It had become clear that the APEG's scheme of apportioning funds strictly on the basis of the number of students was exacerbating funding inequities.'s' Because the APEG did not examine a school 141.

GA. DEP'T OF ARCHIVES, ADDRESSES OF JIMMY GOVERNOR OF GEORGIA, 1971-1975 5 (Frank Daniel ed., 1975).

142. MICHAEL, supra note 140, at 78-84.

143. JOINER, supra note 4, at 476.

CARTER,

144. 1974 Ga. Laws 1047.

145. 1974 Ga. Laws 1057.

146. 1974 Ga. Laws 1069.

147. JOINER, supra note 4, at 500-02 ("Although there had been numerous efforts to reduce or even abolish local support for public schools, the members felt that any effort to modify the property tax should be thoroughly examined in terms of required local effort.").

148.

GA. DEP'T OF ARCHIVES, ADDRESSES OF JOE FRANK HARRIS,

GOVERNOR OF GEORGIA, 1983-1991 (Frank Daniel ed., 1990) (refering to speech of Jan. 11, 1985).

149. Id. at 99 (referring to Joe Frank Harris, Georgia Governor, Speech at the Abraham Baldwin Symposium on History and Government: Georgia Governors in an Age of Change, 1943-1983 (Oct. 30, 1985)).

150. Id. 151. EDUCATION POLICY PRIMER, supra note 44, at 12.

188

John MarshallLaw Journal

[Vol. III

system's financial condition, the large districts that were often the wealthiest were the largest recipients of state funds. 15 2 In the meantime, the problems of inequalities in education funding had not died with segregation. A national school finance reform litigation movement sought to build on the successes of desegregation litigation5 3 to equalize educational opportunity.15 4 When the Supreme Court held in 1973 that education was not a fundamental right under the Equal school Protection Clause of the Fourteenth Amendment,' finance reform plaintiffs brought claims that the disparate spending on public education violated the education and equal protection clauses of state constitutions.'5 6 While plaintiffs initially experienced success, by the late 1970s and early 1980s courts were less inclined to favor plaintiffs in these suits.15 7 It was during this period that the Georgia Supreme Court decided McDaniel v. Thomas.1 8 In McDaniel,the court held that, while Georgia's system of public school funding did in fact result in disparities between rich and poor school districts, educational equity was not a fundamental right under the Georgia Constitution's education or equal protection clauses.5 9 152. Id. 153. See generally Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Cooper v. Aaron, 358 U.S. 1 (1958); Brown v. Bd. of Educ., 347 U.S. 483 (1954).

154. See Michael Heise, Equal Educational Opportunity, Hollow Victories, and the Demise of School Finance Equity Theory: An Empirical Perspectiveand Alternative Explanation, 32 GA. L. REv. 543, 556 (1998).

155. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that the negative impact the Texas school finance system had on poor children enrolled in the public school system did not violate the Equal Protection Clause of the Fourteenth Amendment and that education is not a fundamental right warranting protection under the U.S. Constitution).

156. See generally Robert M. Jensen, Advancing Education through Education Clauses ofState Constitutions, 1997 BYU EDUC. & L.J. 1 (1997).

157. See, e.g., Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 TEMP. L. REv. 1151, 1157-62 (1995) (discussing the mixed record of the second wave of school finance reform and citing plaintiff failures in Shoftstall v. Hollins, 515 P.2d 590 (Ariz. 1973); Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982) (en banc); McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981); and Thompson v. Engelking, 537 P.2d 635 (Idaho 1975)).

158. McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981).

159. Id. at 166-68.

No. 2]

De Jure, De Facto, & Dja Vu All Over Again

189

Accordingly, the Court determined that it was enough for the state to have a rational basis for its funding scheme.1 0 Notwithstanding the Georgia Supreme Court's refusal to recognize equitable educational expenditures as a right, during the 1980s, Georgia adopted academic standards for what children should know and learn' 6' as a part of the current education funding legislation, the Quality Basic Education Act of 1985 ("QBE").162 The QBE provides Georgia's current framework for education funding. 163 Under the QBE's fairshare provision, money is allocated to local districts, not based 160. Id. at 168.

161. GA. DEP'T

OF

EDUC.,

GEORGIA

PERFORMANCE

STANDARDS,

at available https://www.georgiastandards.org/standards/GPS%20Support%20Docs/Curri culum%20Frequently%2OAsked%20Questions.pdf (last visited Mar. 21, 2010).

162. O.C.G.A. ยง 20-2-132 (2009).

163. Id. The QBE resulted from the recommendations of the Governor's Education Review Commission on how to improve the system of APEG. The primary goals of the QBE in its current form are: "(1) A substantial reduction in the number of teachers who leave the teaching profession for reasons of job dissatisfaction; (2) A decrease in the percentage and number of students who enter school but drop out prior to graduation; (3) The elimination of emergency teaching certificates and waivers for teaching outside of specialty; (4) A decrease in the percentage of students who fail the Georgia High School Graduation Test; (5) A significant increase in the test scores of Georgia students who take the Scholastic Assessment Test (SAT) or the ACT Assessment (ACT); (6) An increase in the number of students mastering each skill in reading, mathematics, and other subject areas; (7) An accountability system for education programs that measures efficiency and effectiveness and ensures that programs produce improvement in student achievement scores for all students; (8) A comprehensive program and financial information system that provides data that allow for the accurate evaluation of program effectiveness; (9) A seamless education system that allows students to be served in the most effective and efficient way possible; (10) The elimination of school violence; (11) A decrease in the percentage of students who perform below grade level; (12) An increase in parental and community involvement in schools; (13) Better coordination between education agencies and other organizations providing instructional and related services to students; (14) A more competent school work force through the effective use of evaluation tools, training, and school improvement teams that promote best practices; and (15) More flexibility for high-performing schools so that services can be better adapted to student needs." Id.

John MarshallLaw Journal

190

[Vol. III

based on the number of students, but rather, on how many hours students are in class during a school day.'" The QBE includes provisions setting out the requirements and minimum salaries for teachers' 65 and gives the state Board of Education the ability to establish a core curriculum for all public schools in Georgia.16 6 Perhaps most significantly, the QBE gives the state the power to compel poorly-funded systems to spend more money on programs found deficient.'6 1 Funding under the QBE comes in the form of Equalization Grants,' 6 1 yet the name is somewhat misleading because the grants do not truly equalize funding between districts. Instead, they seek to bring each district up to some minimum (adequate) level of funding.'16 Not surprisingly, in the absence of a legally mandated equality requirement, per-pupil funding varies.'70 By 164.

165.

166.

167.

168.

O.C.G.A. ยง 20-2-161 O.C.G.A. ยง 20-2-212 O.C.G.A. ยง 20-2-140 O.C.G.A. ยง 20-2-165 Id.

(2009).

(2009).

(2009).

(2009).

169. Id.

170. The data from two of Georgia's largest school districts-Henry County and Chatham County-serves as a prime example. In suburban Atlanta, Henry County, with 39,000 students, spends just over $11,000 per pupil. NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., SEARCH FOR PUBLIC SCHOOL DISTRICTS: HENRY COUNTY (2007-2008), http://nces.ed.gov/ccd/districtsearch/index.asp (under "State," select "Georgia", under "County" enter "Henry," and click "search").

The Chatham County School District, which includes Savannah and serves 34,000 students, serves a similarly sized population of students but spends only $9000 per student. NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., SEARCH FOR PUBLIC SCHOOL DISTRICTS: CHATHAM COUNTY (2007-

2008), http://nces.ed.gov/ccd/districtsearch/index.asp (under "State," select "Georgia", under "County" enter "Chatham," and click "search"). The disparities are just as stark in smaller districts. The Quitman County School District which serves just 287 students spends over $16,000 per student.

NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., SEARCH FOR PUBLIC SCHOOL DISTRICTS: QUITMAN COUNTY (2007-2008), http://nces.ed.gov/ccd/districtsearch/index.asp (under "State," select "Georgia", under "County" enter "Quitman," and click "search"). Taliaferro County where 256 students attend public schools, expends just over $12,000 per student. NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., SEARCH FOR PUBLIC SCHOOL DISTRICTS: TALIAFERRO COUNTY (2007-2008), (under "State," select http://nces.ed.gov/ccd/districtsearch/index.asp "Georgia", under "County" enter "Taliaferro," and click "search").

No. 2]

De Jure, De Facto, & Djij Vu All Over Again

191

the early 1990s, the QBE made it possible for the poorest districts in Georgia to close the funding gap, 17 ' yet the QBE is criticized for being underfunded and for allowing the gap between average per-pupil spending in rich districts and average per-pupil spending poor districts to expand. 7 2 The language of the QBE mirrors a shift in the wider school finance reform movement, from equality to adequacy.

Currently, school finance litigation suits are brought not only on equity of expenditures, but also on the premise that expenditures are insufficient to meet state constitutional guarantees of adequate education.173 Georgia is in the midst of adequacy litigation; in 2004, the Consortium for Adequate School Funding in Georgia filed suit against the state, claiming that the QBE formula provided inadequate funding to meet the cost of providing an adequate education.174 It seeks increased funding "in order to meet higher educational standards and new systems of accountability; increased funding for programs for students at risk for academic failure; funding for capital construction; and increased state funding for special education On September 16, 2008, the and preschool education."1'7 Consortium withdrew its lawsuit, but it intends to file a new suit in another not-yet-identified Georgia court.176

171. Betsy White, Study: QBE Law Moderated Inequities in Pupil Spending, ATLANTA J.-CONST., Apr. 2, 1991, at D2.

172. THE JOE FRANK HARRIS YEARS; Highs and Lows; The Ups and Downs of the Harris Administration, ATLANTA J.-CONST., Jan. 7, 1991, at A8.

173. See generally Heise, supra note 154.

174. Complaint at 2, Consortium for Adequate Sch. Funding in Ga., Inc.

v. State, No. 2004CV91004 (Super. Ct. of Fulton County, Ga. 2004), at available http://www.casfg.org/litigation/Ga SchoolFinance-Complaint.pdf.

175. STARTING AT 3, EDUCATION LAW CENTER, SECURING ACCESS TO PRESCHOOL EDUCATION: GEORGIA STATE PRESCHOOL PROGRAM OVERVIEW (last (2008), http://www.startingat3.org/state_1aws/StatelawGAdetail.htm visited Mar. 22, 2010).

176. GEORGIA SCHOOL FUNDING ASSOCIATION: LITIGATION, http://www.casfg.org/litigation (last visited Mar. 22, 2010).

192

John MarshallLaw Journal

[Vol. III

B. De Facto Segregation and the ContinuedAchievement Gap Although the 1954 Brown v. Board of Education decision overturned legitimized segregation, its effects had little immediate impact on Southern schools. From 1955 until 1968, the U.S. Supreme Court (along with the other branches and levels of government) abandoned any efforts to desegregate schools." Georgia did not begin to integrate its public schools until the fall of 1960, and in 1963, desegregation "had yet to expand beyond a few large cities.""'

Since the 1980's, the country-and the South in particularhas steadily reversed its progress towards integration of public schools.17 9 Notably, it was a U.S. Supreme Court case that originated in Georgia that struck a major blow upon the effort to desegregate the nation's public schools.so In the 1992 Freeman v. Pitts decision,' 8' the Court reviewed the Northern District of Georgia's continued enforcement of a 1969 desegregation order that required the DeKalb County School System ("DCCS") to desist in its segregation and inequitable results.'"8 DCCS filed a motion for final dismissal that would effectively result in the District Court's withdrawal of its oversight and recognize the county as officially desegregated.183

177. J. HARVIE WILKINSON III, FROM BROWN TO BAKKE: THE SUPREME 1954-1978 61 (Oxford Univ. Press COURT AND SCHOOL INTEGRATION:

1979) (noting that the period of non-decision ended with Green v. County School BoardofNew Kent County, Virginia, 391 U.S. 430 (1968)).

178. KLARMAN, supra note 48, at 348, 360. This integration occurred in Atlanta and proceeded without incident. Id. 179. See generally GARY ORFIELD, THE CIVIL RIGHTS PROJECT, REVIVING THE GOAL OF AN INTEGRATED SOCIETY: A 21ST CENTURY CHALLENGE

(2009), available at http://www.civilrightsproject.ucla.edu/research/deseg/reviving-the-goal-ml k_2009.pdf.

180. Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that many consider Freeman v. Pitts, 112 S. Ct. 1430 (1992) and Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) to be the cases that signaled the end of "the era of mandatory school desegregation").

181. Freeman v. Pitts, 503 U.S. 467 (1992).

182. Id. 183. Id. at 467.

No. 2]

De Jure, De Facto, & Deja Vu All Over Again

193

DCCS's argument focused on the six categories - student assignments, transportation, physical facilities, extracurricular activities, faculty assignments and resource-allocation - which the Supreme Court in Green v. County School Board,'84 relied upon to determine whether there existed a dual school system DCCS presented evidence to support that it based on race.' met four of those six categories (student assignments, and extracurricular physical facilities, transportation, activities)18 6 despite the fact that in 1986, the year that the DCCS filed its motion, the DCCS was fourth, among the country's largest districts, in the decline of white students and second in its proportional increase of black students.'8 7 The Respondents argued that the Court should continue to oversee the desegregation process until DCCS had met all six categories and then for some years afterwards to ensure continued compliance."' The Supreme Court unanimously held that the district court was correct in limiting its supervision of the desegregation order to only those two categories that DCCS did not meet. 18 9 The Court noted that, in cases of partial compliance where the school district has achieved unitary statusl 90 in some but not all areas, the reviewing court may return control of the successfully desegregated areas to school officials while retaining supervision over areas that remain segregated.1 In Freeman, the Court used the factors it examined in Green to provide a framework for lower courts to determine whether a district unlawfully segregated its schools.19 2 By evaluating the 184. Green v. County Sch. Bd., 391 U.S. 430 (1968).

185. Freeman, 503 U.S. at 467 (citing Green, 391 U.S. at 435).

186. Id. at 467.

187. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD oFEDUCATIONAND BLACK AMERICA'S STRUGGLE FOR EQUALITY 770

(Vintage 2004).

188. Freeman v. Pitts, 503 U.S. 467, 477 (1992).

189. Id. at 468-70.

190. "The Court first used the term 'unitary' in Green v. New Kent County School Board to describe a system in which no one was excluded based on race or color." Orfield & Thronson, supra note 180, at 762-63.

191. Freeman, 503 U.S. at 467; see also Orfield & Thronson, supra note 180, at 763 (noting that Pitts "attempted to articulate a new standard for dissolving court decrees and allowing partial dismantling of desegregation plans").

192. Freeman, 503 U.S. at 467.

194

John MarshallLaw Journal

[Vol. III

Green factors independently of each other, the Court came to the conclusion that partial compliance would allow the system to achieve unitary status over some aspects, thereby enabling DCCS to concentrate its efforts on areas where the effects of de jure discrimination had not been eliminated.'9 3 The Court noted that racial imbalance alone was insufficient to demonstrate that the district was in noncompliance with its duties under the desegregation decree.1 94 Indeed, Justice Kennedy said "where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts.""9 Accordingly, if segregation is de facto rather than de jure, or where it is a result of a state's inaction rather than state action, the Court will not step in.196 The effects of the nation's decreased desegregation efforts are vast. Desegregation in schools across the nation peaked in 1988, and in 2006, segregation patterns began to increase.197 While there was a national rise in the integration of public schools between the years of 1954 and 1988, the trend began to reverse in the late 1980s and early 1990s, especially in the South.'98 In 1990, the degree of segregation in the South was "high or extremely high," and although that level declined slightly later in the 90s (except in Arkansas and the District of Columbia), the levels of segregation in Southern schools

193. Id. at 493.

194. Id. at 498.

195. Id. at 493.

196. KLUGER, supra note 187, at 770.

197. ORFIELD, supra note 179, at 13.

198. CATHERINE FREEMAN ET AL., RACIAL SEGREGATION IN GEORGIA PUBLIC SCHOOLS, 1994-2001: TRENDS, CAUSES, AND IMPACT ON TEACHER available at 1 (2002), QUALITY GARY (citing http://aysps.gsu.edu/publications/segregated-schools.pdf ORFIELD, THE CIVIL RIGHTS PROJECT, SCHOOLS MORE SEPARATE: CONSEQUENCES OF A DECADE OF RESEGREGATION (Harvard Univ. 2001),

availableat http://www.civilrightsproject.ucla.edu/research/deseg/Schools MoreSepara te.pdf (documenting that the number of black students who attended majority white schools between 1954-1988 in the South went from almost 0 to 43.5%, but then dropped to 32.7% in the period between 1988 and 1998)).

No. 2]

De Jure,De Facto, & Dija Vu All Over Again

195

remained in those high or extremely high ranges in 2000.199 Georgia in particular has clung to its system of desegregated schools. A 2002 Civil Rights study reported that "of the 13 Southern states in its analysis, Georgia placed only 1 0 th in terms of increased black-white integration in the 1970s ."200 The same study noted that although many Southern states experienced a significant "decline in black-white segregation across schools between 1970 and 1980, Georgia did not." 201 Today, the South is 26.5% black and 21.5% Latino, and 40% of students attend "intensely segregated schools."20 2 The Civil Rights Study noted that schools with higher percentages of black students are more likely to have higher teacher turnover, fewer teachers with advanced degrees, fewer experienced teachers, and generally lower-quality resources. 203 Eighty-five percent of the nation's teachers are white, 2 04 and in Georgia, where over 80% of the state's teachers are white, teachers are "much more likely to leave schools that serve higher proportions of minority students."20 5

199. Sean F. Reardon & John T. Yun, Integrating Neighborhoods, Segregating Schools: The Retreatfrom School Desegregation in the South, 1900-2000, 81 N.C. L. REv. 1563, 1573 (2003). Although this article focuses on black-white segregation, it is interesting to note that "[w]hite/Hispanic segregation levels, in contrast were generally in the low to moderate range for all states except those with large Hispanic populationsTexas and Florida. White/Hispanic segregation increased substantially in Arkansas, the District of Columbia, Georgia, and Maryland; in each of these places the Hispanic population grew sharply." Id. 200. FREEMAN ET AL., supra note 198, at 4 ("In 1970, the typical black student in Georgia went to a public school that had 31.5 percent white students. By 1980, that percentage increased to only 38.3 percent.").

201. Id. 202. ORFIELD, supra note 179, at 11-12, 23 (noting that, although during the civil rights movement the small towns and rural areas were the most resistant to integration, those areas are currently the least segregated school districts).

203. See generally FREEMAN ET AL., supra note 198.

204. ORFIELD, supra note 179, at 16.

205. FREEMAN ET AL., supra note 198, at 27.

196

John MarshallLaw Journal

[Vol. III

C. Desegregationas Djti Vu The 2007 United States Supreme Court case, Parents Involved in Community Schools v. Seattle School District No. 1,206 is likely to impair desegregation efforts even further. In that case, the U.S. Supreme Court held that school districts are unable to consider race in attempts to integrate schools. 207 The combined effects of Parents Involved and the flight of whites from neighborhoods where the minority population increases may result in a national public education system reminiscent of an era that legitimized racial separateness, and its companion unequal school quality. While scholars debate the potential impact of the decision,20 8 policymakers need to consider race neutral alternatives to achieving more equitable access to quality education.

Segregated schools, whether by race, economics, or both, are realities that are unlikely to abate in the immediate future.

It may be that one solution is to abandon desegregation efforts and to focus on increased resources in low-income school districts. The South is the only region in the nation where low-income students are in the majority in public schools.209 The South is also the first and only region in the nation to have a majority of students of color in its public schools,2 10 with Georgia's student population of color at 206. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (holding that considering race in assigning students to public high schools violated the Equal Protection Clause of the Fourteenth Amendment).

207. Id. 208. See, e.g., Jonathan Fischbach et al., Race at the Pivot Point: The Future of Race-Based Policies to Remedy de Jure Segregation after Parents Involved in Community Schools, 43 HARV. C.R.-C.L. L. REv. 491 (2008) (analyzing the potential impact of the Parents Involved decision on desegregation and constitutional law doctrine).

209. See generally S. EDUC. FOUND., A NEW MAJORITY: Low INCOME STUDENTS IN THE SOUTH'S PUBLIC SCHOOLS (2007), available at http://www.sefatl.org/pdf/A%20New%20Majority%20Report-Final.pdf.

210. See generally S. EDUC. FOUND., A NEW DIVERSE MAJORITY: STUDENTS OF COLOR IN THE SOUTH'S PUBLIC SCHOOLS (2010), available at http://www.sefatl.org/pdflNew%20Diverse%2OMajority.pdf (describing the South as having the most diverse public schools in the country and noting the challenges that blacks and Latinos face in gaining equal access to quality education in the South).

197

No. 2]

De Jure, De Facto, & Diji Vu All Over Again

53.9%.211

Given that low-income students inevitably face

inequitable educational access, perhaps the focus should instead be on educational expenditures that include measurable inputs such as class-size reduction and teacher quality. 2 12 There must also be a system to ensure that districts and schools are accountable for educational expenditures. While local control in education decision-making is critical, state oversight is a necessity. Moreover, the federal government should continue the requirement under No Child Left Behind 2 13 that federal funds be connected to demonstrated success in closing the academic achievement gap. Even in 1960, the Committee for Economic Development (comprised of 180 top executives and educators) observed at the conclusion of a three-year study: "[w]here the decentralized system cannot provide good schools, federal aid to education is an urgent necessity."2 14 Since the passage of the QBE, there has been slow but steady improvement in student achievement in the core areas of math, science, reading, and writing. 2 15 This trend has continued since the passage of the No Child Left Behind Act of 2001.216 Notably, Georgia's academic achievement gap between white and black students has tightened significantly in many areas.2 17 Id. at 21.

212. Preston C. Green, III et al., Achieving Racial Equal Educational Opportunity through School FinanceLitigation, 4 STAN. J. Civ. RTS. & CIV. LIBERTIES 283, 313(2008) (citing Sweatt v. Painter,338 U.S. 865 (1949) as an example of the Court looking to "educational inputs (e.g., faculty quality and library holdings) and educational outcomes (passage of the bar and success in the profession) to determine that Texas' black law school was substantially inferior to the white law school," and Hobson v. Hanson, 269 F. Supp. 401 (D.D.C. 1967) in which the court applied the Sweatt analysis).

213. 20 U.S.C. ยง 6301 (2010).

214. Education: Federal Aid (Contd.), TIME MAGAZINE, Feb. 8, 1960, at available http://www.time.com/time/magazine/article/0,9171,828651,00.html.

215. NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., NAT'L (1990-2006), OF EDUC. PROGRESS ASSESSMENT [hereinafter http://nces.ed.gov/nationsreportcard/naepdata/dataset.aspx NAT'L ASSESSMENT] (to retrieve data using NAEP's Data Explorer, select the desired subject and grade).

216. Id.; 20 U.S.C. ยง 6319 (2010).

217. Data from the NCES shows the achievement gap narrowing slowly under the QBE but, in some areas, notably mathematics the rate of the gap closing increased under NCLB. NAT'L ASSESSMENT, supra note 215.

211.

198

John MarshallLaw Journal

[Vol. III

Yet, while Georgia ostensibly seems to be closing the achievement gap between white, black and Latino students, it seems to be failing in its attempts to provide its children with an adequate education. Georgia still ranks 38th nationally in terms of academic achievement for all children2 18 and 32nd with respect to the academic achievement of low-income and minority students.2 19 V. CONCLUSION

With the resegregation of schools trending upward, the recent Parents Involved ruling makes the prospect of future desegregation of public education as unlikely as it was in the 1950's, when Georgia undertook a massive funding effort to avoid integration. Given that reality, perhaps it is time to focus less on "separate" and more on "equal." History has already demonstrated that appropriating expenditures without an effective strategy to raise achievement does not bring about great strides in overall educational performance. In order to facilitate greater results, Georgia may need to rely on a combination of federal, state, and local funding and control that targets input expenditures in lower income and lower performing schools.

218. U.S. Chamber of Commerce, Leaders and Laggards: A State-byEducational Innovation, Report Card on State www.uschamber.com/icw/reportcard/default (last visited Mar. 22, 2010).

This ranking includes the fifty states and the District of Columbia. Id. 219. Id. This ranking included forty-four states and the District of Columbia.

RATIONALITY & RESULTS: WHY SCHOOL CHOICE EFFORTS ENDURE DESPITE A LACK OF IMPROVEMENT ON STUDENT ACHIEVEMENT NINA GUPTA*

I.

INTRODUCTION

II.

A BRIEF HISTORY OF SCHOOL CHOICE

III.

THE CHARTER SCHOOL MOVEMENT

............................................. ......................... ...........

200 202

................ 206

A. Georgia'sCharter Schools Act.......... ............. 207 B. NationalResearch Regarding CharterSchool Effects on Student Achievement. ................... ....... 212 C. Georgia CharterSchool Effects on Student Achievement ............................................

215 IV.

VOUCHERS FOR SPECIAL NEEDS STUDENTS .........

............. 219

A. Florida'sJohn McKay ScholarshipProgram..................

B. Utah's Carson Smith Special Needs Scholarship Program.....................................

C. Georgia'sSpecial Needs ScholarshipProgram...... .....

D. Obligations ofPrivate v. PublicSchools to Disabled Students ............................. ........

V.

221 225 227 232

PSYCHOLOGICAL EXPLANATIONS FOR THE IMPETUS TOWARDS SCHOOL CHOICE

A. Choice Response B. Ownership Response.

VI.

RECOMMENDATIONS

VII.

CONCLUSION

.............................

......................... ..............................

.........................

237

....... 237 240 ................. 244

.....................................................

246

200

John MarshallLaw Journal

[Vol. III

I. INTRODUCTION

First, This article rests on two basic assumptions. government has a legitimate interest and duty' to provide a quality, publicly-funded, and universally-available education to all of its residents, regardless of race, sex, ethnicity, religion, language status, disability, or socio-economic status. Such a system of education is the primary means of ensuring a welleducated citizenry that is capable of meeting the demands of our society,2 as well as sustaining our common cultural and historical heritage. Second, the fundamental purpose of any system of education must focus on student achievement, rather than feelings of parental or student satisfaction. Certainly, parental and student satisfaction is important,3 but these concerns must be secondary to student achievement. After all, * Ms. Gupta is an attorney in private practice and a Member of Brock, Clay, Calhoun & Rogers, LLC. She represents public school districts throughout the State of Georgia. Ms. Gupta handles a variety of educational issues including charter schools and the full range of employment issues.

She also has extensive experience with Special Education issues. Ms. Gupta attended the University of Chicago, where she earned a B.A. in Psychology, with Honors, in 1995. She then attended the University of Michigan School of Law, where she served as an editor on the Michigan Journal of Gender and Law and earned her J.D. in 2001. Special thanks to Peter New, Gail Oldt, and Rebecca McLaws for their invaluable research assistance.

1. GA. CONST. art. VIII, ยง 1, para. 1 ("The provision of an adequate public education for the citizens shall be a primary obligation of the State of Public education for the citizens prior to the college or Georgia. postsecondary level shall be free and shall be provided for by taxation. The expense of other public education shall be provided for in such manner and in such amount as may be provided by law.").

2. Indeed, as American children continue to fall behind their international counterparts in math and science education, the importance of a welleducated citizenry comes more and more into focus.

3. The importance of parental or student satisfaction and the role it may play in promoting student achievement should not be unduly diminished.

Certainly, parents and students, as stakeholders in any educational system, must be invested in that system for it to prosper. After all, education is not a one-way street: not only must there be an effective provider of education, but also a receptive learner on the other end, with as few variables working at cross purposes to the educational mission. Accordingly, seeking to increase parental and student satisfaction is a legitimate goal. However, this goal should be pursued only in furtherance of the fundamental purpose of education - that of student achievement - rather than for its own sake.

No. 2]

Rationality & Results

201

it is of little benefit to anyone to have happy parents and students who do not have the necessary skill set to survive and prosper in an increasingly globalized and competitive marketplace. In light of these two assumptions, this article will explore the idea of school choice.

For the most part, if Georgia schoolchildren wish to attend a public school, they must attend a specific school within their school district of residence and within an attendance zone established by their local board of education. While parents have long had the choice to bypass public education altogether by sending their children to private schools, more and more, parents have requested more publicly-funded choices in education for their children. As a result, Georgia's General Assembly has responded by devoting a substantial amount of its energy to provide these choices. Meanwhile, other legislative efforts to improve public education are necessarily ignored.

School choice - the concept that parents have the right to choose (at least to some degree) who will teach their children and what their children will be taught - has been a cornerstone of American education at least since 1925 when the United States Supreme Court affirmed the legitimacy of private education in America.' More recently, the center of gravity surrounding the school choice has focused more on public school choice, whether that choice comes from more public school options or more publicly-funded private options. This article will first briefly describe the history of school choice in America, both in private and public education. Next, this article will detail two specific efforts at school choice available in Georgia, charter schools and vouchers for special needs students, with a focus on their effects on student achievement.

These programs divert public funds from traditional public schools and redistribute them to largely autonomous public charter schools and private schools via voucher funds. Despite the growing popularity of these programs, evidence of improved student achievement as a result of enrollment at these schools is Why, then, do these either nonexistent or inconclusive. programs remain so politically popular? This article posits that these programs trigger and satisfy a powerful choice and ownership response that would otherwise appear to be

4. See Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925).

202

John MarshallLaw Journal

[Vol. III

psychologically irrational.

In other words, these choice programs satisfy an inherent need for control and ownership, but they do not necessarily deliver any increase in student achievement - the first and fundamental purpose of any public education endeavor. This article will conclude with possible reforms for traditional public schools that can both satisfy this need for choice and ownership, while also improving student achievement.

II. A BRIEF HISTORY OF SCHOOL CHOICE

In 1925, the United States Supreme Court unambiguously affirmed the right of parents to choose the education their children receive. In Pierce v. Society of Sisters,' the Supreme Court considered a challenge to an Oregon statute (that had yet to go into effect) requiring all of the state's "normal" 6 schoolchildren to attend only public schools. Two private corporations, both of which operated private schools, challenged the constitutionality of the statute and alleged that the statute had already begun to impermissibly interfere with their businesses, as enrollment had begun to drop with the impending effective date of the statute.' The Supreme Court not only held that the statute would impermissibly interfere with the private corporations' business interests, it also recognized that the statute would impermissibly interfere with parental rights, affirming the "liberty of parents and guardians to direct the upbringing and education of their children."8 The Supreme Court used stark and unequivocal language acknowledging parental rights over their children: 5. See generally id.

6. The Oregon statute specifically exempted "any child who is abnormal, subnormal or physically unable to attend school." Pierce, 268 U.S. at 536 n. 1. At the time, it was not unusual for states to exempt disabled children from compulsory attendance statutes. MICHAEL IMBER & TYLL VAN GEEL, EDUCATION LAW 226 (2d ed., Lawrence Erlbaum Assoc. 2000). Courts, too, supported the exclusion of disabled children from public education. See, e.g., State v. Bd. of Educ., 172 N.W. 153 (Wis. 1919) (upholding the exclusion of a disabled child with normal intelligence due to physical disabilities, such as uncontrollable facial contortions, that had a "depressing and nauseating effect upon the teachers and school children . .

7. Pierce, 268 U.S. at 533, 536.

8. Id. at 534-35.

No. 2]

Rationality & Results

203

The fundamental theory of liberty . . . excludes any general

power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not a mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.'

Today, of course, we consider the right to privately educate our children as obvious.

Since Pierce,the parental right to direct the education of our children has greatly influenced not just private education but public school systems as well. In the 1950s, much of the discussion surrounding school choice was a direct reaction to the United States Supreme Court's decision in Brown v. Board of Education declaring racial discrimination in public school systems unconstitutional 0 and its subsequent admonition that public schools be desegregated "with all deliberate speed.""

Many southern states reacted by enacting "school choice" plans that were thinly veiled attempts to prevent desegregation of their educational systems. One such method was the "minorityto-majority transfer" that would allow children who were in the racial minority in their school to transfer to a school in which they belonged to the racial majority, rendering legally-mandated The United States desegregation efforts meaningless.12 Supreme Court struck down such transfer policies, recognizing them to be the efforts at maintaining pernicious racial segregation that they were.I Other attempts to prevent desegregation of public schools centered on tuition vouchers 4 to private schools, also "defended in terms of freedom of choice."' Georgia went so far as to 9. Id. at 535.

10. Brown v. Bd. of Educ., 349 U.S. 294, 298 (1955).

11. Id. at 301.

12. JEFFREY R. HENIG, RETHINKING SCHOOL CHOICE: LIMITS OF THE MARKET METAPHOR 103-04 (1994).

13. Goss v. Bd. of Educ., 373 U.S. 683, 686 (1963) ("It is readily apparent that the transfer system proposed lends itself to perpetuation of segregation.

Indeed, the provisions can work only toward that end.").

14. Tuition vouchers take public funds and give them to families to use for tuition at private schools.

15. HENIG, supra note 12, at 104.

204

John MarshallLaw Journal

[Vol. III

amend its constitution to allow publicly-funded tuition grants to support a "nominally private school system."'" These plans were well-subscribed by white parents. In addition, Georgia allowed teachers at these private, segregated schools to take advantage of the state pension plan intended for public school teachers, thereby making it easier for the private schools to recruit teachers." Further, in Virginia, for example, public funds were used to provide private school "scholarships" to parents equal to the amount of per-student public school By 1962, over 8,500 children were funding at the time." enrolled in the plan, 19 with participation increasing as "federal pressure to integrate increased."2 0 Prince Edward County, Virginia, took even more drastic and desperate measures to try to prevent desegregation of its public schools - it simply declared that it would no longer operate a public school system if desegregation were to occur.2 1 In 1959, Prince Edward County refused to raise any more funds for its public education system.2 2 The public schools remained closed for four years.23 White children then attended "a newly established private academy that did not accept any blacks," while black children had no real educational alternatives.24 In 1960, the state and county began a voucher system that provided both vouchers and property tax credits for those white children enrolled in the segregated private academy.25 These vouchers "were the major source of financial support for the Prince Edward School foundation, the private organization that

16. Id. (citing BENJAMIN MUSE, TEN YEARS OF PRELUDE 24 (1964)).

17. Jim Crow Study Group, Still on the Books: Jim Crow and Segregation

Laws Fifty Years After Brown v. Board of Education: A Report on Laws Remaining in the Codes of Alabama, Georgia, Louisiana, Mississippi, Missouri, South Carolina, Virginia and West Virginia, 2006 MICH. ST. L. REv. 460, 471-72 (2006).

18. HENIG, supra note 12, at 104 (citing MUSE, supra note 16, at 186).

19. Id. 20. Id.

21. Id. at 104-05.

22. Id. 23. Id. (citing BOB SMITH, THEY CLOSED THEIR SCHOOLS (Univ. of N.C.

Press 1961).

24. HENIG, supra note 12, at 104-05.

25. Id. at 105.

No. 2]

Rationality & Results

205

was established to build and operate alternative schools for the county's white students." 26 By 1967, twenty-five "segregation academies" educated approximately 7000 white Virginia students.2 7 The United States Supreme Court ultimately struck down Prince Edward County's voucher program, correctly concluding that the only reason for the program's existence was to perpetuate racially segregated education.2 8 Of course, not all school choice proponents have been motivated by racial animus. More recently, as part of the modern school choice movement, coalitions in support of school choice have included a racially and ideologically diverse group. For instance, voucher systems in Milwaukee and Cleveland enjoyed the support of a political coalition that included "black activists .

.

. conservative politicians, Catholic

church leaders, and libertarian foundations." 2 9 The concept of vouchers has also caught the imagination of free-market economists eager to limit the role of government. The modern economics-based argument for school choice was jump-started

by Milton Friedman, a Nobel laureate economist, with his seminal article "The Role of Government in Education." 30 Friedman, a committed proponent of the free market (and the freer, the better), recognized government's interest in providing general education to its citizens." He objected, however, to the government's administration of most general education. 32 He proposed a bifurcated system: government would continue to finance general education but would leave the administration to others by giving families a sum of money to be used exclusively Thus, the modern for general education of their children.

26. Id. 27. Id. (citing GARY ORFIELD, THE RECONSTRUCTION EDUCATION 235 (1969)).

OF SOUTHERN

28. Griffin v. County Sch. Bd., 377 U.S. 218, 231 (1964).

29. Robert C. Bulman & David L. Kirp, The Shifting Politics of School Choice, in SCHOOL CHOICE AND SOCIAL CONTROVERSY: POLITICS, POLICY, AND LAW 37 (Stephen D. Sugarman & Frank R. Kemerer eds., The Brookings Inst. 1999).

30. Milton Friedman, The Role of Government in Education, in ECONOMICS AND THE PUBLIC INTEREST (Robert A. Solo ed., Rutgers Univ.

Press 1955), availableat http://www.schoolchoices.org/roo/friedl.htm.

31. Id. 32. Id. 33. Id.

206

John MarshallLaw Journal

[Vol. III

economic argument for publicly-funded vouchers for private education (and more public school choice in general) was given new life.34 Today, this argument has resulted in two distinctive forms of publicly-funded school choice that will be discussed below: publicly-funded charter schools and publicly-funded vouchers for private schools.

III. THE CHARTER SCHOOL MOVEMENT

In 1991, only Minnesota had charter legislation.3 5 By 1994, however, legislatures in eleven states, including Georgia, had passed such legislation. 6 By 2006, forty states, along with the District of Columbia and Puerto Rico had legislation authorizing charter schools.3 Charter schools" enjoy bipartisan support and have received explicit support from both the George W. Bush" and Barack Obama 40 administrations as 34. To be clear, Friedman did not insist that government play no role in the administration of general education. He acknowledged that schools, in order to receive "voucher" funds, would have to meet "certain minimum standards laid down by the appropriate governmental unit." He also acknowledged that schools would be conducted under a variety of auspices: by private enterprises created by profit, non profit institutions established by private endowments, religious bodies, and some even by governmental units." Clearly, however, he envisioned and encouraged the privatization of most general educational services. Id. 35. CHRISTIANA STODDARD & SEAN P. CORCORAN, THE POLITICAL ECONOMY OF SCHOOL CHOICE: SUPPORT FOR CHARTER SCHOOLS ACROSS 47-48 (2006), available at SCHOOL DISTRICTS, AND STATES

http://www.ncspe.org/publicationsfiles/OPl 13.pdf.

36. Id. In addition to Minnesota, those states included: Arizona, California, Colorado, Georgia, Hawaii, Kansas, Massachusetts, Michigan, New Mexico, and Wisconsin. Id. 37. Id. States that had yet to pass charter school-authorizing legislation by 2006 were: Alabama, Kentucky, Maine, Montana, Nebraska, North Dakota, South Dakota, Vermont, Washington, and West Virginia. Id. 38. Charter schools are publicly-funded schools that, unlike traditional public schools, operate largely autonomously and are free from most regulations applicable to traditional public schools.

39. See, e.g., Election Briefing: Back to School, ECONOMIST, Sept. 28, at available 2000, http://www.economist.com/displaystory.cfmn?storyId=ElPRDGNP. 40. "The President supports the expansion of high-quality charter schools.

He has challenged States to lift limits that stifle growth among successful

Rationality & Results

No. 2]

207

important school reform efforts. At least one commenter has suggested that charter schools reflect a broader trend of redefining and "fundamentally altering the relationship between government and the governed," with less top-down governance, decreased bureaucracy, more flexibility, and less emphasis on federal involvement and more decision-making left to state and Charter schools, then, simply reflect the local officials.' impetus towards local control on a school-level scale. Stoddard & Corcoran, meanwhile, suggest that several factors have led to the rise in prevalence of charter schools.42 First, they suggest that greater population heterogeneity (including widening income inequality and greater Hispanic population) may fuel passage of more and stronger charter school laws.43 In fact, Stoddard and Corcoran found that many charter school founders explicitly stated "the goal of satisfying diverse preferences and attracting a target student population as central to their mission."" They suggest that, as school districts become more diverse along racial, ethnic, and economic lines, charter schools "provide an additional means for families to sort themselves

across schools." 45 A. Georgia's CharterSchools Act46 In Georgia, parents enjoy many avenues to exercise school choice. Individual school districts, for example, may have

charter schools and has encouraged rigorous accountability for all charter Education, House, White The schools." http://www.whitehouse.gov/issues/Education/ (last visited Mar. 22, 2010).

41. KATHLEEN MCGREE, REDEFINING EDUCATION GOVERNANCE: THE at (1995), available 12 SCHOOL CONCEPT CHARTER

http://www.sedl.org/policy/charter.pdf.

42. See generally STODDARD & CORCORAN, supra note 35, at 9.

43. Id. The strength of charter school laws is measured by the ranking given a statute by the Center for Education Reform, a pro-charter organization. The easier it is to create a charter school (through, for instance, the availability of multiple charter authorizers) the "stronger" that law is rated. Id. 44. Id. at 9.

45. Id. This "sorting" effect may warrant concern about the possible "balkanization" or even inadvertent segregation of schools. Id. 46. O.C.G.A. §§ 20-2-2060 to -2071 (2009).

208

John MarshallLaw Journal

[Vol. III

transfer or open enrollment policies. 47 For instance, some school districts may allow non-resident students to attend its schools by paying tuition. 4 8 School districts may allow intradistrict transfers in the cases of enumerated hardships or open enrollment policies.49 In addition to these local policies, there are state statutes that mandate some school choice. Georgia requires that children of school employees, regardless of residence, be allowed to attend school where their parents work."o In addition, beginning with the 2009-2010 school year, parents may enroll their child in any school in the resident school system, provided the school has space available after enrolling the children within the school's attendance zone.'

And, of course, the No Child Left Behind Act allows certain children in "failing" public schools to obtain transfers to other public schools.52 Georgia also passed its first Charter Schools Act in 1998.53 Since then, the Charter Schools Act has been amended and supplemented to further increase the availability of charter schools. 54 In general, charter schools are public schools that operate largely autonomously and are freed of virtually all state and local rules and regulations, under the theory that these rules and regulations stifle innovation and can harm a school's educational mission." Charter schools enter into a contract with the state (and a third party, such as the local board of education, 47. See, e.g., Fulton County Bd. of Educ., Dist. Policy JBCD (2010), http://www.fultonschools.org/ (follow "Policies"; then "District Policy"; then "J - Students"; then "JBCD Transfers & Withdrawals" for hyperlink).

48. See, e.g., Marietta City Sch., Dist. Policy JBCB (2008), http://www.marietta-city.org/aboutus/boe/policymanual.php (follow "JBCB" for hyperlink).

49. See, e.g., Cobb County Sch. Dist., Admin. Rule JFABC (2010), http://www.cobbkl2.org/centraloffice/adminrules/jrules/indexj_1.htm; Fulton County Bd. of Educ., Dist.

Policy JBCD, http://www.fultonschools.org/ (follow"Policies"; then "District Policy"; then "J - Students"; then "JBCD Transfers & Withdrawals" for hyperlink).

50. O.C.G.A. ยง 20-2-293(b) (2009).

51. O.C.G.A. ยง 20-2-2131 (2009).

52. 20 U.S.C. ยง 6301 (2010).

53. O.C.G.A. ยง 20-2-2060 (2009).

54. Id. 55. The obvious question is, if these rules and regulations work to such negative ends, why must any schools abide by them?

No. 2]1

Rationality & Results

209

if applicable) that outlines how they will operate, the performance goals and objectives they wish to achieve, and a In exchange for a timeline for achieving those goals. commitment to meet or exceed these performance goals, charter schools operate largely autonomously with a minimum of regulation.

Currently, there are four types of charter schools in Georgia.

First, conversion charter schools are traditional public schools, historically operated by the local board of education where they are located.56 They may seek charter status for a variety of reasons including use of a curriculum not currently approved by the local board of education or implementation of a unique schedule." A three-party contract (the charter petition) between the school, the local board of education, and the state board of education outlines how the school will function once it becomes a charter school." More recently, Georgia has expanded the concept of the conversion charter school to the "charter system."5 9 In a charter system, every school within a school district operates under a district-wide charter agreement.60 These schools remain under the control and management of the local board of education in the district in which they are located, and they are entitled to an equal share of local, state, and federal funding. 61 Typically, their employees remain employees of the local board of education.62 By contrast, a start-up charter school is a school that did not exist as a traditional public school prior to becoming a charter 56. O.C.G.A. ยง 20-2-2062 (2009).

57. For instance, Walton Comprehensive High School, a conversion charter high school, reserves the right to adopt its own textbooks.

Additionally, it releases students early from school 23 times per year, allowing parents and students to decide how to best use that time. See GEORGE WALTON COMPREHENSIVE 6, PETITION RENEWAL

HIGH

SCHOOL

CHARTER

SCHOOL

at available (2007), 61 http://waltonhigh.org/files/99704/charterdocument.pdf.

58. O.C.G.A. ยง 20-2-2062 (2009).

59. Id. 60. O.C.G.A. ยง 20-2-2063.2 (2009).

61. Id. 62. See, e.g., CHAMBLEE CHARTER HIGH SCHOOL CHARTER 2009-2014, at available (2009), 24 http://www.dekalb.kl2.ga.us/chambleehs/flash-site/pdf/2009_2014_Charter. pdf

210

John MarshallLaw Journal

[Vol. III

school.63 In this case, the petitioner (a private organization, a group of parents, etc.) drafts a charter petition that must be agreed to by the local board of education and the state board of Currently, "home study programs or schools, education.' sectarian schools, religious schools, private for profit schools, private educational institutions not established, operated, or governed by the State of Georgia, or existing private schools" may not submit charter petitions.63 Like conversion charter schools, these schools remain under the control and management of the local board of education in the district in which they are located, and they are entitled to be funded "no less favorably" than the other schools within the school district Practically (with the exception of facilities funding).6 6 speaking, however, they tend to enjoy more autonomy than conversion charter schools. For instance, they can select a unique curriculum or textbooks; their employees are employed by the charter school and are not subject to most rules and rights applicable to public school teachers (including "tenure"), and they may be operated by a private educational management organization.

Third, state charter schools operate under a contract solely between the petitioner and the state board of education.67 These schools are under the control and management only of the state board of education. 68 However, because they are not local schools, they are not entitled to the local shares of funding for public education and instead only receive state and federal funds.6 9 Accordingly, these schools operate with a smaller perstudent funding than traditional public schools or even most charter schools.

Finally, and most recently, Georgia established the Charter This Commission acts as another Schools Commission.7 0 charter authorizer. 7 1 Although commission charter schools do 63. O.C.G.A. 64. O.C.G.A. 65. O.C.G.A. 66. O.C.G.A. 67. Id. 68. Id. 69. Id. 70. O.C.G.A. 71. O.C.G.A.

§ 20-2-2062 (2009). § 20-2-2063.2 (2009). § 20-2-2062 (2009). § 20-2-2068.1 (2009).

§ 20-2-2080 (2009). § 20-2-2083 (2009).

No. 2]

Rationality & Results

211

not require the approval of any local board of education and are not under the control and management of any local board of education, they receive local, state, and federal funds.7 2 There are currently two commission charter schools: Ivy Preparatory Academy Charter School, an all-girls school located in Gwinnett County, and Charter Conservatory for Liberal Arts and Technology, in Bulloch County.73 In establishing the Georgia Charter Schools Commission, the General Assembly made some interesting findings.

Specifically, it found that "charter schools are a critical component in this state's efforts to provide efficient and highquality schools within this state's uniform system of public education;" that "charter schools provide valuable educational options and learning opportunities while expanding the capacity §§ 20-2-2083, 20-2-2090 (2009).

73. Both of these schools opened in the 2009-2010 school year. At least five school systems - Atlanta Public Schools, Gwinnett County School District, DeKalb County School District, Bulloch County School District, and Candler County School District - have filed suit alleging that the Georgia Charter Commission is operating unconstitutionally. See D. Aileen Dodd, Gwinnett Schools Suing over CharterSchool's Funding, ATLANTA J.at available 2009, 10, Sept.

CONST., http://www.ajc.coml/news/gwinnett/gwinnett-schools-suing-over136047.html; see also D. Aileen Dodd, Charter Schools Grow But So Do Legal Challenges, ATLANTA J.-CONST., Oct. 21, 2009, available at http://www.ajc.com/news/charter-schools-grow-but168736.html?cxntlld=daylf artr; D. Aileen Dodd, Atlanta Becomes Latest District to Sue State, ATLANTA J.-CONsT., Oct. 27, 2009, available at http://www.ajc.com/news/atlanta/atlanta-becomes-the-latest- 174539.html.

Specifically, Commission charter schools can enroll students from multiple school districts. The Commission allocates the local funds that would have gone to the traditional public schools that the students would otherwise have attended by carving them out of state funds due to the schools and sending them to the receiving commission charter school. For instance, a child in DeKalb County may enroll in Ivy Preparatory Academy. At that point, the Commission calculates the local funding for that student and gives that same amount to the charter school out of state funds that would have gone to the local district. O.C.G.A. § 20-2-2090(a) (2009). The litigation challenges the constitutionality of allowing the state-level Commission to, in essence, allocate local funds. As of this writing, the Georgia Board of Education has approved seven additional Commission charter schools. D. Aileen Dodd, Seven New Charter Schools Approved by State Commission, ATLANTA J.CONST., Dec. 14, 2009, available at http://www.ajc.com/news/seven-newcharter-schools-240965.html.

72. O.C.G.A.

John MarshallLaw Journal

212

[Vol. III

of this state's system of public education and empowering parents with the ability to make choices that best fit the individual needs of their children;" and that "the growth of charter schools in this state has contributed to enhanced student performance, greater efficiency, and increased parental satisfaction."7 4 But is there any evidence for these findings?

What does the research say regarding the efficacy of charter schools in increasing student achievement in particular?

Available data is far less conclusive than the findings of Georgia's General Assembly indicate and provide no consistent, reliable evidence of charter schools' effect, as a whole, on student achievement.

B. NationalResearch RegardingCharterSchool Effects on Student Achievement Many organizations

have

studied the

performance

of

America's charter schools. For instance, as early as 2004, the United States Department of Education released a report summarizing the state of charter schools at that time.75 It concluded that "charter schools [were] less likely to meet state performance standards than traditional public schools."76 The report cautioned, however, that its data did not examine the Subsequent effect of charter schools on student learning. studies, however, have purported to examine the effects of charter schools on student achievement and have found, on the whole, mixed results at best.

Most recently, Stanford University's Center for Education on Research Outcomes ("CREDO") conducted a study of charter schools in 15 states (including Georgia) and the District of Columbia, comprising 70% of the nation's charter school CREDO used a unique methodology: for each students."

74. O.C.G.A. ยง 20-2-2080(a) (2009).

75. POLICY AND PROGRAM STUDIES SERV., U.S. DEP'T OF EDUC., EVALUATION OF THE PUBLIC CHARTER SCHOOLS PROGRAM: FINAL REPORT

(2004),

available

at

http://www.ed.gov/rschstat/eval/choice/pcsp-

final/finalreport.pdf.

76. Id. at x.

77. Id. at 53.

78. CTR. FOR RESEARCH ON EDUC. OUTCOMES, STANFORD UNIV., MULTIPLE CHOICE: CHARTER SCHOOL PERFORMANCE IN 16 STATES 1 (2009),

No. 2]

Rationality & Results

213

charter school student studied, CREDO found a "virtual twin" in a traditional public school that matched the charter school student's grade level, gender, race/ethnicity, prior test scores on state achievement tests, English language proficiency, and participation in special education and/or subsidized lunch programs.79 In Georgia, CREDO was able to find "virtual twins" for 93.5% of charter school students to measure reading gains and 92.8% of charter school students to measure math gains. 0 Additionally, CREDO limited its review of charter schools to those who employed random lotteries for admission.81 Accordingly, all charter schools studied were oversubscribed This there were more applicants than spots available.82 bias that for selection limitation was included to try to correct would make it impossible to compare charter students to traditional public school students." CREDO acknowledged that this may have led to another kind of bias - only successful and popular charter schools would be included.84 CREDO then established its measures of interest: academic learning gains in reading and math." CREDO found that, in the aggregate of available http://credo.stanford.edu/reports/MULTIPLECHOICECREDO.pdf [hereinafter MULTIPLE CHOICE].

79. Id. at 1, 17.

80. Id. at 18.

81. Id. at 14.

at

82. Id. 83. Id.

84. Id. If anything, this bias would be in a charter school's favor by eliminating those that were undersubscribed due to a variety of factors. In addition, the limitation to oversubscribed charter schools does not eliminate other kinds of biases. For instance, while charter students and "virtual twins" may be matched by access to special education, they are not matched Accordingly, a charter student with a relatively by disability type. uninvolved disability could be twinned to a traditional public school student with a more involved disability that more greatly interfered with his learning.

Additionally, even limiting the study to oversubscribed charter schools cannot completely eliminate selection bias - all charter students had parents involved and motivated enough to seek out charter schools, which can require parents to complete application forms, go through a lottery process, and even provide their own transportation. The same cannot be said of the "virtual twins."

85. Id. at 1.

214

John MarshallLaw Journal

[Vol. III

nation-wide pooled results, "charter school students are not faring as well as their traditional public school counterparts.""

CREDO discovered wide variations by state, with a few states' charter school students actually performing quite well."

Unfortunately, Georgia was not among these states. In Georgia, CREDO found mixed results, at best, with charter school students doing significantly worse in several areas."

Specifically, in the area of reading, charter school students did significantly worse when they were enrolled in the charter school for one year or for more than two years.8 9 In other words, these students experienced significant declines upon entering the charter school; made gains the second year of enrollment, and then reversed those gains and again experienced 86. Id. at 5. It should be noted, however, that at least one other very recent study, limited to New York City, has found that charter schools increased student achievement, at least among New York City's public school students. CARONLINE M. HOXBY, SONALI MURARKA & JENNY KANG, THE NEW YORK CITY CHARTER SCHOOLS EVALUATION PROJECT, How NEW YORK CITY'S CHARTER SCHOOLS AFFECT ACHIEVEMENT (2009), available

at http://www.nber.org/-schools/charterschoolseval/howNYCcharterschool saffectachievementsept2009.pdf . However, even avowed proponents of charter schools acknowledge that the research data is very mixed. For instance, in 2007, Herbert J. Walberg, an economist with the economically conservative Hoover Institution, conducted a review of the then-current research available regarding charter school effects on student achievement.

He noted that, in what he described as the "most comprehensive" review of the literature available regarding charter school effects at that point, 10 of 26 "rigorous" studies found no positive charter school effects on student achievement. HERBERT J. WALBERG, SCHOOL CHOICE: THE FINDINGS 22-24 (2007) (citing BRYAN C. HASSEL, CHARTER SCHOOL ACHIEVEMENT: WHAT

WE KNOW 2 (2005)).

87. MULTIPLE CHOICE, supra note 78, at 3.

Data from Arkansas,

Colorado (Denver), Illinois (Chicago), Louisiana, and Missouri showed that their charter school students fared better than they would have had they remained in a traditional public school. Unfortunately, these states and cities were the exception. Id. 88. Id. at 4. Georgia has a charter system with one feature that the study recommends - no cap on charters. Georgia lacks another feature the study recommends - it does not have an appeal mechanism for adverse decisions.

Finally, Georgia has just adopted a feature that this study recommends against; it now has multiple authorizers with the Georgia Charter Commission.

89. Id. at 5.

No. 2]

Rationality & Results

215

declines the longer they remained in the charter school.90 In addition, Black and Hispanic charter school students performed significantly worse in reading. 9' In the area of math, virtually all charter school students experienced declines. 92 In large part, however, there was no statistical difference between charter school students and their "virtual twins," calling into question the effectiveness of Georgia's system of charter school education.93 In general, CREDO determined that the academic success of charter school students was directly affected by the "contours of the charter policies under which their schools operate." 94 Specifically, CREDO found that states that cap the number of charters permitted to operate realize "significantly lower academic growth;" when legislation allows for appeals of adverse decisions regarding applications and renewals, states see "small but significant gains in learning." 5 Finally, CREDO determined that "states that empower multiple entities to act as charter school authorizers9 6 realize significantly lower growth in academic learning."97 C. Georgia CharterSchool Effects on Student Achievement As noted above, the CREDO study suggests that Georgia's charter school students are not faring as well as their traditional public school counterparts.9 8 Georgia's own available data suggests that charter schools are not performing significantly better (or worse) than their traditional public school For instance, the Georgia Department of counterparts.

Education's Annual Report on Georgia's Charter Schools reviewed the performance of charter schools for the 2007-2008 90. Id. at 7.

91. Id. at 6, 9.

92. Id. at 22.

93. Id. at 3.

94. Id. at 4.

95. Id.

96. Georgia has joined this group of states with multiple charter authorizers with the establishment of the Georgia Charter School Commission.

97. MULTIPLE CHOICE, supra note 78, at 4.

98. Id.

John MarshallLaw Journal

216

[Vol. III

school year."

In the 2007-2008 school year, seventy-one charter schools (conversion, start-up, and state charter school) These charter schools were educated 33,229 students.' typically smaller than traditional public schools, with the majority having enrollment of fewer than 500 students."0 ' Just four districts"0 2 accounted for 65% of charter school enrollment statewide. 0 3 The Georgia Department of Education reviewed high school graduation rates, as well as performance on the Criterion Referenced Competency Test ("CRCT"), Georgia's statemandated test to determine adequate yearly progress ("AYP") under the No Child Left Behind Act. 104 While charter schools outpace traditional public schools in high school graduation rates, the Georgia Department of Education acknowledged that just two schools - Walton High School in Cobb County and Chamblee High School in DeKalb County, both conversion charters that were already high performing traditional public schools prior to becoming charter schools - accounted for a disproportionate number of charter high school graduations.'"1 Performance on the CRCT, meanwhile, was virtually identical between charter schools and traditional public schools, with charters very slightly outperforming traditional public schools in some measures, equaling traditional public schools in other measures, and very slightly underperforming traditional public schools in still other measures. 10 6 However, charter schools

99. GA. DEP'T OF EDUC., ANNUAL REPORT ON GEORGIA'S CHARTER

SCHooLs (2008), available at http://www.doe.kl2.ga.us/peasCharter.aspx (follow 2007-2008 Annual Report hyperlink) [hereinafter ANNUAL REPORT].

100. Id. at 4-5.

101. Id. at 7.

102. These four districts are Atlanta Public Schools, Cobb County School District, Fulton County School District, and DeKalb County School District.

Id. 103. Id. at 8. There are 180 school districts in Georgia. See Ga. Dep't of Educ., School Districts in Georgia, http://www.doe.kl 2.ga.us/ReportingFW.aspx?PageReq=211&PID=6 I&PTI D=67&CTID=216&Stated=ALL&T=0&FY=2009 (last visited Mar. 22, 2010).

104. Id. 105. Id. at 13.

106. Id. at 14-17.

No. 2]1

Rationality & Results

217

achieved AYP status at a rate slightly lower than traditional public schools in 2008.107 In fact, a state-wide analysis suggests that start-up charter schools are less likely to achieve AYP than traditional public schools.'"0 In the 2007-2008 school year, 80% of traditional public schools achieved AYP.109 Of forty-eight start-up charter schools (including state charter schools), AYP data for the 2007-2008 school year was available for thirty-eight of them."10 Of these thirty-eight schools, twenty-eight (or 73.7%) achieved AYP."' By contrast, conversion charter schools (schools that operated as traditional public schools prior to achieving charter status) appear to outperform their traditional counterparts. Of the twenty-one conversion charter schools, nineteen (or 85.7%) achieved AYP. 112 As shown in Table 1 below, data for the four school districts accounting for 65% of all charter schools also suggest that the performance of charter schools was, overall, roughly on par with traditional public schools for the 2007-2008 school year.'13 While charter schools slightly outperformed traditional public schools overall, most of this increase was due to conversion charter schools. In Atlanta Public Schools, 80 of 103 schools (77.7%) achieved AYP, while 100% of Atlanta's seven start-up charter schools achieved AYP." 4 In Cobb County School 107. Id. at 12.

108. The Georgia Charter Schools Association (GCSA), an organization that promotes charter schools in the state, contends that charter schools are more likely to achieve AYP than traditional public schools. Specifically, GCSA contends that 81.1% of charter schools achieved AYP in 2009, compared to 79.1% of traditional public schools. D. Aileen Dodd, Charter Schools Grow but So Do Legal Challenges, ATLANTA J.-CONST., Oct. 21, 2009, available at http://www.ajc.com/news/charter-schools-grow-but168736.html?cxntild=daylfartr. It is unclear on what GCSA relies in making this analysis. The GCSA website does not offer any additional information.

109. See generally ANNUAL REPORT, supra note 99.

110. Id. i11. Id. 112. Id. 113. Id. 114. See infra tbl.1 or note 123. In the 2007-2008 school year, Atlanta

Public Schools did not have any conversion charter schools. See generally ANNUAL REPORT, supra note 99.

218

John MarshallLaw Journal

[Vol. III

District, 95 of 111 schools (85.5%) achieved AYP."s Meanwhile, all three of Cobb County's conversion charters achieved AYP, and two of its three start-up charters (66.6%) achieved AYP." 6 In Fulton County, 78 of 91 schools (85.7%) achieved AYP. 117 All five of Fulton County's conversion charters achieved AYP, as did all six of its start-up charters." 8 In DeKalb County, 98 of 140 schools (70%) achieved AYP."9 Meanwhile, all three of DeKalb County's conversion charters achieved AYP.12 0 Of its seven start-up charters, AYP data was available for six of them."' Of these six, only three (50%)

achieved AYP.12 2

115. See generally ANNUAL REPORT, supra note 99.

116. Id.

117. See infra tbl.1 or note 123.

118. See generally ANNUAL REPORT, supra note 99. However, one of these six start-up charters closed due to low student enrollment.

119. See infra tbl.1 or note 123.

120. See generally ANNUAL REPORT, supra note 99.

121. Id. 122. Id.

219

Rationality & Results

No. 2]

TABLE 1123

Conversion charter schools achieving AYP

Start-up charter schools achieving AYP

System

Trdicoals chools p achieving

Atlanta Public Schools

80/103 (77.7%)

N/A

7/7 (100%)

95/111 (85.6%)

3/3 (100%)

2/3 (66.6%)

78/91 (85.7%)

5/5 (100%)

6/6 (100%)

98/140 (70%)

3/3 (100%)

3/6 (50%)

Cobb County School District Fulton County School District Dekalb County School District

Whatever the data source, it appears that Georgia's charter schools do not, as a whole, significantly outperform their traditional public school counterparts and do not have a significant positive impact on student achievement. Given this revelation, it may well be time for Georgia's General Assembly to re-examine the amount of finite time, effort, and resources it spends on charter legislation.

IV. VOUCHERS FOR SPECIAL NEEDS STUDENTS

Vouchers, like charter schools, offer parents the use of public dollars to finance choice education. Unlike charter schools, however, these public funds go to private schools. The United 123. Id.; GA. DEP'T OF EDUC., 2007-2008 AYP REPORT (2008), available at http://public.doe.kl2.ga.us/ayp2008/644.asp (select desired Georgia school system; then follow "View AYP Report" hyperlink).

220

John MarshallLaw Journal

[Vol. III

States Supreme Court has upheld the constitutionality of at least 24 one voucher program. In Zelman v. Simmons-Harris,1 the Supreme Court reviewed Ohio's Pilot Project Scholarship Program that provided publicly-funded vouchers to certain families to attend participating public and private (religious and non-religious) schools.125 Vouchers were distributed to parents according to financial need.126 In the 1999-2000 school year, 82% of participating private schools were religiously affiliated, and 96% of voucher students were enrolled in such schools.127 A group of Ohio taxpayers challenged the program, alleging that it violated the Establishment Clause of the First Amendment, given the public resources ultimately diverted towards religious schools.128 The Supreme Court disagreed, noting that the program itself was neutral with respect to religion, as voucher funds were provided to families, rather than directly to religious institutions.129 Since then, Ohio has widely expanded its voucher program. 130 124. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

125. Id. at 643-44.

126. Id. at 645.

127. Id. at 647.

128. Id. at 644.

129. Of course, such programs remain vulnerable to challenges under state constitutional provisions. For instance, two voucher programs in Arizona were recently struck down by the Arizona Supreme Court in May 2009. In Cain v. Horne, the Arizona Supreme Court considered two voucher programs enacted for foster students and students with disabilities. Both programs allowed religiously-affiliated schools to participate in the program and receive voucher funds. The Arizona Supreme Court held that both voucher programs violated the state constitution's prohibition against the "appropriation of public money ... in aid of any . . . private or sectarian school." Cain v. Home, 202 P.3d 1178, 1184 (Ariz. 2009) (citing ARIZ. CONST. art. 9, ยง 10). Since then, Arizona has reestablished this program through a tax credit program, providing dollar-for-dollar tax credits to corporations who donate to a private school fund. Mary Jo Pitzl, School Tuition Program OK'd after Long Debate, ARIZ. REPUBLIC, May 28, 2009, available at http://www.azcentral.com/news/articles/2009/05/28/20090528politicstuition0528.html.

130. See, e.g., Ohio Voucher Plans for Schools Tripling, ASSOCIATED PRESS, July 3, 2005, available at http://www.washingtonpost.com/wpdyn/content/article/2005/07/02/AR2005070201117.html. Tuition aid passed by the Ohio Legislature made the program the "nation's largest since the

No. 2]1

Rationality & Results

221

Vouchers, however, do not enjoy widespread and stable public support. In 2003, despite Ohio's high-profile victory before the U.S. Supreme Court, a poll found that 42% of respondents favored school vouchers, while 56% opposed them.' ' Moreover, the research surrounding the efficacy of voucher programs on student achievement has been mixed.'13 2 While vouchers have not become a universally-implemented or accepted avenue for school choice,' charter schools (publicly funded schools that operate largely autonomously) have been steadily gaining in popularity and prevalence. Despite the controversy surrounding vouchers in general, a particular form of voucher - those for special needs students - are becoming

more common. These vouchers allow special needs students to use public funds to attend approved private schools. Below, this article discusses such programs in three states - Florida, Utah, and Georgia.

A. Florida'sJohn McKay Scholarship Program In effect since the 2000-2001 school year, Florida's John McKay Scholarship Program' 3 4 provides publicly-funded practice of using public money for private-school tuition was found constitutional three years ago." Id. 131. L.C. Rose & A.M. Gallup, The 35th Annual Phi Delta Kappa/Gallup Poll of the Public's Attitudes Toward the Public Schools, PHI DELTA KAPPAN (2003).

132. See generally K. METCALF ET AL., INDIANA CTR. FOR EVALUATION, EVALUATION OF THE CLEVELAND SCHOLARSHIP PROGRAM (1998), available at http://www.edweek.org/rc/issues/vouchers/; J.F. Witte, Who Benefits from the Milwaukee Choice Program?, in WHO CHOOSES? WHO LOSES? CULTURE, INSTITUTIONS, AND THE UNEQUAL EFFECTS OF SCHOOL CHOICE

118-37 (Bruce Fuller & Richard F. Elmore eds., Teachers Coll. Press 1996); J.P. GREENE, W.G. HOWELL & P.E. PETERSON, HARVARD UNIV. PROGRAM ON EDUC., POLICY AND GOVERNANCE, AN EVALUATION OF THE CLEVELAND SCHOLARSHIP PROGRAM (1999); J.P. GREENE, P.E. PETERSON, & J. DU, PROGRAM ON EDUC. POLICY AND GOVERNANCE, HARVARD UNIV., THE EFFECTIVENESS OF SCHOOL CHOICE IN MILWAUKEE: A SECONDARY ANALYSIS OF DATA FROM THE PROGRAM'S EVALUATION (1996).

133. Georgia's voucher system is available only to special needs students.

See discussion infra Part IV.C. 134. FLA. STAT. ยง 1002.39 (2009). These programs are usually called "scholarship" programs, perhaps due to the political controversy surrounding

the term "voucher." In this article, the terms "scholarship" and "voucher" will be used interchangeably.

222

John MarshallLaw Journal

[Vol. III

vouchers to disabled students to attend eligible private schools.

In order to be eligible, the student must have been enrolled in a public school for the year prior to receiving the voucher,' must have been at least four years of age when enrolled and eligible for public education,' 6 and must have had an Individual Education Plan ("IEP") developed pursuant to the Individuals with Disabilities Education Act ("IDEA")'17 while enrolled in public school."' Once a student receives a voucher, he is entitled to keep it until he returns to public school, graduates from high school, or reaches twenty-two years of age, whichever comes first.' 9 Scholarship amounts are equal to the amount of public funding the particular child would have received in public school, as determined by the services he or she would have received, or the amount of the selected private school's tuition and fees, whichever is less. 4 0 There is no stated maximum amount available."'

In order to receive voucher students, private schools must meet a list of criteria, including demonstrating fiscal soundness; meeting health/safety requirements; conducting fingerprinting and background checks of employees; complying with the antidiscrimination provisions of 42 U.S.C. ยง 2000d;14 2 and hiring 135. Id. 136. Id.

137. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ยง 1400 (2009). IDEA is a federal statute heavily regulating the treatment and education of disabled students within public schools. See id.

138. Florida's McKay Scholarship Program is open only to students who are deemed to be disabled within the meaning of IDEA. FLA. STAT. ยง 1002.39 (2009). IDEA provides partial funding to states for the education of disabled children. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ยง 1400 (2009). The United States Department of Education issues regulations implementing IDEA and its procedures. See Office of Special Educ.

Programs, U.S. Dep't of Educ., IDEA Website, http://idea.ed.gov/explore/home. Individual states also promulgate their own regulations implementing IDEA. See Nat'l Early Childhood Technical Assistance Ctr., State Regulations for Implementing Part B of IDEA (2009), http://www.nectac.org/sec6l9/stateregs.asp (last visited Mar. 22, 2010). Of course, these regulations must be consistent with federal regulations.

139. FLA. STAT. ยง 1002.39 (2009).

140. Id. 141. Id. 142. This federal statute prohibits discrimination on the basis of race, color, and national origin.

No. 2]

Rationality & Results

223

teachers who either (1) hold college or higher degrees, (2) have at least three years of teaching experience in a public or private school; OR (3) have special skills, knowledge, or expertise that qualify them to provide instruction in the subjects and students taught.' 43 The program has steadily grown in popularity and participation, both on the part of parents and private schools, as the table below demonstrates.

TABLE 2'4

School Year 2000-2001

# Students Participating 970

# Private Schools Participating 100

2001-2002

5013

296

2002-2003

9130

518

2003-2004

13,739

687

2004-2005

15,910

708

2005-2006

17,300

751

2006-2007

18,273

811

2007-2008

19,852

846

2008-2009

20,530

897

Of these 897 private schools participating in the 2008-2009 school year, 64% of them were religiously affiliated.145 The Florida Department of Education releases quarterly reports that summarize the demographics of participation in this These quarterly reports list student voucher program.146 143. FLA. STAT. ยง 1002.421 (2009).

Scholarship Program Statistics, MCKAY Fla. Dep't of Educ.), Oct. 2009, at available http://www.floridaschoolchoice.org/Information/McKay/files/Fast FactsMc Kay.pdf (last visited Mar. 22, 2010).

144. John M

McKay

SCHOLARSHIP PROGRAM (School Choice:

145. Id. 146. See, e.g., OFFICE OF INDEP. EDUC. & PARENTAL CHOICE, FLA. DEP'T SEPTEMBER OF EDUC., JOHN M. McKAY SCHOLARSHIP PROGRAM: at available 2009), (Sep. REPORT QUARTERLY http://www.floridaschoolchoice.org/Information/McKay/quarterly-reports/m

ckayreport-sept2009.pdf.

John MarshallLaw Journal

224

[Vol. III

participation by school district, gender, grade level, eligibility

for free/reduced lunch, race/ethnicity, matrix of special education services received, and primary IDEA exceptionality (disability category). 147 Additionally, these reports list the number of private schools accepting voucher students, the number of those schools that are religious, and the number of students enrolled in religious vs. non-religious schools.14 8 Interestingly, there are some discrepancies between the participation rates of students with certain types of disabilities when compared to Florida's population of disabled students.

TABLE

IDEA Exceptionality Specific Learning Disability Speech/Language Impaired Intellectually Disabled Emotionally and Behaviorally Disordered Autistic Others (including Other Health

3

% of Voucher Students 4 9 33.9%

% of Disabled Students in Florida 50

16.6%

23%

5.6%

9%

5.9%

8%

5.3%

4%

18.1%

9%

47%

Impaired)

What these quarterly reports do not contain, however, is any data whatsoever regarding student achievement. Simply put, there is no available evidence regarding the achievement of students participating in this voucher program as compared to

147. Id.

148. Id. at 6.

149. See id. at 4.

150. BUREAU OF EXCEPTIONAL EDUC. AND STUDENT SERVS., FLA. DEP'T OF EDUC., STUDENTS WITH DISABILITIES ENROLLMENT, AGES 6-21, 2008-

2009, availableat http://www.fldoe.org/ese/pdfib-62 1.pdf.

No. 2]

Rationality & Results

225

their prior performance or as compared to similar students in public schools.

B. Utah's Carson Smith Special Needs ScholarshipProgram Utah enacted its own scholarship program for disabled students in 2005.11 Like Florida's program, this voucher program is available to special needs students in Utah if they were enrolled in a Utah public school the year before accessing the voucher program, have an IEP, and have obtained acceptance to an eligible private school. 152 However, these three conditions do not apply if the student has never been to a Utah public school but has instead already attended or gained acceptance into an eligible private school. In that situation, the private school in question must specialize in providing services to special needs children, and a qualified assessment team must be able to determine that the child would qualify for special education services in a public school and determine the appropriate level of special education services that would be provided in a public school (for the purposes of calculating the voucher amount).'53 The Utah legislature annually appropriates public funds for these vouchers. 54 The voucher amount is determined based on a host of factors, including the type and amount of special education services the student received, or would have received, in a public school setting, as well as the funding a school district receives for each child.'5 5 For the 2007-2008 school year, the maximum voucher amount was $6285.156 These vouchers are effective for three years but can be renewed.'

Eligible private schools must meet a list of requirements similar to those found in Florida's program. They must have a 151. UTAH CODE ANN. 152. UTAH CODE ANN. 153. UTAH CODE ANN. 154. UTAH CODE ANN. 155. UTAH CODE ANN.

§ 53A-la-701 (2009). § 53A-la-704(2)(d)(i)-(iii) (2009). § 53A-la-704 (2009). § 53A-la-706(1)(b) (2009). § 53A-la-706 (2009).

156. REPORT TO THE UTAH LEGISLATURE: A PERFORMANCE AUDIT OF THE CARSON SMITH SCHOLARSHIP FOR STUDENTS WITH SPECIAL NEEDS, NUMBER

2008-02 (2008), available at http://www.le.state.ut.us/audit/08_02rpt.pdf [hereinafter PERFORMANCE AUDIT].

157. UTAH CODE ANN. § 53A-la-704(6)(b)(i)-(ii) (2009).

226

John MarshallLaw Journal

[Vol. III

physical location in Utah where students attend classes and have direct contact with teachers (eliminating "virtual" or online schools).'

They must also demonstrate fiscal soundness, comply with the anti-discrimination provisions of 42 U.S.C. ยง 2000d, and meet state and local health and safety requirements.'5 9 As in Florida, these schools must employ teachers who (1) hold college or higher degrees; (2) have at least three years of teaching experience in a public or private school; OR (3) have special skills, knowledge, or expertise that qualify them to provide instruction in the subjects and students taught.'6 0 Unlike in Florida, however, there is at least some measure of academic accountability: private schools must administer an annual assessment of each voucher student's academic progress and report results to parents.' 6' However, the statute does not require any particular type of assessment or require that private schools report progress (or lack thereof) to

any public agency.162 The most recent audit of the program, reported in January 2008, found the program growing popularity. From the 20052006 school year (its first year of operation) to the 2007-2008 school year, the program grew from 108 students to 482 students.'63 There was also a corresponding increase in the number of private schools participating, from nine schools in the 2005-2006 school year to thirty-nine schools in the 20072008 school year.'" This audit sought to determine whether the program was meeting its goals. The audit asserted that, because the statute does not require any measure of academic achievement, "the best indicator of the success of the program is parental response."' 6 As already suggested, using parental satisfaction as the sole measure of the success of an educational program, as though parental satisfaction was an end in itself, rather than a means to promote student achievement, is dubious.

Nevertheless, the audit found that parents of participating 158.

159.

160.

161.

162.

163.

164.

165.

UTAH CODE ANN. ยง 53A-la-705(1)(a) (2009).

UTAH CODE ANN. ยง 53A-la-705(c)-(d) (2009).

UTAH CODE ANN. ยง 53A-la-705 (2009).

Id. See, e.g., UTAH CODE ANN. ยง 53A-la-705 (2009).

PERFORMANCE AUDIT, supra note 156, at 6.

Id. at 9.

Id. at 23.

Rationality & Results

No. 2]

227

students were "overwhelmingly in favor of the program and find it a success."' 6 6 Of fifty-two parents surveyed, a majority were overwhelmingly positive about their chosen private school and They also similarly negative about their public schools.'16 evidenced a fundamental belief in the superiority of private education in general: 68% agreed with the statement that, "in general, private schools provide a better education than public schools."'"6 Even parents who had withdrawn from the program were positive, though less so than parents that continued to participate in the program.'69 For instance, 100% of parents who continued participation in the program agreed that their children's academic performance increased while at the private school, 68% of parents of withdrawn students agreed.17 0 Of course, these numbers do not reflect students who would not be able to gain admission to a private school in the first instance for whatever reason.' 7 ' C. Georgia'sSpecial Needs Scholarship Program Beginning with the 2007-2008 school year, Georgia's General Assembly enacted the Georgia Special Needs Scholarship Act (or "Senate Bill 10"1).172 Under this Act, special needs students can qualify for a voucher to attend an eligible private school if the student (1) has been a Georgia resident for 166. Id.

167. Id. at 23.

168. Id. at 25.

169. Id. at 26.

170. Id. It is unclear, however, on what data or evidence parents based these statements.

171. Interestingly, of the parents that had withdrawn from the program, a full 14% withdrew because the child was no longer allowed at the private school, i.e., permanently expelled, a power not available to public schools.

Id. at 27. Specifically, those children with the most significant challenges are less likely to find a private school suitable for them or willing to accept them. Those with significant intellectual disabilities or a history of behavioral difficulties may find themselves with few, if any, private school options, especially given that private schools are under no obligation to accept any particular student. Accordingly, these students with the more significant disabilities tend to remain within the public school system.

172. O.C.G.A. ยง 20-2-2110 (2009).

228

John MarshallLaw Journal

[Vol. III

at least one year prior to receiving the voucher; (2) is a special needs student pursuant to IDEA; (3) attended a Georgia public school for the previous school year during which the child had an IEP; and (4) obtains admission to an approved private school."1 3 The voucher remains available to the student until he returns to public school, graduates from high school, or reaches twenty-one years of age, whichever comes first. 17 4 Accordingly, a student could continue to receive a voucher even after he is no longer a special needs student, as no reassessment to determine continued disability status is required.

Approved private schools must meet virtually the same requirements as under Utah's Carson Smith Scholarship Program: they must have a physical location in Georgia (eliminating "virtual" or online schools); demonstrate fiscal soundness; comply with the anti-discrimination provisions of 42 U.S.C. ยง 2000(d); comply with applicable health/safety provisions; and employ teachers who (1) hold college or higher degrees, (2) have at least three years of teaching experience in a public or private school, OR (3) have special skills, knowledge, or expertise that qualify them to provide instruction in the subjects and students taught."' Unique to Georgia, however, private schools must "regularly report to the parent and the [Georgia Department of Education] on the student's academic progress, including the results of pre-academic assessments and post-academic assessments given to the student, in accordance with department guidelines."7 Accordingly, there is at least an attempt to create some level of public accountability associated with this program. Voucher amounts are based upon the state's share of funding for each student, given basic state per-pupil allocations, along with additional funds based on special education services provided.17 7 In the 2007-2008 school year, voucher amounts ranged from $2536 to $15,324, with the

173. O.C.G.A. ยง 20-2-2114(a) (2009). The Georgia Special Needs Scholarship Act also allows special needs students to obtain transfers to other public schools, within limited circumstances. Id. 174. Id. 175. O.C.G.A. ยง 20-2-2115(a)(1)-(7) (2009).

176. O.C.G.A. ยง 20-2-2115 (2009) (emphasis added).

177. See, e.g., O.C.G.A. ยง 20-2-2116 (2009).

No. 2]1

Rationality & Results

229

average amount being $6260." In the 2008-2009 school year, meanwhile, voucher amounts ranged from $2592 to $13,586, with the average voucher amount being $6331.179 Average tuition at approved private schools, by contrast, ranged from $3270 to $37,950 per year.18 0 Participating private schools increased in number from 117 in 2007-2008 to 145 in 20082009.11 Of these 145 private schools, fifty-eight of them reported annual tuition rates in excess of $10,000.1 82 Preliminary data regarding the Special Needs Scholarship program provides some valuable information. As in Florida and Utah, the program has grown in popularity for new students.183 The program, however, has a very high attrition rate. In 20072008, 899 students began the school year with a special needs voucher.184 Of these students, 825 (91.7%) finished the school Of these 825 original special year in the voucher program. needs voucher students, only 675 reenrolled in the program for the 2008-2009 school year, representing a 24.9% attrition

EDUC., 2007-2008 GEORGIA SPECIAL NEEDS (GSNS) YEAR END REPORT, 2 (2008), available at http://www.doe.kl2.ga.us/DMGetDocument.aspx/End%200f%/ 2OYear/ 2OR eport%20-%202007%20%202008%2OGeorgia%2OSpecial%2ONeeds%2OScholarship%2OEnd%200f %20Year%20Report%20report%2Osent%2Oto%20Legislature%20120308.pdfp=6CC6799F8C1 37 1F6E 1764D2812D6897813D7F6853FDFD50ADA3C9695FC2D495E&T ype=D [hereinafter 2007-2008 YEAR END REPORT].

179. GA. DEP'T OF EDUC., 2008-2009 GEORGIA SPECIAL NEEDS SCHOLARSHIP PROGRAM (GSNS) PRELIMINARY DATA REPORT, 2 (2008), at available http://www.doe.kl2.ga.us/DMGetDocument.aspx/Preliminary%2OReport%2 0-%2020082 2009%2oGeorgia%2OSpecial%2ONeeds%2OScholarship%20Preliminary% OReport%20report%20sent%20to%2OLegis%20120508.pdf?p=6CC6799F8Cl 37 1F6 BADFFC8Al 57ABE2D880C32FI 122808204D72BOFE7DEE905E&Type= D [hereinafter 2008-2009 PRELIMINARY DATA REPORT].

178. GA. DEP'T OF SCHOLARSHIP PROGRAM

180. Id. at 14-16.

181. Id. at 2.

182. See id. at 14-16.

183. See id. at 2.

184. 2007-2008 YEAR END REPORT, supra 178, at 2.

185. Id. at 2.

230

John MarshallLaw Journal

[Vol. III

rate.'16 Thus, each of these 124 students who left the program must have attended at least three different schools in as many years. Moreover, these transfers were not akin to simply going to another school within the same school district, with both schools operating under virtually the same policies, procedures, curricula, etc. Rather, these transfers necessitated going from a public school to a private school (with, one assumes, widely divergent practices, atmosphere, curricula, etc.) and then again to yet another school. It has long been posited that school mobility has a negative effect on student achievement. In fact, a recent report that assessed studies over the past twenty years concluded that frequent mobility led to higher dropout rates and lower academic achievement.'"8 Despite this attrition rate, the program has grown overall, with 1596 students participating at the beginning of the 2008-2009 school year."'

As in Florida, however, there is some discrepancy between the disability categories of Georgia students receiving special needs vouchers and their proportional representation in Georgia's special needs population as a whole. Specifically, in 2007-2008, students with significant developmental delays and intellectual disabilities appear to be underrepresented among special needs voucher students, while students with autism and Other Health Impairment (an all-inclusive eligibility category that includes medical conditions such as attention deficit hyperactivity disorder ("ADHD")) are overrepresented.18 186. 2008-2009 PRELIMINARY DATA REPORT, supra note 179, at 2.

187. Arthur J. Reynolds, Chin-Chih Chen & Janette E. Herberse, School Mobility and Educational Success: A Research Synthesis and Evidence on Prevention, (June 22, 2009) available at http://www.fcdus.org/usr-doc/ReynoldsSchoolMobilityAndEducationalSuccess.pdf (presented at the Workshop on the Impact of Mobility and Change on the Lives of Young Children, Schools, and Neighborhoods; Bd. on Children, Youth, and Families, Nat'l Res. Council, June 29-30, 2009, Washington, D.C.).

188. 2008-2009 PRELIMINARY DATA REPORT, supra note 179, at 2.

189. 2007-2008 YEAR END REPORT, supra note 178, at 6. There may be

several factors that lead to this discrepancy. First, those with the most significant challenges, such as those with intellectual disabilities, may be underrepresented among Senate Bill 10 recipients due to the relative unavailability of private educational programs for these students. Similarly, speech impaired students may be underrepresented due to the relatively small amount of the vouchers available to them. By contrast, those classified as

Rationality & Results

No. 2]

23 1

TABLE 4

% of Georgia's Special Needs

IDEA Exceptionality

% of SB 10 Students"

Vision Impairment Other Health

0 27.4%

0 14%

0.4%

0.9%

29.8%

28%

10.1%

10.8%

7.8%

11.7%

3.7%

7%

0.6%

0.2%

8.3% 10.8% 0 0.1%

4.5% 21.6% 0 0.3%

Students"'

Impairment

Deaf/Hard of Hearing Orthopedic Impairment Specific Learning Disability Emotional/Behavior Disordered Intellectually Disabled (Mild, Moderate, Severe, Profound) Significant Developmental Delay

Traumatic Brain Injury

Autism Speech Impaired Deaf and Blind Blind

Further, while Georgia has made an admirable attempt to provide some measure of academic accountability for approved "Other Health Impaired" may be overrepresented due to relatively higher scholarship amounts, combined with the ready availability of private programs that advertise themselves as addressing many conditions subsumed under the "Other Health Impaired" category, such as ADHD. There is, however, no definitive research providing an explanation for these discrepancies.

190. See id.

191. See GA. DEP'T OF EDUC., 2007-2008 SPECIAL EDUCATION ANNUAL

REPORT, available at http://www.doe.kl2.ga.us/ReportingFW.aspx?PageReq=105&PTID=5 1&CT ID=76&Source=Enrollment&PID=37&Stateld=ALL&T=1&FY=2008 (last visited Mar. 22, 2010).

John MarshallLaw Journal

232

[Vol. III

private schools by requiring them to report student performance on pre- and post-assessment data, this data has not been readily available in any useful form. For the 2007-2008 school year, the Georgia Department of Education noted that special needs voucher students were reportedly assessed using fifty-five different instructions, including the Iowa Test of Basic Skills, Stanford Achievement Test, Brigance Inventory of Early Development, and report cards. 19 2 Unfortunately, the Georgia Department of Education concluded, "the data submitted from "Pre- and many schools was inconclusive or incomplete."' post-assessment data could not be aggregated to determine overall academic progress (if any) because a common scale of measurement did not exist."'9 4 The Department of Education concluded that it would need to provide technical assistance to private schools to promote a more standardized process for assessing student academic progress.195 D. ObligationsofPrivate v. PublicSchools to Disabled Students Moreover, it is important to keep in mind that private schools function very differently than public schools regarding students with disabilities. As an initial matter, public schools cannot turn away children, regardless of the severity or nature of their disability.19 6 The Individuals with Disabilities Education Act heavily regulates how public school districts educate students with disabilities and provides a panoply of rights to disabled students and their parents. 197 2007-2008 YEAR END REPORT, supra note 178, at 2.

Id. Id. Id. It is, as yet, unclear how a common scale of measurement would even be feasible, unless private schools were willing to subject themselves to at least some regulation and oversight from the Georgia Department of Education.

196. 20 U.S.C. ยง 1416 (2010); 34 C.F.R. ยง 300.101 (2010).

197. See supra note 137 and accompanying text; see also GA. DEP'T OF 192.

193.

194.

195.

EDUC., YOUR RIGHTS AS PARENTS - REGARDING SPECIAL EDUCATION,

at available http://public.doe.kl2.ga.us/DMGetDocument.aspx/ParentsRights-revised_8 -52009.pdfp=6CC6799F8C137 1F6CD2DB932A7 11B74A7985E1 3874542B46

No. 2]

Rationality & Results

233

For instance, public schools must provide a comprehensive evaluation in all areas of suspected disability at least every three years.198 They must develop (with the collaboration and input of parents) an annual IEP for each and every disabled child that includes specific and measurable goals and objectives for the child to reach within one year's time.199 These IEPs must also include a specific statement of the frequency, duration, and setting of special education services the child will receive.2 00 These services must be comprehensive enough to meet all of the child's educational needs.2 01 In some cases, these services must also be provided during breaks in the school year, such as summer and longer breaks (called Extended School Year services, which are separate and distinct from "summer school" programs).2 02 These services must be sufficient to afford the child a "free appropriate public education," such that the child makes actual, measurable educational progress.2 03 Moreover, these services must be provided in the "least restrictive environment" such that disabled children are educated with their nondisabled peers to the maximum extent appropriate. 20 If the public school district is not able to provide the unique services a child requires, it must pay for those services to be provided by a private agency such that the education is provided at no cost to the parents.20 5 In some cases, this can mean paying for private therapies, paying for private school tuition, or even paying for residential facilities that can cost several hundreds of thousands of dollars each year.

4E71586BO401DDIB4&Type=D. 198. 20 U.S.C. § 1414(a)(2)(B)(ii) (2010); 34 C.F.R. § 300.303 (2010) (listing parental rights long protected by IDEA).

199. 20 U.S.C. § 1414(d) (2010); 34 C.F.R. §§ 300.320-28 (2010).

200. 20 U.S.C. § 1414(d)(1)(A)(i)(VII) (2010); 34 C.F.R. § 300.303 (2010).

201. 20 U.S.C. § 1414(d)(l)(A)(i)(II)(bb) (2010); 34 C.F.R. § 300.303 (2010).

202. GA COMP. R. & REGs. 160-4-7-.06(18)(c) (2009), available at http://rules.sos.state.ga.us/docs/160/4/7/06.pdf.

203. 20 U.S.C. § 1412(a)(1) (2010); 34 C.F.R. §§ 300.320-328 (2010).

204. 20 U.S.C. § 1412(a)(5) (2010); 34 C.F.R. §§ 300.320-328 (2010).

205. 20 U.S.C. § 1413(a)(10)(B)(i) (2010); 34 C.F.R. §§ 300.320-328 (2010).

234

John MarshallLaw Journal

[Vol. III

School districts must then provide to parents written progress reports not only on the child's academic achievement, but also on his progress towards his IEP goals and objectives (and must have copious written data to verify the information).2 06 Parents also have the right to receive written notices of all meetings, an opportunity to provide written informed consent before any evaluation can be conducted, and written notice regarding any aspect of the identification, evaluation, or educational placement of their children.20 7 IDEA protections for disabled students also extend to student discipline.20 8 If necessary, a disabled student is entitled to a written "behavior intervention plan," individualized to the child, that dictates a series of steps a teacher must take in order to try to de-escalate problematic behavior or prevent such behavior in the first place. 20 9 Further, school districts cannot discipline students for behavior that is related to their disability. 210 While seemingly simple in theory, this prohibition becomes quite complicated in practice and can lead to surprising results. For instance, in at least one case, a court held that a school could not impose any discipline on a disabled student who had participated in the planned vandalism of his principal's home.2 1 1 Even if a school district is properly able to discipline a disabled student, it must continue to provide him appropriate educational services.2 12 Accordingly, "permanent expulsion" is never a possibility, and a district can never absolve itself of the responsibility to appropriately educate every disabled child within its jurisdiction.2 1 3

206. See GA COMP. R. & REGS. 160-4-7-.06(18)(c) (2009), available at http://rules.sos.state.ga.us/docs/160/4/7/06.pdf.

207. 20 U.S.C. § 1415(c) (2010); 34 C.F.R. §§ 300.320-28 (2010).

208. 20 U.S.C. § 1415(k) (2010); 34 C.F.R. §§ 300.530-37 (2010). See also Office of Special Educ. Programs, U.S. Dep't of Educ., IDEA Regulations: Discipline, http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalBrief/ 2C6%2C (last visited Mar. 22, 2010).

209. 20 U.S.C. § 1415(k)(1)(D)(ii) (2010).

210. 20 U.S.C. § 1415(k)(1)(F) (2010).

211. In re: Student with a Disability, 109 LRP 61285 (SEA Wis. 2009).

212. 20 U.S.C. § 1415(k)(1)(G) (2010); 34 C.F.R. §§ 300.530-37 (2010).

213. 20 U.S.C. § 1415(k)(1)(G) (2010); 34 C.F.R. §§ 300.530-37 (2010).

No. 2]

Rationality & Results

235

Not only do parents have the above rights for their children, IDEA provides several options for parents to challenge a school district's actions. Parents may file a written complaint with the applicable state department of education or a complaint with the federal Office of Civil Rights, a division of the United States Department of Education. 2 14 At that point, the respective government agency will investigate the complaint and determine if the school district has complied with the requirements of IDEA.215 Parents can also request a due process hearing alleging any violation of IDEA. 2 16 These due process hearings, though nominally administrative in nature, are actually full-blown trials in which both parties have the right to present and confront witnesses, present documentary evidence.217 For instance, one administrative hearing in Illinois lasted forty-two trial days.2 18 These hearings often do not end at the administrative level. IDEA allows parties unhappy with the outcome to appeal to federal district court for a modified de novo review of the administrative decision, and then to the relevant circuit court, and so on.2 19 Accordingly, a due process hearing can actually take several years to resolve. Moreover, they tend to become very expensive, with school districts required to expend attorneys' fees to defend their actions. And, if parents prevail, the school district often must pay the parents' attorneys fees.220 Private schools (even those receiving voucher students) are obligated to none of these requirements. Private schools enjoy many privileges that are categorically unavailable to public schools. These schools can discriminate on the basis of gender, religion, and even disability.22 1 While public schools are subject to the Equal Protection Clause of the U.S. Constitution (and thus cannot discriminate against children on any protected basis), private schools are subject only to 42 U.S.C. § 2000d, 214. 20 U.S.C.

§ 1415(c)(2)(A) (2010).

215. 20 U.S.C. § 1414(c)(2)(B) (2010).

216. 20 U.S.C. § 1414(f) (2010).

217. 20 U.S.C. § 1415(f)(1)(A) (2010); 34 C.F.R. §§ 300.507-18 (2010).

218. Bd. of Educ. v. Michael R., 44 IDELR 36 (N.D. 111.

2005).

219. 20 U.S.C. § 1415(g) (2010); 34 C.F.R. §§ 300.507-18 (2010).

220. 20 U.S.C. § 1415(i)(3)(B) (2010); 34 C.F.R. §§ 300.507-18 (2010).

221. 42 U.S.C. § 2000d (2010) (corresponds to the Civil Rights Act of 1964).

236

John MarshallLaw Journal

[Vol. III

prohibiting discrimination only on the basis of race, color, and national origin.m Private schools are, thus, free to discriminate on the basis of sex, religion, socio-economic status, and disability. They can pick and choose their students, refusing to accept students whose needs are more challenging (like those with intellectual disabilities or a history of behavioral problems) or who are not a "good fit" for their school, thereby creating an "ideal student body" for their educational structure and philosophy.

Further, if a private school determines it has accepted a student it should not have, it can take steps to address the situation. Private schools can choose to permanently expel students due to behavior concerns, perceptions of parental interference, parental refusal to medicate children, or inability or unwillingness to provide certain services. They can refuse to provide certain services, such as specific therapies or transportation, that a public school would be required, by law, to provide. They can also segregate disabled children away from nondisabled peers - a direct violation of the "least restrictive environment" requirement applicable to public schools. In short, then, any attempt to compare public and private educational services for students with disabilities requires a comparison between two very different systems, with the public system subject to a plethora of requirements not applicable to their private counterparts. Accordingly, any such "apples to oranges" comparison between educational outcomes should be taken with a grain of salt. In fact, it should be expected that a school that picks and chooses its student body would post higher school-wide student achievement results than a school that was required to accept and educate any student who walked through its doors.

In passing the Georgia Special Needs Scholarship Act, the General Assembly made an admirable attempt at requiring some measure of accountability from participating private schools who receive public funds. Despite this effort, there is no real evidence to suggest that this program is successful in increasing student achievement. There is a similar lack of evidence with Florida's and Utah's respective programs. Nevertheless, these programs continue to grow and enjoy political support, due in 222. U.S. CONST. amend. XIV, ยง 1; 42 U.S.C. (corresponds to the Civil Rights Act of 1964).

ยง 2000d (2010)

Rationality & Results

No. 2]

237

part to motivations that often have little to do with student achievement.

V. PSYCHOLOGICAL EXPLANATIONS FOR THE IMPETUS TOwARDS SCHOOL CHOICE

As explained above, the motivations for pursuing school choice have often been far removed from concerns about student achievement. Today, certainly, motives behind school choice are more egalitarian and focus, at least in part, on increasing student achievement. Yet, as shown above, the evidence to support the idea that school choice actually improves student achievement is inconclusive (in the case of charter schools) or nonexistent (in the case of special needs vouchers, despite their availability for nearly a decade in Florida). So, why does the idea of school choice dominate so much of the debate surrounding educational reform, often to the exclusion of other ideas? Why do parents report so much satisfaction with choice programs, despite hard data to show that choice actually helps students? This article suggests that the psychological preference for things that we choose, thereby fulfilling a sense of personal agency that holds unique importance in American culture, helps explain what would otherwise be an arguably irrational response. Additionally, the psychological effects of ownership - even without actual School choice ownership - exert a powerful influence. or private schools programs - whether they be public charter schools that receive public funds through vouchers - enjoy the positive psychological effects of choice and ownership response from the parents who elect to enroll their children.

A. Choice Response As succinctly stated by lyengar and Lepper, "Americans cherish choice."2 23 As they and other researchers have noted, allowing individuals to exercise a choice (for instance, to 223. Sheena S. Iyengar & Mark R. Lepper, Rethinking the Value of Choice: A Culture Perspective on Intrinsic Motivation, 73 J. PERSONALITY AND

Soc.

PSYCH.

349,

349-66

(1999),

available

http://www.columbia.edu/-ss957/articles/Rethinking-theValue-ofChoice.

pdf.

at

238

John MarshallLaw Journal

[Vol. III

choose which school their children attend) increases a sense of personal control,224 as well as intrinsic motivation for a task.225 Iyengar and Lepper confirmed these principles in a study involving elementary school children in San Francisco. 6 They studied fifty-three Anglo-American children enrolled in two elementary schools in the San Francisco area. 227 These children were presented a set of cards with anagrams for them to solve.228 In one condition, the child got to choose which anagrams to solve (the "personal choice condition").2 29 In another condition, the experimenter chose which anagrams the child attempted to solve (the "experimenter choice condition").23 0 In a third condition, the experimenter told the child that his/her mother had chosen which anagrams the child would solve (the "mother choice condition)". 231 After each session, the children were given a free-play period during which they could entertain themselves however they saw fit - including continuing to work on the anagrams in the experiment.23 2 Iyengar and Lepper found that, as predicted, personal choice had positive effects on these children. 233 The children performed better on the task (as measured by the number of correctly solved anagrams) when they chose which anagrams to solve, i.e., when they exercised some level of choice over the 224. Id. at 366 (citing J.B. Rotter, Generalized Expectationsfor Internal Versus External Control of Reinforcement, 80 PSYCHOL. MONOGRAPH: GENERAL & APPLIED 1-28 (1966); S. E. TAYLOR, POSITIVE ILLUSIONS: CREATIVE SELF DESCRIPTION AND THE HEALTHY MIND (Basic Books 1989); S. E. Taylor & J. D. Brown, Illusion and Well Being: A Social PsychologicalPerspective on Mental Health, 103 PSYCHOL. BULL. 193-210 (1988)).

225. lyengar & Lepper, supra note 223, at 349 (citing R. DECHARMS, PERSONAL CAUSATION (Academia Press 1968); see generally E.L. DEC1, THE PSYCHOLOGY OF SELF DETERMINATION (Lexington Books 1981); E.L. DECI & R.M. RYAN, INTRINSIC MOTIVATION AND SELF DETERMINATION IN HUMAN BEHAVIOR (Plenum Press 1985)).

226. lyengar & Lepper, supra note 223, at 351.

227. Id. 228. Id. 229. Id. at 351-52.

230. Id. 231. Id. at 352.

232. Id. at 354.

233. Id.

No. 2]

Rationality & Results

239

activity.23 4 These children performed significantly less well in the experimenter choice and mother choice conditions.235 Similarly, these children showed greater intrinsic motivation for the task (as measured by how long each child chose to spend working on anagrams during the free-play period) after the personal choice condition.3 These same principles can easily be grafted onto the school choice phenomenon. Parents, by exercising some level of personal choice over the school their children attend, thereby are more intrinsically motivated regarding that school. What does it mean for a parent to have more intrinsic motivation in relation to a school? This can play out in any number of ways.

Parents may more fervently support teachers and administrators when it comes to their children. They may more thoroughly instill a sense of the importance that the child be successful at that school. They may become more involved in the school parent-teacher efforts, volunteer through community associations, etc .

. Their own intrinsic motivation can, in

. .

turn, have powerful effects on their children's own sense of

intrinsic motivation. 23 7

234. Id. at 354-55.

235. Id. at 355.

236. Id. 237. lyengar and Lepper did note important cultural differences, however.

They repeated their experiment with fifty-two Asian-American elementary school children in the San Francisco area. All of the selected children spoke their native Asian language at home with their families, so the researchers could ensure that the children had not yet completely assimilated into American culture. Iyengar and Lepper found that these Asian-American children performed best on the anagram task in the mother choice condition, significantly lower in the personal choice condition, and even lower still in the experimenter choice condition. They also found that these AsianAmerican children showed most intrinsic motivation for the task after the mother choice condition, significantly lower intrinsic motivation in the personal choice condition, and the least intrinsic motivation in the experimenter choice condition. The researchers suggest that children from more interdependent cultures place less value on personal choice. These findings suggest that comparisons between American systems of public education and those in other countries, such as Japan and India, may be misguided, and attempts to mimic those systems should be approached with caution. Id. at 350-64.

240

John MarshallLaw Journal

[Vol. III

B. Ownership Response Exercising school choice can also illicit a strong ownership response in parents. Research has long indicated that feelings of ownership can provoke strong positive responses from the ''owners." Researchers have long noted that "people feel positively about tangible and intangible targets of ownership." 238 For instance, people tend to evaluate ideas and objects more favorably when they felt a sense of ownership for the target,23 9 and "feelings of psychological ownership lead to positive attitudes about the entity."2 4 0 In fact, "feelings of ownership cause people to view tangible and intangible possessions as part of the extended self,"2 41 and these "possessions" become linked to the self-concept. 2 42 In addition to this positive response and link to self-concept triggered by psychological feelings of ownership, these feelings "trigger a sense of responsibility for the entity."2 43 Thus, "the psychology of possession identifies three fundamental outcomes associated with feelings of possession: positive attitudes toward the target, enhanced selfconcept, and a sense of responsibility." 244 238. Linn Van Dyne & Jon Pierce, PsychologicalOwnership and Feelings of Possession: Three Field Studies Predicting Employee Attitudes and OrganizationalCitizenship Behavior, 25 J. ORGANIZATIONAL BEHAV. 439, 441 (2004), available at http://www.linnvandyne.com/papers/JOB%202004%2Van%2Dyne%2OPi erce%20Psychological%200wnership.pdf.

239. Id. (citing J. K. Beggan, On the Social Nature of Nonsocial Perception: The Mere Ownership Effect, 62 J. PERSONALITY & Soc. PSYCHOL. 229-37 (1992)).

240. Id. (citing J. M. Nuttin, Jr., Affective Consequence of Mere Ownership: The Name Letter Effect in Twelve European Languages, 17 EUR. J. SOCIAL PSYCHOL. 381-402 (1987)).

241. Id. (citing R.W. Belk, Possessions and the Extended Self, 15 CONSUMER RES. 139-168 (1988); H. DITTMAR, THE SOCIAL PSYCHOLOGY OF MATERIAL POSSESSION: To HAVE IS To BE (St. Martin Press 1992); L.

Furby, Possession in Humans: An Exploratory Study of Its Meaning and Motivation, 6 Soc. BEHAV.. & PERSONALITY 49-65 (1978)).

242. Id. (citing Furby, supra note 241).

243. Id. (citing E. BEAGLEHOLE, PROPERTY: A STUDY PSYCHOLOGY (MacMillan 1932); Furby, supra note 241).

IN SOCIAL

244. Id.; Van Dyne & Pierce, supra note 238, at 442 (citing Furby, supra note 241; L. Furby, Understandingthe Psychology ofPossession and

No. 2]

Rationality & Results

241

The "endowment effect," the tendency to value goods that one owns more highly than identical goods one does not own, has been illustrated again and again. 245 For instance, in 1980, a researcher gave coffee mugs to half the students in the class, gave nothing to the other half, and allowed them to trade mugs. 24 6 Very few elected to trade anything. 247 Those with the mugs valued them more highly than those without, so a mutually agreeable trade could rarely be accomplished.24 8 In other words, merely having something gave it a higher value than not having it.2 4 9 Importantly, actual ownership is not necessary to invoke the psychological feeling of ownership and the resulting endowment effects. 250 Rather, simply possession or stewardship of an object can create the feeling of ownership.2 5 ' For instance, Reb and Connelly conducted an experiment to determine the value subjects placed on a chocolate bar.252 In the "possession condition," subjects were handed the chocolate bar and asked to keep it for thirty minutes for use in an unrelated study, in which they also participated.25 3 In the "no possession condition," subjects were not shown the chocolate bar until after they had participated in that unrelated study.254 In the "ownership condition," participants were given the chocolate bar after participating in the unrelated study and told they could exchange it for a sum of money.2 55 In the "no ownership condition," participants were told they could simply choose

Ownership: A PersonalMemoir and Appraisal of Our Progress, 6 J. Soc. BEHAV. & PERSONALITY 457-63 (1991)).

245. Jochen Reb & Terry Connelly, Possession, Feelings of Ownership and the Endowment Effect, 2 J. JUDGMENT & DECISION MAKING 107, 107-14 (2007).

246. Id. 247. Id. 248. Id. 249. Id. (citing R. H. Thaler, Toward a Positive Theory of Consumer Choice, 1 J. ECON. BEHAV. & ORG. 39-60).

250. Reb & Connelly, supra note 245, at 110.

251. Id. at 112 252. Id. 253. Id. at 108-09.

254. Id. 255. Id.

John MarshallLaw Journal

242

[Vol. III

between the chocolate bar and money.256 Afterwards, all participants completed a response sheet that presented a series of questions asking whether the participants would choose the chocolate bar or a specified sum of money, with participants indicating their preference at each amount.257 Surprisingly, the chocolate bar was more highly valued through mere possession of the chocolate bar, rather than actual ownership of the chocolate bar.2 58 In other words, participants who were told to simply safeguard a chocolate bar that they did not own valued it more highly than those that were told they actually owned the chocolate bar. The researchers concluded that "the endowment effect (the phenomenon that leads people to value things they own more highly than identical goods that they do not own) may be primarily driven by subjective feelings of ownership rather than by factual ownership as such."2 5 9 One can readily see how schools of choice enjoy these positive endowment and ownership effects, as well as choice response, amongst parents who enroll their children there. As an initial matter, it is only logical that parents must prefer these schools and value them more highly by the mere fact that they have chosen to send their children to them. Parents do not set out to intentionally and knowingly make bad choices for their children. Moreover, charter and voucher schools require more investment from their parents, a devotion of actual resources towards the school that can lead to powerful feelings of ownership. Parents must fill out applications for enrollment, sometimes go through an interview process (in the case of private schools receiving voucher students), must sometimes themselves provide services (such as transportation, etc.) that traditional public schools would otherwise routinely provide, must often have their children wear school uniforms, must often commit to a certain number of parent volunteer hours per year, etc. And, of course, private schools (even discounting the value of vouchers) often require an additional investment of tuition, a direct allocation of resources from parents.

256.

257.

258.

259.

Id. Id. at 109.

Id. at 112.

Id.

No. 2]

Rationality & Results

243

And this is how the three outcomes of ownership effect positive attitudes towards the entity, link to self-concept, and a sense of responsibility towards the entity - become powerful and self-reinforcing. These schools require an investment of resources, attention, and commitment that traditional public schools do not. Charter schools often have dedicated positions on their governing boards for parent representatives, giving them actual responsibility for how the school functions.26 0 One can readily see how feelings of ownership arise. Parents already come with positive feelings towards the school - they have chosen it for their children, after all. Parents - and students - then become "owners" of these schools, with all the effects that "ownership" entails.

A vivid example of this phenomenon can be seen in the case of Ivy Preparatory Academy Charter School, a newly-approved commission charter school. As noted above, the constitutional status of the commission is currently being challenged, bringing into question the continued existence of the school. 26' At a recent public school board meeting, over 300 people (students, parents, and faculty) associated with Ivy Prep packed the hall and made powerful and compelling statements in support of "their" school.262 One student asked "why are you trying to close down my school," a statement that makes unmistakable her feelings of ownership towards this school.26 3 Another 260. See GA. COMP. R. & REGs. 160-4-9-.04(5)(a)(10)(i)(V) (2009), available at http://irules.sos.state.ga.us/docs/160/4/9/04.pdf (requiring all

charter petitioners to include a statement of how "parents, members of the community, and other interested parties will be involved in the governing board of the school"); see also Charter School Agreement, http://public.doe.kl2.ga.us/DMGetDocument.aspx/Neighborhood%20Charte r/o2OSchool%2OCharter/20Petition.pdf?p=6CC6799F8C1371F62B219A8B (last IBl77706AC77CF806D74C899E6120FIDO7BFD178&Type=D visited Mar. 21, 2010) (reserving nine seats on its governing board for parents).

261. D. Aileen Dodd, Gwinnett Schools Suing Over Charter School's Funding, ATLANTA J.-CONsT., Sept. 10, 2009; D. Aileen Dodd, Charter Schools Grow But So Do Legal Challenges, ATLANTA J.-CONST., Oct., 21, 2009; D. Aileen Dodd, Atlanta Becomes Latest District To Sue State, ATLANTA J.-CONST., Oct. 27 2009.

262. D. Aileen Dodd, Lawsuit Spurs CharterSchool Support in Gwinnett, ATLANTA J.-CONST., Oct. 8, 2009.

263. Id. (emphasis added).

244

John MarshallLaw Journal

[Vol. III

student explained that, because she is at Ivy Prep, "she is Ivy League-bound," a powerful statement of the connection this student feels between her own sense of self and potential and this school.2" The underlying subtext is clear: if my school fails, I fail.

VI.

RECOMMENDATIONS

So how do traditional public schools inspire the kind of commitment and positive feelings that schools of choice seem to inspire in their parents and students?2 65 After all, traditional public schools continue (and will continue) to educate the vast majority of America's schoolchildren.2 66 Traditional public schools must do more to create the feelings of ownership that charter and private schools are so adept at creating, and they can do so by mimicking some of the features of charter and private schools. Traditional public schools should make a stronger effort at encouraging parental influence on school governance and give parents real power to set school-level policies and practices. Schools should also do all they can to encourage and, in some cases, explicitly require, as some charter and Parental private schools do - parental involvement. involvement can come in a myriad of varieties, such as being a "room parent," helping with a fundraiser, or serving on a committee to plan a school event.2 67 264. Id.

265. Of course, there exist very high performing traditional public schools that inspire these same feelings, to such an extent that parents sometimes provide false information about their residence in order to get their child into that school. However, these schools are far from universal.

266. In 2006-2007, the National Center for Education Statistics estimated approximately 55.7 million children in America's public schools, 6.1 million children in private schools, and 1.2 million children in public charter schools.

NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., FAST FACTS: WHAT ARE THE ELEMENTARY

ENROLLMENT AND

TRENDS IN PUBLIC AND PRIVATE SECONDARY SCHOOLS?,

http://nces.ed.gov/fastfacts/display.asp?Id=65 (last visited Mar. 22, 2010); Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ., Fast Facts: What Are Charter Schools? How Common Are They, and Who Do They Serve?, http://nces.ed.gov/fastfacts/display.asp?Id=30 (last visited Mar. 22, 2010).

267. Certainly, achieving this level of parental involvement will require some schools doing a better job reaching out to communities who have

No. 2]

Rationality & Results

245

Additionally, traditional public schools (and, most importantly, state and federal educational systems, who set the educational agenda and a multitude of rules that traditional public schools must follow) must move away from the idea that children are equal learning units whose learning and evaluation can be endlessly standardized, with schools serving as an assembly line for the insertion of knowledge. This mentality has understandably led public education to get the most "bang" for our educational dollars by "working the middle," i.e., catering towards the middle of the bell curve while paying less attention to those on the higher and lower ends of it.

Meanwhile, schools become larger and larger, bowing to economies of scale, while children and parents necessarily get less individualized attention. It is difficult to feel a sense of commitment, of ownership, of belonging to a school community when you believe most people do not know you or your child.

Smaller school communities can help overcome this hurdle.

These smaller communities do not necessarily require smaller Rather, school-within-a-school schools overall, however. models 268 may be just as efficient. Some traditional public schools in Georgia have already embraced such a concept. For instance, the Georgia Department of Education requires that public middle schools, in order to receive full middle school funding, have a team of teachers teach the same group of students for at least five hours per day. In addition, the team of teachers must receive at least fifty-five minutes of common planning time. 2 69 As a result, the same group of teachers teaches the same group of students for the great majority of the school day, effectively creating a smaller learning community.

Some systems have taken this concept further. Atlanta Public historically been less involved and thinking creatively to allow parents who may have many life stressors to play an active and meaningful role in their school's community. model creates smaller learning 268. A school-within-a-school communities within a larger school. For instance, a public high school may divide its student body into separate "concentration areas," with a focus on math/science, humanities, etc. These groups of students would then spend most of their classes together and take elective courses with each other in the given area of concentration. Administrators may be dedicated to each concentration area, as well.

269. GA. COMP. R. & REGS. 160-4-2-.05 (2009), available at http://rules.sos.state.ga.us/does/160/4/2/05.pdf.

246

John MarshallLaw Journal

[Vol. III

Schools, for instance, has begun the process of transforming its high schools into smaller learning communities, as well. 2 70 VII. CONCLUSION

School choice in public education is a politically powerful issue that dominates the debate surrounding public education.

This is true, despite there being, at best, inconclusive evidence that choice actually serves the primary purpose of any increasing student achievement. educational system Nevertheless, the concept of school choice enjoys broad support across the political spectrum. It so dominates the debate surrounding school reform that, often, other ideas that are more directly targeted towards student achievement cannot find any oxygen. In fact, this entire article has not focused on student achievement, as the evidence linking achievement and choice is simply not yet in any reliable or conclusive form.

This article should not be interpreted to mean that school choice has had no positive impact on individual students.

Rather, there are undoubtedly individual students who have reaped personal benefits from taking advantage of charter schools and voucher systems. Further, this article should not be read to suggest that charter or private schools are necessarily wholly negative forces. There can be no doubt that there are some good charter and private schools that do a good job educating some individual students. But public policy must, by definition, look beyond the individual and try to seek the most good for the most people. School choice (and the parental satisfaction that seems to come with it) should properly be seen as a means to the ultimate goal of increased student achievement, rather than as a goal in itself. Because, however, this issue has so captured the debate around education reform, the education establishment must effectively address it in order

270. Support for the High School Transformation Plans, Rep. No. 05/060111 (Atlanta Bd. of Educ., Apr. 11, 2006) (resolution, available at http://www.atlantapublicschools.us/186110129142911720/blank/browse.asp ATLANTA PUB. SCHS., ?A=383&BMDRN=2000&BCOB=0&C=55196; at available FAQ, TRANSFORMATION SCHOOL HIGH

http://www.atlantapublicschools.us/1 86110129142911720/blank/browse.asp ?A=383&BMDRN=2000&BCOB=0&C=55199 (last visited Mar. 21, 2010).

No. 2]

Rationality & Results

247

to move on to other, more student-achievement centered reforms.

A TRAGIC VOID: GEORGIA'S FAILURE TO REGULATE RESTRAINT & SECLUSION IN SCHOOLS CRAIG GOODMARK*

I.

INTRODUCTION

II.

THE USE OF RESTRAINT & SECLUSION IN SCHOOLS........

III.

..

............ 250 ......

253

...... ........................

A. PhysicalRestraint. ......... ..................

B. School Based Seclusion C. The 2009 Governmental Accountability Office Study..............

D. Federaland State Laws and Regulations......................

253 257 259 261

STUDENT

A. B. IV.

...............................

ยง 1983

CLAIMS AND WHAT "SHOCKS THE CONSCIENCE".. 263

Neal andEducatorAbuse as "Punishment...... ....... 266 DeShaney, the SpecialDuty, and Jonathan............................. 272

THE BALANCE OF PROTECTING TEACHERS AND ENSURING SAFE CLASSROOMS

..........................................

279

* Mr. Goodmark is the director of the TeamChild Atlanta Project at Atlanta Legal Aid Society, Inc. TeamChild Atlanta provides legal services to low-income families with outstanding educational issues, children involved with the juvenile justice system or children whose unmet needs have not been addressed. In that capacity, Mr. Goodmark provides technical assistance, advocacy, and full legal representation to low income families whose disabled children are not having their developmental, educational or mental health needs met. Mr. Goodmark has helped hundreds of students in the metropolitan Atlanta area secure appropriate educational services. Prior to entering the Atlanta Legal Aid Society, Mr. Goodmark spent five years in private practice at law firms specializing in education law, with an emphasis on special education litigation. Mr. Goodmark has represented teachers, students, and families of children with disabilities.

John MarshallLaw Journal

250 A. B. C. V.

[Vol. III

FederalLaw..................................

280 Georgia Administrative Rules.......... ................ 281 EducationalCivil Rights Litigation...................

283

CONCLUSION

..........................................

I.

285

INTRODUCTION

In Gainesville, Georgia, a student named Jonathan King hung himself while at school.' Suicide is tragic. Suicide committed at school is harrowing. Suicide, as in the King matter, where a 13 year-old, mentally-ill student hangs himself with rope given to him by his teachers occupies a place in our consciousness that can only be labeled as unspeakable.2 And yet, in Georgia, 1. King v. Pioneer Reg'l Educ. Serv. Agency, 688 S.E.2d 7 (Ga. App. 2009). Jonathan King's story is compelling but, unfortunately, not unusual.

Jonathan, a thirteen-year-old African-American male student, was receiving special education services at the most restrictive non-residential school placement in Georgia, the Alpine Psychoeducational Program for students with severe emotional behavioral disorders. Id. at 10. In the months before his suicide, Jonathan had been forced into an 8x8 "seclusion room" or cell for nineteen of the twenty-nine days of school. The cell had one small window mostly blocked with a piece of cardboard and obstructed by a metal grating. The room locked from the outside and had no water or bathroom.

According to school records, Jonathan spent an average of 88.6 minutes in the room for each seven hour school day. Records further show that during his confinement, Jonathan threatened to kill himself, engaged in selfinjurious behaviors, complained of claustrophobia, and indicated that he would "break his arms off and beat himself with them."

On November 15, 2004, Jonathan came to school without a belt. School staff gave him rope to tie his pants up. Id. at 12. Later in the day, following a school fight, Jonathan was forced into the seclusion room. Id. A school staff person, Mr. Trotter, on his second day on the job, placed and retained Jonathan in the seclusion room. Id. School administration had not trained Mr. Trotter in the use of the seclusion room nor did they make him aware of Jonathan's prior threats of suicide and self harm while in seclusion. Despite being calm while in seclusion, Jonathan was not allowed out of seclusion prior to the first fifteen minute interval. Mr. Trotter assumed, based on the information available, that monitoring of students in seclusion was in fifteen minute intervals. However, prior to the expiration of the interval, Jonathan became very quiet. Id. When Mr. Trotter opened the door, he found that Jonathan had hung himself with the "belt" provided to him by school staff.

Id. 2. Id.

No. 2]

A Tragic Void

251

such actions of educators are not illegal per se, nor do they automatically trigger the constitutional protections that are afforded the involuntarily committed or even the criminally incarcerated.'

Around the same time as Jonathan's death, in Valdosta, Georgia, Isaac, a ten-year old student with severe bi-polar disorder, stood in juvenile court accused of battery against a teacher.4 The charges related to an in-school incident where Isaac's teacher, in an attempt to restrain Isaac during a manic episode, forcefully grabbed him from behind and wrestled him to the ground.' During the episode, the nine-year old Isaac struggled to break free from the restraint; in a manic rage, he The teacher was not struck the teacher with his fist.6 permanently harmed and did not require any medical attention.'

Isaac was immediately referred to law enforcement for the alleged battery and subsequently found guilty and ordered to a juvenile detention facility.'

3. See generally Youngberg v. Romero, 457 U.S. 307 (1982); see infra Part IV.C. 4. I.G. v. Valdosta City Sch., No. 0707668-92 (Ga. Office of State Admin. Hearings Oct. 2006) (admin. hearing before Hackney, J.).

5. Id. 6. Id. 7. Id. 8. Compare id., with supra note 1. Like Jonathan King, Isaac's story is Isaac is a ten-year old student enrolled in a Georgia not unique. psychoeducational center. I.G., No. 0707668-92. Isaac had been diagnosed with bi-polar disorder and would cycle rapidly between episodes of depression and mania. Id. According to his neuropsychologist, Isaac became "completely incapacitated by his neurological or neuropsychiatric disability" and during manic episodes was "catatonic in the most classic sense." Id. While attending the psycho-educational center, Isaac was the victim of repeated abusive restraint techniques by employees of the school. Id. The teachers physically restrained Isaac during cycles of mania. Id. Isaac suffered swollen eyes, a noticeable limp, and pain in his hip and arm from the attack. Id. Isaac was arrested for battery against the teachers that had inappropriately tried to restrain him. As a result of the abuse, Isaac continued to exhibit violent and aggressive behaviors in school. Less than a month after returning to school, Isaac again was sent to jail following an incident where an educator attempted to physically restrain him. During this incident, Isaac hit and pushed the teachers restraining him. One teacher "wrapped her arms around Isaac, and he "swung [her] to the floor." That

252

John MarshallLaw Journal

[Vol. III

Both Jonathan and Isaac are guaranteed basic constitutional protections of due process of the law. 9 Both students are meant to receive an "adequate public education" from the county in which they reside.o Both students, as students with disabilities, are guaranteed a free, appropriate public education in the least restrictive environment.' Despite all these legal protections on the books, neither Jonathan's nor Isaac's families have been able to sustain any claims against the schools or school systems that failed them.12 One boy dead and the other in jail - neither with any access to justice via the legal system. For Jonathan, Isaac and their families, the Georgia law offers no effective recourse. For students with disabilities, like Jonathan and Isaac, and those still attending the psycho-educational centers where they suffered, the Georgia law offers no protection either. For the national system that ensures that students with disabilities receive a free, appropriate public education, Georgia law offers an example of a state failing to protect its most vulnerable through institutional indifference, resulting in a pattern of abuse and maltreatment that continues to shock and appall.

This article will explore the alarming rise in school abuse of aversive behavioral control techniques such as physical restraint teacher filed criminal charges against Isaac for battery. As a result, Isaac was incarcerated for thirty days.

9. U.S. CONST. amend. XIV, ยง 1.

10. GA. CONST. art. VIII, ยง V, para. II. 11. Individuals with Disabilities Act, 20 U.S.C. ยง 1400 (2010) [hereinafter IDEA]. IDEA is the federal law that requires public schools to provide students with disabilities equal educational opportunities. Id. The law protects any child "having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as "emotional disturbance"), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, needs special education and related services." 34 C.F.R. ยง 300.8 (2010).

12. While the law does provide that such claims could be asserted, as this article will demonstrate, the ability for a student to prevail against a school system is dubious at best. Claims raised pursuant to state law must withstand several levels of immunity, as well as meet a legal standard that is approaching unattainable. Claims raised pursuant to the U.S. Constitution or federal disability law are subject to administrative limitations and also require students to meet a lofty legal standard. Many of these issues will be addressed in Section IV., infra.

No. 2]1

A Tragic Void

253

and seclusion. 3 The article will survey the national landscape of law and regulation on restraint and seclusion for any effective policy directives and explain the current state of Georgia law with regards to students subjected to such abusive techniques.

Finally, the article will present three potential avenues for change to the status quo through (1) new federal law; (2) state administrative rules; or (3) a shift in the legal analysis applied

by Georgia's state and federal courts when presented with education civil rights cases involving abuse of restraint and seclusion by educators. These roads to change will hopefully ensure that Jonathan's death and Isaac's incarceration are the last pages in this sad chapter of Georgia educational history.

II. THE USE OF RESTRAINT & SECLUSION IN SCHOOLS

A. Physical Restraint Physical restraint is a type of aversive behavioral control tool involving the forced restriction or immobilization of the child's body or parts of the body depending on the behavior being addressed by the technique. Generally, there are three types of restraint: manual,14 mechanical," and chemical.' 6 The majority 13. In education, the use of restraint and seclusion has developed over the past twenty years into a common form of behavioral management and classroom control. While use of restraint and seclusion is not limited to schools or classes for only disabled students, the data and commentary regarding the abuse of restraint and seclusion in schools has primarily focused on this community.

14. Manual restraint, often referred to as ambulatory restraint, physical intervention, or therapeutic holding, "is defined as any method of one or more persons restricting another person's freedom of movement, physical activity, or normal access to his/her body." THE COUNCIL FOR CHILDREN WITH BEHAVIORAL DISORDERS, COUNCIL FOR EXCEPTIONAL CHILDREN, THE USE OF PHYSICAL RESTRAINT PROCEDURES IN SCHOOL SETTINGS 3 (2009),

at available http://www.casecec.org/pdf/seclusion/Accepted,%20CCBD%20on%2OUse% 20oPo20Restraint,%207-8-09.pdf [hereinafter C.C.B.D. RESTRAINT]. The most common form of restraint consists of a person physically impeding or preventing the physical movement of another person.

15. Id. at 2-3 ("Mechanical restraint entails the use of any device or object (e.g., tape, ropes, weights, weighted blankets) to limit an individual's body movement to prevent or manage out-of control behavior .

. .

. Mechanical

254

John MarshallLaw Journal

[Vol. III

of school restraint cases involve the use of either physical or mechanical restraint. Currently, no set parameters exist to determine when such practices may be employed. 7 And while there are schools that establish some criteria for using restraint and seclusion, mostly, educators use their own discretion in deciding when to restrain and isolate students. In Georgia, no formal training is required for teachers called upon to use such techniques,' nor is there a system of communication between the school and the family to inform a student's family when their son or daughter has been physically handled by a teacher or locked away by an administrator." And while individual schools may have a de facto reporting system, without training and without oversight, the potential for educator abuse of these techniques grows.

The disability community has publically advocated for federal and state educational systems to adopt regulations to eliminate the abuse of restraint and seclusion techniques in Generally, these regulations propose that school school. restraint and seclusion techniques may be employed to control acute or episodic aggressive behavior only when: (a) the student's actions pose a clear, present, and imminent physical danger to himself or to others; (b) less restrictive measures have not effectively reduced the risk of injury; (c) the restraint lasts only as long as necessary to resolve the actual risk of danger or harm; and (d) the degree of force applied does not exceed what

restraints such as tape, straps, tie downs, and a wide variety of other devices have also been used by educators to control student behavior.").

16. Id. at 3. Chemical restraint "uses medication to control behavior or restrict a patient's freedom of movement." Id. For example, in hospital programs, "patients who become agitated are provided with medication" that subdues them to a point where their movement is impacted. Id. 17. NAT'L DISABILITY RIGHTS NETWORK, SCHOOL IS NOT SUPPOSED TO HURT: INVESTIGATIVE REPORT ON ABUSIVE RESTRAINT AND SECLUSION SCHOOLS app. 1 (2009), available at http://www.napas.org/sr/SR-Report.pdf [hereinafter N.D.R.N. REPORT].

18. Id. at 11. While all educators must be certified, and those educators working with special needs children must have appropriate credentials, neither the Georgia Department of Education nor the Professional Standards Commission requires that educators receive any training on applying physical restraints on students. Id. 19. Id.

No. 2]

A Tragic Void

255

is necessary to protect the student or other persons from imminent bodily injury."

Further, those in the disability community have called for the elimination of prone restraint, identified as the most dangerous of restraint techniques, and continue to advocate for limiting While no national other aversive behavioral controls.2 consensus has developed regarding the limitations of such practices, disability advocates have set forth some basic principles on the emergency use of restraint and seclusion techniques. 22 Experts caution school staff to be "especially careful not to use their own bodies in a way that restricts ability to breathe, such as sitting or lying across a person's back or stomach." 23 As well, the use of restraints causes a person to 20. See generally JESSICA BUTLER, THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., UNSAFE IN THE SCHOOLHOUSE: ABUSE OF CHILDREN

at

available

(2009),

DISABILITIES

WITH

http://copaa.net/pdf/UnsafeCOPAAMay_27_2009.pdf, C.C.B.D. RESTRAINT, supra note 14; KEVIN ANN HUCKSHORN, NAT'L Ass'N OF STATE MENTAL HEALTH PROGRAM DIRS., Six CORE STRATEGIES TO REDUCE THE USE OF

SECLUSION

AND

RESTRAINT

PLANNING

TOOL

(2005),

available at

http://www.wafca.org/Trauma%20Training/SR%2OPlan%20Template%201at est%20102805.pdf; SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP'T OF HEALTH & HUMAN SERVS., SECLUSION AND RESTRAINT:

NATIONAL

ACTION

PLAN

ONLINE

(2008),

available

at

http://www.samhsa.gov/seclusion/SR~plan.aspx; K.A. Huckshom, ReDesigning State Mental Health Policy to Prevent the Use of Seclusion and Restraint,33 ADMIN. & POL'Y MENTAL HEALTH (2006).

21. Prone restraint is physically holding a student prone, usually with his face into the floor, for an extended period of time in order to control and physically manage an individual's behavior.

INC.,

THE

LETHAL

HAZARD

OF

PRONE

PROTECTION & ADVOCACY, RESTRAINT:

POSITIONAL

available (2002), ASPHYXIATION [hereinafter http://www.disabilityrightsca.org/PUBS/701801.pdf

at PRONE

RESTRAINT].

22. The question will arise: if not physical restraint, then what are educators to do with an aggressive or out of control student? This question remains the primary issue of where policy makers will draw the line between school safety and students' rights. This paper does not seek to establish where that line should be drawn in the pedagogical sense, but draws attention to the current legal issues surrounding Georgia's failure to establish any protections, legal, regulatory, or otherwise, for the abuse of restraint and seclusion.

23. CRISIS

PREVENTION

INST.,

INC.,

RISKS

OF

RESTRAINTS:

UNDERSTANDING RESTRAINT RELATED POSITIONAL ASPHYXIA 4 (2005),

256

John MarshallLaw Journal

[Vol. III

struggle while they are unable to breathe, increasing the person's need for air and aggravating the physiological effects of the restraint.24 To be clear, there are circumstances that may require intensive and immediate action by educators to ensure the health and safety of the students. However, school based restraints used as aversive techniques to control behavior or impose negative consequences should never be used on children.2 5 When employed by a properly trained educator, a physical restraint may be the only option to manage behaviors that will cause serious physical injury to someone in the classroom. However, children should never be subjected to pain or noxious stimuli related to school-based restraints.

Restraints should not be used if medically or psychologically Given the physical and contraindicated for a student. 26 emotional injuries inflicted by abusive restraint techniques, such limitations must exist to ensure student and educator safety.

There is no question that abusive restraints, as those just described, can be dangerous to both the child restrained and those using the restraints. They involve physical struggling that affects the ability to breathe.2 7 Further, children, especially smaller children and those with fragile physical conditions resulting from a disability, are particularly likely to be subjected Also, those to restraints and to die while restrained. 28 at http://www.crisisprevention.com/pdf/riskofrestraints.pdf. available "Simply restraining an individual prone restricts the ability to breathe, thereby lessening the supply of oxygen to meet the body's demands."

PRONE RESTRAINT, supra note 21, at 17.

24. Audrey Morrison & David Sadler, Death of a Psychiatric Patient During PhysicalRestraint: Excited Delirium - A Case Report, 41 MED. SCI. & LAW 46,46-50 (2001).

25. BUTLER, supra note 20, at 10.

26. Id. IMPROPER 27. U.S. GEN. ACCOUNTING OFFICE, MENTAL HEALTH: RESTRAINT OR SECLUSION USE PLACES PEOPLE AT RISK 6-7 (1999),

availableat http://www.gao.gov/archive/1999/he99176.pdf [hereinafter 1999 G.A.O. REPORT]; see generally Wanda K. Mohr et al., Adverse Effects Associated with Physical Restraint, 48 CANADIAN J. PSYCHIATRY 5 (2003), availableat http://www.charlydmiller.com/LIB03/2003adverseeffects.pdf.

28. Id.; see also Nancy Cotton, The Developmental-ClinicalRationalefor the Use of Seclusion in the Psychiatric Treatment of Children, 59 AM. J. ORTHOPSYCHIATRY 442, 442-50 (1989); Kathleen R. Delaney & Louis

No. 2]

A Tragic Void

257

employing the restraints can be severely injured when attempting to apply a restraint hold on a child who may be physically aggressive or severely agitated. Abuse of school restraint techniques does not ensure a safe classroom, does not further any legitimate or research-based behavior management system, and has never been recognized as serving any pedagogical purpose.29 They do not teach appropriate behaviors to students with behavioral challenges and can escalate a nonconfrontational behavioral episode into a violent and aggressive "fight" response. Emergency situations may call for emergency actions, but aversive behavioral controls cannot replace empirically proven methods for behavioral management and modification, such as positive behavioral intervention systems.3 0 B. School Based Seclusion Seclusion is no more effective than, and equally as harmful as, restraint." In school terms, seclusion is: Fogg, Patient Characteristics and Setting Variables Related to Use of Restraint on Four Inpatient Psychiatric Units for Youth, 56 PSYCHIATRIC SERVS. 186, 186-92 (2005); Kathleen A. Earle & Sandra L. Forquer, Use of Seclusion with Children and Adolescents in Public PsychiatricHospitals, 65 AM. J. ORTHOPSYCHIATRY 238, 238-44 (1995); David Fassler & Nancy Cotton, A National Survey on the Use of Seclusion in the Psychiatric Treatment of Children, 43 HosP. & COMM. PSYCHIATRY 370, 370-74 (1992); Michael A. Nunno et al., LearningFrom Tragedy: A Survey of Child and Adolescent Restraint Fatalities, 30 CHILD ABUSE & NEGLECT 1333, 1333-42 (2006); JOSEPH B. RYAN & REECE L. PETERSON, MICH. POSITIVE BEHAVIORAL SUPPORT NETWORK, PHYSICAL RESTRAINTS

IN SCHOOLS

at available (2002), http://www.bridges4kids.org/PBS/articles/RyanPeterson2O04.htm.

29. Restraint and seclusion are not effective means to calm or teach children but tend to have the opposite effect, producing anxiety, fear, and a decreased ability to learn. See generally Wanda K. Mohr & Jeffrey A. Anderson, Faulty Assumptions Associated with the Use of Restraints with Children, 14 J. CHILD & ADOLESCENT PSYCHIATRIC NURSING 330 (2001).

Reports that physical restraints are effective in any manner are based on anecdotal evidence and subjective case reports. See generally David M.

Day, Examining the Therapeutic Utility of Restraints and Seclusion with Children and Youth: The Role of Theory and Research in Practice,72 AM. J. ORTHOPSYCHIATRY 266 (2002).

30. See infra note 102.

31. See generally THE COUNCIL FOR CHILDREN WITH BEHAVIORAL DISORDERS, COUNCIL FOR EXCEPTIONAL CHILDREN, THE USE OF SECLUSION

258

John MarshallLaw Journal

[Vol. III

[T]he involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. This includes situations where a door is locked as well as where the door is blocked by other objects or held by staff. Any time a student is involuntarily alone in a room and prevented from leaving a confined space should be considered seclusion. 32 The intended purpose, or the labels assigned to these actions, are irrelevant.

In schools, a failure to regulate seclusion has fostered improper and abusive use of seclusion settings.34 School based seclusion has directly resulted in a "variety of injuries and deaths . . . while students are in seclusion environments

including, suicide, electrocution, and self injury due to cutting, The lack of regulation pounding, and head banging." combined with several factors unique to schools has contributed to increasing reports of harm in seclusion settings. 6 SCHOOL SETTINGS (2009), available at http://www.ccbd.net/documents/CCBD%20Position%20on%2Use%20of%/ 20Seclusion%207-8-09.pdf [hereinafter C.C.B.D. SECLUSION].

32. Id. at 1.

33. N.D.R.N. REPORT, supra note 17, at 5 n.4 (citing 42 C.F.R. ยง 482.13(e)(1)(ii) (2010)) (stating that "the Children's Health Act of 2000 defines 'seclusion' as 'any behavior control technique involving locked isolation,' 42 U.S.C. 290ii(d)(2) and 290j(d)(4)," but noting that the Centers for Medicare and Medicaid Services (CMS) "has recognized that individuals can be forcibly confined in a room or area without the room being locked").

Thus, the definition used above is consistent with the federally accepted definition of seclusion.

34. C.C.B.D. SECLUSION, supra note 31, at 6. Interestingly, the C.C.B.D. identified standards for seclusion procedures in medical, mental health, and penal applications. Id. at 4. In Georgia, the Department of Human Resources has promulgated regulations prohibiting use of restraint and seclusion "as a means of coercion, discipline, convenience, or retaliation."

GA. COMP. R. & REGs. ยง 290-4-4-.08(l)(c)(7) (2009).

35. Id.; see also 1999 G.A.O. REPORT, supra note 27, at 1 n.1 ("Seclusion is involuntary confinement in a room that the person is physically prevented from leaving.").

36. C.C.B.D. SECLUSION, supra note 31, at 6; see also Maureen Downey, Learning Curve: The Forgotten Rooms, ATLANTA J.-CONST., Jan. 4, 2010, available at http://www.ajc.com/opinion/leaming-curve-the-forgotten266370.html. School factors range from unqualified and untrained teachers interacting with students that have behavioral challenges to the pressures of IN

No. 2]

A Tragic Void

259

School seclusion rooms, often incorrectly identified as "timeout" rooms, can be improperly established and maintained.37 In some reported instances, these rooms lack proper ventilation, light, and heat.38 Students confined to these rooms have been denied access to food, water, and toilets.3 9 Those employing seclusion in schools argue that such techniques are necessary to ensure the safety and well-being of students and teachers alike. They also maintain that seclusion is an effective behavioral management tool that removes the affecting stimuli from the equation and allows a student a "quite space" to regain behavioral self-control. However, these arguments ignore the current reality, that is, seclusion settings are being used for more than emergencies. They are used as punishment. They are used as respite for tired teachers, and for students like Jonathan King, they were the aversive stimuli that drove the student to take his own life. Unfortunately, this is not merely a state or regional phenomena. Data reflecting the abuse of seclusion rooms across the country has been collected and reviewed at a state and national level. This data will be relied upon as educational systems and students' rights advocates work to address this issue.

C. The 2009 Governmental Accountability Office Study In May 2009, the House Committee on Education and Labor requested a study from the Governmental Accountability Office ("G.A.O.") seeking verification of the reports of abuse and death from the use of restraint and seclusion in school, as well as the circumstances surrounding such cases. 40 The G.A.O. standardized testing accountability on public school teachers who seek to push the low performing or most disruptive students out of their classrooms in hopes of keeping their failing test scores off the books.

37. Originally, "timeout" meant "a behavior reduction procedure or form of punishment in which students who display a predefined inappropriate behavior are suspended for a short period of time from access to all opportunities to receive positive social reinforcement." N.D.R.N. REPORT, supra note 17, at 6 (citing Joseph B. Ryan et al., State Policies Concerning the Use of Seclusion Timeout in Schools, 30 EDUC. & TREATMENT OF CHILDREN 215 (2007)).

38. C.C.B.D. SECLUSION, supra note 31, at 4.

39. Id. 40. U.S. GEN. ACCOUNTING OFFICE, SECLUSIONS AND RESTRAINTS:

260

John MarshallLaw Journal

[Vol. III

report stopped short of calling the incidence of abuse and death widespread, but did provide a tragic litany of cases related to the abuse of seclusion and restraint techniques in school. 4 1 The G.A.O. reported that in Texas and California, states that contain more than twenty percent of the nation's school children, over thirty thousand instances of "emergency interventions" consisting of restraint and/or seclusion occurred during one school year.4 2 The Report specifically documented ten cases that illustrated the nature and extent of the abuse.4 3 These cases included the repeated use of prone restraint to control student behavior, including one instance of a teacher weighing 230 pounds sitting on top of a student "because the student would not stay seated."" The teacher called her actions a "therapeutic floor hold."45 In another case, the G.A.O. reported that a seven year old female student, weighing only forty-three pounds, was secluded in a walled area in the back of a class for not completing her school work and then physically restrained for "wiggling a loose tooth."4 6 A third case reported by the G.A.O. involved the failure of the school staff to provide medical attention to a student suffering from a seizure and losing control of his extremities and bladder. The student died after school staff employed a harmful prone restraint on the student for an hour. 47 Despite these horrific descriptions, the G.A.O. rightly identified that no federal law or regulations exist that prohibit, proscribe, or in any way limit the use of seclusion and/or restraint techniques in schools. 8 After presenting significant data on the widespread abuse of restraint and seclusion, the G.A.O. presented four pervading SELECTED CASES OF DEATH AND ABUSE AT PUBLIC AND PRIVATE SCHOOLS at available (2009), 1 CENTERS TREATMENT AND

[hereinafter 2009 G.A.O. http://www.gao.gov/new.items/d09719t.pdf REPORT]. The House of Representatives requested this report following a series of hearings on the subject. Id. 4 1. Id. 42. Id. at 7.

43. Id. at 10-13.

44. Id. at 16.

45. Id. 46. Id. at 26.

47. Id. at 20-2 1.

48. Id. at 3.

A Tragic Void

No. 2]

261

themes: (1) children with disabilities were sometimes restrained and secluded, even when they did not appear to be physically aggressive and their parents did not give consent; (2) facedown or other restraints that block air to the lungs can be deadly; (3) teachers and staff in these cases were often not trained in the use of restraints and techniques; and (4) teachers and staff from these cases continue to be employed as educators.49 Without any laws, regulations, rules, policies, or professional standards establishing a protective baseline for restraint and seclusion, schools have left the control and implementation of this dangerous practice to front-line educators who lack the training, support, or supervision needed to properly employ this potentially lethal behavioral intervention.

D. Federaland State Laws and Regulations No federal laws currently exist that restrict the use of restraint and seclusion in public and private schools. 0 While federal law requires that states provide all students with disabilities in public schools a free, appropriate public education in the least restrictive environment, nothing in the law directly prohibits or proscribes the school's use of aversive techniques to control or Without direction from the federal modify behavior." government, the states have been free to regulate this subject without an established baseline.52 States have varied in the scope of the protections afforded and the level of accountability required to ensure such abusive acts do not occur." Some have 49.

50.

Id. at 7.

Id. at 1.

51. IDEA, supra note 11, is the law that requires states to accommodate disabled children in public schools. IDEA proscribes the process to identify, evaluate, and appropriately serve children with disabilities. IDEA requires that all children have an individualized education plan, or IEP, that is reasonably calculated to confer an educational benefit. See Hendrick Hudson Ctr. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 (1982). IDEA confers a right to such students to be educated in the "least restrictive environment." 20 U.S.C. §1412 (a)(5) (2010); 34 C.F.R. §§ 300.114-.116 (2010); see also Greer v. Rome City Sch. Dist., 950 F.2d 688 (11th Cir. 1991).

52. 2009 G.A.O. REPORT, supra note 40, at 3.

53. Id. at 4 ("Nineteen states have no laws or regulations related to the use of seclusions or restraints in schools . . . .

[Sleven states place some

262

John MarshallLaw Journal

[Vol. III

no laws on the books, like the current situation in Georgia, while others ban the use of restraint and seclusion for nonemergent purposes.54 In contrast, the federal government has amended Title V of the Public Health Service Act to include limitations on the use of restraints and seclusions in some hospitals and health care facilities that receive any type of federal funds. 5 The genesis of these amendments was in part the response of Connecticut Senator Chris Dodd to a series of investigative news reports on the alarming number of patient deaths related to the overuse of restraint or seclusion and a federally commissioned study by the G.A.O. that revealed a nationwide need to regulate restraint and seclusion of the mentally ill and disabled. 6 Yet, the education community has seen similar reporting of abuse of restraint and seclusion rise. Also, the G.A.O. has conducted a study to confirm the anecdotal information provided to the government about the misuse of restraint and seclusion in school.

Importantly however, the regulations implementing the Children's Health Act's prohibition on abusive restraint and seclusion have never been reproduced, adopted, or in any way considered by the United States Department of Education or the federal government for use in schools." restrictions of the use of restraints, but do not regulate seclusions. Seventeen states require that selected staff receive training before being permitted to restrain children. Thirteen states require schools to obtain consent prior to using foreseeable or non-emergency physical restraints while nineteen [states] require parents to be notified after restraints have been used. Two states require annual reporting on the use of restraints. Eight states specifically prohibit the use of prone restraints or restraints that impede a child's ability to breathe.") (internal citations omitted).

54. Id. at app. 1.

55. 42 U.S.C. ยง 290ii(d)(2) & (4) (2010); 42 C.F.R. ยง 482.13(e) (2010).

The federal regulation reads, "All patients have the right to be free from restraint or seclusion, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff. Restraint or seclusion may only be imposed to ensure the immediate physical safety of the patient, a staff member, or others and must be discontinued at the earliest possible time." 42 C.F.R. ยง 483.13(e) (2010).

56. 146 Cong. Rec. H8255-56 (2000) (comments of Rep. Chris Shays, Conn., during debate on the passage of the Children's Health Act).

57. Interestingly, some argue that the limitations on restraint and seclusion provided in the Children's Health Care Act apply to school providers. The argument focuses on the reality that a majority of school districts are,

No. 2] III. STUDENT

A Tragic Void

263

ยง 1983 CLAIMS AND WHAT "SHOCKS THE CONSCIENCE"

Without statutory or regulatory limitations, student victims of abusive restraints or seclusions in school possess only those constitutional rights they have "not shed at the schoolhouse For the most part, student victims have relied upon gate."5 constitutional claims and federal statutory claims alleging constitutional violations by educators. 5 9 And while the students recount facts of physical and emotional abuse, willful neglect, and gross and reckless conduct by educators, courts have framed their claims as a challenge to schools' ability to make pedagogical choices and ensure the safe and orderly operation of their campus.o Courts continue to mischaracterize these cases as corporal punishment cases even when there is no legitimate pedagogical reason for the abusive actions.' In most cases, the only thing themselves, Medicaid providers and subject to the Medicaid laws. Congress has codified this overlap and created regulatory requirements for schools to obtain parental consent before seeking reimbursement from Medicaid for services the school provides. 34 C.F.R. ยง 300.154(d) (2010). For example, a disabled student that requires significant occupational therapy may receive this service from a school occupational therapist. The school, with the parent's consent, may then seek reimbursement of the cost of the therapy session from the student's Medicaid insurance. In this way, the school has become a provider under the Children's Health Act and therefore subject to the restrictions on restraint and seclusion.

58. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969).

59. See infra Part IHl. 60. See generally A.B. v. Seminole County Sch. Bd., 6:05-CV-802-ORL31KRS 2005 U.S. Dist. LEXIS 36722 (M.D. Fla. Aug. 31, 2005).

61. Black's Law Dictionary defines "corporal punishment," as "physical punishment as distinguished from pecuniary punishment or a fine; any kind of punishment inflicted on the body."

BLACK'S LAw DICTIONARY 235-36

(6th ed. 1991). In 1977, the U.S. Supreme Court initiated a line of cases that examined physical violence against students through the prism of school discipline. In holding that corporal punishment, or the paddling of students on the buttocks with a wooden paddle, did not violate the Eighth Amendment to the Constitution, the Court noted that such punishment was rooted in our American history. Ingraham v. Wright, 430 U.S. 651, 681 (1977).

The Court sanctioned the use of corporal punishment as a pedagogical tool and dismissed the dissents' concern that such a holding may result in a teacher cutting "off a child's ear for being late to class." Id. at 670

264

John MarshallLaw Journal

[Vol. III

educational about the scenario is the fact that the abuse occurred in school. This characterization is incorrect. Abuse does not become a legitimate form of behavior because the bad actor happens to be a teacher in school. The focus of the analysis should not be the location of the abuse; rather, it's the abuse itself that requires the court's attention. However, unable to break from routines that have become almost absurd, courts search for pedagogical interests in the harmful and abusive behavior of some educators to justify reliance on available legal precedents.62 Section 42 U.S.C. ยง1983 provides the most common basis for student claims of abuse against educators.

Student plaintiffs n.39. What may have seemed outrageous and surreal in 1977 is not so far off in the new millennium. See, e.g., O.H. v. Volusia County Sch. Bd., No. 6:07-CV-1545-ORL-22DAB, 2008 U.S. Dist. Lexis 59187, at *2 (M.D. Fla. July 23, 2008) ("Special education teacher 'Hu regularly restrained [Plaintiff] in another student's wheelchair inside a darkened bathroom as punishment for up to ten minutes at a time.' Plaintiff also alleges that Defendant 'Hu placed belts and/orstraps aroundPlaintiffs chest and legs in order to restrain him in the wheelchair' and that she 'would push the wheelchair and Plaintiff into the bathroom, close the door, and block the door with a table' . . . . Hu 'would push [Plaintiffs] desk against the wall to

prohibit Plaintiff from moving[,]' and that Plaintiff had to witness Defendant Hu abusing other students and confining a student to a closet."); Kirkland ex rel. Jones v. Greene County Bd. of Educ., 347 F.3d 903, 904 (11th Cir. 2003) ("Demario Jones, a thirteen-year-old student called into Morrow's office for disciplinary reasons, claims that Morrow struck him with a metal cane in the head, ribs and back, leaving a large knot on his head and causing him to suffer continuing migraine headaches.") (emphasis added); Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1071 (1lth Cir. 2000) (describing the behavior of Coach Ector, who "in the presence of Robinson, took the weight lock and struck Plaintiffin the left eye. As a result of the blow, Plaintiffs eye 'was knocked completely out of its socket,' leaving it 'destroyed and dismembered.' According to Plaintiff, even after this blow, as Plaintiff's eye 'was hanging out of his head, and as he was in severe pain,' neither Coach Ector nor Principal Robinson stopped the fight.") (emphasis added). See also a parade of shocking educator conduct described in Kristina Rico, Excessive Exercise as CorporalPunishment in Moore v. Willis Independent School District, 9 VILL. SPORTS & ENT. L.J. 351, 361 (2000).

62. See Neal, 229 F.3d at 1072.

63. 42 U.S.C. ยง 1983 (2010) provides that any "[p]erson who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to

No. 2]

A Tragic Void

265

most often allege that the abusive actions of the educators violate the Fourteenth Amendment to the Constitution."

Depending on the underlying facts, students may also have actionable claims under the Fourth Amendment for unlawful seizure. 65 Finally, if the student is disabled, they may raise claims under the Americans with Disabilities Act,6 6 Section 504 of the Vocational Rehabilitation Act,67 and the Individuals with Disabilities Education Act. 8 While more legal theories may be the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."

64. Student-plaintiffs most often raise both procedural and substantive due process claims arguing that the actions of the educator and school system were a deprivation of her right to be free from physical harm without notice or an opportunity to respond. Further, student-plaintiffs allege that the educator's actions implicate their liberty interests to the extent that such conduct is "arbitrary, or conscience shocking, in a constitutional sense."

Neal, 229 F.3d at 1074 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)); Edwards v. County Bd. of Educ., No. CV 104-168, 2007 U.S. Dist. LEXIS 59789, at *43 (S.D. Ga. Aug. 15, 2007) ("[T]here is no right to be free from unreasonable, arbitrary, and capricious disciplinary action in the plain text of the Fourteenth Amendment. Rather, the Fourteenth Amendment provides that no State 'shall deprive any person of life, liberty, or property, without due process of law"' U.S. Const. amend. XIV, ยง 1.) In the context of a school setting, Plaintiffs' allegations regarding the alleged abuse implicate a student's fundamental liberty interest in her "bodily integrity," as protected by the Due Process Clause of the Fourteenth Amendment. See Hackett v. Fulton County Sch. Dist., 238 F. Supp. 2d 1330, 1353 (N.D. Ga. 2002) (explaining that several federal courts recognize "a 'liberty interest' by a student in his 'bodily integrity,' such that when a state actor, such as a public school teacher, violates that 'bodily integrity,' a claim under the Fourteenth Amendment arises") (cited sources omitted); see also Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994); Edwards v. County Bd. of Educ., No. CV 104-168, 2007 U.S. Dist. LEXIS 59789, at *43 (S.D. Ga. Aug. 15, 2007).

65. The Fourth Amendment guarantees, "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures . . . ." U.S. CONsT. amend. IV. In Georgia, the seminal school search case is Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001). See also Gray v. Bostic, 458 F. 3d. 1295 (11th Cir. 2006).

66. 42 U.S.C. ยง 12101 (2010).

67. 29 U.S.C. ยง 701 (2010).

68. See supra note 51. For students with disabilities, the complex administrative structure established by IDEA must first be exhausted prior to filing an original action in court. 20 U.S.C. ยง 1415(1) (2010); see M.T.V. v.

266

John MarshallLaw Journal

[Vol. III

postulated, the most prominent legal theories in Georgia are the Neal and DeShaney theories that address restraint and seclusion respectively.

A. Neal and EducatorAbuse as "Punishment" For almost ten years, the seminal case on educator liability for student abuse in the United States Court of Appeals for the Eleventh Circuit has been Neal v. Fulton County Board of Education.6 9 In Neal, the court reviewed the "corporal punishment" imposed by an educator on a student following a student-on-student fight.7 0 The facts of Neal are gruesome.

High school freshman, Durante Neal, was a member of the varsity football team.71 During practice, Neal was slapped by another player and reported that to his coach. 72 The coach instructed Neal "to learn how to handle your own business."

Neal, planning to do just that, placed a "weight lock" in his gym bag and, after practice, hit the student that slapped him with the lock.74 The court recounted the abuse as follows: While the two were fighting, Coach Ector and Principal Herschel Robinson were in the immediate area. Neither of them stopped the fight. Ector came over and began dumping the contents of Plaintiffs bag on the ground, shouting repeatedly "what did you hit him with; if you hit him with it, I am going to hit you with it." Ector then, in the presence of Robinson, took the weight lock and struck Plaintiff in the left eye. As a result of the blow, Plaintiffs eye "was knocked completely out of its socket," leaving it "destroyed and dismembered." According to Plaintiff, even after this blow, DeKalb County Sch. Dist., 446 F.3d 1153 (11th Cir. 2006) (holding that "IDEA's broad complaint provision affords the 'opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.' 20 U.S.C. ยง 1415(b)(6)"); see also Babicz v. Sch. Bd., 135 F.3d 1420, 1422 n.10 (11 th Cir. 1998) (stating that students must use IDEA's administrative system "even if he invokes a different statute").

69. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069 (11th Cir. 2000).

70. Id. at 1071.

71. Id. 72. Id. 73. Id. 74. Id.

No. 2]1

A Tragic Void

267

as Plaintiffs eye "was hanging out of his head, and as he was in severe pain," neither Coach Ector nor Principal Robinson stopped the fight."

Presented with these facts, the first question the court considered was whether the coach's actions somehow constituted "corporal punishment."76 Based on a series of fact patterns involving "less traditional, more informallyadministered, and more severe 'punishments,"' the court found the coach's conduct in Neal amounted to corporal punishment.7 While the court would eventually conclude that Neal could assert a claim against the educator for his "arbitrary and conscience shocking" behavior, the standard set forth has established an almost insurmountable bar for student plaintiffs to hurdle. 78 The court, aligning itself with five other circuit courts held,7 9 "excessive corporal punishment, at least where not administered in conformity with a valid school policy authorizing corporal punishment as in Ingraham [v. Wright]," may be actionable under the Due Process Clause when it is tantamount to arbitrary, egregious, and conscience-shocking 75. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1072 (11th Cir. 2000).

76. Id. at 1072.

77. Id. The court highlights several incidents where the educator's abusive conduct has been deemed corporal punishment, such as London ex rel. Avery v. Dirs. of DeWitt Pub. Schs., 194 F.3d 873, 875 (8th Cir. 1999) (dragging student across room and banging student's head against metal pole); P.B. v. Koch, 96 F.3d 1298, 1300 (9th Cir. 1996) (hitting student in mouth, grabbing and squeezing student's neck, punching student in chest, and throwing student headfirst into lockers); Metzger v. Osbeck, 841 F.2d 518, 519-20 (3d Cir. 1988) (choking student and allowing student to fall, break nose and teeth); Carestio v. Sch. Bd., 79 F. Supp. 2d 1347, 1348 (S.D. Fla. 1999) (teachers ganging up on student and beating him); Gaither v.

Barron, 924 F. Supp. 134, 135-36 (M.D. Ala. 1996) (head-butting of student).

78. Neal, 229 F.3d at 1074.

79. Id. at 1075 (citing London v. Dir. of DeWitt Pub. Schs., 194 F.3d 873, 876-77 (8th Cir. 1999); Saylor v. Bd. of Educ., 118 F.3d 507, 514 (6th Cir. 1997); Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988); Garcia v.

Miera, 817 F.2d 650, 653 (10th Cir. 1987); Hall v. Tawney, 621 F.2d 607, 611-14 (4th Cir. 1980)).

80. Ingraham v. Wright, 525 F.2d 909 (5th Cir. 1976) (establishing that the United States Constitution's Eighth Amendment guarantee against cruel and unusual punishment is not applicable to school corporal punishment).

268

John MarshallLaw Journal

[Vol. III

behavior." 8 The court set forth a two prong test for establishing educator liability stating that at a minimum, "the plaintiff must allege facts demonstrating that (1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury."82 Since the Eleventh Circuit's holding in Neal, the court has seen more claims of educator misconduct or abuse. In Davis v.

Carter,83 the Eleventh Circuit examined the substantive due process claims of a student-athlete's family after the student died as a result of his coaches' (1) failure to keep the student hydrated during the practice; (2) failure to observe his signs of overheating; and (3) deliberate choice not to assist the student or seek medical assistance after the student collapsed.8 4 The court, examining the line of school cases, starting with Neal, concluded that while the educators were "deliberately indifferent to the safety risks posed by their conduct to [the student]," the coaches were entitled to qualified immunity as they had not acted willfully or maliciously with an intent to injure.""5 In contrast, in 2003, the Eleventh Circuit affirmed a district court's denial of qualified immunity for a principal that had used a metal cane to strike a student in the head, ribs, and back." The court applied the Neal test and found that a school 81. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). The court reviewed holdings from the Eighth, Sixth, Third, and Tenth circuits in reaching its conclusion. Id. In establishing the test for a constitutional violation, the court seems to rely mostly on the language in Metzger where a school administrator choked a student until he lost consciousness and fell to the pavement-breaking his nose and fracturing his teeth. See id.

82. Id.; see also Peterson v. Baker, 504 F.3d 1331 (11th Cir. 2007) (finding a Paulding County teacher accused of choking a student that was trying to leave the classroom not liable applying the Neal standard). Again, the court characterized "squeezing [a student's] neck to where [the student] was starting to not be able to breathe" as falling under the Neal standard of "corporal punishment administered in conformity with a valid school policy." Id. at 1336.

83. Davis v. Carter, 555 F.3d 979 (1Ith Cir. 2009).

84. Id. at 980-81.

85. Id. at 984.

86. Kirkland v. Greene County Bd. of Educ., 347 F.3d 903 (11th Cir. 2003).

No. 2]

A Tragic Void

269

principal, "[r]epeatedly striking a thirteen-year-old student with a metal cane, including once on the head as [the student] was doubled over protecting his chest, when he was not armed or physically threatening in any manner, obviously fulfills both criteria.""

However, while the bruises caused by a metal cane may satisfy the Neal standard, the bruises caused by the hand of a special education teacher may not. In Edwards v. County Board ofEducation," the United States District Court for the Southern District of Georgia held that a special education teacher who had (1) inflicted bruises; (2) denied use of the bathroom; and (3) failed to respect the dietary needs of two five-year old disabled students did not violate the students' substantive due process rights." The district court in Edwards examined the educator's actions on a "culpability spectrum" ranging from one pole of negligence to the other of malign intent.90 The court, employing Neal as a factual measuring stick, held that the educator conduct did not "shock the conscience."91 Finally, a series of cases originating in Florida, currently on appeal in the Eleventh Circuit, show the troubling circumstances of applying the corporal punishment standard to school abuse cases. 92 From 2002 to 2005, Kathleen Mary Garrett was employed as an Exceptional Student Education ("E.S.E.") teacher in Seminole County, Florida.93 During this time: Garrett subjected A.B. to the following acts: (1) slapping him on the head; (2) grabbing him by the neck and choking him; (3) yelling at and intimidating him when he was non87. Id. at 904.

88. Edwards v. County Bd. of Educ., No. CV 104-168, 2007 U.S. Dist.

LEXIS 59789 (S.D. Ga. Aug. 15, 2007).

89. Id. at *47-57.

90. Id. at *52.

91. Id. at *56.

92. D.N. v. Sch. Bd., 6:07-CV-1494-ORL-28KRS 2009 U.S. Dist. LEXIS 62408 (M.D. Fla. July 21, 2009); M.S. v. Seminole County Sch. Bd., 636 F. Supp. 2d 1317 (M.D. Fla. July 10, 2009); T.W. v. Sch. Bd., 6:07-CV-155ORL-28GJK, 2009 U.S. Dist. LEXIS 35764 (M.D. Fla. Apr. 28, 2009); A.B. v. Seminole County Sch. Bd., 6:05-CV-802-ORL-31KRS, 2005 U.S. Dist.

LEXIS 36722 (M.D. Fla. Aug. 31, 2005).

93. A.B., 2005 U.S. Dist. LEXIS 36722, at *7.

270

John MarshallLaw Journal

[Vol. III

compliant, although Garrett knew A.B. would potentially be harmed by such yelling; (4) placing A.B. in a closet and turning off the lights; (5) striking him on the buttocks after he had wet his pants, resulting in a red mark; and (6) ridiculing and cursing at A.B. when he hit himself on the head with his hand, saying "you stupid little ass . . . if you

want to keep banging yourself on the head, then go ahead ... because you deserve it."9 4 Garrett worked until these and other allegations were brought to light by the students' parents.95 Garrett was "charged with multiple felony counts, including: (1) aggravated child abuse by willful torture or malicious punishment, related to placing A.B. in the closet; (2) child abuse, for hitting or battering a student (two counts); and (3) child abuse for bending a child's fingers backward." 96 In A.B.'s case, the court relied on Neal and characterized some of the teacher's conduct as "punishment" and some as "abuse."" The court then applied the Neal standard to both the acts of abuse and the acts of punishment finding that the same "shocks the conscience" standard applied.9 8 The court found that A.B. had asserted a valid constitutional claim, noting the repeated nature of the conduct, the particular vulnerability of the victim, and the nature of the emotional and mental injury to the student as the basis for finding liability. 99 In contrast, in the subsequent series of companion lawsuits raising the students' substantive due process rights to be free from such abuse, the same district court judge applied the two prong test of Neal and found that no constitutional violations had been established.'00 In the cases of D.N. and T.W., the court justified Garrett's actions as arguably necessary because they were in response to the behavior of the mentally retarded 94. Id. 95. Id. at *8-10.

96. Id. at *10.

97. Id. at *21-22.

98. A.B. v. Seminole County Sch. Bd., 6:05CV-802-ORL-31KRS, 2005 U.S. Dist. LEXIS 36722, at *23 (M.D. Fla. Aug. 31, 2005).

99. Id. 100. See D.N. v. Sch. Bd., 6:07-CV-1494-ORK-28KRS, 2009 U.S. Dist.

LEXIS 62408 (M.D. Fla. July 21, 2009); T.W. v. Sch. Bd., 6:07-CV-155ORL-28GJK, 2009 U.S. Dist. LEXIS 35764 (M.D. Fla. Apr. 28, 2009).

No. 2]

A Tragic Void

271

and autistic students.'01 The court's characterization of the students' words and actions reflect the lack of appreciation or understanding for behavioral manifestations of students with More importantly, the court's confounding autism.10 2 application of Neal evidences the difficulty courts experience trying to ram the abusive actions of educators into the current Neal analysis for school punishment. 03 101. D.N., 2009 U.S. Dist. LEXIS 62408, at *20-21; T. W., 2009 U.S. Dist.

LEXIS 35764, at *26-27.

102. "Autism is a developmental disorder that is recognized and diagnosed by impairment of the ability to form normal social relationships, by impairment of the ability to communicate with others, and by stereotyped behavior patterns." A.B., 2005 U.S. Dist. LEXIS 36722, at *2 n.1 (quoting available at of Med., Lib. Nat'l U.S. Plus, Medline Students with http://www.nlm.nih.gov/medlineplus/mplusdictionary.html). autism may exhibit violent or aggressive behavior when stressed.

BEHAVIORAL ISSUES IN AUTISM 179-83 (Eric Schopler & Gary B. Mesibov eds., Plenum Press 1994). Students with autism may exhibit socially inappropriate behaviors at times; however, such behaviors are not re-directed or modified by physical force or through punishment. Id. Positive Behavior Support has scientific and research-based support demonstrating it "to be a feasible and valued approach for improving the social climate of schools and supporting intervention programming for students with high risk problem OFFICE OF SPECIAL EDUC. PROGRAMS CTR. ON POSITIVE behavior."

BEHAVIOR SUPPORT, UNIV. OF OR., SCHOOL-WIDE POSITIVE BEHAVIOR SUPPORT, IMPLEMENTERS' BLUEPRINT AND SELF-ASSESSMENT 5 (2004),

at available http://www.osepideasthatwork.org/toolkit/pdf/SchoolwideBehaviorSupport.p df. "PBS involves the application of positive behavioral interventions and systems to achieve socially important behavior change. PBS has four interrelated components, namely, systems change activities, environmental alterations activities, skill instruction activities, and behavioral consequence activities." H. Rutherford Turnbull et al., IDEA Requirements for Use of Guidelines for Responsible Agencies, 3 J. POSITIVE BEHAV. PBS: INTERVENTIONS 11, 11 (Winter 2001) (internal quotations and citations

at available omitted), http://www.beachcenter.org/Research%5CFullArticles%5CPDF%5CPBS10 IDEArequirementsforPBS.pdf.

103. See generally Nolan v. Memphis City Sch., 589 F.3d 257 (6th Cir. 2009) (upholding a jury verdict that a school administrator that admitted to paddling a student for non-disciplinary reasons, and therefore no legitimate reasons at all, did not shock the conscience); H.H. v. Moffett, 335 Fed. Appx. 306 (4th Cir. 2009); Peterson v. Baker, 504 F.3d 1331 (11th Cir. 2007) (finding a teacher's act of choking a student attempting to leave classroom as not meeting the Neal standard); Jefferson v. Ysleta Indep. Sch.

272

John MarshallLaw Journal

[Vol. III

B. DeShaney, the Special Duty, andJonathan A second theory raised by student victims, mostly in seclusion cases, follows the reasoning of the 1989 United States Supreme Court holding in DeShaney v. Winnebago.m In general, students relying on DeShaney argue that the state had an affirmative duty to protect the student and the alleged harms were caused by a breach of that duty. 0 In the school context, the DeShaney argument focuses on two components: (1) the school's actions have rendered the student more vulnerable to harm, thereby creating a constitutional duty to protect; and (2) the student's school attendance creates a special relationship between the state and the citizen much like an involuntary confinement or incarceration. 10 6 Dist., 817 F.2d 303 (5th Cir. 1987) (affirming denial of qualified immunity where teacher tied an eight-year-old child to her chair with a jump rope for almost two full school days); but see Webb v. McCullough, 828 F. 2d 1151, 1159 (6th Cir. 1987) (holding that because the educator's blows were nondisciplinary and the need to strike the student so minimal that the educator's actions did "shock the conscience").

104. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989). In DeShaney, the Supreme Court held that no substantive due process claim existed against the State for a deprived child that suffered severe and permanent injuries from his father after the State's child protective services took affirmative actions to protect the child but failed. Id. at 192-93. Most relevant to this article, the Supreme Court confirmed that "when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs- e.g., food, clothing, shelter, medical care, and reasonable safety-it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause." Id. at 200. The Court recognized that "the protections of the Due Process Clause, both substantive and procedural, may be triggered when the State, by the affirmative acts of its agents, subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement." Id. at 200 n.8 (emphasis added). "Those circumstances are present when the state affirmatively acts to restrain an individual's freedom to act on his own behalf, either 'through incarceration, institutionalization, or other similar restraint of personal liberty."' Id. at 200.

105. Wyke v. Polk County Sch. Bd., 129 F.3d 560, 565 (11th Cir. 1997).

106. Wright v. Lovin, 32 F.3d 538, 540 (11th Cir. 1994); Dorothy J. v.

Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993); Russell v. Fannin County Sch. Dist., 784 F. Supp. 1576, 1581-83 (N.D. Ga. 1992); Maldonado v. Josey, 975 F.2d 727, 732-33 (10th Cir. 1992); D.R. v. Middle Bucks Area

No. 2]

A Tragic Void

273

Relying on DeShaney, the mother of a public school student who tried twice to commit suicide on school grounds sued the school district and the school administrators in Wyke v. Polk County School Board.' The facts showed that when she called the school to discuss the first suicide attempt, the school administrator assured her that he would "take care of it." 08 The student attempted suicide at school again, and some time later the student actually killed himself.109 The mother filed a ยง 1983 action against the school and argued, under DeShaney, that the school had a constitutional duty to protect her son from this harm."0 The mother asserted that constitutional duty derives from the legal requirement that a student attend school, or compulsory school attendance."' Next, the mother argued that by "cutting off' Shawn's "private sources of aid," the school rendered Shawn "more vulnerable to harm," and thereby Despite incurred an affirmative duty to protect him."" 2 evidence of inadequate training and failure by the school to tell the mother of the student's attempted suicides, the Eleventh Circuit found that the school had no constitutional duty to provide for the student's safety because the State had not restrained the student's liberty or made him more vulnerable to harm." 3 While the Eleventh Circuit was not willing to extend DeShaney to these facts, the First Circuit has left the door open to such claims in Hasenfus v. LaJeunesse.14 In Hasenfus, a female student reprimanded for replying to taunts from her classmates was sent, unsupervised, out of class by the teacher."

Voc. Tech. Sch., 972 F.2d 1364, 1371-73 (3d Cir. 1992); J.O. v. Alton Cmty.

Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990).

107. Wyke, 129 F.3d at 564-65.

108. Id. at 564.

109. Id. 110. Id.

11. Wyke v. Polk County Sch. Bd., 129 F.3d 560, 564 (1lth Cir. 1997).

In Georgia, the Compulsory School Attendance law states "mandatory attendance in a public school, private school, or home school program shall be required for children between their sixth and sixteenth birthdays."

O.C.G.A. ยง 20-2-690.1 (2009).

112. Wyke, 129 F.3d at 569.

113. Id.

114. See Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999).

115. Id. at 70.

274

John MarshallLaw Journal

[Vol. III

The student left class and immediately tried to hang herself; she did not die, but suffered permanent injury."6 The student brought ยง1983 claims against the school and the educators for acts and omissions that constituted a deprivation of her right to life and physical safety.'" 7 Relying upon DeShaney, the court denied any relief."' However, the court noted in dicta: We are loath to conclude now and forever that inaction by a school toward a pupil could never give rise to a due process violation. From a commonsense vantage, Jamie is not just like a prisoner in custody who may be owed a broad (but far from absolute) 'duty to protect.' But neither is she just like the young child in DeShaney who was at home in his father's custody and merely subject to visits by busy social workers who neglected to intervene. For limited purposes and for a portion of the day, students are entrusted by their parents to the control and supervision of teachers in situations where-at least as to very young children-they are manifestly unable to look after themselves." 9 And what of Jonathan King?' The family of Jonathan King has argued that the seclusion that resulted in his death created an affirmative constitutional duty to protect the student from harm.' 2' The King family, building on the language from Wyke 116. Id.

117. Id. 118. Id. at 72.

119. Id. (emphasis added); see also Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 655-56 (U.S. 1995) ("While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional 'duty to protect,' we have acknowledged that for many purposes 'school authorities act in loco parentis,' with the power and indeed the duty to 'inculcate the habits and manners of civility."') (internal citations omitted).

120. Jonathan King was the student referenced at the beginning of the article. See supra note 1.

121. Brief of Appellants at 9-12, King v. Pioneer Reg'l Educ. Serv.

Agency, 688 S.E.2d 7 (Ga. App. 2009). Jonathan's parents, Donald and Tina King, filed a lawsuit in Hall County Superior Court raising Jonathan's substantive due process rights under the Fourteenth Amendment of the United States Constitution via 42 U.S.C. ยง1983 against both the regional educational agency (R.E.S.A.) that operated the school where Jonathan committed suicide and the Georgia Department of Education (G.D.O.E.). Id. Jonathan's claims against the G.D.O.E. focused on the state's failure to promulgate regulatory guidance on the use of seclusion rooms in public

No. 2]

A Tragic Void

275

and Hasenfus, has argued that it was not the compulsory school attendance alone that created the constitutional duty to protect Jonathan.122 Rather the duty arises from the school's requirement that Jonathan remain in a seclusion room.12 3 Making the comparison between involuntarily committed persons, prisoners, and students in seclusion, the King family asserted, and the school system agreed in deposition, that all three are types of confinement.124 Jonathan's family asserted that the school's act of placing the student in a seclusion room constituted a restraint on his liberty.125 This created a special relationship between the school and Jonathan that imposed a duty on the state to assume responsibility for Jonathan's safety

and well-being.126 On November 5, 2009, the Georgia Court of Appeals closed off all legal avenues to relief for the family that Jonathan left behind by holding that neither the educational agency operating the school nor the Georgia Department of Education ("G.D.O.E.") are liable for the death of Jonathan King.127 With regards to the family's claims against the Pioneer Regional Educational School Agency ("R.E.S.A."), the court of appeals upheld the trial court's grant of summary judgment.128 In doing schools. Id. The matter was presented to the trial court on the R.E.S.A.'s motion for summary judgment and the G.D.O.E.'s motion to dismiss. King v. Pioneer Reg'1 Educ. Serv. Agency, 688 S.E.2d 7 (Ga. App. 2009).

122. Brief of Appellants, supra note 121, at 9.

123. Id.

124. Id. While no case has extended these protections to students in school, the U.S. Supreme Court has identified a constitutional duty to involuntarily committed persons and prisoners. See Youngberg v. Romero, 457 U.S. 307, 307 (1982) (holding that mentally retarded individual who was involuntarily committed had "constitutionally protected liberty interests under the Due Process Clause of the Fourteenth Amendment"); Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (describing "deliberate indifference to serious medical needs" of prisoners as violating the Eighth Amendment ban against cruel and unusual punishment). In such cases, failures to provide medical care or to stop inmate violence may be actionable because the confinement renders the persons more vulnerable.

125. Brief of Appellants, supra note 121, at 9.

126. Id.

127. King v. Pioneer Reg'l Educ. Serv. Agency, 688 S.E.2d 7, 10 (Ga. App. 2009).

128. Id.

276

John MarshallLaw Journal

[Vol. III

so, the court of appeals foreclosed the family's theory that Pioneer had an affirmative duty to prevent Jonathan from harming himself.'2 9 The court rejected the family's argument that Jonathan's removal to a seclusion room with a locked door is "by definition, a restraint on individual freedom under DeShaney." 3 0 In its analysis, the court, while accepting the family's analogy of a student in a seclusion room to an incarcerated prisoner, relieved R.E.S.A. of liability by applying the "deliberate indifference" standard for prisoner suicide cases."' The court found that the only two school officials "actually responsible for [Jonathan's] confinement" were not deliberately indifferent to the risk of Jonathan committing suicide.'3 2 This finding ignores educational reality. Jonathan interacted with almost every staff and faculty member in the school.' 33 He 129. Id. at 13. Jonathan's family's argument essentially tracks the reasoning set forth in DeShaney, asserting that the school's act of placing Jonathan in a seclusion room constituted a restraint on his liberty to the extent that a special relationship existed between the school and Jonathan.

This relationship created a duty on the state to assume responsibility for Jonathan's safety and well-being. Brief of Appellants, supra note 121, at 912. Appellants first argued that placing Jonathan in the seclusion room was a clear restraint on his liberty. Id. at 10. Comparing Jonathan's seclusion to a prisoner's incarceration, the family relied on DeShaney and its progeny to persuade the court that a special relationship existed. Id. Of particular note was the family's legal gymnastics with regards to the Eleventh Circuit's decision in Wyke, which held that compulsory school attendance does not, standing alone, create such a duty. Wyke v. Polk County Sch. Bd., 129 F.3d 560 (1Ith Cir. 1997). The family noted that it was not the fact that Jonathan was in school the day he died that created the state's duty, it was the fact that the school placed him in an 8x8 cinder block room with no access to basic human services that created the duty. Brief of Appellants, supra note 121, at 9.

130. Brief of Appellants, supra note 121, at 11.

131. King, 688 S.E.2d at 15 (citing Gish v. Thomas, 516 F.3d 952, 954 (11th Cir. 2008) (holding that officer was not "deliberately indifferent" when leaving firearm in front seat while transporting a prisoner who was a high suicide risk, as officer believed security window was locked).

132. Id. 133. Brief of Appellants, supra note 121, at 4-5 (describing Jonathan's history of seclusion at Alpine, including prior suicidal threats made by the student, the alarming amount of time the student was confined in the seclusion room before his death, and the discussions between school officials about Jonathan's suicidal tendencies).

No. 2])

A Tragic Void

277

had been placed in the seclusion room nineteen times prior to his suicide.13 4 The administration was aware of Jonathan and his emotional instability.' 35 It also fails to consider that the employees were merely carrying out the directives given to them by superiors. Overall, the narrow application of the court's "deliberate indifference" analysis whittles down the pedagogical process to untrained and unsupported teachers making dangerous decisions without any administrative support.

This is not how schools work in Georgia.

The court further held that neither the R.E.S.A nor the G.D.O.E. could be found liable for Jonathan's death. Relying on their holding that no duty of care was owed to Jonathan, the court declined to review the lack of policy or procedures at R.E.S.A. regarding use of seclusion rooms.'3 6 Finally, the court held that the G.D.O.E. was not liable for Jonathan's death, as the federal law requiring schools to provide all disabled students a free, appropriate public education did not support such a tortlike claim.'

The court also agreed that the G.D.O.E. enjoyed sovereign immunity protection from the state tort claims related to the matter.3 8 The King decision has set the liability bar for school abuse cases at an unattainable level. If a school is not liable for the mentally ill student that hangs himself with the school's rope, then it is unclear where any liability could ever exist in Georgia.

This legal reality, combined with the void of statutory or 134. Id.

135. Id. at 4.

136. King v. Pioneer Reg'1 Educ. Serv. Agency, 688 S.E.2d 7, 15 (Ga. App. 2009). In finding that neither the school nor the state owed any duty of care to Jonathan, the court relied on Wyke v. Polk County School Board, which states that "[bly mandating school attendance, the state simply does not restrict a student's liberty in the same sense that it does when it incarcerates prisoners or when it commits mental patients involuntarily."

Wyke v. Polk County Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997). The court declined Jonathan's invitation to explore the issue of a deprivation of liberty "continuum" articulated in Wideman v. Shallowford Community Hospital, which found that no bright line test can be applied and that, the closer the circumstances resemble prisoner incarceration, the more likely a special relationship is to exist. Wideman v. Shallowford Cmty. Hosp., 826 F.2d 1030, 1035 n.7 (11th Cir. 1987).

137. King, 688 S.E.2d at 15-16.

138. Id. at 16-17.

278

John MarshallLaw Journal

[Vol. III

regulatory guidance on the issue, has created a dangerous and volatile educational environment. Without accountability from either the legislature or the judicial system, underpaid and poorly trained school teachers will continue to resort to deadly holds to control student behavior; school districts will avoid any liability for the dangerous acts of their educators, and there exists no pressure, political or otherwise, to change the status quo in Georgia.

While schools are responsible for the health and safety of Georgia's students, a cloud hovers over any state actors that forge ahead unregulated and essentially immune from liability.

Each student that attends school becomes a potential victim with no redress. Even the most well-intentioned teachers have Without shown themselves capable of heinous acts.'1 9 regulation or accountability, Georgia's parents must accept a large leap of faith that their children will be safe from harm during the school day. Surely, this is not what the G.D.O.E. or the Georgia Court of Appeals intended as the consequence of the death of Jonathan King.

A continuing theme of jurisprudence in this area is the judiciary's reluctance, or its own perceived limitations, when imposing their judgment for that of educational professionals."o 139. Recently, the Atlanta Journal Constitution published an interview with Mary Hollowell, a former educator that had spent a year investigating the use of seclusion rooms in Georgia. In her opinion, "even good teachers can go numb. Even good people can participate in something like [using seclusion rooms] if they are stressed or under duress . . . I believe we should

abolish and disable these solitary-confinement rooms because if they are there, they will be used." Downey, supra note 36.

140. "By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems . . . ." Epperson v. Arkansas, 393 U.S. 97, 104 (1968). "It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion . . . .

[Section] 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations." Wood v. Strickland, 420 U.S. 308, 326 (1975). See also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988); Nix v. Franklin County Sch. Dist., 311 F.3d 1373, 1377 (1Ith Cir. 2002) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128-29 (1992) and White v. Lemacks, 183 F.3d 1253, 1259 (1 lth Cir. 1999)); Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 566 (8th Cir. 1988).

No. 2]

A Tragic Void

279

Since first diving into public education issues, courts have been trying to navigate the rocky waters between federalism and constitutional equity. 4 ' On the one hand, they attempt to preserve at a great cost the rights of states and local counties to establish and operate their own systems of public education.

While on the other hand, they are unable to sit idly by as these same state actors engage in conduct that continually chips away at the integrity of these very systems. The result in Georgia has been the erosion of those constitutional protections for students being subjected to unreasonable seclusion and abusive restraint.

Both legal theories applied to these issues have been limited and distinguished by Georgia courts to the point of nullity.

Presently, Georgia's jurisprudence is not "shocked" by a student hanging himself in school with a rope provided by a teacher.

Moreover, the cases appear to reflect an absurd notion that a student's disability (and the behaviors that result from such a limitation) can justify conduct that would create a cause of action against a murderer or rapist. Georgia state and federal courts continue to chip away at a student's right to be safe and free from physical harm while at school. And while the public consciousness seems to support protecting students from harm, neither our federal or state governments, nor our Georgia courts can find the political will or legal precedent to make this happen.

IV. THE BALANCE OF PROTECTING TEACHERS AND ENSURING SAFE CLASSROOMS To restore trust and accountability to the classroom, a balance must be struck between classroom management and the individual rights of students subjected to harmful seclusion and restraint practices. This balance may come by statute, by rule or perhaps by operation of the educational civil rights laws. The remainder of this article will focus on how each of these areas may combine to ensure Georgia can protect its students while continuing to operate safe and productive leaming environments.

141. See cases cited supra note 140.

280

John MarshallLaw Journal

[Vol. III

A. FederalLaw Recently, Representative George Miller of California and Representative McMorris Rodgers of California presented House Resolution 4247, the Preventing Harmful Restraint and Seclusion in Schools Act, for consideration by the House of Representatives.142 The Resolution, as proposed, would create the first federal limitations on the use of restraint and seclusion in school.

Generally, House Resolution 4247 tracks those principles proposed by the disability community as discussed above.143 The Resolution calls for the elimination of (1) mechanical restraints; (2) chemical restraints; (3) physical restraint or physical escort that restricts breathing; and (4) aversive behavioral interventions that compromise health and safety.'"

Also, the Resolution requires that educators employing allowable restraints be fully trained in administering such holds.145 House Resolution 4247 requires parent notification following the use of any physical force against the student and prohibits the use of restraint or seclusion as the primary method of behavioral management.14 6 The Resolution incorporates the definitions of restraints and seclusion from the Title V of the Public Health Service Act, the law that establishes federal baselines for those states that participate in the public health service programs, Medicaid and Medicare.1 4 7 While the current version of House Resolution 4247 is not likely to pass, some portions of this language may eventually make their way to President Obama's desk as federal law.

Should that happen, Georgia would have the benefit of a national baseline from which to operate while it seeks to create The federal its own policy on restraint and seclusion. legislation addresses the most pressing issues surrounding student safety, which is eliminating abusive techniques while at available (2009), 111th Cong.

4247, 142. H.R. http://edlabor.house.gov/documents/11 1/pdf/legislation/HR4247SeclusionR estraint.pdf.

143. See supra note 20 and accompanying text.

144. H.R. 4247.

145. Id. 146. Id.

147. Id.; see supra note 55 and accompanying text.

No. 2]

A Tragic Void

281

allowing for emergency procedures by trained educators when necessary. Georgia will be greatly aided in its policy making by the passage of this federal initiative.

B. GeorgiaAdministrative Rules Likewise, the G.D.O.E. has proposed regulatory language to The limit the use of restraint and seclusion in Georgia.' proposed rules would establish that the use of seclusion, prone restraint, mechanical restraint, or chemical restraint "is prohibited in Georgia public schools and educational programs."l 4 9 Further, the proposed rules would prohibit the use of physical restraint, "except in those situations in which the student is an immediate danger to himself or others and the student is not responsive to appropriate less intensive behavioral interventions including verbal directives and other de-escalation techniques."1 0 These rules are Georgia's first attempt to regulate any type of school restraint and seclusion.'s' While the language has yet to become official, the initial versions of the proposed rules do not appear to reach as far as the federal counterpart. 5 2 The proposed rules prohibit restraint and seclusion; however, the rules' definitions contain significant carve-outs that leave several questions regarding whether the use of such techniques would be limited at all. For example, "time out" is permitted under these rules; yet the definition of "time out" is so vague that it may actually permit several forms of seclusion.'5I 148. GA. DEP'T OF EDUC., 160-5-1-.35 (proposed) (2009), available at http://web.me.com/gcdd/GCDD/MeetingMinutes/Entries/2009/10/14_Mate rials for Our Meeting_inMaconfiles/Draft%20RuleSeclusion%20and%20Restraint%20Version%2001-%2008-25-09.pdf [hereinafter G.A.D.C. PROPOSAL].

149. Id. I50. Id. 151. No such regulations have ever existed in Georgia. See Ga. Dep't of at available 160, tit.

R., Educ.

State Educ., http://www.doe.kl2.ga.us/pea board.aspx?PageReq=PEABoardRules.

152. Pursuant to the Georgia Administrative Procedures Act, O.C.G.A. ยง 50-13-1, any executive agency seeking to promulgate an administrative rule must first subject that rule to public scrutiny. O.C.G.A. ยง 50-13-3 (2009).

153. G.A.D.C. PROPOSAL, supra note 148, at (1)(g) (Georgia defines "time out" as, "a behavioral intervention in which the student is temporarily

282

John MarshallLaw Journal

[Vol. III

Finally, the rules fall significantly short in two other major areas: requirement of educator training and parent notice. The rules do provide that a school district must train anyone that will employ necessary restraints;'14 however, the rules contain no specific directives to local school districts on the type, frequency, or duration of any such training. As the rule defers to the local school districts that are cash strapped and focused on other educational priorities, the risk of mismanagement or outright non-compliance exists.

Similarly, the rules' parent notice requirement only states that a local district must create policies that include, "[w]ritten parental notification when physical restraint is used to restrain their student within a reasonable time not to exceed one school day from the use of restraint."' The rules provide no guidance or specificity on what information must be conveyed in the notice. The notice would not be required to include the time, date, and antecedent circumstances leading to the use of restraint. The notice would not require a showing that the school had employed less restrictive measures prior to resorting to physical restraint. Further, the notice would not require any information for a parent about how many or which educators were called upon to restrain their child or the length of time the child was actually restrained. Such information serves not only to offer a minimum level of transparency to the school's behavior, but also serves as educational data that a student's collaborative planning team could review when making decisions about the troubled student's future.

For all its faults, Georgia must be commended on recognizing that the winds of change have started to blow. Hopefully, through a strong public debate and the influence of a similar resolution in the U.S. House of Representatives, the Georgia rule will evolve into a powerful regulatory force that will protect all Georgia students from abusive restraint and seclusion techniques.

removed from the learning activity but in which the student is not confined.") This could include a removal from the classroom to another smaller area that had a non-locked door. If so, this would be seclusion by another name.

154. Id. at 3.

155. Id.

No. 2]

A Tragic Void

283

C. Educational Civil Rights Litigation The final opportunity to balance the interests of safety and individual student rights could be a paradigm shift by the courts hearing these matters. As discussed above, the courts hold a special place for education cases and have struggled to make jurisprudential sense of unthinkable fact patterns and tenuous educational policies. The Georgia courts have strained the precedents of previous education cases and should now establish a new line of reasoning that resembles more closely the factual realities of education in this era.

In 1982, the United States Supreme Court, in Youngberg v.

Romero,156 established the rights of involuntarily committed persons with intellectual disabilities under substantive due process. It held that "the right to personal security constitutes a 'historic liberty interest' protected substantively by the Due The Court held that a substantive due Process Clause."' process claim exists "when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.""

Since 1982, Youngberg has been widely held to apply to all situations where people are confined to a variety of institutions In 1996, the United and a wide variety of factual scenarios.'

States Court of Appeals for the Eighth Circuit, in Heidemann v.

Rother, a case of first impression, held that Youngberg applies to determine whether a child's substantive due process rights were violated when the child was in special education.16 0 156. Youngberg v. Romero, 457 U.S. 307 (1982).

157. Id. at 315.

158. Id. at 323.

159. See generally Kyle K. v. Chapman, 208 F.3d 940 (11th Cir. 2000) (applying the Youngberg standard to a failure to properly treat the selfabusive behavior of a child with autism); Dolihite v. Maughnon, 74 F.3d 1027 (11th Cir. 1996) (applying the Youngberg standard to a failure to prevent adolescent's suicide attempt at a mental health facility); Spivey v.

Elliott, 29 F.3d 1522 (11th Cir. 1994) (applying the Youngberg standard to a to children confined in a school for children with hearing impairments); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (applying the Youngberg standard to children in foster care system).

160. Heidemann v. Rother, 84 F.3d 1021, 1029 (8th Cir. 1996).

284

John MarshallLaw Journal

[Vol. III

Relying in part on Heidemann, the United States District Court for the District of Connecticut agreed.16' Most recently, the United States Court of Appeals for the Fourth Circuit, in H.H. v.

Moffett,162 carried this theory further into an education context.

In this case, decided in July of 2009, the Fourth Circuit abandoned any attempt to find a pedagogical purpose behind two educators employing a mechanical restraint on a disabled student for the purpose of verbally abusing her.' 6 Recognizing that "a reasonable teacher would know that maliciously restraining a child in her chair for hours at a time interferes with that child's constitutional liberty interests," the court declined to extend any qualified immunity to the defendant educators.M Interestingly, the Fourth Circuit cited both Youngberg and another school restraint case, Jefferson v. Ysleta Independent 6 to clearly establish that professional School District,1 educational standards do not include physically or mechanically restraining students without legitimate justification. 166 Following the Fourth Circuit, the Eighth Circuit, and the Connecticut District Court, the Georgia courts should analyze substantive due process claims of students claiming educator abuse using the standard articulated in Youngberg, Heidemann and, most recently, Moffett. Abuse is not education. Abusive techniques, like restraint and seclusion, when employed with malice or without regard for student safety or welfare, meet the constitutional threshold of actionable conduct. Because such actions no longer reflect educational practice and carry such great risk to life and liberty, the courts should recognize the Youngberg standard as controlling.

In doing so, courts would strike the proper balance between school safety and student liberty. As abuse of restraint and unnecessary seclusion are neither safe, nor effective, they 161. M.H. v. Bristol Bd. of Educ., 169 F. Supp. 21, 31 (D. Conn. 2001).

162. H.H. v. Moffett, 335 Fed. Appx. 306 (4th Cir. 2009).

163. Id. at 314.

164. Id. 165. Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987) (holding that school teacher and principal were not entitled to qualified immunity from liability for tying a second-grade student to a chair for the majority of two consecutive days without any justification such as disciplinary action).

166. Moffett, 335 Fed. Appx. at 314 (citing Jefferson, 817 F.2d at 305).

No. 2]

A Tragic Void

285

should be considered outside the Youngberg penumbra of "professional judgment, practice, or standards" and given no As the standard allows for "professionally protection.16 7 acceptable choices,"16 1 the court could preserve an educator's ability to employ acceptable educational practices that promote positive behavioral changes and allow the safe management of a classroom environment while continuing to protect a student's educational and civil rights.

V. CONCLUSION Without change, the death of Jonathan King and the incarceration of Isaac are in vain. Education in Georgia must evolve and recognize that destructive practices like abusive restraint and unnecessary seclusion undermine the legitimacy of the educational institutions and those attempting to teach our future. They destroy the trust between educator and family and cast the once pillar of democracy into the shadow of doubt and uncertainty. Georgia must act to ensure that its educational institutions retain their integrity by eliminating abusive practices like improper restraint and seclusion. Further, the courts in Georgia should abandon their prior formula for a jurisprudence that recognizes the educational realities of the millennium.

167. Youngberg v. Romero, 457 U.S. 307, 323 (1982).

168. Heidemann v. Rother, 84 F.3d 1021, 1029 (8th Cir. 1996).

THE CONSTITUTIONALITY OF THE GEORGIA CHARTER SCHOOLS COMMISSION LAW ERIC COCHLING*

I.

INTRODUCTION

II.

THE EFFECT OF THE COMMISSION STATUTE ON CHARTER

........................................

..... 287

291

SCHOOL APPROVAL AND FUNDING .............................

........ 293

III.

THE CURRENT CONTROVERSY

IV.

AN ANALYSIS OF POSSIBLE STATE CONSTITUTIONAL ............................

CHALLENGES TO THE COMMISSION

A. B. C. D. V.

........................

The CharterSchools Versus Special Schools ....................................

Challenge .

The Management and Control and Independent .....................

School System Challenges ..................

The Sufficient Guidelines Challenge ........ ...................

The Funding Challenge ...............................................

CONCLUSION

1.

295

296 300 307 312 320

INTRODUCTION

The education landscape in Georgia has changed dramatically over the past several decades. In 1985, the General Assembly passed the Quality Basic Education Act ("QBE") which, in part, set the stage for school systems across the state to be on a more equal footing relative to education funding.' In 1993, the * Mr. Cochling is a graduate of the Georgia State College of Law and is in his tenth year of law practice. He currently serves as Vice President of Public Policy and Director of the Center for Policy Studies at Georgia Family Council, a nonprofit, educational organization based in Norcross.

The views expressed by the author are his alone and are not necessarily

288

John MarshallLaw Journal

[Vol. III

General Assembly enacted legislation creating charter schools in Georgia for the first time. Since the early days of expanding educational opportunities in Georgia, the General Assembly has amended and expanded the state charter school laws more than a half dozen times' and has, in recent years, continued to expand opportunities for K-12 students by creating additional taxfunded scholarship programs (such as the Special Needs Scholarship in 20074 and the Tuition Tax Credit Scholarship in 20085).

The reform that is the subject of this article and has recently drawn significant criticism is the legislation creating the Georgia Charter Schools Commission ("Commission") under the auspices of the State Board of Education.' The Commission shared by Georgia Family Council.

1. O.C.G.A. ยง 20-2-130 (2009). At the time QBE was created, education spending varied dramatically among districts and schools based on the relative wealth of the citizens in each area comprising the tax base. The Quality Basic Education Act created, for the first time in Georgia, a funding mechanism designed to insure that each student in a public school received a base level of education dollars regardless of where they lived. It also attempted to equalize funding between schools and districts with the goal that students with similar needs would receive funding for their education that was approximately equal.

2. O.C.G.A. ยง 20-2-2060 (2009). Charter schools are tax funded public schools that operate based on a charter agreement between the charter school, local districts, and the state Department of Education (or between the charter school and Department of Education in the case of state-chartered schools). Other than the restrictions within the charter agreement, charter schools are free of most regulations applied to traditional public schools.

3. The law was amended in 1995, 1998, 2000, 2002, 2004, 2007, 2008, and 2009. See a partial listing at GA. DEP'T OF EDUC., GEORGIA CHARTER SCHOOLS FACTS AT A GLANCE, (2004) , available at http://www.doe.kl2.ga.us/documents/schools/charterschools/charter-stats.p df.

4. O.C.G.A. ยง 20-2-2110 (2009) (providing students with an Individualized Educational Plan (IEP) with a scholarship to attend the public or private school of their choice).

5. O.C.G.A. ยง 20-2A-1 (2009) (allowing corporations and individuals to donate to private nonprofit organizations which, in turn, give scholarships to students to attend the private school of their choice).

6. H.B. 881, 149th Gen. Assem., 2d Reg. Sess. (Ga. 2008) (as passed), at available http://www.legis.ga.gov/legis/2007_08/versions/hb88 1_HB_881 AP_11 .htm (last visited Mar. 22, 2010). The legislation, known as House Bill 881 (or

No. 2]

Georgia CharterSchools Commission Law

289

was created by the General Assembly, under the constitutional authority granted to it to create special schools,7 for the purpose of developing and supporting new state-chartered special schools.' To that end, the powers of the Commission include the ability to approve, renew, or deny charter school petitions;' authorize cosponsors of commission charter schools;' 0 and conduct facility and curriculum reviews." In addition to these powers, the statute imposes a long list of responsibilities upon the Commission including duties to review charter school petitions, assist in establishing new Commission charter schools, create and promote best practices, 2 create and implement accountability systems, monitor and review academic achievement, and audit the financial records of Commission charter schools." To those ends, the Commission H.B. 881) was signed by Governor Sonny Perdue in May of 2008 (and subsequently became law on July 1, 2008). It is codified as O.C.G.A. § 202-2080 (2009). See Ga. Gen. Assem., 149th Gen. Assem., 2d Reg. Sess., at 2008), available (Ga. 20, 2010) (Mar. http://www.legis.ga.gov/legis/2009_10/sum/hb881.htm.

7. GA. CONST. art. VIII, § V, para. VII. 8. O.C.G.A. § 20-2-2080(b)(1) (2009) (stating in pertinent part that the Commission's "primary focus is the development and support of charter schools in order to better meet the growing and diverse needs of some of the increasing number and array of charter schools in this state . . .").

9. O.C.G.A. § 20-2-2086 (2009). The Commission is also given authority to accept petitions from currently existing charter schools, whether created by a charter agreement with a local board of education or as a state charter school only. Id. The Commission is limited to entering into a charter agreement with an existing charter school at the expiration of the school's current charter or upon the local system or State Board of Education rescinding or waiving the obligations of the current charter agreement. Id. 10. O.C.G.A. § 20-2-2081(3) (2009). A "cosponsor" is defined to mean "a municipality, county, consolidated government, university or college of the board of regents, technical institution of the Technical College System of Georgia, or regional educational service agency which has been authorized by the commission pursuant to Code Section 20-2-2083." Id. Together with the petitioner, the cosponsor works to create and implement the programs offered by the charter school. Id. 11. O.C.G.A. § 20-2-2083(a) (2009).

12. O.C.G.A. § 20-2-2083(b)(2) (2009) (stating in part, "[a]t a minimum, the best practices shall encourage the development and replication of academically and financially proven charter school programs").

13. O.C.G.A. § 20-2-2083(b) (2009).

290

John MarshallLaw Journal

[Vol. III

was given authority to both authorize the creation of charter schools without local school board approval1 4 and to provide funding essentially on par' with locally-approved charter schools created under the Georgia Charter Schools Act of 1998.16 The Commission law provides that, in addition to Commission charter schools receiving state and federal funding like locally approved charter schools," Commission charter schools are entitled to receive, pursuant to O.C.G.A. § 20-22090(a)(3)(A), a proportional share of the money the local system would have spent if the child attending a Commission charter school were still attending a local traditional public school.'" The law also instructs the Department of Education to deduct the funding allocated to a student attending a Commission charter school from the state funding to the local district.' 9 The result of this funding mechanism is that, while 14. Compare O.C.G.A. § 20-2-2083(a)(1) (2009) (allowing for approval of charter school petitions, generally), with O.C.G.A. § 20-2-2085 (2009) (requiring new charter petitions to be submitted to local school boards and the Commission but authorizing the Commission to approve the charter petition even if the local system denies it).

15. O.C.G.A. § 20-2-2090 (2009). The funding mechanism in the Commission statute is considerably different than the one created by the Georgia Charter Schools Act of 1998. See discussion infra Part IV.D. 16. O.C.G.A. § 20-2-2060 (2009). The Georgia Charter Schools Act of 1998, as amended, is the most recent iteration of the 1993 charter school law.

Id. The Georgia Charter Schools Act of 1998 and the statute creating the Georgia Charter Schools Commission are both currently in effect, giving charter petitions multiple avenues for potentially establishing new charter schools. Id.; O.C.G.A. § 20-2-2083 (2009).

17. O.C.G.A. § 20-2-2090 (2009). Notably, charter systems, as opposed to individual charter schools, may be provided with additional funding.

O.C.G.A. § 20-2-165.1 (2009).

18. O.C.G.A. § 20-2-2090(a)(3)(A) (2009) (emphasis added). This section says, in pertinent part, that the Department of Education shall allocate "[a]n amount determined by the commission for each student enrolled in such school equal to a proportional share of local revenue from the local school system in which the student attending the commission charter school resides; provided, however, that the commission may reduce the amount calculated pursuant to this paragraph based on factors that affect the cost of providing instruction." Id. 19. O.C.G.A. § 20-2-2090(c) (2009). This amount is roughly equivalent to the amount the district would have received for that student under the QBE funding formula. Id.

No. 2]

Georgia CharterSchools Commission Law

291

local public school tax dollars are not being paid directly by the local system to the Commission charter school, the financial impact to the local system is substantially similar.20 In the pages that follow, the Georgia Charter Schools Commission law and the controversy that has developed as a result of the approval of the first charter schools under the law will be explored in much more detail. Section II of this article will focus on the effect of the law on how charter schools are approved and funded in Georgia. Section III will focus on describing the controversy that has arisen in the wake of the first charter schools being approved under the new law. Finally, Section IV is devoted to exploring the merits of the state constitutional challenges that have been raised by opponents to the law and showing why each, in turn, should fail. The author concludes that, while the law does dramatically change how charter schools may be approved in Georgia, it should withstand the challenges brought against it under the Georgia Constitution.

II. THE EFFECT OF THE COMMISSION STATUTE ON CHARTER SCHOOL APPROVAL AND FUNDING

The Commission statute's departure from the funding mechanism created by the previous charter school law, the Georgia Charter Schools Act of 1998 (hereafter, "the Act"), is evident when viewed in light of how charter schools are currently approved and funded.2 1 Under the Act, a petitioner wishing to start a charter school is required to first apply to the local board of education in the district where the charter school proposes to operate.22 If the charter application is approved by 20. Under this funding mechanism, local school systems experience a loss in state funding that must be "made up" by local tax dollars.

21. O.C.G.A ยง 20-2-2060 (2009). Prior to the creation of the Charter Schools Commission, the Charter Schools Act of 1998 provided the only mechanism through which a charter school could be created absent local school board approval. O.C.G.A. ยง 20-2-2064.1 (2009). It is important to note that the Charter Schools Act of 1998 is still good law, and a charter school petitioner may use its provisions in seeking to establish charter schools. Id. 22. O.C.G.A. ยง 20-2-2064(b) (2009). The law makes a distinction between "conversion" charter schools (and "conversion" systems) and "startup" charter schools. O.C.G.A. ยง 20-2-2064 (2009). "Conversion" charter

John MarshallLaw Journal

292

[Vol. III

the local system and subsequently approved by the State Board of Education, then the charter school receives federal, state, and local funding.23 Upon denial of the petition by the local board of education, the petitioner is authorized to apply to the State Board of Education to receive a state charter as a "special school."2 4 If the State Board of Education approves the charter but the local board does not, then the new state chartered school receives state and federal funding but no local public school tax dollars, unless the voters of that local system approve the use of local funds via a referendum.25 While the State Board of Education is empowered to require a local referendum under the Act, 26 should voters fail to approve local funding of a state chartered school, there is no other mechanism in the Act to provide for a proportional share of local funding like that found in the Commission statute. The Commission statute, in contrast, allows state approved charter schools to receive approximately the same amount of funding as locally approved charter schools but without the approval of the local system. As will be discussed below, this perceived departure from local control of funding has led to the constitutional challenges currently before the Georgia courts.2 7 schools are schools that were operated as a traditional public school but have petitioned to become a charter school governed by a charter agreement.

O.C.G.A. § 20-2-2064(a) (2009). "Start-up" charters schools are new schools started as charter schools (i.e., they were never traditional public schools). O.C.G.A. § 20-2-2064(b) (2009). Throughout this article, a reference to "charter school(s)" is a reference to "start-up" charter schools only.

23. O.C.G.A. § 20-2-2068.1 (2009). These three sources provide the vast majority of education funding in Georgia (roughly 97 percent). See discussion infra Part IV.D. 24. O.C.G.A. § 20-2-2064.1(b) (2009). Currently, there are four charter schools operating as state-chartered special schools. See GA. CONST. art.

VIII, § V, para. VII (allowing the General Assembly to create "special schools" that are not under the control of local boards of education); GA. DEP'T

OF

EDUC.,

LIST

OF

GA.

CHARTER

SCHS.,

http://www.doe.kl2.ga.us/DMGetDocument.aspx/Charter.list.extemal.websit e.xls?p=6CC6799F8Cl371F6C8D4AE5CA86AD179FOBD50EFA22BAB49 CO6445ABC4CE4EA8&Type=D (last visited Mar. 22, 2010); see also discussion infra Part IV.A. 25. O.C.G.A. § 20-2-2068.1(d) (2009).

26. O.C.G.A. § 20-2-2068.1(e) (2009).

27. See discussion infra Part IV.

No. 2]

Georgia CharterSchools Commission Law

293

III. THE CURRENT CONTROVERSY As a result of this conflict, in 2009, three Georgia counties filed two lawsuits in Fulton County Superior Court in response to the activities of the Commission. 28 The lawsuits directly challenge the constitutionality of the Commission, the law creating it, and the schools approved under its authority. 29 At the heart of the challenge is the Commission's approval of two schools, Ivy Preparatory Academy ("Ivy Prep") in Gwinnett County and the Charter Conservatory for Liberal Arts and Technology ("CCAT") in Bulloch County, the first Commission chartered schools in Georgia.3 0 Ivy Prep is an all-girls school that opened in 2008 after being granted a state charter. The school's charter petition to the Gwinnett County Board of Education was previously denied in 2007."1 Currently, there are 310 students attending Ivy Prep,32 with minorities representing nearly ninety percent of the student population and one-third of the population coming from families with incomes low enough

28. Complaint, Gwinnett County Sch. Dist. v. Cox, No. 2009CV174907 (Sept. 11, 2009), available at http://www.cpoga.org/PDF/complaint.pdf [hereinafter Gwinnett Complaint]; Complaint, Bulloch County Sch. Dist. v.

Ga. Dep't of Educ., No. 2009CV175703 (Sept. 28, 2009) [hereinafter Bulloch & Candler Complaint].

29. Gwinnett Complaint, supra note 28; Bulloch & Candler Complaint, supra note 28.

30. GA. CHARTER SCH. COMM'N, MEETING MINUTES, (June 18, 2009), at available http://public.doe.kl2.ga.us/pea charter.aspx?PageReq=PEACSMeetingMinu tes (follow "August 9 Commission Minutes" for hyperlink) (last visited March 22, 2010) [hereinafter MEETING MINUTES]. The Defendant charter schools attract students from several school districts. Gwinnett Complaint, supra note 28; Bulloch & Candler Complaint, supra note 28. Any school district with one student or more attending one of these charter schools has standing to bring suit. For example, CCAT has students from both the Bulloch and Candler school districts, so both have joined in the suit. See Bulloch & Candler Complaint, supra note 28.

31. Brandee A. Thomas, Concerns Rise About Charter School Funding, at available 25, 2009, Oct. TIMES, GAINESVILLE http://www.gainesvilletimes.com/news/archive/25207/.

32. Ivy Prep-About, http://www.ivyprepacademy.org/about (last visited Mar. 23, 2010).

294

John MarshallLaw Journal

[Vol. III

to qualify for the free and reduced price lunch program."

CCAT was also granted a state charter in 2001 after being denied a charter by the Bulloch County Board of Education.3 4 Currently, there are 132 students enrolled at CCAT, 5 and, historically, CCAT students have mirrored the local system in racial diversity and poverty, with nearly forty-five percent of its students eligible for the free and reduced price lunch program.3 6 In addition to approving the charter petitions for the schools, the Commission also approved funding for the schools in accordance with the Commission statute's funding mechanism, 37 including providing the schools with the proportional local share of funding authorized by the statute."

Because Ivy Prep and CCAT were already state chartered schools 39 when they petitioned to become Commission chartered schools, which also meant that they were not eligible for any share of local funding, the allegation is that they applied to become a Commission chartered school primarily, if not solely, for the purpose of obtaining the additional funding represented by the proportional local share.40 33. Benita M. Dodd, Lawsuit Targets a School with Class, GA. PUB. POLICY FOUND., Sept.

18, 2009, available at http://www.gppf.org/article.asp?RT=&p=pub/Education/edulawsuit09O918.h tm.

34. James Healy, Bulloch School System Plans to File CCAT Lawsuit Next Week, STATESBORO HERALD, Sept. 19, 2009, available at http://www.statesboroherald.com/news/archive/19250.

35. Id. 36. GA. DEP'T OF EDUC., 2008-2009 REPORT CARD FOR CCAT, available

at http://gadoe.org/ReportingFW.aspx?PageReq= I02&Countyld=795&PID=62 &PTID=213&T=1&FY=2009 (last visited Mar. 22, 2010).

37. See discussion supra Part I. 38. MEETING MINUTES, supra note 30.

39. Meaning that both schools' charter petitions had been originally denied by their local county boards of education and subsequently approved by the State Department of Education under the Charter Schools Act of 1998.

40. While the motivation behind the schools' decision to seek Commission charter status is immaterial to the constitutional challenges considered in this paper, the question of funding is at the heart of this case and is motivating both sides. The state has exercised authority to create charter schools without local approval for over a decade and a challenge to that authority comes only in the wake of local funding being affected.

No. 2]

Georgia CharterSchools Commission Law

295

The conflict between local control and the power of the new Commission (through the Georgia Department of Education) to allocate a proportional local share of tax dollars without local taxpayer approval represents the backbone of the constitutional challenges discussed below.

IV. AN ANALYSIS OF POSSIBLE STATE CONSTITUTIONAL CHALLENGES TO THE COMMISSION 41

The two lawsuits filed in response to Commission activities raise five specific constitutional challenges under the Constitution of the State of Georgia. 42 The first challenge alleges that charter schools are not within the meaning of "special schools" as authorized by the constitution in article VIII, section V, paragraph VII. 43 The second challenge asserts that in creating the Commission, the General Assembly violated the constitutional prohibition against the creation of an independent school system found in Article VIII, Section V, Paragraph I." The third challenge claims that the ability of the Commission to grant charters to schools that are not under the management and control of an elected board of education violates the constitutional provision in Article VIII, Section V, Paragraph II, which states that "[e]ach school system shall be under the management and control of a board of education ...

Because of the integral nature of the two topics, the independent system and management and control challenges 41. Since the current suits against the Commission do not raise any challenges under the U.S. Constitution, this article does not address any such potential challenges.

42. Where this article refers to the "Constitution" or a "constitutional challenge," such references are to the Constitution of the State of Georgia of 1983. The constitutional challenges discussed in this article mirror those challenges brought in the lawsuits mentioned in supra note 28. For the sake of brevity and relevance, only those challenges will be considered.

However, other constitutional challenges are certainly possible.

43. GA. CONST. art. VIII, ยง V, para. VII (2009). The language of the paragraph authorizes the General Assembly to create "'special schools' in such areas as may require them" but gives few other details as to what defines a "special school." Id. 44. GA. CONST. art. VIII, ยง V, para. I (2009) (stating, in part, that "[n]o independent school system shall hereafter be established").

45. GA. CONST. art. VIII, ยง V, para. 11 (2009).

296

John MarshallLaw Journal

[Vol. III

will be considered together. The fourth challenge alleges that the delegation of authority to create special schools from the General Assembly to the Commission is unconstitutional because the delegation was allegedly done without prescribing sufficient guidelines for the Commission to follow in creating the schools. If true, the delegation of authority would violate article III, section I, paragraph I of the state constitution, which vests legislative power exclusively in the state General Assembly.4 6 The fifth and final challenge alleges that the portion of the law authorizing the Department of Education to fund Commission charter schools with a proportional local share of QBE earnings violates article VIII, section V, paragraph VII of the state constitution because the funding is Ultimately this article not approved by local voters.4 7 concludes, as detailed below, that each of these challenges is most likely to fail.

A. The CharterSchools Versus Special Schools Challenge According to the first challenge, Commission-approved charter schools are not "special schools" within the meaning of article VIII, section V, paragraph VII, of the Georgia Constitution.48 The argument here is that, while the constitution does empower the General Assembly to create special schools, the term "special schools" is said to mean state-funded "special needs schools" catering to students with some form of disability

46. GA. CONST. art. I, ยง I, para. I (2009) (stating 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").

47. GA. CONST. art. VIII, ยง V, para. VII (2009) (stating, in part, that "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.").

48. The question in this section assumes that, provided that the Constitution gives the General Assembly power to create special schools, it also gives the General Assembly power to delegate that authority to the Commission. The delegation issue is not addressed specifically in this section; this will be addressed below, along with the question of whether the delegation of authority to the Commission was done properly. See infra Part C. The question in this section is narrowly focused on the meaning of "special schools" in the Constitution.

No. 2]

Georgia CharterSchools Commission Law

297

and not just any school the legislature deems necessary.49 As evidence of this definition for "special schools," proponents point to O.C.G.A. ยง 20-2-152(c)(1)(E) where the General Assembly authorized special education funding to be used for the operation of special schools, including "the Georgia School for the Deaf, The Georgia Academy for the Blind, and the Atlanta Area School for the Deaf and other special schools as approved by the General Assembly."50 That this language 49. See Gwinnett Complaint, supra note 28, at para. 45; Bulloch & Candler Complaint, supra note 28, at paras. 52-53.

50. O.C.G.A. ยง 20-2-152(c)(1)(E) (2009). In context the language is as follows: (c)(1) The State Board of Education shall provide for the funding which has been approved by the General Assembly for this purpose for special education programs for students with disabling conditions which are either of such low incidence or of such severity that it is unfeasible or impractical to provide needed educational services through programs offered by local school systems. The state board may provide such educational services with funds specifically approved by the General Assembly for this purpose by: (A) Providing grants directly to regional educational service agencies for provision of services; (B) Either directly contracting with or making grants to or authorizing local units of administration to contract with or make grants to suitable private or public institutions, inside or outside this state, for the provision of such services; provided, however, that the educational and related services of the child must be provided by professionals, such as teachers, school psychologists, speech therapists, physical and occupational therapists, and audiologists who meet the certification or licensing standards of their profession in the state in which the institution is located; (C) Authorizing local units of administration to contract with suitable public agencies and departments, including institutions in which eligible children are confined and out-patient centers serving eligible children, inside and outside this state, for the provision of such services; (D) Entering into reciprocal agreements with other states or political subdivisions thereof for the provision of such services; or (E) Operating the Georgia School for the Deaf the Georgia Academy for the Blind, the Atlanta Area Schoolfor the Deaf and other special schools as approved by the GeneralAssembly. Id. (emphasis added).

298

John MarshallLaw Journal

[Vol. III

includes provisions authorizing funding of General Assemblycreated special schools is said to make clear the legislatures' intention that its power to create special schools be limited to the creation of schools for special needs students. Although the case law interpreting the power conferred upon the legislature by the "special schools" provision in the constitution is sparse, the question raised by this challenge is really one regarding what type of limitations exist on the legislature's power to enact laws where it does so pursuant to a constitutional grant of authority.

In Bryan v. Georgia Public Service Commission," a unanimous Georgia Supreme Court found the following regarding limits on the power of the General Assembly to legislate: The inherent powers of the Georgia General Assembly are plenary. Unlike the United States Congress, which has only delegated powers, the Georgia legislature is given full lawmaking powers. . . . "The legislature is absolutely

unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution."52 In Bryan, the Court found that the plenary power" of the legislature leads to a strong presumption in favor of the constitutionality of a statute5 4 and that acts of the General Assembly will not be declared unconstitutional except in clear and urgent cases."

Here, in light of Bryan and Sears, it must be asked whether the language of O.C.G.A. ยง 20-2-152(c)(1)(E) limits the General Assembly's constitutionally-conferred power to create special schools to the creation of special needs schools only.

The language of article VIII, section V, paragraph VII is the only provision in the state constitution dealing with the scope of the General Assembly's power to create special schools and, as such, is dispositive in determining whether the General 51. Bryan v. Ga. Pub. Serv. Comm'n, 234 S.E.2d 784 (Ga. 1977).

52. Id. at 785 (citing Sears v. State, 208 S.E.2d 93 (Ga. 1974)).

53. "Plenary" is defined as "[flull; complete; entire." BLACK'S LAW DICTIONARY 1175 (7th ed. 1999).

54. See also Park v. Candler, 40 S.E. 523, 523 (Ga. 1901).

55. Bryan, 234 S.E.2d at 785; see also Serv. Employees Int'l Union v.

Perdue, 628 S.E.2d 589, 591 (Ga. 2006).

No. 2]

GeorgiaCharterSchools Commission Law

299

Assembly has the power to establish charter schools as a type of special school. 6 A reading of the provision's plain language indicates that the grant of authority to the legislature to create special schools is very broad and does not limit the types or numbers of special schools that may be created, nor does it limit the purposes for which special schools may be established."

The only limitation placed upon the legislature by the provision relates to how special schools may be funded. 8 Even if it were to be assumed, arguendo, that the special schools provision of the constitution provides sufficient authority to the legislature so that it, by statute, could limit its own authority to create special schools, the argument that O.C.G.A. ยง 20-2-152 (related to funding of special needs education) expresses such a limitation is unpersuasive. A reading of the statute shows that the legislature was merely exercising its authority to create a legal structure governing special education services provided by the state, including those administered by the three special schools in existence at the time the law was enacted. 9 Nowhere in the plain language of this statute, or any other, has the legislature limited its own authority to create special schools to those only serving students identified as having special needs. The instant statute merely sets forth certain rules governing the funding and operation of three specific special schools previously created by the legislature.

56. GA. CONST. art. VIII, ยง V, para. VII. 57. Id. The language appears in the state Constitution as follows: Special schools. (a) 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." Id. 58. See discussion infra Part IV.D. 59. See supra note 50 and accompanying text.

300

John MarshallLaw Journal

[Vol. III

Finally, as is discussed further below, 60 when faced with this and related questions relative to the creation and operation of charter schools, the state Attorney General has concluded repeatedly that the constitution empowers the General Assembly to create charter schools as a type of special school citing to the very broad and unrestrictive nature of the language in the special schools constitutional provision.'

Given the presumption that acts of the legislature are constitutional, the General Assembly's plenary power to legislate, the existence of a specific constitutional grant of authority to the legislature to create special schools, the absence from the constitution of a limitation upon the legislature's ability to create various types of special schools, and the absence of any language in the constitution or statute proscribing that "special schools" must only be special needs schools, it is evident that the General Assembly's power to create "special schools" includes the ability to create a type of special schools known as charter schools.6 2 B. The Management and Control and Independent School System Challenges The question raised by the second and third challenges to the Commission law is whether the creation of the Commission constitutes the creation of an independent school system existing outside the management and control of local school 60. See infra Part IV.B. 61. See 2001 Op. Ga. Att'y Gen. No. 9, 2001 Ga. AG Lexis 11, available at http://law.ga.gov/00/opinion/detail/0,2668,87670814_90679019_109917158, 00.html [hereinafter 2001 Opinion] (interpreting the Charter Schools Act amendment relating to state charter schools); 1998-1999 Op. Ga. Att'y Gen. available at Lexis 1, Ga. AG 1998 No. U98-2, http://law.ga.gov/00/opinion/detail/0,2668,87670814_90686057_109457855, 00.html [hereinafter 1998 Opinion]; 1997 Op. Ga. Att'y Gen. No. U97-8, available at AG Lexis 13, 1997 Ga, http://law.ga.gov/00/opinion/detail/0,2668,87670814_90686057_109478012, 00.html [hereinafter 1997 Opinion].

62. It is not insignificant that, under the Georgia Charter Schools Act of 1998, the state is empowered to create state-chartered special schools, several of which have been created and gone unchallenged as to violating the state Constitution. O.C.G.A. ยง 20-2-161 (2009).

No. 2]

Georgia CharterSchools Commission Law

301

systems in violation of two of Georgia's constitutional The contention is that because the General provisions.

Assembly granted the Commission and the state Board of Education the power to authorize and exercise oversight of Commission charter schools without the involvement of local school systems, it has effectively created a statewide independent school system that has no accountability to any local boards of education. In fact, this is exactly what the creation of the Commission has done. However, the relevant question in this context is not whether the Commission statute creates a system of schools that are independent of local control but whether the prohibition against the creation of independent school systems applies only to local school systems or to the General Assembly as well. The resolution of this question will also address the related issue of whether management and control of a school system can be vested in a body other than a local system. After all, to be "independent" means that the system is not under local management and control. If the legislature has the power to create an "independent" system,

63. GA. CONST. art. VIII, ยง V, para. I. In context, the language prohibiting independent school districts reads as follows: School systems continued; consolidation of school systems authorized; new independent school systems prohibited. Authority is granted to county and area boards of education to establish and maintain public schools within their limits. Existing county and independent school systems shall be continued, except that the General Assembly may provide by law for the consolidation of two or more county school systems, independent school systems, portions thereof, or any combination thereof into a single county or area school system under the control and management of a county or area board of education, under such terms and conditions as the General Assembly may prescribe; but no such consolidation shall become effective until approved by a majority of the qualified voters voting thereon in each separate school system proposed to be consolidated. No independent school system shall hereafter be established. Id. (emphasis added); GA. CONST. art. VIII, ยง V, para. II (providing, in relevant part, that "[e]ach school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law") Importantly, this sentence sets residency within the "territory embraced by the school system" (thus local control over each system) as a condition of board membership. Id.

302

John MarshallLaw Journal

[Vol. III

then it also has, by definition, the power to vest management and control of that system outside the local system.

The long history of local control of schools in the United States and Georgia highlights why this issue is of such importance in the current controversy. Since public schools were first authorized in Georgia in 1777, they have been under the control of the communities in which they were located for at least a couple of reasons.64 First, local control allows for education to be tailored to the needs and goals of local citizens, whose children attend the schools." Second, so much of public education is funded with local tax dollars that local control is expected.66 Indeed, as will be explored later, 7 the Georgia constitution has a very strong bias in favor of local control of locally assessed tax dollars, and this is particularly true relative to local tax dollars raised for education.68 And while the history of education in Georgia reveals a bias in favor of local control, the history of consolidation of local districts reveals the limits the constitution and the General Assembly have placed on their deference to local control.

Under the constitutional provisions related to consolidation, authority is granted to county governments and area boards of education to maintain public schools within their districts while giving the General Assembly specific authority to consolidate local school systems "under such terms and conditions as the General Assembly may prescribe" and by specifically prohibiting the creation of any new independent school systems thereafter.69 It is important to know that the move to 64. COMM'N FOR SCH. BD. EXCELLENCE, GA. SCH. BD. Ass'N., FINAL at available REPORT (2008),

http://www.gsba.com/downloads/newsroom/press-releases/finalcommissio njrpt-091008.pdf.

65. Id. 66. See, e.g., GwINNETT COUNTY BD. OF EDUC., MEETING REGARDING LEGAL ACTION CONTESTING THE CONSTITUTIONALITY OF THE GEORGIA (Oct. 8, 2009), available at CHARTER SCHOOLS COMMISSION http://www.gwinnett.kl2.ga.us/gcps-

mainweb01.nsf/105ED38853B3C2D1852576490080Fl lD/$file/BdCommen tsforBoardMtgonCharterSchComm.pdf.

67. See discussion infra Part IV.D. 68. See GA. CONST. art. VIII, ยง VI, para. 11; GA. CONST. art. VIII, ยง VI, para. IV. 69. GA. CONST. art. VIII, ยง V, para. I.

No. 2]

Georgia CharterSchools Commission Law

303

consolidate schools was, in large part, driven by the belief that small, independent local schools were inadequately funded to educate effectively. 0 Consolidation was believed to be part of the solution for improving the quality of education and raising achievement levels among the poor (and the research seems to justify the belief) by eliminating waste and capitalizing on economies of scale.7 ' By closing small schools with inadequate resources and encouraging consolidation, local schools could then pool their resources, eliminate duplicate costs, increase efficiency, and, it was expected, be able to deliver a higher Whatever the merits of quality education to students.72 consolidation, under the constitution, the General Assembly has been given an express grant of authority to exercise control over local education systems.

The outright prohibition against the creation of new independent school systems has resulted in the virtual Since elimination of local independent school systems. consolidation, the quality of education generally available in the state has also improved, lending some credibility to the claim that consolidation may have worked, if only in part.74 Given that the language prohibiting the creation of new independent school systems is intimately tied to consolidation of local school systems (historically speaking and in context), the prohibition is best understood as forbidding local districts, and not the General Assembly, from creating independent school systems and thereby returning to the days when schools were very small, had limited resources, and were inadequate to the task of educating children. However, while helpful, this argument from 70. NREA CONSOLIDATION TASK FORCE, NAT'L RURAL EDUC. Ass'N, REPORT (2005), available at RURAL SCHOOL CONSOLIDATION

http://www.eric.ed.gov/ERICDocs/datalericdocs2sql/content-storage_01/000 0019b/80/29/90/32.pdf [hereinafter NREA REPORT].

71. Id. 72. Id. 73. See Ross RUBENSTEIN & DAVID L. SJOQUIST, GA. STATE UNIV., REPORT No. 87, FINANCING GEORGIA'S SCHOOLS: A PRIMER I (Andrew available at Public Policy 2003), Young School of Since the ratification of the 1945 http://aysps.gsu.edulfrcreport87.pdf.

Georgia Constitution, which consolidated systems and prohibited new independent school systems, the number of school systems has gone from 1,257 to 180, of which only 21 are independent. Id. 74. NREA REPORT, supra note 70.

304

John MarshallLaw Journal

[Vol. III

history, legislative intent, and context is not necessarily dispositive when deciding, finally, whether the prohibition on the creation of independent districts applies to acts of the legislature.

Yet, there is a constitutional provision that appears to resolve this question definitively, especially given the history, legislative intent, and contextual arguments. The provision also resolves the question of local management and control of special schools. Article VIII, section V, paragraph VII of the Georgia Constitution says that the legislature "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 ... ."

Despite this express grant of authority to the General Assembly to create special schools, some would argue that there is some conflict between this grant of authority and the prohibition against the creation of independent school systems.

This argument essentially asserts that while the General Assembly may be able to create some limited types of special schools, it is unconstitutional for it to exercise management and control over those schools in the same manner and to the same extent as local boards of education exercise authority over local school systems. For the General Assembly to do so would mean, this argument contends, that it operates a de facto independent school district that happens to be statewide in scope.7 6 Although the apparent conflict between these two constitutional provisions has not been specifically addressed by the Georgia Supreme Court, the court has set forth rules of construction that are instructive here. First, the court has concluded that apparently conflicting constitutional provisions should be harmonized to effectuate the purposes of each where possible, "so as to ascertain the legislative intendment and give effect thereto" because "it is not presumed that the legislature The intended that any part would be without meaning." ยง V, para. VII (emphasis added).

76. See Gwinnett Complaint, supra note 28, at para. 40; Bulloch & Candler Complaint, supra note 28, at para. 47.

77. Goldberg v. State, 651 S.E.2d 667, 670 (Ga. 2007) (citing City of Buchanan v. Pope, 476 S.E.2d 53, 55 (Ga. App. 1996)).

75. GA. CONST. art. VIII,

No. 2]

Georgia CharterSchools Commission Law

305

Court's assumption is that the legislature knows the current state of the law when legislating and intends any new provision to work in harmony with previous ones, unless expressly stated otherwise. In attempting to harmonize the provisions as required by the rules of construction, it is not difficult to interpret the prohibition against creating new independent school districts as a prohibition against local school systems creating independent districts, as was discussed above. By recognizing the grant of authority to the General Assembly to create special schools as an exception to the rule against creating independent school systems, the General Assembly reserves the power to do what the local school systems cannot."

78. As points of comparison, it is instructive to look to two cases decided by other state courts relative to similar state level Commissions authorized to approve charter schools that would be outside of local control. The first, a Florida case, Duval County School Board v. State Board of Education, 998 So. 2d 641 (Fla. Dist. Ct. App. 2008), concerned a constitutional challenge to the Florida Schools of Excellence Commission law. Ultimately, the local control mandated by the Florida Constitution resulted in the Commission law There, as in Georgia, the being struck down as unconstitutional.

Commission was established to create charter schools at the state level.

Unlike in Georgia, where our General Assembly retains constitutional authority to create special schools, the Florida Constitution vests complete control over "all free public schools within the school district" in the local school board, without exception (see FLA. CONST. art. IX, ยง IV(b)). The fact that the Florida Constitution failed to reserve any authority in the legislature to create any schools outside the control of local school systems meant that their state charter school commission was successfully challenged. The Georgia Constitution, in contrast, does not suffer from a similar defect. The second case, Boulder Valley School DistrictRe-2 v. ColoradoState Board of Education, 217 P.3d 918 (Colo. Ct. App. 2009), involved a challenge to Colorado's Charter School Institute Board law. There, the law was upheld because Colorado's Constitution specifically vests "[t]he general supervision of the public schools of the state" in the State Board of Education, "whose powers and duties" are prescribed by law (see COLO. CONST. art. IX, ยง II).

At the same time, the Colorado Constitution only vests "control of instruction" in the local board of education. The court in that case found, in essence, that the State Board was vested with broad authority to create schools not under the control of local districts, including charter schools. In fact, the same court had upheld a law that allowed the State Board of Education to force local districts to approve a charter school application where it had been previously denied by the district. Relative to Georgia, the constitutional authority vested in the State Board of Education in Colorado (and, by extension, the legislature) is much more extensive. In Georgia, the

306

John MarshallLaw Journal

[Vol. III

The Attorney General concluded similarly on this point when he found that the General Assembly is authorized to create special schools (including state charter schools) without the permission, approval or participation of local boards of education and that doing so does not violate the constitutional provision outlawing the creation of independent school systems. 9 He concluded that, in fact, the authority given to the General Assembly to create "special schools" is an exception to the general prohibition against independent school districts and provides the General Assembly wide latitude in regard to virtually all aspects of schools created pursuant to this constitutional authority. That power includes the ability of the General Assembly to "invade the constitutional province of the local school board under the aegis of a coordinate constitutional provision." 0 As has been said, this reading of the special schools provision and the prohibition of independent school systems provision harmonizes them and gives each full effect while avoiding diminishing the nearly unqualified authority of the General Assembly to create special schools.

Further, the Attorney General, citing to Berman v. Berman," concluded that the issue of management and control of special schools hinged on the use of the term "may" in the special schools provision giving the General Assembly the power to involve local school systems.82 Applying the Supreme Court's reasoning in Berman, the Attorney General concluded that the use of the term "may" was permissive, providing the legislature authority to involve local boards of education to the extent it chose to do so." Given this rationale, the General Assembly's decision not to provide local school systems oversight of Constitution provides local districts much more control over virtually all aspects of public education, with the exception of public schools created by virtue of the special schools provision of the Constitution.

79. 2001 Opinion, supra note 61 (citing favorably to 1998 Opinion, supra note 61 and 1997 Opinion, supra note 61).

80. Id. 81. Berman v. Berman, 319 S.E.2d 846, 848 (Ga. 1984) (holding that the use of the term "may" in a statute governing when a judge or jury can modify and revise a previous judgment left the discretion of whether or not to modify or revise to the trier of fact "and should not be taken away from it").

82. 1997 Opinion, supra note 61.

83. Id.

No. 2]

Georgia CharterSchools Commission Law

307

Commission chartered special schools does not violate the constitution and is consistent with its express language.

Finally, the Supreme Court has found that even were it not reasonable to harmonize the special schools provision with some previous provision, "the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision." 84 Following this analysis, the prohibition against creating independent school districts outside the management and control of local school systems does not apply to the actions of the General Assembly exercising its authority under the special schools provision because the special schools provision, coming last in context, represents the express will of the people that the legislature retain the power to create independent schools in the form of special schools. Given the weight of the arguments, the special schools created by the General Assembly do not violate the prohibition against creating independent school systems and, therefore, are not required to be under the management and control of local school systems. Any challenge to the contrary should fail.

C. The Sufficient Guidelines Challenge The fourth challenge to the charter commission statute claims that the delegation of authority from the General Assembly to the Commission to authorize and manage charters is an unconstitutional delegation of authority because the General Assembly has not provided the Commission with sufficient guidelines for its operation. The contention is that the lack of guidelines violates article III, section I, paragraph I of the Georgia Constitution which specifically vests legislative authority in the General Assembly." The assertion here is that the power provided to the Commission is so broad and unlimited that in exercising authority, the Commission is in 84. Cason v. State, 122 S.E.2d 232, 233 (Ga. 1961).

85. GA. CONST. art. III, ยง I, para. I. The question raised here necessarily implies a violation of article I, section II, paragraph III of the Georgia Constitution regarding the separation of powers provision. In addressing whether delegation of authority is proper in this case, the issue of the potential separation of powers issue will also be resolved. If the delegation was proper, then a separation of powers violation has not occurred.

308

John MarshallLaw Journal

[Vol. III

effect legislating instead of merely carrying out and enforcing the law as made by the legislature. As will be shown below, however, the authority conferred upon the Commission is bound by sufficient restrictions so that the legislation creating the Commission does not amount to an unconstitutional delegation of legislative authority.

The question presented by this argument is not whether the General Assembly may delegate authority to the Commission.

It is instead a question of whether in delegating authority, the legislature essentially went too far.16 The case law on this point is clear: the legislature, in enacting laws, may "delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws"8 7 so long as it has supplied sufficient direction or guidelines to the agency so that it is not, in effect, exercising the functions of the legislature when it acts." On this point, the Supreme Court of Georgia has held that where there are sufficient guidelines, the agency is only acting administratively pursuant to the direction of the legislature. 9

86. Given the division of government in our system into three, co-equal branches each tasked with different roles (law giving, interpretation of the law, and enforcement of the law), delegation of authority is necessary in order for any law to be enforced.

87. Dep't of Transp. v. Del-Cook Timber Co., 285 S.E.2d 913, 916 (Ga. 1982).

88. Scoggins v. Whitfield Fin. Co., 249 S.E.2d 222, 223 (Ga. 1978).

89. Dep't of Transp. v. City of Atlanta, 398 S.E.2d 567, 571-72 (Ga. 1990). Here, the Court found that the Act creating the State Commission on the Condemnation of Public Property, found at O.C.G.A. ยง 50-16-183, provided sufficient guidelines for the Commission to exercise eminent domain in taking certain public property, even though the power of eminent domain is constitutionally vested in the General Assembly. The Court reasoned that the complexity of our governmental system makes it impossible for legislatures to make all findings of fact and apply all legislative policy directly, necessitating the delegation of power. The Court found that since the Act granted specific authority to the Commission to exercise eminent domain and provided sufficient guidelines (including a Commission made up of the Governor, the Lieutenant Governor, the Secretary of State, the State Auditor, and the Commissioners of Agriculture, Insurance and Labor charged with determining whether the condemnation is reasonable, necessary, and in the public interest), the Commission's exercise of authority was constitutional.

No. 2]

Georgia CharterSchools Commission Law

309

In determining what constitutes "sufficient" guidelines, the Supreme Court has stated that the statute must not grant unlimited authority to the delegatee to promulgate rules. 90 It has also said that a statute must not give to a ministerial officer the power to define the thing to which the statute is to be applied. 91 However, the Court has also made it clear that determining a bright line rule regarding when the proper delegation of power becomes improper is impossible because of the inherent overlap of duties among the branches of government. 9 2 What is more, the Court has said that unless the violation of the separation of powers is manifest, the constitutionality of the delegation will be presumed. 93 In the absence of a bright line rule, it is necessary to explore what constitutes a manifest violation of the separation of powers. In better defining the limits on delegated authority, the constitutionality of the Commission's authority should become clearer.

In HCA Health Services, Inc. v. Roach, an administrative rule that exempted certain healthcare facilities from obtaining the approval of the state Health Planning Agency ("HPA") before they were allowed to relocate was ruled unconstitutional because the rule, in effect, allowed the HPA to determine for itself which facilities were subject to the law. 94 The court 90. Scoggins, 249 S.E.2d at 223 (upholding authority delegated to the Georgia Industrial Loan Commissioner by the Industrial Loan Act, found at O.C.G.A. ยง 7-3-1, because the power granted was not unlimited and was confined to the promulgation of rules and regulations that are "necessary and appropriate, and not inconsistent with the terms of the chapter or any other applicable statutes").

91. HCA Health Servs., Inc. v. Roach, 458 S.E.2d 118, 120-21 (Ga. 1995) (citing to Sundberg v. State, 216 S.E.2d 332, 333 (Ga. 1975)).

92. S. Ry. Co. v. Melton, 65 S.E. 665, 668 (Ga. 1909) (stating that "it is not easy to draw an exact line at which this power of conferring authority on the commission as to details must stop . . ."); see also City of Americus v.

Perry, 40 S.E. 1004, 1007 (Ga. 1902) (holding that "[w]hile the constitution declares that the three departments of government shall be separate and distinct, this separation is not, and cannot, from the nature of things, be total").

93. Id. While the Court 94. HCA Health Servs., 458 S.E.2d at 120-21. determined that the law itself was subject to a constitutional, as well as an unconstitutional, interpretation (meaning, it could be read as giving too much authority to the HPA), it was bound to read the law as constitutional, if possible. Id. Nevertheless, the Court struck down the rule promulgated by

John MarshallLaw Journal

310

[Vol. III

reasoned that the function of determining to whom a law applies is inherently legislative in nature and cannot be delegated to the executive branch.95 In Sundberg v. State, the court found that a statute empowering the state Board of Pharmacy to define what constitutes a "depressant or stimulant drug" for purposes of a criminal statute was an unconstitutional delegation of authority because, in essence, the law gave power to an executive agency to determine what acts would constitute a crime. 96 Again, the court found defining the actions that constitute a crime to be inherently legislative in nature and not subject to delegation. 97 In contrast, the court in Scoggins v. Whitfields Finance Company found the provisions of the Industrial Loan Act, which empower the Georgia Industrial Loan Commissioner to make rules and regulations to accomplish the purpose and objectives of the Act, to be a constitutional delegation of authority.98 The court reasoned that, since the Commissioner was not granted unlimited authority to promulgate rules and such rules had to be necessary and appropriate and consistent with the terms of the Act, the delegation of authority was constitutional.9 9 Here, while the authority to create special schools is a legislative one, the power granted to the Commission is limited the HPA as unconstitutional, finding that the HPA had acted outside the authority given to it by statute. Id. A constitutional reading of the statute did not give the HPA authority to exempt any facility; the statute gave only the power to "establish procedure[s] for expediting or waiving reviews" of facility relocation plans under O.C.G.A. ยง 31-6-47. Id. 95. Id. at 120-21 ("SHPA's [State Health Planning Agency] construction of its authority under [the Act] would permit it to do far more than merely administer and effectuate an existing enactment of the General Assembly.

SHPA would have complete and unbridled authority to determine what health care facilities are subject to the Act, since it would have the power to exempt from the mandate of the Act any facility which the General Assembly had left unexempted .

. .

. This construction of [the Act] would

render that statutory provision an unconstitutional delegation to the SHPA of the legislative power 'to define the thing to which the statute is to be applied ...

.")

(citing Sundberg, 216 S.E.2d at 333).

96. Sundberg v. State, 216 S.E.2d 332, 333 (Ga. 1975).

97. Id.

98. Scoggins v. Whitfield Fin. Co., 249 S.E.2d 222, 223 (Ga. 1978).

99. Id.

No. 2]

Georgia CharterSchools Commission Law

311

in that it does not permit the Commission to do anything more than carry out the legislature's stated purpose for the the "development and support of charter Commission: schools."' 00 To the degree that the Commission acts upon the power granted to it, it is acting only in an administrative and ministerial capacity to approve and exercise oversight of Commission charter schools and generally carry out the will of the legislature as expressed in the Commission statute. In addition to procedural limitations on its authority, the Commission is also made up of appointees by the State Board of Education, which are drawn from a pool of nominees designated by the Governor, the President of the Senate and the Speaker of the House.'0 ' The statute also does not grant to the Commission the authority to determine, for itself, what classes of organizations are subject to its authority but, instead, sets out explicitly that charter school petitioners and approved schools are its only concerns.102 The statute also limits the authority of the Commission to determine what constitutes an acceptable charter petition by delineating the ends to which charter schools are to be approved 0 and by empowering the State Board of Education to promulgate rules governing the required content of charter petitions and to exercise oversight of the Commission's work." Given that the provisions of the Commission statute 100. O.C.G.A. ยง 20-2-2080(b)(1) (2009).

101. O.C.G.A. ยง 20-2-2082 (2009). The structure of the Commission is very similar to that of the State Commission on the Condemnation of Public Property in Dep't of Transp. v. City of Atlanta, 398 S.E.2d 567 (Ga. 1990) which was cited favorably by the Court and ultimately upheld as a permissible delegation of authority. Id. at 571-72.

102. In contrast to the HPA in HCA Health Services, Inc. v. Roach, the law here limits the Commission's authority to those organizations seeking to create charter schools by virtue of a charter petition, as opposed to allowing the Charter Commission independently to determine who may become a charter (either by allowing the Commission to define for itself the class of possible charter school applicants or by giving it authority to simply create charter schools by flat, rather than requiring third party applicants to seek charter status). Compare O.C.G.A. ยง 20-2-2083(a)(1) (2009), with HCA Health Servs., Inc. v. Roach, 458 S.E.2d 118, 120-21 (Ga. 1995).

103. O.C.G.A. ยง 20-2-2083 (2009) (assigning the Commission the job of meeting state education goals and replicating those charter schools with proven academic and financial success).

104. O.C.G.A. ยง 20-2-2083(a)(1) (2009). Unlike the HPA in HCA Health Services, Inc., the Commission is also not empowered to expand the scope of

312

John MarshallLaw Journal

[Vol. III

subject the Commission's authority to much greater limitations than the authority granted in either HCA Health Services, Inc. or Sundberg and are more closely aligned with the authority granted in Scoggins, the guidelines appear to be more than sufficient to withstand a constitutional challenge.

D. The Funding Challenge The fifth and final challenge asserts that the funding mechanism used by the Commission violates the Georgia Constitution by, in effect, using local tax dollars to fund Commission charter schools.105 As mentioned earlier, local control has been a hallmark of education in Georgia since the earliest days of its history. In addition to controlling the manner of delivery of education, the concept of local control is inseparable from the control of local tax dollars raised to pay for education. That history of local control over local tax revenues is a concept found repeatedly in the state constitution in the form of deference to the decisions of local school systems relative to the use of local revenues. However, despite this history of local control, the challenge to the Commission's funding mechanism is likely to fail.

Before analyzing the current Commission charter school funding mechanism, it is important to understand how traditional public schools are currently funded in Georgia, how state-chartered schools are funded under the Charter Schools Act of 1998, and how Commission charter schools differ.

Under the current funding structure, traditional public schools receive funding from essentially four sources. Local districts its own authority. Compare O.C.G.A. ยง 20-2-2083 (2009) (limiting the scope of the Commission's authority, including vesting authority to promulgate rules and regulations with State Board of Education and not the Commission), with HCA Health Servs., Inc., 458 S.E.2d at 120-21 (noting the SHPA's constitutional rule-making authority as prescribed by legislature). Such expansion of authority would require legislative action.

105. Gwinnett Complaint, supra note 28; Bulloch & Chandler Complaint, supra note 28. The claim is that the Commission violates GA. CONST. art.

VIII, ยง V, para. VII(a), which states, in relevant part, that "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." Gwinnett Complaint, supra note 28; Bulloch & Chandler Complaint, supra note 28.

No. 2]

Georgia CharterSchools Commission Law

313

provide approximately 43.4% of per pupil funding."o6 The state of Georgia provides funding to districts amounting to roughly 44.4% of per pupil funding through the state's QBE funding 0 formula.o' The federal government provides roughly 9.2% of funding per pupil. 0 The remainder of the funding (approximately 3.1%) consists of private funding in the form of gifts, tuition, and fees from patrons.' 09 Prior to the creation of the Commission, state-chartered special schools (meaning those charter schools approved by the state but not by the local school board'10) were only entitled to receive education funding from state and federal sources unless and until a local referendum allowing for the use of local funds was approved by voters in the county where the school was located."'

In contrast, the statute creating the Commission and authorizing it to approve charter applications not only provides state and federal education funds for Commission-chartered schools, but also empowers the Georgia Department of Education to pay Commission-chartered schools "[a]n amount equal to a proportional share of local revenue from the local school system in which the student attending the commission charter school resides . . . .""

And the Commission is

authorized to provide the proportional share of local revenue even if the charter school has not been approved by the local system. The statute then directs the Department to deduct all state and federal dollars (including state dollars spent to provide for the "proportional share of local revenue") allocated to the Commission-chartered school from the amount of state and federal funds that the local district would have otherwise

106. See RUBENSTEIN & SJOQuIsT, supra note 73. Funding in local districts is generated primarily through local property tax, but some school funding is generated by local sales taxes. Id. See also INST. OF EDUC. Sd., NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., REVENUES FOR PUBLIC ELEMENTARY AND SECONDARY SCHOOLS, BY SOURCE AND STATE OR JURISDICTION: 2005-06, in DIGEST OF EDUC. STATISTICS tbl. 172 (2008), available at http://nces.ed.gov/programs/digest/d08/tables/dt08 107. Id. 108. Id. 109. Id. 110. O.C.G.A. ยง 20-2-2068.1 (2009).

111. Id. at (d).

112. O.C.G.A. ยง 20-2-2090(a)(3)(A) (2009).

172.asp.

314

John MarshallLaw Journal

[Vol. III

received." In effect, this has meant that Commission-chartered schools receive an amount of money equal to what they would have received from the local school board if locally approved but the money is paid directly by the state using QBE funding.1 4 The Department is then offsetting the additional "local share" it pays to Commission-chartered schools by reducing state QBE funding to the local districts by the same amount. The net result has been that local school systems have seen a reduction in funding roughly equivalent to what the district would have spent for the children attending the Commission-charter school if the same had been approved by voters to receive local funding.

Opponents to this funding mechanism assert that it essentially allows local tax dollars to be used for Commission-chartered special schools without the local approval seemingly required by the constitution."' The resolution of this purported conflict turns on an understanding of what the constitution means when it prohibits a school tax levy to support special schools without local approval.' 16 Unless the funding mechanism violates this provision, "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."" 7 113. See O.C.G.A. ยง 20-2-2090(c) (2009) ("The total allotment of state and federal funds to the local school system in which a student attending a commission charter school resides shall be calculated as otherwise provided in Article 6 of this chapter with an ensuing reduction equivalent to the amount of state and federal funds appropriated to the commission charter schools pursuant to subsection (a) of this Code section.").

114. See Gwinnett Complaint, supra note 28, at paras. 36-37; Bulloch and Candler Complaint, supra note 28, at para. 41 (claiming that the amount of the reduction by the Department in QBE funding per pupil is actually more than each student would have received in local revenue if educated in the traditional public school).

115. See Gwinnett Complaint, supra note 28, at para. 47; Bulloch and Candler Complaint, supra note 28, at para. 57; see also GA. CONST. art. III, ยง 1, para. 1 (2009).

116. GA. CONST. art. HI, ยง I, para. 1 (2009) (stating 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"). While the provision also prohibits bonded indebtedness, there is no claim that the funding mechanism creates any bond debt, so this article will not address the merits of that claim.

117. GA. CONST. art. VIII, ยง V, para. VII(a) (stating, in part, that "no bonded indebtedness may be incurred nor a school tax levied for the support

No. 2]

Georgia CharterSchools Commission Law

315

Due to the lack of interpretation of this provision by any court of record in the state, the following is an exercise in divining how a court would resolve this issue without any guidance specifically on point. However, there are rules of construction that are useful aids in assessing how a court would approach the subject.

First, in the interpretation of a constitutional provision, "the ordinary signification shall be applied to words.""' Second, the meaning of a provision is dependent upon the context in which it is used and the subject matter involved.1 19 Given the cited rules of construction, opponents of the Commission funding mechanism will likely argue that, in proper context, the language of Article VIII, Section V, Paragraph VII, should lead the court to rule that the funding mechanism is unconstitutional for at least a couple of reasons.

First, the requirement that a majority of qualified voters in "systems affected" approve the levying of a tax to support a special school is a requirement that voters consent to being financially impacted by the funding of a special school using Under the Commission's funding local tax dollars.12 0 mechanism, local school systems are necessarily required to reallocate local education tax revenues to make up for the shortfall in QBE funding deducted to support Commission charter schools. The result is that local school systems feel the full effect of funding Commission charter schools as if the use of local funds had been approved through a referendum but without, in fact, a vote ever having taken place.121 Second, the context of the special schools provision is telling.

The provision is located in Article VIII of the Georgia Constitution which is dedicated to the subject of education, of special schools without the approval of a majority of the qualified voters voting thereon in each of the systems affected.").

118. Blum v. Schrader, 637 S.E.2d 396, 397 (Ga. 2006) (quoting Thomas v. MacNeill, 37 S.E.2d 705, 708 (Ga. 1946)).

119. Thomas, 37 S.E.2d at 708 (citing Stanley v. Sims, 195 S.E. 439, 442 (Ga. 1938)).

120. See discussion supra note 47 and accompanying text.

121. An additional argument, but certainly not a decisive one, is that the drafters of this provision of the Constitution (last amended in 1983), drafted it prior to the creation of the QBE funding scheme, so they would not have been aware of the state's ability to manipulate QBE funding to local school systems in the way described here.

316

John MarshallLaw Journal

[Vol. III

generally.122 Within Article VIII, the concepts of local control over public education and local education tax revenues are consistent themes.' 23 Section V of Article VIII is dedicated to empowering counties and local boards of education to "establish and maintain public schools within their limits."' 24 In addition to empowering counties and local boards of education to create local public schools, Paragraph I of Section V allows the General Assembly to provide by law for the consolidation of two or more county school systems. However, it makes clear that "no such consolidation shall become effective until approved by a majority of the qualified voters voting thereon in each separateschool system proposed to be consolidated."2 5 This section not only places management of local schools in the hands of local counties or boards of education but it also puts the final decision to consolidate local schools into the hands of local voters. In this regard, the deference to local control is so strong that, even though it was the goal of state policy to consolidate independent schools, local school systems were given veto authority over any plan to consolidate currently existing independent schools within their districts.126 Reinforcing this theme of local control, Paragraph II of Section V places actual control of local school systems in the hands of residents of that system by mandating that "[s]chool board 122. GA. CONST. art. VIII (entitled, "Education").

123. Id. 124. GA. CONST. art. VIII, ยง V (entitled, "Local School Systems").

125. GA. CONST. art. VIII, ยง V, para. I (emphasis added). The Paragraph, in its entirety, reads as follows: Authority is granted to county and area boards of education to establish and maintain public schools within their limits. Existing county and independent school systems shall be continued, except that the General Assembly may provide by law for the consolidation of two or more county school systems, independent school systems, portions thereof, or any combination thereof into a single county or area school system under the control and management of a county or area board of education, under such terms and conditions as the General Assembly may prescribe; but no such consolidation shall become effective until approved by a majority of the qualified voters voting thereon in each separate school system proposed to be consolidated. No independent school system shall hereafter be established. Id. 126. Id.

No. 2]

Georgia CharterSchools Commission Law

317

members shall reside within the territory embraced by the school system... "127 The importance of local control is such that even if citizens wanted to vest oversight of their school system in a board of education made up of nonresidents, they would be unable to do so, constitutionally.

Likewise, local voter approval is required to make changes in local education tax policy. In addition to vesting approval of local funding of special schools in the hands of local voters, each time local boards of education are empowered to change a tax rate or levy a new tax by Section VI of Article VIII (regarding local taxation for education), that power is conditioned upon local voter approval of the change in tax policy.'2 8 In fact, local control is so important in these sections of the constitution that the decisions of how to tax for education are not conferred on local boards of education, which they theoretically could be, but are placed ultimately in the hands of voters directly. 12 9 Proponents of the Commission's funding mechanism also have several arguments available that support the funding mechanism as it currently exists. First, a literal reading of the plain language of the provision suggests that a referendum would only be required where the intent is to use actual local tax dollars to fund a state-chartered special school. Under the current structure, the money funding Commission charter schools comes directly from state QBE funds (including the proportional local share) and not directly from local tax revenues.13 0 While it is true that local tax revenues are being 127. GA. CONST. art. VIII, ยง V, para. 1I (emphasis added).

128. See GA. CONST. art. VIII, ยง VI, para. II; GA. CONST. art. VIII, ยง VI, para. IV. 129. GA. CONST. art. VIII, ยง V, para. VII (stating, in part, that "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"). Local voter control over education tax issues is unique in the taxation powers granted by the Constitution. The powers to tax granted to the state (in Article VII, Section III) and to county and municipal governments (in Article IX, Section IV) do not contain a similar requirement of direct voter approval of new tax measures.

130. O.C.G.A. ยง 20-2-2090(3)(A) (2009). Because the schools are funded in this way, it means that local school systems are never required to pay any money directly to the state or to the state-chartered special schools.

318

John MarshallLaw Journal

[Vol. III

used to offset the reduction in QBE dollars available to the local system, no actual local tax revenue is being used to directly support a Commission charter school."' All local tax dollars stay in the local system under the current funding mechanism.

A second reading of the language that also appears to support the current funding mechanism is one that would require a local referendum only where a new local tax levy is required to offset the loss of QBE funds to the local system.132 If read in this way, any funding mechanism that simply reallocated funding already in the system (whether state or local funds) but did not also create the need for or actually require a new tax levy (or bond debt) would not trigger the referendum required by the constitution. Even if the deduction of the "proportional local share" from QBE funding and the corresponding additional burden it places on the local system is seen as equivalent to the direct use of local funds for the support of special schools, without a new local tax being required by the statute, such a use of local funds should theoretically survive scrutiny under the constitution as complying with the express language of the provision.

Finally, recognizing what the statute creating QBE funding is and what it is not is also instructive. QBE is, in part, a funding mechanism designed to distribute state tax revenues for public education in a manner that treats similar public school students

131. See RUBENSTEIN & SJOQuIsT, supra note 73; see also supra text accompanying note 106. In fact, because the local and state contributions to educating a student are roughly the same (each contributes about 43 percent of per pupil spending), the loss of a proportional local share in addition to the normal state QBE contribution results in an overall funding reduction that equates to the loss of a full time student. See supra text accompanying note 106. Without the deduction of the proportional local share, the local system would experience a net gain in per pupil funding because it would no longer be educating the student attending a Commission charter school but would still be collecting education tax dollars as if the student were still in the system. After all, the parents of the child will still be paying the local school tax whether or not their child attends a local public school.

132. After all, the drafters of the provision could have just as easily drafted the language to say that "no local funds shall be used to support special schools without a local referendum with a majority approval by eligible voters." The drafters either overlooked the need to be so explicit or, at the time, there was no need.

No. 2]

Georgia CharterSchools Commission Law

319

equally, or approximately so."' The tax dollars distributed by virtue of QBE come from revenues collected from taxes levied at the state level and QBE authorizes the state, not local school systems, to control how those revenues are allocated.'34 Since both QBE and the Commission are statutory creations and concern the same subject matter, their provisions are of equal weight'3 5 except that the Commission statute explicitly modifies how QBE funds are to be allocated by including provisions for Commission charter schools.' 6 Taken together, these facts mean that in reallocating QBE funds to include Commission charter schools, the Commission statute is fulfilling one of the purposes of QBE by treating similar public school students equally."' And, while it is true that the reallocation of QBE funding impacts local school systems, the reallocation of QBE funds is not, in any sense, the taking of local funding and is certainly not the imposition of a school tax.'3 8 All local education tax revenues stay in the local system. In fact, as has been discussed, while the Commission funding mechanism may result in a loss of funding to a local district when a student attends a Commission charter school, the loss of funding is roughly equivalent to the amount of federal, state and local money that would have been spent on that child 133. See, RUBENSTEIN & SJoQuIsT, supra note 73.

134. Id.

135. Goldberg v. State, 651 S.E.2d 667, 670 (Ga. 2007).

136. O.C.G.A. ยง 20-2-2090 (2009).

137. Specifically, this purpose is fulfilled by ensuring that students attending a Commission charter school (a type of public school) are treated no less favorably than students attending traditional public schools.

138. In fact, it would not go too far to say that, since QBE is a statutory creation, is a state level program, and uses only state tax dollars, the General Assembly could have mandated that Commission charter schools receive much more than a "proportional" share of local funding and still not violate the Constitution. Doing so may have violated the intent and spirit of the QBE Act (and given rise to legitimate claims under QBE) but would not have risen to the level of a constitutional violation. If a court rules that the Commission funding mechanism is unconstitutional, essentially requiring local approval before the state can reallocate QBE funds, the result would be absurd. In essence, it would mean that the state would have to seek the approval of each affected local district before QBE funds could be reallocated in any way, basically ensuring absolute gridlock and control over one of the largest expenditures in the state budget by local school districts rather than the General Assembly.

320

John MarshallLaw Journal

[Vol. III

in the local system. So when a student leaves the local system, the money to fund the student's education goes with him or her; yet the local system remains fully funded for the students who remain. 9 Based on the weight of these arguments, the Commission funding mechanism is likely to be upheld as constitutional.

V. CONCLUSION While the Georgia Charter Schools Commission law faces serious challenges under our state constitution, based on the analysis provided in this article, it appears that each of those challenges is likely to fail. While opponents of the legislation argue that the General Assembly is only empowered to create special schools that cater to students with special needs (i.e. learning or physical disabilities), a reading of the plain language of the constitution's provision on special schools indicates no such limitation. To the contrary, on its face the constitutional language gives very broad authority to the legislature to create special schools where it deems they are needed.

Also likely to fail is the claim that Commission-chartered schools violate the constitutional provisions prohibiting the creation of independent school systems and requiring each school system to be under the management and control of a local board of education. This assertion is likely to fail for two First, the history of consolidation (and the reasons. constitutional language empowering the General Assembly to require consolidation) shows that the concern about independent school systems was that, after consolidation, local school systems would return to creating smaller schools with insufficient resources to properly educate their students. The concern was not that the state government would create and inadequately fund independent school systems. Second, the General Assembly is given express authority to create special schools that are outside the control of (or independent of) local 139. Understanding that the complaints in the referenced lawsuits claim that Commission charter schools are actually receiving more than a "proportional local share" (i.e., more than would have been spent on the student in the local public school), the argument that the allocation is constitutional still stands since the control of QBE funding rests in the legislature.

No. 2]

Georgia CharterSchools Commission Law

321

school systems. The General Assembly, therefore, is able to create independent schools (arguably, a "system" of schools) and, by definition, deny local school systems management and control of those schools.

Opponents of the law are also likely to be unsuccessful in their claim that the General Assembly neglected to provide sufficient guidelines to the Commission, which they assert allows the Commission to exercise, essentially, too much legislative power. As has been pointed out, while there is no bright line rule as to what constitutes "sufficient" guidelines, the Commission statute meets the limitations required by the Georgia Supreme Court in the cases addressing the subject: the legislation neither gives unlimited authority to the Commission to promulgate rules nor does it allow the Commission to define to whom the law applies. The Commission is acting, in all ways, as merely an administrative arm of the General Assembly in authorizing and regulating charter schools.

Lastly, the assertion that the statute's funding mechanism violates the constitution because it impacts local education funding without local voter approval is also likely to be unsuccessful. While this article concedes the point that local school systems are impacted by the Commission's funding mechanism to the extent that they must reallocate local tax dollars to replace lost state QBE tax dollars, merely being impacted is not enough to require voter approval under the constitution. Instead, the constitution says that voter approval is required only when bonded indebtedness is going to be incurred or a school tax levied for the support of a special school. The Commission's funding mechanism deals solely with the allocation of state QBE tax dollars. It does not require any bond debt to be incurred by, nor any tax levied on, local school systems for the support of Commission-chartered schools. It also does not purport to control how any local tax dollars are to be spent. Furthermore, a reading of the constitution's language on this point that would deny the state the ability to reallocate QBE funds if the reallocation simply "impacts" local school systems would, in essence, permanently tie the hands of the General Assembly, relative to QBE funding, until local voters in each system affected approved any proposed changes. This result would not only be contrary to the plain language of the constitution but would be absurd from a public policy

322

John MarshallLaw Journal

[Vol. III

perspective by denying our elected legislature control over a large portion of the state budget.

Based on the arguments presented in this article, it appears likely that the Georgia Charter Schools Commission law will be upheld on each of the constitutional challenges brought against it. Should that indeed be the case, the real winners will be Georgia's public school students who will be assured that, no matter what public education option they may choose traditional public or public charter - the lack of equal funding will not prevent them from receiving a quality education.

COMMENTS

IS IT REALLY MYSPACE?

Our DisjointedHistory ofPublic School Disciplinefor Student Speech Needs a New Test for an Online Era I.

INTRODUCTION

II.

STUDENT FREE SPEECH DOCTRINE & THE UNITED STATES

324

..................................................

326

SUPREME COURT.............................................

A. B.

III.

IV.

....... 331

333

...........................................

340

A PROPOSED TEST

B. C.

Student PrivateInternet Speech That Is Willfully ...................

PublishedAt School....

PrivateInternet Speech That Violates the Rights ......................... of Other Students The Reasonable Observer Test............

......... 341 ...... 343 .......... 346

ANALYSIS OF GEORGIA LAW UNDER THE PROPOSED TEST.............. 348

A. B. VI.

....... 326

THE LOWER COURTS' APPLICATION OF PRECEDENT TO STUDENT ...........................................

INTERNET SPEECH

A.

V.

The Supreme Court Has Limited Students'Rights .................... to Expression at School.

Lower Courts Cannot Rely Solely on Supreme Court Precedentin the Arena ofStudent Private .........................

Internet Speech

GeorgiaSchool Statutes and Off-Campus Behavior............... 349 ............ 351 Student Codes of Conduct in Georgia..........

CONCLUSION

.....................................................

355

324

John MarshallLaw Journal

I.

[Vol. III

INTRODUCTION

On a Sunday afternoon in the town of Indiana, Pennsylvania, a high school student named Jeffrey Fenton saw one of his teachers driving through the parking lot of the local mall.'

Fenton could not resist announcing to his friends in a loud voice that the teacher was "a prick." 2 While Fenton's peers might have found the comment funny, his teacher was not amused.'

When Fenton reported to school on Monday morning, he received three days of in-school suspension and was denied the privilege of attending the senior class trip.4 The United States District Court for the Western District of Pennsylvania dismissed Jeffrey's complaint against the school and held that the punishment was not a violation of his First Amendment rights.' The year was 1976.6 Only ten years later and just over five hundred miles away in the town of South Paris, Maine, Jason Klein encountered one of his teachers outside a local restaurant and "gave him the finger." 7 Klein had more luck than Fenton-the United States District Court for the District of Maine concluded that punishing Klein for the gesture would be a violation of his constitutional right to free speech.'

Students no longer need to take advantage of chance parking lot encounters to communicate their attitudes about teachers when they are away from campus. Today, the Internet allows users to be part of a world wide web of information that can be shared at the speed of light and with the push of a button.

Social networking sites such as MySpace, YouTube, Facebook, and Twitter, with their "user friendly" interfaces, allow even the most casual of users to share up-to-the-minute personal information, photographs, and videos.' A modern-day Jason 1. Fenton v. Stear, 423 F. Supp. 767, 769 (W.D. Pa. 1976).

2. Id. 3. Id. 4. Id.

5. Id. at 773.

6. Id. 7. Klein v. Smith, 635 F. Supp. 1440, 1441 (D. Me. 1986).

8. Id. at 1442.

9. Paul Larter, Aussie Party Boy Corey Delaney Finds Stardom Online, TIMESONLINE, Jan. 17, 2008, http://www.timesonline.co.uk/tol/news/worldlarticle3198418.ece (discussing

No. 2]

Is it Really MySpace?

325

Klein can give his teacher the finger once in a parking lot, and then thousands of times on school computer screens around the world by the next morning.

Because the fluidity of Internet speech allows so much material that originates off-campus to make its way into the schoolhouse, school administrators have struggled to maintain discipline in the classroom without violating the First Unfortunately for Amendment rights of their students.'o schools, courts have reached little agreement in the years since Fenton v. Stear" and Klein v. Smith.'2 This comment will examine how the United States Supreme Court has applied the First Amendment to student speech and will detail why precedent in this area does not adequately address how schools may regulate students' private Internet speech." Section II discusses United States Supreme Court precedents on student free speech, and Section III describes and critiques the nexus test several lower courts use to determine whether student private Internet speech is also school speech. 14 Section IV proposes a new test and gives examples of how it could be applied. Section V analyzes current Georgia law under the proposed test. The author ultimately concludes that Georgia statutes giving schools the power to punish students for speech occurring off-campus must be narrowed in scope in order to comport with the proposed test. a party advertised on MySpace by a sixteen year old Australian boy that attracted 500 visitors as well as police, the police dog squad, and a police helicopter).

10. See, e.g., Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 251-54 (3d Cir. 2010); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 286-90 (3d Cir. 2010); Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 35 (2d Cir. 2007); J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002).

11. Fenton v. Stear, 423 F. Supp. 767, 769 (W.D. Pa. 1976).

12. Klein, 635 F. Supp. 1440; see cases cited supra note 10.

13. For the purposes of this comment, private Internet speech refers to text, audio files, video files, and pictures that originate away from school and are published on the world wide web from a location that is not on school campus, without the use of any school equipment and at a time when the student is not under direct supervision of school personnel.

14. School speech, as used throughout this comment, refers to speech that occurs within the realm of the school's authority to scrutinize and punish if it is found to be unprotected by the First Amendment.

John MarshallLaw Journal

326

II.

[Vol. III

STUDENT FREE SPEECH DOCTRINE & THE UNITED STATES SUPREME COURT

A. The Supreme Court Has Limited Students' Rights to Expression at School.

The Supreme Court was first asked to determine the limits of a public school student's First Amendment right to expression in Tinker v. Des Moines Independent Community School District." John Tinker and two other students wore black armbands to school in silent protest of the Vietnam War.'" The school board suspended all three students for violation of a recently enacted policy banning the wearing of armbands by students.17 The Court began its analysis with a phrase that has become almost infamous in student speech jurisprudence: "[iut can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."'"

The analysis in Tinker focused on the armbands' impact on the school." The Court held that students must be free to express their opinions so long as they are able to do so "without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others."20 The District Court upheld the suspension of the students because it found that the school system had acted on a reasonable fear of disturbance that could result from the wearing of the armbands.21 In reversing the District Court, the Supreme Court emphasized that any expression deviating from popular opinion could potentially cause a disturbance, but held that a mere desire to avoid 15. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).

16. Id. at 504.

17. Id.

18. Id. at 506.

19. Id. at 508.

20. Id. at 513. (quoting Burnside v. Byars, 363 F. 2d 744, 749 (5th Cir. 1966)).

21. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969).

Is it Really MySpace?

No. 2]

327

unpleasantness associated with a differing opinion was not enough to allow schools to silence student expression.2 2 The Court held the prohibition unconstitutional because the school failed to identify any specific instances of violence or threats of violence caused by the wearing of the armbands. 3 The First Amendment protections outlined in Tinker did not, however, prevent the Court from allowing censorship of student speech in a series of cases that followed.2 4 In Bethel School District v. Fraser, the school's ability to limit student expression was once again questioned. 25 But, unlike the symbolic expression at the core of Tinker, a student in Fraser delivered an offensive speech to the entire student body during an assembly.26 The Court found that "the entire speech was one long drawn-out sexual metaphor," that was "plainly offensive to any mature person," and "acutely insulting to teenage girl students." 27 The seemingly shocked and offended majority was faced with a dilemma: the speech might actually be permissible if analyzed strictly under the Tinker test because, although there was a bit of hooting and yelling during the speech, the school could not point to any specific facts showing that there was a material and substantial disturbance.28 22. Id. at 509. In fact, the Court indicates that our national strength is due in large part to this kind of "hazardous freedom." Id. 23. Id. at 514. The students caused discussion outside of classrooms, but they did not interfere with any work and there was no disorder. Id. 24. See Morse v. Frederick, 551 U.S. 393, 397 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-72 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986).

25. Fraser,478 U.S. at 675, 687 (reviewing a speech given by a student in front of 600 plus of his fellow students which stated, "I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most .

.

. of all, his belief in you, the students of Bethel, is firm.

Jeff

Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing and pushing until finally-he succeeds. Jeff is a man who will go to the very end-even the climax, for each and every one of you.

So vote for Jeff for A.S.B. vice-president-he'll never come between you and the best our high school can be.").

26. Id. at 677.

27. Id. at 678, 683.

28. See Fraser v. Bethel Sch. Dist., 755 F.2d 1356, 1359 (9th Cir. 1985) (upholding the district court's decision that Fraser's speech did not have a disruptive effect on the educational process), rev'd 478 U.S. 675 (1986).

328

John MarshallLaw Journal

[Vol. III

Instead of creating a new test, the Court distinguished the lewd speech from Tinker's black armbands by emphasizing that the expression in Tinker was not the type that interfered with the work of the school or infringed upon the rights of other students. 29 The Court gave meaning to the "work of the schools" dicta from Tinker by explaining that one objective of public education is the teaching of "fundamental values necessary to the maintenance of a democratic political system."3 0 The Court held that educating students about the boundaries of socially acceptable behavior is one of the fundamental values that must be taught in schools." Offensive speech inside the school crosses those boundaries and, therefore, is clearly against the "work of the schools."3 2 This skillful argument affirmed Tinker while also allowing another type of student expression to fall within the control of the school system.33 The "work of the schools" rationale allowed those in favor of student censorship to ignore a lack of actual physical disruption and to plead a more intangible disruption-an interference with the school's educational mission.34 Fraser marked the beginning of a path that has carried the Supreme Court away from employing the Tinker analysis.

In Hazelwood School District v. Kuhlmeier, a high school principal removed two pages from the school newspaper because he considered two of the articles objectionable.3 6 Both of the articles were about students at the school, and the principal was afraid that, even though the names of the students had been changed or deleted, other students and teachers would 29. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986).

30. Id. at 681 (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)).

3 1. Id. at 68 1.

32. Id. at 683.

33. Id. at 685 (holding that schools may punish vulgar and lewd speech).

34. Id. 35. Neither Kuhlmeier nor Morse, employed the material and substantial disturbance test from Tinker. Morse v. Frederick, 551 U.S. 393, 407-10 (2007) (holding that failure to censor Frederick would also fail to send the appropriate message to students about the dangers of drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 (1988) (holding that Tinker is not the appropriate standard for analyzing school-sponsored speech).

36. Kuhimeier, 484 U.S. at 260.

No. 2]

Is it Really MySpace?

329

be able to discern the identity of those mentioned." As in Fraser, the Court found that a Tinker analysis was inappropriate. While Tinker involved personal expression by a student, the speech in Kuhlmeier occurred in a school-sponsored publication.39 The Court found that schools have much wider latitude to act in the latter form of speech because it reasonably could be interpreted to bear the imprimatur of the school, and schools should not be forced to sponsor speech that does not meet high standards of scholarship or is inconsistent with "the shared values of a civilized social order."40 By creating a new test for scrutinizing school-sponsored expressive activities, the Supreme Court was able once again to uphold censorship of student speech that did not cause a material disruption without overturning Tinker.4 1 In its most recent school speech case, the Court upheld a school administrator's censorship of student expression that actually occurred off the school's campus.42 In Morse v.

Frederick, the principal of Juneau-Douglas High School allowed her students and staff to participate in the Olympic Torch Relay as the torchbearers passed down the street in front of the school. 43 Although the Relay occurred during school hours, the students and staff walked to the event as part of a school-sanctioned class trip.44 Among the group of students standing across the street from the school was Joseph Frederick. 45 Although Frederick was a student at JuneauDouglas High, he arrived late for school and went immediately down the street and joined his classmates without entering the As the procession and camera crews school building.46 37. Id. One of the questionable articles was about three students' experiences with pregnancy, while the other was an interview with a student concerning his upbringing in a divorced home. Several other articles were deleted because they were on the same page as the questionable articles. Id. 38. Id. at 270-71.

39. Id. 40. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).

41. Id. at 270-71.

42. Morse v. Frederick, 551 U.S. 393, 410 (2007).

43. Id. at 397.

44. Id. 45. Id. 46. Id.

330

John MarshallLaw Journal

[Vol. III

approached, Frederick and his friends held up a fourteen-foot

banner displaying the message, "BONG HiTS 4 JESUS."47 The principal immediately demanded removal of the sign, but Frederick refused.48 The Court's analysis began by rejecting Frederick's claim that his was not a case of school speech, stating that Frederick could not "stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school."4 9 After determining that the banner was school speech, the Court concluded that it promoted illegal drug use in direct violation of school policy. 0 In upholding school policies that regulate speech concerning drug use, the Court carefully 52 noted that it was not using a Tinker," Fraser, or Kuhlmeier" 54 analysis. Instead, the Court relied on the statistical dangers of drug use and the measures taken by Congress to educate students about the dangers of using illegal drugs in holding that a school need not tolerate speech reasonably interpreted to advocate the use of illegal drugs at school events."

In four cases where the Supreme Court has been tasked with determining how the First Amendment applies to public school students, the Court has used four different tests." After making a stand for student rights in Tinker,5 7 the three subsequent 47. Id. 48. Morse v. Frederick, 551 U.S. 393, 398 (2007).

49. Id. at 400-01 (citing Frederick v. Morse, 439 F.3d 1114, 1117 (9th Cir. 2006), rev'd, 551 U.S. 393 (2007)).

50. Id. at 401-02.

51. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507

(1969).

52. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986).

53. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-72 (1988).

54. Morse v. Frederick, 551 U.S. 393, 403-06 (2007). There was no substantial and material disruption as required by Tinker, no offensiveness as required by Morse, and no perceived school imprimatur as required by the Kuhlmeier test. Id. 55. Id. at 407-09.

56. See id. at 403-06 (discussing the tests outlined in Tinker, Fraser,and Kuhlmeier and why they are inappropriate for Morse); see also id. at 410 (holding that schools are not required to tolerate speech at school events that promotes illegal drug use).

57. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).

No. 2]

Is it Really MySpace?

331

Supreme Court cases dealing with student expression have allowed schools to silence student speech." The developing pattern indicates that schools have wide latitude in disciplining student speech that occurs at school, a fact which left Justice Thomas uncertain in Morse about the current status of Tinker in student speech jurisprudence. 9 Amidst the potential confusion as to what public schools must allow, it is clear from precedent that there are at least four types of speech that schools may control and punish during the school day: speech that materially and substantially disrupts; speech that is lewd or offensive; speech that is school-sponsored; and speech that advocates the use of illegal drugs."o B. Lower Courts CannotRely Solely on Supreme Court Precedentin the Arena of Student PrivateInternet Speech While schools have been given more and more power to censor student speech occurring during school, it is important to note that the Supreme Court has not had occasion to rule on 62 student speech occurring after school hours. Tinker,6 ' Fraser, 6 Kuhlmeier, 1 and Morse" provide ample rationale as to why schools must be allowed to control student expression at school, but when the tests outlined in those cases are extended to student speech occurring at places and times when the students are no longer under school supervision, the logic behind each of the tests begins to crack, if not completely crumble.

In Tinker, the court warned that "[a]ny word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a 58. Morse, 551 U.S. at 403-06, 410; see supra note 54 and accompanying

text 59. Morse, 551 U.S. at 403-06; id. at 418 ("Today, the Court creates another exception. In doing so, we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not.") (Thomas, J., dissenting).

60. See Morse v. Frederick, 551 U.S. 393, 410 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-72 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 688-89 (1986); Tinker, 393 U.S. at 514.

61. Tinker, 393 U.S. at 507.

62. Fraser,478 U.S. at 680.

63. Kuhlmeier, 484 U.S. at 271-72.

64. Morse, 551 U.S. at 410.

332

John MarshallLaw Journal

[Vol. I

disturbance," 65 and that, while the schools must be dedicated to accommodating students, this dedication is only for prescribed hours and only for certain types of activities.6 6 In Fraser,the Court concluded that "[a] high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage children," but stopped far short of holding that students may never use lewd or offensive

language. 67 Justice Brennan, in his concurrence, opined that Fraser's punishment would not have been justified on the grounds that it was inappropriate if it had been spoken outside of the school environment. 8 When students post sexually explicit or other offensive speech from private computers, the recipient of the speech is not part of a captive classroom audience, and may be neither unsuspecting nor immature - factors which weighed heavily on the Court's decision to grant school boards the power to decide what is inappropriate in classrooms and school assemblies. 6 9 Kuhlmeier proves even less helpful in the realm of student private Internet speech because its narrow holding only addresses student speech that is sponsored by the school.

Unlike the preceding cases, Morse presented facts that could have allowed the Court to outline the boundaries of school authority because the student expression was occurring off of

65. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 503 (1969) (emphasis added). Off-campus locales such as a student's home are absent from the rationale.

66. Id. at 512.

67. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986).

68. Id. at 688 (Brennan, J., concurring) ("If the respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate.").

68. Id. at 685.

69. Id. at 684 (stating that precedent demonstrates a concern on the part of both parents and school authorities to protect children, especially a captive audience of children, from sexually explicit, indecent, or lewd speech); see also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) ("[S]peech may be more readily subject to restrictions when a school or workplace audience is 'captive' and cannot avoid the objectionable speech.").

70. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 260 (1988).

No. 2]

Is it Really MySpace?

333

school property. 7 1 However, only one paragraph of the entire decision focused on the threshold issue of whether Frederick's banner constituted school speech, and the Court dismissed the fact that Frederick was not geographically located on school property almost without explanation.7 2 Instead, the majority of the opinion simply rationalized the authority of the school to ban school speech advocating the use of illegal drugs.73 However, the Court did acknowledge that there is some outer boundary at which schools can no longer apply school-based precedents.74 The Morse opinion is important in the realm of student private Internet speech because it demonstrated that a court must first resolve the issue of whether student expression falls within the authority of the school before determining whether it belongs in one of the four categories of speech that schools may control. However, because the Court did not outline a method for determining how speech that occurs off campus can become school speech, lower courts were left to formulate their own tests.76 III. THE LOWER COURTS' APPLICATION OF PRECEDENT TO STUDENT INTERNET SPEECH In the absence of Supreme Court precedent on how to analyze student speech occurring off campus, the lower courts were left with a dilemma when faced with student private Internet Though the Supreme Court has appeared to be speech. distancing itself from Tinker, it has become the most popular test in the lower courts for analyzing school punishment of student speech occurring on the Internet. In general, the courts have tried to look for some link between the student expression 71. Morse v. Frederick, 551 U.S. 393, 397 (2007).

72. Id. at 400-01.

73. Id. at 401-10.

74. Id. at 401 (finding no uncertainty on the facts as to whether the school had passed the boundary of when to apply school-speech precedents).

75. Id. at 400 ("At the outset, we reject Frederick's argument that this is not a school speech case

.... ");

see supra note 54 and accompanying text.

76. See cases cited supra note 10.

77. See cases cited supra note 10.

78. See cases cited supra note 10.

334

John MarshallLaw Journal

[Vol. III

and the school campus, or some disruption of the school." If the court is able to find a sufficient "nexus" linking the speech to some disruption, or risk of disruption, then the punishment of the student creating the speech has been upheld."o Unfortunately, different courts have had very different opinions about what constitutes a true disruption, and what constitutes a sufficient nexus, as demonstrated by the cases that follow.

In J.S. v. Bethlehem Area School District," the Supreme Court of Pennsylvania was careful to examine, first, whether a student's personal website constituted on-campus or off-campus speech before applying Supreme Court precedent to the student expression.82 The student produced a website titled, "Why Should She Die?" from his home computer and on his own time.83 The page contained a diagram of a teacher's face with arrows pointing out physical flaws84 and a solicitation for twenty dollars to "help pay for the hit-man."85 The Court held that there was a sufficient nexus between the website and the school campus to classify it as on-campus speech because the website was aimed at the school and because the student accessed the website at school for the purpose of showing other students.86 Only after determining that there was a nexus between the off-campus speech and the school campus, did the Court use a Tinker analysis to conclude that the site caused a material and substantial disruption of the school day because, among other things, the math teacher was afraid for her life, suffered severe mental trauma, and was forced to take a medical leave of absence from the school.8 7 79. See cases cited supra note 10.

80. See cases cited supra note 10.

81. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002).

82. Id. at 864-65.

83. Id. at 850.

84. Id. at 858.

85. Id. at 851. Lines from the photograph of Mrs. Fulmer connected to four statements regarding the author's reasons why Mrs. Fulmer should die.

The statements were: (1) "Is it a rug, or God's Mistake?" (2) "Puke Green Eyes" (3) "Zit!" and (4) "Hideous smile." Id. at n.4.

86. Id. at 865.

87. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002).

No. 2]

Is it Really MySpace?

335

The United States Court of Appeals for the Third Circuit reached the opposite decision when faced with similarly schooltargeted, albeit less threatening, Internet postings.88 Justin Layshock created a fake MySpace profile for his principal using his grandmother's computer and a picture that he copied and pasted from the school website.8 9 The fictitious profile consisted of answers to various personal questions that Layshock answered while posing as the principal.90 The bogus answers all centered around the theme of "big" in an apparent attempt to make fun of the principal because of his large size. 91 Layshock invited other students from the district to view the profile by listing them as "friends" on the MySpace website. 92 News of the page "spread like wildfire" and despite the best efforts of the administration to block the site, students were able to view it from school computers. 93 Layshock accessed the site at least one time from a school computer in order to show it to other students.94 The district court employed a nexus analysis and found an insufficient causal link between the off-campus Internet speech and the disruption of the school day because the school failed to establish that the disruption was caused by Layshock's Internet site.95 The court continued to hold that even if there were a sufficient nexus, a reasonable jury could not conclude that the "substantial disruption" standard of Tinker could be met because there had been no widespread disorder at the school, 88. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 264 (3d Cir. 2010).

89. Id. at 252.

90. Id. 91. See id. at 252-53. In response to a question regarding whether the principal had smoked in the past month, the profile says "big blunt." Id. In response to the question, "ever been beaten up," the profile says "big fag."

Id. The answer to the question "in the past month have you gone on a date?" is "big hard-on." Id. The profile also refers to the principal as a "big steroid freak" and "big whore." Id. 92. Id. at 253.

93. Id. 94. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 253 (3d Cir. 2010).

95. See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 F. Supp.

2d 587, 600 (W.D. Pa. 2007). There were three other similar sites circulating at the time that Layshock's site was visible. Id.

336

John MarshallLaw Journal

[Vol. III

none of the classes had been canceled, and there was no violence or student disciplinary action. 6 In fact, the court implied that any disruption at school may have been caused by the administration's reaction to the site by having the computers The court locked down and by investigating students.9 7 suggested that the nexus requirement might be met if Layshock were punished for accessing the site at school, but the record indicated that the school staff did not know that Layshock had accessed the site from a school computer at the time that he was disciplined.98 On appeal, the school attempted to show a nexus between the website and the school because Layshock had accessed the school's website to copy a picture of the principal in order to paste it onto the fictitious MySpace page. 99 The Court of Appeals was not persuaded, and in finding that the act of signing into the school website was a far cry from trespass, stated that it would be "unseemly and dangerous" to begin allowing school authorities to reach into the homes of children as if they were at school.' 00 However, when confronted with a more vulgar MySpace profile, the Third Circuit was able to find a nexus despite the fact that no material disruption of school occurred.' 0 ' In Snyder v. Blue Mountain School District,'0 2 a middle school student created a fake profile for her principal from her parent's computer during non-school hours. 03 The court characterized the speech as "challenging [the principal's] fitness to hold his position by means of baseless, lewd, vulgar, and offensive language."'0 Under facts strikingly similar to Layshock, the court found that no actual disruption had occurred to satisfy 96. Id. 97. Id. 98. Id. at 600-01.

99. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 259-60 (3d Cir. 2010).

100. Id. at 258-59.

101. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist. 593 F.3d 286, 299 (3d Cir. 2010) (finding that there was a disruption, but not a substantial disruption).

102. Id. 103. Id. at 291.

104. Id. at 308.

No. 2]

Is it Really MySpace?

337

Tinker. 0 However, the court held that when student speech threatens to cause a substantial disruption or material interference with the educational process, the school may act without satisfying any other standard.10 6 Because the website was aimed at the principal and lewdly insinuated that he engaged in sexually inappropriate behavior and illegal conduct, the court found that the principal had properly punished the student out of a foreseeable risk of a substantial disruption."'

In Wisniewski v. Board of Education,'" the Second Circuit was able to make the facts fit Tinker by using a double foreseeability test.10 9 A student created an icon on his home computer that depicted a pistol firing a bullet into a person's head." 0 Beneath the picture were the words, "Kill Mr. Vandermolen.""'

Vandermolen was the student's English teacher.11 2 The icon was not public, and over the course of three weeks the student only showed the icon to fifteen people, some of whom were classmates."' When the school administration learned of the icon, the student was suspended from school." 4 The student was interviewed by both local law enforcement and a psychologist, both of whom determined that the icon was meant as a joke and that the student posed no real threat."'

105. Id. Both cases involved a MySpace profile created by a student purporting to be the school principal; created from private computers, away from school, after school hours; and disrupted at the school primarily through the principals' investigations.

Compare id. at 291-94, with Layshock, 593 F.3d at 249-54.

106. Snyder, 593 F.3d at 298 (holding that a two-step test is unnecessary before proceeding to a Tinker analysis).

107. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist. 593 F.3d 286, 302 (3d Cir. 2010).

108. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007).

109. Id. (finding that the "foreseeability of both communication to school authorities, including the teacher, and the risk of substantial disruption is not only reasonable, but clear").

110. Id. 111. Id. 112. Id. 113. Id. 114. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007).

115. Id.

338

John MarshallLaw Journal

[Vol. III

However, the school system found that intent was irrelevant and suspended the student for a full semester.' 16 The court upheld the school's actions because of the icon's threatening content, "extensive" distribution to classmates, and the three week circulation period made it reasonably foreseeable that the icon Once the would come to the attention of school authorities.' school authorities were alerted, the court reasoned, it would be reasonably foreseeable that there would be a risk of substantial disruption within the school environment."

Bethlehem," Layshock,'2 0 Snyder,l'2 and WisniewskilI were all decided using some variation of Tinker. The irony is that it appears that the Supreme Court is moving away from Tinker because it is too narrow for analyzing on-campus speech, while the lower courts seem to be gravitating to it because it allows them to punish large amounts of off-campus speech. If schools are allowed to punish students for expressions or expressive behavior solely because it causes some disturbance at school, then all manner of protected speech may be censored. For instance, a student that wears a jacket bearing the phrase, "Fuck the Draft" to the local courthouse, 2 3 a student that delivers a lewd and offensive speech outside of the school setting,12 4 or a 116. Id. at 37.

117. Id. at 38.

118. Id. at 38-39.

119. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 855 (Pa. 2002).

120. Layshock ex rel. v. Hermitage Sch. Dist., 593 F.3d 249, 253 (3d Cir. 2010) (noting that the district court found that Layshock's conduct caused no disruption at school).

121. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 290 (3d Cir. 2010) (finding that school authorities could have forecasted a substantial disruption of or material interference with the school).

122. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 38-39 (2d Cir. 2007) (concluding that the student's conduct crossed the boundaries of protected speech because there was a reasonably foreseeable chance that the school would find out about the icon, and that once the school found out, there would be a reasonably foreseeable risk of disruption).

123. But see Cohen v. California, 403 U.S. 15, 26 (1971) (holding that the First and Fourteenth Amendments prohibit the state from punishing a man for wearing a jacket bearing the phrase "Fuck the Draft" into a public courthouse in the presence of children).

124. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 688 (1986) ("If respondent had given the same speech outside of the school environment, he could not

No. 2]

Is it Really MySpace?

339

student that creates and distributes a magazine full of sexual humor may create a disruption at school the next day.125 The test is broadened even further when schools are allowed to punish student speech for creating merely a risk of disturbance.

A student may know that she will likely cause a disturbance at school when she truthfully reports being sexually assaulted by a teacher, but hopefully this risk will not merit her silence. As the lower courts have looked back to Tinker, it is unfortunate that some seem to have ignored the powerful message that accompanied the Supreme Court's holding, which was a firm statement that students must be allowed to speak.12 6 The rationales behind the holdings in the various cases are not only incongruent, but they are so specific that lower court precedent in this area appears less like a test and more like an enumeration of several very narrow circumstances in which schools may censor student expression.' 2 7 A narrow list is not very helpful when other courts are trying to analyze similar speech under different facts, or when individuals are trying to determine what they may or may not say. Instead, a true test is needed to provide the courts, schools, and students a framework

have been penalized simply because government officials found his speech inappropriate.") (Brennan, J., concurring).

125. Thomas v. Bd. of Educ., 607 F.2d 1043, 1050 (2d Cir. 1979) (holding that the First Amendment did not allow schools to punish authorship of a student newspaper conceived, executed, and distributed outside of school).

126. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) ("Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says."); id. at 511 ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.") (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

127. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 261 (3d Cir. 2010).

340

John MarshallLaw Journal

[Vol. III

for knowing how to proceed in the realm of student private Internet speech.

IV. A PROPOSED TEST The District Courts should abandon the nexus test and adopt a new test for determining whether student speech that originates off campus falls under the authority of the schools. Instead of allowing action because of some risk of disturbance, as advocated by the courts in Snyder and Wisniewski, the courts should only allow schools to punish student expression when it This can be accomplished can be considered school speech.' to the one employed analysis analogous a threshold by applying 29 This comment proposes that in Layshock and Bethlehem.' courts only consider private student Internet speech to be school speech in three circumstances: (1) when the material is willfully published at school by the student that created the speech; (2) when the speech violates the rights of other students by creating an unsafe school environment; or (3) when a reasonable observer would attribute the speech as occurring under the auspices of the school.3 0 Only after a finding that the student's private Internet postings meet one or more of the above tests should the court apply Supreme Court precedent to determine whether the school speech falls within one of the four categories of speech that schools may punish."'

128. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 302 (3d Cir. 2010); see also Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34,40 (2d Cir. 2007).

129. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 865 (Pa. 2002) ("First, a threshold issue regarding the "location" of the speech must be resolved to determine if the unique concerns regarding the school environment are even implicated, i.e., is it on campus speech or purely offcampus speech?"); see Layshock, 593 F.3d at 259-60 (analyzing first whether the student's internet speech was school speech.).

130. This comment does not propose a new test for how schools may regulate school speech. If one of the three factors outlined is met, the court must still determine that either Tinker, Fraser, Kuhlmeier, or Morse is triggered before undertaking censorship of student speech.

131. See supra note 54 and accompanying text.

No. 2]

Is it Really MySpace?

341

A. Student PrivateInternet Speech That Is Willfully Published At School Speech that is protected by the First Amendment in one forum may no longer be protected when it is brought into another. 13 2 In Morse, the Court made reference to Fraser by stating, "[h]ad Fraser delivered the same speech . .. outside the

school context, it would have been protected." 33 The Court cited as its authority for this statement the landmark case of 34 The majority cited Cohen again by Cohen v. California.1 stating that "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket."' 5 The Supreme Court implies with this statement that students may wear jackets bearing offensive speech, but when the jacket is exhibited on school grounds it becomes unacceptable school speech.' 3 6 The same reasoning can be applied to Internet speech: even if the speech is protected by the First Amendment when created away from school, when the creator accesses the speech from a school computer he purposefully brings it within the boundaries of school authority.

However, this analysis must not ignore the element of willfulness, or intention, on the part of the student. Courts have recognized the difficulty in trying to keep off-campus speech away from school computers as virtually anything that is put on the Internet has the potential to be accessed by someone at But, while the Internet has certainly made school.137 132. Morse v. Frederick, 551 U.S. 393, 410 (2007); see id. at 405 ("In school, however, Fraser's First Amendment rights were circumscribed in light of the special characteristics of the school environment."); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986).

133. Morse, 551 at 405 (Brennan, J., concurring) (citing Fraser,478 U.S. at 682-83).

134. Fraser,478 U.S. at 405; Cohen v California, 403 U.S. 15, 26 (1971) (prohibiting punishment of a man for wearing a jacket that says, "Fuck the draft" into a courthouse against a policy forbidding such speech inside the courthouse).

135. Fraser,478 U.S. at 682-83.

136. Id. The court did not take into consideration where Cohen's jacket originated.

137. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07CV585, 2008 U.S. Dist. LEXIS 72685, at *20 (M.D. Pa. Sept. 11, 2008) (recognizing that off-campus internet speech "almost inevitably leaks onto campus").

342

John MarshallLaw Journal

[Vol. III

information more fluid, it has not created a river that empties unchecked into the school system. In order for information from the Internet to enter the school building, someone has to sit down at a computer and search for it. If students are punished for their speech that is brought to school by other students or staff members, then they will no longer have freedom of expression on the Internet."' Where the Supreme Court has found it permissible for students to own Cohen's jacket, it is unreasonable to punish the owner when another finds the jacket in the owner's closet and wears the jacket school.'13 9 In Layshock, the District Court applied the spirit of this test by recognizing that, had the school known that Layshock accessed his site from a school computer, it may have been justified in punishing his speech.14 0 In Snyder, however, the Court allowed the school to punish the student because, in part, the principal accessed the site at school.14 ' If every website accessed by a school principal becomes school speech, then it is impossible for students to put anything on the Internet without having to answer to the school.142 Under a Wisniewski analysis, students cannot even avoid punishment by making sure that information on the Internet can only be viewed by a hand-

138. Analyses that urge that student postings become school speech when the poster "reasonably knows" that the speech will be accessed at school are flawed for the same reason. Virtually anything posted online could reasonably crop up at school.

139. See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 617-18 (5th Cir. 2004) (holding that a student's violent drawing taken to school by his brother was not school speech because it was not created on campus nor aimed at campus); but see Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 39-40 (2d Cir. 2007) (finding that an instant messaging icon was school speech despite the fact that it was set to private and the only person that accessed it at school was the principal).

140. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 600-01 (W.D. Pa. 2007).

141. Snyder, 2008 U.S. Dist. LEXIS 72685, at *22; J.S. ex rel. Snyder v.

Blue Mountain Sch. Dist., 593 F.3d 286, 292 (3d Cir. 2010) ("Additionally, the profile was viewed at least by the principal at school and a paper copy of the profile was brought into school.").

142. See Snyder, 593 F.3d at 303 (finding that student did not take steps to keep MySpace profile out of school because anyone that knew the URL could access the site).

No. 2]

Is it Really MySpace?

343

picked group because they must presume one of their friends will report them to the school administration.143 Decisions that find a nexus to school based on the fact that the topic concerns school or is shared with peers are equally troublesome because, if students cannot express themselves to their classmates, then expression becomes pointless. In other words, if the determination of whether the expression is school speech rests on whether it was intended to reach other students, then virtually all student Internet speech is also school speech.

Students spend a lot of time at school, and it is only natural that they will want to discuss what they find on the Internet with others who share the same experience. Instead of punishing students for intending to communicate with their peers, schools should only scrutinize students that intentionally communicate with their peers while at school.

B. PrivateInternet Speech That Violates the Rights of Other Students As part of its holding in Tinker, the Supreme Court found that school speech should not violate the rights of other students.1" But, the Court gave no indication as to what the rights of other students were. 145 Justice Alito seems to believe that these rights might arise based on the "special characteristics" of the school setting.' 6 First, Justice Alito opines that, realistically, most parents have little choice but to send their children to a public school.147 Then, he explains that school attendance exposes students to real physical threats without the protective presence of their parents. 4 8 While free to avoid threatening people and situations outside of school, students in school may be forced to 143. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 39-40 (2d Cir. 2007) (finding that the icon, when distributed to fifteen persons, some of whom were classmates, made the risk of eventual transmission to school administration foreseeable, if not inevitable).

144. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).

145. See id. at 512-14.

146. Morse v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J., joined by Kennedy, J., concurring).

147. Id.

148. Id.

344

John MarshallLaw Journal

[Vol. III

spend time in close proximity to other students that may do them real harm. 4 9 In light of Justice Alito's description of the school setting, perhaps one of the rights referenced by the Court in Tinker is the right of a student to learn in an environment free from unnecessary fear of harm. If students have such a right, then it is possible that the court may find a compelling government interest in preserving that right. Under a properly worded statute aimed at preventing bullying, even private Internet speech could constitutionally be brought within the boundaries of school authority when that speech is being used for the express purpose of creating a threatening and miserable learning environment for other students that are incapable of escaping an encounter with their antagonist.

It must be noted that there is no provision under the proposed test for the protection of teachers and administrators from private Internet speech. This is because adult employees of the school system may not have any extra rights created by the "special characteristics" of the school setting.s 0 Specifically, unlike the students, the adults in school are not compelled to attend.

School administration and staff are not without recourse, however, as they maintain the same protections against private Internet speech that belong to any other professional."'

It is redundant to give schools authority to judge speech simply because it is criminal or gives rise to civil liability, as courts are already charged with that task.'5 2 In fact, courts have reasoned that school administrators are trusted with such broad 149. Id.

150. But see J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07CV585, 2008 U.S. Dist. LEXIS 72685, at *18-19n.4 (M.D. Pa. Sept. 11, 2008) (finding that a defamatory website indicating that principal engages in inappropriate sexual behaviors affected rights of principal because it could be damaging to his reputation).

151. See Snyder, 593 F.3d at 308 ("Aggrieved schools and school officials may seek redress through civil lawsuits and perhaps even by pressing criminal charges.") (Chandler, J., dissenting).

152. Evans v. Bayer, No. 08-61952, 2010 U.S. Dist. LEXIS 12560, at *19 (S.D. Fla. February 12, 2010) ("Moreover, if school administrators were able to restrict speech based upon a concern for the potential of defamation ... students everywhere would be prohibited from the slightest criticism of their teachers, whether inside or outside of the classroom.").

No. 2]

Is it Really MySpace?

345

authority at school because that power is limited to the school School administrators are not judges trained in the setting.' law.' 54 Courts are better suited for determining whether speech is criminal or unprotected by the First Amendment, especially considering that if administrators are left to make their own determination as to whether speech is defamatory, they are often left judging speech that is directed at them.'15 As for student speech that does not trigger criminal or civil action, school personnel are expected to be more mature than the students whom they teach.'5 6 Both the Supreme Court of Pennsylvania in Bethlehem and the District Court in Snyder cite the fear of a reaction from school personnel as proof of a disturbance at school.'5 This fact might lead more

153. Thomas v. Bd. of Educ., 607 F.2d 1043, 1044-45, 1052 (2d Cir. 1979).

154. See id. at 1048 ("[T]he caselaw explicating the limits of governmental authority over expression counsels, both implicitly and explicitly, that the constitutional status of speech be determined by the judiciary, the one institution of government intentionally designed to render dispassionate justice.").

155. In Thomas, the court emphasized that a principal's intimate association with the school gives him a vested interest in suppressing controversy. This interest presents a conflict when the principal acts as both judge and prosecutor in suppressing student speech. See id. at 1051.

156. See Klein v. Smith, 635 F. Supp. 1440, 1441 (D. Me. 1986) ("The Court cannot do these sixty-two mature and responsible professionals the disservice of believing that collectively their professional integrity, personal mental resolve, and individual character are going to dissolve, willy-nilly, in the face of the digital posturing of this splenetic, bad-mannered little boy. I know that the prophecy implied in their testimony will not be fulfilled. I think that they know that, too .... The Court can only conclude, contrary to what might be its reflexive, uninformed judgment, that "the finger," at least when used against a universe of teachers, is not likely to provoke a violent response.").

157. The court in Bethlehem held that the student should have known that once the teacher and administrators found out about the icon that there would be a risk of substantial disruption. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 n.14 (Pa. 2002). Therefore, the Court seems to be afraid of a disturbance caused by the reaction of the teacher and administrators. See id.; see also J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 U.S. Dist. LEXIS 72685, *21-22 (M.D. Pa. Sept.

11,2008).

346

John MarshallLaw Journal

[Vol. III

sophisticated principals to take advantage of this "heckler's veto" under the nexus test.I" C. The Reasonable Observer Test The Supreme Court has recognized the need for a school to In Fraser, the distance itself from inappropriate speech.'

Court found that it was "appropriate for the school to disassociate itself' from the vulgar speech in order to show that it did not approve of the conduct.160 In Kuhlmeier, the Court held that the school needed to have more control of schoolsponsored student publications so that the "views of the individual speaker are not erroneously attributed to the school."'"' It is possible that Morse expanded the power of the school to distance itself from certain types of nonschoolsponsored publications, including some types of student private Internet speech.

It should not be surprising that the Court in Morse did not immediately balk at the fact that Frederick was not standing on school property at the moment that he was asked to put away his infamous banner.162 Schools have long punished students for misconduct on field trips or school sporting events away from campus.'

While Frederick was not technically on a field trip, the Court listed six facts, with very little discussion, that lead to 158. The term "heckler's veto" was created by H. Kalven and refers to government suppression of otherwise legitimate speech because of a fear of the reaction of a hostile audience. H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT 140-45 (1965). If governments allow the heckler's reaction to speech to determine what the Constitution protects, then it is the masses and not the judiciary that would ultimately determine what speech is protected.

Donald A. Downs, Skokie Revisited Hate Group Speech and the First Amendment, 60 NOTRE DAME L. REv. 629, 633-34 (1985).

159. See Morse v. Frederick, 551 U.S. 393, 410 (2007) (finding that the principal's failure to act might send the wrong message to others about how serious the school was about the issue of illegal drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986).

160. Fraser,478 U.S. at 685.

161. Kuhlmeier, 484 U.S. at 271.

162. Morse, 551 U.S. at 400-01.

163. See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 F. Supp.

2d 587, 598 (W.D. Pa. 2007).

No. 2]

Is it Really MySpace?

347

a conclusion that his banner was school speech.'6" Those six facts were that the event occurred during school hours, the event was sanctioned by the principal as an approved social event or class trip, teachers and administrators were interspersed among the students and charged with supervising them, the high school band and cheerleaders performed, Frederick was standing with his classmates, and the banner was directed towards the school. 165 Perhaps the Court's underlying justification for determining that the banner was school speech was that a reasonable outside observer would have believed that Frederick was under the authority of the school at the time of its display. 16 6 This supposition is supported by the Court's assertion that Frederick could not stand in the midst of his fellow students and claim that he was not at school.'6 1 If principals were unable to censor students that appeared to be under their control, then it would have the opposite effect of appearing as if the school condoned the speech in question. Putting an end to this effect comports 1 68 with dicta found both in Kuhlmeier and Fraser.

More circumstantial evidence of an application of a "reasonable observer" test becomes apparent if one speculates as to the motivations of the Court in justifying the censorship of While the use of drugs by young Frederick's banner.

Americans may be a very real problem, it stretches the boundaries of imagination to assume that a student would see Frederick's message and decide to try marijuana. Instead, it may be a more rational assumption that the principal wanted the banner to be removed quickly because he was embarrassed and feared a backlash from the community. The parade was 164. Morse, 551 U.S. at 400-01.

165. Morse v. Frederick, 551 U.S. 393, 400-01 (2007).

166. Id. It may not be a giant leap from school-sponsored to schoolapproved. Cf Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001) (defining school-sponsored speech as speech a reasonable observer would view as school's own speech).

167. Morse, 551 U.S. at 401.

168. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988) (indicating that the school must be free to disassociate from those views which are against the purpose of the school.); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (indicating that the school was right to disassociate itself from the language used in order to show that such speech is not appropriate in a civilized society).

348

John MarshallLaw Journal

[Vol. III

televised; in fact, Frederick characterized the event as a meaningless and funny attempt to get on television.16 9 Also, there were members of the community present, all of whom were likely mindful of the presence of the students and teachers. 7 0 An embarrassing incident could have had the community talking for a long time and the principal's phone ringing with complaints.

School administrators and teachers should be allowed to censor student speech that a reasonable outside observer in the community would believe occurred while the student was under the authority of the school, regardless of whether the speech actually originated on school campus. This test would allow administrators to act quickly in situations where action is necessary to save the reputation of the school, would mesh with 7 and would offer a potential the Court's dicta in Kuhlmeier,"' explanation for the Court's finding that Frederick's banner was school speech. 172 The reasonable observer test would also justify school authority for control of student speech while students are away from campus on school field trips.' Possible situations where student private Internet speech could appear to a reasonable observer to occur while the student is under the authority of the school are student-created media made to look like school work, online postings fraudulently purporting to be made from a school computer, and emails sent from school email addresses.

V.

ANALYSIS OF GEORGIA LAW UNDER THE PROPOSED TEST

The Constitution of the State of Georgia also contains a guarantee of freedom of expression. 17 4 However, the freedom granted by the Georgia State Constitution is no broader a guarantee than the First Amendment of the Federal Because the proposed test is designed to Constitution.'

169. Morse, 551 U.S. at 401.

170. Id. 171. Kuhlmeier, 484 U.S. at 266-67.

172. Morse v. Frederick, 551 U.S. 393, 401 (2007).

173. See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 F. Supp.

2d 587, 598 (W.D. Pa. 2007).

174. GA. CONST. art. I, ยง 1, para. 5.

175. Cahill v. Cobb Place Assocs., 519 S.E.2d 449, 450 (Ga. 1999) (stating that Georgia's constitutional free speech provision does not confer

No. 2]

Is it Really MySpace?

349

maximize student rights under the Federal Constitution, it is also appropriate for analyzing speech under Georgia's Constitution.

A. GeorgiaSchool Statutes and Off-Campus Behavior The Official Code of Georgia requires that all schools shall have a student code of conduct that addresses the behavior of students during school hours, at school related functions, and on the school bus.176 However, O.C.G.A. ยง 20-2-751.5(c) provides that "[e]ach student code of conduct shall also contain provisions that address any off-campus behavior of a student which could result in the student being criminally charged with a felony and which makes the student's continued presence at the school a potential danger to persons or property at the school or which disrupts the educational process." 77 It seems that the statute gives schools the power to bring student private Internet speech under the umbrella of school authority when the speech is both felonious and also either a danger or a

disruption.178 The test proposed by this comment classifies student speech as school speech when it violates the rights of other studentsspecifically the right to learn in a safe environment. Any speech that endangers the students in the school building could be censored by the school system under the test, regardless of the criminal nature of the speech. An argument could also be made that while teachers may not have the special rights of students, any speech that results in actual danger to any person or property at the school while the students are on campus will put the students under reasonable fear and apprehension for their own safety.' 7 9 By protecting the rights of students in the special any greater free speech right than the United States Constitution); but see State v. Fielden, 629 S.E.2d 252, 255 (Ga. 2006) (stating that the Georgia Constitution confers even broader protection for expression than the First Amendment (citing State v. Miller, 398 S.E.2d 547, 550 (Ga. 1990)).

176. O.C.G.A. ยง 20-2-751.1(a) (2009).

177. O.C.G.A. ยง 20-2-751.1(c) (2009).

178. Id. 179. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 36 (2d Cir. 2007). For instance, had the student in Wisniewski actually intended for his expression to be a true threat towards his teacher, it would likely be reasonable for his classmates to be in fear of attending school. Id.

350

John MarshallLaw Journal

[Vol. III

circumstances of the school setting, O.C.G.A. ยง 20-2-751.5(c) properly brings such dangerous speech under the authority of the school system.

However, some types of felonious speech might not create an unsafe learning environment.8 0 The Georgia statute would also bring felonious speech under the authority of the school when it The creates a disturbance of the educational process.'"' proposed constitutional test purposefully ignores whether the student speech could result in criminal charges or civil liability because school authority should not hinge on whether another agency could punish a student, but rather on whether the offcampus expression is school speech. While schools do have the power to punish some types of off-campus speech that are disruptive to the educational process, the whole purpose of the proposed test is to clearly divorce the analysis of whether the student private Internet speech is also school speech from an analysis of whether school speech gives rise to a disturbance so as to satisfy Tinker.18 2 Therefore, O.C.G.A. ยง 20-2-751.5(c) improperly allows schools to punish student private Internet speech that disrupts the school day without mandating that the school first determine that the speech is school speech. Despite the fact that the statute gives more authority to local school boards than the proposed test would allow, an analysis of individual student codes of conduct throughout Georgia reveals that many school systems believe that their authority to control

180. For example, charges of harassment when the alleged student harassment was aimed at non-school personnel or charges of transmission of child pornography, while criminal, may not necessarily create an unsafe school. See Murad Ahmed, Teen 'Sexting' Craze Leading to Child Porn Arrests in US., TIMESONLINE, Jan. 14, 2009, http://technology.timesonline.co.uk/tol/news/tech-and-web/article5516511 .e ce. Sexting is a "new trend spreading across America" that involves teens sending nude photographs of themselves via their mobile phones. Id. This practice has lead to serious consequences for several teens. For instance, in Texas, a thirteen year-old boy was arrested and charged with possession of child pornography for receiving a nude photo of a fellow student on his phone. Id. 181. O.C.G.A. ยง 20-2-751.1(c) (2009).

182. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).

Is it Really MySpace?

No. 2]

351

off-campus student behavior extends beyond the provisions of O.C.G.A.

ยง 20-2-751.5."

B. Student Codes of Conduct in Georgia Schools in Georgia appear to treat the school code statute as a floor and not a ceiling for school authority.18 4 For instance, some codes ignore the felony requirement of O.C.G.A. ยง 20-2751.5 and simply allow schools to punish acts that could result

183. See generally BIBB COUNTY SCHOOL DISTRICT, CODE 18 (2009-2010), available http://www.bibb.kl2.ga.us/images/secondary..conduct.pdf

OF CONDUCT

at [hereinafter BIBB]; BREMEN CITY SCHOOL SYSTEM, STUDENT HANDBOOK 44 (2008at available 2009), http://www.bremencs.com/bhs/20082009/Docs/08StudentHandbook.pdf [hereinafter BREMEN]; BUFORD CITY SCHOOLS, STUDENT AGENDA 44 (2009available at http://www.bufordcityschools.org/bhs/files/092010), 10%20Student%20Agenda.pdf [hereinafter BUFORD]; CAMDEN COUNTY HIGH SCHOOL, STUDENT HANDBOOK 44 (2009-2010), available at [hereinafter http://wildcat.camden.kl2.ga.us/Student%20Handbook.doc CAMDEN]; CARTERSVILLE HIGH SCHOOL, STUDENT/PARENT HANDBOOK 28

available (2009-2010), http://www.cartersville.kl2.ga.us/CHS/pdfs/studenthandbook0910.pdf

at

[hereinafter CARTERSVILLE]; FAYETTE COUNTY SCHOOL SYSTEM, STUDENT 6 (2009-2010), available at CONDUCT SECONDARY CODE OF

http://www.fcboe.org/joomlalS3/files/discipline/codeofconduct-secondary.p df [hereinafter FAYETTE]; FLOYD COUNTY SCHOOL SYSTEM, COOSA HIGH available at (2009-2010), HANDBOOK 25 STUDENT SCHOOL [hereinafter http://www.floydboe.net/SchoolFacts/handbooks/CHS.pdf FLOYD]; FULTON COUNTY HANDBOOK DISCIPLINE

SCHOOL SYSTEM,

CODE OF

CONDUCT

available (2009-2010), 16 http://www.fultonschools.org/Dept/documents/HS-handbook_000.pdf [hereinafter FULTON]; SYSTEM,

CODE

OF

&

at

SAVANNAH-CHATHAM COUNTY PUBLIC SCHOOL available at 10 (2009-2010), CONDUCT

http://www.sccpss.com/PDFs/Code ofConduct_2009-2010.pdf [hereinafter UNION COUNTY SAVANNAH-CHATHAM]; 4 OF CONDUCT CODE HANDBOOK

SCHOOLS,

PARENT-STUDENT

available at (2009-2010), http://www.union.kl2.ga.us/uploads/rb/ob/rbob8qr6k60jXn7yWeP4gA/Pare ntStudentHandbook-09_10_Final-.pdf [hereinafter UNION]; WAYNE COUNTY HIGH SCHOOL, 2009-10 PARENT/STUDENT HANDBOOK 28 (2009at available 2010), http://www.wayne.kl2.ga.us/Schools/Handbooks/WCHS%20Handbook%20 2010.pdf [hereinafter WAYNE].

184. See school codes cited supra note 183.

352

John MarshallLaw Journal

[Vol. III

in criminal charges.'

Other codes of conduct include the language of O.C.G.A. ยง 20-2-751.5(c), but then include an additional statement that indicates that schools may punish offcampus activities that have an immediate and direct effect on discipline in the school or an adverse effect on the safety and welfare of the students.' 86 This language is probably the result of case law from other jurisdictions concerning the authority of schools to punish off-campus behavior and should be impermissible because it allows the school to punish any expression that may somehow affect the school, without a preliminary determination that the expression is school speech.

While the proposed test allows schools to punish off-campus speech that adversely affects the safety and welfare of the students, the test requires more than a mere showing that student private Internet speech caused some effect on campus.

Still other student codes of conduct attempt to expand school authority to any act by a student that disrupts the operation of the school system.187 The mere fact that student private Internet speech causes some disruption at school cannot be enough to bring the speech under the authority of the school. Perhaps school systems in Georgia have added this language to their student code of conduct in a response to O.C.G.A. ยง 20-2-1181, which makes it a misdemeanor of a high and aggravated nature to "disrupt or interfere with the operation of any public school .

185. See BREMEN, supra note 183, at 44 (stating that student code of conduct covers conduct off of school grounds when that conduct could result in a student being "criminally charged."); FULTON, supra note 183, at 16 (stating students may be disciplined for off-campus conduct which includes, but is not limited to, felony charges); BIBB, supra note 183, at 18 (stating students may be disciplined for off-campus conduct which includes, but is not limited to, felony charges).

186. BIBB, supra note 183, at 18; BREMEN, supra note 183, at 44; BUFORD, supra note 183, at 44; CAMDEN, supra note 183, at 44; CARTERSVILLE, supra note 183, at 28; FLOYD, supra note 183, at 25; FULTON, supra note 183, at 16; SAVANNAH-CHATHAM, supra note 183, at 10; UNION, supra note 183, at 4.

187. FULTON, supra note 183, at 16; FLOYD, supra note 183, at 25; BUFORD, supra note 183, at 44; UNION, supra note 183, at 4; SAVANNAHCHATHAM, supra note 183, at 10; CARTERSVILLE, supra note 183, at 28;

WAYNE, supra note 183 at 28.

No. 2]

Is it Really MySpace?

353

...."'I However, the author maintains that speech should not

automatically be under the control of the school merely because it is criminal in nature, but rather when it meets one of the three elements of the proposed test. If student speech is disruptive so as to be criminal under the law, then that fact can be determined by a court of law with punishment meted out through the appropriate channels of an unbiased legal system. 18 9 A similar broadening of school authority from statute to school code can be found in the area of school bullying.

O.C.G.A. ยง 20-2-751.4 prohibits any bullying between students, and both definitions given in the statute seem to require a physical presence.190 However, several systems have adopted student codes of conduct that also prohibit cyberbullying.191 As discussed above, as long as the code of conduct is narrowly 188. See FAYETTE, supra note 183, at 28 (citing O.C.G.A. ยง20-2-1181 (2009) as authority for the rule against school disruption).

189. Some school systems even have provisions in their student codes of conduct that allow the school to punish torts or simply disrespect occurring off campus. FAYETTE, supra note 183, at 16 (stating that off-campus behavior that is disrespectful to school personnel is prohibited); CAMDEN, supra note 183, at 45-46 (prohibiting off-campus behavior that results in physical harm to school employees); SAVANNAH-CHATHAM, supra note 183,

at 10 (forbidding slander or libel).

190. O.C.G.A. ยง 20-2-751.4(a) (2009) ("As used in this Code section, the term 'bullying' means: (1) Any willful attempt or threat to inflict injury on another person, when accompanied by an apparent present ability to do so; or (2) Any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm.").

191. BIBB, supra note 183 (defining cyberbullying as "[t]he use of information and communication technologies such as e-mail, cell phone and pager text messages, instant messaging (IM), personal web sites, online personal polling web sites, social networking web sites (such as MySpace, Facebook, etc.) to support deliberate, repeated, or hostile behavior by an individual or group that is intended to harm others. Cyberbullying includes but is not limited to (1) harassing, (2) teasing, (3) defaming, (4) intimidating, (5) threatening, or (6) terrorizing another person by sending or posting inappropriate and hurtful e-mail messages, instant messages, text messages, digital pictures or images, website postings, or blog postings."); id. at 58 (giving schools authority to punish off-campus cyberbullying when it disrupts the educational process, the educational environment, interferes with the rights of others, or is a true threat); see also SAVANNAH-CHATHAM, supra

note 183, at 19 (forbidding harassment through use of electronic devices); UNION, supra note 183, at 15 (giving O.C.G.A. definition of bullying, but then stating that cyber bullying is included).

354

John MarshallLaw Journal

[Vol. III

tailored and is aimed at protecting students' rights to learn in a safe environment, it should withstand the proposed test.

Lastly, O.C.G.A. ยง 20-2-751.5(a)(17) dictates that schools shall address instances where a student is guilty of "[fjalsifying, misrepresenting, omitting, or erroneously reporting information regarding instances of alleged inappropriate behavior by a teacher, administrator, or other school employee toward a student."' 92 It seems clear that the legislature intended this paragraph to be an added protection to the reputation of teachers. However, the protection might extend too far. The paragraph begins with verbs implying intent, but then includes the term "erroneously."' 93 If the legislature intended for schools to only address intentional misconduct, then the word "erroneously" adds nothing to the phrase that is not already supplied by the verbs "falsify" and "misrepresent." Therefore, it appears that the statute was written with the intent to allow schools to address even good faith mistakes on the part of a student. In an area such as sexual misconduct, where it is historically difficult for victims or their friends to come forward, it is questionable whether it is good policy for Georgia schools to punish a report made with a good faith belief to be true but later determined to be in error.194 As Georgia courts are given the opportunity to rule on the statutes enumerated above, they should construe them narrowly in order to fit them within the proposed constitutional test.

When determining whether student speech may be punished by the school system, the courts should ignore whether the student speech resulted in, or could have resulted in, felony charges.

Perhaps most importantly, schools in Georgia must not be allowed to punish student speech simply because it has some de minimus impact on the school day so as to satisfy the base

192. O.C.G.A. ยง 20-2-751.5(a)(17) (2009).

193. Id.

194. Abused children often feel guilty for their own abuse as well as fear retaliatory action from their abusers. Nancy Faulkner, Ph.D., School Based Research on Undisclosed Sexual Abuse: Shouldn't Children Have the Right to Speak Out Anonymously?, available at http://www.prevent-abusenow.com/shouldntChildren.htm (last visited Mar. 5, 2010). Many victims of abuse fail to report because they are afraid that a confession will bring even worse consequences than being abused again. Id.

No. 2]

Is it Really MySpace?

355

requirements of O.C.G.A. ยง 20-2-1181.'" The statute should not apply to student private Internet speech because it fails to address whether or not the student expression has become school speech.19 6 Finally, O.C.G.A. ยง 20-2-751.5(a)(17) should be construed narrowly to only allow punishment of students whose reports of teacher misconduct are intentionally untrue or when they are given with a reckless disregard for the truth, lest the state risk chilling the speech of those students who have reason to suspect illegal activity but are afraid to come forward.

VI. CONCLUSION From the time that Tinker recognized that "students do not shed their constitutional rights at the schoolhouse gate," 97 courts have been faced with many conflicting ideals.'9 Those who fear that schools might become enclaves of totalitarianism must struggle with the fear that to give students too much freedom would be to surrender control of the school to the students.199 These conflicts have been made far more difficult in an age where technology allows information to flow easily from home to school and back again. However, in this "information age" in which we live, it is all the more important that schools prepare young children to be able to communicate and to use the technology that is available. Students, as surely they have done in some form since the dawn of schools, "will test the limits of acceptable behavior in myriad ways" and perhaps "school officials need a degree of flexible authority to respond to disciplinary challenges." 20 0 But, as the court asserted in Layshock, the power that comes with such a wide degree of 195. See In re D.H., 663 S.E.2d 139, 140 (Ga. 2008).

196. Cf O.C.G.A. ยง 16-11-34 (2006); State v. Fielden, 629 S.E.2d 252, 256-57 (Ga. 2006) (holding O.C.G.A. ยง 16-11-34 unconstitutionally overbroad because the statute does not require proof of intent or proof of actual and substantial disturbance, and because the literal language of the statute forbids innocent and constitutionally protected conduct in such a way that it cannot be subjected to any narrowing interpretation by the courts).

197. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).

198. See supra Part III. 199. See Tinker, 393 U.S. at 511; see also id. at 526 (Black, J., dissenting).

200. Morse v. Frederick, 551 U.S. 393, 428 (2007).

356

John MarshallLaw Journal

[Vol. III

authority must be tempered by the confinement of that power within the school setting, and when the school day ends students should be free to speak their mind so that the community is not deprived of their expression.2 01 In order to maintain this balance, courts should first, before applying Tinker20 2 or any other school speech precedent to student private Internet speech, determine whether one of the three proposed factors pulls the speech within the boundaries of school authority. This test should be clearly established by the courts so that students throughout Georgia will realize the same First Amendment rights rather than experience the wide discrepancy that currently exists in student codes of conduct throughout the state. Without a clear rule, protected expression will continue to be chilled because those who would speak will remain silent for fear of violating the law.

Benjamin T Bradford

201. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007).

202. Tinker, 393 U.S. 503. * J.D., Atlanta's John Marshall Law School (2010); B.S., University of the Cumberlands (2002). I would like to thank my family for always encouraging and enabling me to accomplish my goals. I would like to especially thank my wife, Lindsay, for the love, support and sacrifices freely given. Lastly, I would also like to thank Professor Kamina Pinder for her guidance and assistance.

RANDOM DRUG TESTING IN SECONDARY SCHOOLS - WHERE DOES GEORGIA STAND? .............................................

I.

INTRODUCTION

II.

THE U.S. SUPREME COURT'S STANCE ON STUDENT DRUG TESTING.

A. B.

................................

358

............. 360

Vernonia School District v. Acton Establishedthe Precedentfor Drug Testing in Secondary Schools.................. 360 The U.S. Supreme CourtApproves Drug Testing of ...... 362 .................

Student Athletes in Vernonia ........... 363 1. The Nature of the Privacy Interest..........

364 .............

Intrusion........... of the Character 2. The 3. The Nature and Immediacy of the Governmental .............. 365 Concern....................

Board of Education v. Earls Extends Student Drug Testing to Include All Competitive Extra-Curricular .......... .......... 367 Activities..............................

D. Chandler v. Miller - The Eleventh Circuit'sResponse 369 ........ ......................... to Drug Testing.

C.

III.

DRUG TESTING BEYOND THE SUPREME COURT .

A. B.

................. 371

The Supreme Court ofIndianaand the Extension of Student Drug Testing ............................... 372 Justice Boehm's Dissent- The School's Failureto Meet the Requirement of the Special Needs Doctrine............. 373 1.

2.

3.

4.

New Jersey v. T.L.0 ...................... ...... ..... ................

Vernonia v. Acton Chandler v. Miller...........................

The Indiana School's Policy Does Not Meet the 'Special Needs'Requirement .......................

373 374 375 375

John MarshallLaw Journal

358 C.

[Vol. III

The Seventh Circuit'sConcernsRegardingStudent Drug Testing............................

IV.

GEORGIA SCHOOLS' DRUG TESTING POLICIES

V.

POSSIBLE CONSTITUTIONAL ALTERNATIVES.......

VI.

CONCLUSION

377

...................

.............. 385

...............................................

I.

379

387

INTRODUCTION

Many school systems implement drug testing as a method to combat increasing drug problems and to protect students in extra-curricular activities.' This policy raises a couple of issues, such as: whether schools implement the drug testing policies in a manner that accomplishes that illustrious goal and whether school systems are overstepping their authority. In Georgia, the lack of state case law interpreting the validity of these drug testing policies has led schools to enact unchallenged policies that have the potential to lead to testing of the entire student population or blanket student drug testing.

Along with these issues, drug testing raises other important concerns. 2 Drug tests prove costly; depending on the type of drug being tested, tests can range in price from $14 to $100, for which the school district must pay. Furthermore, of the limited studies that have been conducted, there is no conclusive evidence that drug testing has any deterrent effect on drug use in secondary schools.' In fact, a survey using data from 19982001 showed that drug testing was not associated with either the ''prevalence or the frequency of student marijuana use or of

1. Ryoko Yamaguchi, Lloyd D. Johnston, & Patrick M. O'Malley, Relationship Between Student Illicit Drug Use and School Drug-Testing Policies, 73

J.

SCH.

HEALTH

159,

159

(2003),

available at

http://monitoringthefuture.org/pubs/text/ryldjpom03.pdf 2. Id. 3. Id. 4. JENNIFER KERN ET AL., MAKING SENSE OF STUDENT DRUG TESTING,

WHY

EDUCATORS

ARE

SAYING

No

3-4

(2006),

available

http://www.drugpolicy.org/docUploads/drug-testing-booklet.pdf

at

No. 2]

Random Drug Testing in Secondary Schools

359

other illicit drugs."' The study noted further that "drug testing of athletes [was not] associated with lower-than-average marijuana and other illicit drug use by high school male athletes." 6 Opponents argue that not only is drug testing ineffective and costly, it can potentially expose schools to litigation. It also can drive students away from extracurricular activities which help students stay away from drugs, it undermines the trust between parents and students, can result in false positives, may not identify students who have serious drug problems,' and can lead to unintended consequences. 9 Additionally, the student's ability to "cleanse" his or her system of drugs prior to the testing may result in further inaccuracies. 0 Although there has been much debate regarding drug testing in secondary schools, the United States Supreme Court has This declared it constitutional in limited circumstances." comment focuses on the drug testing policies implemented by secondary schools throughout Georgia. Section II of this comment begins with an in-depth analysis of the leading U.S. Supreme Court decisions regarding secondary school drug testing, Vernonia School District v. Acton,12 and Board of Education v. Earls," followed by Chandler v. Miller,4 a drug testing case from the Eleventh Circuit. Section III discusses an Indiana Supreme Court decisions focusing on an enlightened dissent by Justice Boehm that provides commentary on the

5. See Yamaguchi, Johnston, & O'Malley, supra note 1, at 164.

6. Id. 7. See KERN, supra note 4, at 19.

8. See id. (explaining certain drugs may not be tested for and schools may rely solely on drug tests rather than on detecting symptoms of students).

9. See id. at 20 (unintended consequences include students turning to more dangerous drugs or binge drinking because marijuana is the most detectable drug and remains in the body for weeks and purchasing risky products off of the internet to "beat" drug tests).

10. Janelle Brown, Why Drug Tests Flunk, Apr. 22, 2002, http://dir.salon.com/story/mwt/feature/2002/04/22/drug-testing/index.html.

11. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

12. Id. 13. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

14. Chandler v. Miller, 520 U.S. 305 (1997).

15. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, (Ind. 2002).

360

John MarshallLaw Journal

[Vol. III

"Special Needs" framework that could assist Georgia in interpreting student drug testing cases.

Section IV will compares Georgia's implementation of drug testing in secondary schools in light of Vernonia,'6 Earls," Chandler,s and Justice Boehm's dissent in Linke v. Northwestern School Corp.19 Section V explains why Georgia courts should follow Justice Boehm's analysis of drug testing, which provides greater Fourth Amendment protections to its citizenry, and only allow suspicionless drug testing in narrow circumstances. Section VI concludes that many secondary schools in Georgia have drug testing policies that are unconstitutional and urges Georgia's schools to revise such policies.

II. THE U.S. SUPREME COURT'S STANCE ON STUDENT DRUG TESTING A. Vernonia School District v. Acton Establishedthe Precedentfor Drug Testing in Secondary Schools Vernonia involved a school district in Oregon that adopted a policy authorizing random urinalysis drug testing of students that participated in athletic programs within the district.2 0 There had been a "sharp increase" in drug usage among the students within the school system and the school district discovered that athletes were among the most prevalent drug users.2 1 Disciplinary problems also accompanied the increase in drug use and although the school tried to combat the drug use with other means, such as offering classes, hosting expert speakers, and bringing in a drug dog, the drug problems persisted.2 2 The school was particularly concerned with the participants of the athletic programs because drug use "increases the risk of sports-related injur[ies] ."23 At trial, expert testimony reiterated 16. Vernonia, 515 U.S. 646.

17. Earls, 536 U.S. 822.

18. Chandler, 520 U.S. 305.

19. Linke, 763 N.E.2d 972.

20. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 648-49 (1995).

21. Id. at 649.

22. Id. at 648-49.

23. Id. at 649.

No. 2]

Random Drug Testing in Secondary Schools

361

the "deleterious effects of drugs on motivation, memory, The apparent made further was athletics use in seriousness of drug by incidents involving high school wrestling and football programs. A wrestler suffered a severe sternum injury, and there were "various omissions of safety procedures and misexecutions by football players." 25 These were all believed by the wrestling and football coach to be from the effects of drug use.26 After the failed attempts to combat the drug problem, the school considered implementing a drug testing program.27 The school held an "input night" to discuss the proposed Student Athlete Drug Policy ("Policy") with the parents. 28 The parents gave their unanimous approval, and the school board approved the new Policy. 29 The expressed purpose of the Policy was to "prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs." 0 The Policy applied to "all students participating in interscholastic athletics."'

The Policy had specific guidelines on how the testing would take place.3 2 These guidelines covered methods for collecting the sample, transporting the sample to the testing facility, what drugs the tests would search for, notification procedures, the parties to be notified, and what action would take place upon a positive result.33 More specifically, under conditions similar to a communal restroom, students were tested by a person of the same sex as the student: a male student remained fully clothed with his back to the tester, and a female student would go into a bathroom stall while the tester remained outside.34 Once the sample was taken, it was sent to an independent laboratory for testing where it was evaluated for amphetamines, cocaine, and

judgment, reaction, coordination, and performance." 24

24. Id. 25. Id.

26. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 649 (1995).

27. Id. 28. Id. at 649-50.

29. Id. 30. Id. at 650.

31. Id. 32. Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 650 (1995).

33. Id. 34. Id.

John MarshallLaw Journal

362

[Vol. III

marijuana.35 The identity of the student did not determine the type of drug tested for; in fact, the laboratory did not know the identity of the students. 6 Only the superintendent, principal, vice-principal, and athletic director were given the results.3 1 If a student tested positive, the student was retested "as soon as possible to confirm the result."38 If the retest was positive, the parents were notified and the student could either participate in an "assistance program" and submit a weekly urinalysis, or be suspended from athletics for the remainder of the current season as well as the next season.

Subsequent positive tests resulted in automatic suspension from athletics for a longer period of time.40 B. The U.S. Supreme Court Approves Drug Testing of Student Athletes in Vernonia At issue in Vernonia was a student and his parent who refused to sign the required consent form to participate in the drug testing program for the district. As a result, the student was not allowed to participate in sports. Consequently, the family brought an action against the school asserting that the drug policy violated the student's Fourth and Fourteenth Amendment rights.4 ' The U.S. Supreme Court granted certiorari.4 2 The Court began its analysis by determining whether this particular "search" was reasonable. 43 The Court previously held that a urinalysis is considered a "search" for Fourth Amendment purposes in Skinner v. Railway Labor Executives' Ass'n.4 35.

36.

37.

38.

Id. Id. at 651.

Id. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 651 (1995).

39. Id.

40. Id. 41. Id. (stating that the Fourth Amendment protects people from "unreasonable searches and seizures" and has been extended to state officers and public officials).

42. Id. at 652.

43. Id. 44. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617 (1989)).

No. 2]

Random Drug Testing in Secondary Schools

363

Relying on Skinner, the Court in Vernonia stated that in order for a search to pass constitutional muster, it must be "reasonable."4 5 The reasonableness standard is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."46 1.

The Nature of the Privacy Interest

In Vernonia, the Court's analysis focused on the legitimate expectation of privacy versus the character of the intrusion, along with the immediacy of the stated governmental concern and efficacy of the means for meeting it.47 The first factor the Court considered was the nature of the privacy interest in which the search intrudes.48 In considering this factor, the Court noted that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those considered Whether the methods or procedures are "legitimate." 4 9 considered "legitimate" depends on the context of the search. 0 The Court noted that Fourth Amendment rights are different in public schools and the "reasonableness" standard "cannot disregard the schools' custodial and tutelary responsibility for children."" For example, public schools require students to submit to physical examinations and vaccinations. Therefore, the Court explained "students within the school environment have a lesser expectation of privacy than members of the population generally."" However, the Court did not address the distinction that vaccinations and physicals obtained for school are typically performed by medical professionals and are not done within the school setting as opposed to student drug testing which is not performed by a medical professional and is done within the school setting.

45. Id. 46. Id. at 652-53.

47. Id. 48. Id. at 654.

49. Id. 50. Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 654 (1995).

51. Id. 52. Id. at 656.

53. Id. at 656-57.

John MarshallLaw Journal

364

[Vol. III

The Court further stated that student athletes have even lower expectations of privacy.5 4 Typical public school locker rooms, such as those in Vernonia, offer little privacy. 5 Student athletes must change clothes prior to practice or an event and shower and change afterwards. 56 There are no individual dressing rooms and the showers are typically communal, consisting of multiple shower heads on a wall with no separation or partition."

In addition, student athletes subject themselves to a higher degree of regulation than students generally." Student athletes must have a preseason physical exam, which in some cases includes a urine sample, and they must maintain adequate insurance coverage or sign an insurance waiver." Students must also maintain a minimum grade point average to be eligible to participate in athletics. Moreover, students must comply with any specific rules designated by the coach or athletic director such as dress, training hours, or codes of conduct. 60 "[S]tudents who voluntarily participate in school athletics" should expect intrusions into their privacy. 1 2.

The Characterof the Intrusion

The next factor examined by the Court was the character of the intrusion. 62 Although the Court had previously stated that samples of urine were traditionally "shielded by great privacy," they also noted the degree of the intrusion depends on how the sample is taken.63 In this instance, samples are obtained in the same manner "typically encountered in public restrooms."64 54. Id. at 657.

55. Id. 56. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 657 (1995).

57. Id. 58. Id. (quoting Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1318 (7th Cir. 1988)).

59. Id. 60. Id. 61. Id. 62. Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 658 (1995).

63. Id. (stating the degree of intrusion "depends upon the manner in which the production of the urine sample is monitored").

64. Id.

No. 2]

Random Drug Testing in Secondary Schools

365

Males stand at a urinal, fully clothed, while monitored from behind." Females enter an enclosed bathroom stall while being monitored from outside the stall.6 6 Since these mirror the encounters school children face in the daily use of public restrooms, the Court found the privacy interests intruded upon were negligible.6 7 The Court then examined another privacy aspect of the urinalysis: the information the results disclose about the student.68 The information disclosed could be the state of the student's body, such as being pregnant or diabetic. 6 9 However, the Court noted the urinalysis here only tested for drugs, the testing does not vary according to who the student is, and an independent laboratory discloses the results to limited school personnel.7 0 The Court also noted that the results of the tests are not turned over to law enforcement.

3.

The Nature and Immediacy of the Governmental Concern

The Court finally considered "the nature and immediacy of the governmental concern . .. and the efficacy of this means for

meeting it." 72 Although the Court did not announce whether the government interest had to rise to the level of "compelling," or whether the interest "appears important enough to justify the particular search at hand," the test would be met in either case.

Deterrence of drug use by school children is important, "perhaps compelling."7 4 It is during these years that "physical, psychological, and addictive effects of drugs are most severe.""

Some effects of drug use in school children include "childhood losses in learning" which are "lifelong and profound," and that "children grow chemically dependent more quickly than adults, 65. Id. 66. Id. 67. Id. 68. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 658 (1995).

69. Id. 70. Id. 71. Id. 72. Id. at 660.

73. Id. at 661.

74. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 661 (1995).

75. Id.

366

John MarshallLaw Journal

[Vol. III

and the record of recovery is depressingly poor."' 6 Further, the Court identified that drug use not only affects the users themselves, but can also have effects on the student population, the faculty, familial relationships, and the educational process.7 Importantly, the Court pointed out that this particular program was "directed more narrowly to drug use by school athletes."" The risk among this narrow group is particularly high as there is a risk of immediate physical harm to the player:79 Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District's Policy have been demonstrated to pose substantial physical risks to athletes. Amphetamines produce an "artificially induced heart rate increase, [p]eripheral vasoconstriction, [b]lood pressure increase, and [m]asking of the normal fatigue response," making them a "very dangerous drug when used during exercise of any type."80 Marijuana causes "[i]rregular blood pressure responses during changes in body position," "[r]eduction in the oxygen-carrying capacity of the blood," and "[i]nhibition of the normal sweating responses resulting in increased body Cocaine produces "[v]asoconstriction[, temperature."' coronary artery [e]levated blood pressure," and "[p]ossible 82 infarction." myocardial and spasms The Court found that these factors created a substantial interest for the school to combat the drug problem among student athletes."

The Court did not question the immediacy of Vernonia's concerns.8 4 The District Court concluded that a large portion of 76. Id. 77. Id. at 662.

78. Id.

79. Id. 80. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 662 (1995) (quoting Jerald Hawkins, Drugs and Other Ingesta: Effects on Athletic Performance, in MANAGING SPORTS AND RISK MANAGEMENT STRATEGIES 90, 90-91(Herb

Appenzeller ed., 1993)).

8 1. Id. 82. Id. 83. Id. 84. Id. at 663.

No. 2]

Random Drug Testing in Secondary Schools

367

the student body, specifically students involved in interscholastic sports, were "in a state of rebellion," and this rebellion was fueled by drug and alcohol use in addition to "students' misperceptions about the drug culture."" The Court then, focusing on the means used to address the problem, stated that it was "self-evident that a drug problem largely fueled by the 'role model' effect of the athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure athletes do not use drugs."86 In light of the students' "decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search" the Court held Vemonia's narrow policy to be constitutional.87 However, the Court cautioned that suspicionless drug testing in any context will not "readily pass" constitutional muster.88 C. Board of Education v. Earls Extends Student Drug Testing to Include All Competitive Extra-CurricularActivities Although the Court held that suspicionless drug testing of student athletes in accordance with the school policy of Vernonia was constitutional, subsequent secondary schools and courts have struggled with Vernonia 's limits.8 9 The Supreme Court addressed student drug testing again in 2002 and extended the Vernonia holding in BoardofEducation v. Earls.90 In Earls, the school district's drug testing policy was challenged on the basis that it incorporated all extra-curricular activities and was therefore not in line with the Vernonia decision. 91 The Court noted that although the policy in

85. Id. (quoting Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. 1354, 1357 (Ore. 1992)).

86. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 663 (1995).

87. Id. at 665.

88. Id. at 664-65.

89. See generally Nathan Roberts & Richard Fossey, Random Drug Testing of Students: Where Will the Line be Drawn?, 31 J.L. & EDUC. 191 (Apr. 2002).

90. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

91. Id. at 826 (stating the policy applied to activities "such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, and athletics").

368

John MarshallLaw Journal

[Vol. III

Vernonia applied to student athletes, it was not the deciding factor in the case.92 The Court pointed out, however, that Vernonia did not open the door to all student drug testing; rather, the specific facts of each case must be considered."

The Court applied the Vernonia analysis but extended its interpretation of the "legitimate expectation of privacy interest" The Court reasoned that students who among students. voluntarily participate in competitive extracurricular activities are subject to similar privacy intrusions as athletes.94 Some of the activities require travel, communal undress, and also have rules that are not applied to the student body as a whole.

The Respondents in Earls argued that the safety concerns that apply to athletes are not implicated in other extra-curricular activities and "safety is a 'crucial factor' in applying the special needs framework," which is needed for the schools to conduct a search without probable cause." The Court acknowledged that safety was a factor in the analysis and articulated that the "safety interest furthered by drug testing" is substantial for all children.97 Because the Earls policy simply extended the Vernonia policy from drug testing student athletes to drug testing students in competitive extracurricular activities where similar concerns were present, the Court held that extending the policy to such activities was constitutional and upheld the policy.98 This decision left ambiguity as to what student activities could be subject to drug testing for schools seeking to implement drug testing policies - essentially leaving schools wondering, what are the limits of "competitive extracurricular activities?"

92. Id. at 831.

93. Id. at 830.

94. Id. at 831.

95. Id. at 832.

96. Bd. of Educ. v. Earls, 536 U.S. 822, 836 (2002) (quoting Brief of Respondents at 25-27, Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (No. 01332), 2002 WL 243578).

97. Id. 98. Id. at 838.

No. 2]

Random Drug Testing in Secondary Schools

369

D. Chandler v. Miller - The Eleventh Circuit'sResponse to Drug Testing The Eleventh Circuit has not addressed drug testing in the student context, but they have addressed the constitutionality of drug testing candidates for certain positions of state office.99 A divided Eleventh Circuit panel upheld a Georgia statute' 0 that required a passing drug test within thirty days of seeking designated state offices."o' However, the U.S. Supreme Court reversed the Eleventh Circuit's decision, deciding that drug testing in this instance did not meet the requirements regarding the "limited circumstances in which suspicionless searches are warranted." 0 2 In its decision, the Eleventh Circuit majority acknowledged that drug tests were searches but that the statute served "special needs" other than ordinary needs of law enforcement.103 The court then balanced the individual's privacy expectations against the Government's intrusion to determine if a warrant or individualized suspicion should be required in this context.104 Although the Eleventh Circuit noted the lack of any record of drug abuse among elected officials, the court relied on the prestige of the office and the level of trust the public puts in the officials once elected to office.' Given this public interest and the limited privacy intrusion since, under the statute, the candidate gets tested by his or her physician and can control the disclosure of the results by refusing to run for office if the test is positive, the Eleventh Circuit upheld the statute.10 6 Judge Barkett dissented, stating that there should not be a balancing of interests because the State failed to establish a sufficient governmental need to warrant suspicionless drug testing because there was "nothing so special or immediate about the generalized governmental interests involved here. . . ."107 99. See Chandler v. Miller, 520 U.S 305 (1997).

100. O.C.G.A. ยง 21-2-140 (1993).

101. Id. 102. Chandler,520 U.S. at 308.

103. Id. 104. Id. at 311.

105. Chandler v. Miller, 520 U.S. 305, 311 (1997).

106. Id. at 311-12.

107. Id. at 312-13.

370

John MarshallLaw Journal

[Vol. III

The U.S. Supreme Court did not agree with the majority.'o The Supreme Court relied on three major opinions; Skinner v.

Railway Labor Executives' Ass'n,109 Treasury Employees v. Von Raab,"' and Vernonia."' Skinner involved a regulation that required all rail employees involved in train accidents to submit blood and urine samples." 2 The Supreme Court upheld this statute, stating the following: (1) employees had diminished expectations of privacy by participating in an industry that is heavily regulated to ensure safety; (2) the test could deter illegal drug use by employees that are in positions that may cause the loss of human life (3) employees may not present any noticeable signs of drug use to supervisors; and (4) employees could not determine when an accident or violation would occur that would trigger the test, further deterring drug use."

Von Raab concerned drug tests that were a condition of promotion or transfer to positions within the United States Custom Service that "directly involved drug interdiction or require[ed] the employee to carry a firearm."ll 4 The Supreme Court upheld this program even in the absence of a demonstrated drug problem because of the agency's unique mission against smuggling illicit drugs into the United States and the "compelling interest" of the government to keep drug users out of these positions as drug users would be unsympathetic to the Service's mission and might be tempted by bribes and threatened with blackmail."

The Supreme Court finally discussed Vernonia and the focus the majority placed on the "immediate crisis" caused by the drug use in the school and student athletes as "leaders of the drug culture.""'6 The Supreme Court also emphasized in Vernonia, drug-using student athletes are exposed to greater

108. See generally Chandler, 520 U.S. 305.

109. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989).

110. Treasury Employees v. Von Raab, 489 U.S. 656 (1989).

111. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

112. Chandler v. Miller, 520 U.S. 305, 314 (1997) (quoting Skinner, 489 U.S. at 608-12).

113. Id. at 314-15 (quoting Skinner, 489 U.S. at 626-34).

114. Id. at 315 (quoting Von Raab, 489 U.S. at 660-61).

115. Id. at 315-16 (quoting Von Raab, 489 U.S. at 660-71).

116. Id. at 315-16 (quoting Vernonia, 515 U.S. at 649-63).

No. 2]

Random Drug Testing in Secondary Schools

371

injury on the playing field, not only to themselves but to other

players as well.117 In Chandler, the court held that Georgia failed to show a special need to justify suspicionless drug testing." 8 The Supreme Court noted that there was nothing to indicate that state office holders in Georgia had a drug problem; while this was not necessary, it would bolster the government's argument.119 Further, there was no indication of why ordinary law enforcement mechanisms would not work in apprehending addicted individuals if they are elected to office and are in the public eye.12 0 The Supreme Court further noted that Von Raab is unique and was not meant to be a decision to open the door for suspicionless searches.' 2 ' While the employees in Von Raab did not engage in the type of activities that would subject them to day-to-day scrutiny by their peers and supervisors, due to their field work, candidates for public office are subject to relentless What scrutiny beyond ordinary work environments.' 22 reasoning is left of Georgia's scheme is "symbolic," as there is no evidence of a drug problem among those holding state office, the officials are not performing high-risk safety sensitive tasks, and the certification for public office "immediately aids no interdiction effort."' 23 This symbolic effort does not rise to a special need and "setting a good example" alone is not enough to warrant suspicionless drug testing.'

III. DRUG TESTING BEYOND THE SUPREME COURT Circuit courts and state courts alike have differed in their interpretations of Vernonia and Earls.'2 5 While some courts extended the holding to include more than student athletes, 117. Id. at 316-17 (quoting Vernonia, 515 U.S. at 662).

118. Chandler v. Miller, 520 U.S. 305, 318 (1997).

119. Id. at 318-19.

120. Id. at 320.

121. Id. at 321.

122. Id. 123. Id. at 321-22.

124. Chandler v. Miller, 520 U.S 305, 321-22 (1997).

125. See e.g., Linke v. Nw. Sch. Corp., 763 N.E.2d 972 (Ind. 2002), see also Roberts & Fossey, supra note 89, at 198.

372

John MarshallLaw Journal

[Vol. III

other courts attempted to follow the reasoning in Vernonia and establish the parameters of the decision. 126 Although Georgia has yet to address student drug testing, looking at other state and circuit court opinions could indicate how Georgia should interpret Vernonia. Specifically, the Supreme Court of Indiana and the United States Court of Appeals for the Seventh Circuit have dealt with several drug testing challenges since Vernonia.

Of particular interest is the reasoning found in Justice Boehm's 27 Although not dissent in Linke v. Northwestern School Corp.1 binding on Georgia courts, it provides a concise analytical framework relying on the "special needs" doctrine.128 A. The Supreme Court ofIndiana and the Extension ofStudent Drug Testing In 2002, prior to Earls, the Supreme Court of Indiana upheld a school's policy of conducting random drug testing on students participating in athletics, extracurricular activities, co-curricular activities, and students with parking permits.12 9 The court adopted the analytical approach announced in Vernonia, reiterating that students are entitled to less privacy at school since they are subject to supervision and control.'" The court also stated that the policy did not compel students to consent to the testing because it only applied to privileged activities."'

The court further noted that the drug policy was reasonable because it did not require drug testing for students in voluntary activities in which they receive academic credit. 3 2 Students were given the option of "providing alternative for-credit assignments" if they chose not to comply with the drug testing policy.'3 3 However, if the student chose that "option" they would not be allowed to participate in the extracurricular

126. See e.g., Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052 (7th Cir. 2000).

127. Linke, 763 N.E.2d 972.

128. Id.

129. Id. 130. Id. at 979-80.

131. Id. at 980.

132. Id.

133. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 980 (Ind. 2002).

No. 2]

Random Drug Testing in Secondary Schools

373

portion of the class, such as competitions. 34 The court stated that while the students had the option to obtain credit for the activity, in all likelihood, there may be some adverse impact by not participating in the extra-curricular portion of the class, such as being denied the opportunity to participate in competitions or live performances."' Further, there may be some benefit to students for participating in the extra-curricular portion of school sponsored activities, specifically for "students who wish to pursue post-secondary educational or professional training" Given the "totality of the in that particular activity."' circumstances," the Indiana Supreme Court found the policy constitutional as schools are permitted to take "reasonable measures to deter drug abuse on their campuses." 3 7 B. JusticeBoehm's Dissent - The School's Failureto Meet the Requirement of the Special Needs Doctrine Justice Boehm of the Indiana Supreme Court dissented from the court's opinion in Linke, focusing on the "special needs" doctrine which is the narrow exception to the probable cause requirement.138 Justice Boehm relied on three cases in his analysis: New Jersey v. T.L.O.,13 9 Vernonia v. Acton,140 and Chandler v. Miller.14 '

1. New Jersey v. T.L.Ol42 Justice Boehm pointed out that the "special needs" doctrine, in regard to school searches, arose in T.L.O., where the U.S. Supreme Court held "the Fourth Amendment's usual probable cause standard should not apply in a school setting."' 43 The search must be reasonable, but there were limits to the authority 134. Id. 135. Id. 136. Id.

137.

138.

139.

140.

141.

142.

143.

Id. at 985.

Id. at 987.

N.J. v. T.L.O., 469 U.S. 325 (1985).

Vernonia v. Acton, 515 U.S. 646 (1995).

Chandler v. Miller, 520 U.S. 305 (1997).

TL.O., 469 U.S. 325 (1985).

Id. at 325.

374

John MarshallLaw Journal

[Vol. III

of school officials to conduct a search.'" Specifically, "the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools." 45 2. Vernonia v. Acton Justice Boehm noted that in Vernonia, the "special need" was established for a particular group of students: athletes.14 6 This "special need" was established based on an "immediate crisis" in which the drug problem was found to come specifically from the group of student athletes. 147 Justice Boehm pointed out that the Court cited three factors to determine when a search would be reasonable in the school context: "the decreased expectation of privacy of the student athletes, the relative unobtrusiveness of the search, and the severity of the need met by the search."l 48 The Court then relied on specific instances reported by the school district to justify the need for the search, such as a substantial rise in the number of disciplinary referrals, students being increasingly rude in class, students having outbursts in class, and student athletes being the leaders of the drug

culture.14 9 Justice Boehm then looked to the policy used in the Indiana school system and determined that it did not meet any of the three requirements announced in Vernonia.s0 His dissent noted that the programs applied not only to athletes but participants in "a wide range of extra-curricular activities from Future Farmers of America to the school band."'"' He further pointed out that the school's evidence of substance abuse came from a school survey that provided data on students who claimed to have used a particular substance but did not specify if they participated in

144. Id.

145. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 988 (Ind. 2002) (quoting N.J. v. T.L.O., 469 U.S. 325, 343 (1985)).

146. Id. at 987.

147. Id. at 988.

148. Id. at 989.

149. Id. at 989 (quoting Vernonia v. Action, 515 U.S. 646, 649 (1995)).

150. Id.

151. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 989 (Ind. 2002).

Random Drug Testing in Secondary Schools

No. 2]

375

any of the activities covered by the policy.15 2 In addition, Justice Boehm stated that "the testing intrudes on students who in no way qualify for the lessened expectation of privacy some cases [such as Vernonia] have attributed to athletes."'

3.

Chandler v. Miller

The third case Justice Boehm addresses, Chandler v.

Miller,'54 is of particular importance as it originated in Georgia.' 5 Although this case dealt with drug testing of potential candidates for political office and not student drug testing, as discussed in Section II-D of this comment, the Supreme Court further explained how to apply the "special needs" doctrine.' 5 6 4.

The Indiana School's Policy Does Not Meet the 'Special Needs' Requirement

Applying the "special needs" analysis to the Indiana school policy in light of T.L.O., Vernonia, and Chandler, Justice Boehm concluded that the drug testing policy was unconstitutional.

First, focusing on the student's privacy interests, Justice Boehm agreed with the notion that schools stand in the place of parents and guardians regarding matters of conduct and discipline but disagreed that this supported 152. Id.

153. Id. 154. Chandler v. Miller, 520 U.S. 305 (1997).

155. Linke, 763 N.E.2d at 989.

156. Chandler, 520 U.S. at 323; Linke, 763 N.E.2d at 989. In Chandler, the Supreme Court struck down a Georgia statute that required certain candidates for public office to submit to drug testing. Chandler, 520 U.S. 305. In his dissent in Linke, Justice Boehm noted the Supreme Court found the Georgia statute unconstitutional because "Georgia's plan to screen candidates for public office failed to address a 'concrete danger."' Linke, 763 N.E.2d at 989. Specifically, the Chandler Court explained that there was nothing in the record to suggest the hazards argued by the state were "real and not simply hypothetical for Georgia's polity." Chandler, 520 U.S. at 323. The Court also stated that Georgia's statute was unconstitutional because the "requirement was not designed to identify drug users, it was feasible, within the environment of public office, to note erratic conduct that would lead to a suspicion of drug use and the risk to public safety was neither substantial nor real." Id.

John MarshallLaw Journal

376

[Vol. III

implementing a drug testing policy when student conduct and In addition, when the school discipline were not at issue.' carried out searches and other disciplinary functions in accordance with such policies, the school was still acting as a representative of the state and "not merely as surrogates for the parents."'

The dissent also addressed the majority's argument that students consent to the searches by participating in privileged activities.15 9 Although students have the choice to participate in alternate assignments, thereby revoking their "consent" to the drug test, they are denied the opportunity to perform in public with the rest of the group. 6 o The student may have a high grade in the particular "for-credit" activity, but they will have a Justice Boehm "gaping void in performance experience."' analogized that an "aspiring vocalist's" appearance in a public performance is akin to a future math major's election to take calculus as opposed to the minimal requirement of algebra.' 62 Justice Boehm agrees that it may be necessary to test certain groups, such as athletes, due to safety concerns, when there is a concrete reason to do so, but the students simply being "role models" within the school is not reason enough.' 6 As the U.S Supreme Court stated in Chandler, if the need to "set a good example" was sufficient to overcome a Fourth Amendment objection, then the explanations the Court made in prior cases, such as Vernonia, "ranked as 'special' wasted many words in entirely unnecessary, perhaps even misleading, elaborations."' " The dissent further explains that the school's purpose is to educate, "not to monitor an arbitrarily defined category of students for the use of drugs, alcohol or nicotine . . . .

Testing that is necessary to conduct education, such as in Vernonia where the students were disrupting classroom 157.

158.

159.

160.

161.

Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 990 (Ind. 2002).

Id. Id. Id. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 990 (Ind. 2002).

162. Id. 163. Id. at 991-92.

164. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 992 (Ind. 2002) (quoting Chandler v. Miller, 520 U.S. 305, 322 (1997)).

165. Id. at 993.

No. 2]

Random Drug Testing in Secondary Schools

377

activities, coupled with an "immediate crisis prompted by the sharp increase" in student drug use, is permissible.166 Specifically, the Indiana policy of simply purporting to prevent drug use, if it were a legitimate objective, "gives reason for [the school] to test every student."l6 7 Blanket testing was not sanctioned by the Court in Vernonia, and if deterrence were the only relevant consideration, Justice Boehm posits it would have led to blanket testing of children in public schools.'16 The final factor in the "special needs" doctrine, as announced by the Vernonia decision and discussed by Justice Boehm in his dissent, is the nature and immediacy of the school's concern and the efficacy of its testing program in addressing it.169 Justice Boehm stated that "special need" means more than just asserting that a school has a drug problem and thereafter imposing random testing on "any student engaged in extra- or co-curricular activit[ies]."l7 0 Further, a drug problem in the student population in general does not demonstrate a correlation between drug use among such students and drug testing students involved in extra-curricular activities.17 ' The school in this instance "has not proven, or even attempted to prove, that a correlation exists between drug use and those who engage in extracurricular activities or drug use and those who drive to school."' 72 Simply put, a program that tests these broad categories allows for drug testing of "all but the most uninvolved and isolated students."''

C. The Seventh Circuit's Concerns RegardingStudent Drug Testing In his dissent, Justice Boehm also discusses the Seventh Circuit opinion in Joy v. Penn-Harris-MadisonSchool Corp.'74 166.

167.

168.

169.

170.

171.

172.

173.

174.

2000).

Id. at 993 (quoting Chandler,520 U.S. at 319).

Id. Id. Id. at 994 (quoting Vernonia v. Acton, 515 U.S. 646, 660 (1995)).

Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 994 (Ind. 2002).

Id. at 995.

Id. Id. Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052 (7th Cir.

378

John MarshallLaw Journal

[Vol. III

Although Joy was decided prior to Earls, and Earls undoubtedly cleared up several unresolved issues announced in Joy, the opinion expresses several concerns regarding student drug testing.

The drug testing policy in Joy covered a variety of individuals, including students involved in extracurricular activities and students who drive to school. The school also tested for a variety of substances including drugs, alcohol, and nicotine."'7 The Seventh Circuit used the reasoning as set forth in Vernonia and found that the policy did not satisfy any of the factors announced by the Vernonia opinion.1 6 However, the court did uphold the policy on the grounds of stare decisis.'7 7 More importantly, however, is the court's discussion of how troubling the Joy opinion was for them."' The judges expressly stated that "students involved in extracurricular activities should not be subject to random, suspicionless drug testing as a condition of participation in the activity." 7 9 They further expressed concern regarding a transition to suspicionless testing In fact, "[c]ounsel admitted that drug testing of all students.' the entire student population on a suspicionless basis was the Although the school's counsel tried to ultimate goal.""' backtrack and focus on the voluntariness of students consenting to drug testing in exchange for a privilege, counsel again admitted later in oral argument that schools should be allowed to drug test everybody.182 In response to this, the court stated that "[i]f schools tested all students on a suspicionless basis, the

Id. at 1054-55.

Id. at 1058-62.

Id. at 1065.

Id. at 1066-67.

Id. at 1066.

180. Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1066 (7th Cir. 2000).

181. Id. ("THE COURT: So the slippery slope argument ought to be very much in our minds. I mean, you'll be back here in another year with another school district who wants to test everybody. And you will say there is no principled distinction between the holding you get today and the next case.

It's just a matter of time till it gets here. Right? COUNSEL: Absolutely, your honor.").

182. Id. 175.

176.

177.

178.

179.

No. 2]

Random Drug Testing in Secondary Schools

379

element of voluntariness obviously would not be present."183 Although the court ultimately upheld the policy on stare decisis grounds, the court noted that "the case has yet to be made that a urine sample can be the 'tuition' at a public school."l84 Just as the court in Joy was apprehensive in their holding and ultimately only upheld the policy based on stare decisis, Georgia Courts would be bound by prior precedent. The U.S. 85 and Earlsl86 set out the Supreme Court opinions of Vernonia1 broadest scope of school's ability to enact a drug testing policy, and Georgia is bound to follow the reasoning in both opinions.

IV. GEORGIA SCHOOLS' DRUG TESTING POLICIES Schools around the country have implemented drug testing policies in secondary schools, and Georgia is no exception.'"

Indeed, the Georgia Department of Education provides funding for the implementation of such policies.188 Title IV, Part A, of the "Safe and Drug Free Schools and Communities Act," implemented by the Georgia Department of Education, governs eligibility for funding to support programs that prevent, among other things, the illegal use of alcohol, tobacco, and other drugs.'" 9 Activities supported by Title IV funds include drug testing; so long as the policy is "consistent with the [F]ourth [A]mendment to the Constitution of the United States, students may be tested for illegal drug use (including at the request of, or with the consent of, a parent or legal guardian of the student), if the local educational agency elects to so test or inspect." 90 Policies must conform to the Constitution, as interpreted by the Supreme Court, to receive Title IV funding.19 ' Although 183. Id. 184. Id. at 1067.

185. Vernonia v. Acton, 515 U.S. 646 (1995).

186. Bd. of Educ. v. Earls, 536 U.S. 822 (1997).

187. See, e.g., Yamaguchi, Johnston & O'Malley, supra note 1; see also Table of Drug Testing Policies in Georgia infra note 251.

188. Ga. Dept. of Educ., Title IV, Part A, Safe and Drug Free Schools and Communities, http://www.doe.kl2.ga.us/sia-titleiv.aspx (last visited Mar. 22, 2010) [hereinafter Title IV, Part A].

189. Id. 190. Id. 191. Id.

380

John MarshallLaw Journal

[Vol. III

some Georgia schools are implementing drug testing policies that do comply with the interpretation of the Fourth Amendment as held in Vernonia and Earls,192 others are pushing the constitutional limits.193 Due to the lack of state and Eleventh Circuit Court opinions, Georgia has a unique opportunity to shape future law regarding drug testing policies within the state.

The Search and Seizure Clause in Georgia's Constitution is almost identical to the Fourth Amendment of the United States Constitution.194 Although the language is almost identical, the analysis that the Georgia courts have used to interpret the Search and Seizure Clause of the Federal Constitution and its own state constitution have differed.195 In Gary v. State, the Supreme Court of Georgia recognized that it had an ability to impose a higher standard on searches and seizures than required by the Federal Constitution, and thus chose to do so. 96 In light of Georgia's heightened protection of Fourth Amendment rights for its citizenry, the narrow approach as outlined in Justice Boehm's dissent in Linke,19 7 along with the concerns expressed by the Seventh Circuit Court panel in Joy would likely assist the Georgia courts and the Eleventh Circuit in deciding cases involving student drug testing. Based on Gary, Georgia courts would likely find that the Search and Seizure Clause of the Georgia Constitution provides greater protection than the Federal Constitution, in regard to drug 192. See Table of Drug Testing Policies in Georgia infra note 251 (requiring drug testing based on individualized suspicion in Catoosa County and drug testing for activities that require an annual physical in White County).

193. See Table of Drug Testing Policies in Georgia infra note 251 (listing all policies in Georgia). A discussion of the constitutionality of specific policies will follow in this section.

194. GA. CONST. art. I, ยง 1, para. XIII (2008) ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.").

195. See Gary v. State, 422 S.E.2d 426 (Ga. 1992) (imposing greater requirements upon its law enforcement officers [in regards to Fourth Amendment] than that required by U.S. Constitution, as interpreted by U.S. Supreme Court).

196. Id. at 428 (quoting Cooper v. California, 386 U.S. 58 (1967)).

197. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 987-97 (Ind. 2002).

No. 2]

Random Drug Testing in Secondary Schools

38 1

testing students, and adopt an approach similar to Justice Boehm's in Linke.'98 Such an approach would leave several Georgia school policies unconstitutional in their current form.* The Brantley County School System has such a policy. 200 The drug testing policy complies with some of the requirements as set forth in the relevant U.S. Supreme Court opinions, such as methods for collecting the sample, techniques of testing of the sample, and the notification procedures. However, Brantley has impermissibly extended the policy to include not only student athletes and students participating in competitive extracurricular activities, but students who apply for parking permits and students involved in "extra-curricular activities" in general.2 0 1 First, it should be noted that according to the Fourth Amendment the search must be reasonable 2 02 in that "the interests of the students will be invaded no more than necessary to achieve the legitimate end of preserving order in the schools."2 03 The Supreme Court has held however, that school districts attempting to implement suspicionless drug testing for all students will not pass muster under the Fourth Amendment unless there is an articulated exception to the normal requirement of individualized suspicion.20 4 Here, focusing on the "special needs" doctrine, the school district would have to articulate how to meet this narrow exception to the Fourth Amendment.2 05 In this instance, there is no indication of a "special need" within the school district itself as there has been no challenge to the policy. However, as Justice Boehm makes

198. Id.

199. See Table of Drug Testing Policies in Georgia infra note 251 (listing all policies in Georgia).

200. BRANTLEY COUNTY BOARD OF EDUCATION, STUDENT DRUG TESTING POLICY,

http://www.brantley.kl2.ga.us/education/components/sectionlist/default.php ?sectiondetailid=10284&category=O (last visited Mar. 22, 2010).

201. Title IV, Part A, supra note 188.

202. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 646-52 (1995) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617 (1989)).

203. N.J. v. T.L.O., 469 U.S. 325, 343 (1985).

204. Chandler v. Miller, 520 U.S. 305, 318 (1997).

205. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 987 (Ind. 2002).

382

John MarshallLaw Journal

[Vol. III

clear, testing only for deterrence is insufficient as this would lead to blanket testing of children in public schools.20 6 The policy states that it "applies to all students involved in extra-curricular activities in grades nine through twelve and in parking on the Brantley County High School Campus, which are all voluntary activities."20 7 While Brantley is correct in identifying that these activities, including parking, are voluntary activities, this was not the deciding factor in either Vernonia20 8 or Earls.209 In addition, following Justice Boehm's reasoning in his dissent, students aspiring to be vocalists are no more volunteering than a student aspiring to be a mathematician.2 10 Students aspiring to be dancers or actors need to participate in performances provided for by the extra-curricular activities at school just as aspiring mathematicians must take certain classes to further their career. Therefore, the "voluntary" element alone cannot justify the intrusiveness of such a search as drug testing.

Further, in Vernonia2 1 1 and Earls,2 12 the Court focused on the specific facts of each policy, which do not apply to the parking aspect contained in the Brantley policy. For instance, in Vernonia, the Court emphasized the fact that student athletes must change prior to practice, or an event, and shower and change afterwards. Again typical locker rooms are communal and offer little privacy.2 13 School parking permits clearly do not parallel an athlete's privacy concerns. A student driving to and from school poses none of the same issues regarding privacy in order to "participate" in that activity.

The Court in Vernonia also noted that student athletes subject themselves to a higher degree of regulation than students generally.214 While one may argue that students with parking permits are subject to greater regulation, the assertion lacks merit. For instance, in order for the school to argue that the student is subject to greater regulation, they must have a parking 206.

207.

208.

209.

210.

211.

212.

213.

214.

Id. at 993.

Title IV, Part A, supra note 188.

Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

Bd. of Educ. v. Earls, 536 U.S. 822 (2002)..

Linke, 763 N.E.2d at 990.

Vernonia, 515 U.S. 646.

Earls, 536 U.S. 822.

Vernonia, 515 U.S. at 657.

Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 657 (1995).

No. 2]

Random Drug Testing in Secondary Schools

383

permit policy. Brantley states in their drug-testing policy that it applies to "parking," however; there is no specific policy for "parking."21 5 Although some schools may require a minimum grade point average in order to keep a parking permit, this still would not be enough to subject them to more regulation than students generally. Students generally must maintain a specific grade point average before being placed on academic probation.

Although students with parking permits would lose their permit, other students without parking permits similarly face consequences as a result of a faltering grade point average.

Further, even alcohol restrictions and gun free zones do not subject parking students to more regulation because these restrictions apply equally to all students. Simply obtaining a parking permit from the school would not be enough to subject the student to greater regulation than the student body.

Further, student drivers do not need a physical exam, as student athletes do.2 16 Although students seeking a parking permit might be required to maintain a minimum grade point average, they would not be required to comply with any "rules of conduct, dress, training hours and related matter as may be established for each sport by the head coach and athletic director with the principal's approval."21 7 Students "who voluntarily participate in school athletics" should expect intrusions into their privacy, however, students who are simply parking on school property are not subject to the same level of scrutiny and therefore should not expect intrusions into their privacy.2 18 Although the school might persuasively argue that this is a safety concern, as driving in the parking lot is an activity which would implicate the need for drug testing to keep students safe, this would only bolster the argument that the school is simply extending the drug testing policy to blanket the majority, if not all students in the school system. As the Court noted in Earls, the "safety interest furthered by drug testing" is substantial for

215. BRANTLEY

COUNTY

BD.

OF

EDUC.,

http://www.brantley.kl2.ga.us/education/components/docmgr/default.php?se ctiondetailid=l0374& (last visited Mar. 22, 2010).

216. Vernonia, 515 U.S. at 657.

217. Id. 218. Id.

John MarshallLaw Journal

384

[Vol. III

all children.2 19 Therefore, if safety alone were enough to validate drug testing students who obtain a parking permit, the school could effectively test every student because safety does not apply to parking students only but can be broadly used to apply to every student.

Further, Brantley runs afoul of the limits the U.S. Supreme Court has placed on drug testing students in secondary schools by testing students in "extra-curricular" activities in general. 2 20 Although the U.S. Supreme Court did not articulate the reason for differentiating between using the language "competitive" and "non-competitive extra-curricular activities," the Court expressly stated in Earls that a policy applying to "competitive extra-curricular activities" was constitutionally permissible.2 2 1 Limiting drug testing to "competitive" extra-curricular activities as opposed to any extra-curricular activity is consistent with the holding in Vernonia, which pointed out the importance of the policy being narrow.22 2 Also, by including all extra-curricular activities and parking, the Brantley County school system is effectively able to test the majority of the student population, instead of the limited testing authorized by the U.S. Supreme Court.223 By testing students who obtain parking permits and students involved in all extracurricular activities, the school only excludes students choosing not to obtain parking permits or become involved in any school program. As Justice Boehm argues "a program that tests these for 'all but the most broad categories allows for drug testing 224 students."' isolated and uninvolved Morgan County High School225 and the Camden County School System 226 employ similar drug testing policies.

219.

220.

221.

222.

Bd. of Educ. v. Earls, 536 U.S. 822, 836 (2002).

BRANTLEY COUNTY BD. OF EDUC., supra note 215.

Earls, 536 U.S. at 831.

Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 662 (1995).

223. Id. 224. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 995 (Ind. 2002).

225. MORGAN COUNTY HIGH SCHOOL, DRUG SCREENING PROCEDURES, https://eboard.eboardsolutions.com/ePolicy/policy.aspx?PC=JCDACR%281%29&Sch=4119&S=4119&RevNo=1.17&C=J&Z=R (last visited

Mar. 22, 2010).

226. CAMDEN COUNTY SCHOOLS, TESTING,

GUIDELINES FOR MANDATORY DRUG

No. 2]

Random Drug Testing in Secondary Schools

385

However, the policy in Camden County specified that it applied to "competitive interscholastic activities," including "all competitive athletics, band, and literary competitions sanctioned

by GHSA [Georgia High School Sports Association]."22 7 Interested parties debated the Camden County policy before it was adopted as the school was concerned with complying not only with the requirements of the Fourth Amendment regarding drug testing, but also with the privacy of their students.2 28 However, just as the Brantley School System, the Camden County policy includes parking permits in their "groups" of students subject to suspicionless drug testing.229 The policies discussed are not unique in Georgia. As indicated in the table following this comment, there are several policies in schools throughout Georgia extending drug testing beyond the contemplation of the U.S. Supreme Court.

However, Georgia has alternatives to employ rather than extending drug testing beyond what has been expressly allowed in Vernonia23 0 and Earls.231 V. POSSIBLE CONSTITUTIONAL ALTERNATIVES

Georgia school systems have impermissibly extended the Supreme Court's holdings regarding suspicionless drug testing in secondary schools. If they continue to erode student's Fourth Amendment rights, the concern the Seventh Circuit expressed in Joy regarding a transition to suspicionless testing of all students may become a reality in Georgia.23 2 As such, the school systems must revise their policies in order to come into compliance with United States and Georgia Constitutions. https://eboard.eboardsolutions.com/ePolicy/policy.aspx?PC=JCDACR&Sch=4025&S4025&RevNo=1.25&C=J&Z=R (last visited Mar. 22, 2010).

227. Id. 228. Camden County Drug Policy Debate Article, FLA. TIMES UNION, 2005, 14, July http://www.redorbit.com/news/education/174520/camden-school-board-tabl esdecision on-drug-testing-debate-will.

229. See Table of Drug Testing Policies in Georgia infra note 251 (listing all policies in Georgia).

230. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

231. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

232. Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1066 (2000).

386

John MarshallLaw Journal

[Vol. III

Possible alternatives include allowing "limited" testing as articulated in Vernonia23 3 23234noe and Earls, or, as noted by Eric Miller in his comment regarding suspicionless drug testing, enact a "suspicion-based scheme" to test the entire student

body. 235 The simplest solution for Georgia school systems is to come into compliance by revising their drug testing policies in accordance with the Vernonia23 6 and Earls237 opinions and by following Justice Boehm's dissent in Linke.2 38 The Court was clear that suspicionless drug testing of students was constitutionally permissible for student athletes and competitive extra-curricular activities. 239 Justice Boehm agreed with the need to test certain groups as long as there was a concrete reason to do so that complied with the "special needs" doctrine as articulated by the U.S. Supreme Court. 240 Although some school systems, such as Camden County, have attempted to limit their testing of students involved in extra-curricular activities to only those involved in competitive extra-curricular activities,24 1 other school systems have gone even further. For instance, the Brantley County School System, should revise its policy to reflect testing for only competitive extra-curricular activities.

The main issue, however, which is prevalent in Georgia school drug testing policies, is testing students holding parking permits. As mentioned above, this is beyond the holding of the Supreme Court in both Vernonia242 and Earls.2 43 This aspect of the drug testing policy simply needs to be eliminated.

233. Vernonia, 515 U.S. 646.

234. Earls, 536 U.S. 822.

235. See generally Eric N. Miller, Suspicionless Drug Testing of High School and College Athletes After Acton: Similarities and Diferences,45 U. KAN. L. REv. 301 (Nov. 1996).

236. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

237. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

238. Linke v. Nw. Sch. Corp., 763 N.E.2d 972 (Ind. 2002).

239. Vernonia, 515 U.S. at 662; Earls,536 U.S. at 831.

240. Linke, 763 N.E.2d at 992.

241. CAMDEN COUNTY SCHOOLS, supra note 226.

242. Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).

243. Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

No. 2]

Random Drug Testing in Secondary Schools

387

If Georgia school systems want to test students that hold parking permits, they have another alternative. The school systems could implement a policy that conducts suspicion-based testing of the entire student body. Although the Supreme Court has repeatedly stated that this would not be effective because parents are not likely willing to accept "accusatory drug testing," the expense of defending lawsuits for the school system is high, and it puts pressure on teachers and administrators to "spot" drug abuse, it does provide a constitutional alternative. 2" Indeed, some argue that because the students and teachers interact closely on a daily basis, they are in the best position to note changes in the student's behavior and would be able to note suspicious behavior.245 Other proponents of suspicion-based testing argue that there is some indication that parents believe suspicion-based testing is the school's role, and suspicionless testing the parent's role.246 VI. CONCLUSION The issue faced by many secondary schools is how to implement a drug testing policy that is constitutionally permissible. Because many schools in Georgia have enacted drug testing policies that encompass a vast majority of the student population, and are therefore extending testing beyond the "limited" testing as proscribed in Vernonia24 7 and Earls,2 48 the policies are unconstitutional. Due to the lack of case law in Georgia and the Eleventh Circuit, Georgia has the opportunity to shape future case law regarding student drug testing.

If Georgia chooses to follow the reasoning of Justice Boehm in Linke24 9 and provide greater Fourth Amendment protections to its secondary school students, Georgia school systems need to revise their current drug testing polices in order to come into compliance with the United States and Georgia Constitutions.

244. Vernonia, 515 U.S. at 663-64.

245. Miller, supra note 235, at 327.

246. Michael Winerip, Drawing the Line on Drug Testing, N.Y. TIMES, http://www.nytimes.com/2008/ll/23/nyregion/new2008, 19, Nov. jersey/23Rparent.html?_r 1l&refrnyregion.

247. Vernonia, 515 U.S. 646.

248. Earls, 536 U.S. 822.

249. Linke v. Nw. Sch. Corp., 763 N.E.2d 972 (Ind. 2002).

John MarshallLaw Journal

388

[Vol. III

TABLE OF DRUG TESTING POLICIES IN GEORGIA250

COUNTY Brantley

POLICY2 5 All students involved in extra-curricular activities in grades 9 through 12 and in parking on the Brantley County High School campus

Bremen City Any student enrolled in Bremen High School (Haralson) who participates in or applies for participation in any interscholastic athletic activity, any interscholastic extra-curricular activity or any student who applies for a parking permit and intends on parking a vehicle on school grounds I at Bremen High School 252

250. eBoard Main Page, https://eboard.eboardsolutions.com/ (follow "other eBoard Sites" and select county for hyperlink). The following is a list of counties with no school drug testing policy: Appling, Athens-Clarke, Atkinson, Atlanta Public Schools (Fulton), Augusta-Richmond, Bacon, Baker, Baldwin, Banks, Barrow, Bartow, Ben Hill, Berrien, Bleckley, Brooks, Bryan, Bulloch, Burke, Calhoun, Calhoun City (Gordon), Candler, Carroll, Carrollton City (Carroll), Cartersville City (Bartow), Chatham, Chattooga, Cherokee, Clayton, Clinch, Cobb, Coffee, Colquit, Columbia, Columbus-Muscogee, Commerce City (Jackson), Coweta, Crawford, Crisp, Dade, Dalton City (Whitfield), Dawson, Decator City (DeKalb), DeKalb, Dodge, Dooly, Dougherty, Dublin City (Laurens), Early, Echols, Elbert, Emanuel, Evans, Fayette, Floyd, Forsyth, Franklin, Fulton, Gainesville City (Hall), Gilmer, Glascock, Glynn, Gordon, Grady, Greene, Gwinnet, Habersham, Hall, Hancock, Harris, Hart, Henry, Houston, Jackson, Jeff Davis Jefferson, Jefferson City (Jackson), Jenkins, Johnson, Jones, Lamar, Lanier, Lee, Liberty, Lincoln, Long, Lowndes, Lumpkin, Madison, Marietta City (Cobb), McDuffie, Mclntoch, Meriwether, Miller, Mitchell, Monroe, Murray, Newton, Paulding, Peach, Pelham City (Mitchell), Pickens, Pike, Polk, Pulaski, Quitman, Rabun, Randolph, Rome City (Floyd), Rockdale Buts, Screven, Social Circle City (Walston), Spaulding, Stephens, Stewart, Sumter, Talbot, Tattnall, Tift, Thomas, Toombs, Treutlen, Troup, Upson Walton, Valdosta City (Lowndes) Ware, Warren, Washington, Wayne, Webster Wilcox, Worth. Unable to Verify Policy: Bibb, Buford City (Gwinnett), Charlton, Chattahoochee, Clay, Decatur, Irwin, Jasper, Laurens, Macon, Marion, Montgomery, Oglethorpe, Pierce, Schley, Seminole, Taliaferro, Taylor, Telfair, Terrell, Thomasville City (Thomas), Turner, Twiggs, Vidalia City (Toombs), Wheeler, Wilkes, Wilkinson.

251. eBoard Main Page, https://eboard.eboardsolutions.com/ (follow "other eBoard Sites" and select county; then follow "Policies" for hyperlink).

252. Bremen High School, http://www.bremencs.com/boardpolicy.html

No. 2]

Random Drug Testing in Secondary Schools

Camden

Catoosa

389

All students involved in competitive interscholastic activities in grades 7 through 12 and in parking on the Camden County High School campus reasonable Official has individualized of or is has possession a student suspicion that under the influence of a drug or alcohol; student athletes; marching band members

Chickamauga City (Walker)

Cook Douglas

All students who are competing on interscholastic athletic teams or in band will be screened for substance usage prior to or during their competitive season; Students involved in any extracurricular activities such as Quiz Bowl, Literacy Meet, etc., and those who drive to school and park a vehicle on campus will not be subject to an initial screening but may be subject to random drug testing throughout the school year All potential student athletes and students involved in extracurricular school activities All students who wish to participate in any privileged activities be it, interscholastic interscholastic any activity, athletic extracurricular activity, or any student who applies for a parking permit and intends to park a vehicle on school grounds of the Douglas County School System

Effingham

Fannin

All high school students who participate in a activity extracurricular school-sponsored (includes parking a vehicle on school property) Students who seek to participate in a schoolsponsored extracurricular activity, park a car on Fannin County School System property, or whose parents have chosen to utilize the opt-in option available to them

(last visited Mar. 22, 2010) (follow "Students" for hyperlink).

390 Haralson

John MarshallLaw Journal

[Vol. III

All student who wish to participate in any any athletic activity, interscholastic interscholastic extra-curricular activity or any student who applies for a parking permit and intends parking a vehicle on school grounds at Haralson County High School

Heard

Morgan

Oconee

Putnam

All students who wish to participate in any interscholastic athletic activity (including cheerleading and marching band) or who seek a campus parking permit at Heard County High School All students who wish to participate in any GHSA governed interscholastic activity or any student who applies for a parking permit and intends to park a vehicle on school grounds at Morgan County High School All students who wish to participate in any Georgia High School Association (GHSA) governed interscholastic activity or any student who applies for a parking permit and intends to park a vehicle on school grounds at North Oconee High School or Oconee County High School All students who wish to participate in any GHSA governed interscholastic activity or any student who applies for a parking permit and intends to park a vehicle on school grounds at Putnam County High School

Towns

All students who wish to participate in any any athletic activity, interscholastic interscholastic extra curricular activity or any student who applies for a parking permit and intends to park a vehicle on school grounds at Towns County High School

Trion City Students participating in interscholastic (Chattooga) activities, extra curricular activities, and/or parking on the campus of Trion City Schools

No. 2]

Random Drug Testing in Secondary Schools

Union

Walker

White

391

High school students participating in any interscholastic athletic activities, extracurricular activities, and/or making application for a permit to park a vehicle on school grounds (random testing) 253 All students who wish to participate in any activity, any athletic interscholastic interscholastic extracurricular activity, or any student who applies for a parking permit and intends to park a vehicle on school grounds of Walker County Schools All students who participate in any sports activity that requires an annual physical as a condition of participation

Whitfield

Initial

and

random

testing

of

students

participating in extracurricular activities

Amanda L. Dixson

253. http://www.union.kl2.ga.us/board (Follow "UC Drug Test Policy" for hyperlink). * J.D., Atlanta's John Marshall Law School (2010); B.A., University of Iowa (2006). I would like to thank Professors Kamina Pinder and Kathleen Burch for their direction and advice, and Jeni Martin and Kristi Barbre for their invaluable research and editing assistance. I would also like to thank my husband Jacob for his unwavering love and support throughout this entire process.

TIGHTENING THE BIBLE BELT: TEACHING THE GOOD BOOK IN GEORGIA'S PUBLIC SCHOOLS

"The breach of neutrality that is today a trickling stream may all too soon become a raging torrent."'

I.

INTRODUCTION

II.

HISTORY OF THE BIBLE IN PUBLIC SCHOOLs

........

.............................. .

............. 393

....................

394

The Supreme Court'sEstablishment Clause ...................................... 396 Jurisprudence B. Lower CourtInterpretationsof the Establishment 400 .......... .........................

Clause Tests.

C. Modern Attempts to Secularize the Teaching of the 402 ..................................

Bible in Public Schools..

A.

III.

THE CASES FOR AND AGAINST STUDYING "THE GOOD BOOK" ..................................

IN PUBLIC SCHOOLS

....... 406

IV.

O.C.G.A. ยง 20-2-148

V.

CONSTITUTIONAL QUESTIONS

VI.

RECOMMENDATION..........................................

419

VII.

CONCLUSION.................

420

I.

................................ .................................

412 416

INTRODUCTION

Growing up in the South, one learns very quickly that there are two things never to be discussed at the dinner table: politics and religion. So naturally, when the two come together, sparks tend to fly. It is for this very reason that our Constitution addresses the appropriate nature of the relationship between 1. Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963).

394

John MarshallLaw Journal

[Vol. III

government and religion in its First Amendment.2 Of course, that has not stopped endless litigation thrown before the courts of this land concerning that relationship, and it has not stopped the high courts of our great country from avoiding laying down clearly defined rules regarding that relationship. It would seem that the lesson of the dinner table has been heard loud and clear.

One of the latest debates concerning the relationship between government and religion is the constitutionality of Bible classes in public schools. Several states, including Georgia, have passed legislation authorizing and funding public school courses that teach about the Bible.' Part II of this comment addresses the historical backdrop of religion in public schools, including an analysis of the legal standards used in evaluating complaints under the Establishment Clause. Part III offers an evaluation of the arguments for and against the inclusion of religious study, and in particular the study of the Bible, in American public schools. Parts IV and V examine Georgia's Bible courses and the possible constitutional issues surrounding them. Parts VI and VII conclude that the courses may be constitutionally suspect and present a recommendation as to how the State could alter the courses in order to avoid costly litigation.

II. HISTORY OF THE BIBLE IN PUBLIC SCHOOLS The inclusion of religion in American public schools has

been a source of controversy since the nineteenth century. In the early days of public schools, it was commonly accepted that Protestant values were "the sole authoritative moral font, to be incorporated wholesale into the educational program."s As the American public school system evolved, a rift developed between Protestants and Catholics over the role of religion in the classroom.' This early, internal clash amongst Christians 2. U.S. CONST. amend. I. 3. O.C.G.A. ยง 20-2-148 (2009).

4. McCollum v. Bd. of Educ., 333 U.S. 203, 214-16 (1948) (Frankfurter, J., concurring).

5. Marc 0. DeGirolami, The Problem of Religious Learning, 49 B.C. L. REv. 1213, 1216-17 (2008).

6. Caroline Elizabeth Branch, Unexcused Absence: Why Public Schools in Religiously Plural Society Must Save a Seat for Religion in the Curriculum, 56 EMORY L.J. 1431, 1435 (2007) ("Protestant and Catholic

No. 2]

Tightening the Bible Belt

395

would later grow to a more general resistance to any sectarian Substantial growth in influence in public schools.' gave way to a new immigration and industrialization understanding of public schooling in America.' The need for an ever-more educated citizenry, along with an increasingly diverse society, placed tremendous pressure on the young, public school system.9 As Justice Black stated in McCollum v.

Board ofEducation: The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public schools must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government irreconcilable pressures by religious groups, of religion from censorship and coercion however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home, indoctrination in the faith of his choice.'o Christianity disagreed fundamentally on the nature and content of Christian teachings, and Catholic discomfort with the Protestant aspects of common schooling concluded in Catholic withdrawal to privately funded parochial schools.").

7. See McCollum, 333 U.S. at 215-31 (Frankfurter, J., concurring), for a detailed history of the development of the public school system and its relationship with religion.

8. Id. at 215-16 ("Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instruments but especially through its educational agencies, was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its people.").

9. Id.

10. McCollum v. Bd. of Educ., 333 U.S. 203, 216-17 (1948); see also id. at 231 (Frankfurter, J., concurring) ("The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the state is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart.").

396

John MarshallLaw Journal

[Vol. III

By 1875, the notion that the public school system needed to be isolated from entanglements with the Church was so commonly accepted that President Grant addressed the issue in a speech to the Convention of the Army of the Tennessee." In fact, "every State admitted into the Union since 1876 was compelled by Congress to write into its constitution a requirement that it maintain a school system 'free from sectarian control."'l 2 A. The Supreme Court'sEstablishment ClauseJurisprudence "The Court's historic duty to expound the meaning of the Constitution has encountered few issues more intricate or more demanding than that of the relationship between religion and the public schools.""

The complexity of the issue is only exacerbated by the ever-evolving nature of the public school system in America.14 It should be no surprise then that the Supreme Court of the United States has offered little clear guidance as to the appropriate line to draw between public schools and sectarian influence. Even so, the cases that have gone before the Court have often elicited substantial and illuminating opinions from various Justices, as evidenced by the discussion below.

It has long been settled that the mandates of the First Amendment were made applicable to the States by the Fourteenth Amendment." The Court in Everson v. Board of 11. Id. at 217-18.

12. Id. at 220.

13. Sch. Dist. v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring).

14. Id. at 238-39 ("[T]he structure of American education has greatly changed since the First Amendment was adopted. In the context of our modem emphasis upon public education available to all citizens, any views of the eighteenth century as to whether the exercises at bar are an 'establishment' offer little aid to decision. Education, as the Framers knew it, was in the main confined to private schools more often than not under strict sectarian supervision. Only gradually did control of education pass largely to public officials. It would, therefore, hardly be significant if the fact was that the nearly universal devotional exercises in the schools of the young Republic did not provoke criticism.").

15. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) ("The fundamental concept of liberty embodied in that [Fourteenth] Amendment embraces the

No. 2]1

Tightening the Bible Belt

397

Education'" invoked strong language in support of its notion that the "wall of separation" between religion and state must be kept high." Lest his separationist attitude be considered hostile to religion, Justice Black made it clear that this wall also served to protect religion from the government.'" Justice Jackson echoed this dual purpose in his dissent." Only a year later, in McCollum, Justice Black reasserted that "the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere."20 The separationist language of Everson was "firmly maintained" in cases2 1 leading up to and including School District v. Schempp.2 2 But it was soon clear that the ideal of the strict wall, as hypothesized by the separationist movement, was too unworkable in practice to maintain a majority of the Justices on the Court. Good fences, as it were, did not always make good neighbors. liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.").

16. Everson v. Bd. of Educ., 330 U.S. 1 (1947).

17. Id. at 15-18 ("The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."); see also id., 330 U.S. at 31-32 (Jackson, J., dissenting) ("[The purpose of the Establishment Clause] was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.").

18. Id. at 18 ("State power is no more to be used as to handicap religions, than it is to favor them.").

19. Id. at 26-27 ("This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse.") (emphasis added).

20. McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948).

21. See id.; see also Zorach v. Clauson, 343 U.S. 306 (1952).

22. Sch. Dist. v. Schempp, 374 U.S. 203, 217 (1963) (noting that questions concerning separationist theory "seem entirely untenable and of value only as academic exercises").

398

John MarshallLaw Journal

[Vol. III

Writing for the Court in Schempp, Justice Clark suggested that the study of the Bible "for its literary and historic qualities" may be constitutionally permissible so long as the material was presented as part of an objective and secular educational program.23 In his Schempp concurrence that was joined by Justice Harlan, Justice Goldberg laid out the foundations for the accomodationist arguments to come: It is said, and I agree, that the attitude of government toward religion must be one of neutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it. 24 Amidst this battle between separation and accommodation of religion in the public sphere, the Court developed the Lemon 25 test for evaluating Establishment Clause challenges to legislation. In the more recent case of Edwards v. Aguillard,26 the Court summarized the test as: [A] three-pronged test to determine whether legislation First, the comports with the Establishment Clause. legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion.

Third, the statute must not result in an excessive entanglement of government with religion.2 7 The Edwards Court specifically noted that the Lemon test was the appropriate test to use when evaluating legislation affecting public schools. 28 Although state and local school 23. Id. at 225.

24. Id. at 306 (Goldberg, J., concurring).

25. Lemon v. Kurtzman, 403 U.S. 602 (1971).

26. Edwards v. Aguillard, 482 U.S. 578 (1987).

27. Id. at 583.

28. Id. at 583 n.4 ("The Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers, where the Court held that the Nebraska Legislature's practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The

No. 2]

Tightening the Bible Belt

399

boards are generally granted broad discretion in formulating curriculums, their decisions must comport with the requirements of the First Amendment as laid out by the test. 2 9 Although the Lemon test represented a substantial leap forward in the Court's Establishment Clause jurisprudence, it was anything but a bright-line rule. Subsequent cases often required the Court to clarify its own language. "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion."o3 If a statute fails this first prong, no consideration of the additional prongs "While the Court is normally of the test is required." deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a Additionally, "[t]he religious purpose must sham." 32 predominate" in order to justify invalidation. 3 "The primary effect of a government action is somewhat entangled with the purpose analysis, since an impermissible primary effect may simply be the observer's perception of a state purpose to endorse religion."3 Indeed the overlapping nature of the Lemon test's three prongs has prompted the use of alternative tests. Thus, in Agostini v. Felton," Justice O'Connor offered a simpler, two-pronged "endorsement test" in which a statute would be overturned if either its purpose or effect was to advance or prohibit religion.36 In Lee v. Weisman," Justice Kennedy formulated a "coercion test," noting "the heightened concerns with protecting freedom of conscience from subtle Court based its conclusion in that case on the historical acceptance of the practice. Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.") (internal citations omitted).

29. Id. at 583.

30. Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring).

31. Wallace v. Jaffree, 472 U.S. 38, 56 (1985).

32. Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987).

33. Id. at 599.

34. Branch, supra note 6, at 1447.

35. Agostini v. Felton, 521 U.S. 203 (1997).

36. Id. at 231-32.

37. Lee v. Weisman, 505 U.S. 577 (1992).

400

John MarshallLaw Journal

[Vol. III

coercive pressure in the elementary and secondary public schools."" Regardless of the test used, it is clear from the following section that under modem Establishment Clause jurisprudence the analysis will be driven largely by the facts of each individual case.

B. Lower Court Interpretationsof the Establishment Clause Tests Between 1970 and 2002, nine cases involving the teaching of Bible courses were brought before federal courts.39 Of those cases, the reviewing court struck down the classes as unconstitutional seven times.40 In the remaining two cases, portions of the courses were approved while specific sections However, these were struck down as unconstitutional. 4 1 opinions contain very little in the way of expounding upon the Supreme Court's Establishment Clause jurisprudence. Rather, most of the analysis was driven by applying the specific facts to what little guidance the Court had given.4 2 But one of these courts did offer a helpful explanation of the effects prong of the endorsement test. 43 In his opinion, Chief Judge Edgar, citing a prior Sixth Circuit case, stated: In determining the effect of governmental action under the endorsement test, the Court makes an objective determination about whether a reasonable observer would conclude that the government has endorsed religion. This determination has been recognized by the Sixth Circuit as a clarification of the second prong of the Lemon test, which 38. Id. at 592.

39. Frances R. A. Paterson, Anatomy of a Bible Course Curriculum, 32 J.L. &EDUC. 41, 46 (2003).

40. Id. 4 1. Id.

42. See generally Doe v. Porter, 188 F. Supp. 2d. 904 (E.D. Tenn. 2002); Gibson v. Lee County Sch. Bd., 1 F. Supp. 2d. 1426 (M.D. Fla. 1998); Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996); Doe v. Human, 725 F. Supp. 1503 (W.D. Ark. 1989); Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983); Wiley v. Franklin, 497 F. Supp. 390 (E.D. Tenn. 1980); Wiley v. Franklin, 474 F. Supp. 525 (E.D. Tenn. 1979); Wiley v. Franklin, 468 F. Supp. 133 (E.D. Tenn. 1979); Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970).

43. Porter,188 F. Supp. 2d 904.

No. 2]

Tightening the Bible Belt

401

asks whether the principal or primary effect of the governmental action advances or inhibits religion."

While clarifying a portion of the Lemon test, the reasonable observer analysis only further emphasizes that factual analysis is what ultimately drives the discussion. A reviewing court may peruse statutory language, legislative histories, and even established curriculums, but it is inside the classroom itself where constitutionally-suspect behavior may or may not be taking place.

In evaluating the above decisions, Frances R. A. Paterson noted three primary factors surrounding the reviewing court's constitutional analysis of the courses under the Establishment Clause: First, whether the teachers were regular school personnel (considerations included the required qualifications for Bible teachers and the question of who selected the teachers); second, the contemporaneous or historical sponsorship of the courses; and third, whether the classroom instruction was sufficiently secular and non-devotional in nature.4s The first two of these factors offer what appears to be a bright, if perhaps a shade dim, line rule for school boards. It is clear that a reviewing court is likely to overturn a program with any sort of clear tie to a religious organization.4 6 44. Id. at 910 (internal quotations and citations omitted).

45. Paterson, supra note 39, at 47.

46. Porter, 188 F. Supp. 2d at 912 ("In addition to the content of the BEM program, the wholesale delegation of the administration of the program to Bryan College, a decidedly religious institution, by itself results in an impermissible entanglement of government and religion."); Herdahl, 933 F. Supp. at 593 (noting involvement of Protestant churches at program's inception); Doe, 725 F. Supp. at 1503 (absence of sectarian sponsorship did not automatically validate program); Crockett, 568 F. Supp. at 1430 ("principal vice" of program lied in "the strong religious overlay that stems

from the conception and management of the program by the sponsors"); Wiley, 468 F. Supp. at 151 ("The major Constitutionally impermissible problems here encountered relate to the action of the school boards in delegating to the Bible Study Committee, a private religiously identifiable

and motivated body, not only the funding of the program, but also the full responsibility for all other aspects of the program."); Vaughn, 313 F. Supp. at 434 ("The fact that state schools are being used by teachers, paid and controlled by a religious group, suggests that the state is aiding religion in violation of the Establishment Clause of the First Amendment").

402

John MarshallLaw Journal

[Vol. III

It should come as no surprise that the least tangible of Paterson's factors, the line between teaching and preaching, has dominated much of the discussion. "When instruction turns to proselyting [sic] and imparting knowledge becomes evangelism is, except in the crudest cases, a subtle inquiry."47 In fact, one court made it clear that tapes and transcripts of the classes were the only way to make such a determination.4 8 Such a frank admission garners comparison to Justice Stewart's famous remark concerning obscenity, "I know it when I see it."49 Thus, when the question of constitutionality rests upon what takes place in the classroom, there remains little guidance for school districts as to where the line between teaching and preaching ultimately lies. It is left to the reviewing court to play the part of the reasonable observer, standing in the back of the classroom while the teacher conducts his or her lesson. The difficulty and cost of this endeavor only underscores the need to be cautious with how classes such as these are established and overseen.

C. Modern Attempts to Secularize the Teaching of the Bible in Public Schools Currently, "two privately produced curriculums crafted specifically to pass church-state muster are competing for use in individual schools nationwide." 0 The first of these curriculums was introduced in 1993 by The National Council on Bible Curriculum in Public Schools ("NCBCPS")."' The NCBCPS curriculum provided much of the basis for Georgia's failed attempt to introduce Bible courses in 1999.52 This curriculum has received criticism for the inclusion of "literalist bias," including references to the possible dimensions of Noah's Ark

47. McCollum v. Bd. of Educ., 333 U.S. 203, 236 (1948).

48. See Gibson v. Lee County Sch. Bd., 1 F. Supp. 2d. 1426, 1434 (M.D. Fla. 1998); see also Wiley v. Franklin, 497 F. Supp. 390 (E.D. Tenn. 1980).

49. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring).

50. David Van Biema, The Casefor Teaching the Bible, TIME MAGAZINE, at available 2007, 22, Mar. http://www.time.com/time/magazine/article/0,9171,1601845,00.html.

51. Id. 52. Paterson, supra note 39, at 43.

No. 2]

Tightening the Bible Belt

403

and the claim that the Earth is a mere 6,000 years old." One religious scholar has suggested that "the materials favor Protestantism over Roman Catholicism."5 4 A cursory glance at the members and financial backers of the group shows that it "is headed and supported, almost without exception, by fundamentalist Protestants.""

The NCBCPS curriculums have not been well received by courts or religious scholars. In 1998, a Florida district court granted an injunction against a school district offering the NCBCPS' New Testament curriculum in its entirety over constitutional concerns. 6 A subsequent NCBCPS curriculum was roundly criticized as inappropriate for public school classrooms in a report by the Texas Freedom Network, a nonprofit organization run by a variety of religious leaders opposed to the religious right." That report was ultimately endorsed by 187 professors from universities across the country." While at first attempting to marginalize this criticism as coming from a fringe group of anti-religion leftists, the NCBCPS issued yet another revision to its curriculum just seven months later. 9 However, this newer curriculum has also faced heavy criticism for its reliance on partisan and minority viewpoints, discussion of accounts in the Bible as historical facts, and contributions by "scholars" with dubious academic records.60 Concerned with the constitutionality of the NCBCPS curriculum, Charles Haynes, a senior scholar at the First

53. Van Biema, supra note 50; see also Paterson, supra note 39, at 42 ("[T]he NCBCPS curriculum presents the Bible as a factual historical document.").

54. Paterson, supra note 39, at 42 ("The primary effect of this curriculum is the promotion of conservative, evangelical Protestantism.").

55. Amanda Colleen Brown, Losing My Religion: The Controversy Over Bible Classes in Public Schools, 59 BAYLOR L. REv. 193, 201 (2007).

56. Gibson v. Lee County Sch. Bd., 1 F. Supp. 2d. 1426, 1434 (M.D. Fla. 1998) ("This Court too finds it difficult to conceive how the accounts of the resurrection or of miracles could be taught as secular history.").

57. Brown, supra note 55, at 202 (2007).

58. Id. 59. Id. 60. See Brown, supra note 55, for a full, detailed discussion of the NCBCPS's current curriculum.

404

John MarshallLaw Journal

[Vol. III

Amendment Center,6 1 set out to design an alternative curriculum to provide "bright-line standards on what the law allowed" while gathering as broad of a base of support as possible.62 His work, "The Bible and Public Schools: A First Amendment Guide," provided the basis for "a secularly acceptable Bible textbook," unveiled in late 2005 by Chuck Stetson. 63 "The Bible and Its Influence" was approved by several religious scholars, "including Jews, Protestants and a Roman Catholic bishop.""4 The book was written to provide analysis of both theme and style of key passages throughout the Bible and included sidebars discussing important cultural and historical connections.65 Though the textbook has received broad support, critics have noted that "the history sections are almost exclusively positive." 66 They question the lack of analysis of relevant, darker historical periods such as the Inquisition and the Salem witch trials. 7 One Texas teacher, who leads a Bible class at a Texas public school, has described the textbook as "written as if I am a Protestant Christian teaching Protestant Christians." She uses the textbook as a starting point but has developed her own curriculum, which she believes is more objective in its presentation. 9 Along with these dueling curriculums, David Van Biema has offered several suggestions as to additional requirements for a constitutionally allowable Bible course in public schools. First, it is clear that any such course should be offered as an elective."

61. "The center serves as a forum for the study and exploration of freeexpression issues, including freedom of speech, of the press and of religion, First and the rights to assemble and to petition the government."

Amendment Center Home Page, http://www.firstamendmentcenter.org (last visited Mar. 22, 2010).

62. Van Biema, supra note 50.

63. Id. 64. Id. 65. Id. 66. Id. 67. Id. 68. Id. 69. Id. 70. Id.; see also Crockett v. Sorenson, 568 F. Supp. 1422, 1431 (W.D. VA 1983) ("I am of the opinion, however, that from a strictly constitutional analysis, requiring a student to participate in a course of Bible study when it runs contrary to his personal religious beliefs would violate the Free Exercise

No. 2]

Tightening the Bible Belt

405

Even situations in which students were not forced to take a Bible class have, at times, received criticism from courts."

Second, the elective courses should only be offered to upperclassmen, generally thought to mean juniors and seniors in high school.7 2 However, it is worth noting that not all courts have demonstrated an aversion to the inclusion of Bible courses in elementary education." Third, the curriculum should address both the harmful and helpful influences the Bible has had on Fourth, "the course should have a strong history.7 4 accompanying textbook on the model of The Bible and Its Influence but one that is willing to deal a bit more bluntly with the historical warts."" Fifth, those selected to teach such courses must at least be given basic training in understanding the constitutional boundaries with respect to teaching and Finally, the elective "should be twinned preaching.76 Clause.").

71. Vaughn v. Reed, 313 F. Supp. 431, 433 (W.D. Va. 1970) ("The children who do not take the program are separated from the other members of the class. Resulting pressures may have influenced some parents into allowing their children to take the classes.").

72. Id.; see also DeGirolami,supra note 5, at 1265-66.

73. See, e.g., Crockett, 568 F. Supp. at 1430 (accepting defense experts' opinions that constitutional teaching of the Bible represented "building block" for elementary students); Wiley v. Franklin, 474 F. Supp. 525, 531 (E.D. Tenn. 1979) (accepting constitutionality of several elementary school Bible lessons), Wiley v. Franklin, 468 F. Supp. 133, 150 (E.D. Tenn. 1979) ("That Bible study courses can be designed for use at all public school levels, from kindergarten to college graduate level, and can be designed to avoid violation of the First Amendment religious freedom strictures cannot be doubted.").

74. See Crockett, 568 F. Supp. at 1430; see also DeGirolami, supra note 5, at 1222 ("The history of the Crusades, the slaughter of the Aztecs, and the rise of communism all form part of the history of religion, just as religion forms part of their histories. In treating these subjects, a textbook or a teacher may cast religion's role in those histories in favorable or unfavorable hues.").

75. Crockett, 568 F. Supp. at 1430.

76. See Crockett v. Sorenson, 568 F. Supp. 1422, 1430 (W.D. Va. 1983); see also DeGirolami, supra note 5, at 1222 ("The concerns about teacher competence and religious preference are also significant. On the issue of training, one might claim that teachers of a religious history, comparative religion, or upper-level ethics class should be certified by the state, just as teachers are for history, science, mathematics, and all other major disciplines. Certification in subjects such as history, the arts, and English or

406

John MarshallLaw Journal

[Vol. III

mandatorily with a world religions course, even if that would mean just a semester of each."" A comparative religion course, offered in conjunction with a Bible course, could alleviate some of the coercion and endorsement concerns that individual members of the Supreme Court have opined upon extensively in the seminal Establishment Clause cases.

III.

THE CASES FOR AND AGAINST STUDYING "THE BOOK"1 IN PUBLIC SCHOOLS

GOOD

Debate over the inclusion of the Bible in public schooling can often be boiled down to two competing theories. Those in favor of including study of the Bible in public schooling claim that the process can be done without amounting to state-sponsored religion and that the instruction is necessary to develop citizens who fully appreciate the important role that Christianity has played in the development of the country. 9 Those opposed to such courses claim that neutral teaching of the Bible in public schools is impossible, that the classes are merely a Trojan Horse for Christian proselytizing in the classroom, and that the best place for children to learn about the Bible is via their parents, their church, or college. 0 In his Schempp concurrence, Justice Brennan anticipated the possibility of what he called "non-devotional use of the Bible in the public schools" and made sure to announce that the Court's reading could be refashioned to include religious learning as it might apply to particular disciplines. The state-mandated character of certification would certainly have the effect of standardizing the content of what could be constitutionally taught about religion both in a freestanding religious studies or ethics class and within other disciplines. Standardization would also offer guidance to teachers who will doubtless bring a variety of perspectives about religion to the classroom.").

77. Crockett, 568 F. Supp. at 1430.

78. The sponsor of Georgia's Senate Bill 79 has referred to the Bible as "not just 'The Good Book' but also "a good book." The Associated Press, Ga. Board Near to Approving Bible Classes for Public Schools, ACCESSNORTHGA,

Mar.

8,

2007,

available

at

http://www2.accessnorthga.com/detail.php?n=104486.

79. See generally Branch, supra note 6; see also DeGirolami,supra note 5.

80. Bridget Gutierrez, Bill for School Bible Classes Sent to Perdue, ATLANTA J.-CONST., Mar. 28, 2006, at IB.

No. 2]

Tightening the Bible Belt

407

ruling in no way foreclosed that use.' He went on to define this use as "teaching about the Holy Scriptures or about the differences between religious sects in classes in literature and history."82 Justice Goldberg also accepted the possibility of "teaching about religion, as distinguished from the teaching of religion, in the public schools.""

The Court in Schempp acknowledged that "religion has been closely identified with our history and government," 84 claiming we need not look any further than to the founding documents of our nation, "from the Mayflower Compact to the Constitution itself," for proof.85 But the Court seems to have made a point of approaching the subject from a broad perspective,8 6 only discussing the Bible, specifically, within the context of the case before it.87 In his concurrence, Justice Goldberg took the claim one step further, stating "[n]either government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings." 8 So too did Justice Jackson, in his McCollum concurrence, acknowledge the inability of schools to properly educate students without reference to religious ideals and stories. Yet 81. Sch. Dist. v. Schempp, 374 U.S. 203, 300 (1963) (Brennan, J., concurring).

82. Id. One can only assume that this reference to literature and history is from where the official names for these courses came.

83. Id. at 306 (Goldberg, J., concurring).

84. Id. at 212.

85. Id. at 213.

86. Id. at 225 ("[I]t might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization.") (emphasis added).

87. Schempp, 374 U.S. at 225. (As the case was about the reading of Biblical passages over a school's PA system, the Court noted "[i]t certainly may be said that the Bible is worthy of study for its literary and historic qualities.").

88. Id. at 306 (Goldberg, J., concurring).

89. McCollum v. Bd. of Educ., 333 U.S. 203, 235-36 (1948) (Jackson, J., concurring) ("But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture without the cathedral, or painting without the scriptural themes would be eccentric and incomplete,

408

John MarshallLaw Journal

[Vol. III

he was careful with his words, making sure to acknowledge the variety of religious beliefs that had influenced our culture.90 He firmly stated: The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity - both Catholic and Protestant - and other faiths accepted by a large part of the world's peoples. One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared."1 The fact that most Justices seemed to have taken a more inclusive approach to the argument that religious teaching has a place in public schools has not dissuaded modem claims that the Bible, alone, is fit for study. Proponents of Bible courses often remind us that "[t]he Bible is the most influential book ever written." 92 William Shakespeare draws allusions to it some In describing 1300 times, according to one estimate. 93 American children's illiteracy of the Bible, the sponsor of Georgia's Bill, Tommie Williams, said, "[i[f we're teaching a kid what the Good Samaritan law was about, they wouldn't know." 94 Such arguments may generate substantial headnodding from Christians already in favor of Bible courses, but they do little to alleviate the fears of those worried about preaching in the classroom.

The notion that religious study is necessary to a complete education appears to have been roundly rejected by Justice even from a secular point of view.").

90. Id. 91. Id.

92. Van Biema, supra note 50. It is worth noting, however, that Van Biema insisted that any Bible course be offered in conjunction with a comparative religion course. Id. 93. Id. 94. Brenda Goodman, Teaching the Bible in Georgia's Public Schools, at available 2006, 29, Mar. N.Y.TIMES, http://www.nytimes.com/2006/03/29/education/29bible.html. Christianity is not the only religion to feature a parable with the moral themes on display in the story of the Good Samaritan. For example, the Islamic Bukhari 4:538 includes a story of a prostitute blessed for stopping to assist an injured animal upon a road.

No. 2]1

Tightening the Bible Belt

409

Jackson in his Everson dissent.9 5 In fact, Justice Jackson felt that "after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion."9 6 Responding to the claim that the reading of Biblical scriptures and daily prayer instill necessary values, Justice Brennan noted that, while sectarian bias might have been absent, "the crucial fact is that While the [the activities] were nonetheless religious."9 7 activities at issue in Schempp are not necessarily analogous to those authorized by the Georgia Bill, Justice Brennan's rejection of the values argument is still both relevant and noteworthy.

The claim that it is the responsibility of public schools to instill values by educating American schoolchildren about the Bible evokes fears expressed by the Schempp Court in the very first line of its analysis. 98 One must consider the circular nature of the argument that the Bible's wide-ranging influence in our country necessitates that we use our public schools to perpetuate that very influence. 99 The underlying assumption from such thinking is that not only has the Bible had great influence on the fundamental values of this country but also that it should continue to have such great influence. While this assumption certainly is appealing to many devout Christians in this country, it seems in conflict with a nation that, from its inception, has

95. Everson v. Bd. of Educ., 330 U.S. 1, 23-24 (1947) ("[The public school system] is organized on the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion.").

96. Id. 97. Sch. Dist. v. Schempp, 374 U.S. 203, 271 (1963) (Brennan, J., concurring).

98. Id. at 222 ("The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies.") (emphasis added).

99. It is also worth noting the apparent hypocrisy amongst conservatives, who typically decry the "nanny state" in favor of individual and, more significantly, parental responsibility. Why should these classes be an appropriate function of government when so much else is not?

410

John MarshallLaw Journal

[Vol. III

continued to grow more diverse with respect to religious and spiritual backgrounds.

The Supreme Court also has noted the dangers this dependency might create with respect to the Free Exercise Clause. 0 If the Bible is of such importance as to be taught in public schools, then what is to prevent the State from imposing regulations on how the Bible is taught to children in Sunday Schools across the country? As Justice Jackson noted in his dissent in Everson, "we cannot have it both ways.""o' He went on to note that the proposed "inadequacy of public or secular education" was the very reason the government showed great respect towards alternative, religious schooling.102 100. See Schempp, 374 U.S. at 271, 222; see also id. at 286-87 (Brennan, J., concurring) ("[Tihe notion of a 'common core' litany or supplication offends many deeply devout worshippers who do not find clearly sectarian practices objectionable."). Indeed, while a Free Exercise Clause discussion is beyond the scope of this comment, there is a possibility that religious conservatives might disagree with the secular manner in which the Bible is being taught in Georgia public schools and, subsequently, raise a Free Exercise challenge in court.

101. Everson v. Bd. of Educ., 330 U.S. 1, 28 (1947) ("Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe it directly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Constitution that alone assures Catholics the right to maintain these schools at all when predominant local sentiment would forbid them.

Nor should I think that those who have done so well without this aid would want to see this separation between Church and State broken down. If the state may aid these religious schools, it may therefore regulate them. Many groups have sought aid from tax funds only to find that it carried political controls with it. Indeed this Court has declared that 'It is hardly lack of due process for the Government to regulate that which it subsidizes."') (internal citations omitted).

102. Id. at 46-47 ("Indeed the view is sincerely avowed by many of various faiths, that the basic purpose of all education is or should be religious, that the secular cannot be and should not be separated from the religious phase and emphasis. Hence, the inadequacy of public or secular education and the necessity for sending the child to a school where religion is taught. But whatever may be the philosophy or its justification, there is undeniably an admixture of religious with secular teaching in all such institutions. That is the very reason for their being. Certainly for purposes of constitutionality we cannot contradict the whole basis of the ethical and educational convictions of people who believe in religious schooling. Yet

No. 2]

Tightening the Bible Belt

411

Justice Jackson appears to have foreseen the debate taking place today, noting the constant drive "to introduce religious Early in education and observances into the public schools." his Everson opinion, Justice Black remarked: [B]ut so far has the Nation moved toward [the goal of the First Amendment] that the expression 'law respecting an establishment of religion,' probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights.'"

Though written in 1947, his concern may be considered even more pertinent today.

While choosing their words carefully, those in favor of offering courses teaching the Bible in public schools seem driven by a fear that America's youth are growing up lacking The fact that religious courses are fundamental values.'"0 offered in public universities seems not enough to satisfy them.

By then, the ability to create a significant impression is lost.

But it is the impressionability of students in pre-college and university classrooms that creates such a problem under the Establishment Clause.

Lost amidst the jurisprudential and policy debates concerning the proper role, if any, of religion in the classroom is the simple fact that the public school system in America is already stretched for resources. "Public schools are under enormous strain to meet demanding national standards and must often devote substantial, if not exclusive, attention to reading and mathematics in order to survive within the current framework.""o6 At a time when our schools are "falling behind the rest of the world in math and science education," it is reasonable to question burdening them with vague legislative this very admixture is what was disestablished when the First Amendment forbade 'an establishment of religion.' Commingling the religious with the secular teaching does not divest the whole of its religious permeation and emphasis or make them of minor part, if proportion were material. Indeed, on any other view, the constitutionalprohibition always could be brought to naught by adding a modicum of the secular.") (emphasis added).

103. Id. at 63.

104. Id. at 9.

105. Goodman, supra note 94.

106. DeGirolami, supra note 5, at 1262.

412

John MarshallLaw Journal

[Vol. III

requirements concerning Bible classes that may expose them to costly and time-consuming litigation.107 "To expect so much of an institution that is struggling merely to keep children in school and out of the criminal justice system and to provide them with the barest literacy and numeracy is, some might object, unrealistic." 0 IV. O.C.G.A. ยง 20-2-148 Proposals for legislation authorizing the teaching of the Bible in public schools are wrought with controversy. In 1999, two Georgia legislators proposed such a bill.109 One of those legislators, Tommie Williams (R-Lyons), said that he hoped the courses "could change the hearts of children."" 0 The proposed legislation failed amid a ruling from Attorney General Thurbert Baker, who claimed that the courses likely would not survive legal challenges."' Seven years later, Mr. Williams, as Senate Majority Leader, managed to pass a similar proposal, Senate Bill 79, with resounding support,"l2 and the bill was subsequently signed into law."' In discussing the courses, Mr. Williams clearly had learned a lesson from his past failure, dropping the moral language in favor of more neutral

107. Foon Rhea, A Year After Election, Obama Focuses on Schools, at available 4, 2009, Nov. GLOBE, http://www.boston.com/news/politics/politicalintelligence/2009/11 /ayear-af ter el_1.html.

108. DeGirolami, supra note 5, at 1265. DeGirolami suggests that religious learning can be incorporated into the current curriculum, rather than by adding to it. However, it remains to be seen whether his proposal is even possible. Since Georgia chose to add courses to its curriculum, the author has limited discussion to this legislative method of introducing religious learning to the public school classroom.

109. Editorial, Teaching vs. Preaching; Proposed Courses on Bible Run Risk of UnconstitutionalProselytizing, ATLANTA J.-CONST., Nov. 24, 1999, at 16A. i10. Id. ill. Id. 112. Gutierrez, supra note 80.

113. Laura Diamond, Whatever Happened to Public High School Bible 2008, available at Dec. 15, Classes, ATLANTA J.-CONST., http://www.ajc.com/services/content/printedition/2008/12/15/whatever.html.

BOSTON

No. 2]

Tightening the Bible Belt

413

descriptions.114 In drafting his proposal, Williams used the NCBCPS curriculum as a guide."'

The legislative history of Senate Bill 79 is quite revealing.

Three Democratic state senators originally proposed legislation to authorize and fund classes, but that Bill instructed the Georgia Department of Education to approve a textbook for the courses."' The proposal was considered a bold move by state Democrats to reach out to religious voters."' However, not to be outdone by his political counterparts, Williams introduced his Senate Bill 79 with the Bible as the core text of the classes."' Williams cited concerns over the use of a textbook with a liberal interpretation of the Bible as reason for the alternative Bill." 9 Doug Stoner, one of the Democratic senators behind the original Bill, had supported the use of "The Bible and Its Influence" for the courses.12 0 He ultimately voted for the Republican-backed bill even though he had concerns over the constitutionality of Williams' legislation.121 Senate Bill 79 offered to amend Georgia's Quality Basic Education Act to give the State Board of Education the ability to adopt a curriculum, fund the courses, and establish guidelines for teachers (including how they were to be selected).12 2 Now 114. Id. ("This has nothing to do with proselytizing. My intention is for people to become literate of the Bible and its influence on society.") (quoting Tommie Williams).

115. Sarah Childress, See You in Bible Class, NEWSWEEK, May 1, 2006, availableat http://www.newsweek.com/id/47608.

116. Jennifer Siegel, GOP Bible Bill Upsets Liberals, but Ga. Dems See

Political Gains, JEWISH DAILY FORWARD, Apr. 14, 2006, available at

http://www.yorkshire.forward.com/articles/1226/.

117. Id. 118. Id.

119. Id. Williams' concern is somewhat amusing considering the recent attempt by one conservative group to rewrite the Bible with a more conservative tone and without some key liberal passages. See Joseph Laycock & Thomas Fabisiak, Conservatives are Rewriting the Bible to Free It from 'Liberal Bias', RELIGION DISPATCHES, Oct. 27, 2009, available at http://www.altemet.org/story/143506/conservatives-arerewriting-theibible to free it from_%22liberal bias%22.

120. Id. 121. Id.

122. S.B. 79, 148th Gen. Assem. 2d Reg. Sess. (Ga. 2006) (as passed), at available

John MarshallLaw Journal

414

[Vol. III

codified as O.C.G.A. ยง 20-2-148, questions remain as to whether the demands of the statute have been suitably followed.123 In January 2007, the Georgia Department of Education released its Performance Standards for the two courses.124 The Performance Standards of both courses state that: The purpose of the course shall be to accommodate the rights and desires of those teachers and students who wish to teach and study the [Old/New] Testament and to familiarize students with the contents of the [Old/New] Testament, the history recorded by the [Old/New] Testament, the literary style and structure of the [Old/New] Testament, the customs and cultures of the peoples and societies recorded in the [Old/New] Testament and the influence of the [Old/New] Testament upon law, history, government, literature, art, music, customs, morals, values, and culture.125 The standards are fairly innocuous, describing the expectations of students participating in the class and granting

http://www.legis.state.ga.us/legis/2005_06/versions/sb79_AP_1 2.htm

("To

amend Part 2 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to competencies and core curriculum for elementary and secondary students under the 'Quality Basic Education Act,' so as to provide for the offering of state funded high school courses in the History and Literature of the Old Testament Era and the History and Literature of the New Testament Era; to provide for the adoption of the curricula for such courses by the State Board of Education; to provide for reading materials, and methods of teaching in such courses; to provide for certain matters relating to the employment and assignment of teachers of such courses; to provide for the granting of academic credit for the successful completion of such courses; to provide for the monitoring of the content and teaching of such courses; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.").

123. O.C.G.A. ยง 20-2-148(b)(1) (2006) ("No later than February 1, 2007, the State Board of Education shall adopt a curriculum for each course, including objectives, reading materials, and lesson plans, which has been prepared in accordance with the requirements of this subsection.").

124. GA. DEP'T OF EDUC., GA. PERFORMANCE STANDARDS FOR LITERATURE AND HISTORY OF THE OLD TESTAMENT ERA, (2007),

https://www.georgiastandards.org/Standards/Georgia%20Performance%20St andards/Literature-and-History-of-Old-Testament-Course.pdf.

125. Id.

Tightening the Bible Belt

No. 2]

415

local school boards discretion with respect to lesson plans.' 2 6 Both standards state that each respective Testament of the Bible "shall be the basic text" for the courses.' 27 The electives may be offered to any student in high school, regardless of grade level.128 However, these standards are ultimately little more than class objectives with a mandate that the Bible be the core text. To this date, no curriculum, including additional materials and lessons to be used, has been adopted by the State Board of

Education.12 9 Despite the lack of a state-wide curriculum, Columbia County, Georgia created its own curriculums for the classes in its school districts, which was submitted for approval by its local Board of Education at the time of this writing.'3 0 Each curriculum is but a little over two pages, contains no guidelines as to supplementary materials or lesson plans, and merely traces the primary events of each Testament in chronological order."'

The lack of detail and guidance for teachers is somewhat astonishing, and one is left to conclude that the courses will be little more than a plain study of the events in each Testament.

The topics of analysis include the creation of the Earth in seven days, the "One Family" of Adam and Eve, Sodom and Gomorrah, the life and parables of Jesus, the epistles, and the apocalyptic visions of John as written in Revelations.13 2 126.

Id.

127. Id. 128. Id.

129. E-mail from Mary Stout, Program Manager, Ga. Dept. of Educ., to Greg Frayser, Executive Articles Editor, John Marshall Law Journal (Feb. 15, 2010, 12:41 p.m. EST) (on file with author). Ms. Stout advised that Columbia County has a proposed curriculum in place. Whether this lack of a defined state-wide curriculum is indeed a violation of the statute itself is beyond the scope of this article.

130. E-mail from Rosalie Carraway, Director of Student Learning (9-12), Columbia County Schools, to Greg Frayser, Executive Articles Editor, John Marshall Law Journal (Feb. 16,2010, 9:18 a.m. EST) (on file with author).

131. COLUMBIA COUNTY SCHOOLS, LANGUAGE ARTS CURRICULUM ELA CLASSICS AND SUBJECT: BENCHMARKS, AND STANDARDS COMPARATIVE LITERATURE: LITERATURE AND HISTORY OF THE OLD TESTAMENT ERA & LITERATURE AND HISTORY OF THE NEW TESTAMENT ERA

(on file with author).

132. Id. The inclusion of topics such as Adam and Eve as "one family" along with Sodom and Gomorrah begs the question as to whether these

416

John MarshallLaw Journal

[Vol. III

Without further detail, it is difficult to speculate on what could actually take place in a Columbia County classroom should this particular curriculum be approved, and therein lies the problem.

Georgia not only has rejected previously vetted, national curriculums but has also failed to provide a state-wide curriculum that might be easily analyzed. Considering that we are dealing with questions of constitutionality, this act seems grossly haphazard and irresponsible. Future litigation over the classes seems almost inevitable under the current statute.

V. CONSTITUTIONAL QUESTIONS The Supreme Court's jurisprudential dichotomy with respect to the Establishment Clause makes any constitutional analysis of Georgia's statute difficult, at best, and near-impossible, at worst. While the Court has acknowledged the possibility of allowing secular Bible classes in public schools, it has also made clear that the influential nature of public schools calls for a thorough analysis of any possible sectarian influence.' 33 The Bill's requirement that the Bible be the core text of both courses could create constitutional problems. As the Schempp Court noted, "[s]urely the place of the Bible as an instrument of religion cannot be" denied.'

But in his opinion in Edwards, Justice Brennan acknowledged that use of the Bible may be While the Supreme Court constitutional in several contexts.' has yet to rule one way or the other on the requirement of the use of the Bible as the core text in a course, lower courts have emphasized the difficulty in offering a constitutionally permissible public school course with the Bible as the core text.' 6 Vetted curriculums, such as the one based on "The courses are instructing students as to the morality of homosexuality and same-sex marriage. Id. Are these the "values" to which proponents like Tommie Williams were referring?

133. McCollum v. Bd. of Educ., 333 U.S. 203, 227-28 (1948) (Frankfurter, J., concurring).

134. Sch. Dist. v. Schempp, 374 U.S. 203, 224 (1963).

135. Edwards v. Aguillard, 482 U.S. 578, 608 (1987).

136. Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp. 582, 595 (N.D. Miss. 1996) (citing expert testimony of the extreme difficulty in constructing "a secular course dealing with history and literature with the Bible as the subject and the only text in the course" as a reason for invalidating program); Wiley v. Franklin, 468 F. Supp. 133, 151 (E.D. Tenn. 1979) (noting the

No. 2]

Tightening the Bible Belt

417

Bible and Its Influence," help to prevent even the most subtle Tommie constitutional infractions within the classroom.

Williams himself offered an example of such an infraction when he stated, "[w]e simply have to teach 'This is what happenedmake your own judgments."' 1 7 Williams undoubtedly felt that to be a fairly innocuous statement, but the teaching of the Bible as history puts a teacher on constitutionally thin ice.'

The focus of the courses solely on the Bible may also raise constitutional concerns, particularly from an endorsement perspective. While several Justices have noted the role of religion in the development of our country and the potential constitutionality of public school religion courses, the Court has also made clear that placing particular faiths on a pedestal, even in light of a supposed secular purpose, is grounds for Thus, the lack of any accompanying invalidation. 13 9 comparative religion course may be seen as an attempt to place a greater emphasis on the role of the Bible and Judeo-Christian values than other, equally relevant philosophies. As Wendy Kaminer, a lawyer and author put it, "[i]f you teach the Bible outside of close conjunction with other religions, then it becomes a kind of promotion of the majority faith. It becomes too hard for most folks to draw the line between teaching and preaching."1 40 Considering the care Justices have shown in using inclusive language when suggesting points at which religion might intermingle with public schools, the exclusivity of Georgia's course might be considered undesirable.

Strict focus on the Bible without the inclusion of other religions may also create problems under a coercion analysis.

Fear over pressures of conformity may be greatest in those very districts where, due to heavily conservative Christian demographics, the classes are most likely to be offered.

Students with minority beliefs in such districts, if limited in what other electives they may take, could be ostracized from permissibility of using the Bible as core text but only "with proper selectivity, interpretation, objectivity and emphasis").

137. Childress, supra note 115.

138. See Gibson v. Lee County Sch. Bd., I F. Supp. 2d. 1426, 1434 (M.D. Fla. 1998) ("This Court too finds it difficult to conceive how the accounts of the resurrection or of miracles could be taught as secular history.").

139. Stone v. Graham, 449 U.S. 39, 41 (1980).

140. Van Biema, supra note 50.

418

John MarshallLaw Journal

[Vol. III

their classmates for not choosing the Bible courses. As Justice Frankfurter stated: These are consequences not amenable to statistics. But they are precisely the consequences against which the Constitution was directed when it prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages. 14 1 While the fact that the courses are electives may negate some of the concern with respect to the influential nature of public schools, that fact alone would not save the legislation. Justice Douglas, in his concurrence in Schempp, stated that the Establishment Clause "also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have relying on its members alone." 42 Similarly, in his concurrence, Justice Brennan stated that "the availability of excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims through the use of public school facilities."' 4 3 Finally, the link between Williams' proposal and the NCBCPS curriculum must be examined thoroughly. That organization's repeated failures suggest that it is not interested in any secular purpose, as the Constitution requires, but in the indoctrination of public school students. In his endorsement on 141. McCollum v. Bd. of Educ., 333 U.S. 203, 228 (1948); see also Edwards v. Aguillard, 482 U.S. 578, 583 (1987) ("The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.

Students in such institutions are impressionable and their attendance is involuntary.").

142. Sch. Dist. v. Schempp, 374 U.S. 203, 229 (1963) (Douglas, J., concurring). Justice Douglas surrounded this statement with references to the Clause forbidding the promotion of "religious exercises." Id. Thus, while his statement may be read as increasing the scope of the Clause's prohibitions to those exercises with coercive or endorsing effects, it is unclear as to whether that was his actual point.

143. Id. at 288 (Brennan, J., concurring).

No. 2]

Tightening the Bible Belt

419

the group's website, Jesse Helms not only states his support for the teaching of the Bible in public schools but also expresses his hope that "we will also see prayer restored to its proper place within the educational system." 44 The group's website is filled with other endorsements and language that suggest a purpose far beyond merely teaching the historical, literary, and artistic value of the Bible, evoking strong values language similar to the type Williams used in his first attempt to pass his legislation.'45 One has to wonder how members of the organization would respond if any other religious or non-religious group was so blatant in its goal of changing the values of America's schoolchildren. Regardless, language such as this might prove damning to claims of a secular purpose under constitutional scrutiny.

The above constitutional analysis provides several reasons as to why Georgia's courses may be unconstitutional. It at least suggests that these courses, in their current form, are inviting litigation. An ultimate determination on the constitutionality of the courses will likely be impossible without an order from a reviewing court that the classes be taped and transcribed.

However, without a clear, vetted curriculum employed by the state, it is the author's opinion that localized, constitutional infractions are inevitable.

VI. RECOMMENDATION The Georgia legislature should strongly consider amending O.C.G.A. ยง 20-2-148 to place its Bible elective courses better in line with the U.S. Constitution. The Bible should not be used as the core text of the class unless the Georgia Department of Education is prepared to provide a comprehensive curriculum, vetted by an appropriate number of religious and legal scholars, to guide teachers in using the Bible as a text. Considering this was the exact same process done by the people behind "The Bible and Its Influence," the legislature should strongly consider adopting it as the core text of the courses. Additionally, the 144. Letter from Jesse Helms, Former U.S. Senator, to Elizabeth at available 1994, 26, Oct. Ridenour, http://www.bibleinschools.net/images/stories/jesse-helms.jpg.

145. See generally National Council on Bible Curriculum in Public Schools, http://www.bibleinschools.net (last visited Mar. 22, 2010).

420

John MarshallLaw Journal

[Vol. III

legislature would be wise to combine the two courses into a one semester course accompanied by an additional comparative religion course in the following semester. The inclusion of a comparative religion course would better comport with the more inclusive language used by Justices when offering guidance on religious instruction in public schools.

It may also be preferential to restrict the courses to juniors and seniors, students who should be mature enough to handle the subject matter without fears of coercion. Grade restrictions such as this have been regularly used in other subjects. These changes would relieve many of the worries of local school districts and likely increase the number of districts offering such courses.

VII. CONCLUSION

Uncertainty in Establishment Clause jurisprudence has left legislatures to interpret the Constitution on their own. The evolving comments of Tommie Williams illustrate the worry that many people have when it comes to Bible classes in public schools. How does one reconcile wanting to "change the hearts of children" with a secular teaching of the Bible? Perhaps Mr. Williams simply misspoke back in 1999. Perhaps he learned that successful legislation required that he hide his true motives, to bring Sunday school classes to public schools. Or perhaps it is possible to have an agenda of instilling moral values in schoolchildren without preaching religion. But if so, it is an endeavor that should not be embarked upon haphazardly.

It is troubling that, in rejecting a widely accepted and scholarly vetted curriculum for Bible classes in public schools in favor of an unprecedented course of action, Mr. Williams invoked partisan political language. It is also worth noting, as mentioned above, that the supposedly liberal curriculum Mr. Williams rejected received criticisml46 from the left. It is a small step to take in order to suggest that, in refusing one curriculum for being too liberal, Mr. Williams chose a path that is too conservative. It is possibly time to consider whether we have come full circle in the debate over the Bible in public schools. But rather than come to a happy, constitutional medium, it appears as if Mr. Williams, and Georgia, may have overreached.

146. See supra, notes 66-69 and accompanying text.

No. 2]

Tightening the Bible Belt

421

Ultimately, the losers in this situation are public school boards, who are left with little guidance as to how to teach these courses and the constant fear of a lawsuit if they do. This fear, in part, explains why these courses have yet to take off throughout Georgia school districts, with "only 37 of the state's nearly 440 high schools" offering the classes the first year they were available. 14 7 However, in what ultimately might be a fitting end to the entire controversy, many schools are not offering the courses, not because of a fear of lawsuits, but because of a lack of interest on the part of their students.148 But regardless of the popularity of these courses amongst Georgia high school students, it appears likely that this issue will have its day in court sooner or later unless the Georgia legislature chooses to take preemptive action.

GregoryA. Frayser

147. Diamond, supra note 113.

148. Id. * J.D., Atlanta's John Marshall Law School (2010); B.A., Economics and Philosophy, Vanderbilt University (2002). In addition to his work with the Journal, Mr. Frayser is also a member on the school's Moot Court Board.

He is currently an intern in the appellate division of the Georgia Capital Defender's office. Upon completion of his Juris Doctorate, Mr. Frayser intends to pursue a Master of Laws degree in Environmental Law. Special thanks go out to his articles staff and fellow editors for their assistance with this comment.

THE UNIVERSAL SCHOOL VOUCHERS ROADBLOCK: CONSTITUTIONAL & PUBLIC POLICY BARRIERS TO SCHOOL CHOICE IN GEORGIA I.

INTRODUCTION

II.

THE HISTORY OF SCHOOL VOUCHERS.............................

A. B.

III.

424 425

The School Vouchers Debate in Georgia Courts .................... 426 The School Vouchers Debate in the Georgia General ............... 429 Assembly......................

FEDERAL LAW AFFECTING SCHOOL VOUCHERS PROGRAMS............ 432

A. B. IV.

.............................................

Establishment Clause Challenges to School Vouchers............ 433 Applying the Establishment Clause to Senate Bill 90.............. 435

STATE CONSTITUTIONAL AND PUBLIC POLICY CHALLENGES TO UNIVERSAL SCHOOL VOUCHERS

A.

.................

............. 437

State ConstitutionalChallenges to Universal School .................. 437 Vouchers...................

1. UniversalSchool Vouchers May Violate the Blaine Amendment................................ a. b.

437

The History of Georgia'sBlaine Amendment............ 437 Analyzing Senate Bill 90 Under the Blaine 439 .............................

Amendment.

2. UniversalSchool Vouchers May Violate the GuaranteeofFree,Adequate Public Education ............... 443 B.

Public Policy Challengesto Universal School Vouchers....... 447 1. Universal School Vouchers May Not Give Parents Unfettered School Choice ............................... 447

John MarshallLaw Journal

424

2. Universal School Vouchers May Not Benefit Low-Income Families. ...................

3. Universal School Vouchers are Fiscally Questionable ...............................

V.

CONCLUSION

...........................................

[Vol. III ...... 451 452 455

1. INTRODUCTION In a continuing effort to improve education, many states have considered or implemented programs that allow parents to choose the schools that their children attend. One such school choice program, school vouchers, provides state-funded scholarships to assist parents in financing a better educations for their children. During the Georgia General Assembly's 2009 and 2010 legislative sessions, it considered legislation proposing to create just such a universal school vouchers program, Senate Bill 90.'

With public schools suffering under budgetary constraints, many parents consider private school education to be of higher quality than public school education. Private schools enjoy private funding, often giving them many more resources to provide greater educational opportunities than public schools, whose funding is inextricably intertwined with ever-limited state funds.2 In fact, the State of Georgia recently has taken to furloughing public school teachers to gain education funds3 .

However, because the vast majority of private schools are religiously affiliated institutions,' school vouchers that allow 1. S.B. 90, Gen. Assem., 1st Reg. Sess. (Ga. 2009).

2. As of the 2006-2007 school year, Georgia public schools ranked twenty-sixth in the nation for per pupil expenditures. NAT'L CTR. FOR EDUC. STATISTICs, U.S. DEP'T OF EDUC., TOTAL AND CURRENT EXPENDITURES PER PUPIL IN FALL ENROLLMENT IN PUBLIC ELEMENTARY AND SECONDARY EDUCATION, BY FUNCTION AND STATE OR JURISDICTION: 2006-2007, in DIGEST OF EDUCATION STATISTICS, tbl.2 (May 2009), http://www.nces.ed.gov/programs/digest/d09/tables/dt09_183.asp.

3. Alyse Knorr, Teachers Groups Angry Over Furloughs, ATLANTA J.CONST., Jul. 23, 2009, available at http://www.ajc.com/news/teachersgroups-angry-over-97828.html.

4. See NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., CHARACTERISTICS OF PRIVATE SCHOOLS IN THE UNITED STATES: RESULTS FROM THE 2007-2008 PRIVATE SCHOOL UNIVERSE SURVEY (Mar. 2009),

No. 2]

The Universal School Vouchers Roadblock

425

parents to distribute state-funded scholarships to private schools may encroach upon the separation of church and state.

Section II of this comment will explain the history of school vouchers legislation in Georgia. Section III will discuss the federal laws implicated by school vouchers programs and how those laws affect the implementation of such programs in Georgia. Section IV will analyze the state constitutional and public policy challenges to universal school vouchers programs using the language of Senate Bill 90 as an example. The author concludes that implementing a vouchers program, such as the one proposed by Senate Bill 90, would violate the Georgia Constitution, would violate public policy, and would not provide Georgia parents with the means to choose a better If greater school choice education for their children. opportunities are to be a realistic goal for Georgia students, the General Assembly should consider only legislation which makes significant changes to and improvements upon Senate Bill 90.

II. THE HISTORY OF SCHOOL VOUCHERS

The origin of school vouchers systems can be traced to a proposal by free-market economist Milton Friedman in 1995.1 Friedman believed that education should not be controlled by the government, but rather, the government should provide parents with funds to subsidize the cost of private education.'

He argued that leaving education to private organizations would force schools to compete for students (and the funding their enrollment would bring) or face going out of business.! In his view, this competition would result in more successful schools than a government monopoly can create.'

http://nces.ed.gov/surveys/pss/tables/table-whs_03.asp [hereinafter PRIVATE SCHOOL UNIVERSE SURVEY].

5. Milton Friedman,

The Role of Government in Education, in

ECONOMICS AND THE PUBLIC INTEREST (Robert A. Solo ed., 1955), available

at http://www.schoolchoices.org/roo/friedl.htm(last visited Mar. 18, 2010).

6. Id.

7. Id. 8. Id.

426

John MarshallLaw Journal

[Vol. III

Wisconsin was the first state to test Friedman's theory' when, in 1989, it created the Milwaukee Parental Choice Program to allow students who met the residency and income requirements to attend private school for free.o With Wisconsin paving the way, several states and the District of Columbia have since enacted school vouchers programs, including Arizona, Colorado, Florida, Ohio, Maine, Utah, Vermont, and Georgia.'

A. The School Vouchers Debate in Georgia Courts The school vouchers debate gained publicity in Georgia in October 1993, when Glenn Delk, attorney and Georgia Parents for Better Schools President, organized and presented proschool choice testimony at public hearings called by Lieutenant Governor Pierre Howard and held at the Legislative Office Building across the street from the state capitol. 2 Mr. Delk argued that O.C.G.A. §§ 20-2-640 to -650 could be used to give parents the choice of sending their children to a public or

9. School Choice Wisconsin, Accurate Information About School Choice, Milwaukee Parental Choice Program, http://schoolchoicewi.org/kl2/detail.cfmn?id=4 (last visited Mar. 22, 2010).

10. Wis. STAT. § 119.23 (2009). To be eligible for the MPCP, a student must reside in the city of Milwaukee in a household with an income equal to or less than 175% the federal poverty line. Id. 11. See the Colorado Opportunity Contract Pilot Program, COLO. REV. STAT. §§ 22-56-101 to -110 (repealed 2006) (creating vouchers for students who lived in a participating district for one year, qualified for free or reduced lunch, and performed unsatisfactorily on state standardized tests); the Opportunity Scholarship Program, FLA. STAT. § 1002.38 (2005) (deemed unconstitutional by the First District Court of Appeals of Florida in Bush v.

Holmes, 886 So.2d 340 (Fla. 1st Dist. Ct. App. 2004), declined to address issue in 919 So.2d 392 (Fla. 2006)) (creating vouchers for any student attending a failing school for two years in a four-year period). See also ARiz. REV. STAT. §§ 15-891 to -891.06 (2009) (deemed unconstitutional by the Supreme Court of Arizona in Cain v. Home, 202 P.3d 1178 (Ariz.

March, 25, 2009)); D.C. CODE §§ 38-1851.01-.11 (2010); ME. REV. STAT. ANN. tit. 20-A, §§ 5203-5204 (2009); OHIO REV. CODE. ANN. §§ 3313.974.979 (2010); UTAH CODE ANN. § 53A-la-701-09 (2009); VT. STAT. ANN. tit.

16, § 821-27 (2009).

12. Susan Stevenot Sullivan, School Choice Advocates Pressfor Voucher Funds, GA. BULL. (Archdiocese of Atlanta, Ga.), Oct. 21, 1993, availableat http://www.georgiabulletin.org/local/1993/10/21/a/.

No. 2]

The UniversalSchool Vouchers Roadblock

427

private school." These statutes, known as the Tuition Grant Act, stated: Every child between the ages of six and nineteen years residing in this state . . . who is otherwise eligible and

qualified to attend the elementary and secondary public schools of the local school system wherein such child resides shall, in lieu of attending the public schools of such local school system be eligible to receive an education grant to be expended for the purpose of paying or otherwise defraying the cost of tuition at a nonsectarian private school. .. .

Delk argued that while this law may have been passed for the wrong reasons-namely, to help white students avoid integrated schools-it now could be used for the right reasons to benefit low-income families that lack choices when it comes to their children's educations. 5 Strong public interest in Delk's argument led three parents of students in kindergarten through twelfth grades to file suit against the state in 1997.16 The parents' complaint alleged that the state had denied their children equal protection of the law by treating their children differently than children receiving prekindergarten and post-twelfth grade education, as the latter groups of children can receive state funds to finance private school education." To support this equal protection claim, the parents had the burden to prove that their kindergarten through twelfth grade children were similarly situated to the prekindergarten and post-twelfth grade students." However, the Supreme Court of Georgia found that the parents could not make such a showing because the state does not require school enrollment for pre-kindergarten and post-twelfth grade students; therefore, these groups are not constitutionally entitled to education.19 On the other hand, the state does require the 13. Id. 14. O.C.G.A. §§ 20-2-640 to -650 (repealed 2005).

15. Sullivan, supra note 12.

16. Lowe v. Georgia, 482 S.E.2d 344 (Ga. 1997).

17. Id. at 345. In some situations, pre-kindergarten and post-twelfth grade students are entitled to scholarships created through tax and lottery revenues whereas kindergarten through twelfth grade students are not entitled to such state-funded scholarships. Id. 18. Id. 19. Id. at 346.

428

John MarshallLaw Journal

[Vol. III

kindergarten through twelfth grade students to attend school, and these students are entitled to an adequate education by mandate of the Georgia Constitution. 20 Therefore, the court determined that these two groups of students were not similarly situated, and the parents could not satisfy their burden on the equal protection claim.

The parents' complaint also sought a writ of mandamus to compel the State of Georgia to implement and enforce the Tuition Grant Act and to award students funds under the Act.2 1 The court reasoned that compelling the state to enforce the Act would mandate that the state perform discretionary acts, such as determining whether a particular school or student has a need for scholarship funds.22 Because discretionary acts are outside the scope of a writ of mandamus, the Georgia Supreme Court determined that this remedy was not available to the parents.2 3 Because the parents could not support the equal protection claim, and because the mandamus remedy was not available to them, the court affirmed the trial court's denial of the parents' motion for summary judgment, dismissing the parents' claim with prejudice.2 4 Despite the strong support Delk garnered for the Tuition Grant Act in 1993, the surge of school choice advocacy among Georgia parents, which lead to the mandamus action, later quieted for several years. The Tuition Grant Act ultimately met its demise when, in December 2004, Representative Tyrone Brooks, of the 63rd district, introduced House Bill 27 proposing to repeal the Tuition Grant Act in its entirety. 25 By unanimous votes in both the House and Senate, the General Assembly passed House Bill 27 and effectively repealed the Tuition Grant Act as of July 2005.26 20. Id. (referencing GA. CONST. art. VIII, ยง 1, para. 1, which guarantees all elementary and secondary students in Georgia a free, adequate public education).

21. Id. 22. Lowe v. Georgia, 482 S.E.2d 344, 346 (Ga. 1997).

23. Id. 24. Id. 25. H.B. 27, 147th Gen. Assem., 2d Reg. Sess. (Ga. 2004).

27 (Oct. 11, 2006), Gen. Assem., H.B. 26. Ga. http://www.legis.state.ga.us/legis/2005_06/sum/hb27.htm; O.C.G.A. ยง 20-2640-50 (repealed 2005).

No. 2]

The Universal School Vouchers Roadblock

429

The school vouchers debate did not reach the Georgia courts again until March 2006 when the Court of Appeals of Georgia dismissed a claim brought by three Atlanta students, as filed through their parents.2 7 These parents alleged that the State of Georgia had denied them the fundamental right to choose the best education for their children and that the Georgia school funding statutes are unconstitutional.28 In their complaint, the parents proposed that Georgia should provide "economic means, including scholarships, tuition tax credits and charter schools to enable [students] to attend the charter, governmentrun, or private school of their choice." 2 9 The court dismissed the claim because it failed to assert a valid equal protection claim, as the Georgia Constitution guarantees only adequate education, not a right to the best education.3 0 B. The School Vouchers Debate in the Georgia General Assembly While the school vouchers movement has resulted in little litigation in Georgia, it has remained at the forefront of the legislative calendar for several years. In 1999, Senator Clay Land introduced Senate Bill 329, known as the Early HOPE Scholarship Bill.3 1 The Bill proposed awarding state-funded scholarships worth the cost of tuition at a private school or ninety percent of the funds public schools receive for each student, whichever was less, to low-income families with children attending below-average public schools.3 2 However, the General Assembly gave the Early HOPE Scholarship Bill no attention after its first reading on January 14, 2000.33 In 2001, two other bills, Senate Bills 200 and 201, proposed essentially the same vouchers program.3 4 The primary difference between 27. Williams v. Georgia, 627 S.E.2d 891 (Ga. 2006).

28. Id. at 892.

29. Id. 30. Id. at 893.

31. S.B. 329, 145th Gen. Assem., 2d Reg. Sess. (Ga. 1999).

32. Id. 15, 2000), (May S.B. 329 Assem., 33. Ga. Gen. http://www.legis.ga.gov/legis/1999_00/leg/sum/sb329.htm.

34. S.B. 200, 146th Gen. Assem., Ist Reg. Sess. (Ga. 2001), available at (last visited http://www.broc.state.ga.us/legis/2001_02/fulltext/sb200.htm

430

John MarshallLaw Journal

[Vol. III

these two 2001 bills and the failed Early HOPE Scholarship Bill is that the 2001 bills required the Georgia State Board of Education to implement a pilot vouchers program for lowincome children in three failing public schools throughout the state.35 After these two bills failed to pass during the 2001 session, the Senate recommitted the bills in the 2002 session, during which the bills also failed to pass and died in committee. 6 In 2007, Georgia enacted its first school vouchers legislation, Senate Bill 10, also known as the Georgia Special Needs Scholarship Act. Modeled after Florida's McKay vouchers program," the vouchers available under this Act are worth the amount of state funds the public school would have received for the student's education or the tuition of the chosen private school, whichever is less. 9 A child participating in the Special Needs Scholarship program must have lived in Georgia for one year, spent the prior school year in a public school, and have a disability as defined by the Act.4 0 In addition, the public school the disabled child attends must have created an Individualized Education Program ("IEP") for the child.4 1 Finally, the disabled child must apply and gain admission to a participating private

Mar. 22, 2010); S.B. 201, 146th Gen. Assem., 1st Reg. Sess. (Ga. 2001) available at http://www.broc.state.ga.us/legis/2001_02/fulltext/sb201.htm (last visited Mar. 22, 2010).

35. CompareGa. S.B. 200 and Ga. S.B. 201, with Ga. S.B. 329.

36. Ga. Gen. Assem., S.B. 200 (July 21, 2002), Gen. Ga. http://www.legis.state.ga.us/legis/2001_02/sum/sb200.htm; Assem., S.B. 201 (July 21, 2002), http://www.legis.state.ga.us/legis/2001_02/sum/sb20l.htm.

37. O.C.G.A. ยง 20-2-2110 to -2118 (2009).

38. FLA. STAT. ยง 1002.39 (2009); Bridget Gutierrez, Georgia May Copy Florida Vouchers, ATLANTA J.-CONST., Mar. 12, 2007, available at http://www.schoolchoiceinfo.org/news/index.cfm?action=detail&newsid=7 97 (last visited Mar. 8, 2009).

39. O.C.G.A ยง 20-2-2110 to -2118 (2009).

40. O.C.G.A ยง 20-2-2114 (2009) (listing the following disabilities as a program eligibility requirement: Autism, Deaf/blind, Deaf/hard of hearing, Emotional and behavioral disorder, Intellectual disability, Orthopedic impairment, Other health impairment, Specific learning disability, Speechlanguage impairment, Traumatic brain injury, or Visual impairment).

41. Id.

No. 2]

The Universal School Vouchers Roadblock

431

school before applying for the vouchers program. 42 This Act gives the Georgia Department of Education the sole discretion to determine which students will be accepted into the vouchers program and provides no guidance to the Department as to the basis for granting or denying admission to the program. 43 The state expended almost $5,500,000 under this vouchers program during the first year of its operation and almost $10,000,000 during the second year."

During the 2009 and 2010 legislative sessions, the Georgia General Assembly considered Senate Bill 90, which was proposed by Senator Eric Johnson, the same Senator who proposed the Special Needs Scholarship Act.4 s This Bill sought to allow all children, regardless of disability or income-level, to receive state funds to attend the school of their choice, whether public or private, sectarian or secular.46 Under Senate Bill 90, children must meet the same requirements as provided in the Special Needs Scholarship Act, except that a disability is not a requisite for this program.4 7 Like the Special Needs Scholarship Act, the amount of funds available to students under Senate Bill 90 equal the amount of state funds a public school would have received for the student's education, or the tuition of the chosen private school, whichever is less.48

42. Id. See also GA. DEPT. OF EDUC., 2008-2009 GEORGIA SPECIAL NEEDS SCHOLARSHIP PROGRAM END OF SCHOOL YEAR REPORT 12-15 (Nov.

23, 2009), available at http://public.doe.kl2.ga.us/sbl0.aspx [hereinafter 2008-2009 EOY REPORT] (under GSNS Reporting, on the bottom right corner of the page, click "08-09 GSNS End of Year Rpt") (listing all private schools participating in the Special Needs Scholarship Program in the 20082009 school year).

43. O.C.G.A ยง 20-2-2114 (2009).

44. GA. DEPT. OF EDUC., 2007-2008 GEORGIA SPECIAL NEEDS SCHOLARSHIP PROGRAM END OF SCHOOL YEAR REPORT 4 (Nov. 18, 2008), available at http://public.doe.kl2.ga.us/sbl0.aspx [hereinafter 2007-2008 EOY REPORT] (under GSNS Reporting, on the bottom right corner of the page, click "07-08 GSNS End of Year Rpt"); 2008-2009 EOY REPORT, supra note 42, at 4.

45. S.B. 90, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009).

4 6. Id. 47. Compare Ga. S.B. 90, with O.C.G.A ยง 20-2-2114 (2000).

48. Ga. S.B. 90.

432

John MarshallLaw Journal

[Vol. III

On February 3, 2009, the Senate read Senate Bill 90 and referred it to the Education and Youth Committee.49 On February 26, 2009, the Committee favorably reported on Senate Bill 90, and the Senate read the Bill for the second time on March 3, 2009.0 While Senate Bill 90 failed to pass the Senate during the 2009 legislative session, the Senate recommitted the Bill in the second regular session of the 150th General Assembly on January 11, 2010." However, the Senate gave the Bill little attention during the 2010 legislative session, and it failed to pass prior to the end of crossover day on March 26,

2010.52 The language of Senate Bill 90, as is analyzed in more detail below," is very broad and provides few limitations on the spending of public funds under the program. This lack of tailoring likely was a cause of the limited attention the General Assembly gave the Bill. However, as the school choice movement continues to gain popularity in Georgia, the potential for future similar legislation, seeking to create a univeral school vouchers program, warrants pause as such programs implicate both federal and state laws as well as the state's fundamental interest in educating children.

III. FEDERAL LAw AFFECTING SCHOOL VOUCHERS PROGRAMS There is currently no federal school vouchers program; however, federal laws that affect the ways in which the states can create and implement such programs do exist.5 4 While these (Mar. S.B. 90 Assem., Gen. 49. Ga. http://www.legis.ga.gov/legis/2009_10/sum/sb90.htm.

20,

2010),

50. Id. 51. Id.

52. Id. 53. See infra Part IV. 54. While a thorough analysis is outside the scope of this comment, it is arguable that the language of Senate Bill 90 may implicate the Individuals with Disabilities Education Act, 20 U.S.C. ยง 1400 (2010) and the No Child Left Behind Act, 20 U.S.C. ยง 6301 (2010). Both Acts require that programs refrain from violating otherwise existing state law, including state constitutional provisions. See 20 U.S.C. ยง 1400 (2010); 20 U.S.C. ยง 6301 (2010). As is analyzed infra Part IV, the vouchers program created by Senate Bill 90 likely violates the Georgia Constitution. By violating the

Georgia Constitution, which constitutes existing state law, Senate Bill 90

No. 2]

The UniversalSchool Vouchers Roadblock

433

federal laws generate important requirements for Georgia lawmakers to consider when evaluating the merits of a universal school vouchers program, there are likely no viable federal constitutional challenges to such programs.

A. Establishment Clause Challenges to School Vouchers School vouchers programs, which allow students to devote public funds to private, religiously affiliated schools, implicate the First Amendment to the United States Constitution, which states that "Congress shall make no law respecting an establishment of religion . . .

Some have argued that state

school vouchers programs violate the Establishment Clause of the First Amendment."6 However, the United States Supreme Court in Zelman v. Simmons-Harris held that such programs do not violate the Establishment Clause.5 7 In that case, Ohio state taxpayers challenged the Ohio Pilot Scholarship Program ("PSP"), a school vouchers program similar to the program proposed by Senate Bill 90.8 Participants of the program intervened as defendants.5 9 The PSP provides financial assistance to families in any Ohio school district that has been under the supervision and operational management of the state superintendent by order of a federal court. 6 0 At the time the Supreme Court reviewed Zelman, the Cleveland school district is the only district to fall within this category; therefore, any public or private school within that district can accept state funds from students participating in the program.6 1 The PSP awards families with incomes below two hundred percent of the poverty line a scholarship worth ninety percent of the private school tuition up would also violate both the IDEA and NCLB. Such violations could require Georgia to reimburse the federal government for the funds it has been granted under these Acts. See 20 U.S.C. ยง 1400 (2010); 20 U.S.C. ยง 6301 (2010).

55. U.S. CONST. amend. I. 56. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

57. Id. at 653.

58. Id. 59. Id. 60. Id. at 644-45.

61. Id. at 645.

434

John MarshallLaw Journal

[Vol. III

to $2250.62 These low-income families receive first priority in the distribution of funds. Assuming that scholarship funds are still available after the participating low-income families have received their award, the PSP awards all other participating families a scholarship worth seventy-five percent of the private school tuition up to $1875.1 In analyzing the constitutionality of the PSP under the Establishment Clause, the Supreme Court considered whether the government aid program is neutral with respect to religion and provides aid to a broad class of citizens. 65 The Court noted that where a program meets this test, the program is not subject to challenge under the Establishment Clause, even if the citizen receiving the government aid, based on her own genuinely independent choice, directs the aid to a religious institution.6 6 The Supreme Court found that the Ohio program was neutral with respect to religion as it was a part of Ohio's general effort to improve the educational opportunities available to children in failing school districts.6 7 The Court also found that the PSP benefits a broad class of citizens, as any parent with a school62. Zelman v. Simmons-Harris, 536 U.S. 639, 646 (2002).

63. See id.

64. Id. 65. Id. at 652. As was noted by the United States Supreme Court in Edwards v. Aguillard, in analyzing whether public school legislation comports with the Establishment Clause, the proper test is the Lemon test.

482 U.S. 578, 583 n.4 (1987). To pass the three-prong Lemon test, the legislation (1) must have been adopted with a secular purpose; (2) must not have a principal effect that either advances or inhibits religion; and (3) must not result in an excessive entanglement of government with religion. Id. at 583.

While the Supreme Court did apply the Lemon test in Zelman, the Court's analysis of the "effects" prong dominates the opinion. Zelman, 536 U.S. at 648-49, 668-69 (O'Connor, J., concurring). The Court makes quick work of the "secular purpose" prong as there was no dispute that providing educational assistance to poor children is a valid secular purpose. Id. at 649.

Further, because the Court has essentially combined the "entanglement" prong with the "effects" prong, the Court did not provide a separate "entanglement" prong analysis in Zelman. See id. at 650-63; Agostini v.

Felton, 521 U.S. 203, 232 (1997) ("[T]he factors we use to assess whether an entanglement is 'excessive' are similar to the factors we use to examine 'effect."').

66. Zelman, 536 U.S. at 652.

67. Id. at 653.

No. 2]

The Universal School Vouchers Roadblock

435

aged child in a failing school district is eligible to participate in the program. 8 The Court reasoned that although some of the parents participating in the PSP chose to use the government aid in religiously affiliated private schools, the program created no incentives that encouraged the parents to choose religious schools.69 The only way a religious private school could receive funds under the PSP was if a parent endorsed the tuition check Because the program did not over to such a school. 70 incentivize students to attend private schools in any way and religious organizations only gained benefit from the program based upon the "true private choice" of the participating parents, the Court held that the Ohio program did not violate the Establishment Clause.7 1 B. Applying the Establishment Clause to Senate Bill 90 The Supreme Court's holding in Zelman seemingly opens the door for state legislatures to create constitutionally valid school vouchers programs modeled after the Ohio PSP. However, because the Supreme Court's analysis in Zelman focused closely on the "true private choice" of program participants, there may be other federal constitutional challenges that the Court did not address which could impede state school vouchers programs such as the program proposed by Senate Bill 90.72 For example, despite the fact that Ohio's PSP failed to prohibit participating private schools from discriminating based on any grounds other than race, color, or national origin, the United States Supreme Court in Zelman did not address the possibility that this failure, in and of itself, is a violation of the Establishment Clause.

Much like the Ohio PSP, the language of Senate Bill 90 places minimal eligibility requirements on private schools.

Most importantly, Senate Bill 90 requires participating private schools to comply only with the anti-discrimination provisions of 42 U.S.C. ยง 2000(d), which prohibits discrimination based on 68. Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002).

69. Id. 70. Id. at 646.

71. Id. at 653, 663.

72. Thirty-six amicus curiae briefs were filed in the Zelman case, no doubt raising several legal issues left unaddressed by the Supreme Court's opinion.

436

John MarshallLaw Journal

[Vol. III

race, color, or national origin; the Bill does not prohibit discrimination based on any other classes. 3 As the Bill places no further limits on discrimination by private schools, a participating private school can deny a student admission based on gender, religion, disability, economic status, sexual orientation or any other characteristic not protected by 42 U.S.C. ยง 2000(d), and that school would still be eligible to receive state taxpayer dollars under Senate Bill 90.

This scenario creates a slightly different Establishment Clause issue as Senate Bill 90 would provide state funds to religious private schools while permitting those schools to However, public schools are engage in discrimination. prohibited from engaging in discrimination based on any classification.7 4 In effect, Senate Bill 90 would allow religious private schools to benefit from public funds without subjecting them to the same limitations as public schools. By permitting a religious school to receive public funds while engaging in discrimination which is prohibited for a public school, Senate Bill 90 can be said to "advance" religion. The advantage to religious private schools is evident as these schools can opt to admit only gifted or affluent students in hopes of producing higher test scores and bringing in greater private resources, while public schools must admit all students regardless of talents or wealth. By advancing a religion, Senate Bill 90 would fail the "effects" prong of the Lemon test, thereby violating the Establishment Clause of the First Amendment.

Because Zelman did not specifically address this issue, there is no precedent law that would prohibit a court from finding an Establishment Clause violation on these grounds. However, what is clear from the Court's decision in Zelman is that the Court's conclusion turned on the fact that any benefit to a religious school created by Ohio's PSP would be based on the "true private choice" of the parent, a choice also afforded to Because the parents under the Senate Bill 90 program." program proposed by Senate Bill 90 does not encourage or incentivize participating parents to direct public funds to

73. Ga. S.B. 90; 42 U.S.C. ยง 2000(d) (2010).

74. See U.S. CONST. amend. XIV, ยง 1 ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.").

75. Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002); Ga. S.B. 90.

No. 2]

The Universal School Vouchers Roadblock

437

private, sectarian schools, 6 the Bill is neutral with respect to religion and likely cannot be challenged under the Establishment Clause of the First Amendment of the United States Constitution, even under this alternative theory.

IV. STATE CONSTITUTIONAL AND PUBLIC POLICY CHALLENGES To UNIVERSAL SCHOOL VOUCHERS While no federal law challenges to universal school vouchers may exist, the language of Senate Bill 90 creates both state constitutional and public policy challenges to the school vouchers program it proposes. These potential challenges should be instructive when drafting and evaluating future legislation seeking to create a universal school vouchers program in Georgia.

A. State ConstitutionalChallenges to Universal School Vouchers While the United States Supreme Court's decision in Zelman could impede a finding that a universal school vouchers program violates the Establishment Clause of the United States Constitution, such a program may violate the Blaine Amendment of the Georgia Constitution as well as the state's constitutional guarantee to a free, adequate public education.

Using the language of Senate Bill 90 as an example, the following discussion elucidates the susceptibility of universal school vouchers to constitutional challenge.

1. Universal School Vouchers May Violate the Blaine Amendment a. The History of Georgia'sBlaine Amendment Article I, section 2, paragraph 7 of the Georgia Constitution states that "[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or 76. Ga. S.B. 90 ("Any scholarship directed to a participating school is so directed wholly as a result of the genuine and independent private choice of the parent.").

438

John MarshallLaw Journal

[Vol. III

religious denomination or of any sectarian institution."" This constitutional provision, known as the Blaine Amendment, was based upon the 1875 proposal of Speaker of the House James Blaine to amend the United States Constitution." At that time, the First Amendment had not yet been interpreted to apply to the states through the Fourteenth Amendment, so Blaine's amendment would have worked to ensure that "not one dollar of money appropriated to [support schools], no matter how raised, shall be appropriated to the support of any sectarian school."7 While seemingly a legitimate goal, Blaine's amendment was motivated by political ambitions of becoming president and anti-Catholic animus spurred from conflict between Catholic immigrants and the Protestant controlled school system. 0 If enacted, the Amendment would have prevented Catholic schools from receiving public funds and forced Catholic students into Protestant public schools."' Falling four votes shy of the necessary supermajority in the Senate, the federal Blaine Amendment failed; yet over the next two decades almost thirty states enacted variations of the Blaine Amendment.8 2 Today, thirty-seven state constitutions contain some version of the Blaine Amendment," including the Georgia Constitution.8 4 77. GA. CONST. art. I, ยง 2, para. 7.

78. Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 HARV. J. L. & PUB. POL'Y 551, 556 (2003).

79. Id. at 557; President Ulysses S. Grant, Speech to the Army of the Tennessee (Sept. 29, 1875).

80. DeForrest, supra note 78, at 557, 564.

81. Id. at 560-64.

82. See id. at 573.

83. Shannon S. Taylor, Special Education, Private Schools, and Vouchers: Do All Students Get a Choice?, 34 J.L. & EDUC. 1, 16 (2005).

84. In 2003, after a proposal by Governor Sonny Perdue, Senator Daniel Lee introduced Senate Resolution 560 which proposed to amend the Blaine Amendment of Georgia's Constitution. Press Release, Office of the Governor, State of Ga., Governor Perdue Proposes Faith-Based available at (Oct. 7, 2003), Constitutional Amendment http://gov.georgia.gov/00/press/detail/0,2668,78006749_91290006_9168267 7,00.html [hereinafter Governor Perdue Press Release]; S.B. 560, 147th Gen. Assem., Ist Reg. Sess. (Ga. 2003) (as introduced), available at http://www.legis.state.ga.us/legis/2003 04/versions/sr560As introduced LC_28_2.htm (last visited Mar. 22, 2010). The amendment sought to add

The UniversalSchool Vouchers Roadblock

No. 2] b.

439

Analyzing Senate Bill 90 Under the Blaine Amendment

The universal school vouchers program proposed by Senate Bill 90 permits students participating in the vouchers program to use tuition awards to fund private school education." With 80.6% of all private school students enrolled in religiously affiliated schools, chances are that parents who would participate in the Senate Bill 90 program who choose to send their children to private schools would distribute school vouchers funds taken from the public treasury to religiously affiliated organizations.8 Also, the Bill requires that payments of private school tuition made be mailed directly from the Department of Education to the private school, whereupon the parent endorses the check over to the private school." Such a vouchers program in Georgia may violate the plain language of the following language to Georgia's Blaine Amendment: "except as permitted or required by the United States Constitution, as amended." Ga. S.B. 560. The drafters intended this clause to prevent discrimination against faith-based institutions by creating an interpretation of Georgia's Blaine Amendment that would allow individuals to use public funds at faith-based institutions. Governor Perdue Press Release, supra. However, if passed, Senate Resolution 560 would have prevented Georgia courts from striking down voucher programs as violative of the Blaine Amendment. Id.; see Ga. S.B. 560 (as introduced). Although the Georgia Senate passed this Resolution in January 2004, the House did not consider the Resolution, and it Ga. Gen. Assem., S.R. 560 (July 23, 2004), died in committee. http://www.legis.state.ga.us/legis/2003_04/sum/sr560.htm.

The next year the General Assembly considered an identical resolution, Senate Resolution 49. S.R. 49, 148th Gen. Assem., 1st Reg. Sess. (Ga. at available introduced), (as 2005) http://www.legis.state.ga.us/legis/2005-06/versions/sr49_As-introducedLC The Resolution's 28_1995_EC_2.htm (last visited Mar. 22, 2010). supporters argued that the amendment was intended to redress the mistake that Georgia made when it adopted the discriminatory Blaine Amendment and to allow the state to provide public funds to religious organizations Governor Perdue Press Release, supra. performing social services.

However, several opponents countered that the true intention behind the Resolution was to pave the way for school vouchers. See id. In any event, Senate Resolution 49 failed to pass the Senate, and Georgia's Blaine Amendment, as adopted, remains intact. Ga. Gen. Assem., S.R. 42 (Oct. 11, 2006), http://www.legis.state.ga.us/legis/2005_06/sum/sr42.htm .

85. Ga. S.B. 90.

86. PRIVATE SCHOOL UNIVERSE SURVEY, supra note 4.

87. Id.

440

John MarshallLaw Journal

[Vol. III

the Blaine Amendment because by permitting a state agency, the Department of Education, to directly disburse state tax funds from the public treasury to a religious institution, a sectarian private school. 8 The Georgia Attorney General has interpreted the Blaine Amendment to provide broader protection to Georgia citizens than the Establishment Clause.89 Therefore, while the United States Supreme Court's ruling in Zelman may have foreclosed a finding that school vouchers are unconstitutional under the Establishment Clause, that ruling would not hinder a state court 88. Georgia taxpayers may be suitable plaintiffs to challenge the school vouchers program, claiming a violation of Georgia's Blaine Amendment. To have standing, a plaintiff must establish an injury in fact, causation and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

While taxpayer injuries, in some cases, may be too abstract to give rise to standing, the injury to Georgia taxpayers caused by Senate Bill 90 would invade the taxpayers' constitutionally protected interest in preventing the distribution of state funds to religious institutions. Id. at 573-74; GA. CONST. art. I, ยง 2, para. 7. As Georgia taxpayers would be challenging a violation of the Blaine Amendment of the Georgia Constitution, they would have an injury in fact sufficient to give rise to taxpayer standing. Such an injury is more than fairly traceable to the actions of the state, as the vouchers program will not exist without the state enacting Senate Bill 90. Also, state funds would not be awarded to religious private schools without the state approving such schools to participate in the voucher program and mailing award checks to the religious private schools. Thus, there is sufficient causation to give the Georgia taxpayers standing.

Finally, the injury to Georgia taxpayers is redressable as their interest in preventing state funds from going to religious institutions would be protected and restored if a court were to deem the school vouchers program created by Senate Bill 90 unconstitutional and prohibit the state from disbursing taxpayer dollars to religious private schools. As Georgia taxpayers will suffer an actual injury, if the state is permitted to distribute tax funds to religious private schools and that injury could be redressed by a ruling that the Senate Bill 90 vouchers program is unconstitutional, Georgia taxpayers would have standing to sue for a violation of the Blaine Amendment. This conclusion is supported by the fact that it was Ohio taxpayers who were found to have standing to sue in Zelman, suggesting that Georgia taxpayers would also have standing to challenge the voucher program created by Senate Bill 90. See Zelman v. Simmons-Harris, 536 U.S. 639, 639 (2002) (finding that Ohio taxpayers had standing to sue as is evidenced by the fact that the Court heard, analyzed, and ruled on the merits of the claim, despite the lack of explicit standing analysis).

89. 1960 Op. Ga. Att'y Gen. 349.

No. 2]

The Universal School Vouchers Roadblock

441

finding that school vouchers violate the broader, more encompassing Blaine Amendment.

The Georgia Supreme Court has not yet had occasion to review the constitutionality of a school vouchers program under the Blaine Amendment. However, the Georgia Supreme Court evidenced a strict interpretation of the Blaine Amendment, in accord with the Attorney General's opinion, in Bennett v. City of La Grange.90 In that case, the court held that the City's use of public funds to pay the Salvation Army for caring for the City's poor constituted the taking of money from the public treasury, directly and indirectly, in aid of a religious organization in violation of the Blaine Amendment.9 ' If the use of public funds to pay a religious organization for its service to the poor violates the Blaine Amendment, so too should the use of public funds to pay a religious organization to education children violate the Blaine Amendment.

Moreover, other state courts have used their state's version of the Blaine Amendment to strike down vouchers programs, which may encourage a similar finding if a universal school vouchers program is contested in a Georgia court. 92 For 90. Bennett v. City of La Grange, 112 S.E. 482 (Ga. 1922).

91. Id. at 484.

92. Cain v. Home, 202 P.3d 1178 (Ariz. 2009) (holding that two school voucher programs which allow foster and disabled children to use public funds to attend private schools violate the Arizona Constitution); Bush v.

Holmes, 886 So.2d 340 (Fla. 1st Dist. Ct. App. 2004) (holding that Florida's Opportunity School Voucher system violates Florida's Blaine Amendment), declined to address issue in 919 So.2d 392 (Fla. 2006). But see Jackson v.

Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied 525 U.S. 997 (1998) (holding that the Milwaukee school vouchers program does not violate the Blaine Amendment of Wisconsin's Constitution because the primary effect of the program was not to benefit religious organizations).

While the Wisconsin Supreme Court declined to strike down the Milwaukee Parental Choice Program under the state's Blaine Amendment, the Court's analysis focused on whether the primary effect of the program was to benefit religious organizations - analysis that is essentially the same as the "effects" prong of the Lemon test applied to Establishment Clause challenges. See Jackson v. Benson, 578 N.W.2d 602, 621 (Wis. 1998), cert.

The Court's application of analysis denied 525 U.S. 997 (1998). substantially identical to Establishment Clause analysis suggests that the Wisconsin Supreme Court does not interpret its Blaine Amendment to require a stricter reading than the Establishment Clause, as does Georgia.

Therefore, the Wisconsin Blaine Amendment can be characterized as more

442

John MarshallLaw Journal

[Vol. III

example, in 2006, the First District Court of Appeals of Florida declared the state's Opportunity Scholarship Program unconstitutional in violation of the state's Blaine Amendment.93 The language of Florida's Blaine Amendment is almost identical to Georgia's Blaine Amendment: "[n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." 94 Interpreting this language as "far stricter" than the Establishment Clause, the First District Court of Appeals of Florida held that this provision is violated when religious organizations benefit from increased student enrollment or financing, even when this benefit is granted based on the independent choice of a parent.95 Because the Opportunity Scholarship Program granted students public funds to finance private education at religiously affiliated schools, the court found the program to be unconstitutional in violation of Florida's Blaine Amendment.96 Georgia's Blaine Amendment, with strikingly similar language to the Florida Blaine Amendment, has also been interpreted by the Georgia Attorney General and Georgia Supreme Court to require a stricter reading than the Establishment Clause. 97 With Senate Bill 90 allowing the same transfer of public funds from the treasury to religiously affiliated private schools through the choice of participating

permissive than the more strictly interpreted Georgia Blaine Amendment, and Jackson v. Benson should be instructive to Georgia courts reviewing Senate Bill 90.

93. Bush, 886 So.2d at 366. This decision was a case of first impression for the First District Court of Appeals of Florida. Id. at 367. Because its decision invalidated the Florida statute authorizing the Opportunity Scholarship Program, the First District Court of Appeals of Florida certified the question of whether the program violated the Blaine Amendment to the Supreme Court of Florida. Id. However, the Supreme Court of Florida expressly declined to address that issue. Bush v. Holmes, 919 So.2d 392, 413 (Fla. 2006).

94. FLA. CONST. art. I, ยง 3.

95. Bush, 886 So.2d at 352-53, 359-60 (quoting Witters v. Washington Dep't. of Servs. for the Blind, 474 U.S. 481, 489 (1981).

96. Id. at 413.

97. See, e.g., 1960 Op. Ga. Att'y Gen. 349; Bennett, 112 S.E. at 484.

No. 2]

The Universal School Vouchers Roadblock

443

students 98 as was allowed by Florida's Opportunity Scholarship Program, it is a reasonable conclusion that Georgia courts may follow the lead of the First District Court of Appeals of Florida and find that such a vouchers program violates the Blaine Amendment.

Proponents of a universal school vouchers program argue that state funds are being distributed to religious private schools based solely upon the independent choice of parents. However, this argument does not support the constitutionality of the program, as the Blaine Amendment prohibits both direct and indirect distribution of state funds to secular institutions." A parent's endorsement of a state funds check over to a secular private school can be considered an indirect distribution of state funds to a religious institution in violation of the Blaine Amendment.

Given the Georgia Attorney General's opinion and the Georgia Supreme Court's strict interpretation of the Blaine Amendment, a universal school vouchers program likely would violate the Blaine Amendment. The state court decisions striking down similar vouchers programs support this conclusion.100 Therefore, by enacting a universal school vouchers program, such as the one proposed by Senate Bill 90, the Georgia General Assembly would be permitting the use of state funds for religious institutions in violation of the Georgia Constitution.

2.

UniversalSchool Vouchers May Violate the Guaranteeof Free,Adequate Public Education

Additionally, a universal school vouchers program's effect on the education of students not participating in the program may also create a constitutional issue. Article VIII, section 1, paragraph I of the Georgia Constitution states: "The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation."' 0 ' By its own terms, 98. Ga. S.B. 90.

99. GA. CONST. art. I, ยง 2, para. 7 (emphasis added).

100. See supra note 92.

101. GA. CONST. art. VIH, ยง 1, para. 1.

444

John MarshallLaw Journal

[Vol. III

this constitutional provision does more than merely give the state authority to administer public education; it obligates the state to make adequate elementary and secondary education available to the public for free. 0 2 Yet, the lanuguage of Senate Bill 90 allows the public education resources provided by taxation to fund public schools to be distributed to private schools, which traditionally have much greater resources than public schools.o 3 By reducing the funds available to public schools, Senate Bill 90 further limits the resources available to all students and hinders the ability of public schools to provide an adequate education. Moreover, by disbursing these funds to finance private education, rather than public education, the state of Georgia is arguably neglecting its "primary obligation" to provide public education.104 Therefore, a universal school vouchers program, such as Senate Bill 90, may violate Georgia's mandate that all children receive a free, adequate public education. 0 102. Id. (emphasis added).

103. Ga. S.B. 90.

104. GA. CONST. art. VIII, ยง 1, para. 1.

105. Georgia public school students not participating in the vouchers program, through their parents, may be suitable plaintiffs to challenge school vouchers, claiming the state's failure to provide an adequate education. See supra note 88 for a discussion of the standing test. As evidence of an injury in fact, such students could assert a deprivation of their constitutionally protected right to a free, adequate public education. However, such a claim may be difficult to support. Empirical studies which show the fiscal and educational impact on students remaining in public schools after implementation of a vouchers program may be necessary to support such a claim. As the program has not yet been implemented, such evidence has not been produced. Therefore, an inadequate education claim may be most viable only after a school voucher program has been in place in Georgia for several years.

Further, the students could establish causation between the state and this injury as the vouchers program will not exist without the state enacting Senate Bill 90, and the state funds would not be distributed to private schools to the detriment of public schools without the state mailing award checks to the private schools. The students' injury would be redressed if a court were to declare the Senate Bill 90 program unconstitutional; as public schools would not be deprived of the funds used for the vouchers program and would have more resources available to provide students an adequate education.

Therefore, students not participating in the vouchers program would have standing to challenge Senate Bill 90 as a violation of their fundamental right

No. 2]

The UniversalSchool Vouchers Roadblock

445

As with the Blaine Amendment, most state constitutions guarantee a right to education,106 and, some states have struck down school vouchers programs as violative of these Again, the state of Florida presents a prime provisions. example as the Supreme Court of Florida, in reviewing the certified question of the First District Court of Appeals in Bush v. Holmes,"os declared the Opportunity Scholarship Program unconstitutional in violation the state's constitutional guarantee to "free public schools that allow students to obtain a high to an adequate education. This conclusion is supported by the fact that it was Georgia students, through their parents, that were found to have standing to sue in Williams on exactly the same claim. See Williams v. Georgia, 627 S.E.2d 891, 892 (Ga. 2006) (finding that Georgia public schools students had standing to sue as is evidenced by the fact that the Court heard, analyzed, and ruled on the merits of the claim, despite the lack of explicit standing analysis).

106. See, e.g., Wis. CONST. art. X, ยง 3; COLO. CONST. art. IX, ยง 15; FLA. CONST. art. IX, ยง 1(a).

107. See Owens v. Colo. Cong. of Parents, Teachers & Students, 92 P.3d 933, 944 (Colo. 2004) (declaring the Colorado Opportunity Contract Pilot Program unconstitutional as it violated Article IX, Section 15 of the Colorado Constitution); Bush v. Holmes, 919 So.2d 392, 407 (Fla. 2006) (declaring the Florida Opportunity Scholarship Program unconstitutional as it violated Article IX, Section 1(a) of the Florida Constitution). But see Jackson v. Benson, 578 N.W.2d 602, 628 (Wis. 1998), cert. denied 525 U.S. 997 (1998) (finding the Milwaukee Parental Choice Program did not violate Article X, Section 3 of the Wisconsin Constitution).

While the Wisconsin Supreme Court found that the Milwaukee school vouchers program did not violate the state's constitutional right to education, it did so based on constitutional language that is quite different from that of Georgia's Constitution. Compare Wis. CONST. art. X, ยง 3 ("The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours."), with GA. CONST. art.

VIII, ยง 1, para. 1 ("The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation."). Because the Wisconsin Constitution grants its citizens on the right to education, not adequate education, the Jackson opinion should not be instructive to a Georgia court reviewing Senate Bill 90.

108. Bush, 919 So.2d at 413.

446

John MarshallLaw Journal

[Vol. III

quality education."l 09 The court reasoned that because the Opportunity Scholarship Program allowed public funds to go to private schools, the program was using the state's resources to educate children through means other than a system of free public schools in violation of the plain language of the Florida Constitution.'o The court went on to note that the program undermined the system of "high quality" education by reducing the funds available to public schools."'

The Georgia Constitution, like the Florida Constitution, requires the state to provide its citizens education through free, public schools. Therefore, if a universal school vouchers program which allows public funds to finance private education violates this provision in the Florida Constitution, a program which allows the same distribution of public funds to finance private education, such as Senate Bill 90, should also violate the similar provision in Georgia's Constitution. It is true that the Georgia Constitution does not guarantee citizens a high quality education, as does Florida's Constitution.1 2 However, it is a reasonable inference that if public schools providing high quality education are undermined when their funding is reduced, as the Florida Supreme Court suggests, then further limiting the funds available to Georgia public schools, which currently are struggling to provide only adequate education, could have an even more devastating effect.

Some may argue that the decision of the Court of Appeals of Georgia in Williams v. Georgiall3 may make success on an inadequate education claim more difficult. However, the downfall of the plaintiffs' claim in Williams was that they claimed a denial of the right to choose the best education for Future challenges to school vouchers their children." 4 programs could circumvent this holding by claiming that the state has failed to provide an adequate education, as is granted Because universal school by the Georgia Constitution."'

109. FLA. CONST. art. IX, ยง 1(a).

110. Bush, 919 So.2d at 407.

111. Id. at 409.

112. Compare FLA. CONST. art. IX, ยง 1(a), with GA. CONST. art. VIII, ยง 1, para. 1.

113. See supra Part II.A. for a discussion of the Williams case.

114. Williams v. Georgia, 627 S.E.2d 891, 893 (Ga. 2006).

115. GA. CONST. art. VIII, ยง 1, para. 1.

No. 2]

The UniversalSchool Vouchers Roadblock

447

vouchers reduce the funding available to public schools and subvert Georgia's primary obligation to those public schools, such programs likely violate Georgia citizens' constitutionally protected right to a free, adequate public education.

As is exemplified through an analysis of Senate Bill 90, a universal school vouchers program could be challenged under both Georgia's Blaine Amendment and the guarantee of a free, adequate public education provided in Georgia's Constitution.

The Georgia Attorney General's and the Georgia Supreme Court's opinions strictly interpreting the Blaine Amendment, in conjunction with the decisions from other states striking down vouchers programs under similar Blaine Amendments, support the success of a Blaine Amendment challenge to school vouchers in Georgia. An inadequate education claim may be an uphill battle best fought after the school vouchers program has been in place for several years, allowing time to generate empirical data evidencing the affect of the program on public schools. Yet, the Florida Supreme Court's decision in Bush should be instructive to Georgia courts given the similarity of the two states' constitutional provisions.

B. Public Policy Challengesto Universal School. Vouchers Few would argue that the general goal to improve the educational opportunities of Georgia students creates bad public policy. However, reasonable minds differs on the appropriate means to achieve that end. While a universal school vouchers program may create the desired opportunites for some, public policy demands that state educational initiatives promote the interests of all students rather than a select few. A look at the provisions of Senate Bill 90 illuminates several policy concerns relating to universal school vouchers of which Georgia citizens should be aware.

1.

UniversalSchool Vouchers May Not Give Parents Unfettered School Choice

Despite the fact that Senate Bill 90 was championed as a means to give Georgia parents the power to govern the

448

John MarshallLaw Journal

[Vol. III

education of their children,"'6 the program it proposes may not actually give parents the right to freely choose which school their children should attend. A student is eligible for the school vouchers program proposed by Senate Bill 90 only if the student's parent currently resides in and has been a resident of Georgia for at least one year."' Also, the student must have attended a Georgia public school for at least one year, and the student's parent must submit an application to the Georgia Department of Education prior to a deadline specified by the Department."' Before applying for the vouchers program, the student must receive admission to a participating school." 9 To become eligible to accept students under the vouchers program proposed by Senate Bill 90, a school must have a Also, the school must physical location in Georgia. 20 demonstrate that it is fiscally sound by having been in operation at least one year or by submitting a financial report confirming that the school is insured and has sufficient capital according to the standards of the Department of Education. 2 ' Participating 116. Currently, Georgia students are required to attend the public school within their residential district, unless they are eligible for the Special Needs Scholarship or they elect to use their own funds to attend private school.

117. Ga. S.B. 90 ("A student shall qualify for a scholarship under this article if: (1) [t]he student's parent currently resides within Georgia and has been a Georgia resident for at least one year.").

118. Id. ("A student shall qualify for a scholarship under this article if: ...

(2) [t]he student has spent the prior school year in attendance at a Georgia public school; . . . (4) [t]he parent submits an application for a scholarship to

the department no later than the deadline established by the department.").

119. Id. ("A student shall qualify for a scholarship under this article if:...

(3) [t]he parent obtains acceptance for admission of the student to a participating school.").

120. Id. ("To be eligible to enroll a scholarship student, a participating school shall: (1) [h]ave a physical location in Georgia where the scholarship students attend classes and have direct contact with the school's teachers.").

121. Id. ("To be eligible to enroll a scholarship student, a participating school shall: . . . (2) [d]emonstrate fiscal soundness by having been in

operation for one school year or by submitting a financial information report for the school that complies with uniform financial accounting standards established by the department and conducted by a certified public accountant. The report must confirm that the school desiring to participate is insured and the owner or owners have sufficient capital or credit to operate the school for the upcoming school year serving the number of students anticipated with expected revenues from tuition and other sources that may

No. 2]

The UniversalSchool Vouchers Roadblock

449

schools must employ teachers holding at least a bachelor's degree and three years of experience in education.122 The school is required to annually report to the parents the credentials of its teachers and regularly report to the parents the academic progress of the students. 123 Also, the school is required to comply with state health and safety codes and all other state laws applicable to private schools.12 4 Based on these eligibility requirements for both the school and the student, a parent's choice is limited to the schools approved to participate in the program, and the choice is further limited by which of those approved schools agrees to admit the student. While a universal school vouchers program will admittedly provide parents with options other than the local public school in the student's residential district, the private schools approved to participate in the vouchers program are permitted to deny admission based on a student's age, gender, religion, disability, sexual orientation, or any trait other than race, color, or national origin.125 Because a student is not eligible for the vouchers program until she has been admitted to a participating school, the program proposed in Senate Bill 90

be reasonably expected. The report shall be limited in scope to those records that are necessary for the department to make a determination on fiscal soundness and to make payments to schools for scholarships.").

122. Id. ("To be eligible to enroll a scholarship student, a participating school shall: . . . (7) Employ or contract with teachers who hold a bachelor's degree or higher degree or have at least three years of experience in education and annually provide to the parents the relevant credentials of the teachers who will be teaching their students.").

123. Ga. S.B. 90 ("To be eligible to enroll a scholarship student, a participating school shall: .

.

. (6) Regularly report to the parent and the

department on the student's academic progress, including the results of preacademic assessments and post-academic assessments given to the student, in accordance with department guidelines.").

124. Id. ("To be eligible to enroll a scholarship student, a participating school shall: .

.

. (4) Comply with all health and safety laws or codes that

apply to private schools; (5) Comply with all provisions of Code Section 202-690 and any other state law applicable to private schools.").

125. See id. As discussed supra Part III.B., Senate Bill 90 requires that participating private schools comply with 42 U.S.C. ยง 2000(d) which prohibits discrimination based on race, color, and national origin, but the Bill does not prohibit private schools to discriminate based on any other classification. Id.

450

John MarshallLaw Journal

[Vol. III

leaves a student's eligibility for the vouchers program in the

discretion of the participating schools,'2 6 not Georgia parents.12 7 Further, universal school vouchers may create social inequality because they permit private schools, receiving public funds, to engage in discrimination based on any class other than race, color, and national origin.'2 8 The failure of the Bill to prohibit such discrimination would allow private schools to accept only those students with the best test scores, only those students free from disability, or only those students of a particular religion, leaving all other students ineligible to participate in the vouchers program for lack of a school to accept them.

Some may view the current educational system in Georgia to embody such inequality because only wealthy families can afford to send their children to private school or because the housing lines upon which public school assignments are made were influenced by the Jim Crow laws of the 1950s and 1960s.

However, any such existing inequality does not explain away the lack of measures to redress such inequality in the language of Senate Bill 90. Those concerned with the inequality of the current educational system will find no relief in the language of the Bill which merely extends public funds to private schools without preventing discriminatory admissions practices.12 9

126. Id. ("It shall be in the sole discretion of the school, in accordance with an annual policy established by the school council, to accept students pursuant to this [school vouchers program].").

127. Id. 128. Id. 129. In fact, Senate Bill 90 explicitly declines to take any measures which would regulate a private school's ability to use discriminatory admissions practices. Ga. S.B. 90 ("The creation of the program shall not be construed to expand the regulatory authority of the state, its officers, or any local school system to impose any additional regulation of nonpublic schools beyond those reasonably necessary to enforce the requirements of this article."). While limited government involvement in private schools likely is an important feature that attracts some parents to private schools, it is at least arguable that the transfer of public funds to private schools through school vouchers programs, such as Senate Bill 90, warrants a slight increase in the government's regulatory authority over such schools.

No. 2]

2.

The UniversalSchool Vouchers Roadblock

451

UniversalSchool Vouchers May Not Benefit Low-Income Families

Moreover, universal school vouchers may not actually benefit low-income families. Consider the funding mechanism of Senate Bill 90, which sets the amount of the scholarships available under its school vouchers program to be the cost of tuition and fees to attend the participating private school or the amount that the resident school pays per student to fund education, whichever is less.u1 0 Parents of eligible students remain responsible for all educational costs not covered by the voucher award, such as any tuition fees above the voucher amount awarded, and transportation costs.' 3' An analysis of the data relating to Georgia's existing school vouchers program, the Special Needs Scholarship Act, may illustrate this point.132 On average, Georgia schools spent $6331 130. Id. ("The amount of the scholarship provided pursuant to this article shall be the lesser of: (1) The costs of the educational program that would have been provided for the student in the resident school system as calculated under Code Section 20-2-161, which shall not include any federal or local funds; or (2) The amount of the participating school's tuition and fees, including any assessment fee required by the participating school.").

131. Id. ("[T]he parent shall be responsible for transportation to and from such school.").

132. Because the Georgia General Assembly has not yet enacted Senate Bill 90, no data on the vouchers program it creates is available. However, data is beginning to emerge on the Special Needs Scholarship Program, which was first available to students in the 2007-2008 school year.

O.C.G.A. ยง 20-2-2110 to -2118 (2007). Because the funding mechanism proposed by Senate Bill 90 is identical to that of the Special Needs Scholarship Program, funding data from the Special Needs Scholarship Program is the most appropriate, available tool for analyzing Senate Bill 90.

Cf Ga. S.B. 90 ("The amount of the scholarship provided pursuant to this article shall be the lesser of: (1) [t]he costs of the educational program that would have been provided for the student in the resident school system as calculated under Code Section 20-2-161, which shall not include any federal or local funds; or (2) [t]he amount of the participating school's tuition and fees, including any assessment fee required by the participating school."), with O.C.G.A. ยง 20-2-2116 (2009) ("(a) The maximum scholarship granted a scholarship student pursuant to this article shall be an amount equivalent to the costs of the educational program that would have been provided for the student in the resident school system as calculated under Code Section 20-2161. This shall not include any federal funds. (b) The amount of the scholarship shall be the lesser of the amount calculated in subsection (a) of

452

John MarshallLaw Journal

[Vol. III

per student under the Special Needs Scholarship Act in the 2008-2009 school year.' 3 Of the 135134 private schools which enrolled participating students that year, 100 schools charged more than $6331 in tuition. 135 The average tuition across all of the 135 participating private schools was $11,231.136 Applying these figures to the universal school vouchers program proposed in Senate Bill 90, some may argue that granting all low-income families, not just families of disabled students, $6331 toward private school education is a step toward a better educational opportunity. However, for the average student, this amount will not cover all costs of attendance at any one of the 100 participating private schools with tuition greater than $6331. Even where a student is granted an above average voucher award which will cover private school tuition in full, Senate Bill 90 leaves the parents responsible for transportation costs and other discretionary costs of attendance, such as book fees and uniform clothing requirements.'

These additional costs may be impossible to bear for low-income families struggling to make ends.

Therefore, a universal school vouchers program may not actually benefit low-income families who cannot cover the additional tuition, fees, and transportation costs above the amount awarded by the scholarship.

3.

UniversalSchool Vouchers are Fiscally Questionable

Finally, the program proposed in Senate Bill 90 is fiscally questionable because the Bill sets no maximum income level for program participants.13 8 Therefore, even families with sufficient funds to finance a private school education can apply for this school vouchers program and receive public funds. Allowing this Code section or the amount of the participating school's tuition and fees, if applicable.").

133. 2008-2009 EOY REPORT, supra note 42, at 4. The amount of vouchers granted ranged from $2592 to $13,586. Id. 134. While 145 private schools were eligible to participate in the Special Needs Scholarship Program, only 135 actually enrolled students in the 20082009 school year. Id. 135. See id. at 12-15.

136. See id. The cost of tuition of these 135 participating private schools ranged from $3270 to $37,950. See id.

137. Id. 138. Ga. S.B. 90.

No. 2]

The UniversalSchool Vouchers Roadblock

453

such an over-inclusive class of students to qualify for the program is an unprecedented legislative feat139- a feat which could result in unnecessary government spending and waste of taxpayer dollars. The taxpayers of Georgia undertook the state's first school vouchers legislation, the Special Needs Scholarship Act, only two years ago, leaving little time to determine whether such a vouchers program is ultimately successful in Georgia. With that program limited to only certain disabled students, the state spent almost $10,000,000 the program during the 2008-2009 school year. 40 The amount of spending is likely to increase exponentially under a universal school vouchers program as it contains no such eligibility limitation - a spending increase accomplished without a determination of whether the existing, more limited vouchers program is even effective.

Given the budgetary crisis in Georgia, it is of great concern that a universal school vouchers program would further tighten an already limited public education budget. The funds provided to students through vouchers are funds that a public school would have received if the student had remained in public school.' 4 ' The Senate Bill 90 program takes education funds 139. No other state in the nation has enacted such a universal school vouchers program. Most state school voucher programs limit enrollment based on financial need or failing public school systems. See, e.g., the Colorado Opportunity Contract Pilot Program, COLO. REv. STAT. §§ 22-56101 to -110 (repealed 2006) (limiting eligibility to only students that qualify for free or reduced lunch and further limiting the program to only 1%of the school district's enrollment); the Opportunity Scholarship Program, FLA. STAT. § 1002.38 (2005) (limiting eligibility to only students attending a failing school for two years in a four-year period); the Ohio Pilot Scholarship Program, OHIO REv. CODE ANN. §§ 3313.974-.979 (2010) (limiting eligibility to only students living in households with an income below 200% of the poverty line priority); the Milwaukee Parental Choice Program, Wis. STAT. § 119.23 (2009) (limiting eligibility to only students living in households with an income equal to or less than 175% the federal poverty line).

140. 2008-2009 EOY REPORT, supra note 42, at 4.

141. Ga. S.B. 90. Under the identical funding mechanism of the Special Needs Scholarship Program, the average student was awarded $6331. 20082009 EOY REPORT, supra note 42, at 4. Applied to Senate Bill 90, any Georgia student, meeting the residency requirements, could chose to transfer to a participating private school and take $6331 of public funds along with her. Ga. S.B. 90.

454

John MarshallLaw Journal

[Vol. III

from public schools and distributes them to private schools participating in the vouchers program.14 2 Last year, Georgia public schools were deprived of almost $10,000,000 which transferred along with students participating in the Special Needs Scholarship Program.143 Georgia's public schools are already struggling to provide adequate education with limited resources.'"

Implementing a universal school vouchers program will only further hinder the education of all Georgia students by depleting even greater resources necessary to provide the constitutionally required adequate public

education.145 While proponents of school vouchers may argue that the public school only loses the funds that would have been necessary to educate the student that is transferring pursuant to the vouchers program, this argument assumes an unrealistic flexibility in public school budgets. A public school's need to employ teachers, maintain facilities, and provide transportation does not change with the exit of one or even a few transferring students. An adjustment in a school budget based on individual student transfers would be impractical as it would mean the school must decrease the salary of the teachers which taught that student and decrease the spending on the computers, books, and all facilities which that student used by the percentage of the funds allocated to that individual student. However, in reality, that teacher's salary is likely already set, and the computers, books, and facilities have likely already been purchased, so even this across the board percentile decrease is impossible. It is unavoidable that the loss of funds caused by the transfer of even one student under a universal school vouchers program would affect the educational resources available to all public school students.

142. Ga. S.B. 90.

143. 2008-2009 EOY REPORT, supra note 42, at 4.

144. According to the U.S. Dept. of Education State Education Data Profiles, Georgia students scored below the national average in both fourth and eighth grade math and reading. See NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., STATE EDUCATION DATA PROFILES, NATIONAL ASSESSMENT OF EDUCATION PROGRESS (2005), http://nces.ed.gov/programs/stateprofiles/sresult.asp?mode=short&sl=13.

145. GA. CONST. art. VIII, ยง 1, para. 1.

No. 2]

The Universal School Vouchers Roadblock

455

Universal school vouchers may not give parents the school choice they expect from a vouchers program as the participating private schools are free to deny students based on any classification other than race, color, and national origin.

Vouchers may not actually benefit low income families because they leave those families to bear any costs of private school education left uncovered by the vouchers. Finally, universal school vouchers are fiscally questionable because they fail to adequately limit student eligibility for the program and further tighten an already limited public education budget. These public policy concerns create strong challenges to any proposed universal school vouchers program in Georgia.

V. CONCLUSION

While improving the education of Georgia's children should be an ever-present goal of the General Assembly, a universal school vouchers program, such as the program proposed in Senate Bill 90, does little to advance this goal while doing much to infringe upon the separation of church and state. The interest of Georgia citizens in preventing the use of tax dollars to support religious institutions is not a necessary casualty in the struggle to provide adequate public education.

Universal school vouchers go against public policy by advocating irresponsible fiscal spending to the disadvantage of public schools and taxpayers in Georgia while failing to guarantee low-income families a meaningful benefit. Further, such programs, especially the program proposed in Senate Bill 90, contain major flaws leaving them susceptible to litigation for violations of the Blaine Amendment to Georgia's Constitution and the fundamental right to a free, adequate public education guaranteed by Georgia's Constitution.

If a school vouchers program available to students other than those with a disability is to be a realistic goal for the State of Georgia, the General Assembly should strive to more narrowly tailor legislation so as to avoid these potential public policy and constitutional challenges. Language to limit program eligibility to only those students whose family income is below the poverty line by a specified percentage would be a significant step toward overcoming the policy concerns which led to the defeat of Senate Bill 90in the state legislature. Limiting the program to only participating public schools or amending the

456

John MarshallLaw Journal

[Vol. III

Georgia Constitution, admittedly more drastic steps, may be the only way to avoid the constitutional challenges to a universal school vouchers program.

Amelia A. Ragan*

. J.D., Atlanta's John Marshall Law School (2010); B.A., Sociology and Political Science, University of Tennessee, Knoxville (2004). My sincerest thanks to Professor Scott Sigman, without whose instruction, I may be incapable of drafting a sentence, much less a Comment; to Professor Daniel Piar whose revisions and counsel were invaluable; and to Jeni Martin, Kristi Barbre, and Shaun Adams for their insightful suggestions and thorough edits.

Finally, I am forever indebted to my husband Fain and my uncle Robert L. Wheeler, H for their unwavering patience, love, and support through my tenure as Editor-in-Chief of the John MarshallLaw Journal and as a student, in general.

149TH GEORGIA GENERAL ASSEMBLY 2007 LEGISLATIVE SESSION SENATE BILL 101: GEORGIA SPECIAL NEEDS SCHOLARSHIP ACT

CreatingO.C.G.A. §§ 20-2-2110 to -2118 First Signature: Senator Eric Johnson (1st) Co-Sponsors: Senator Chip Rogers (2 1st), Senator Dan Weber (40th), Senator Nancy Schaefer (50th), Senator Judson Hill (32nd), and Senator Ralph Hudgens (47th) Summary: Senate Bill 10 amends Chapter 2 of Title 20 of the Official Code of Georgia Annotated relating to elementary and secondary education, so as to provide scholarships for public school students with disabilities to attend eligible private schools.2 The Bill outlines the qualifications and criteria for the scholarship program, guidelines for participating private schools, and the amount of the scholarship and method of payment.' The Bill also gives authorization to the State Board of Education to promulgate certain rules.'

Status: Enacted into law as Act 117 on May 18, 20071 TEXT OF SENATE BILL

10

§ 1.

Chapter 2 of Title 20 of the Official Code of Georgia Annotated relating to elementary and secondary education, is amended by 1. S.B. 10, 149th Gen. Assem., 1st Reg. Sess. (Ga. 2007) (enacted), availableat http://www.legis.ga.gov/legis/2007_08/pdf/sbl0.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 4. Id. 2008), 22, (Oct. 10 S.B. Assem., Gen. 5. Ga. http://www.legis.ga.gov/legis/2007_08/sum/sb10.htm [hereinafter S.B. 10 Status Sheet].

458

John MarshallLaw Journal

[Vol. III

adding at the end thereof a new article, to be designated as Article 33, to read as follows: "ARTICLE 33 20-2-2110.

This article shall be known and may be cited as the 'Georgia Special Needs Scholarship Act.' 20-2-2111.

The General Assembly finds that: (1) Students with disabilities have special needs that merit educational alternatives which will allow students to learn in an appropriate setting and manner; (2) Parents are best equipped to make decisions for their children, including the educational setting that will best serve the interests and educational needs of their children; (3) Children, parents, and families are the primary beneficiaries of the scholarship program authorized in this article and any benefit to private schools, sectarian or otherwise, is purely incidental; (4) The scholarship program established in this article is for the valid secular purpose of tailoring a student's education to that student's specific needs and enabling families to make genuine and independent private choices to direct their resources to appropriate schools; and (5) Nothing in this article shall be construed as a basis for granting vouchers or tuition tax credits for any other students, with or without disabilities.

20-2-2112.

As used in this article, the term: (1) 'Board' means the State Board of Education.

(2) 'Department' means the Department of Education.

(3) 'Parent' means a biological parent, legal guardian, custodian, or other person with legal authority to act on behalf of a child.

No. 2]

Senate Bill 10

(4) 'Participating school' means a private school that has notified the department of its intention to participate in the program, and that complies with the department's requirements.

(5) 'Prior school year in attendance' means that the student was enrolled and reported by a public school system or school systems for funding purposes during the preceding October and March fulltime equivalent (FTE) program counts in accordance with Code Section 20-2-160.

(6) 'Private school' means a nonpublic school, sectarian or nonsectarian, which is accredited or in the process of becoming accredited by one or more of the entities listed in subparagraph (A) of paragraph (6) of Code Section 20-3-519.

(7) 'Program' means the scholarship program established pursuant to this article.

(8) 'Resident school system' means the public school system in which the student would be enrolled based on his or her residence.

(9) 'Scholarship' means a Georgia Special Needs Scholarship awarded pursuant to this article.

(10) 'Scholarship student' means a student who receives a scholarship pursuant to this article.

20-2-2113.

The resident school system shall annually notify prior to the beginning of each school year the parent of a student with a disability by letter, electronic means, or by such other reasonable means in a timely manner of the options available to the parent under this article.

(1) The parent may choose for the student to attend another public school within the resident school system which has available space and which has a program with the services agreed to in the student's existing individualized education program. If the parent chooses this option, then the parent shall be responsible for transportation to such school. The student may attend such public school pursuant to this paragraph until the student completes all grades of the school, graduates, or reaches the age of 21, whichever occurs first, in accordance with federal and state requirements for disabled students;

459

John MarshallLaw Journal

460

[Vol. III

(2) The parent may choose to enroll the student in and transport the student to a public school outside of the student's resident school system which has available space and which has a program with the services agreed to in the student's existing individualized education program. The public school system may accept the student, and if it does, such system shall report the student for purposes of funding to the department; (3) The parent may choose for the student to attend one of the state schools for the deaf and blind operated by the State Board of Education, if appropriate for the student's needs. Funding for such students shall be provided in accordance with Code Section 20-2302; or (4) The parent may request and receive from the department a scholarship for the student to enroll in and attend a participating private school in accordance with this article.

20-2-2114. (a) A student shall qualify for a scholarship under this article if: (1) The student's parent currently resides within Georgia and has been a Georgia resident for at least one year; (2) The student has one or more of the following disabilities: (A) Autism; (B) Deaf/blind; (C) Deaf/hard of hearing; (D) Emotional and behavioral disorder; (E) Intellectual disability; (F) Orthopedic impairment; (G) Other health impairment; (H) Specific learning disability; (I) Speech-language impairment; (J) Traumatic brain injury; or (K) Visual impairment;

No. 2]

Senate Bill 10

(3) The student has spent the prior school year in attendance at a Georgia public school and shall have had an Individualized Education Program (IEP) written by the school in accordance with federal and state laws and regulations; (4) The parent obtains acceptance for admission of the student to a participating school; and (5) The parent submits an application for a scholarship to the department no later than the deadline established by the department. (b) Upon acceptance of the scholarship, the parent assumes full financial responsibility for the education of the scholarship student, including transportation to and from the participating school. (c) For a student who participates in the program whose parents request that the student take the state-wide assessments pursuant to Code Section 20-2-281, the resident school system shall make available to the student locations and times to take all state-wide assessments. Test scores of private school students participating in the state-wide assessments shall not be applied to the system averages of the resident school system for data reported for federal and state requirements. (d) Students enrolled in a school operated by the Department of Juvenile Justice are not eligible for the scholarship. (e) The scholarship shall remain in force until the student returns to his or her assigned school in the resident public school system, graduates from high school, or reaches the age of 21, whichever occurs first. However, at any time, the student's parent may remove the student from the participating school and place the student in another participating school or public school as provided for in Code Section 20-2-2113. (f) Acceptance of a scholarship shall have the same effect as a parental refusal to consent to services pursuant to the Individuals with Disabilities Education Act, 20 U.S.C.A. Section 1400, et seq. (g) The creation of the program or the granting of a scholarship pursuant to this article shall not be construed to imply that a public school did not provide a free and appropriate public education for a student or constitute a waiver or admission by the state.

461

John MarshallLaw Journal

462

[Vol. III

(h) Any scholarship directed to a participating school is so directed wholly as a result of the genuine and independent private choice of the parent. (i) The parent of each student participating in the scholarship program shall comply fully with the participating school's rules and policies. (j) Any parent who fails to comply with the provisions of this article and department regulations relating to the scholarship shall forfeit the scholarship.

20-2-2115. (a) To be eligible to enroll a scholarship student, a participating school shall: (1) Have a physical location in Georgia where the scholarship students attend classes and have direct contact with the school's teachers; (2) Demonstrate fiscal soundness by having been in operation for one school year or by submitting a financial information report for the school that complies with uniform financial accounting standards established by the department and conducted by a certified public accountant. The report must confirm that the school desiring to participate is insured and the owner or owners have sufficient capital or credit to operate the school for the upcoming school year serving the number of students anticipated with expected revenues from tuition and other sources that may be reasonably expected. The report shall be limited in scope to those records that are necessary for the department to make a determination on fiscal soundness and to make payments to schools for scholarships; (3) Comply with the antidiscrimination provisions of 42 U.S.C. Section 2000d; (4) Comply with all health and safety laws or codes that apply to private schools; (5) Comply with all provisions o f Code Section 20-2-690 and any other state law applicable to private schools; (6) Regularly report to the parent and the department on the student's academic progress, including the results of pre-academic

No. 2]

Senate Bill 10

assessments and post-academic assessments given to the student, in accordance with department guidelines; and (7) Employ or contract with teachers who hold a bachelor's degree or higher degree or have at least three years of experience in education or health and annually provide to the parents the relevant credentials of the teachers who will be teaching their students. (b) A home school operating under the provisions of Code Section 20-2-690 shall not be eligible to enroll scholarship students. (c) Residential treatment facilities licensed or approved by the state shall not be eligible to enroll scholarship students. (d) The creation of the program shall not be construed to expand the regulatory authority of the state, its officers, or any public school system to impose any additional regulation of nonpublic schools beyond those reasonably necessary to enforce the requirements of this article. (e) A participating school intending to enroll scholarship students shall submit an application to the department by June 30 of the school year preceding the school year in which it intends to enroll scholarship s tudents. The notice shall specify the grade levels and services that the school has available for students with disabilities who are participating in the scholarship program. A school intending to enroll scholarship students in the 2007-2008 school year shall submit an application no later than June 30, 2007. (f) The board shall approve a participating school's application to enroll scholarship students if the school meets the eligibility requirements of this article and complies with board rules established pursuant to Code Section 20-2-2117. The board shall make available to local school systems and the public a list of participating schools.

20-2-2116. (a) The maximum scholarship granted a scholarship student pursuant to this article shall be an amount equivalent to the costs of the educational program that would have been provided for the student in the resident school system as calculated under Code Section 20-2-161. This shall not include any federal funds. (b) The amount of the scholarship shall be the lesser of the amount calculated in subsection (a) or the amount of the participating school's tuition and fees, if applicable. The amount of any

463

464

John MarshallLaw Journal

[Vol. III

assessment fee required by the participating school may be paid from the total amount of the scholarship. (c) Scholarship students shall be counted in the enrollment of their resident school system; provided, however, that this count shall only be for purposes of determining the amount of the scholarship and the scholarship students shall not be included as enrolled for purposes of state or federal accountability requirements, including, but not limited to, the federal Elementary and Secondary Education Act, as amended by the No Child Left Behind Act of 2001 (P.L. 107-110). The funds needed to provide a scholarship shall be subtracted from the allotment payable to the resident school system. (d) Each local school system shall submit quarterly reports to the department on dates established by the department stating the number of scholarship students in the resident school system.

Following each notification, the department shall transfer from the state allotment to each school system the amount calculated under Code Section 20-2-161 to a separate account for the scholarship program for quarterly disbursement to the parents of scholarship students. When a student enters the program, the department must receive all documentation required for the student's participation, including the participating school's and student's fee schedules at least 30 days before the first quarterly scholarship payment is made for the student. The department may not make any retroactive payments. (e) Upon proper documentation received by the department, the department shall make quarterly scholarship payments to the parents of scholarship students on dates established by the department during each academic year in which the scholarship is in force. The initial payment shall be made upon evidence of admission to the participating school, and subsequent payments shall be made on evidence of continued enrollment and attendance at the participating school. (f) Payment to the parents must be made by individual warrant made payable to the student's parent and mailed by the department to the participating school of the parent's choice, and the parent shall restrictively endorse the warrant to the participating school for deposit into the account of such school. (g) A person, on behalf of a participating school, may not accept a power of attorney from a parent to sign a warrant, and a parent of a scholarship student may not give a power of attorney designating a

No. 2]

Senate Bill 10

person, on behalf of a participating school, as the parent's attorney in fact. (h) If the participating school requires partial payment of tuition prior to the start of the academic year to reserve space for students admitted to the school, that partial payment may be paid by the department prior to the first quarterly payment of the year in which the scholarship is awarded, up to a maximum of $1,000.00, and deducted from subsequent scholarship payments. If a student decides not to attend the participating school, the partial reservation payment must be returned to the department by such school. Only one reservation payment per student may be made per year.

20-2-2117. (a) The board shall adopt rules to administer the program regarding eligibility and participation of participating schools, including, but not limited to, timelines that will maximize student and public and private school participation, the calculation and distribution of scholarships to eligible students and participating schools, and the application and approval procedures for eligible students and participating schools. The department shall develop and utilize a compliance form for completion by participating schools. The department shall be authorized to require any pertinent information as it deems necessary from participating schools for the purpose of implementing the program. Participating schools shall be required to complete such forms and certify their accuracy. (b) No liability shall arise on the part of the department or the state or of any local board of education based on the award or use of a scholarship awarded pursuant to this article. (c) The department may bar a school from participation in the program if the department determines that the school has intentionally and substantially misrepresented information or failed to refund to the state any scholarship overpayments in a timely manner.

20-2-2118.

The Office of Student Achievement, in conjunction with the department, shall provide the General Assembly not later than December 1 of each year with a report regarding the scholarship program for the previous fiscal year. The report shall include, but not be limited to, numbers and demographics of students

465

466

John MarshallLaw Journal

[Vol. III

participating and numbers of participating schools. Such report shall also be posted on the Office of Student Achievement's website." ยง2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to the 2007-2008 school year and all school years subsequent thereto. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SPONSOR'S RATIONALE

The Georgia Special Needs Scholarship Act, also known as Senate Bill 10, is the culmination of Senator Eric Johnson's longstanding support for bringing free market principles to education.' After resigning as the President Pro Tem of the Senate in 2007, Senator Johnson felt the time was right to move forward with some of his ideas for providing choice in education for the children of Georgia.' After researching the records of voucher programs in other states, Senator Johnson felt that a voucher for special needs children was most needed and would be most successful.' The Georgia Special Needs Scholarship Act was designed to emulate a similar program in Florida that has been in existence for many years and has proven to be very successful.9 Despite the success of voucher bills in other states, Senator Johnson's attempt at bringing a voucher to help special needs children to Georgia was not exactly welcomed with open arms.

The two most common objections to Senate Bill 10 were that the vouchers are just a way for wealthy families to send their children to private schools for free and the fear that public schools would attempt to gain authority over the private schools 6. E-mail from Sen. Eric Johnson, S. Dist. 1, to Shaun Adams, Staff Member, John Marshall Law Journal (Nov. 19, 2009, 11:30a.m. EST) (on file with author) [hereinafter Johnson E-mail].

7. Id. 8. Id. 9. Id.

No. 2]

Senate Bill 10

467

that participate in the scholarship program.o Proponents of the Bill cited vouchers program data from Florida, Wisconsin, and other states around the country to overcome these objections and to show that children who take advantage of the scholarship programs in these states perform better in their new schools."

Additionally, the language of the Bill was drafted to preserve the autonomy of private schools. 2 Senator Johnson was able to overcome these objections by keeping the discussion centered on the best interests of Georgia's children," and the General Assembly passed Senate Bill 10 by one vote, cast by the House Speaker, on the last day of the 2007 legislative session.14 As is required by Senate Bill 10, the Georgia Department of Education provides an annual report to the General Assembly which contains the enrollment data on the program." As of the 2008-2009 school year, there are 145 schools participating in the scholarship program and 1,596 students receiving scholarships.' 6 These numbers indicate steady increases in I0. Id. 11. Id.

12. Johnson E-mail, supra note 6.

13. Id. 14. Id.; See infra note 33 and accompanying text.

15. Ga. S.B. 10; GEORGIA DEPT. OF EDUC., 2007-2008

GEORGIA SPECIAL NEEDS SCHOLARSHIP PROGRAM END OF SCHOOL YEAR REPORT (Nov. 18,

at available 2008), Year/ 2OR http://www.doe.kl2.ga.us/DMGetDocument.aspx/End%20f%2O eport%20-%202007%20%202008%2OGeorgia%2OSpecial%2ONeeds%20Scholarship%2OEnd%200f %20Year/o20Report%20report%2Osent%2Oto%2OLegislature%20120308.pdf?p=6CC6799F8C1 371F6E1764D2812D6897813D7F6853FDFD50ADA3C9695FC2D495E&T ype=D [hereinafter 2007-2008 EOY Report]; GEORGIA DEPT. OF EDUC., 2008-2009 GEORGIA SPECIAL NEEDS SCHOLARSHIP PROGRAM END OF 2009), available at (Nov. 23, REPORT SCHOOL YEAR 2008-2009 http://public.doe.kl2.ga.us/DMGetDocument.aspx/GSNS FinalReportsenttoLegisl20109.pdf~p=6CC6799F8C1371F67C7BlAFED5C [hereinafter 09650635D970DD42B77CAA8EAFEEE83D5A4EE&Type=D 2008-2009 EOY REPORT].

16. 2008-2009 EOY REPORT, supra note 15, at 4. Opponents focus on the 33% of students that had less than a year of gain in a year of learning, whereas the proponents focus on the 67% of students that showed a year or more of gain in a year of learning when making their arguments. See id.

Although the 2009-2010 data has not yet been reported by the Georgia

468

John MarshallLaw Journal

[Vol. III

participation, by both schools and students, when compared to the scholarship program's first year in 2007-2008."1 Senator Johnson stated that the program's early growth is evidence of the success that he foresaw when looking at vouchers programs in other states.'" Senator Johnson summed up this Bill by stating: "this [B]ill provides choice to special needs children, and there is no bill that I am more proud of."

LEGISLATIVE GENEALOGY

Senate Bill 10 was first read and referred to the Senate Education and Youth Committee on January 10, 2007.20 The Senate Committee favorably reported on the Bill on January 26, 2007.21 On January 29, 2007 the Senate read Senate Bill 10 a second time.22 When the Senate read the Bill a third time, there were a series of proposed amendments. 23 According to Senator Johnson, "each of the proposed amendments were, in some form, centered on undercutting the ability of the parents to take their tax dollars and use it to best benefit their special needs child."2 4 Ultimately, each of the amendments were rejected, and the Senate passed Senate Bill 10 on January 31, 2007.25 After passing the Senate, Senate Bill 10 moved into the House, was assigned to the House Committee on Education, and was first read on February 1, 2007.26 The House read the Bill a second time on February 2, 2007, and the House Committee on

Department of Education, according to David Pusey, Policy Analyst for the

Center for an Educated Georgia, 175 schools and 2,068 students participated in the Scholarship program this year. Interview with David Pusey, Policy Analyst, Center for an Educated Georgia, in Norcross, Ga. (Dec. 16, 2009).

17. 2007-2008 EOY REPORT, supra note 15, at 4 (indicating 117 participating schools and 825 participating students).

18. Johnson E-mail, supra note 6.

19. Id.

20. S.B. 10 Status Sheet, supra note 5.

2 1. Id. 22. Id. 23. Id.

24. Johnson E-mail, supranote 6.

25. S.B. 10 Status Sheet, supra note 5.

26. Id.

No. 2]

Senate Bill 10

469

Education favorably reported on the Bill on April 13, 2007.27 The Bill was read before the House again on both the 17th and 20th of April.2 8 The House provided a substitute to Senate Bill 10 that passed on April 20, 2007.29 The House substitute added an annual notification component which would require the resident school system to "notify, prior to the beginning of each school year, the parent of a student with a disability by letter, electronic means, or by such other reasonable means, in a timely manner, of the options available to the parent under the article."3 0 The House substitute also added Section 20-2-2118 which requires the Office of Student Achievement to provide the General Assembly, by December 1st of each year, with an annual report that contains the numbers and demographics of participating students along with the numbers of participating schools.3 1 Further, this report is to be posted on the Office of Student Achievement's website.32 The Senate agreed to the House substitute, passing it on April 20, 2007." Senate Bill 10 was sent to the Governor on May 07, 2007, and later signed into law by Governor Sonny Perdue as Act 117 on May 18, 2007.34 During the 2010 legislative session, Senator Chip Rogers introduced Senate Bill 361 to amend Senate Bill 10." Senate Bill 361 would allow children in foster care, children of active duty military members, and children who have a physical disability but do not require an individualized education

27. Id. 28. Id. 29. Id.; see S.B 10, 149th Gen. Assem., 1st Reg. Sess. (Ga. 2007) (H. at available Substitute) http://www.legis.ga.gov/legis/2007 08/versions/sbl0_LC_33_2105S hss_15 .htm (last visited Mar. 22, 2010).

30. Ga. S.B. 10 (H. Substitute).

31. Id. 32. Id. 33. S.B. 10 Status Sheet, supra note 5.

34. Id. 35. S.B. 361, 150th Ga. Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/legis/2009_10/pdf/sb361.pdf (last visited Mar. 361, S.B. Assem., Gen. Ga. 2010); 22, http://www.legis.ga.gov/legis/200 9_10/sum/sb361.htm (last visited Mar. 22, 2010) [hereinafter S.B. 361 Status Sheet].

470

John MarshallLaw Journal

[Vol. III

program to become eligible for the school vouchers program.36 Senate Bill 361 proposed to change the name of the Special Needs Scholarship Act to the Early HOPE Scholarship Act. Other changes proposed by Senate Bill 361 seek to correct some of the implementation issues which affected Senate Bill 10 by allowing for a quarterly admissions process and establishing a deadline for the Georgia Department of Education to pay the scholarship vouchers to the parents of participating students.

The Senate first read Senate Bill 361 on February 4, 2010.39 The Bill was assigned to the Education and Youth Committee which favorably reported on the Bill on March 8, 2010.0 While the Senate read Senate Bill 361 for a second time on the next day, the Senate was unable to come to an agreement on the Bill prior to the end of crossover day on March 26, 2010.41 Prepared by: Shaun Adams

36. Ga. S.B. 361.

37. Id. 38. Id. 39. S.B. 361 Status Sheet, supra note 35.

40. Id. 4 1. Id.

150TH GEORGIA GENERAL ASSEMBLY 2009 LEGISLATIVE SESSION

HOUSE BILL 1491:

MOVE ON WHEN READY ACT

Amending O.C G.A. ยง 20-2-161 First Signature: Representative Jan Jones (46th) Co-Sponsors: Representative Mike Cheokas (134th), Representative Katie Dempsey (13th), Representative Buddy Harden (147th), Representative Bill Hembree (67th), and Representative Jay Powell (171st) Summary: House Bill 149 to amend Part 4 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated allowing eleventh and twelfth grade students to leave their assigned public high school and attend a college or technical school to complete graduation requirements while earning college credit.2 Status: Enacted into law as Act 63 on April 29, 20093 TEXT OF HOUSE BILL

149

ยง 1.

This act shall be known and may be referred to as the "Move on When Ready Act."

1. H.B. 149, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (enacted), available at http://www.legis.ga.gov/legis/2009_10/pdf/hbl49.pdf (last visited March 22, 2010).

2. Id. (Mar. 20, 2010), Assem., H.B. 149 3. Ga. Gen. http://www.legis.ga.gov/legis/2009_10/sum/hbl49.htm [hereinafter H.B. 149 Status Sheet].

472

John MarshallLaw Journal

[Vol. III

ยง2.

Part 4 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated relating to financing under the "Quality Basic Education Act," is amended by adding a new Code section to read as follows: "20-2-161.3. (a) For purposes of this Code section, the term: (1) 'Department' means the Department of Education.

(2) 'Eligible institution' or 'institution' means any eligible postsecondary institution as defined in paragraph (7) of Code Section 20-3-519.

(3) 'Eligible student' means a student entering eleventh or twelfth grade who spent the prior school year in attendance at a public high school in this state.

(4) 'Prior school year in attendance' means that the student was reported as enrolled in a public school for funding purposes during the preceding October and March full-time equivalent (FTE) program counts in accordance with Code Section 20-2-160.

(5) 'Program' means the arrangement authorized by this Code section whereby an eligible student takes all of his or her courses at or through an eligible institution or a virtual course approved by the State Board of Education and receives secondary credit from his or her high school with the goal of completing graduation and high school diploma requirements.

(6) 'Secondary credit' means high school credit for courses taken at an eligible institution under the program. (b) Any eligible student may apply to an eligible institution to take courses at or through that institution which are approved for secondary credit pursuant to subsection (d) of this Code section. If accepted at an eligible institution, such eligible student may take any such approved course at that institution, whether or not the course is taught during the regular public school day, and receive secondary credit therefore under the conditions provided in this Code section. An eligible institution which accepts an eligible student authorized to apply for enrollment under the program shall not receive any state funds for that student unless such institution

No. 2]

House Bill 149

complies with the requirements of this Code section regardinu eligible institutions. (c) The department shall develop appropriate forms and counseling guidelines for the program and shall make such forms and guidelines available to local school systems and eligible institutions. No later than the first day of April each year, each local school system shall provide general information about the program, including such forms, to all its tenth and eleventh grade students. A local school system shall also provide counseling services in accordance with the counseling guidelines provided by the department to such students and their parents or guardians before the students enroll in the program. Prior to participating in the program, the student and the student's parent or guardian shall sign the form provided by the school system or by an eligible institution stating that they have received the counseling specified in this subsection and that they understand the responsibilities that shall be assumed in participating in the program. (d)(1) A local school system shall grant academic credit to an eligible student enrolled in a course in an eligible institution if that course has been approved by the State Board of Education and if such student successfully completes that course. The State Board of Education shall approve any such course which is substantially comparable to a state approved course. The secondary credit granted shall be for the comparable course and course hours approved by the State Board of Education. Upon completion of an eligible institution's approved course, the eligible student shall be responsible for requesting that the institution notify the student's local school system regarding his or her grade in that course.

(2) Secondary school credits granted for eligible institution courses under paragraph (1) of this subsection shall be counted toward State Board of Education graduation requirements and subject area requirements of the local school system. Evidence of successful completion of each course and secondary credits granted shall be included in the eligible student's secondary school records.

(3) The State Board of Education shall establish rules to require local school systems to award a high school diploma to any eligible student who is enrolled at an eligible institution under the program as long as the credit earned at such institution satisfies course requirements needed for the eligible student to complete high school graduation. The department shall consult the Board of Regents of the University System of Georgia and the State Board

473

474

John MarshallLaw Journal

[Vol. III

of Technical and Adult Education in developing rules and regulations to be recommended to the State Board of Education for approval regarding the eligibility criteria for program participation. (e)(1) The department shall pay to eligible institutions through appropriation of state funds the lesser of the following amounts for each participating eligible student enrolled therein, less a records fee of $200.00 for administration costs of the local school system: (A) The actual cost of tuition, materials, and fees directly related to the courses taken by the eligible student at such institution; or (B) The amount that the participating eligible student would have earned under this article if he or she had been in equivalent instructional programs in the local school system.

(2) The total allotment of state funds to the local school system in which a participating student is enrolled at an eligible institution pursuant to this Code section shall be calculated as otherwise provided in this article with an ensuing reduction equivalent to the amount of state funds appropriated to such eligible institution pursuant to this subsection.

(3) The records fee contained in paragraph (1) of this subsection may be increased by the State Board of Education by up to 4 percent annually, at the board's full discretion.

(4) An eligible institution shall not charge an eligible student for coursework taken pursuant to this program and shall accept the payment made pursuant to paragraph (1) of this subsection as full payment for such eligible student. (f) The State Board of Education shall establish rules and regulations relating to applicable state and federal testing requirements for eligible students participating in the program. (g) An eligible student enrolled in an eligible institution for secondary credit shall not be eligible for any other state student financial aid at an eligible institution for courses taken under the program. (h) Hours for courses taken at an eligible institution pursuant to this Code section by a participating eligible student shall not count against any maximum hourly caps which may be applicable for purposes of HOPE scholarships or grants.

No. 2]

House Bill 149

475

(i) Any person who knowingly makes or furnishes any false statement or misrepresentation, or who accepts such statement or misrepresentation knowing it to be false, for the purpose of enabling an eligible institution to obtain wrongfully any payment under this Code section shall be guilty of a misdemeanor." ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Jan Jones, of the 46th district, introduced House Bill 149 to establish flexible and customized programs to enhance the success and improve graduation rates of high school students across Georgia.4 House Bill 149 provides a program for eleventh and twelfth grade public school students to apply to eligible postsecondary institutions and enroll in fulltime college courses to earn high school credits (and credit for college).' The Department of Education must approve the course for credit, and students must successfully complete the course and ensure the communication of grades between postsecondary institutions and local school systems.' Credits gained through this program will count toward graduation and subject area requirements and, if all prerequisites are met, the local school system will award the student a high school diploma.7 Representative Jones characterized the initiative as "joint enrollment on steroids." 8 4. Maureen Downey, Editorial, Let High Schoolers Advance at Own Rate, More Graduate, ATLANTA J.-CONST., Feb. 23, 2009, available at http://www.ajc.com/eveningedge/content/printedition/2009/02/23/schooled0 Day 36 (Georgia Public 223.html?cxntlid=infornartr; Lawmakers: Broadcasting television broadcast Mar. 25, 2009), available at http://www.gpb.org/lawmakers-tv/2009/03/25 (statements of Sen. Tommie Williams, Sen. Dist. 1).

5. Lawmakers: Day 32 (Georgia Public Broadcasting television broadcast Mar. 18, 2009), available at http://www.gpb.org/lawmakers-tv/2009/03/18 (statements of Rep. Jan Jones, H. Dist. 46).

6. Ga. H.B. 149.

7. Id. 8. Downey, supra note 4; see E-mail from Beth Green, Staff, Office of the Speaker Pro Tem, to Kristi Barbre, Staff Member, John Marshall Law

476

John MarshallLaw Journal

[Vol. III

The concepts inherent in House Bill 149 originated from a taskforce organized by the Governor that consisted of approximately thirty individuals involved in various aspects of education.' In attempting to develop innovative programs in Georgia's public schools, the taskforce considered a national taskforce proposal"o and a similar Minnesota program." These examples, along with taskforce discussions, encouraged Representative Jones to introduce House Bill 149.12 Representative Jones believes that House Bill 149 benefits various student populations; however, she acknowledges the "bulk of the students that would be served by this [Bill] are those that are most at risk or often at risk of dropping out."13 Therefore, House Bill 149 primarily attracts "students uninspired in or un[der]served by a traditional high school setting" by providing alternatives to permanent withdrawal.14 Students could remain enrolled while making career preparations, taking online courses, working part-time, or meeting family obligations." However, House Bill 149 further serves "highly motivated, high-achieving students" whose needs and desires are better met through full-time college attendance.'

Journal (Feb. 25, 2010, 09:40 a.m. EST) (on file with author) [hereinafter Green E-mail]. The Move on When Ready Act is distinguishable from traditional dual enrollment programs because the participating students do not receive on-going services from the high school such as transportation, dining, or extra-curricular activities, and the Move on When Ready Act is not funded by the state lottery or local and federal funds. Id. 9. Telephone Interview with Jan Jones, Speaker Pro Tem, H. Dist. No. 46 (Feb. 25, 2010) [hereinafter Jones Interview].

10. Id. (explaining that former University of Georgia President, Charles Knapp, served as member of national and state taskforces).

11. Id.; Green E-mail, supra note 8 (identifying ten year old Minnesota program resulted in reduced dropout rates for participants at risk of dropping out).

12. Jones Interview, supra note 9.

13. Lawmakers: Day 32, supra note 5.

14. Downey, supra note 4.

15. Id. 16. Id.; see Green E-mail, supra note 8 (explaining forty-five schools in Georgia offer one or zero Advanced Placement classes).

No. 2]

House Bill 149

477

Students would experience freedom from the constraints and curriculum of a conventional high school education.' 7 House Bill 149 also dispels potential problems students may encounter while attending colleges or technical schools.

Students should be well informed because House Bill 149 requires local school systems to provide information and counseling to students before participating.' 8 House Bill 149 establishes that the Department of Education will pay the postsecondary institution either the actual cost of tuition directly related to the courses taken by the eligible student or the amount the eligible student would have earned if he or she had been enrolled in equivalent instructional programs in the local school system, whichever is less, relieving families of financial burdens." Finally, students will not be penalized for future grants, as House Bill 149 specifies that hours obtained through program participation will not count against any maximum These hourly caps applicable for HOPE scholarships.20 provisions serve to further encourage students to participate in the program to graduate from high school.

LEGISLATIVE GENEALOGY The first reading of House Bill 149 occurred on January 27, 2009, and the second reading occurred on January 28, 2009.21 The House Committee on Education offered a Substitute Bill amending some terms and duties.22 The Substitute Bill clarified the definition of "eligible institution" by referring to O.C.G.A. ยง

Downey, supra note 4.

18. Ga. H.B. 149.

19. Id.; see Green E-mail, supra note 8. State public education funding, 17.

called Quality Basic Education funding ("Q.B.E."), earned by the student will follow that student to the postsecondary institution. Id. The state will incur no additional cost by utilizing the Q.B.E. amount a student would have earned at the local high school. Id. The Q.B.E. funding for a regular high school student ranges from $2000 to $5000, averaging $3500. Id. The HOPE grant, in contrast, averages $2700 depending on the tuition charged by the postsecondary institution. Id. 20. Ga. H.B. 149.

21. H.B. 149 Status Sheet, supra note 3.

22. Id.

478

John MarshallLaw Journal

[Vol. III

20-3-519 rather than listing various qualifying institutions.2 3 "Prior school year in attendance" was altered to require the The Substitute Bill student be "reported as enrolled."2 4 expanded the definition of "program" by allowing credit from virtual courses in addition to attending all courses through an eligible institution. Moreover, although the original Bill did not delegate the responsibility, the Substitute Bill requires the Department of Education to provide counseling guidelines for the local school systems.2 6 The Substitute Bill requires the State Board of Education, as opposed to the Department of Education, to approve courses similar to state approved courses and establish rules regarding the awarding of diplomas.27 Finally, for calculating payment of the postsecondary institution, the Substitute Bill eliminates the language "for a full instructional day" when determining the amount the student would have earned in an equivalent instructional program in the local school system.2 8 These changes resulted from the Education Committee's collaboration with the Georgia Department of Education, the 23. Compare H.B. 149, 150th Ga. Gen. Assem., Ist Reg. Sess. (Ga. 2009) at available introduced), (as http://www.legis.state.ga.us/legis/2009_10/versions/hbl49_LC_33_2781_a_ 2.htm (last visited Mar. 22, 2010), with H.B. 149, 150th Ga. Gen. Assem., 1st Reg. Sess. (Ga. 2009) (committee substitute), available at http://www.legis.state.ga.us/legis/2009 10/versions/hbl49_LC_33_2933S_h s_4.htm (last visited Mar. 22, 2010); see also Green E-mail, supra note 8 ("Eligible colleges are defined as those that are approved to receive HOPE grants or Tuition Equalization Grants which includes all Georgia public colleges and technical schools, accredited private colleges within Georgia[,] and approximately [ten] proprietary, accredited private colleges within Georgia.").

24. Compare Ga. H.B. 149 (as introduced), with Ga. H.B. 149 (committee substitute).

25. Id.; Green E-mail, supra note 8. Students may enroll in virtual classes provided by the Georgia Department of Education through the new Georgia Virtual School that offers 129 online classes to participating students. Id. 26. Compare Ga. H.B. 149 (as introduced), with Ga. H.B. 149 (committee substitute).

27. Compare Ga. H.B. 149 (as introduced), with Ga. H.B. 149 (committee substitute).

28. Compare Ga. H.B. 149 (as introduced), with Ga. H.B. 149 (committee substitute).

No. 2]

House Bill 149

479

Governor, and individuals from postsecondary institutions.2 9 School interest groups, such as the Professional Association of Georgia Educators, Georgia Association of Educators, and Georgia Parent Teacher Association, also lobbied and advised the General Assembly.3 0 Representative Jones explained that these revisions were intended to make the Bill workable and practicable.'

The House Committee on Education favorably reported on the Substitute Bill on February 17, 2009.32 The third reading of House Bill 149 occurred on February 25, 2009.11 At that time, the House proposed a floor amendment.14 The amendment indicated that, although the State Board of Education maintained sole discretion to increase the records fee, the increase would not amount to greater than four percent annually. The House adopted the Substitute Bill with the floor amendment on February 25, 2009 by a vote of 154 to 6.36 On February 26, 2009, the Senate read House Bill 149 for the first time.31 The Senate referred the Bill to the Committee on Education and Youth that favorably reported on March 19, 2009.8 On March 20, 2009, the second reading before the Senate occurred, and on March 25, 2009, the third reading before the Senate occurred. 9 The same day, the Senate passed

29. Jones Interview, supra note 9.

30. Id.; see Green E-mail, supra note 8. All organizations support the proposed legislation. Id. 31. Jones Interview, supra note 9.

32. H.B. 149 Status Sheet, supra note 3.

33. Id. 34. Id. 35. Compare Ga. H.B. 149, (committee substitute), with H.B. 149, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as passed), available at http://www.legis.state.ga.us/legis/2009_ 0/versions/hbl49_HB_149_CSFA 5.htm (last visited Mar. 22, 2010); see Green E-mail, supra note 8 ("A $200 records fee will be deducted from a student's funding to pay his or her high school for the expense of keeping track of a student's classes, grades[,] and testing.").

36. H.B. 149 Status Sheet, supra note 3.

37. Id. 38. Id. 39. Id.

480

John MarshallLaw Journal

[Vol. III

House Bill 149 by a vote of 48 to 1.40 Governor Sonny Perdue signed the Bill into law on April 29, 2009.41 During the 2009-2010 school year, the Georgia Department of Education and the State Board of Education will develop rules and guidelines to prepare for student enrollment beginning in the 2010-2011 school year. 42 Representative Jones hopes to expand the premise of House Bill 149 to include high school freshman and sophomores in years to come.43 Prepared by: Kristi Barbre

40. Id. 4 1. Id. 42. Jones Interview, supra note 9.

43. Id.

HOUSE BILL 2151: GRADUATING EVERYONE MATTERS ACT CreatingO.C.G.A. ยง 20-2-134 First Signature: Representative Steve Davis (109th) Co-Sponsors: Representative Rahn Mayo (91st), Representative David Casas (103rd), Representative Jay Neal (1st), Representative Tony Sellier (136th), and Len Walker (107th) Summary: House Bill 215 seeks to provide high school students options regarding their education.2 The Bill provides two diploma options which entail different course requirements to give students a choice in their coursework and diploma requirements.'

Status: House Second Readers on January 30, 20094 TEXT OF HOUSE BILL 215

ยง 1.

Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the "Quality Basic Education Act," is amended by adding a new Code section to read as follows:

1. H.B. 215, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb215.pdf (last visited March 22, 2010).

2. Id. 3. Id. 4. Ga. Gen. Assem., H.B. 215 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_10/sum/hb215.htm [hereinafter H.B. 215 Status Sheet].

John MarshallLaw Journal

482

[Vol. III

"20-2-134. (a) This Code section shall be known and may be cited as the 'Graduating Everyone Matters Act.' (b) The State Board of Education shall establish the following three diploma options for high school students: general diploma, career/vocational/technical diploma, and college preparation diploma. (c) The competencies and uniformly sequenced core curriculum established by the State Board of Education pursuant to Code Section 20-2-140 shall incorporate the following specific course requirements for each diploma option as follows: (1) GENERAL DIPLOMA. To be eligible to receive a general diploma, a student may graduate in 3 years and shall: (A) Have a minimum of 18 credits which shall include: (i) Three credits in English/language arts: (ii) Two credits in mathematics; (iii) One credit in personal finance and banking; (iv) Two credits in science; (v) Two credits in social studies: (vi) Two credits in health/physical education; (vii) One credit in fine arts or foreign language; (viii) One credit in career/vocational/technical: (ix) One credit in computer applications and (x) Three electives; and (B) Have completed 75 hours of community service approved by the local board of education in accordance with State Board of Education iuidelines: (2) CAREER/VOCATIONAL/TECHNICAL DIPLOMA. To be eligible to receive a career/vocational/technical diploma, a student shall:

No. 2]

House Bill 215

(A) Have a minimum of 22 credits which shall include: (i) Four credits in English/language arts; (ii) Three credits in mathematics; (iii) One credit in personal finance and banking; (iv) Two credits in science: (v) Two credits in social studies (vi) One credit in health/physical education; (vii) One credit in fine arts or foreign language; (viii) Three credits in career/vocational/technical; (ix) One credit in computer applications; and (x) Three electives: and (B) Have completed 100 hours of community service approved by the local board of education in accordance with State Board of Education guidelines; and (3) COLLEGE PREPARATION DIPLOMA. To be eligible to receive a college preparation diploma, a student shall: (A) Have a minimum of 23 credits which shall include: (i) Four credits in English/language arts; (ii) Three credits in mathematics; (iii) One credit in personal finance and banking (iv) Three credits in science; (v) Three credits in social studies; (vi) Two credits in foreign language; (vii) One credit in health/physical education: (viii) One credit in fine arts or foreign language;

483

484

John MarshallLaw Journal

[Vol. III

(ix) One credit in career/vocational/technical (x) One credit in SAT preparation and (xi) Three electives; and (B) Have completed 100 hours of community service approved by the local board of education in accordance with State Board of Education guidelines. (d) Only students pursuing the college preparation diploma option shall be permitted to use the school code for purposes of SAT administration. (e) This Code section shall apply to students entering ninth grade beginning in the 2009-2010 school year; provided, however, that students who are in the tenth, eleventh, or twelfth grade beginning in the 2009-2010 school year may elect to stay under applicable State Board of Education graduate requirements existing as of June 30, 2009, or to choose one of the three diploma options under this Code section. (f) Nothing in this Code section shall be construed to conflict with requirements for earning a special education diploma pursuant to subsection (c) of Code Section 20-2-281." ยง2.

Said chapter is further amended by revising subsections (a) and (c) of Code Section 20-2-281, relating to assessment of effectiveness of educational programs, as follows: "(a) The State Board of Education shall adopt a student assessment program consisting of instruments, procedures, and policies necessary to implement the program and shall fund all costs of providing and scoring such instruments, subject to appropriation by the General Assembly. Each local school system may elect to administer, with state funding, nationally norm-referenced instruments in reading, mathematics, science, or social studies in grade three, four, or five and in grade six, seven, or eight, subject to available appropriations, with assistance to such school systems by the State Board of Education with regard to administration guidance, scoring, and reporting of such assessments. The State Board of Education shall review, revise, and upgrade the quality core curriculum. Following the adoption of this revised curriculum, the State Board of Education shall contract for development of

No. 2]

House Bill 215

criterion-referenced competency tests to measure the quality core curriculum. Such tests in English and language arts, mathematics, and reading shall be administered annually to students in grades one through eight, and such tests in science and social studies shall be administered annually to students in grades three through eight.

This action shall be completed according to a schedule established by the State Board of Education. A euieulum based curriculum based assessment shall be administered in grade 11 for graduation purposes; provided however, that beginning with the 2009-2010 school year, this shall only apply to students pursuing a college preparation diploma in accordance with Code Section 20-2-134.

Writing assessments shall be administered to students in grades three, five, eight, and 11. The writing assessments shall provide students and their parents with performance outcome measures resulting from the administration of such tests." "(c) The State Board of Education shall have the authority to condition the awarding of a high school diploma to a student upon achievement of satisfactory scores on instruments or tests adopted and administered by the state board pursuant to subsection (a) of this Code section; provided however, that beginning with the 20092010 school year, this shall only apply to students pursuing a college preparation diploma in accordance with Code Section 202-134. The state board is authorized and directed to adopt regulations providing that any disabled child, as defined by the provisions of this article, shall be afforded opportunities to take any test adopted by the state board as a condition for the awarding of a high school diploma. Said regulations shall further provide for appropriate accommodations in the administration of such test.

Said regulations shall further provide for the awarding of a special education diploma to any disabled student who is lawfully assigned to a special education program and who does not achieve a passing score on said test or who has not completed all of the requirements for a high school diploma but who has nevertheless completed his or her Individualized Education Program." ยง3.

All laws and parts of laws in conflict with this Act are repealed.

485

486

John MarshallLaw Journal

[Vol. III

FIRST SIGNATURE'S RATIONALE

Representative Stephen Davis, of the 109th district, introduced House Bill 215 - Graduating Everyone Matters Act.' Representative Davis began working on this Bill several years ago when the State School Board began considering phasing out the different diploma tracks offered.6 Prior to the currently implemented system of offering a "one size fits all" diploma, students had a choice of five different diploma tracks.! The diploma options consisted of college preparation, career technical, college preparation with distinction, career technical with distinction, or a dual diploma.' In 2007, Representative Davis wrote a letter to the State School Board and State Superintendent Kathy Cox trying to convince them that changing to the one-track diploma option was 9 counterproductive. However, Representative Davis's attempt to intervene failed, and the State School Board implemented the one-track diploma system."o The senior class of 2012 will be the first class fully phased into this system."

It was the development of this "one size fits all" diploma system that sparked Representative Davis's interest in crafting House Bill 215.12

Representative Davis sought advice from members of the Georgia Association of Educators and the Professional Association of Georgia Educators." Representative Davis was aware that there had been some hesitation to support the Bill; however, he considered all opinions as he drafted this piece of

5. Ga. H.B. 215.

6. House Committee on Education Meeting (Georgia Legislative Network archives Feb. 18, 2010), availableat http://media.legis.ga.gov/hav/09_10/2010/committees/education/edu021810 EDITED.wmv (statement of Rep. Stephen Davis, H. Dist. 109).

7. Id. 8. Id. 9. Id. 10. Id. 11. Id. 12. House Committee on Education Meeting, supra note 6.

13. Id.

No. 2]1

House Bill 215

487

Additionally, Representative Davis was in legislation.14 constant communication with the Chairman of the Committee on Education, Representative Brooks Coleman, of the 97th district, and State Superintendent Kathy Cox. 15 Representative Davis decided it was important to gather as much information as possible and to get first-hand experience in the schools to produce a fully researched bill that would address the graduation criteria.'6 With this in mind, Representative Davis, a licensed real estate broker, registered as a substitute teacher in his district, which covers parts of Henry County." During his time as a substitute teacher, Representative Davis visited every high school in the county and made it a point to speak to administrators, teachers, and counselors in an effort to get down to the "nuts and bolts" of what the students really needed to obtain a quality basic education.'" This research and feedback gave Representative Davis the knowledge he deemed necessary to craft House Bill 215.19 House Bill 215 proposes two diploma choices: a career technical diploma and a college preparation diploma.2 0 Representative Davis wants the career technical diploma to include four years of English, three years of math, two years of science, and two years of social studies as the core class requirements. 2 ' These are the same requirements that were previously required under the former multi-track graduation plan.22 Along with core classes, the career technical diploma will include a required computer class and a required personal finance and banking class. 23 Representative Davis believes these classes will better prepare students for the practical aspects of life, giving them a chance to be citizens prepared to handle home mortgages, savings options such as 401ks and tax 14. Id. 15. Id.

16.

17.

18.

19.

Id. Id. House Committee on Education Meeting, supra note 6.

Id.

20. Ga. H.B. 215.

21. House Committee on Education Meeting, supra note 6.

22. Id.

23. Ga. H.B. 215.

488

John MarshallLaw Journal

[Vol. III

issues. The career technical diploma originally required 100 community service hours; however, this requirement was amended in subcommittee to twenty-five voluntary hours.2 5 Representative Davis also included language in the Bill which will allow local boards of education the option of choosing whether these voluntary hours will be mandatory."

Along with the career technical diploma, there is also a college preparation diploma.27 Representative Davis recognizes the need to set high standards under the college preparation diploma to prepare young people for success in college.28 The college preparation diploma will include the following required core classes: four years of English, four years of math, three years of science, and three years of social studies. 29 Similar to the career technical diploma, there will be a personal finance and banking course requirement. 0 However, unlike the career technical diploma, the college preparation diploma will require an SAT or ACT preparation class." This requirement is in response to the constant scrutiny that Georgia is under for its students' continued poor performance on the SAT and ACT. 32 Representative Davis believes that the SAT or ACT preparation classes will help raise these historically poor test scores.

Furthermore, there will be a provision which will allow only students in the college preparation diploma program to use their school code for the SAT. 34 This provision will effectively absolve the schools from accountability for the scores of students who are not enrolled in the college preparation diploma and who did not have the benefit of the preparation course.

24. House Committee on Education Meeting, supra note 6.

25. Id. 26. Id. 27. Ga. H.B. 215.

28. House Committee on Education Meeting, supra note 6.

29. Id. 30. Ga. H.B. 215.

31. House Committee on EducationMeeting, supra note 6.

32. Id. 33. Id. 34. Ga. H.B. 215.

35. House Committee on Education Meeting, supra note 6.

No. 2]

489

House Bill 215

Along with these two diploma options, Representative Davis has included standards in House Bill 215 that will give local school boards the opportunity to offer special seals of interest with each diploma.3 6 These seals of interest are designed to highlight certain communities and certain students.3 7 The seals of interest can be anything from agriculture, to mathematics, to student government, or whatever the local school board believes will be beneficial to their students and community.

Representative Davis stated, "[i]nstead of being in the business of education we are going to be in the business of educating children for what their choices are .

.

. of what they

want to do in life rather than a government mandate and that is what this Bill is about."3 9 Representative Davis acknowledged that there are many bills about education and a lot of these bills come from administrators and "educrats." 40 However, he believes this piece of legislation was put together from a parent's perspective.4 1 Representative Davis recognizes that the state is required to offer quality basic education but that this responsibility does not include preparing every student for college.42 With this philosophy in mind, it is Representative Davis' sincere hope to see that House Bill 215 is enacted. Despite opposition from Superintendent Cox, Representative Davis will continue to advocate for House Bill 215 and express to his fellow representatives that House Bill 215 is meant to give students a choice in their course of study and diploma while providing all students a quality basic education.4 3

36. Ga. H.B. 215.

37. House Committee on Education Meeting, supra note 6.

38. Id. 39. Id. 40. Id. 4 1. Id. 42. Id. 43. House Committee on Education Meeting, supra note 6 (statements of H. Comm. on Educ. Chairman Brooks Coleman, H. Dist. 97, and Rep. Stephen Davis, H. Dist. 109).

490

John MarshallLaw Journal

[Vol. III

LEGISLATIVE GENEALOGY

House Bill 215 was first introduced and read before the House on January 29, 2009." House Bill 215 was read for the second time before the House on January 30, 2009.45 No further action was taken on House Bill 215 during the 2009 legislative session.

On February 18, 2010, the House Committee on Education held a hearing discussing House Bill 215.46 During the Committee discussion, Representative Davis addressed a subcommittee amendment to House Bill 215 which eliminated one of the three diploma options.4 7 In addition to the career technical and the college preparation diplomas, the original Bill offered a general diploma, which gave students an opportunity to graduate in three years.48 Representative Davis stated that the general diploma option was designed to decrease the number of high school dropouts by decreasing the amount of time it takes to graduate.4 9 It is important to note that during this discussion, the Committee did not have a copy of the Substitute which included only the two diploma options, nor was the Substitute published on the General Assembly website.s0 Representative Davis also addressed language in ยง 2 of House Bill 215 which removes the graduation tests requirement At one point during this for career technical students." discussion Representative Davis said, "[w]e were going to hold off on this Bill until this year."5 2 In response, Chairman Coleman quickly interjected, proclaiming, "[w]e are going to hold off on this Bill totally." 3 Chairman Coleman continued by stating, "I am giving you a hearing as a courtesy, don't put 44. H.B. 215 Status Sheet, supra note 4.

45. Id. 46. House Committee on Education Meeting, supra note 6.

47. Id. 48. Ga. H.B. 215.

49. House Committee on Education Meeting, supra note 6.

50. Id. 5 1. Id. 52. Id.

53. Id. (statements of H. Comm. on Educ. Chairman Brooks Coleman, H. Dist. 97).

No. 2]

House Bill 215

491

However, words in my mouth, Representative Davis."54 Representative Davis quickly returned to his discussion on removing the graduation testing requirements and explained how he, along with Chairman Coleman and State Superintendent Cox, engaged in a secondary assessment of the requirements, contrasting the End of Course Testing versus Graduation Testing, to avoid double-testing students." Before opening the discussion up to questions from the Committee, Chairman Coleman made it a point to commend Representative Davis for his persistence.56 Chairman Coleman stated that, "[w]e have worked a lot on this with the Superintendent and in conference committees." 57 Once Chairman Coleman opened the floor for questions, a representative questioned whether allowing only college preparation students to use the school code when taking the SAT or ACT was a limitation on the student or a way to make In response, Representative Davis test scores better." emphasized how any student can still take the SAT, regardless of whether he or she is enrolled in the college preparation diploma program; however, the career technical students could not use the school code." Ultimately, Representative Davis used this question to reiterate that the goal of the different diploma tracks is to have students who want to attend college take the college preparation courses, and for those who do not have the desire to attend college, to take practical courses that will better prepare them when they enter the workforce. 60 The response of the House Committee of Education members to Representative Davis' presentation of House Bill 215 was very positive. Representative Fran Millar, of the 79th district, was excited about the personal finance and banking class

54. Id. 55. House Committee on Education Meeting, supra note 6.

56. Id. (statements of H. Comm. on Educ. Chairman Brooks Coleman, H. Dist. 97).

57. Id. 58. Id. (statements of Rep. Stephen Davis, H. Dist. 109).

59. Id. 60. Id.

492

John MarshallLaw Journal

[Vol. III

required for both diploma options. 6 1 Representative Millar stated that "[t]he mess we are in with this society now has a lot to deal with credit, and maybe if we had taught this to students when they were young we would not be in this mess. "62 Representative Thomas, of the 100th district, and Representative Nix, of the 69th district, agreed that this Bill seems like a very good proposal.63 Representative Thomas said, "[w]e should not be trying to prepare every high school student for college because this is not a reflection of reality.""

Representative Thomas urged Committee Chairman Coleman to give this further thought, stating that at some point he hoped House Bill 215 would get an opportunity for a full hearing and discussion in the chambers. 65 Representative Nix provided two examples of why he was in support of the Bill. First, Representative Nix received a telephone call from a parent whose child was struggling academically and stated that his child needed a "career technical" path otherwise he may not graduate.66 Secondly, the head of the mathematics department at the largest high school in Representative Nix's district told him that the increase in required math is going to cause an increase in the dropout rate."

While several members of the House Committee responded positively to House Bill 215, State Superintendent Cox made it quite clear that she was not in favor of House Bill 215.68 In her response to Representative Davis' presentation of the Bill, Superintendent Cox commented on the research and planning involved in adopting the current high school diploma program.6 9 Superintendent Cox said that the four-year process of 61. House Committee on Education Meeting, supra note 6 (statements of Rep. Fran Millar, H. Dist. 79).

62. Id. 63. Id. (statements of Rep. Brian Thomas, H. Dist. 100, and Rep. Randy Nix, H. Dist. 69).

64. Id. (statements of Rep. Brian Thomas, H. Dist. 100).

65. Id. 66. Id. (statements of Rep. Randy Nix, H. Dist. 69).

67. House Committee on Education Meeting, supra note 6 (statements of Rep. Randy Nix, H. Dist. 69).

68. Id. (statements of Kathy Cox, State Superintendent).

69. Id.

No. 2]

House Bill 215

493

evaluation, study, listening, and research was a process which included a national perspective and was not done behind closed In fact, the State Board of Education voted doors. 0 unanimously to implement the current diploma program.

Superintendent Cox believes that the state has to expect more from everyone, whether they are honor students or students who want to get a plumbing license. 72 Her goal is to have students graduate with a meaningful diploma that will lead to success and better paying jobs. 73 Despite the mostly positive reception of House Bill 215, the House Committee on Education decided not to move forward with the Bill because, at the time, the state was moving toward the one diploma option.74 At the conclusion of the Committee discussion, Chairman Coleman stated that there would not be a vote on House Bill 215 during that hearing, but he indicated that the Committee would hold a full hearing on the Bill at a later date. No such full hearing has taken place to date.

Prepared by: Richard C. Bentley

70. Id. 71. Id. 72. Id. 73. House Committee on Education Meeting, supra note 6 (statements of Kathy Cox, State Superintendent).

74. Id. (statements of H. Comm. on Educ. Chairman Brooks Coleman, H. Dist. 97).

75. Id.

HOUSE BILL 251': QUALITY BASIC EDUCATION ACT; INTRA-DISTRICT SCHOOL CHOICE

Creating§§ 20-2-2130 to -2131; and Amending O.C.G.A. § 20-2-51 and§ 20-2-101 First Signature: Representative Alisha Morgan (39th) Co-Sponsors: Representative Margaret Kaiser (59th), Representative Ed Setzler (35th), and Representative Dee Dawkins-Haigler (93rd) Summary: House Bill 251 seeks to amend Part 13 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated relating to organization of schools and school systems under the "Quality Basic Education Act," so as to provide that a public school student can attend any school in the local school system under certain conditions, to provide for statutory construction, to provide for related matters, and to repeal conflicting laws.

Status: Enacted into law as Act 164 on May 05, 20093 TEXT OF HOUSE BILL

251

§ 1.

Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by adding a new article to read as follows: "ARTICLE 34

1. H.B. 251, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (enacted), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb251.pdf (last visited Mar. 22, 2010).

2. Id. 3. Ga. Gen. Assem., H.B. 251 (Mar. 20, 2010), http://www.legis.ga.gov/legis/20091 0/sum/hb251.htm [hereinafter H.B. 251 Status Sheet].

John MarshallLaw Journal

496

[Vol. III

20-2-2130.

As used in this article, the term: (1) 'Department' means the Department of Education.

(2) 'Parent' means a biological parent, legal guardian, custodian, or other person with legal authority to act on behalf of a child.

20-2-2131. (a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system in which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

(2) No later than July 1, 2009, each local school system shall establish a universal, streamlined process available to all students to implement the transfer requirements of paragraph (1) of this subsection.

(3) A student who transfers to another school pursuant to this subsection may, at his or her election, continue to attend such school until the student completes all grades of the school.

(4) This subsection shall not be construed to affect any student currently attending a school other than the school to which the student has been assigned by the local board of education pursuant to a transfer authorized under the federal No Child Left Behind Act (P.L. 107-110). (b) The department shall establish a model universal, streamlined process to implement the transfer provisions of this Code section.

Each local board of education shall adopt a universal, streamlined transfer process that includes, at a minimum, such state model.

Such local process shall include a deadline for submitting transfer requests.

(c) Each local school system shall annually notify prior to each school year the parents of each student by letter, electronic means,

No. 2]

Senate Bill 251

or by such other reasonable means in a timely manner of the options available to the parent under this article. (d) The local school system shall notify parents by July 1 of each year which schools have available space and to which of these schools parents may choose to request a transfer for their children. (e) This Code section shall not apply to charter schools. (f) This Code section shall not apply to newly opened schools with available classroom space for a period of four years after the school opens."

ยง 2.

Said chapter is further amended by revising subsection (c) of Code Section 20-2-51, relating to election of county board of education members, persons ineligible to be members or superintendent, ineligibility for local boards of education, and ineligibility for other offices, as follows: "(c)(1) No person employed by or serving on the governing body of a private educational institution shall be eligible to serve as a member of a local board of education. No person employed by a local board of education shall be eligible to serve as a member of that board of education. No person employed by the Department of Education or serving as a member of the State Board of Education shall be eligible to serve as a member of a local board of education.

This subseetien paragraph shall not apply to institutions above the high school level.

(2) No person who has an immediate family member sitting on a local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term 'immediate family member' means a spouse, child, sibling, or parent or the spouse of a child, sibling, or parent.

This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system." ยง3.

497

498

John MarshallLaw Journal

[Vol. III

Said chapter is further amended by revising subsection (b) of Code Section 20-2-101, relating to appointment of county school superintendents, as follows: "(b)(1) No person shall be eligible to be appointed or employed as superintendent of schools of any county or independent school system unless such person is of good moral character, has never been convicted of any crime involving moral turpitude, and possesses acceptable business or management experience as specified by the Professional Standards Commission or the minimum valid certificate or a letter of eligibility for said certificate required by the Professional Standards Commission.

(2) No person shall be eligible to be appointed, employed, or to serve as superintendent of schools of any county or independent school system who has an immediate family member sitting on the local board of education for such school system or who has an immediate family member hired as or promoted to a principal. assistant principal, or system administrative staff on or after July 1, 2009, by that school system. As used in this subsection, the term 'immediate family member' shall have the same meaning as in subsection (c) of Code Section 20-2-51. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes the superintendent for that school system."

ยง 4.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. ยง5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

House Bill 251 was Representative Alisha Morgan's response to a cry for help from parents for school choice within her district and throughout the state of Georgia.4 Representative Morgan received letters, emails, and phone calls from parents 4. Interview with Rep. Alisha Morgan, H. Dist. 39, in Atlanta, Ga. (Jan. 14, 2010) [hereinafter Morgan Interview].

No. 2]

Senate Bill 251

499

expressing concern because they felt the schools their children were zoned for were not necessarily the best fit for them.s As someone who benefitted from school choice herself, Representative Morgan felt that now was the time to act and therefore introduced House Bill 251 during the 2009 Legislative Session to provide these children with the opportunity their parents were so desperately seeking.'

House Bill 251 provides public school students with the opportunity to transfer to another school within their district provided the school has space available.' The Bill delegates the definition of "space" and the process by which the local school districts are to implement the Bill to the Department of The Bill requires the D.O.E. to Education ("D.O.E."). streamline the process for the local school districts.9 However, during the first year of its implementation, the individual school districts, rather than the D.O.E., are left to decide what "space" means and the deadlines for parents to enroll their children.o This gave school districts that were not in favor of House Bill 251 the opportunity to establish unrealistic guidelines so that only a small percentage of students would benefit from this In response to these early implementation issues, Bill."

Representative Morgan would like to see changes in the process by providing a more uniform system throughout the state so that children in every county are given the same opportunities to attend the school that best suits their needs.' 2 Implementation was not the only issue that impacted House Bill 251. As the Bill moved through the legislative process, it

5. Id. ("Some parents wanted a better education for their children so badly that they were willing to give up custody rights to get their children into better school systems.").

6. Id.; see also H.B. 251 Status Sheet, supra note 3.

7. Ga. H.B. 251.

8. Morgan Interview, supra note 4.

9. Id. 10. Id. 11. Id. One such example is the Houston County school district which defined "space" as any school that is at less than 80% capacity. Id. In other words, students wishing to attend a school under House Bill 251 could not do so if the school was within 20% of reaching its maximum capacity.

12. Id.

500

John MarshallLaw Journal

[Vol. III

came up against its share of opposition." Some of the most common objections were related to transportation, school space, and athletic recruiting.14 Yet, the language of House Bill 251 covered potential transportation and space issues." Under the Bill, parents are responsible for getting their children to and from school if they choose to take advantage of the program.16 The Bill also required that the chosen school have space available before students can transfer." To address the issue of athletic recruiting, Representative Morgan worked with the Georgia High School Athletic Association to ensure proper guidelines were in place to prevent schools, coaches, and parents from using House Bill 251 as a means to get promising athletes to transfer to their school for the purpose of athletics."

As House Bill 251 moved through the House and Senate, Representative Morgan's strategy was to maintain bi-partisan support within both chambers.19 She achieved this goal by having co-sponsors from both sides of the political aisle in both the House and Senate. 20 Representative Morgan stated that she wished that more parents would have testified before the legislature as to the importance of this Bill to their children.2 1 According to Representative Morgan, bringing the letters, emails, and phone calls that she received to life for the rest of the legislature could have gone a long way towards swaying those that were on the fence about House Bill 25 1.22 Representative Morgan considers House Bill 251 to be a "brick in the wall" towards the type of education reform that she believes is needed in Georgia.23 She would specifically like to see more school choice for families as she believes, "every child deserves a quality education" and "parents are the most

13. Morgan Interview, supranote 4.

14. Id. 15. Ga. H.B. 251.

16. Id. 17. Id. 18. Morgan Interview, supranote 4.

19. Id. 20. Id. 21. Id. 22. Id. 23. Id.

No. 2]

Senate Bill 251

501

informed about the needs of their children."2 4 She also believes that school choice empowers parents by giving them the opportunity to determine which school would best fit their children's needs.25 Moving forward, Representative Morgan would like to revisit the outer district transfer option that was in the earlier draft of the Bill but was removed in an effort to garner the necessary votes to pass through both chambers.26 In the end, Representative Morgan is happy with the response to House Bill 251 and the step that it takes towards providing every child with the opportunity to obtain a quality education.27 LEGISLATIVE GENEALOGY

House Bill 251 was first read on February 02, 2009, and later read a second time on February 03, 2009.28 On February 17, 2009, the House Committee on Education favorably reported the Bill.2 9 It was read for a third time on February 19, 2009 and passed in the House on the same day.30 On February 24, 2009, the Senate read and referred House Bill 251 to the Senate Education and Youth Committee.3 ' The Committee favorably reported on the Bill, and the Senate read it for a second time on March 26, 2009.32 On March 30, 2009, the Senate read the Bill for a third time and adopted House Bill 251 with a substitute which expanded the Bill.33 This expansion allowed students to go to any school of their choice, whether or

24. Morgan Interview, supra note 4.

25. Id. 26. Id. 27. Id. (emphasizing that Rep. Morgan received hundreds of letters from parents across the state of Georgia praising House Bill 251 and the opportunities it is providing their children).

28. H.B. 251 Status Sheet, supra note 3.

29. Id. 30. Id. 31. Id. 32. Id. 33. Id.; see also Ga. H.B. 251, 150th Gen. Assem., 1st Reg. Sess. (Ga. at available Substitute) Committee (S. 2009) http://www.legis.ga.gov/legis/2009_10/versions/hb251_Senctee_subLC_3 3_3238S_7.htm (last visited Mar. 22, 2010).

502

John MarshallLaw Journal

[Vol. III

not the school was in their district, provided that the school had space available.34 The House Committee on Education felt the outer district transfer was too broad and amended the Bill to revert back to the intra-district transfer language in the original draft." On April 1, 2009, the House agreed to the Senate substitute with the addition of this amendment from the House Committee on Education. 6 Much of the action relating to House Bill 251 occurred on April 03, 2009.31 The Senate disagreed with the House's amendment to the Senate substitute, but the House later insisted that the amendment be accepted. Both the House and Senate appointed Conference Committees. 39 However, the House Conference Committee was unsuccessful, and subsequently, the House moved to reconsider.40 Eventually, both the House and the Senate Conference Committee suggestions were adopted at 11:53pm on April 03, 2009 - the last day of the 2009 Legislative Session.41 The version of House Bill 251 that was adopted included two sections relating to nepotism. 42 These sections made persons employed by the State, local boards of education, or private 34. Ga. H.B. 251 (S. Committee Substitute) ("(a)(2) [Bleginning in school year 2010-2011, [parents can] request a transfer for the student to attend a public school outside of the student's resident school system. It shall be in the sole discretion of the local board of education, with input from the school council of the desired school, to accept students pursuant to this paragraph...").

35. H.B. 251 Status Sheet, supra note 3; see also Ga. H.B. 251, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (House Committee Substitute) at available http://www.legis.ga.gov/legis/2009_10/versions/hb251_LC_33_2967Shcs_ 5.htm (last visited Mar. 22, 2010).

36. H.B. 251 Status Sheet, supra note 3.

37. Id. 38. Id. 39. Id. 40. Id. 4 1. Id. 42. Ga. H.B. 251, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as at available passed) http://www.legis.ga.gov/legis/2009_10/versions/hb251_HB_251_AP_1 1.htm (last visited Mar. 22, 2010).

No. 2]

Senate Bill 251

503

schools ineligible to serve on the local school board.4 3 This provision also made persons ineligible to be appointed to a local school board if they have an immediate family member sitting on a local school board or employed in an administrative capacity (i.e., superintendent, principal, or assistant principal)."

The addition of this provision to House Bill 251 caused legislators who were, at one point, staunch supporters of the Bill to start actively lobbying against the Bill.45 Despite the change in support, House Bill 251 still managed to pass with just minutes to spare on the last night of the 2009 legislative session.4 6 The Bill was sent to Governor Sonny Perdue on April 14, 2009.47 House Bill 251 became effective upon signing by the Governor on May 05, 2009.48 Prepared by: Shaun Adams

43. Id. 44. Id.

45. Rep. Morgan Interview, supra note 4.

46. H.B. 251 Status Sheet, supra note 3.

47. Id. 48. Id.

HOUSE BILL 278': QUALITY BASIC EDUCATION ACT

Amending O.C.G.A § 20-2-51, § 20-2-72, §§ 20-2-101 to -101.1, §§ 20-2-160 to -161, § 20-2-167, § 20-2-184.1, § 20-2-260, and § 20-2-262 First Signature: Representative Matt Ramsey (72nd) Co-Sponsors: Representative Jimmy Pruett (144th), Representative Jim Cole (125th), Representative Fran Millar (79th), Representative Edward Lindsey (54th), and Representative Brooks Coleman (97th) Summary: House Bill 278 seeks to amend Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated to provide flexibility to local school systems by temporarily waiving certain expenditure controls for state funds designated for direct instruction, media centers, staff and professional development, and additional days of instruction.2 By not requiring the designated funds be used in a specific way, the Bill would allow local school systems to move state funds from categories of low needs to categories of higher needs.' In exchange for increased flexibility, the Bill imposes an additional reporting requirement on local school systems.4 Additionally, House Bill 278 seeks to impose nepotism restrictions for eligibility of members on local boards of education and superintendents and would require enrollment counts for students enrolled in dual enrollment programs.' The Bill has an automatic repeal date of June 30, 2011.6 1. H.B. 278, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), availableat http://www.legis.ga.gov/legis/2009_10/pdf/hb278.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 4. Id.

5. Id. 6. Id.

506

John MarshallLaw Journal

[Vol. III

Status: Senate Disagrees to House Amendment of Senate Substitute on April 3, 20097 TEXT OF HOUSE BILL 278

ยง 0.1.

Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by revising subsection (c) of Code Section 20-2-51, relating to election of county board of education members, persons ineligible to be members or superintendent, ineligibility for local boards of education, and ineligibility for other offices, as follows: "(c)(1) No person employed by or serving on the governing body of a private educational institution shall be eligible to serve as a member of a local board of education. No person employed by a local board of education shall be eligible to serve as a member of that board of education. No person employed by the Department of Education or serving as a member of the State Board of Education shall be eligible to serve as a member of a local board of education.

This subseetion paragraph shall not apply to institutions above the high school level.

(2) No person who has an immediate family member sitting on a local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term 'immediate family member' means a spouse, child, sibling. or parent or the spouse of a child, sibling, or parent.

This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system."

7. Ga. Gen Assem., H.B. 278 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_10/sum/hb278.htm [hereinafter H.R. 278 Status Sheet].

No. 2]1

House Bill 278 ยง 0.2.

Said chapter is further amended by revising subsection (b) of Code Section 20-2-101, relating to appointment of county school superintendents, as follows: "(b)(1) No person shall be eligible to be appointed or employed as superintendent of schools of any county or independent school system unless such person is of good moral character, has never been convicted of any crime involving moral turpitude, and possesses acceptable business or management experience as specified by the Professional Standards Commission or the minimum valid certificate or a letter of eligibility for said certificate required by the Professional Standards Commission.

(2) No person shall be eligible to be appointed, employed, or to serve as superintendent of schools of any county or independent school system who has an immediate family member sitting on the local board of education for such school system or who has an immediate family member hired as or promoted to a principal, assistant principal, or system administrative staff on or after July 1, 2009, by that school system. As used in this subsection, the term 'immediate family member' shall have the same meaning as in subsection (c) of Code Section 20-2-51. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes the superintendent for that school system."

ยง 0.3.

Article 3 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to local boards of education, is amended by adding a new Code section to read as follows: "20-2-72. (a) Each local board of education shall annually disclose all expenditures, including, but not limited to, expenditures for association dues, advertising and public relations campaigns, mailing, research, analysis, and the compilation and dissemination of information, as well as salaries, administrative expenses, litigation expenses, website operation costs, meetings, conferences, recruitment activities, and media releases. Such disclosure may be

507

John MarshallLaw Journal

508

[Vol. III

accomplished by posting the school system's ledger in electronic form on the school system website. Such disclosure shall be made no later than July 31 of each year for the immediately previous fiscal year. (b) The State Board of Education shall be authorized to initiate the provisions of Code Section 20-2-243, relating to withholding of funds, including specifically administrative funds for salaries pursuant to Code Section 20-2-186, if a local board of education does not comply with the requirements of this Code section."

ยง 0.4.

Article 5 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to local school superintendents, is amended by adding a new Code section to read as follows: "20-2-101.1. (a) A local school superintendent shall not be eligible to be employed by or be under contract for any education association, regional educational service agency, or the Department of Education or any other entity which represents or does business with the local school system which employed the superintendent until one year after the termination date of the superintendent's employment or leaving such office. (b) A superintendent employed by or under contract with a local board of education shall be prohibited from registering as a lobbyist or engaging in lobbying under this article for a period of one year after terminating such employment or leaving such office."

ยง 1.

Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the "Quality Basic Education Act," is amended by revising subsection (a) of Code Section 20-2-160, relating to determination of enrollment by institutional program, as follows: "(a) The State Board of Education shall designate the specific dates upon which two counts of students enrolled in each instructional program authorized under this article shall be made each school year and by which the counts shall be reported to the Department of Education. The initial enrollment count shall be made after

No. 2]

House Bill 278

October 1 but prior to November 17 and the final enrollment count after March 1 but prior to May 1. The report shall indicate the student's specific assigned program for each one-sixth segment of the school day on the designated reporting date. No program shall be indicated for a student for any one-sixth segment of the school day that the student is assigned to a study hall; a noncredit course; a course recognized under this article or by state board policy as an enrichment course, except a driver education course; a course which requires participation in an extracurricular activity for which enrollment is on a competitive basis; a course in which the student serves as a student assistant to a teacher, in a school office, or in the media center, except when such placement is an approved work site of a recognized career or vocational program; an individual study course for which no outline of course objectives is prepared in writing prior to the beginning of the course; a course taken through the Georgia Virtual School pursuant to Code Section 20-2319.1; or any other course or activity so designated by the state board. For the purpose of this Code section, the term 'enrichment course' means a course which does not dedicate a major portion of the class time toward the development and enhancement of one or more student competencies as adopted by the state board under Code Section 20-2-140. A program shall not be indicated for a student for any one-sixth segment of the school day for which the student is not enrolled in an instructional program or has not attended a class or classes within the preceding ten days; nor shall a program be indicated for a student for any one-sixth segment of the school day for which the student is charged tuition or fees or is required to provide materials or equipment beyond those authorized pursuant to Code Section 20-2-133. A student who is enrolled in an eligible institution under the program established in Code Section 20-2-161.1 may be counted for the high school program for only that portion of the day that the student is attending the high school for those segments that are eligible to be counted under this subsection. A student who is enrolled in a dual enrollment program other than as established in Code Section 202-161.1 shall be counted for the high school program or other appropriate program for each segment in which the student is attending the high school or attending a postsecondary course conducted at the high school, as long as the dual enrollment program is provided (1) at a charter school or (2) at a high school pursuant to an agreement between the local school system and a postsecondary institution if such agreement has been approved by the State Board of Education. The state board shall adopt such regulations and criteria as necessary to ensure objective and true counts of students in state approved instructional programs. The

509

510

John MarshallLaw Journal

[Vol. III

state board shall also establish criteria by which students shall be counted as resident or nonresident students, including specific circumstances which may include, but not be limited to, students attending another local school system under court order or under the terms of a contract between two local school systems. If a local school system has a justifiable reason, it may seek authority from the state board to shift full-time equivalent program counts from the designated date to a requested alternate date." ยง 2.

Said article is further amended in Code Section 20-2-161, relating to the Quality Basic Education Formula, by adding a new subsection to read as follows: "(c. 1) For purposes of calculating the annual allotment of funds to each local school system, a student who is enrolled in a dual enrollment program other than as established in Code Section 202-161.1 shall be counted for the high school program or other appropriate program for each segment in which the student is attending the high school or attending a postsecondary course conducted at the high school, as long as the dual enrollment program is provided (1) at a charter school or (2) at a high school pursuant to an agreement between the local school system and a postsecondary institution if such agreement has been approved by the State Board of Education." ยง3.

Said article is further amended in Code Section 20-2-167, relating to funding for direct instructional, media center, and staff development costs, by adding a new subsection to read as follows: "(f)(1) For school years 2008-2009 and 2009-2010 only, the expenditure controls contained in subsection (a) of this Code section relating to direct instructional costs, media center costs, and staff and professional development costs shall be waived and shall not apply to nor be enforceable against a local school system.

(2) Each local school system shall report to the Department of Education its budgets and expenditures of the funds received pursuant to this Code section as a part of its report in October for the FTE count and on March 15.

(3) No penalty shall be applied to a local school system for failure to comply with expenditure controls set out in subsection (a) of

No. 2]

House Bill 278

this Code section that are contrary to this subsection, notwithstanding any law to the contrary, as long as such local school system complies with this subsection.

(4) Nothing in this Code section shall be construed to repeal any other provision of this Code section or this chapter.

(5) This subsection shall be automatically repealed on July 1, 2010."

ยง 4.

Said article is further amended by revising Code Section 20-2184.1, relating to funding for additional days of instruction, as follows: "20-2-184.1. (a) The program weights for the kindergarten, kindergarten early intervention, primary, primary grades early intervention, upper elementary, upper elementary grades early intervention, middle grades, middle school, and remedial programs and the program weights for the high school programs authorized pursuant to paragraph (4) of subsection(b) of Code Section 20-2-151, when multiplied by the base amount, shall reflect sufficient funds to pay the beginning salaries for instructors needed to provide 20 additional days of instruction for 10 percent of the full-time equivalent count of the respective program. Such funds shall be used for addressing the academic needs of low-performing students with programs including, but not limited to, instructional opportunities for students beyond the regular school day, Saturday classes, intersession classes, and summer school classes. Following the midterm adjustment, the state board shall issue allotment sheets for each local school system. Each local school system shall spend 100 percent of the funds designated for additional days of instruction for such costs at the system level. Up to 15 percent of funds designated for additional days of instruction may be spent for transportation costs incurred for transporting students who are attending the additional classes funded by these designated funds. (b)(1) For school years 2008-2009 and 2009-2010 only, the expenditure controls contained in subsection (a) of this Code section relating to additional days of instruction shall be waived and shall not apply to nor be enforceable against a local school system.

511

512

John Marshall Law Journal

[Vol. III

(2) Each local school system shall report to the Department of Education its budgets and expenditures of the funds received pursuant to this Code section as a part of its report in October for the FTE count and on March 15.

(3) No penalty shall be applied to a local school system for failure to comply with expenditure controls set out in subsection (a) of this Code section that are contrary to this subsection, notwithstanding any law to the contrary, as long as such local school system complies with this subsection.

(4) Nothing in this Code section shall be construed to repeal any other provision of this Code section or this chapter.

(5) This subsection shall be automatically repealed on July 1, 2010."

ยง 5.

Part 10 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to capital outlay funds under the "Quality Basic Education Act," is amended by revising subsection (h) of Code Section 20-2-260, relating to capital outlay funds generally, as follows: "(h) A local school system may receive state capital outlay funds for one construction project under the advance funding category to meet educational facilities needs due to the following: (1) Extraordinary growth of student population in excess of the capacity of existing facilities; (2) Destruction of or damage to educational facilities by fire or natural disaster, limited by the provisions of paragraph (2) of subsection (f) of this Code section; (3) Replacement of educational facilities which have been certified as hazards to health or safety; (4) Projects, in priority order, which would otherwise require more than three years of the combined annual entitlement and required local participation amounts, estimated in accordance with the total entitlement intended for authorization by the State Board of Education; and

No. 2]

House Bill 278

(5) Projects for consolidation of schools across local school system lines which have costs that exceed the combined annual entitlements of the participating local school systems. Such projects shall meet, with the exception of paragraph (2) of this subsection, the following conditions to qualify for advanced funding: (A) The local school systems have specifically requested funding under this subsection prior to submission of the annual budget request for the state board to the General Assembly; (B) Annual entitlements accrued under subsection (g) of this Code section have offset any advanced funding previously granted, except that no more than three years of combined entitlements of the participating local school systems shall be required to offset advance funding for consolidation projects pursuant to paragraph (5) of subsection (e) of this Code section; (C) The projects to be funded are not in addition to projects funded for local school systems under the provisions of subsection (g) of this Code section in a given year; and (D) The required local participation and all other procedural requirements of this Code section are met.

This subsection shall be automatically repealed on June 30, 2011." ยง5A. Said part is further amended in Code Section 20-2-260, relating to capital outlay funds generally, by adding a new paragraph to subsection (j) to read as follows: "(7) This subsection shall be automatically repealed on June 30, 2011."

ยง SB. Said part is further amended in Code Section 20-2-262, relating to low-wealth capital outlay grants to local school systems, by adding a new subsection to read as follows: "(e) This Code section shall be automatically repealed on June 30, 2011."

513

514

John MarshallLaw Journal

[Vol. III

ยง 5C. (1) An Act approved May 6, 2008 (Ga. L. 2008, p. 288), is amended by repealing Section I of such Act in its entirety.

(2) An Act approved April 9, 2001 (Ga. L. 2001, p. 148), is amended by repealing Section 21 of such Act in its entirety.

ยง5D. (1) An Act approved May 6, 2008 (Ga. L. 2008, p. 288), is amended by repealing Section 2 of such Act in its entirety.

(2) An Act approved April 9, 2001 (Ga. L. 2001, p. 148), is amended by repealing Section 23 of such Act in its entirety.

(3) An Act approved April 22, 1999 (Ga. L. 1999, p. 400), is amended by striking in its entirety Section 2 and inserting in lieu thereof a new Section 2 to read as follows: "SECTION 2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and-shall-be automatioally repealed on June 30, 2002."

1

ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Matt Ramsey, of the 72nd district, introduced

House Bill 278 at the request of the education community Members of the community felt that within his district.' government mandates on expenditure controls were prohibiting local school systems from stretching the funds currently available.' Representative Ramsey stated that with the "historic diminishment of state and local revenues," school systems 8. General Assembly Video Archive: House Session Part IP (Georgia Public Broadcasting internet broadcast Mar. 5, 2009), available at http://www.gpb.org/lawmakers-tv/video-archive.

9. Id.

No. 2]

House Bill 278

515

needed help dealing with less money.o By temporarily waiving expenditure controls on funds for direct instructional costs, media center costs, staff and professional development costs, and costs for additional days of instruction, school systems would be allowed to allocate funds to categories of high needs and therefore, stretch the funds that were available."

Essentially, Representative Ramsey introduced House Bill 278 to free up funds that could be used in areas previously prohibited.

Representative Ramsey introduced the Bill only as a temporary solution to enable school systems to cope with reduced funds.12 By reasoning that Georgia's tax revenue would again increase to at or near pre-rescission levels, Representative Ramsey felt it necessary that the Bill automatically repeal to reinstate the government mandated Revenue shortfalls spurred similar expenditure controls." legislation during the 1990s and again during Governor Sonny Purdue's first term.14 Although Representative Ramsey felt that it was important that funds be channeled appropriately, the waiver of the expenditure controls was necessary given the difficult circumstances." On the House Floor, Representative Ramsey faced little opposition to the Bill.' 6 LEGISLATIVE GENEALOGY

House Bill 278 was first read and referred to the House Committee on Education on February 2, 2009.11 The Bill was presented for a second reading on February 4, 2009." The House Committee on Education favorably reported on the Bill

10. Id. S1i.Id. 12. Id. 13. Id. 14. General Assembly Video Archive: House Session PartIP, supra note 8.

15.

16.

17.

18.

Id. Id. H.B. 278 Status Sheet, supra note 7.

Id.

516

John MarshallLaw Journal

[Vol. III

on March 3, 2009.19 Representative Matt Ramsey presented the Bill for a third reading and House Floor Debate on March 5, 2009.20 Representative Dubose Porter, of the 143rd district, joined Representative Ramsey on the House floor in support of House Bill 278.21 Representative Porter felt the Bill was "the result of a sad reality," but that it was a necessary step given the current diminished revenues.22 The Bill received bipartisan support and passed the House by a vote 147 to 6 on March 5, 2009.23

The first Senate reading of the Bill occurred on March 9, 2009, and the Bill was referred to the Senate Committee on The Committee added four Education and Youth.24 amendments to the Bill and favorably reported on it on March 26, 2009.25 Senator Dan Weber, of the 40th district, read the Bill for the third time on March 26, 2009.26 Senator Weber spoke on the first two amendments while Senator Eric Johnson, of the 1st district, spoke on the third and fourth amendments.2 7 19. Id. 20. Id. 21. General Assembly Video Archive: House Session PartIP, supra note

8.

22. Id.

23. H.B. 278 Status Sheet, supra note 7.

24. Id. 25. Id.; see H.B. 278, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Floor Amend.

1), available at http://www.legis.ga.gov/legis/2009-10/versions/hb278_Senflooramend_1 AM_33_0833_5.htm (last visited Mar. 22, 2010); H.B. 278, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Floor Amend. 2), available at http://www.1egis.ga.gov/legis/200910/versions/hb278_Senflooramend_2 AM_21_3671_6.htm (last visited Mar. 22, 2010); H.B. 278, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Floor Amend. 3), available at http://www.legis.ga.gov/legis/2009-10/versions/hb278_Senflooramend_3 AM_33_0836_7.htm (last visited Mar. 22, 2010); H.B. 278, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Floor Amend. 4), available at http://www.legis.ga.gov/legis/2009_10/versions/hb278_Senflooramend_4 AM_33_0825_8.htm (last visited Mar. 22, 2010).

26. Id. 27. General Assembly Video Archive: Senate Session Part IP (Georgia Public Broadcasting internet broadcast Apr. 1, 2009), available at http://www.gpb.org/lawmakers-tv/video-archive; see Ga. H.B. 278 (S. Floor Amend. 1); Ga. H.B. 278 (S. Floor Amend. 2); Ga. H.B. 278 (S. Floor Amend. 3); Ga. H.B. 278 (S. Floor Amend. 4).

No. 2]

House Bill 278

517

The first Amendment pushed back the date in which the capital outlay portion of the Bill would automatically repeal to June 30, 2011.28 The second Amendment added the anti-nepotism section to the Bill which previously passed through the Senate with House Bill 84.29 Specifically, the section prohibited local school superintendents from being employed or under contract for any educational agency or Department of Education which does business with the local school system which employed the superintendent for a period of one year.30 The third Amendment required local school boards to post expenditures on their school websites so that local taxpayers could view them." Finally, the fourth Amendment prohibited superintendents from being employed by lobbyists for their former school system for a period of one year following termination or cessation.32 Senator Vincent Ford, of the 39th district, questioned Senator Weber on the importance of ensuring that funds were specifically earmarked for media centers.3 3 Senator Weber recognized the importance of properly funding media centers but felt that relaxing of the expenditure controls was needed given the current budget conditions.3 4 Senator Ford was of the opinion that media centers were at the core of many accreditation issues and questioned Senator Weber on the risk Senator of losing accreditation by local school systems."

Weber responded by stating that administrators are well aware of the accreditation requirements and emphasized that the Bill is a temporary measure that gives flexibility to local school systems while allowing for fulfillment of accreditation requirements.3 6 28. Ga. H.B. 278 (S. Floor Amend. 1).

29. Ga. H.B. 278 (S. Floor Amend. 2); General Assembly Video Archive: Senate Session PartIP, supra note 27.

30. Ga. H.B. 278 (S. Floor Amend. 2).

31. Ga. H.B. 278 (S. Floor Amend. 3); General Assembly Video Archive: Senate Session PartIP, supra note 27.

32. Ga. H.B. 278 (S. Floor Amend. 4).

33. General Assembly Video Archive: Senate Session PartIP, supra note 27.

34. Id. 35. Id. 36. Id

518

John MarshallLaw Journal

[Vol. III

The Senate passed and adopted House Bill 278 on April 1, 2009, by a vote of 41 to 14." On April 3, 2009, the final day of the 2009 General Assembly, the House agreed with the amended Senate Substitute by a vote of 101 to 60.38 The Bill then went back to the Senate for concurrence on the same day.3 9 However, the Senate disagreed with a House amendment to the Substitute, and there was insufficient time to address the issue before the session ended." The General Assembly did not recommit House Bill 278 in the 2010 legislative session.

Prepared by: DarrylScott

37. H.B. 278 Status Sheet, supra note 7.

38. Id. 39. Id. 40. Id.

HOUSE BILL 400': BUILDING RESOURCEFUL INDIVIDUALS TO DEVELOP GEORGIA'S ECONOMY ACT

Amending 0. C.G.A. § 20-2-281 and O.C.G.A. §§ 20-2-325 to -329.3 First Signature: Representative Fran Millar (79th) Co-Sponsors: Representative Edward Lindsey (54th), Representative Jimmy Pruett (144th), Representative Amos Amerson (9th), and Representative Kathy Ashe (56th) Summary: House Bill 400 seeks to amend Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated to prepare Georgia's youth for success in postsecondary schools and career fields.2 House Bill 400 provides a foundation for students to transition into and succeed in their studies at postsecondary schools, career pathways, and employment.' The Bill focuses on academic planning for student success and recognizes the need for graduation coaches and counselors to support student achievement and career pathway selections by high school students.

Status: Senate Read and Referred on March 10, 20091

1. H.B. 400, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb400.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 4. Id. 5. Ga. Gen. Assem., H.B. 400, (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_10/sum/hb400.htm [hereinafter H.B. 400 Status Sheet].

John MarshallLaw Journal

520

[Vol. III

TEXT OF HOUSE BILL 400

ยง 1.

Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to the "Quality Basic Education Act," is amended by adding a new part to read as follows: "Part 16 20-2-325.

This part shall be known and may be cited as the 'Building Resourceful Individuals to Develop Georgia's Economy Act.' 20-2-326.

For purposes of this part, the term: (1) 'Articulation' means agreement between a high school and a postsecondary institution regarding the awarding of both secondary and postsecondary credit for a dual enrollment course.

(2) 'Career academy' means a specialized charter school established by a partnership between one or more local boards of education and a technical school or college and approved by the State Board of Education in accordance with Article 31 of this chapter or the Georgia Charter Schools Commission in accordance with Article 31A of this chapter. This term also includes a small learning community where a student receives academic instruction at his or her assigned high school combined with work based learning opportunities at an industry center or technical school or college.

(3) 'Choice technical high school' means a high school, other than the high school to which a student is assigned by virtue of his or her residence and attendance zone, which is designed to prepare a high school student for postsecondary education and for employment in a career field. A choice technical high school may be operated by a local school system or a technical school or college. A choice technical high school may also be operated as a charter school under a governance board composed of parents, employers, and representatives from the local board of education.

(4) 'Chronically low-performing high school' means a public high school in this state with a graduation rate less than 60 percent for

No. 2]

House Bill 400

three consecutive years, as determined in accordance with methodology established by the National Governors Association's Compact on High School Graduation Data or that has not made adequate yearly progress for three consecutive years, as defined by the Office of Student Achievement.

(5) 'Focused program of study' means a rigorous academic core combined with either a focus in mathematics and science; a focus in humanities, fine arts, and foreign language; or a coherent sequence of career pathway courses that is aligned with graduation requirements established by the State Board of Education and curriculum requirements established pursuant to Part 2 of this article, that prepares a student for postsecondary education or immediate employment after high school graduation, and that is in accordance with the requirements of paragraph (1) of Code Section 20-2-328.

(6) 'Graduation plan' means a student specific plan developed in accordance with paragraph (7) of subsection (a) of Code Section 20-2-327 detailing the courses necessary for a high school student to graduate from high school and to successfully transition to postsecondary education and the work force.

(7) 'Industry certification' means a process of program evaluation that ensures that individual programs meet industry standards in the areas of curriculum, teacher qualification, lab specifications, equipment, and industry involvement.

(8) 'Public college or university' means a two-year or four-year college, university, or other institution under the auspices of the Board of Regents of the University System of Georgia.

(9) 'Small learning community' means an autonomous or semiautonomous small learning environment within a large high school which is made up of a subset of students and teachers for a two, three, or four-year period. The goal of a small learning community is to achieve greater personalization of learning with each community led by a principal or instructional leader. A small learning community blends academic studies around a broad career or academic theme where teachers have common planning time to connect teacher assignments and assessments to college and career readiness standards. Students voluntarily apply for enrollment in a small learning community but must be accepted and such enrollment must be approved by the student's parent or guardian.

A small learning community also includes a career academy

521

522

John MarshallLaw Journal

[Vol. III

organized around a specific career theme which integrates academic and career instruction, provides work-based learning opportunities, and prepares students for postsecondary education and employment, with support through partnerships with local employers, community organizations, , and postsecondary institutions.

(10) 'Technical school or college' means a school, college, institution, or other branch of the Technical College System of Georgia.

20-2-327. (a)(1) The Department of Education shall develop focused programs of study in high demand, high skill, and high wage academic and career fields in accordance with a phase-in schedule as determined by the state board.

(2) Focused programs of study may include, but are not limited to: (A) Aerospace; (B) Health care and elderly care, (C) Agribusiness; (D) Life science; (E) Energv and environmental; (F) Logistics and transportation: (G) Information and technology; (H) Teacher education training: (I) Technology and engineering: (J) Science and mathematics; and (K) Humanities and fine arts.

(3) The department shall include in the focused programs of study the flexibility for a student to pursue courses at the school of attendance, at a technical school or college, at a public college or university, at a work site under an apprenticeship cooperative

No. 2]

House Bill 400

education program, and at other settings approved by the State Board of Education, as appropriate.

(4) For each focused program of study identified pursuant to this subsection, the department shall convene a committee which includes high school teachers: school counselors: representatives from the Board of Regents of the University System of Georgia, the Technical College System of Georgia, and employers, and others as deemed appropriate by the department. These committees shall develop and recommend a focused program of study which blends academic and technical content developed around college and career readiness standards with real world problems and projects for students. Recommendations shall include state-wide articulation and dual enrollment courses between local school systems and postsecondary institutions to provide seamless pathways for adequately prepared high school students to move directly into postsecondary education. The committees shall develop measures to certify equivalency in content and rigor for all state-wide articulation and dual enrollment courses and shall follow related policies and procedures established by the Department of Education, the Board of Regents of the University System of Georgia, and the State Board of Technical and Adult Education for awarding articulation and dual enrollment credit which shall be based on students qualifying to enroll in credit bearing postsecondary courses.

(5) Student performance at the advanced proficiency/honors level on any assessments required for purposes of high school graduation shall be recognized as: (1) meeting postsecondary entrance test requirements, and(2) qualifying students to enroll in credit-bearing postsecondary course work in accordance with policies and requirements established by the State Board of Education, the Board of Regents of the University System of Georgia, and the State Board of Technical and Adult Education.

(6) Secondary and postsecondary credit shall be awarded immediately upon successful completion of any articulated or dual enrollment course in accordance with policies and requirements established by the State Board of Education, the Board of Regents of the University System of Georgia, and the State Board of Technical and Adult Education.

(7) Beginning with the 2009-2010 school year, students in the sixth, seventh, and eighth grades shall be provided counseling, advisement, career awareness, career interest inventories, and

523

524

John MarshallLaw Journal

[Vol. III

information to assist them in evaluating their academic skills and career interests. Before the end of the second semester of the eighth grade, students shall select a preferred focused program of study and develop an individual graduation plan in consultation with their parents, guardians, or individuals appointed by the parents or guardians to serve as their designee. High school students shall be provided guidance, advisement, and counseling annually that will enable them to successfully complete their individual graduation plans, preparing them for a seamless transition to postsecondary study, further training, or employment.

An individual graduation plan shall: (A) Include rigorous academic core subjects and focused course work in mathematics and science or in humanities, fine arts, and foreign language or sequenced career pathway course work (B) Incorporate provisions of a student's Individualized Education Program (IEP), where applicable: (C) Align educational and broad career goals and a student's course of study; (D) Be based on the student's selected academic and career focus area as approved by the student's parent or guardian: (E) Include experience based, career oriented learning experiences which may include, but not be limited to, intemships, apprenticeships, mentoring, co-op education, and service learning (F) Include opportunities for postsecondary studies through articulation, dual enrollment, and joint enrollment; (G) Be flexible to allow change in the course of study but be sufficiently structured to meet graduation requirements and qualify the student for admission to postsecondary education; and (H) Be approved by the student and the student's parent or guardian with guidance from the student's school counselor or teacher adviser.

(8) The Department of Education shall provide training for school counselors and graduation coaches about high demand, high skill, and high wage opportunities for bachelor's degrees, associate's degrees, and certificates, how a combination of rigorous academic and technical courses can prepare students for these fields, and how to organize a teacher adviser system that engages teachers in

No. 2]

House Bill 400

working with a core group of students and their parents or guardians in setting goals, identifying individual programs of study, and establishing individual graduation plans to achieve those goals. The plan shall include strategies for school counselors, graduation coaches, and teacher advisers to effectively involve parents or guardians in the educational and career guidance process and in the development of individual graduation plans. Upon request by any local school system, training may be given to school counselors and graduation coaches in any middle or high school.

(9) No later than July 1, 2011, the State Board of Education, in collaboration with the Technical College System of Georgia and the Board of Regents of the University System of Georgia, shall establish a process for certifying all focused programs of study receiving state funds by using national certifying agencies where they exist and developing state industry-certifying panels in career pathways where no national certifying agency exists. The certification process shall, at a minimum, validate that a program of study curriculum meets industry standards where applicable, that its teachers hold current industry certification where applicable, and that its facilities, equipment, and software are adequate to teach the curriculum. (b)(1) The State Board of Education shall develop an evidence based model program for chronically low-performing high schools receiving a reform grant pursuant to subsection(d) of this Code section for addressing at-risk students, which shall include various programs and curricula proven to be effective for at-risk students focusing on: (A) Identification of students at risk for being poorly prepared for the next grade level or for dropping out of school; (B) Strengthening retention of ninth grade students in school and reducing high failure rates; (C) Improving more student performance to grade level standards in reading and mathematics by the end of ninth grade: (D) Assisting students and their parents or guardians in setting an outcome career and educational goal and identifying a focused nrogram of study to achieve such goal: and

525

526

John MarshallLaw Journal

[Vol. III

(E) Assisting students in learning and applying study skills, coping skills, and other habits that produce successful students and adults.

(2) The at-risk model program shall include: (A) Diagnostic assessments to identify strengths and weaknesses in the core academic areas; (B) A process for identifying these students, closely monitored by the Department of Education in collaboration with local school systems to ensure that students are being properly identified and provided timely, appropriate guidance and assistance and to ensure that no group is disproportionately represented; and (C) An evaluation component in each high school to ensure the programs are providing students an opportunity to graduate with a high school diploma.

(3) The at-risk model program may include various components designed to result in more students facilitating a successful start in high school and passing ninth grade such as: (A) Utilizing a flexible schedule that increases students' time in core language arts/reading and mathematics studies designed to eliminate academic deficiencies; (B) Maintaining a student-teacher ratio in ninth grade that is no higher than any other grade level ratio in high school: (C) Utilizing experienced and effective teachers as leaders for teacher teams in ninth grade to improve instructional planning, delivery, and re-teaching strategies; (D) Assigning students to a teacher mentor who will meet with them frequently to provide planned lessons on study skills and other habits of success that help students become independent learners and who will help them receive the assistance they need to successfully pass ninth grade; and (E) Including ninth grade career courses which incorporate a series of miniproiects throughout the school year that require the application of ninth grade level reading, mathematics, and science skills to complete while students learn to use a range of technology and help students explore a range of educational and career options that will assist them in formulating post high school goals and give

No. 2]

House Bill 400

them a reason to stay in school and work toward achieving their stated goals. (c) No later than July 1, 2010, the State Board of Education shall promulgate rules and regulations for chronically low-performing high schools receiving a reform grant pursuant to subsection (d) of this Code section to make the high schools more relevant to and effective for all students. Such rules shall encourage high schools to implement a comprehensive school reform research based model that focuses on: (1) Setting high expectations for all students; (2) Personalizing graduation plans for students; (3) Developing small learning communities or career academies with a rigorous academic foundation and emphasis in broad career fields of study: (4) Using project based instruction embedded with strong academics to improve relevancy in learning: (5) Fostering collaboration among academic and career/technical

teachers; (6) Implementing nontraditional scheduling in ninth grade for students behind in their grade level: (7) Promoting parental involvement and (8) Training teachers to work with low-performing students and their parents or guardians. (d) Subject to appropriations by the General Assembly, the State Board of Education shall establish a competitive grant program for local school systems to implement school reform measures in selected high schools pursuant to this part. The state board shall establish program requirements in accordance with the provisions of this part and shall establish grant criteria, which shall include that priority for reform grants shall be given to chronically lowperforming high schools.

20-2-328.

High schools that receive a reform grant pursuant to subsection (d) of Code Section 20-2-327 shall:

527

528

John MarshallLaw Journal

[Vol. III

(1) Provide focused programs of study which are designed to provide a well-rounded education for students by fostering artistic creativity, critical thinking, and self-discipline through the teaching of academic content, knowledge, and skills that students will use in the workplace, further education, and life. The focused programs of study, whether provided at a choice technical high school, a career academy, a traditional high school, or on site at a technical school or college or a public college or university, shall be aligned with graduation requirements established by the State Board of Education and curriculum requirements established pursuant to Part 2 of this article, which shall include, at a minimum, four years of mathematics, Algebra I and higher, and four years of English, with an emphasis on developing reading and writing skills to meet college and career readiness standards; (2) Implement a teacher adviser system where an individual professional educator in the school assists a small group of students and their parents or guardians throughout the students' high school careers to set postsecondary goals and help them prepare programs of study, utilizing assessments and other data to track academic progress on a regular basis; communicates frequently with parents or guardians; and provides advisement, support, and encouragement as needed: (3) Provide students in the ninth through twelfth grades information on educational programs offered in high school, in technical and community colleges, in colleges and universities, and through apprenticeship programs and how these programs can lead to a variety of career fields. Local school systems shall provide opportunities for field trips, speakers, educational and career information centers, job shadowing, and classroom centers to assist students and their parents or guardians, with guidance from school counselors and teacher advisers, in revising, if appropriate, the individual graduation plan developed pursuant to paragraph (7) of subsection (a) of Code Section 20-2-327; (4) Enroll students no later than ninth grade into one of the following options for earning a high school diploma and preparing students for postsecondary education and a career which will include a structured program of academic study with in-depth studies in: (A) Mathematics and science: (B) Humanities, fine arts, and foreign language: or

No. 2]

House Bill 400

(C) A career pathway that leads to passing an employer certification exam in a high demand, high skill, or high wage career field or to an associate's degree or bachelor's degree. The awarding of a special education diploma to any disabled student who has not completed all of the requirements for a high school diploma, but who has completed his or her Individualized Education Program (IEP) shall be deemed to meet the requirements of this paragraph; (5) Implement the at-risk model program developed by the State Board of Education pursuant to paragraph (1) of subsection (b) of Code Section 20-2-327: (6) Comply with the rules and regulations promulgated by the State Board of Education for chronically low-performing high schools pursuant to subsection (c) of Code Section 20-2-327; and (7) Schedule annual conferences to assist parents or guardians and their children in setting educational and career goals and creating individual graduation plans beginning with students in the eighth arade and continuing through high school. These conferences shall include, but are not limited to, assisting the student in identifying educational and career interests and goals, selecting a career and academic focus area, and developing an individual graduation plan.

20-2-329.

No later than July 1, 2010, the Office of Student Achievement shall include in the accountability system provided for in Part 3 of Article 2 of Chapter 14 of this title emphasis on improving student achievement and increasing high school graduation rates, with the goal of having all public high schools in Georgia reach at least a 90 percent high school completion rate, which shall include completion by the end of the summer following a student's senior year, by July 1, 2020, with annual incremental targets.

20-2-329.1. (a) An individual graduation plan shall be reviewed annually, and revised, if appropriate, upon approval by the student and the student's parent or guardian with guidance from the student's school counselor or teacher adviser. (b) An individual graduation plan may be changed at any time throughout a student's high school career upon approval by the

529

John MarshallLaw Journal

530

[Vol. III

student and the student's parent or guardian with guidance from the student's school counselor or teacher adviser.

20-2-329.2.

The State Board of Education shall promulgate rules and regulations necessary to carry out the provisions of this part.

20-2-329.3.

It is the intent of the General Assembly that it is strongly discouraged that this part be waived by the State Board of Education pursuant to Article 4 of this chapter, Code Section 20-2244, or Code Section 20-2-2065." ยง2.

Said article is further amended in Code Section 20-2-281, relating to assessment of effectiveness of educational programs, by adding a new subsection to read as follows: "(q) The State Board of Education shall provide that a student who passes an employer or industry certification examination or a state licensure examination which is approved by the State Board of Education shall be exempt from the high school graduation test provided for in subsection (a) of this Code section except for the reading, writing, and mathematics portions and from end-of-course assessments as provided for in subsection (f) of this Code section except for tests in the areas of reading, writing, mathematics, and English." ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Fran Millar, of the 79th district, recognizes the controversial problems and issues surrounding Georgia's education system, and by introducing House Bill 400, Representative Millar seeks to improve Georgia's educational

No. 2]

House Bill 400

531

system.6 Representative Millar introduced House Bill 400 to accomplish several goals which include providing students opportunities to become more productive, strengthening Georgia's education system, improving Georgia's dropout rate, and allowing students to take advantage of Georgia's excellent technical schools.7 Representative Millar stated that, "the biggest impediment we have in statewide economic development is our reputation of having an uneducated work force." 8 While House Bill 400 is sponsored by Representative Millar, Representative Millar recognizes that he was not the sole creator of this Bill; the Southern Regional Educational Board gave advice and opinions that helped craft House Bill 400.9 Representative Millar believes that to strengthen Georgia's economy and raise Georgia's ranking from the bottom of educational achievement, Georgians must "eliminate the myth that every child needs to be a college graduate."10 Traditionally, Georgia's dropout rate has been higher than other states, and in House Bill 400, Representative Millar addresses the issue of chronically low-performing school districts by including a section for these schools which provides programs and curricula designed to focus on at-risk students."

The support for at-risk students in House Bill 400 includes, but is not limited to, early identification for students poorly prepared for the next grade level, decreasing the failure rates for ninth grade students to abate the feelings of hopelessness, and assisting students and their parents or guardians in setting out career and educational goals.12 Individual graduation plans as well as graduation coaches and advisors are two aspects of the Bill that have been warmly received by many citizens."

Representative Millar stated, "U.S. Senator Johnny Isakson 6. Interview with Rep. Fran Millar, H. Dist. 79, in Dunwoody, Ga. (Oct. 7, 2009) [hereinafter Millar Interview].

7. Id. 8. Fran Millar & Bert Brantley, Editorial, Can Georgia afford School Reform in a Bad Economy, ATLANTA J.-CONST., May 15, 2009, at A12.

9. Millar Interview, supra note 6.

10. Millar & Brantley, supra note 8.

11. Millar Interview, supra note 6.

12. Ga. H.B. 400.

13. Millar Interview, supra note 6.

532

John MarshallLaw Journal

[Vol. III

believes the individual graduation plan to be the best feature of

House Bill 400."14 Overall, House Bill 400 has gained support from technical schools, as well as the business community because businesses have grown tired of hiring or interviewing employees who cannot read, write, or work through problems requiring critical thinking." Representative Millar believes that obtaining a fouryear college degree is not the only way for young people to House Bill 400 provides become productive citizens.' 6 alternative opportunities for Georgia's students that lead to career pathways through technical schools and post-secondary training.' 7 However, there have been issues of funding and questions about whether the goals of House Bill 400 are attainable.'"

House Bill 400 was originally the "Building Resourceful Individuals to Develop Georgia's Economy" portion of Senate Bill 178,19 a prior bill sponsored by Representative Millar during the 2009 legislative session.2 0 That particular portion of Senate Bill 178 was designed to develop programs to improve graduation rates and to improve the preparedness of students for postsecondary education and careers. 2 1 However, Governor Sonny Perdue ultimately vetoed Senate Bill 178.22 In Governor Perdue's veto messages for the 2009 General Assembly, he stated: "the Governor's Office of Planning and Budget estimated that the current [Senate Bill 178] will impose an immediate one-time cost of $417 million and an ongoing annual cost of $146 million. Notwithstanding my substantive policy

14. Id. 15. Id. 16. Id. 17. Id.; see Ga. H.B. 400.

18. Millar Interview, supra note 6.

19. S.B. 178, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009-10/pdf/sb178.pdf (last visited Mar. 22, 2010).

20. Millar Interview, supra note 6.

21. Ga. S.B. 178.

178 (Mar. 20, 2010), Gen. Assem., S.B. 22. Ga. http://www.legis.ga.gov/legis/200910/sum/sbl78.htm.

No. 2]

House Bill 400

533

concerns about this Bill, the State simply cannot afford it at this time. For these reasons, I [veto Senate Bill] 178."23 According to Representative Millar, State School Superintendent Kathy Cox stated that it would cost $1.4 million for the mandatory measures in Senate Bill 178.24 Representative Millar voiced his frustrations on the Governor's veto in an editorial stating that, "no one in the governor's office ever raised any of these 'objections' with us. 2 5 We currently spend about $10 million in the areas impacted by the legislation, and the Superintendent and Department of Education felt they could implement [Senate Bill 178] with little additional cost." 26 In any event, Representative Millar believes House Bill 400's goals to strengthen Georgia's economy by building a foundational program that students can follow to become productive members of society regardless of a four-year degree is functional and practical. 27 Representative Millar recognizes the funding issue with House Bill 400 and stated that House Bill 400 will be amended to include a funding provision." It is Representative Millar's sincere hope that House Bill 400 will be a bill that the governor will not be able to amend or veto.2 9 LEGISLATIVE GENEALOGY

House Bill 400 was first read on February 12, 2009.30 A second reading occurred on February 17, 2009.1' On March 3, 2009, upon the recommendation of Chairman Representative Brooks Coleman, of the 97th district, the House Committee on 23. See Press Release, Office of the Governor, State of Georgia, Governor Perdue Issues Signing Statements for 3 Bills, Vetoes 16 Bills (May 11, at available 2009), http://gov.georgia.gov/00/press/detail/0,2668,78006749_139486062_140372 354,00.html.

24. Millar Interview, supra note 6.

25. Millar & Brantley, supra note 8.

26. Id. 27. Millar Interview, supra note 6.

28. Id. 29. Id. 30. H.B. 400 Status Sheet, supra note 5.

3 1. Id.

534

John MarshallLaw Journal

[Vol. III

Education favorably reported on the Bill and recommended it pass by Committee Substitute. 32 The Committee Substitute differed from the original version of the Bill minimally.3 The changes included the insertion of the definition of public college or universities and the insertion of the requirement that student enrollment into diploma programs occur in the ninth grade as opposed to the tenth grade. 34 A third reading of House Bill 400 occurred on March 9, 2009, and on the same day, the House passed House Bill 400 with 153 yeas, 2 nays, and 13 not voting (12 of which were excused).35 There was no debate on the Bill on the House floor prior to the vote. 6 However, Representative Millar used the time to thank the Department of Education for their help in enhancing the Bill, particularly in respect to the individual education plans and dual enrollment.

Representative Millar emphasized how this Bill was not for teachers or administrators, but rather for students. He stated, "House Bill 400 is about giving children hopes and

expectations." 3 9 The Senate read and referred House Bill 400 on March 10, 2009.40 However, the Senate has taken no further action on the

32. General Assembly Video Archive: House Session Part I (Georgia Public Broadcasting internet broadcast Mar. 3, 2009), available at mms://mediaml.gpb.org/galleg/2009/house-030309_1A.wmv.

33. Compare H.B. 400, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as introduced), available at http://www.legis.ga.gov/legis/2009_10/versions/hb400_LC_33_2901 a_2.ht m, with H.B. 400, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (H. Committee Substitute) available at http://www.legis.ga.gov/legis/2009_1 0/versions/hb400_LC_33_3031 S_hs_4. htm.

34. Id. 35. H.B. 400 Status Sheet, supra note 5.

36. General Assembly Video Archive: House Session (Georgia. Public Broadcasting internet broadcast Mar. 9, 2009), availableat mms://mediaml.gpb.org/galleg/2009/house_030909.wmv.

37. Id. 38. Id. 39. Id. 40. H.B. 400 Status Sheet, supra note 5.

No. 2]

House Bill 400

535

Bill to date. 4 1 Representative Millar stated that if the Bill is vetoed by the Governor or if it is not passed as a standalone Bill then he plans to tack the Bill's language onto other legislation.4 2 Prepared by: Richard C Bentley

41. Telephone Interview with Rep. Fran Millar, H. District 79 (February 28, 2010).

42. Id.

HOUSE BILL 501': EDUCATIONAL PROGRAMS; PLACEMENT AND PROMOTION POLICIES FOR GRADES ONE, Two, FOUR, SIX, AND SEVEN

Amending O.C.G.A. ยง 20-2-283 First Signature: Representative Rick Austin (10th) Co-Sponsors: Representative Tommy Benton (31st), Representative Bobby Reese (98th), Representative Margaret Kaiser (59th), and Representative Amy Carter (175th) Summary: House Bill 501 seeks to amend Part 12 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated to create placement and promotion policies for grades one, two, four, six, and seven.2 The Bill also seeks to create provisions for the documentation of promotion decisions, as well as the submission of data to the State Board of Education regarding students who fail to meet the established criterion-referenced assessments in certain grades.'

Status: House Second Readers on February 24, 20094 TEXT OF HOUSE BILL

501

ยง 1.

Part 12 of Article 6 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to effectiveness of educational

1. H.B. 501, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdflhb501.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 4. Ga. Gen. Assem., H.B. 501 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_1 0/sum/hb50 1.htm [hereinafter H.B. 501 Status Sheet].

John MarshallLaw Journal

538

[Vol. III

programs, is amended by revising Code Section 20-2-283, relating to criteria for a placement and promotion policy, as follows: "20-2-283. (a)(1) No later than January 1, 2002, the State Board of Education shall adopt criteria for the development of a placement and promotion policy by each local board of education consistent with the Georgia Academic Placement and Promotion Policy with respect to third, fifth, and eighth grades.

(2) No later than January 1, 2010, the State Board of Education shall adopt criteria for the development of a placement and promotion policy by each local board of education consistent with the Georgia Academic Placement and Promotion Policy with respect to first and second grades. (b) Such criteria as adopted by the State Board of Education shall require the following for students in grades one, two, three, five, and eight: (1) No student shall be promoted, except as provided in this Code section, to: (A) The second grade program to which the student would otherwise be assigned if the student does not achieve grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 on the first grade criterion-referenced reading assessment developed in accordance with subsection (a) of Code Section 20-2-281 and meet the promotional standards and criteria established by the State Board of Education and by the local school board for the school that the student attends; (B) The third grade program to which the student would otherwise be assigned if the student does not achieve grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 on the second grade criterion-referenced reading assessment developed in accordance with subsection (a) of Code Section 20-2-281 and meet the promotional standards and criteria established by the State Board of Education and by the local school board for the school that the student attends; (A)(C) The fourth grade program to which the student would otherwise be assigned if the student does not achieve grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 on the third grade criterion-referenced

No. 2]

House Bill 501

reading assessment developed in accordance with subsection (a) of Code Section 20-2-281 and meet the promotional standards and criteria established by the State Board of Education and by the local school board for the school that the student attends; (B)(D) The sixth grade program to which the student would otherwise be assigned if the student does not achieve grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 on the fifth grade criterion-referenced mathematics assessment and fifth grade criterion-referenced reading assessment developed in accordance with subsection (a) of Code Section 20-2-281 and meet the promotional standards and criteria established by the State Board of Education and by the local school board for the school that the student attends; or (G)(E) The ninth grade program to which the student would otherwise be assigned if the student does not achieve grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 on the eighth grade criterion-referenced mathematics assessment and eighth grade criterion-referenced reading assessment developed in accordance with subsection (a) of Code Section 20-2-281 and meet the promotional standards and criteria established by the State Board of Education and by the local school board for the school that the student attends; (2) When a student does not perform at grade level on any criterion-referenced assessment specified in paragraph (1) of this subsection then the following shall occur: (A) The parent or guardian of the student shall be notified in writing by first-class mail by the school principal or such official's designee regarding the student's performance below grade level on the assessment instrument, the retest to be given the student, the accelerated, differentiated, or additional instruction program to which the student is assigned, and the possibility that the student might be retained at the same grade level for the next school year; (B) The student shall receive accelerated, differentiated, or additional instruction in the subject of the assessment instrument on which the student failed to perform at grade level; and

(B(C) The student shall be retested with a criterion-referenced assessment or an alternative assessment instrument that is appropriate for the student's grade level as provided for by the State Board of Education and the local board of education; and

539

John MarshallLaw Journal

540

(G) The student hall be given an differentiated, radiinlntutonin

Gppertuflity' for

[Vol. III

accelerated,

the applicabic subjeet;

afnd (3) When a student does not perform at grade level on any criterion-referenced assessment specified in paragraph (1) of this subsection and also does not perform at grade level on a second additional opportunity as provided for in paragraph (2) of this subsection then the following shall occur: (A) The school principal or the principal's designee shall retain the student for the next school year except as other-wise previded in this sebseesien; (B) The scoel prcincipalor the priinipal's designee shall notip' in ort guardian of the student an dsing by first elass mail the paren the teaofert regarding the deisientc etain the student. The notie shall deseribe the option of the paset,guardian, of teacer to appeal the decision ta retain the studect and shall further deseribe the iempfsition and functions of the plaement eouaitoe as prvided fe in this subsection, including the reuirement that decision to proemote the student fmst be a uanimeus deeision et the) emmitteesa (C) ifthe parent, guardian, or teachie appeals the deeision to retain the student, then the sehel prineipal orfdesignee shall establish a placement committee composed of the principal or the principal's designee, the student's parent or guardian, and the teacher of the subject of the assessment instrument on which the student failed to perform at grade level, and another teacher, either in the same prade level or a previous teaher of the student, if possible, or i not possible. another teacher designated by the principal and shall notify in writing by first-class mail the parent or guardian of the time and place for convening the placement committee; (PO{)

The placement committee shall:

(i) Review the overall academic achievement of the student in light of the performance on the criterion-referenced assessment and the standards and criteria as adopted by the local board of education and make a determination to promote or retain. A decision to promote must be a unanimous decision and must determine that if promoted and given accelerated, differentiated, or additional

No. 2]

House Bill 501

instruction during the next year, the student is likely to perform at grade level as defined by the Office of Student Achievement in accordance with Code Section 20-14-31 by the conclusion of the school year. A student who does not perform at grade level on a second additional assessment opportunity as provided for in paragraph (2) of this subsection but receives an exceedingly low score, as defined by the State Board of Education, shall not be promoted except under extenuating circumstances. Such decision shall be documented by the placement committee and placed in the student's record; and (ii) Prescribe for the student, whether the student is retained or promoted, such accelerated, differentiated, or additional instruction as needed to perform at grade level by the conclusion of the subsequent school year, prescribe such additional assessments as may be appropriate in addition to assessments administered to other students at the grade level during the year, and provide for a plan of continuous assessment during the subsequent school year in order to monitor the progress of the student; (C) Any decision by the placement committee may be apealed to the local board of education by filing a written notice of appeal within 20 days from the date such decision is rendered. The local board of education shall review the record and shall render a decision in writing. The decision of the local board of education shall be given to all parties within ten business days from the date the local board of education receives the notice of appeal. The local board may take any action it determines appropriate, and any decision of the local board shall be final; (D) The local board of education shall annually report to the State Board of Education in accordance with guidelines established by the state board the number of students who do not perform at grade level on a second additional assessment opportunity as provided for in paragraph (2) of this subsection, and of these, the number of students retained and the number of students promoted: ()(E) For students receiving special education or related services, the Individualized Education Plan Committee shall serve as the placement committee; and (F)(F) The decision of the placement committee may be appealed only as provided for by the local board of education.

541

John MarshallLaw Journal

542

[Vol. III

(c) This Code section does not preclude the retention by the school principal or the principal's designee of a student who performs satisfactorily on the criterion-referenced assessments specified in paragraph (1) of subsection (b) of this Code section as provided for by the local board of education. (d) This Code section does not create a property interest in promotion. (e) The State Board of Education shall establish policies and procedures for implementation of this Code section. (f) A local board of education which does not comply with the requirements of this Code section shall be subject to withholding of funds pursuant to Code Section 20-2-243." ยง 2.

Said part is further amended by revising Code Section 20-2-284, relating to criteria for local boards of education relating to a placement and promotion policy, as follows: "20-2-284. (a)(1) No later than July 1, 2003, each local board of education shall develop and adopt a placement and promotion policy in accordance with the criteria established by the State Board of Education as provided in Code Section 20-2-283 with respect to third, fifth, and eighth grades and consistent with the Georgia Academic Placement and Promotion Policy.

(2) No later than July 1, 2011, each local board of education shall develop and adopt a placement and promotion policy in accordance with the criteria established by the State Board of Education as provided in Code Section 20-2-283 with respect to first and second grades and consistent with the Georgia Academic Placement and Promotion Policy.

-t) Except fifr thO~e criterien fefereneed assessments speeified in Code Seetion 20 2 283, the placement and przoteien policy as developed and adepted by each local board of education shall state how the criterion refereneed competency tests administered under Code Sectiont 20 2 281 for gradeseone tioug eight will b-e weighted Or otherwise utilized by the sebeel principal or the determining the oeemll academic prineipal's deinci ae-hievement efaeuetadan approepfiae plan of accelerated,

543

House Bill 501

No. 2]

differentiated, er additional instr~uction, plaeement, promotion, retention of a student.

OF

(e) To assist each local board of education, the State Board of Education shall develop a model placement and promotion policy which may be utilized by a local board of education." ยง3.

Said part is further amended by revising Code Section 20-2-285, relating to a timetable for implementation of placement and promotion policies, as follows: "20-2-285.

The State Board of Education shall provide for a timetable of implementation of this Code section and the Georgia Academic Placement and Promotion Policy which shall include: (1) The first grade beginning with the 2011-2012 school year(2) The second ()(3)

grade beginning with the 2011-2012 school year;

The third grade beginning with the 2003-2004 school year;

(2)(4) The fifth grade beginning with the 2004-2005 school year; and (3)(5) The eighth grade beginning with the 2005-2006 school year.",

ยง 4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE House Bill 501 was introduced to bring attention to the fact that students in grades one, two, four, six, and seven are currently required to take the Criterion-Referenced Competency Test ("C.R.C.T.") despite the fact that adequate performance on the C.R.C.T. is not required for promotion to the next grade

544

John MarshallLaw Journal

[Vol. III

level.' This situation came to Representative Austin's attention through his strong connections to the education system of Georgia.6 Representative Austin serves as a college biology professor, as well as a member of the House Academic Support Subcommittee.' Additionally, he is married to an elementary school teacher and has two children currently attending public schools.'

The C.R.C.T. is a standardized test given to measure a student's knowledge and skill against the standards outlined in the Georgia Performance Standards.9 Students in grades one through eight are tested in language arts, mathematics, and reading. Students in grades three through eight are additionally tested in science and social studies." Currently, all students in grades one through eight are required to take the C.R.C.T., at a cost of approximately three quarters of a million dollars per grade level." Only third, fifth, and eights graders, however, are required to pass the C.R.C.T. as a requisite for promotion to the next grade.12 Of the students in grades one, two, four, six and seven who fail the C.R.C.T., eighty-five percent are promoted to the next grade level anyway.'I By introducing House Bill 501, Representative Austin sought to bring attention to the issue so that action could be taken to either establish the C.R.C.T. as a requirement for promotion from grades one, two, four, six, and seven, or to remove the requirement that students take the C.R.C.T. in those grades. 4 Given the current budgetary shortfalls, Representative Austin sought to either utilize or save the roughly $ 3.75 million that is 5. Telephone Interview with Rep. Rick Austin, H. Dist. 10 (Mar. 8, 2010) [hereinafter Austin Interview].

6. Id. 7. Id. 8. Id. 9. Ga. Dept. of Educ., Criterion-Referenced Competency Tests, available at http://www.doe.kl2.ga.us/ci testing.aspx?PageReq=CITESTINGCRCT (last visited Mar. 22, 2010).

10. Id. 11. Austin Interview, supra note 5.

12. Id. 13. Id. 14. Id.

No. 2]

House Bill 501

545

spent each year on testing that is largely inconsequential to academic promotion."

LEGISLATIVE GENEALOGY

House Bill 501 was first read on February 19, 2009.6 A second reading occurred on February 24, 2009.17 Following the second reading, House Bill 501 was referred to the House While House Bill 501 has not Education Committee." progressed from the House Education Committee, the legislation has succeeded in drawing attention to the debatable issue of unnecessary C.R.C.T. testing.19 Subsequent legislation, House Bill 1100, would eliminate C.R.C.T. testing for grades one and two. 20 House Bill 1100 was introduced on February 5, 2010.21 House Bill 1100 was first read on February 8, 2010 and the House Committee on Education favorably reported on the Bill on February 11, 2010.22 Although the House Committee on Education did offer a substitute, the House withdrew and recommitted the Bill on March 18, 2010.23 Because subsequent action has been taken, Representative Austin does not intend to continue pursuing House Bill 501.24 Prepared by: Peter New

15. Id. 16. H.B. 501 Status Sheet, supra note 4.

17. Id. 18. Id. 19. Id. 20. H.B. 1100, 150th Gen. Assem., 2dReg. Sess. (Ga. 2010), availableat http://www.legis.ga.gov/legis/2009_10/pdflhbl 100.pdf (last visited Mar. 22, 2010).

21. Ga. Gen. Assem., H.B. 1100 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_10/sum/hb 1100.htm.

22. Id. 23. Id.; see also H.B. 1100, 150th Gen. Assem., 2dReg. Sess. (Ga. 2010) at available Substitute), Committee (H. http://www.legis.ga.gov/legis/2009_10/versions/hbl 100_LC_33_3656S-hs 4.htm (last visited Mar. 22, 2010).

24. Austin Interview, supra note 5.

HOUSE BILL 5241: EDUCATION; COMPULSORY ATTENDANCE PROVISIONS

Amending 0. C G.A. ยง 20-2-690.1 First Signature: Representative Rahn Mayo (91st) Representative Wendell Willard (49th), Co-Sponsors: Representative Fran Millar (79th), Representative Carolyn Hugley (133rd), Representative Pam Stephenson (92nd), and Representative Dee Dawkins-Haigler (93rd) Summary: House Bill 524 seeks to amend Code Section 20-2690.1 of the Official Code of Georgia Annotated with respect to the duties and responsibilities of parents and legal guardians concerning mandatory education requirements of children between their sixth to sixteenth birthdays.2 Parents who violate the requirements, if convicted, shall be subject to a fine, imprisonment, community service, or, at the discretion of the court, any combination of such penalties.' Additionally, the Bill provides for reporting requirements and consequences of truancy violations by students between ages six and sixteen.4 Status: House Second Readers, February 25, 20091

1. H.B. 524, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb524.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 4. Id. 5. Ga. Gen. Assem. H.B. 524 (Mar. 20, 2010), available at http://www.legis.ga.gov/legis/2009_10/sum/hb524.htm [hereinafter H.B. 524 Status Sheet].

548

John MarshallLaw Journal TEXT OF HOUSE BILL

[Vol. III

524

ยง 1.

Code Section 20-2-690.1 of the Official Code of Georgia Annotated, related to mandatory education for children between the ages six and 16, is amended as follows: "20-2-690.1. (a) Mandatory attendance in a public school, private school, or home school program shall be required for children between their sixth and sixteenth birthdays. Such mandatory attendance shall not be required where the child has successfully completed all requirements for a high school diploma. Any person who is a parent or guardian or has control or charge of any child subject to compulsory attendance and who becomes a resident of this state shall, within 60 days of having become a resident, enroll said child in a public or private school or place the child in an approval home study program. (b) Every parent, guardian, or other person residing within this state having control or charge of any child or children during the ages of mandatory attendance as required in subsection (a) of this Code section shall enroll and send such child or children to a public school, a private school, or a home study program that meets the requirements for a public school, a private school, or a home study program: and such child shall be responsible for enrelling--in-end attending a public school, a private school, or a home study program that meets the requirements for a public school, a private school, or a home study program under such penalty for noncompliance with this subsection as is provided in Chapter 11 of Title 15, unless the child's failure to enroll and attend is caused by the child's parent, guardian, or other person, in which case the parent, guardian, or other person alone shall be responsible; provided, however, that tests and physical exams for military service and the National Guard and such other approved absences as determined by the General Assembly and the local school district shall be excused absences. The requirements of this subsection shall apply to a child during the ages of mandatory attendances as required in subsection (a) of this Code section who has been assigned by a local board of education or its delegate to attend at alternative public school program established by that local board of education, including an alternative public school program provided for in Code Section 20-2-154.1, regardless of

No. 2]

House Bill 524

whether such child has been suspended or expelled from another public school program by that local board of education or its delegate, and to the parent, guardian, or other person residing in this state who has control or charge of such child. Nothing in this Code section shall be construed to require a local board of education or its delegate to assign a child to attend an alternative public school program rather than suspending or expelling the child. (c) Any parent, guardian, or other person residing in this state who has control or charge of a child or children and who shall violate this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine not less than $25.00 and not greater than $100.00, imprisonment not to exceed 30 days, community service, or any combination of such penalties, at the discretion of the court having jurisdiction. Each day's absence from school in violation of this part after the child's school system notifies the parent, guardian, or other person who has control or charge of a child of five unexcused days of absence for a child shall constitute a separate offense. After two reasonable attemp to noti ' thc parent, guarian, ore ther pcrson who has cntrle or chaige of a child of fly uaeused days of absence without response, thc school system shall send a notice to such parcnt, receipt guardian, or ether person by erftified mail, -eu requested. Public schools shall providc to the parent, gardian, or other person having control or ehargc of each child enroelled in public school a writtcn sufffar' of possible eonscquences and pcnalties for failing to comply with compulsory attendance under this Code secation for children and their parents, guardians, Or other persons having control or charge of children. The paetgurin or other person who has controel or charge of a child or cLhldren shall sign a statement indicating receipt of such written statement of possible consequences and penaltics; children who are age ten years or older: by September 1 shall sign a statemetidctn receit of suceh written statement of possible consequences an

penalties. After two reasonable attempts by the school to secure suceh signature or signatures, the school shall be conisider~ed to be in compliance with this subsection if it sends a copy of the statemnent, via erftified mnail, return freceipt requested, to such parent, guardian, other persont who has control or charge of a child, or children. Public schools shall retafi signed copies of statements through the end of the school year. (d) A parent. guardian, or person who has control or charge of a child who fails to regularly attend school may be reported to the

549

550

John MarshallLaw Journal

[Vol. III

proper prosecuting agency. If it appears that such parent, guardian, or person has knowingly violated any of the provisions of this Code section, then local school officials shall report such information to the proper prosecuting agency. Local school officials shall cooperate in the investigation and prosecution of compulsory attendance cases. Local school superintendents in the case of private schools or home study programs and visiting teachers and attendance officers in the case of public schools shall have authority and it shall be their duty to file proceedings in court to enforce this subpart. (e) An unemancipated minor who is older than the age of mandatory attendance as required in subsection (a) of this Code section who has not completed all requirements for a high school diploma who wishes to withdraw from school shall have the written permission of his or her parent or legal guardian prior to withdrawing. Prior to accepting such permission, the school principal or designee shall convene a conference with the child and parent or legal guardian within two school days of receiving notice of the intent of the child to withdraw from school. The principal or designee shall make a reasonable attempt to share with the student and parent or guardian the educational options available, including the opportunity to pursue a general educational development (GED) diploma and the consequences of not having earned a high school diploma, including lower lifetime earnings, fewer jobs for which the student will be qualified, and the inability to avail oneself of higher educational opportunities. Every local board of education shall adopt a policy on the process of voluntary withdrawal of unemancipated minors who are older than the mandatory attendance age. The policy shall be filed with the Department of Education no later than January 1, 2007. The Department of Education shall provide annually to all local school superintendents model forms for the parent or guardian signature requirement contained in this subsection and updated information from reliable sources relating to the consequences of withdrawing from school without completing all requirements for a high school diploma. Such form shall include information relating to the opportunity to pursue a general educational development (GED) diploma and the consequences of not having earned a high school diploma, including lower lifetime earnings, fewer jobs for which the student will be qualified, and the inability to avail oneself of higher educational opportunities. Each local school superintendent shall provide such forms and information to all of its principals of schools serving grades six through twelve for the principals to use

No. 2]

House Bill 524

551

during the required conference with the child and parent or legal guardian."

ยง 2.

This Act shall become effective on July 1, 2009. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Rahn Mayo, of the 91st district, introduced House Bill 524 in response to growing attendance problems in schools.6 Representative Mayo believes that students are missing an enormous amount of school which causes them to fall behind in class.' According to Representative Mayo, when students get behind in school, it has a direct effect on student Representative performance and the overall dropout rate.

Mayo came up with the idea for the Bill after working with Robert James who is actively trying to resolve the truancy issue in DeKalb County and across the state.9 Representative Mayo feels that a large number of parents are neglecting their responsibility to make sure that their children are attending classes.10 Therefore, Representative Mayo feels that legislation that would hold parents accountable by implementing strict consequences for failing to do their part with regards to their child's class attendance is necessary.I According to Representative Mayo, this Bill has yet to be discussed in committee during the 2010 legislative session and 6. Telephone Interview with Rep. Rahn Mayo, H. Dist. 91 (Sept. 29, 2009) [hereinafter Mayo Interview].

7. Id. 8. Id. 9. Id. 10. Id. 11. Id.; see Ga. H.B. 524 (stating that, upon conviction, any person in control of a child who violates this Code section shall be subject to a fine, imprisonment not to exceed thirty days, community service, or, at the discretion of the court, any combination of such penalties).

552

John MarshallLaw Journal

[Vol. III

is not likely to come up.12 When House Bill 524 was first introduced in 2009, initial concerns and proposed amendments mainly focused on the length of time that parents would be required to spend in jail for violating the statute." As it is currently written, parents who violate the provisions may be subject to a fine, community service, up to thirty days in jail, or any combination thereof.14 Most of the opposition to the Bill was due to the fact that some believe the penalty is too punitive, and it may be somewhat counterproductive if the law makes it even more difficult on working and struggling parents to get students to school on a regular basis.'I To ensure attendance issues remain a priority of the General Assembly, Representative Mayo co-sponsored House Bill 103 1,16 along with Representative Mary Oliver, of the 83rd district during the 2010 legislative session. According to Representative Mayo, House Bill 1031 is very similar to House Bill 524.17 House Bill 1031, like House Bill 524, removes the current requirement of two reasonable attempts to notify a parent or guardian when a child has five unexcused absences and provides the opportunity for local school system officials to file reports to the appropriate enforcement agency regarding parents who are not following the requirements of the particular Bill.' 8 The two bills also subject offenders to the same 12. E-mail from Rep. Rahn Mayo, H. Dist. 91, to K. Michael Baker, Staff Member, John Marshall Law Journal (Feb. 27, 2010, 11:59 a.m. EST) (on file with author) [hereinafter Mayo E-mail].

13. Mayo Interview, supra note 6.

14. Ga. H.B. 524.

15. Mayo Interview, supra note 6.

16. H.B. 1031, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb 1031 .pdf (last visited Mar. 22, 2010) ("Any parent, guardian, or other person having control or charge of any child or children subject to mandatory attendance pursuant to this subsection who becomes a new resident of a local school system in this state shall within 30 days of such new residency enroll such child or children in a public school, a private school, or a home study program that meets the requirements for a public school, a private school, or a home study program.

Failure to enroll such child or children within 30 days shall constitute a violation of this Code section.").

17. Mayo Email, supra note 12.

18. CompareGa. H.B. 1031, with Ga. H.B. 524.

No. 2]

House Bill 524

553

penalties.19 However, House Bill 1031 additionally requires parents, guardians, or other persons having control of children who become a resident of a new local system in Georgia to enroll that child in "a public school, a private school, or a home study program that meets the requirements" of the State within "15 days of such new residency," 20 whereas House Bill 524 allows 60 days for enrollment. 2 1 Representative Mayo stated that parents' focus needs to be on education; however, that is not the current situation.2 2 To fix the attendance problem and truancy violations in schools, Representative Mayo says that there must be some sort of accountability on parents to make sure they are doing their part to ensure their children are attending class.23 Representative Mayo will continue to support legislation, be it House Bill 524 or House Bill 1031, which will accomplish this goal. 24 LEGISLATIVE GENEALOGY

House Bill 524 was first read on February 24, 2009, and read for the second time on February 25, 2009. 25 The Bill went to the House Committee on Education.2 6 Most of the concerns expressed by the committee focused on the penalties placed on parents for failure to comply with the Code. 27 The Bill was not recommitted in the 2010 legislative session.2 8

19. Compare Ga. H.B. 1031, with H.B. 524 (both stating that, "any parent, guardian, or other person residing in this state who has control or charge of a child or children and who shall violate this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine not less than $25.00 and not greater than $100.00, imprisonment not to exceed 30 days, community service, or any combination of such penalties, at the discretion of the court having jurisdiction").

20. Ga. H.B. 1031.

21. Ga. H.B. 524.

22. Mayo Interview, supra note 6.

23. Id. 24. Id. 25. H.B. 524 Status Sheet, supra note 5.

26. Id.; Mayo Interview, supra note 6.

27. Mayo Interview, supra note 6.

28. H.B. 524 Status Sheet, supra note 5; Mayo Interview, supra note 6.

554

John MarshallLaw Journal

[Vol. III

However, the General Assembly did give some attention to House Bill 1031, the legislation that is quite similar to House Bill 524, during the 2010 legislative session. House Bill 1031 was first read on February 1, 2010 and read for a second time the following day. 29 The House Committee on Education favorably reported on the Bill and offered a Substitute on March 18, 2010.0 However, the House could not reach an agreement on the Committee Substitute, and House Bill 1031 failed to pass the House prior to the end of crossover day on March 26, 2010.11 Prepared by: K. Michael Baker

29. Ga. Gen. Assem. H.B. 1031 (Mar. 20, 2010), available at http://www.legis.ga.gov/legis/2009_10/sum/hbl031.htm [hereinafter H.B. 1031 Status Sheet].

30. Id.; see H.B. 1031, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010) (H. at available Substitute), Committee http://www.legis.ga.gov/legis/2009_10/versions/hbIO31_LC_33_3713Shs_ 4.htm (last visited Mar. 22, 2010).

31. H.B. 1031 Status Sheet, supra note 29.

HOUSE BILL 6491: QUALITY BASIC EDUCATION FORMULA; No VOUCHER ENFORCED UNLESS FUNDED BY GENERAL ASSEMBLY

Amending O.C.G.A. ยง20-2-161 First Signature: Representative Kathy Ashe (56th) Representative Stacey Abrams (84th), Co-Sponsors: Representative DuBose Porter (143rd), Representative Carolyn Hugley (133rd), Representative Calvin Smyre (132nd), and Representative Nikki Randall (138th) Summary: House Bill 649 seeks to amend Code Section 20-2161 of the Official Code of Georgia Annotated, relating to the Quality Basic Education Formula, to provide that, " . . . no voucher, school choice, or scholarship program shall be implemented or enforced unless the Quality Basic Education Formula is fully funded by the General Assembly; to provide for related matters; to repeal conflicting laws; and for other purposes."2 Status: House Second Readers on March 5, 20091 TEXT OF HOUSE BILL 649

ยง 1.

Code Section 20-2-161 of the Official Code of Georgia Annotated, relating to the Quality Basic Education Formula, is amended by revising subsection (a) to read as follows: 1. H.B. 649, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), availableat http://www.legis.ga.gov/legis/2009_10/pdf/hb649.pdf (last visited Mar. 22, 2010).

2. Id. 3. Ga. Gen. Assem., H.B. 649 (Mar. 20, 2009), http://www.legis.ga.gov/legis/2009_10/sum/hb649.htm [hereinafter H.B. 649 Status Sheet].

556

John MarshallLaw Journal

[Vol. III

"(a) The high school general education program is declared to be the base program against which the cost of all other instructional programs shall be compared. The amount of funds needed by each full-time equivalent student in the base program, in order that such program can be sufficiently funded to provide quality basic education to all enrolled students, shall be known as the 'base amount' and shall reflect program components which constitute the program weight for the high school general education program in Code Sections 20-2-182 through 20-2-186. However, the General Assembly shall annually establish through the General Appropriations Act the base amount to be used each year. In the event that the base amount so established when multiplied by the program weights in subsection (b) of this Code section requires funds in excess of the appropriation for the Quality Basic Education Formula grants, the funds which are appropriated for the Quality Basic Education Formula shall be prorated to each of the Quality Basic Education Formula cost categories. No voucher, school choice, scholarship, or similar program whereby state funds are transferred to a nonpublic school shall be implemented or enforced unless the full funding for local school systems required by this article is appropriated by the General Assembly."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Kathy Ashe, of the 56th district, introduced House Bill 649 to require that the General Assembly fully fund the Quality Basic Education ("Q.B.E.") formula before any monies may be used to fund "vouchers, school choice, scholarships, or similar programs."4 Under the statute, public dollars may not be transferred to nonpublic schools until all the dollars "earned" through the Q.B.E. formula have gone to the public schools of Georgia.' If enacted, House Bill 649 would fully fund quality basic education for public schools before any money could be spent on vouchers for private institutions.

4. Interview with Rep. Kathy Ashe, H. Dist. 56, in Atlanta, Ga, (Feb. 26, 2010).

5. Id. 6. Id.

No. 2]

House Bill 649

557

LEGISLATIVE GENEALOGY The first reading of House Bill 649 took place March 4, 2009.1 The second reading of the Bill occurred on March 5, 2009.8 House Bill 649 was assigned to the House Committee on Education, but the Bill has received no attention since.9 Prepared by: Gail Oldt

7. H.B. 649 Status Sheet, supra note 3.

8. Id. 9. Id.

SENATE BILL 361: LOCAL BOARD OF EDUCATION

CODE OF ETHICS

Creatingยง O.C.G.A. 20-2-72 First Signature: Senator Gail Buckner (44th)

Co-Sponsors: Senator Valencia Seay (34th), Senator Emanuel Jones (10th), Senator Horacena Tate (38th), Senator Freddie Sims (12th), and Senator John Douglas (17th) Summary: Senate Bill 36 seeks to amend Article 3 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated by adding a new subsection requiring every local board of education to adopt a code of ethics to govern the members of the board.2 Under the Bill, the code of ethics is to be reviewed annually.' The annual review and any proposed changes are to be announced at regular meetings of the board.

Status: House Withdrawn, Recommitted on April 3, 20091 TEXT OF SENATE BILL 36

ยง 1.

Article 3 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to local boards of education, is amended by adding a new Code section to read as follows:

1. S.B. 36, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), availableat http://www.legis.ga.gov/legis/2009-10/pdf/sb36.pdf (last visited March 22, 2010).

2. Id. 3. Id. 4. Id. 5. Ga. Gen. Assem., S.B. 36 (Mar. 20, 2010), http://www.legis.state.ga.us/legis/2009_10/sum/sb36.htm [hereinafter S.B. 36 Status Sheet].

John MarshallLaw Journal

560

[Vol. III

"20-2-72.

Each local board of education shall adopt a code of ethics to govern members of the local board of education. Each local board of education shall annually review its code of ethics and shall announce such review and any changes in the code of ethics at regular meetings of the board."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Senator Gail Buckner, of the 44th district, introduced Senate Bill 36 to curb ethics problems faced by local boards of education.' Senator Buckner indicates that "at any given time between ten and twenty percent of all school boards are under 'probation' by their accreditation agency." 7 Approximately twenty percent of the state school systems have struggled to meet the accreditation requirements during the past ten years.8 Beginning with investigations in 2007, the Clayton County School System lost accreditation from the Southern Association of Schools and Colleges in 2008 because school board members engaged in unethical conduct.' This was only the second school system in the nation to lose accreditation in the past forty years. 10 Still, in January 2010, the Southern Association of 6. E-mail from Sen. Gail Buckner, Sen. Dist. 44, to Carson Walden,

Staff Member, John Marshall Law Journal (Nov. 11, 2009 11:47 a.m. EST) (on file with author) [hereinafter Buckner E-mail].

7. Id. 8. John Rice, Gary Price & Phil Jacobs, The Value of School Board Governance, BUSINESS TO BUSINESS, Mar. 5, 2009, available at http://www.btobmagazine.com/Articles/2009/March/Issues.html.

9. Buckner E-mail, supra note 6; see also Robbie Brown, A Georgia School System Loses Its Accreditation, N.Y. TIMES, Aug. 28, 2008, available at http://www.nytimes.com/2008/08/29/education/29clayton.html.

10. Brown, supra note 9. Duval County, Florida was the last system to lose accreditation in the 1969-1970 school year. Id. This occurred "because Duval County and community leaders persisted in trying to educate

No. 2]

Senate Bill 36

561

Schools and Colleges reported that Warren County, another Georgia school system, will lose accreditation in July 2010."

"Many of the accusations leveled against the Warren County Board of Education mirror those made in 2008 against members of the Clayton County Board of Education."l 2 Some of the major issues that led to the pending loss of accreditation in Warren County include potential hiring based on race and age, board members making decisions for the board in an individual capacity, and even an attempt to alter or prevent the publication of a local news story about the school district." These acts violated the ethics policies already in place in Warren County, but some of the board members refused to sign the policies because they "provided sanctions or censure for members who violated the policy." 4 Senator Buckner proposed this same legislation in 2004 as House Bill 198, and while the General Assembly passed the 2004 Bill, it was vetoed by Governor Sonny Perdue." Senator Buckner believes that, if the Bill had survived the Governor's veto in 2004, it might have saved Clayton County's accreditation by demanding a standard of conduct for local on the cheap. Funds were so lacking that schools had not been cleaned in years; current textbooks were in short supply; and the instructional staff was demoralized by low pay and mediocre to bad working conditions. AfricanAmerican students and teachers were the proverbial 'red-headed stepchildren' of the system. They got what, if anything, was left over."

DONALD J. MABRY, WORLD'S FINEST BEACH, on HISTORICAL TEXT (2006), ARCHIVE http://historicaltextarchive.com/books.php?action=nextchapter&bid=70&cid =6.

11. Curt Yeomans, Another School System to Lose Accreditation, at available 29, 2010, DAILY, Jan. NEWS CLAYTON http://www.mycountypaper.com/claytonnews/headlines/83093007.html.

12. Id. 13. Kip Burke, Warren County School System to Lose Accreditation Due to Board of Education's "PerpetualParalysis," NEWS-REPORTER, Jan.

14, 2010, available at http://www.news-reporter.com/news/2010-0114/News/WarrenCounty-school-system toloseaccreditation_.html.

14. Id.

15. Buckner E-mail, supra note 6; H.B. 198, 147th Gen. Assem., 2d at available 2004), (Ga. Sess.

Reg. http://www.legis.ga.gov/legis/2003_04/sum/hbl98.htm (last visited Mar. 22, 2010).

562

John MarshallLaw Journal

[Vol. III

school district board members.16 Though some school boards already have codes of ethics, this Bill would have mandated that all school boards adopt ethics policies and review them annually to avoid accreditation problems in the future." The Governor's rationale for the veto was that the General Assembly failed to pass ethics reform legislation applicable to itself, and thus should not demand ethical reform from the educational boards."8 However, the following year, a broad-sweeping ethics reform act, dealing specifically with the General Assembly, was passed and became effective in early 2006.9 As such, Senate Bill 36 may now have a better chance of becoming state law.

LEGISLATIVE GENEALOGY The first reading of Senate Bill 36 before the Senate occurred on January 26, 2009.20 The Senate referred Senate Bill 36 to the Senate Committee on Education and Youth.2 1 The Committee discussed the Bill in a February 2, 2009 meeting, but because Senator Buckner was absent from that meeting, the Committee heard no testimony and took no vote on the Bill.22 At the Committee's March 9, 2009 meeting, Senator Buckner 16. Buckner E-mail, supra note 6; see also Brown, supra note 9.

17. Buckner E-mail, supra note 6.

18. Press Release, Office of the Governor, State of Georgia, Governor Sonny Perdue Vetoes Nineteen Bills (May 17, 2004), available at http://www.georgia.gov/00/press/detail/0,2668,78006749 92321069926953 84,00.html ("For the second year in a row . . . the General Assembly failed to pass any ethics reform whatsoever applicable to the General Assembly itself ... I remain firmly committed to reforming the ethics laws governing state elected officials, which, as I have so often pointed out, are among the weakest of any state in the nation. The General Assembly, having failed to pass ethics reform applicable to itself, has not earned the right to pass down a mandate for ethics reform applicable to local school boards.").

19. Ethics in Government Act, O.C.G.A. §§ 21-5-1 to -42 (2006).

20. S.B. 36 Status Sheet, supra note 5.

21. Id. 22. Codes of Ethicsfor Local Boards of Education: Hearing on S.B. 36 Before the S. Comm. on Educ. & Youth, 150th Gen. Assem., 1st Reg. at available 26, 2009), (Ga. Feb. 8 Sess. http://www.legis.ga.gov/legis/2009_10/senate/publications/09minutes/educat ionandyouth.pdf (last visited Mar. 22, 2010).

No. 2]

Senate Bill 36

563

presented and explained the Bill to the Committee.23 Senator Don Balfour, of the 9th district, moved to pass the Bill, and Senator Horacena Tate, of the 38th district, seconded the motion.24 Upon a unanimous vote, the Committee favorably reported on the Bill to the Senate. 25 The second reading before the Senate occurred on March 10, 2009.26 The third reading before the Senate occurred on March 12, 2009, at which time the Senate passed and adopted the bill.2 7 The first reading of Senate Bill 36 before the House occurred on March 17, 2009.28 The second reading occurred on March 18, 2009.29 The House referred Senate Bill 36 to the House Committee on Education.3 0 On March 26, 2009, the House Committee favorably reported the Bill.3 ' On April 3, 2009, the Bill was recommitted at the end of the 2009 session, and no further action was taken.3 2 While Senator Buckner planned to reintroduce the Bill in the 2010 session, no such action has been taken on Senate Bill 36 to date.3 3 Prepared by: Carson Walden

23. Id. 24. Id. 25. Id.; S. B. 36 Status Sheet, supra note 5.

26. S. B. 36 Status Sheet, supra note 5.

27. Id.; see S.B. 36, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (as at available Senate), by passed http://www.legis.ga.gov/legis/2009-10/versions/sb36_As passedSenate_3. htm (last visited March 22, 2010).

28. S.B. 36 Status Sheet, supra note 5.

29. Id. 30. Id. 31. Id.

32. S. B. 36 Status Sheet, supra note 5.

33. Buckner E-mail, supra note 6.

SENATE BILL

1141: MILITARY DEPENDENTS IN ELEMENTARY AND SECONDARY SCHOOLS

CreatingO.C.G.A. §§ 20-2-2130 to -2131, O.C.G.A §§ 20-22140 to -2141, O.C.G.A §§ 20-2-2150 to -2154,O.C.G.A. §§ 202-2160 to -2161, and O.C.G.A. § 20-2-2170 First Signature: Senator Ed Harbison (14th) Co-Sponsors: Senator Seth Harp (15th), Senator John Douglas (17th), and Senator Valencia Seay (34th) Summary: Senate Bill 114 amends Chapter 2 of Title 20 of the Official Code of Georgia Annotated, providing military dependents assistance in transferring into Georgia schools. 2 It allows these students to submit unofficial transcripts and maintain their grade level placement, gives them time to obtain required immunizations, and affords them the ability to waive certain courses and deadlines for an easy transition into their new school system.3 Status: Enacted into law as Act 241 on May 7, 20094 TEXT OF SENATE BILL

114

§ 1.

Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by adding a new article to read as follows: 1. S.B. 114, 150th Gen. Assem., Ist Reg Sess. (Ga. 2009) (enacted), available at http://www.legis.ga.gov/legis/2009_10/pdf/sb114.pdf (last visited Mar. 22, 2010).

2. Id. 3. Id. 2010), 20, (Mar. 114 S.B. Assem., Gen. 4. Ga. http://www.legis.ga.gov/legis/2009_10/sum/sb114.htm [hereinafter S.B. 114 Status Sheet].

566

John MarshallLaw Journal

[Vol. III

"ARTICLE 34 Part 1 20-2-2130.

As used in this article, the term: (1) 'Active duty' means full-time duty status in the active uniformed services of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. Sections 1209 and 1211.

(2) 'Child of military families' means a school-aged child, enrolled in kindergarten through grade 12, in the household of an active duty member.

(3) 'Deployment' means the period one month prior to the service members' departure from their home station on military orders though six months after return to their home station.

(4) 'Educational records' means those official records, files, and data directly related to a student and maintained by the school or local education agency, including but not limited to records encompassing all the material kept in the student's cumulative folder such as general identifying data, records of attendance and of academic work completed, records of achievement and results of evaluative tests, health data, disciplinary status, test protocols, and individualized education programs.

(5) 'Extracurricular activities' means a voluntary activity sponsored by the school or local education agency or an organization sanctioned by the local education agency.

Extracurricular activities include, but are not limited to, preparation for and involvement in public performances, contests, athletic competitions, demonstrations, displays, and club activities.

(6) 'Local education agency' means a public authority legally constituted by the state as an administrative agency to provide control of and direction for kindergarten through grade 12 public educational institutions.

(7) 'Sending state' means the member state from which a child of a military family is sent, brought, or caused to be sent or brought.

No. 2]

Senate Bill 114

(8) 'State' means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Northern Marianas Islands, and any other United States territory.

(9) 'Student' means the child of a military family for whom the local education agency receives public funding and who is formally enrolled in kindergarten through grade 12.

(10) 'Transition' means: (A) The formal and physical process of transferring from school to school; or (B) The period of time in which a student moves from one school in the sending state to another school in the receiving state.

(11) 'Uniformed services' means the Army, Navy, Air Force, Marine Corps, Coast Guard, Commissioned Corps of the National Oceanic and Atmospheric Administration, and Public Health Services.

(12) 'Veteran' means a person who served in the uniformed services and who was discharged or released therefrom under conditions other than dishonorable.

20-2-2131. (a) Except as otherwise provided in subsection (b) of this Code section, this article shall apply to the children of: (1) Active duty members of the uniformed services as defined in Code Section 20-2-2130, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. Sections 1209 and 1211; (2) Members or veterans of the uniformed services who are severely injured and medically discharged or retired for a period of one year after medical discharge or retirement; and (3) Members of the uniformed services who die on active duty or as a result of injuries sustained on active duty for a period of one year after death. (b) The provisions of this article shall not apply to the children of:

567

John MarshallLaw Journal

568

[Vol. III

(1) Inactive members of the national guard and military reserves; (2) Members of the uniformed services now retired, except as provided in subsection (a) of this Code section; (3) Veterans of the uniformed services, except as provided in subsection (a) of this Code section; and (4) Other United States Department of Defense personnel and other federal agency civilian and contract employees not defined as active duty members of the uniformed services.

Part 2 20-2-2140.

In the event that official education records cannot be released to the parents or legal guardian for the purpose of transfer, a local school system shall accept a complete set of unofficial educational records prepared by the sending school and furnished to the parent or legal guardian. Upon receipt of such unofficial education records, the local school system shall enroll and appropriately place the student based on the information provided in the unofficial records pending validation by the official records, as quickly as possible. Simultaneously with the enrollment and conditional placement of the student, the local school system shall request the student's official education record from the school in the sending state.

20-2-2141.

Local school systems shall give 30 days from the date of enrollment for students to obtain any immunization required by the receiving state. For a series of immunizations, initial vaccinations must be obtained within 30 days.

Part 3 20-2-2150.

Students shall be allowed to continue their enrollment at grade level in the local school system commensurate with their grade level, including kindergarten, from a local education agency in the sending state at the time of transition, regardless of age. A student who has satisfactorily completed the prerequisite grade level in the local education agency in the sending state shall be eligible for

No. 2]

Senate Bill 114

enrollment in the next highest grade level in the receiving state, regardless of age. A student transferring after the start of the school year in the receiving state shall enter the school in the receiving state on their validated level from an accredited school in the sending state.

20-2-2151.

When the student transfers before or during the school year, the local school system shall initially honor placement of the student in educational courses based on the student's enrollment in the sending state school or educational assessments conducted at the school in the sending state, if the courses are offered. Course placement includes but is not limited to honors, international baccalaureate, advanced placement, vocational, technical, and career pathways courses. Continuing the student's academic program from the previous school and promoting placement in academically and career challenging courses should be paramount when considering placement. Nothing in this Code section shall preclude the local school system from performing subsequent evaluations to ensure appropriate placement and continued enrollment of the student in any course.

20-2-2152.

The local school system shall initially honor placement of the student in educational programs based on current educational assessments conducted at the school in the sending state or participation or placement in similar programs in the sending state.

Such programs include, but are not limited to: (1) Gifted and talented programs; and (2) English as a second language.

Nothing in this Code section shall preclude the school in the receiving state from performing subsequent evaluations to ensure appropriate placement of the student.

20-2-2153.

Local school systems shall have flexibility in waiving course or program prerequisites or other preconditions for placement in courses and programs offered by the local school system.

569

570

John MarshallLaw Journal

[Vol. HI

20-2-2154.

A local school system may grant additional excused absences to a student whose parent or legal guardian is an active duty member of the uniformed services and has been called to duty for, is on leave from, or immediately returned from deployment to a combat zone or combat support posting, so that such student may visit with his or her parent or legal guardian relative to such leave or deployment of the parent or guardian.

Part 4 20-2-2160. (a) Special power of attorney, relative to the guardianship of a child of a military family and executed under applicable law, shall be sufficient for the purposes of enrollment and all other actions requiring parental participation and consent. (b) A local school system shall be prohibited from charging local tuition to a transitioning military child placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent. (c) A transitioning military child, placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent, may continue to attend the school in which he or she was enrolled while residing with the custodial parent.

20-2-2161.

Local school systems shall facilitate the opportunity for transitioning military children's inclusion in extracurricular activities, regardless of application deadlines, to the extent they are otherwise qualified.

Part 5 20-2-2170.

In order to facilitate the on-time graduation of children of military families, states and local school systems shall incorporate the following procedures:

No. 2]

Senate Bill 114

571

(1) Local school systems shall waive specific courses required for graduation if similar course work has been satisfactorily completed in another local education agency or shall provide reasonable justification for denial. Should a waiver not be granted to a student who would qualify to graduate from the sending school, the local school system shall provide an alternative means of acquiring required course work so that graduation may occur on time; (2) Local school systems shall accept exit or end-of-course exams required for graduation from the sending state, national normreferenced achievement tests, or alternative testing in lieu of testing requirements for graduation in this state; and (3) Should a military student transferring at the beginning or during his or her senior year be ineligible to graduate from the receiving local education agency after all alternatives have been considered, the local school system shall coordinate with the sending local education agency to ensure the receipt of a diploma." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The United States military has been extremely active in the first decade of this millennium. This activity not only affects our troops but their families as well. Many of these families frequently move following their loved ones wherever their duty assignment takes them. For the troops' children, this translates into constantly changing schools. As these children change schools, they must assimilate into their new environment and abide by its rules, which often impede their entry into the new school system.5

S.Ga. S.B. 114 (describing how S.B. 114 requires that the Georgia School system allow military dependent students, among other things, to submit

unofficial transcripts for purposes of enrollment, maintain the student's

highest earned grade placement from the previous school system, take additional excused absences to visit with loved ones who may be home on leave, and to waive certain requirements for participation in extracurricular

activities).

572

John MarshallLaw Journal

[Vol. III

Senator Ed Harbison, of the 14th district, recognized the reality facing children of military families and proposed Senate Bill 114 to ensure these students an efficient transition into Georgia school systems.6 "S[enate] B[ill] 114 makes sure that as military families move into Georgia, their children are not hindered by bureaucratic red tape." 7 The Bill affects 7,000 to 10,000 military dependent students in the Columbus and Chattahoochee valley8 and approximately 40,000 students statewide.9 LEGISLATIVE GENEALOGY

The first reading of Senate Bill 114 and its referral to the Senate Committee on Education and Youth occurred on February 6, 2009.10 At the first Committee meeting on February 26, 2009, Senator Harbison explained that the Governor previously vetoed Senate Bill 114 because its language required participation in a multi-state compact which collects state funds to support military dependents." Senator Harbison assured the Committee that this Bill was drafted specifically to address those concerns.12 Senator Sims, of the 12th district, Senator 6. Ed Harbison, Ga. Sen., Dist. 15, Harbison Legislation Assists Kids, of Military Education http://www.edharbison.com/legis-blog/index.php?month=02&year-2009 (Feb. 19, 2009) [hereinafter Harbison Legislative Blog].

7. Press Release, Office of the Governor, State of Georgia, Governor Perdue Signs Bills Assisting Children of Military Families (May 7, 2009), at available http://www.georgia.gov/00/press/detail/0,2668,78006749 139486062_14005 9533,00.html [hereinafter Governor Perdue Press Release].

8. Harbison Legislative Blog, supra note 6.

9. House Committee on Education Meeting (Georgia Legislative Network available at Mar. 25, 2009), archives, (statement http://media.legis.ga.gov/hav/09_10/comnm/edu/edu32509.wmv of Sen. Ed Harbison, H. Dist. 14).

10. S.B. 114 Status Sheet, supra note 4.

11. Educational Waivers for Military Dependent Students: Hearing on S.B. 114 Before the S. Comm. on Educ. & Youth, 150th Gen. Assem., 1st Reg. Sess.

20-21 (Ga. Feb. 26, 2009), available at http://www.legis.ga.gov/legis/2009_10/senate/publications/09minutes/educat ionandyouth.pdf (last visited Mar. 22, 2010).

12. Id.

No. 2]

Senate Bill 114

573

Moody, of the 56th district, and a state citizen all spoke in favor of the Bill. 3 Senator Moody moved to pass Senate Bill 114, and Senator Buckner, of the 44th district, seconded the motion. 14 The Senate Committee passed the Bill by a unanimous vote and reported on the Bill on February 26, 2009.15 The Senate read the Bill a second time on March 3, 2009.16 On March 9, 2009, the Senate read the Bill a third time and passed the Bill by a vote of fifty-four to zero."

The first reading of the Bill in the House of Representatives occurred on March 10, 2009.18 The House read the Bill a second time on March 12, 2009.19 The House Committee on Education held a meeting and discussed Senate Bill 114 on March 25, 2009.20 After a Sub-Committee convened to review the Bill and recommended that the Committee pass Senate Bill 114, Senator Harbison spoke about the Bill before the full Committee.2 1 Much like the discussion in the Senate Committee, the House Committee expressed concern over the Governor's veto of the Bill in 2008, but Senator Harbison assured the Committee that the controversial multi-state fund The language was eliminated from Senate Bill 114.22 Committee then held a vote and passed the Bill unanimously.23 On March 26, 2009, the House Committee on Education favorably reported on the Bill to the House. 24 A third reading in the House occurred on April 1, 2009.25 The House passed the Bill that same day by a vote of 163 yeas and one nay with eight no votes and eight excuses.2 6 13. Id. 14. Id.

15. Id.; S.B. 114 Status Sheet, supra note 4.

16. S.B. 114 Status Sheet, supra note 4.

17. Id. 18. Id. 19. Id. 20. House Committee on Education Meeting, supra note 9.

21. Id. 22. Id. 23. Id. 24. Id. 25. S.B. 114 Status Sheet, supra note 4.

26. Id.

574

John MarshallLaw Journal

[Vol. III

On April 13, 2009, the Senate sent Senate Bill 114 to the Governor for signature.2 7 On May 7, 2009, the Governor signed the Bill into law at Fort Benning, Georgia.2 8 During the signing, Governor Perdue stated, "[o]ur State has a long and proud history of supporting our nation's soldiers, and we are truly grateful for the service of our military families . . . [Senate Bill

114] continues Georgia's strong support for those serving in our Armed Forces here in Georgia." 29 The Bill took effect on July 1, 2009.30 Prepared by: Benjamin A. Bish

27. Id. 28. Id. 29. Governor Perdue Press Release, supranote 7.

30. Id.

SENATE BILL 2311: EDUCATION; ESTABLISH THE PROMISE III TEACHER'S SCHOLARSHIP; PROVIDE FOR ELIGIBILITY REQUIREMENTS

Amending O.C.G.A. tit. 20, ch. 2-3.

First Signature: Senator Dan Weber (40th) Summary: Senate Bill 231 seeks to amend Part 7 of Article 7 of Chapter 3 of Title 20 of the Official Code of Georgia Annotated to establish the PROMISE III teacher's scholarship which provides for eligibility requirements, service cancelable requirements, and related matters.2 Status: House Substitute Passed/Adopted on April 3, 20093 TEXT OF SENATE BILL

231:

ยง 1.

Title 20 of the Official Code of Georgia Annotated, relating to education, is amended in Part 2 of Article 6 of Chapter 2, relating to competencies and core curriculum under the "Quality Basic Education Act," by adding a new Code section to read as follows: "20-2-146.1. (a) In the event that state funding is provided to local school systems to offer the PSAT to its students, such state funding shall also be made available for purposes of offering the ACT PLAN assessment to such students.

1. S.B. 231, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as passed by at available House), http://www.legis.state.ga.us/legis/2009_10/versions/sb231 SB231 HCSFA _6.htm (last visited Mar. 22, 2010).

2. Id. 2010), 20, 231 (Mar. Assem.

S.B. Gen. 3. Ga. http://www.legis.ga.gov/legis/2009-10/sum/sb231.htm [hereinafter S.B. 231 Status Sheet].

576

John MarshallLaw Journal

[Vol. III

(b) It shall be the choice of each student as to which preparatory assessment he or she elects to take." ยง2.

"Reserved." ยง3.

"Reserved."

ยง 4.

Said title is further amended by revising Code Section 20-2-205, relating to the Georgia Master Teacher Program, as follows: "20-2-205. (a) The General Assembly finds that excellent public school teachers deserve recognition for the extraordinary learning opportunity they provide to Georgia students. (b) The Professional Standards Commission is authorized and directed to establish the 'Georgia Master Teacher Program' to provide recognition to certificated public school teachers who exhibit excellence in the classroom. (c) The Professional Standards Commission shall establish criteria for a Master Teacher Certification. Such criteria shall include, at a minimum, evidence of student achievement, which must include student progress. A public school teacher with three or more years of teaching experience in Georgia may submit an application to the Professional Standards Commission for a Master Teacher Certification. The Professional Standards Commission shall review each application and determine whether a teacher meets the criteria for a Master Teacher Certification. If the Professional Standards Commission finds that a teacher's application meets the criteria, the teacher will be given a Master Teacher Certification, and that teacher will be known as and may be called a Master Teacher for a term to be determined pursuant to rules and regulations of the Professional Standards Commission, but in no event longer than seven years. The Professional Standards Commission is authorized to develop rules and regulations governing the Master Teacher Certification. (d) This Czde seetien shall be repcaled en June 30, 2009.'

No. 2]

Senate Bill 231 ยง 5.

Said title is further amended in Code Section 20-2-212, relating to salary schedules for certificated personnel under the "Quality Basic Education Act," by revising subsection (a) as follows: "(a) The State Board of Education shall establish a schedule of minimum salaries for services rendered which shall be on a tenmonth basis and which shall be paid by local units of administration to the various classifications of professional personnel required to be certificated by the Professional Standards Commission. The minimum salary schedule shall provide a minimum salary base for each classification of professional personnel required to be certificated; shall provide for increment increases above the minimum salary base of each classification based upon individual experience and length of satisfactory service; and shall include such other uniformly applicable factors as the state board may find relevant to the establishment of such a schedule. The minimum salary base for certificated professional personnel with bachelor's degrees and no experience, when annualized from a ten-month basis to a 12 month basis, shall be comparable to the beginning salaries of the recent graduates of the University System of Georgia holding bachelor's degrees and entering positions, excluding professional educator teaching positions, in Georgia having educational entry requirements comparable to the requirements for entry into Georgia public school teaching. The placement of teachers on the salary schedule shall be based on certificate level and years of creditable experience, except that a teacher shall not receive credit for any year of experience in which the teacher received an unsatisfactory performance evaluation. For purposes of this subsection, an educator's placement on the salary schedule shall not be based on a leadership degree, which shall mean a degree earned in conjunction with completion of an educator leadership preparation program approved by the Professional Standards Commission, if the degree was earned on or after July 1, 2010, unless the educator is employed in a leadership position as defined by the State Board of Education but shall be placed on the salary schedule attributable to the educator but for the leadership certification provided, however, that this shall not apply to an educator who possessed a leadership certificate prior to July 1, 2010, regardless of whether or not he or she is in a leadership position. The General Assembly shall annually appropriate funds to implement a salary schedule for certificated professional personnel. For each state fiscal year, the state board shall adopt the salary schedule for which funding has been appropriated by the General Assembly. A local unit of

577

578

John MarshallLaw Journal

[Vol. III

administration shall not pay to any full-time certificated professional employee a salary less than that prescribed by the schedule of minimum salaries, except as required by this Code section; nor shall a local unit of administration pay to any part-time certificated professional employee less than a pro rata portion of the respective salary prescribed by the schedule of minimum salaries, except as required by this Code section."

ยง 5A. Said title is further amended in Part 13 of Article 6 of Chapter 2, relating to organization of schools and school systems under the "Quality Basic Education Act," by adding a new Code section to read as follows: "20-2-295. (a) Beginning in school year 2010-2011, the parent or guardian of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system in which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent or guardian shall assume the responsibility and cost of transportation of the student to and from the school. (b) No later than July 1, 2010, each local school system shall establish a universal, streamlined process available to all students to implement the transfer requirements of subsection (a) of this Code section. (c) A student who transfers to another school pursuant to this Code section may, at his or her election, continue to attend such school until the student completes all grades of the school. (d) This Code section shall not be construed to affect any student currently attending a school other than the school to which the student has been assigned by the local board of education pursuant to a transfer authorized under the federal No Child Left Behind Act (P.L. 107-110)."

ยง 6.

Said title is further amended by adding a new Code section to read as follows:

No. 2]

Senate Bill 231

"20-3-519.15. (a) To be eligible for a PROMISE III teacher's scholarship, a student seeking alternative certification as a teacher shall: (1) Meet residency requirements by meeting the requirements to be classified as a legal resident of Georgia for purposes of the tuition equalization grant: (2) Possess a bachelor's degree or higher; (3) Be accepted for enrollment into an approved alternative teacher certification program in Georgia leading to initial certification.

Such alternative program shall be a teacher certification program not offered by a public or private postsecondary institution as approved by the Professional Standards Commission; and (4) Agree to teach in a public school in Georgia at the elementary, middle, or secondary level for one academic year for each $1,500.00 in PROMISE III teacher scholarship funds awarded and sign a promissory note that stipulates the cash repayment obligation incurred if the teaching service is not fulfilled. (b) Subject to the amounts appropriated by the General Assembly and provisions relating to the scholarship shortfall reserve subaccount in Code Section 50-27-13, a PROMISE III teacher's scholarship shall not exceed a total of $3,000.00 per recipient. (c) A student who terminates participation in the approved alternative teacher certification program or who is otherwise dropped from participation by the program shall not be eligible to continue receiving a PROMISE III teacher's scholarship. Such student shall also not be eligible to receive a PROMISE teacher's scholarship or a PROMISE II teacher's scholarship. (d) A student shall not be eligible to receive a PROMISE III teacher's scholarship if such student is ineligible for certification by action of the Georgia Professional Standards Commission." ยง6A. Said title is further amended by revising Code Section 20-4-10, relating to the establishment of the State Board of Technical and Adult Education, as follows:

579

John MarshallLaw Journal

580

[Vol. III

"20-4-10. (a) There is established a the State Board of the Technical College System of Georgia, formerly known as the State Board of Technical and Adult Education consisting of not fewer than one member from each congressional district and nine at-large members who shall be appointed by the Governor and confirmed by the Senate for five-year terms. Board members in office on June 30, 2000, shall serve out the remainder of their respective terms.

Upon expiration of those terms, the Governor shall appoint seven successors to two-year terms, six successors to three-year terms, and six successors to five-year terms. All subsequent appointments shall be for regular five-year terms. Members shall represent business, industry, or economic development. The board shall elect from its members a chairperson, vice chairperson, and such other officers as are considered necessary, each to serve for two-year terms. Officers may be elected to succeed themselves. Members shall serve until their successors are appointed; however, in the event of a vacancy on the board because of death, resignation, or removal for any reason other than expiration of a member's term, the Governor shall fill such vacancy in the same manner as the original appointment and the person so appointed shall serve for the unexpired term of office. (b) As used in this article, the term 'state board' means the State Board of Teehnieal and Adult Educaicn the Technical College System of Georgia." ยง6B. The following Code sections of the Official Code of Georgia Annotated are amended by replacing "State Board of Technical and Adult Education," "Board of Technical and Adult Education" or "board of technical and adult education," wherever any such term occurs with "State Board of the Technical College System of Georgia": (1) Code Section 12-5-127, relating to the licensing of water well contractors; (2) Code Section 12-11-11, relating to the Conservation Corps Advisory Council; (3) Code Section 20-1-22, relating to definitions relative to the "Drug-free Postsecondary Education Act of 1990";

No. 2]

Senate Bill 231

(4) Code Section 20-1-26, relating to promulgation of administrative procedures for implementation of the "Drug-free Postsecondary Education Act of 1990"; (5) Code Section 20-2-161.1, relating to academic credit for enrollment in postsecondary courses; (6) Code Section 20-2-169, relating to receipt of federal funds for career, occupational, or technical education; (7) Code Section 20-4-11, relating to the powers of the State Board of Technical and Adult Education; (8) Code Section 20-4-12, relating to expenses and mileage allowance for the State Board of Technical and Adult Education; (9) Code Section 20-4-13, relating to meetings of the State Board of Technical and Adult Education; (10) Code Section 20-4-14, relating to the establishment of the Technical College System of Georgia; (11) Code Section 20-4-15, relating to the establishment of adult literacy programs; (12) Code Section 20-4-16, relating to funding for adult literacy programs and postsecondary technical education programs; (13) Code Section 20-4-19, relating to conformity to board standards, policies, and procedures of adult literacy programs; (14) Code Section 20-4-21, relating to tuition fees for the Technical College System of Georgia; (15) Code Section 20-4-24, relating to use of personnel by local units of administration in the Technical College System of Georgia; (16) Code Section 20-4-25, relating to membership in the retirement system; (17) Code Section 20-4-35, relating to the reduction in force policy; (18) Code Section 20-4-40, relating to the establishment of the quick start training program;

581

582

John MarshallLaw Journal

[Vol. III

(19) Code Section 20-4-41, relating to the extent and nature of the quick start training program to be offered; (20) Code Section 20-4-43, relating to agreements for local facilities and employees for training; (21) Code Section 20-4-44, relating to qualifications of employees of the quick start training program; (22) Code Section 20-4-45, relating to equipment procurement and use for the quick start training program; (23) Code Section 20-4-46, relating to standards, rules, and regulations of the quick start training program; (24) Code Section 20-4-47, relating to acceptance of federal and private grants; (25) Code Section 20-13-8, relating to licensure of the Georgia Public Telecommunications Commission; (26) Code Section 20-13-9, relating to content of instructional television; (27) Code Section 20-14-3, relating to membership, officers, and meetings of the Education Coordinating Council; (28) Code Section 20-14-50, relating to the adoption of performance measures, report cards, and audit under the postsecondary accountability assessment program; (29) Code Section 20-16-2, relating to definitions relative to the "Georgia Higher Education Facilities Authority Act"; (30) Code Section 20-16-3, relating to the creation of the Georgia Higher Education Facilities Authority; (31) Code Section 20-16-4, relating to the powers of the Georgia Higher Education Facilities Authority; (32) Code Section 38-3-22.2, relating to the establishment of Airport Anti-Terrorism Training Committee; (33) Code Section 42-2-5.1, relating to special school district for school age youth and education programs for adult offenders;

No. 2]

Senate Bill 231

583

(34) Code Section 43-14-6, relating to powers and duties of divisions relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors,; (35) Code Section 45-7-21, relating to expense allowance and travel cost reimbursement for members of certain boards and commissions; (36) Code Section 45-12-132, relating to contracts exempt from certain requirements; (37) Code Section 50-20-8, relating to applicability of provisions for relations with nonprofit contractors; and (38) Code Section 50-36-1, relating to verification of lawful presence within United States.

ยง 6C. Said title is further amended in Article 2 of Chapter 4, relating to technical and adult education, by adding a new Code section to read as follows: "20-4-37.

On and after July 1, 2010, no creation, consolidation, suspension, or discontinuation of a technical college or institution under the State Board of Technical and Adult Education shall be effective or have any force and effect unless approved by the General Assembly in accordance with this Code section. Legislative approval shall be by Act of the General Assembly or the adoption of a joint resolution of the General Assembly."

ยง 7.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Senator Dan Weber, of the 40th district introduced Senate Bill 231.1 Senator Weber hopes that Senate Bill 231 will help provide financial assistance to those who wish to switch their

4. Ga. S.B. 231 (as passed by House).

584

John MarshallLaw Journal

[Vol. III

career to education.s Kelly Henson, Executive Secretary for the Georgia Professional Standards Commission, approached Senator Weber with the idea for this legislation, advocating several reasons.6 First, it is evident that very few would disagree that Georgia needs to support those who wish to change careers into the very important field of education.

Further, there are currently no programs that help alleviate the financial burden to those who wish to make a career transition into education.' However, there are such programs to help alleviate the cost for those who have yet to acquire a degree and wish to seek a degree in education.9 Essentially, Senate Bill 231 will allow the use of state lottery funds, which are already used for various scholarships, to help support people who wish to begin careers in education.10 Senator Weber acknowledged that the large amount of proposed amendments to Senate Bill 231 in the Georgia House of Representatives was due to the fact that Senate Bill 231 would arguably take away from the money that would ordinarily go towards other scholarship programs such as the Promise I and Promise II Scholarships." However, Mr. Henson states the only downside to the Bill is the inability to generate excess dollars in an economy where not only the general fund dollars are under strain, but the lottery funds are diminished as well. 12 Nonetheless, Senator Weber did not categorize these amendments as opposition towards the Bill, as it favorably 5. E-mail from Sen. Dan Weber, Sen. Dist. 40, to Boris Milter, Staff Member, John Marshall Law Journal, (March 9, 2010, 3:31p.m. EST) (on file with author) [hereinafter Weber E-mail].

6. Id. 7. Telephone Interview with Kelly Henson, Executive Sec'y, Ga. Prof I Standards Comm'n (March 10, 2010) [hereinafter Henson Interview].

8. Id. 9. Id.; see GAcollege4 11, Promise Teacher Scholarship Loan, http://www.gacollege41l.org/Financial Aid Planning/Financial Aid_101/S erviceCancelableLoans/PROMISETeacherScholarshipLoan.aspx (last visited Mar. 22, 2010) (explaining how Georgia's Promise I Scholarship helps alleviate financial burdens for undergraduate students seeking degrees in education).

10. See Ga. S.B. 231(as passed by House); Henson Interview, supra note 7.

11. Weber E-mail, supra, note 5; see infra LEGISLATIVE GENEALOGY. 12. Henson Interview, supra, note 7.

No. 2]

Senate Bill 231

585

passed the House with a 139 to 23 vote." Although Senator Weber offered another amended version of Senate Bill 231 during the 2010 legislative session, it has not been considered.14 LEGISLATIVE GENEALOGY

Senate Bill 231 was first read and referred to the Higher Education Committee on March 4, 2009.11 On March 5, 2009, the Senate Secretary read to the Senate the Committee report, prepared by Senator Harp, of the 29th district, Chairman of the Committee on Higher Education, recommending the Senate pass Senate Bill 23 1.16 On March 9, 2009, the Senate heard the second reading of the Bill, and on March 12, 2009, the Bill was read for a third time. Thereafter, the Senate agreed to the Committee's report and passed the Bill by a vote of fifty-two "yeas," zero "nays," three "not voted," and one "excused.""

On March 17, 2009, the Georgia House of Representatives heard the first reading of Senate Bill 231 and referred the Bill to the Committee on Higher Education." The following day, the House read the Bill for a second time.19 On March 26, 2009, the Clerk of the House read the Committee's favorable report on Senate Bill 231, submitted by Representative Bill Hembree of the 67th district, Chairman of the Committee on Higher Education, recommending the Senate pass the Bill by Substitute.20 The House read Senate Bill 231 a third time on April 3, 2009, the last day of session.2 1 13. Weber E-mail, supra note 5; see infra note 51.

14. Weber E-mail, supra note 5; see S.B. 231, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (proposed amended version), available at http://www.legis.state.ga.us/legis/2009_10/versions/sb23 IFlooramend_I_t oHouse subAM_33_0857_7.htm.

15. S.B. 231 Status Sheet, supra note 3.

16. Id. 17. Id. 18. Id. 19. Id. 20. JOURNAL OF THE HOUSE, 150th Gen. Assem., Ist Reg. Sess., at 3926

(Ga. Mar. 26, 2009), available at http://www.legis.state.ga.us/legis/2009-10/house/clerk/09Journals/Day%203 7.pdf (last visited Mar. 22, 2010) [hereinafter HOUSE JOURNAL: Mar. 26, 2009].

21. S.B. 231 Status Sheet, supra note 3.

586

John MarshallLaw Journal

[Vol. III

Immediately after the third reading of the Bill, Representative Hembree presented, before the House, the House Committee on Higher Education's proposed Substitute for Senate Bill 23 1.22 The Substitute, in essence, expanded the scope of the original text of Senate Bill 23 1.23 The Committee added the following provisions, to the existing provisions in the Bill's Caption: (1) So as to provide for preparatory tests for college entrance exams; (2) to provide for enrollment counts for students in certain dual enrollment programs; (3) to provide for requirements for weighting of students in certain dual enrollment courses under the Quality Basic Education Formula; (4) to remove the sunset provision from the Georgia Master Teacher Program; (5) to provide for placement on the state salary schedule for an educator who has a leadership degree but is not in a leadership position.24 Representative Hembree explained that, currently, PROMISE I teacher scholarships exist as means of assisting those students specializing in educational degrees, in return for their services as a public school teacher for a specified amount of time.2 5 Representative Hembree explained that the establishment of the PROMISE III teacher scholarship would give the same general type of assistance to those that want to pursue teaching despite the fact that their background is not in the area of education.26 The PROMISE III scholarship would allow for alternative

22. S.B. 231, 150th Gen. Assem. 1st. Reg. Sess. (Ga. 2007) (H. Comm.

Substitute) available at http://www.legis.state.ga.us/legis/2009_1 0/versions/sb23 1_LC_28_4801 S_h ss_5.htm (last visited Mar. 22, 2010); General Assembly Video Archive: House Session Part IP (Georgia Public Broadcasting internet broadcast Apr. 3, 2009), available at mms://mediaml.gpb.org/galleg/2009/house_040309_2P.wmv.

23. Compare S.B. 231, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as introduced), available at http://www.legis.state.ga.us/legis/2009_10/versions/sb23 1_Asintroduced_L C 33 3058 2.htm (last visited Mar. 22, 2010) with Ga. S.B. 231 (H. Comm.

Substitute).

24. Ga. S.B. 231 (H. Comm. Substitute).

25. General Assembly Video Archive: House Session Party lIP, supra note 22.

26. Id.

No. 2]

Senate Bill 231

587

means of teacher certification and would help alleviate this State's lack of teachers in the areas of math and science.27 Following his presentation of the House Committee Substitute, Representative Hembree yielded the floor for questions and discussion. 28 Discussion ensued regarding the potential "chilling" effect of ยง 5 of the Bill.29 Section Five pertains to salary increases for teachers with leadership degrees/certifications, or those teachers that are possibly leadership acquiring the additional considering degree/certification.3 0 The discussion on the floor centered on protecting three interests: (1) promoting and encouraging those that wish to seek leadership degrees/certifications; (2) making sure that those wishing to seek such degrees/certifications are not discouraged; and (3) only those that acquire the leadership degrees/certifications and step into such positions benefit from the salary increase." Representative Hembree stated that the Professional Standards Commission is finding that there are many teachers that acquire the pay increase, after receiving the required degree or certification, but do not move into any type of leadership position.32 Representative Hembree further stated that the provision is essentially a cost saving mechanism, for the benefit of the State of Georgia and its students, which will only allow those teachers that move into the requisite leadership positions to receive the benefit of a salary increase.

27. Id. 28. Id. 29. Id. 30. Ga. S.B. 231 (as introduced).

31. General Assembly Video Archive: House Session Party lP, supra note 22.

The concern is that if a teacher acquires the required degree/certification and wants to move into a leadership position, but is unable to because there are no vacancies for such positions at the time, that teacher would not be allowed to benefit from the pay increase. Id. Therefore, there is a fear that a "chilling" effect may ensue and those fearful that they will receive neither a leadership position nor a salary increase upon acquiring a leadership degree/certification, will simply not seek such advancement. Id. Of course, this is drastically different from a teacher who acquires the degree/certification, but wishes to benefit from the salary increase without moving into a leadership position. Id. 32. Id. 33. Id.

588

John MarshallLaw Journal

[Vol. III

Following questions and discussions pertaining to the House Committee's proposed Substitute, Representatives Butch Parrish, of the 156th district, Jay Roberts, of the 154th district, and Ed Rynders, of the 152nd district, moved to amend the Substitute Bill to further expand the scope of the Bill by adding a provision: "to require legislative approval for the creation, consolidation, suspension, or discontinuation of a technical college or institution under the State Board of Technical and Adult Education."3 4 This Amendment was adopted."

Thereafter, Representative Millar, of the 79th district, moved to amend the Committee Substitute further by striking the language found in lines 2 through 4 and inserting in lieu thereof the following: "provide for preparatory tests for college entrance exams; to."3 6 Additionally, Representative Millar's motion proposed to insert after "position;" on line 7 the following: "to provide that a public school student can attend any school in the local school system under certain conditions; to provide for continued attendance at such school; to provide Representative Millar's motion for statutory construction." also proposed to strike all language found under §§ 2 and 3 and to insert in lieu thereof "Reserved."3 8 The final proposition in Representative Millar's motion was to insert a new subsection, under the heading of "§ 5A," which would further amend Title 20 by adding a new Code section in Part 13 of Article 6 of Chapter 2, which relates to organization of schools and school systems under the "Quality Basic Education Act."3 9 After a roll call, the House voted on Representative Millar's proposed Amendment to Senate Bill 231, and the Amendment 34. JOURNAL OF THE HOUSE, 150th Gen. Assem., 1st Reg. Sess., at 5338 at available 26, 2009), Mar. (Ga. http://www.legis.state.ga.us/legis/2009_10/house/clerk/09Joumals/Day%204 0.pdf (last visited Mar. 22, 2010) [hereinafter HOUSE JOURNAL: Apr. 3, 2009].

35. See S.B. 231 (as passed by House). The preamble to the Bill provides "To amend Title 20 of the Official Code of Georgia Annotated, relating to education, so as . . . to require legislative approval for the creation,

consolidation, suspension, or discontinuation of a technical college or institution under the State Board of Technical and Adult Education. . .

36. HOUSE JOURNAL: Apr. 3, 2009, supra note 34, at 5339.

37. Id. 38. Id. 39. Id.

No. 2]

Senate Bill 231

589

was adopted.40 Thereafter, Representative Hembree moved to further amend the Committee Substitute to Senate Bill 231 by inserting after "amount;" on line 9 the following language: "to change the name of the State Board of Technical and Adult Education to the State Board of the Technical College System of Georgia; to amend various provisions of the Official Code of Georgia Annotated to change references to reflect such name The substantive language of Representative change."41 Hembree's Amendment would be inserted under subheading "ยง The House adopted 6A," after line 166 of the Bill.4 2 Representative Hembree's Amendment to the Committee Substitute for Senate Bill 231 without any objection.43 This Amendment was also adopted."

After the House heard all proposed substitutions, amendments, and motions from the Committee and Representatives of the House, they adopted the Committee Substitute without any objection.4 5 Furthermore, the report of the Committee, which was favorable to the passage of the Bill

by Substitute, was agreed to, as amended, without objection.4 6 A letter from Representative Bobby Franklin of the 43rd District, to the House, indicated his position that it would have been a violation of his oath to have voted to pass the proposed version of Senate Bill 231 pursuant to Article III, Section V, Paragraph III of the Constitution of Georgia; "no Bill shall pass which refers to more than one subject matter. . ."47 This letter bears a certain significance when one considers the original form that Senate Bill 231 had, when Senator Weber first submitted it to the Senate.48 The original form of the Bill, 40. General Assembly Video Archive: House Session Party IP, supra note 22.

41. HoUSEJOURNAL: Apr. 3, 2009, supra note 34.

42. Id. 43. GeneralAssembly Video Archive: House Session Part IP, supra note 22.

44. See S.B. 231 (as passed by House).

45. Id.; See Ga. S.B. 231 (as passed by House).

46. General Assembly Video Archive: House Session Party IP, supra note 22.

47. HOUSE JOURNAL: Apr. 3, 2009, supra note 34, at 5344; see also GA. CONST. art. III, ยง 5, para. 3.

48. Ga. S.B. 231 (as introduced).

590

John MarshallLaw Journal

[Vol. III

which the Senate adopted and passed, only dealt with one subject matter: the establishment and implementation framework of the PROMISE III Teacher's Scholarship.4 9 However, after the adoption of the House Substitute and the amendments that followed, the original scope of Senate Bill 231 was far greater than that of its original version. In fact, Senate Bill 231, as adopted and passed by the House on July 3, 2009, includes provisions from several bills introduced during the 2009 Session, including the following": House Bill 5471: This section requires that in the event that

state funding is provided for school systems to offer the PSAT, such funding must also be made available for purposes of offering the ACT PLAN assessment. 52 It is to be the choice of each student as to which preparatory assessment he or she takes.

This provision is reflected in ยง 1 of the House Substitute Passed/Adopted version of Senate Bill 231.54 House Bill 280 (as introduced)55 : This section removes the sunset provision from the Georgia Master Teacher Program.5 6 This provision is reflected in ยง 1 of the House Substitute Passed/Adopted version of Senate Bill 231.57

49. Id.; See also S.B. 231, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as passed by Senate) available at http://www.legis.state.ga.us/legis/20091 0/versions/sb23 1(last visited Mar. 22,2010).

50. Rachel Moore, Sen. B. 231 Research Summary (Apr. 3, 2009) (unpublished legislative research summary on file with the office of Senator Weber).

51. H.B. 547, 150th Gen. Assem., Ist Reg. Sess., (Ga. 2009), availableat http://www.legis.state.ga.us/legis/2009_10/pdf/hb547.pdf (last visited Mar. 22, 2010).

52. Id. 53. Id. 54. Ga. S.B. 231 (as passed by House).

55. S.B. 280, 150th Gen. Assem., Ist Reg. Sess., (Ga. 2009), availableat http://www.legis.state.ga.us/legis/2009-10/pdf/sb280.pdf (last visited Mar. 22, 2010).

56. Id. 57. Ga. S.B. 231(as passed by House).

No. 2]

Senate Bill 231

591

Senate Bill 219s8: This legislation establishes that an educator who has earned a leadership degree in conjunction with a leadership preparation program approved by the Professional Standards Commission, after July 1, 2010, will not have his or her placement on the salary schedule based on this degree, unless he or she is in a leadership position as defined by the State Board of Education.5 9 The educator will be placed on the salary schedule that fits their position, minus the leadership degree.6 0 This will not apply to an educator who had a leadership degree before July 1, 2010, regardless of whether or not the educator held a leadership position.6' This provision is reflected in Section 5 of the House Substituted Passed/Adopted version of Senate Bill 23 1.62 House Bill 25163 : This Bill adds a new code section to allow a student in a local school system the ability to transfer to another public elementary or secondary school.6 The school must be located within the system in which they reside or the system that the local board has assigned to them.65 The school must have classroom space available after its assigned students have been enrolled and the parent will assume the responsibility and cost of transferring the student to and from school. 66 The student can attend the school of their choosing until they complete all grades of the chosen school. This will take effect starting with the 2010-2011 school year. 67 No later than July 1, 2010, all local school systems will have a universal streamlined process developed that will be available to all students to

58. S.B. 219, 150th Gen. Assem., 1st Reg. Sess., (Ga. 2009), available at http://www.legis.state.ga.us/legis/2009 10/pdf/sb219.pdf (last visited Mar. 22, 2010).

59. Id. 60. Id. 6 1. Id. 62. Ga. S.B. 231(as passed by House).

63. H.B. 251, 150th Gen. Assem., Ist Reg. Sess., (Ga. 2009), availableat http://www.legis.state.ga.us/legis/2009-10/pdf/hb251.pdf (last visited on Mar. 22, 2010).

64. Id. 65. Id. 66. Id. 67. Id.

592

John MarshallLaw Journal

[Vol. III

implement the transfer requirements." This will not affect any students who attend another school, other than the one the student was assigned, because of transfer authorized under the No Child Left Behind Act. 9 This provision is reflected in Section 5A of the House Substitute Passed/Adopted version of Senate Bill 231.70 House Bill 3011": This Bill changes the name of the State Board of Technical and Adult Education to the State Board of the Technical College System of Georgia.72 This provision is reflected in Section 6A of the House Substitute Passed/Adopted version of Senate Bill 231.11 After the House passed/adopted the House Substitute to Senate Bill 231, Senator Weber has offered another amendment to the Bill.74 Essentially, this newly amended version holds only the original provisions, as presented to the Senate, and includes a provision to change the name of the State Board of Technical and Adult Education to the State Board of the Technical College System of Georgia.75 However, no action has been taken in regard to Sen. Weber's offered amendment.7 6 Since Senate Bill 231, having received the requisite constitutional majority vote, was passed by Substitute as amended in the House of Representatives on April 3, 2009, there has been no further activity pertaining to this Bill. 7 7 Prepared by: Boris Y Milter

68. Id.

69. Ga. H.B. 251.

70. Ga. S.B. 231(as passed by House).

71. H.B. 301, 150th Gen. Assem., 2d Reg. Sess., (Ga. 2009), availableat http://www.1egis.state.ga.us/legis/2009_10/pdf/hb3O1.pdf (last visited Mar. 22, 2010).

72. Id.

73. Ga. S.B. 231(as passed by House).

74. H.B. 251, 150th Gen. Assem., 1st Reg. Sess., (Ga. 2009) (Sen. Weber at available Amend.), Floor http://www.legis.ga.gov/legis/2009_10/versions/sb23 1_Flooramend_1_to_ HousesubAM_33_0857_7.htm (last visited (Mar. 22, 2010).

75. Id.

76. S.B. 231 Status Sheet, supranote 3.

77. Id.

SENATE RESOLUTION 153': EDUCATION IMPROVEMENT DISTRICTS; PROVIDE CREATION AND COMPREHENSIVE REGULATION

Amending Article VII of the Georgia Constitution First Signature: Senator Dan Weber (40th) Senator David Adelman (42nd), Senator Co-Sponsors: Tommie Williams (19th), and Senator Curt Thompson (5th) Summary: Senate Resolution 153 seeks to amend the Georgia Constitution," .. . so as to authorize the General Assembly to

provide by local law for the creation and comprehensive regulation of education improvement districts for the provision of facilities for one or more public or special schools; to provide for the submission of this amendment for ratification or rejection; and for other purposes. "2 Status: Tabled in House on April 1, 20091 TEXT OF SENATE RESOLUTION

153

ยง 1.

Article VIII of the Constitution is amended by adding a new section to read as follows:

1. S. Res. 153, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009), availableat http://www.legis.ga.gov/legis/200910/pdf/srl53.pdf (last visited Mar. 22, 2010).

2. Id.

3. Ga. Gen. Assem., S.Res. 153 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009_10/sum/srl53.htm [hereinafter S. Res. 153 Status Sheet].

594

John MarshallLaw Journal

[Vol. III

"SECTION VIII. EDUCATION IMPROVEMENT DISTRICTS Paragraph I. Creation. The General Assembly may by local law create one or more education improvement districts to provide for facilities or land for one or more schools as provided in this section, which education improvement districts shall be considered public entities.

Paragraph II. Purposes. The purpose of an education improvement district shall be the provision of facilities or purchase of land for one or more public schools established by a board of education under Article VI, Section V, Paragraph I of this Constitution, one or more special schools established under Article VIII, Section V, Paragraph VII of this Constitution, or a combination of such public schools and special schools. Facilities may include construction of new school facilities, capital improvements to existing school facilities, leasing of school facilities, or a combination thereof.

Facilities may also include pre-kindergarten programs within a public school or special school.

Paragraph III. Boundaries. Any education improvement district shall be composed of a single, contiguous geographical area containing at least 500 acres and containing a population of at least 2,000 persons and may include portions of one or more school systems.

Paragraph IV. Local law. (a) The local law creating an education improvement district shall include the following: (1) A description of the facility or facilities for which the district is created, the land to be purchased for the public or special school or schools, or both, (2) A description of the geographical area which comprises the district; (3) The establishment of the administrative body for the education improvement district and the number of members of the administrative body. The membership shall include representation from each local board of education included within the education improvement district, if one or more public schools are to be benefitted, and representation from the governing board of each special school if such special school is to be benefitted, and the method of selection of all members shall be specified in the local law,

No. 2]

Senate Resolution 153

(4) The duties and powers of the administrative body, which may include: (A) The power to contract: (B) The power to enter into cooperative agreements with local governments in accordance with Paragraph VI of this section and to act on such agreements; (C) The acceptance of bequests, donations, assistance with or guarantees of any loans or other instruments of indebtedness, and grants and transfers of land, buildings, and other property from individuals, private entities, counties, municipalities, local boards of education, the State Board of Education, the Board of Regents, or other entities of the State of Georgia; (D) The incurrence of debt, without regard to the requirements of Article IX, SectionV of this Constitution, which debt shall be backed by the full faith, credit, and taxing power of the education improvement district and which debt may be backed by the full faith, credit, and taxing power of the applicable local board of education, in the case of a public school or schools, or the state, in the case of a special school or schools as specified in the local law; (E) The retention of an administrative fee, which shall not exceed any maximum amount set out in the local law, to cover actual costs, which may include per diem amounts for administrative body members and necessary expenses; and (F) The authority to levy ad valorem taxes within the education improvement district in accordance with Paragraph V of this section and the maximum tax rate which may be levied.

(5) The duration of the education improvement district, which shall be the later of: (A)(i) For construction or capital improvements of the facility or facilities for which the education improvement district is established, the completion of such construction or capital improvements; (ii) For the purchase of land, the completion of such purchase: or (iii) For the lease of a facility, the end of the initial lease, which duration may be specifically limited in the local law; or

595

596

John MarshallLaw Journal

[Vol. III

(B) Upon the completion of payment of all debt incurred for the construction or capital improvements, purchase of land, or lease of the facility or facilities for which the education improvement district is established: (6) The estimated maximum costs relating to the construction, capital improvements, or lease of the facility or facilities, the purchase of land, or both; (7) Provision for lowering the tax, ceasing to collect the tax at an earlier date, refunds to taxpayers, or any other appropriate mechanism, in the event that actual costs for the facility or facilities, the purchase of land, or both is less than the estimated maximum costs presented in the referendum; and (8) The right, title, interest, and ownership of any new facility or facilities or land purchased, which may be vested in the administrative body of the education improvement district, the applicable local board of education in the case of public schools, or in the state, in the case of special schools as specified in the local law: provided, however, that if ownership is vested in an education improvement district, the local law shall provide for the transfer of ownership to the applicable local board or boards of education or the state, as appropriate, upon dissolution of the education improvement district. The design and construction of a new facility or of capital improvements to an existing facility may be conducted by the local board of education, the goveming body of a special school, the education improvement district, or some other entity, as designated in the local law. The local law may address occurrences such as closure and sale of a facility provided for under the district. (b) Any local law creating an education improvement district shall be signed by every member of the House of Representatives and the Senate whose districts are wholly or partially located within the education improvement district and shall be conditioned upon: (1) The adoption of a resolution consenting to the creation of the education improvement district by: (A) Each local board of education which is included within the education improvement district if such district is to be established for the benefit of one or more public schools of the local board of education; and

No. 2]

Senate Resolution 153

(B) The governing board of each special school which is included within the education improvement district if such district is to be established for the benefit of any such special school: and (2) Approval by a majority of the qualified electors residing within the limits of the education improvement district voting in a referendum thereon. Such referendum shall identify the tax rate to be levied, the specific facility or facilities or land for which the ad valorem taxes collected under Paragraph V of this section will be used, and the estimated maximum costs relating to the facility or facilities. Any referendum held pursuant to this subparagraph shall be conducted only on the Tuesday after the first Monday in November in odd-numbered years or on the date of the presidential preference primary, general primary, or general election in evennumbered years.

Paragraph V. Levy. The administrative body of each education improvement district may be authorized to levy ad valorem taxes within the education improvement district only on real property and specifically excluding tangible personal property and intangible property. The tax rate charged by the education improvement district may not exceed the rate specified in the referendum. Any such ad valorem tax shall not apply to the homestead property of any person residing within the education improvement district who is 62 years of age or older. Any such tax shall be collected by the county or counties in which the education improvement district is located in the same manner as ad valorem taxes levied by such county or counties. The proceeds of such taxes so levied, less such fee to cover the costs of collection as may be specified by law, shall be transmitted by the collecting county or counties to the administrative body of the education improvement district and shall be expended by such administrative body for the purpose authorized by this section. The administrative body of the education improvement district may not use such ad valorem taxes to fund any facility or land purchase other than the specific facility or facilities or land purchase specified in the referendum.

Paragraph VI. Cooperation with local governments. The facilities and land purchases provided pursuant to this section shall be provided for in a cooperative agreement executed Jointly by the administrative body and one or more applicable local boards of education or, in the case of a special school or special schools, the governing body or bodies thereof. The provisions of this section shall in no way limit the authority of any local board of education or governing body of a special school to provide facilities or land

597

598

John MarshallLaw Journal

[Vol. III

within any education improvement district. An education improvement district shall have no control or management over a local school system.

Paragraph VII. Requlation by general law. The General Assembly by general law may regulate, restrict, and limit the creation of education improvement districts and the exercise of the powers of administrative bodies of education improvement districts." ยง 2.

The above proposed amendment to the Constitution shall be published and submitted as provided in Article X, Section 1, Paragraph II of the Constitution. The ballot submitting the above proposed amendment shall have written or printed thereon the following: "[]YES

[] NO

Shall the Constitution of Georgia be amended so as to authorize the General Assembly to provide by local law for the creation and comprehensive regulation of education for the provision of districts improvement facilities or land for one or more public or special schools?"

All persons desiring to vote in favor of ratifying the proposed amendment shall vote "Yes." All persons desiring to vote against ratifying the proposed amendment shall vote "No." If such amendment shall be ratified as provided in said Paragraph of the Constitution, it shall become a part of the Constitution of this state.

FIRST SIGNATURE'S RATIONALE

Senator Weber, of the 40th district, introduced Senate Resolution 153 in hopes that newly created education improvement districts would serve the purpose of creating or improving facilities that are used for educational purposes.'

The Resolution proposes that newly created districts be governed by an administrative body from one or more of the local boards of education whose public school or schools would 4. James R. Touchton, S. Res. 153 Research Summary (Mar. 9, 2009) (unpublished legislative research summary on file with the Office of Senator Weber) [hereinafter S. Res. 153 Research Summary].

No. 2]

Senate Resolution 153

599

benefit, including any special schools.' For the proposed districts to be created, the local law creating such districts must be approved at three levels.' It must pass by unanimous consent of every member of the House of Representatives and Senate whose district includes a school in the concerned education district.' Additionally, the creation of the district would be conditioned upon approval from each local board of education and governing board of each special school located within the district.! Finally, it must be approved by voter referendum.9 Senate Resolution 153 proposes that the administrative body that would govern the newly created districts would be able to levy the ad valorem taxes within the district on real property only in an amount not to exceed the rate approved by the referendum.o In addition, the tax will exclude the homestead property of those persons 62 years of age or older." The tax will be collected by the county or counties included in the district and transferred to the administrative body.12 Senate Resolution 153 contemplates the potential over-taxation or misappropriation of taxes collected." The Resolution protects against over-taxation by specifying that the taxes collected may only be used for the facilities specified in the referendum, and if the cost to build the facilities is lower than the taxes collected, local law may provide for a method to lower the tax, end the tax, or return it to the taxpayers.14 Senate Resolution 153 provides that the administrative body can accept contributions and incur debt." However, the debt will not be an obligation of

5. Id. 6. Id. 7. Id. 8. Id. 9. Id. (explaining how voter referendum would also identify the tax rate to be levied and the facility or facilities to be constructed with the ad valorem tax).

10. S. Res. 153 Research Summary, supra note 4.

11. Id. 12. Id. 13. Id.

14. Id. 15. Id.

600

John MarshallLaw Journal

[Vol. III

the State of Georgia or any unit of government, other than the school district, and will be regulated by the General Assembly.16 LEGISLATIVE GENEALOGY Senate Resolution 153 was first read and referred to the

Committee on Education and Youth on February 5, 2009.17 The Committee favorably reported on the Resolution and recommended passing by Substitute.'" Senate Resolution 153 was read for the second time before the Georgia Senate on March 3, 2009.19 On March 9, 2009, Senate Resolution 153 was read for the third time. 20 Following the third reading, the Committee on Education and Youth offered and read their proposed Substitute to Senate Resolution 153.21 The Senate Substitute expanded the purpose of the Resolution to allow for the provision of facilities that may also include pre-kindergarten programs within a public school or special school.22 There were no objections to the expansion, and the Senate adopted the Committee Substitute.2 3 On March 10, 2009, Senate Resolution 153 was read for the first time in the House of Representatives and was referred to

16. S. Res. 153 Research Summary, supra note 4.

17. S. Res. 153 Status Sheet, supra note 3.

18. Id.; see also S. Res. 153, 150th Gen. Assem., 1st Reg. Sess. (Ga. at available Substitute), Comm.

(S. 2009) http://www.legis.ga.gov/legis/2009_10/versions/srl53_Committee-subLC_ 33_304654.htm (last visited Mar. 22, 2010).

19. S. Res. 153 Status Sheet, supra note 3.

20. Id. 21. Id.; see also Ga. S. Res. 153 (S. Comm. Substitute).

22. Id.; see also Ga. S. Res. 153 (S. Comm. Substitute); see O.C.G.A. ยง 20-2-152 ("Special education shall include children who are classified as intellectually gifted, mentally disabled, behavior disordered, specific learning disabled, orthopedically disabled, other health impaired, hearing impaired, speech-language disordered, visually impaired, severely emotionally disturbed, and deaf-blind and who have other areas of special needs which may be identified.. . .").

23. S. Res. 153 Status Sheet, supra note 3; see also S. Res. 153, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (as passed by Senate), available at http://www.legis.ga.gov/legis/2009_10/versions/srl53_AdoptedSenate_5.ht m (last visited (Mar. 22, 2010).

No. 2]

Senate Resolution 153

601

the House Committee on Education.2 4 On March 12, 2009, the House heard the second reading of the Resolution.25 On March 26, 2009, Representative Brooks Coleman of the 97th district, Chairman of the House Committee on Education, submitted a favorable report on Senate Resolution 153 and recommended that the House pass the Resolution by Substitute.26 On April 1, 2009, the Clerk of the House read Senate Resolution 153 for the third time before the House.27 Following the third reading, Representative Ed Setzler was recognized to read and present the House Committee Substitute to the House.28 Representative Setzler explained that Senate Resolution 153 is a common sense measure that passed unanimously in both the House Education Subcommittee and Full Committee.29 Representative Setzler went on to explain that the House Substitute is a proposition that mirrors Georgia's current constitutional framework for Community Improvement Districts ("C.I.D.").30 He stated that C.I.D.'s are special districts approved by local law and permitted, upon the vote of the residents within those special districts, to tax themselves at a slightly higher level to fund the improvement of the infrastructure within that special district." According to Representative Setzler, the House Substitute to Senate Resolution 153 proposes to provide a constitutional framework for Educational Improvement Districts ("E.I.D."), which would grant local school districts, in conjunction with their governing authorities, the same power to elevate taxes as C.I.D's and fund the improvement or building of schools. 3' 24. S. Res. 153 Status Sheet, supra note 3.

25. Id. 26. Id.; see also S. Res. 153, 150th Gen. Assem., Ist Reg. Sess. (Ga. 2009) (H. Comm.

Substitute), available at http://www.legis.ga.gov/legis/2009_10/versions/srl53_LC_33_3229S-hss_7 .htm (last visited Mar. 22, 2010).

27. Id. 28. Lawmakers: Session Day 39 (Ga. Public Broadcasting television broadcast April 1, 2009), available at http://www.gpb.org/lawmakerstv/2009/04/01 (statement of Rep. Ed Setzler, H. Dist. 35); see Ga. S. Res. 153 (H. Comm. Substitute).

29. Lawmakers: Session Day 39, supra note 28.

30. Id.; see Ga. S. Res. 153 (H. Comm. Substitute).

31. Lawmakers: Session Day 39, supra note 28.

32. Id.; see Ga. S. Res. 153 (H. Comm. Substitute).

602

John MarshallLaw Journal

[Vol. III

In essence, Representative Setzler explained, this Resolution would allow for citizens in any particular area of a county, which may be growing at a faster rate than other areas of the same county, to tax themselves on a higher level without affecting the remaining county citizens.33 If a local district were to create an E.I.D. under the guidelines of Senate Resolution 153 framework, the local law would be presented before the House and Senate for a unanimous vote by those who represent the concerned districts. 34 Representative Setzler explained that the creation of an E.I.D. would not take away any power already granted to the local school board because the local law may only be effectuated by a vote of those specific school districts.

After Representative Setzler's presentation of the House Committee on Education's proposed Substitute of Senate Resolution 153, he yielded the floor for questions from the House.36 Immediately thereafter, Representative Casas, of the 103rd district, moved that Senate Resolution 153 be recommitted to the House Committee on Rules for further evaluation. Representative Hatfield, of the 177th district, then made a substitute motion that Senate Resolution 153 be tabled. 3 8 Thereupon, the roll call was ordered and the Motion to Table prevailed. 39 The House has taken no further action on Senate Resolution 153.40 Prepared by: Boris Y. Milter

33. Lawmakers: Session Day 39, supra note 28.

34. Id. 35. Id. 36. Id. 37. Id. 38. Id. (noting that the motion to table takes precedent over the motion to recommit).

39. Lawmakers: Session Day 39, supra note 28.

40. S. Res. 153 Status Sheet, supra note 3.

2010 LEGISLATIVE SESSION

HOUSE BILL 927': PUBLIC SCHOOLS DISCIPLINARY TRIBUNALS; BULLYING; EXPAND DEFINITION

Amending O.C.G.A. ยง 20-2-751.4 First Signature: House Representative Mike Jacobs (80th) Co-Sponsors: House Representative Joe Wilkinson (52nd), House Representative Donna Sheldon (105th), House Representative Matt Ramsey (72nd), House Representative Pam Stephenson (92nd), and House Representative Karla Drenner (86th) Summary: House Bill 927 seeks to amend Subpart 2 of Part 2 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated by expanding the definition of "bullying." 2 The Bill also seeks to expand protection over grades K-12, to provide local school systems with the ability to reassign a student committing an act of bullying to another school, and to require the Department of Education to develop a model policy on bullying.3 The Bill further seeks to require that law enforcement be contacted in cases of assault or battery by a student.

Status: Taken From the Table by House on March 16, 20101

1. H.B. 927, 1 50th Gen. Assem., 2d Reg. Sess. (Ga. 2010) (H. Substitute), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb927.pdf (last visited on Mar. 22, 2010).

2. Id. 3. Id. 4. Id.

5. Ga. Gen. Assem., H.B. 927 (Mar. 20, 2010), http://www.legis.ga.gov/legis/2009 10/sum/hb927.htm. [hereinafter H.B. 927 Status Sheet].

John MarshallLaw Journal

604

TEXT OF HOUSE BILL

[Vol. III

927

ยง 1.

It is the intent of the General Assembly that the model policy regarding bullying that is required to be promulgated by the Department of Education under this Act shall be utilized as a resource for the benefit of local school systems and shall not be used as a definition of the exclusive applicable standard of care in any civil or administrative action. ยง2.

Subpart 2 of Part 2 of Article 16 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to public school disciplinary tribunals, is amended by revising Code Section 20-2751.4, relating to policies prohibiting bullying, as follows: "20-2-751.4. (a) As used in this Code section, the term 'bullying' means an act which occurs on school property, on school vehicles, at designated school bus stops, or at school related functions or activities, or by use of data or software that is accessed through a computer, computer system, computer network, or other electronic technologv of a local school system, that is: (1) Any willful attempt or threat to inflict injury on another person, when accompanied by an apparent present ability to do so; or (2) Any intentional display of force such as would give the victim reason to fear or expect immediate bodily harmior (3) Any intentional written, verbal, or physical act, which a reasonable person would perceive as being intended to threaten, harass, or intimidate, that: (A) Causes another person substantial physical harm within the meaning of Code Section 16-5-23.1 or visible bodily harm as such term is defined in Code Section 16-5-23.1; (B) Causes substantial damage to another person's property; (C) Has the effect of substantially interfering with a student's education:

No. 2]

House Bill 927

(D) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or (E) Has the effect of substantially disrupting the orderly operation of the school. (b) No later than August 1, 2011: L1) Each local board of education shall adopt poliies, appliable to students in grades six through 12, that prhibit a policy that prohibits bullying of a student by another student and shall require such prohibition to be included in the student code of conduct for middle-and-high schools in that school system-j (2) Each local Leeal board peleies policy shall require that, upon a finding by the disciplinary hearing officer, panel, or tribunal of school officials provided for in this subpart that a student in grades six through 12 has committed the offense of bullying for the third time in a school year, such student shall be assigned to an alternative schoob; provided, however, that under such rules and procedures provided by law, a school system shall be authorized to assign a student who has committed one or more offenses of bullying to a school outside the student's attendance area, and a school administrator shall be authorized to assign a student who has committed one or more offenses of bullying to another classroom, for the purpose of separating the student from his or her victim (3) Each local board of education shall establish and publish in its local board policy a method to notify the parent, guardian, or other person who has control or charge of a student upon a finding by a school administrator that such student has committed an offense of bullying or is a victim of bullying; and (4) Each local board of education shall ensure that students and parents of students are notified of the prohibition against bullying, and the penalties for violating the prohibition, by posting such information at each middle-and-high school and by including such information in student and parent handbooks. (c) No later than January 1, 2011, the Department of Education shall develop a model policy regarding bullying, that may be revised from time to time. and shall Post such policy on its website

605

606

John MarshallLaw Journal

[Vol. III

in order to assist local school systems. Such model policy shall include: (1) A statement prohibiting bullying; (2) A requirement that any teacher or other school employee who has reliable information that would lead a reasonable person to suspect that someone is a target of bullying shall immediately report it to the school principal: (3) A requirement that each school have a procedure for the school administration to promptly investigate in a timely manner and determine whether bullying has occurred; (4) An age-appropriate range of consequences for bullying which shall include, at minimum and without limitation, disciplinary action or counseling as appropriate under the circumstances; (5) A procedure for a teacher or other school employee, student, parent, guardian, or other person who has control or charge of a student, either anonymously or in such person's name, at such person's option, to report or otherwise provide information on bullying activity: (6) A requirement that a parent, guardian, or other person who has control or charge of a student who is a target of bullying or student who bullies another shall be notified (7) A statement prohibiting retaliation following a report of bullying; and (8) A procedure for disseminating and publishing such policy. (d) The Department of Education shall develop and post on its website a list of entities and their contact information which produce antibullying training programs and materials deemed appropriate by the department for use in local school systems. (e) Any person who reports an incident of bullying in good faith shall be immune from civil liability for any damages caused by such reporting.

(fn Any school system which is not in compliance with the requirements of subsection (b) of this Code section shall be ineligible to receive state funding pursuant to Code Sections 20-2161 and 20-2-260."

No. 2]

House Bill 927

607

ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Mike Jacobs, of the 80th district, introduced House Bill 927 in response to the bullying induced suicide of Jaheem Herrera.6 Jaheem, eleven years old, was a fifth grader at Dunaire Elementary School in Dekalb County, Georgia.'

Masika Bermudez, Jaheem's mother, stated that Jaheem often told her that bullies called him "gay, ugly, and 'the virgin' because he was from the Virgin Islands."' Bermudez made as many as eight complaints to the school about the bullying; however, her complaints failed to prevent the ongoing harassment.9 On April 16, 2009, Bermudez called her son to dinner, but he did not respond.' 0 Bermudez found Jaheem in a closet, hanging by his belt." It was apparent that Jaheem's feelings of desperation drove him to take his life."

In response to this incident, Representative Jacobs introduced House Bill 927 to give school systems, administrators, and teachers a clear and comprehensive definition of bullying."

Equally important to Representative Jacobs is that House Bill 927 also provides parents with more tools to combat bullying of their children.' 4 Currently, O.C.G.A. ยง 20-2-751.4 defines bullying as "(1) Any willful attempt or threat to inflict injury on another person, when accompanied by an apparent present ability to do so; or (2) Any intentional display of force such as would give the victim reason to fear or expect immediate bodily 6. Telephone Interview with Rep. Mike Jacobs, H. Dist. 80 (Feb. 5, 2010) [hereinafter Jacobs Interview].

7. Mallory Simon, My Son 's Last Day on Earth, CNN, Apr. 24, 2009, http://cnn.com/2009/US/04/23/bullying.suicide/.

8. Id. 9. Id. I 0. Id. S1i.Id. 12. Id. 13. Jacobs Interview, supra note 6.

14. Id.

608

John MarshallLaw Journal

[Vol. III

harm." 5 Expounding upon that definition, House Bill 927 clarifies that the act of bullying may take place "on school property, on school vehicles, at designated school bus stops, or at school related functions or activities, or by use of data or software that is accessed through a computer, computer system, computer network, or other electronic technology of a local school system." 6 The Bill further broadens the definition of bullying to include any intentional act, be it written, verbal, or physical that would lead a reasonable person to believe he is being threatened, harassed, or intimidated. 7 House Bill 927 also specifies that such an intentional act must cause either substantial physical harm or visible bodily harm to another; cause substantial damage to another's property; substantially interfere with a student's education; be so severe, persistent, or pervasive as to create an intimidating or threatening educational environment; or substantially disrupt the orderly operation of the school.'

Additionally, House Bill 927 directs local school boards to adopt bullying policies that apply to all schools in the school system and allow school systems to reassign any student found in violation of the bullying policy to a school outside of the Representative Jacobs felt victim's attendance area." compelled to introduce this Bill as a means to provide parents and schools with a more comprehensive definition of bullying and to notify schools of authorized procedures for responding to bullying. 20 Representative Jacobs reports that the major proponents of the Bill include the Dekalb County School District and the Department of Education.2' In 2009, Representative Donna Sheldon, of the 105th district, a co-sponsor of House Bill 927, introduced similar legislation, House Bill 688, during the first session of the 150th General

15. O.C.G.A. ยง 20-2-751.4 (2001).

16. Ga. H.B. 927 (H. Substitute).

17. Id. 18. Id. 19. Id. 20. Jacobs Interview, supra note 6.

21. Id.

House Bill 927

No. 2]

609

Assembly.2 2 House Bill 668 also sought to require local boards of education to separate bullying students from their victims and allow reassignment to alternative schools or schools outside of their zoned attendance area. 23 Additionally, Representative Sheldon introduced the Bill to mandate that boards of education report physical assault or battery to local law enforcement administrations.24 According to Representative Sheldon, although ยง20-2-751.4 dealt with bullying, it allowed bullies to return to the same school as their victims. 25 She also explained that ยง20-2-756(a) allowed schools to delay notifying law enforcement by dealing with bullies on their own terms.26 House Bill 668 would have required school boards to notify law enforcement officials so that justice may be achieved for the victims., As with Representative Jacobs and House Bill 927, Representative Sheldon decided to introduce House Bill 668 because a constituent had been the victim of bullying, and his injuries required reconstructive surgery.2 8 In that incident, the 22.

Ga.

Gen.

Assem.,

H.B.

668

(Mar.

20,

2010),

http://www.legis.state.ga.us/legis/2009-10/sum/hb668.htm [hereinafter H.B. 668 Status Sheet].

23. Telephone Interview with Rep. Donna Sheldon, H. Dist. 105, (Dec. 14, 2009) [hereinafter Sheldon Interview].

24. H.B. 668, 15 0 h Ga. Gen. Assem., Ist Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/hb668.pdf. (last visited Mar. 22, 2010).

25. Sheldon Interview, supra note 23; see also O.C.G.A. ยง20-2-751.4 (2009) ("(b) Local board policies shall require that, upon a finding that a student has committed the offense of bullying for the third time in a school year, such student shall be assigned to an alternative school. Each local board of education shall ensure that students and parents of students are notified of the prohibition against bullying, and the penalties for violating the prohibition, by posting such information at each middle and high school and by including such information in student and parent handbooks.").

26. Sheldon Interview, supra note 23; see also O.C.G.A. ยง20-2-756 (2009) ("(a) The school administration, disciplinary hearing officer, panel, tribunal of school officials, or the local board of education may, when any alleged criminal action by a student occurs, report the incident to the appropriate law enforcement agency or officer for investigation to determine if criminal charges or delinquent proceedings should be initiated.").

27. Sheldon Interview, supra note 23.

28. Id.

610

John MarshallLaw Journal

[Vol. III

school district reassigned the bully to an alternative school for the remainder of the school year.2 9 However, the bully returned to the victim's school the subsequent year.30 Representative Sheldon introduced House Bill 668 to protect victims from the intimidation created by the bullying classmate's presence at school."

Representative Sheldon believes it is particularly important that schools are required to report acts of physical assault or According to battery to law enforcement officials.3 2 Representative Sheldon, mandatory reporting to law enforcement ensures that juvenile courts will handle incidents of violence rather than school resource officers." In her view, mandatory reporting encourages adequate reprimand of the bullying student and potential deterrence from future bullying."

While House Bill 668 did not generate much legislative action," Representative Sheldon has supported House Bill 927 as its co-sponsor. 6 The primary difference between the two Bills is that House Bill 668 focuses on the separation of bullies from their victims and the reporting of bullying incidents to law enforcement.3 7 While encompassing these two goals, House Bill 927 goes further by seeking to expand and clarify the definition of bullying and to require system-wide bullying policies."

29. Id. 30. Id. 31. Id. 32. Id.

33. Sheldon Interview, supra note 23.

34. Id. 35. H.B. 668 Status Sheet, supra note 22 (showing the first reading of the Bill occurring on March 5, 2009, the second reading occurring on March 9, 2009, and no further action on House Bill 668 after that date).

36. H.B. 927 Status Sheet, supra note 5.

37. CompareGa. H.B. 668, with Ga. H.B. 927 (H. Substitute).

38. Ga. H.B. 927 (H. Substitute).

No. 2]1

House Bill 927

611

LEGISLATIVE GENEALOGY

The first reading of House Bill 927 occurred on January 13, 2010.11 The second reading of the Bill occurred on January 14, 2010.40 The Bill was referred to the House Judiciary (NonCivil) Committee, and on February 10, 2010, the Committee proposed a substitute to House Bill 927.41 The Substitute Bill included a deadline of January 1, 2011 for the Department of Education to develop a model policy regarding bullying and post this policy on its website.42 Additionally, the substitute Bill required local school boards to adopt a policy prohibiting bullying which must be included in the student code of conduct for schools in its respective school system.43 Most significantly, the House Judiciary (Non-Civil) Committee removed the original provision of House Bill 927 that required the school administration to notify local law enforcement upon the commission of a physical assault or battery of a student, teacher, or school employee.4 Instead, House Bill 927 now requires that instances of bullying are to be reported to the principal. 45 The school must investigate any reported instance of bullying to determine whether bullying, as defined by the Bill, has occurred.46 If the school administration determines that bullying has occurred, discipline will be selected based on an age appropriate set of consequences ranging from disciplinary action to counseling.47

39. H.B. 927 Status Sheet, supra note 5.

40. Id. 4 1. Id.

42. CompareGa. H.B. 927 (H. Substitute), with Ga. H.B. 927, 15 0 th Gen. Assem., 2d Reg. Sess. (Ga. 2010) (as introduced), available at http://www.legis.ga.gov/legis/2009_1 0/versions/hb927_LC_33_3364_a_2.ht m (last visited Mar. 22, 2010).

43. Compare Ga. H.B. 927 (H. Substitute), with Ga. H.B. 927 (as introduced).

44. Compare Ga. H.B. 927 (H. Substitute), with Ga. H.B. 927 (as introduced).

45. Ga. H.B. 927 (H. Substitute).

46. Id.

47. Id.

612

John MarshallLaw Journal

[Vol. III

On March 11, 2010, House Bill 927 was read for a third time and tabled on the same day.4 8 Although the Bill was taken off the table on March 16, 2010,49 the House Rules Committee voted to present an amended version of House Bill 927 for debate on the House floor as a part of their supplemental calendar on March 26, 2010.o During the debate, the point of contention centered on specific language within the bullying definition: "causing substantial damage to another person's property.""

One representative posed the question, "what would happen if a student broke another student's pencil" to make a point as to the difficulty in determing what "substantial damage" entails.52 Because of the representatives' inability to agree on this language, House Bill 927 did not receive sufficient votes to pass and therefore failed to survive crossover day on March 26, 2010."

Despite the fact that House Bill 927 died in the House, on March 30, 2010, Representative Jacobs offered a substitute to Senate Bill 250 which tacked the language of House Bill 927 onto Senate Bill 250, giving the anti-bullying language new life. 54 The House Substitute removed the section of the bullying

48. H.B. 927 Status Sheet, supra note 5.

49. Id. 50. General Assembly Video Archive: House Rules Committee Part I (Georgia Public Broadcasting internet broadcast Mar. 26, 2010), available at http://mediaml.gpb.org/ga/leg/2010/ga-leg-house-032610_AM.wmv.

51. Interview with Mary Lou Morris, Legislative Aid for House Judiciary Non-Civil Committee, in Atlanta, Ga. (Mar. 31, 2010) [hereinafter Morris Interview]; see also Ga. H.B. 927 (H.Substitute).

52. Morris Interview, supra note 51.

53. Id. 54. Ga. Gen. Assem., S.B. 250 (Apr. 3, 2010), http://www.legis.ga.gov/legis/2009 10/sum/sb250.htm [hereinafter S.B. 250 Status Sheet]. Senate Bill 250, which was sponsored by Sen. Bill Hamrick, would make it unlawful for any person to knowingly and intentionally or recklessly disrupt or interfere with the operation of any public school, public school bus, or public school bus stop as designated by local school boards of education. S.B. 250, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010) (H. Substitute), available at http://www.legis.ga.gov/legis/2009_10/pdf/sb250.pdf (last visited Apr. 3, 2010).

No. 2]

House Bill 92 7

613

definition relating to damage of another person's property. As a result of removing this language,56 the Substitute received the votes necessary to pass out of the House," and the House later passed the amended version of Senate Bill 250 with a vote of 119 to 45." Before Senate Bill 250 with its anti-bullying provision can become law, the Senate must pass the Bill and Governor Sonny Perdue must sign it into law.

Prepared by: Shaun Adams, Lauren East, & Andy Tomlinson

55. Ga. S.B. 250 (H.Substitute).

56. Morris Interview, supra note 51.

57. Id. The House voted 99 to 55 in favor of Reprepresentative Jacobs'anti-bullying Substitute. Id. 58. Id.

SENATE BILL 90': EDUCATION; PROVIDE THE OPTION FOR PARENTS TO ENROLL THEIR CHILD IN ANOTHER SCHOOL WITHIN THE LOCAL SCHOOL SYSTEM OR IN PRIVATE SCHOOL

Amending O.C.G.A.

§§ 20-2-2130

to -2137

First Signature: Senator Eric Johnson (1st) Co-Sponsors: Senator Chip Rogers (21st), Senator Judson Hill (32nd), Senator Renee Unterman (45th), and Senator Dan Moody (56th)

Summary: Senate Bill 90 seeks to amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated to allow funding provided by the State of Georgia for a child's education to be transferable to a school selected by the child's parent.2 The Bill allows parents to use the allocated state funding to transfer their child from one public school to a different public school in the local school system, transfer their child to a different public school system, or transfer their child to a private school through the use of "vouchers."3 The Bill conditions the vouchers upon the child's acceptance to the elected public or private school and

1. S.B. 90, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/legis/2009_10/pdf/sb9O.pdf (last visited Mar. 22, 2010).

2. Id.

3. The idea of school "vouchers" or allowing a parent a "choice" on education for her child is not new in the State of Georgia. Following the United States Supreme Court's decision in Brown v. Bd. of Educ. of Topeka, 348 U.S. 886 (1954), the State of Georgia responded by authorizing financial assistance through "vouchers" to parents who chose to enroll their children in private, segregated schools. See GABRIEL CHIN & ROGER HARTLEY, JIM CROW STUDY GROUP, LAW, CRIMINAL JUSTICE, AND SECURITY PROGRAM, UNIv. OF ARIZ., STILL ON THE BOOKS: JIM CROW AND FIFTY YEARS AFTER BROWN v. BOARD OF EDUCATION 13 (Feb. 23, 2004), available at However, http://www.uchastings.edu/racism-race/docs/JimCrowReport.pdf that law has since been repealed. O.C.G.A. § 20-2-642 (1954) (repealed).

John MarshallLaw Journal

616

[Vol. III

leaves parents responsible for transporting their child to that school.'

Status: Senate Recommitted on January 11, 2010 TEXT OF SENATE BILL

90

ยง 1.

Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, is amended by adding a new article to read as follows: "ARTICLE 34 20-2-2130.

As used in this article, the term: (1) 'Board' means the State Board of Education.

(2) 'Department' means the Department of Education.

(3) 'Parent or guardian' means a biological parent, legal guardian, custodian, or other person with legal authority to act on behalf of a child.

(4) 'Participating school' means a private school that has notified the department of its intention to participate in the program and that complies with the department's requirements.

(5) 'Prior school year in attendance' means that the student was enrolled and reported by a public school system or school systems for funding purposes during the preceding October and March fulltime equivalent (FTE) program counts in accordance with Code Section 20-2-160.

(6) 'Private school' means a nonpublic school, sectarian or nonsectarian, which is accredited or in the process of becoming accredited by one or more of the entities listed in subparagraph (A) of paragraph(6) of Code Section 20-3-519.

4. Ga. S.B. 90.

2010), 20, (Mar. 90 S.B. Assem., Gen. 5. Ga. http://www.legis.ga.gov/legis/2009_10/sum/sb90.htm [hereinafter S.B. 90 Status Sheet].

No. 2]

Senate Bill 90

(7) 'Program' means the scholarship program established pursuant to this article.

(8) 'Resident school system' means the public school system in which the student would be enrolled based on his or her residence.

(9) 'Scholarship' means a scholarship awarded pursuant to this article.

(10) 'Scholarship student' means a student who receives a scholarship pursuant to this article.

20-2-2131. (a) Any parent of a student in a public school in this state may: (1) Request a transfer for the student to attend another public school within the resident school system. It shall be in the sole discretion of the school, in accordance with an annual policy established by the school council, to accept students pursuant to this paragraph. If the parent chooses this option, then the parent shall be responsible for transportation to and from such school.

The parent of a student transferring to another school pursuant to this paragraph shall be required to sign a contract with the receiving school agreeing that the parent and student will abide by all school rules and procedures and that the violation of any such rules or procedures may result in being removed from the school.

If accepted, and unless there is a contract violation, the student may attend such public school pursuant to this paragraph until the student completes all grades of the school, graduates, or reaches the age of 20, whichever occurs first: (2) Request a transfer for the student to attend a public school outside of the student's resident school system. It shall be in the sole discretion of the local board of education, with input from the school council of the desired school, to accept students pursuant to this paragraph. If the parent chooses this option, then the parent shall be responsible for transportation to and from such school.

The parent of a student transferring to another school pursuant to this paragraph shall be required to sign a contract with the receiving school agreeing that the parent and student will abide by all school rules and procedures and that the violation of any such rules or procedures may result in being removed from the school.

If the school accepts the student, such system shall report the student for purposes of funding to the department. The department

617

618

John MarshallLaw Journal

[Vol. III

shall pay to each receiving school through appropriation of state and federal funds an amount equal to the sum of: (A) QBE formula earnings, QBE grants, and federal grants earned by the school based on the school's enrollment, school profile, and student characteristics. QBE formula earnings shall include the salary portion of direct instructional costs, the adjustment for training and experience, the nonsalary portion of direct instructional costs, and eamings for psychologists and school social workers, school administration, facility maintenance and operation, media centers, additional days of instruction in accordance with Code Section 20-2-184.1, and staff development; (B) A proportional share of state categorical grants, non-QBE state grants, state equalization grants, and all other state and federal grants: and (C) An amount determined by the department for each student enrolled in such school equal to a proportional share of local revenue from the local school system in which the student attending the school resides: The total allotment of state and federal funds to the resident school system of a student attending another school pursuant to this paragraph shall be calculated as otherwise provided in Article 6 of this chapter with an ensuing reduction equivalent to the amount of state and federal funds appropriated to the receiving school pursuant to this paragraph: or (3) Request and receive from the department a scholarship for the student to enroll in and attend a participating school in accordance with Code Section 20-2-2132. (b) Each local school system shall annually notify prior to the beginning of each school year the parents of each student by letter, electronic means, or by such other reasonable means in a timely manner of the options available to the parent under this article.

20-2-2132. (a) A student shall qualify for a scholarship under this article if: (1) The student's parent currently resides within Georgia and has been a Georgia resident for at least one year (2) The student has spent the prior school year in attendance at a Georgia public school;

No. 2]

Senate Bill 90

(3) The parent obtains acceptance for admission of the student to a participating school: and (4) The parent submits an application for a scholarship to the department no later than the deadline established by the department. (b) Upon acceptance of the scholarship, the parent assumes full financial responsibility for the education of the scholarship student, including transportation to and from the participating school. (c) For a student who participates in the program whose parent requests that the student take the state-wide assessments pursuant to Code Section 20-2-281, the resident school system shall make available to the student locations and times to take all state-wide assessments. Test scores of private school students participating in the state-wide assessments shall not be applied to the system averages of the resident school system for data reported for federal and state requirements. (d) Students enrolled in a school operated by the Department of Juvenile Justice are not eligible for the scholarship. (e) The scholarship shall remain in force until the student returns to his or her assigned school in the resident public school system, graduates from high school, or reaches the age of 20, whichever occurs first. However, at any time, the student's parent may remove the student from the participating school and place the student in another participating school or public school as provided for in Code Section 20-2-2131. (f) The creation of the program or the granting of a scholarship pursuant to this article shall not be construed to imply that a public school did not provide an adequate education for a student or constitute a waiver or admission by the state. (g) Any scholarship directed to a participating school is so directed wholly as a result of the genuine and independent private choice of the parent. (h) The parent of each student participating in the scholarship program shall comply fully with the participating school's rules and policies. (i) Any parent who fails to comply with the provisions of this article and department regulations relating to the scholarship shall forfeit the scholarship.

619

John MarshallLaw Journal

620

[Vol. III

20-2-2133. (a) To be eligible to enroll a scholarship student, a participating school shall: (1) Have a physical location in Georgia where the scholarship students attend classes and have direct contact with the school's teachers; (2) Demonstrate fiscal soundness by having been in operation for one school year or by submitting a financial information report for the school that complies with uniform financial accounting standards established by the department and conducted by a certified public accountant. The report must confirm that the school desiring to participate is insured and the owner or owners have sufficient capital or credit to operate the school for the upcoming school year serving the number of students anticipated with expected revenues from tuition and other sources that may be reasonably expected. The report shall be limited in scope to those records that are necessary for the department to make a determination on fiscal soundness and to make payments to schools for scholarships; (3) Comply with the antidiscrimination provisions of 42 U.S.C. Section 2000d; (4) Comply with all health and safety laws or codes that apply to private schools; (5) Comply with all provisions of Code Section 20-2-690 and any other state law applicable to private schools: (6) Regularly report to the parent and the department on the student's academic progress, including the results of pre-academic assessments and post-academic assessments given to the student, in accordance with department guidelines; and (7) Employ or contract with teachers who hold a bachelor's degree or higher degree or have at least three years of experience in education and annually provide to the parents the relevant credentials of the teachers who will be teaching their students. (b) A home school operating under the provisions of Code Section 20-2-690 shall not be eligible to enroll scholarship students. (c) Residential treatment facilities licensed or approved by the state shall not be eligible to enroll scholarship students.

No. 2]

Senate Bill 90

(d) The creation of the program shall not be construed to expand the regulatory authority of the state, its officers, or any local school system to impose any additional regulation of nonpublic schools beyond those reasonably necessary to enforce the requirements of this article. (e) A participating school intending to enroll scholarship students shall submit an application to the department by a date determined by the department preceding the school year in which it intends to enroll scholarship students. The notice shall specify the grade levels that the school has available for students who are participating in the scholarship program. A school intending to enroll scholarship students in the 2009-2010 school year shall submit an application no later than June 30, 2009. (f) The board shall approve a participating school's application to enroll scholarship students if the school meets the eligibility requirements of this article and complies with board rules established pursuant to Code Section 20-2-2117. The board shall make available to local school systems and the public a list of participating schools.

(g) The board may bar a school from participation in the program if it determines that the school has intentionally and substantially misrepresented information or failed to refund to the state any scholarship overpayments in a timely manner.

20-2-2134. (a) The amount of the scholarship provided pursuant to this article shall be the lesser of: (1) The costs of the educational program that would have been provided for the student in the resident school system as calculated under Code Section 20-2-161, which shall not include any federal or local funds; or (2) The amount of the participating school's tuition and fees, including any assessment fee required by the participating school. (b) Scholarship students shall be counted in the enrollment of their resident school system, provided, however, that this count shall only be for purposes of determining the amount of the scholarship and the scholarship students shall not be included as enrolled for purposes of state or federal accountability requirements, including, but not limited to, the federal Elementary and Secondary Education Act, as amended by the No Child Left Behind Act of 2001 (P.L.

621

622

John MarshallLaw Journal

[Vol. III

107-110). The funds needed to provide a scholarship shall be subtracted from the allotment payable to the resident school system. (c) Each local school system shall submit quarterly reports to the department on dates established by the department stating the number of scholarship students in the resident school system.

Following each notification, the department shall transfer from the state allotment to each school system the amount calculated under Code Section 20-2-161 to a separate account for the scholarship program for quarterly disbursement to the parents of scholarship students. When a student enters the program, the department must receive all documentation required for the student's participation, including the participating school's and student's fee schedules at least 30 days before the first quarterly scholarship payment is made for the student. The department shall not make any retroactive payments. (d) Upon proper documentation received by the department, the department shall make quarterly scholarship payments to the parents of scholarship students on dates established by the department during each academic year in which the scholarship is in force. The initial payment shall be made upon evidence of admission to the participating school, and subsequent payments shall be made on evidence of continued enrollment and attendance at the participating school. (e) Payment to the parents shall be made by individual warrant made payable to the student's parent and mailed by the department to the participating school of the parent's choice, and the parent shall restrictively endorse the warrant to the participating school for deposit into the account of such school. (f) A person, on behalf of a participating school, shall not accept a power of attorney from a parent to sign a warrant, and a parent of a scholarship student shall not give a power of attorney designating a person, on behalf of a participating school, as the parent's attorney in fact.

(g) If the participating school requires partial payment of tuition prior to the start of the academic year to reserve space for students admitted to the school, that partial payment may be paid by the department prior to the first quarterly payment of the year in which the scholarship is awarded, up to a maximum of $1,000.00, and deducted from subsequent scholarship payments. If a student decides not to attend the participating school, the partial

No. 2]

Senate Bill 90

reservation payment must be returned to the department by such school. Only one reservation payment per student may be made per year.

20-2-2135.

The board shall adopt rules to administer the program regarding eligibility and participation of participating schools, including, but not limited to, timelines that will maximize student and public and private school participation, the calculation and distribution of scholarships to eligible students and participating schools, and the application and approval procedures for eligible students and participating schools. The department shall develop and utilize a compliance form for completion by participating schools. The department shall be authorized to require any pertinent information as it deems necessary from participating schools for the purpose of implementing the program. Participating schools shall be required to complete such forms and certify their accuracy.

20-2-2136.

No liability shall arise on the part of the department, the board, or the state or of any local board of education based on the award or use of a scholarship awarded pursuant to this article.

20-2-2137.

The Office of Student Achievement, in conjunction with the department, shall provide the General Assembly not later than December I of each year with a report regarding the scholarship program for the previous fiscal year. The report shall include, but not be limited to, numbers and demographics of students participating and numbers of participating schools. Such report shall also be posted on the Office of Student Achievement's website." ยง2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to the 2009-2010 school year and all school years thereafter. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

623

624

John MarshallLaw Journal

[Vol. III

FIRST SIGNATURE'S RATIONALE

Senator Eric Johnson, of the 1st district, believes that the education system is failing the students in the State of Georgia.

He believes that for Georgia students to be competitive on a national and international scale, education should be School individualized to each particular student's needs.' vouchers are one way to allow students an opportunity to obtain an individualized education because it forces local school systems to become competitive and offer students quality education.' Senator Johnson cites the HOPE Scholarship as one example of competitive practices forcing schools to adopt and provide a quality education.' In particular, students are able to use their HOPE Scholarship funds to "shop around" for a college that meets their individual needs, fostering competition among post-secondary educational institutions. 0 Senator Johnson points to wide and popular support for the Georgia Special Needs Scholarship Act, a school vouchers program for special needs children, to bolster his campaign for statewide school vouchers for all public school children as proposed in Senate Bill 90.11 In his mind, if children designated as "special needs" students can obtain vouchers to attend private school, then school choice should be allowable for parents of all children educated in the State of Georgia.12 Essentially, Senate Bill 90 allows parents to redirect state allocated per pupil funds

6. Sen. Eric Johnson, Remarks on S.B. 90, available at http://www.youtube.com/watch?v-rlNfznYl2Bw (last visited Mar. 22, 2010) (stating that the State of Georgia ranked 3 3rd in the nation in education).

7. Id. 8. Id. 9. Id. 10. Id. 11. O.C.G.A ยง 20-2-2110 to -2118 (2007). Also known as Senate Bill 10, the Special Needs Scholarship Act allows parents of special needs children meeting certain criteria to fund private school education by reallocating state funds from the public school system to the private school of the parent's choice. Id. 12. Telephone Interview with Melanie Stockwell, Chief of Staff to Sen. Eric Johnson, Sen. Dist. 1 (Jan. 11, 2010) [hereinafter Stockwell Interview].

No. 2]

Senate Bill 90

625

to a participating public or private school of their choice, so long as the chosen school accepts the child."

Senator Johnson understood that school vouchers were The Georgia controversial and would be contested.14 Association of Educators ("G.A.E.") immediately voiced their Specifically, the objection to the proposed legislation." it was a "fourthat President of G.A.E., Jeff Hubbard, opined for private bailout" hundred-twenty-five-million-dollar schools.16 Recognizing the concerns about the impact that a reallocation of state funds may have on public school systems, Senator Johnson proposed a limitation that only children currently attending public schools could receive a voucher. 7 Further, the proposed Bill does not impact funding at the local level." In particular, revenue raised through local sales and property taxes would not be affected and the local school systems would continue to utilize those funds.19 LEGISLATIVE GENEALOGY

Senate Bill 90 was read and referred in the Senate on February 3, 2009.20 Senator Johnson presented Senate Bill 90 to the Senate Committee on Education and Youth on February 18, 2009.21 During this Committee hearing, Senator Tate, of the 38th district, expressed his belief that the citizens should decide whether the vouchers program proposed by Senate Bill 90 is

13. Walter C. Jones, Senator Promotes Voucher Bill; Measure Covers All Georgia Students, THE ATHENs BANNER-HERALD (Feb. 3, 2009), available at http://www.onlineathens.com/stories/020309/gen_384130556.shtml.

14. Id. 15. Id. 16. Id. 17. Id. 18. Stockwell Interview, supra note 12.

19. Id.

20. S.B. 90 Status Sheet, supra note 5.

21. ParentalSchool Choice Options: Hearing on S.B. 90 Before the S. Comm. on Educ. & Youth, 150th Gen. Assem., 1st Reg. Sess. 14 (Ga. Feb. at available 2009), 18, http://www.legis.ga.gov/legis/2009_10/senate/publications/09minutes/educat ionandyouth.pdf (last visited Mar. 22, 2010) [hereinafter Hearing on S.B. 90].

John MarshallLaw Journal

626

[Vol. III

appropriate for Georgia.2 2 Senator Buckner, of the 44th district, and Senator Sims, of 12th district, both expressed concerns about the Bill. 23 The Committee also heard from Senator Brown, of the 26th district; Jeff Hubbard, President of G.A.E.; Kisa Clark, of the League of Women Voters; Kem Hulsey, of the Georgia PTA; and Margaret Ciccarelli, of the Professional Association of Georgia Educators, all of whom testified against Senate Bill 90.24 Kelly McCutchen, of the Georgia Public Policy Foundation, and Andrew O'Brian, a parent from Cobb County, spoke in favor of the Bill.25 Ultimately, the Committee did not vote on Senate Bill 90 at the February 18, 2009 meeting, but Committee Chairman Dan Weber, of the 40th district, indicated that the Committee would take up the Bill at another meeting.2 6 As promised, the Senate Committee on Education and Youth again discussed Senate Bill 90 on February 25, 2009. 27 At this meeting, the Committee heard testimony favoring the Bill from twelve parents and two school representatives, as well as Diane Starkovich, of the Archdiocese of Atlanta; Andy Lord, of the Alliance for School Choice; and Robert Enlow, of the Friedman Foundation. 28 Also, Patricia Levesque, of the Foundation for Excellence in Education, presented to the Committee slides and handouts in support of Senate Bill 90.29 Speakers in opposition of the Bill included two parents and four school board representatives, as well as Elisha Hammond, of the American Civil Liberties Union; Andrew Broy of the Georgia Department of Education; and Peter Islem, of the Mexican American Association.

30

22. Id.

23. Id. 24. Id. 25. Id. 26. Id. 27. Hearing on S.B. 90, supra note 21, at 18; Lawmakers: Day 23 (Ga. Pub. Broadcasting television broadcast Feb. 25, 2009) available at http://www.gpb.org/lawmakers-tv/2009/02/25 (last visited Mar. 22, 2010).

28. Hearingon S.B. 90, supra note 21, at 18; Lawmakers: Day 23, supra note 27.

29. Hearingon S.B. 90, supra note 21, at 18; Lawmakers: Day 23, supra note 27.

30. Hearingon S.B. 90, supra note 21, at 18; Lawmakers: Day 23, supra note 27.

No. 2]

Senate Bill 90

627

At the close of the discussion, Senator Don Thomas, of the 54th district, moved to pass Senate Bill 90, and Senator Dan Moody, of the 56th district, seconded the motion. 3 ' The Bill passed the Committee by a vote of seven to four, and the Committee favorably reported on the Bill to the Senate on February 26, 2009.32 Senate Bill 90 was read on the Senate floor for the second time on March 3, 2009. While no further action occurred on the Bill in the 2009 legislative session, the Senate recommitted the Bill on January 11, 2010.34 However, Senate Bill 90 received no attention and died after failing to pass the Senate before crossover day on March 26, 2010.35 Prepared by: Rebecca W McLaws

31.

32.

33.

34.

35.

Hearingon S.B. 90, supra note 21, at 19.

Hearingon S.B. 90, supra note 21; S.B. Status Sheet, supra note 5.

S.B. 90 Status Sheet, supra note 5.

Id. Id.