When the Georgia State Board of Education grants a state charter under the 2000 Charter Schools Act amendment over a local school board's refusal, do the same funding and oversight rules that apply to locally approved charter schools apply to the state charter school?

Plain-English summary

The Charter Schools Act of 1998 originally required a three-party charter contract among the petitioner, the local board of education, and the State Board of Education. That meant local boards could veto charter petitions by refusing to participate. In 2000, the General Assembly amended the Act with a new subsection (d) of O.C.G.A. § 20-2-2064, authorizing the State Board to grant a state charter (under the constitutional "special schools" clause at Art. VIII, Sec. V, Para. VII) when a petition met statutory requirements but the local board had refused. The amendment created an unspoken question: do all the existing charter school provisions (local management, local funding, no-less-favorable treatment, federal/state grant access) apply to a state charter school, or did the new path leave the state charter school in a statutory void? The State School Superintendent asked the AG. The AG said the existing provisions apply. State charter schools are subject to local-board control and management. Local boards must treat them no less favorably than other district schools and must supply local funding (subject to a referendum requirement for any new tax levy or bonded indebtedness). State charter schools are entitled to federal and state grants on the same conditions as other charter schools. The State Board has constitutional authority to set regulations for the operation of state charter schools.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The Charter Schools Act of 1998 was Georgia's first systematic charter school framework. It used a three-party contract structure, which required the local board's approval before a petition could be presented to the State Board. This gave local boards an effective veto. Charter advocates pushed back, arguing that meritorious petitions were being killed at the local level for political or institutional-protection reasons. The 2000 amendment to § 20-2-2064(d) was the legislature's response, creating an alternative path through the State Board under the constitutional "special schools" clause.

The constitutional clause at Art. VIII, Sec. V, Para. VII(a) authorizes the General Assembly to "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." Special schools must operate "in conformity with regulations of the State Board of Education pursuant to provisions of law." The clause was the constitutional basis for letting the State Board authorize a charter without local-board participation.

The interpretive problem the AG faced was that the 2000 amendment created the new state-charter path without explicitly saying whether the existing operational provisions of the Charter Schools Act (local management under O.C.G.A. § 20-2-2065(a)(2), funding allotments under § 20-2-2068(d), no-less-favorable treatment under § 20-2-2068, the still-unchanged definition of charter as a contract among "state board, a local board of education, and a charter petitioner" in § 20-2-2062(1)) carried over to state charter schools.

Reading the Act in isolation, the local-board references seemed to require local-board involvement, which would not exist in a state-charter scenario. But reading the Act without those provisions left state charter schools in a statutory vacuum with no funding mechanism, no oversight structure, and no operational rules. The AG resolved this by applying standard statutory-construction principles: avoid surplusage, harmonize, and presume the legislature acted with knowledge of existing law. The General Assembly was presumed to have known about the existing charter school operational provisions when it created the new state-charter path, and the most sensible reading was that the existing provisions still apply.

The structural answer the AG gave was: state charter schools are subject to local-board control and management. The local board must treat the state charter no less favorably than other schools in the district. Local funding flows through the local board, with the constitutional referendum requirement for any new tax levy or bonded indebtedness. State charter schools qualify for federal and state grants on the same conditions as other charter schools. The State Board has the constitutional authority under the special schools clause to promulgate regulations governing state charter schools, and local boards must comply.

The AG was careful to note that the State Board's special-schools authority was a coordinate constitutional power, capable of overriding the local board's normal management authority where the General Assembly had so provided. So the legislature could authorize the State Board to set additional requirements specific to state charter schools, even where those requirements went beyond what local boards would normally impose.

For the State Board of Education at the time

When granting a state charter under § 20-2-2064(d), the State Board was operating under the special-schools clause and could set additional regulations as needed. The local board, despite having refused the original petition, would still have control and management responsibilities for the resulting state charter school.

For local boards of education at the time

A local board that refused a charter petition could still be required to integrate the resulting state charter school into the district. The local board had to treat the state charter no less favorably than other district schools and supply local funding through the normal mechanism.

For charter school petitioners at the time

The 2000 amendment created a real alternative pathway. A petition that met the statutory requirements but was rejected by the local board could now be approved by the State Board under § 20-2-2064(d). The AG opinion confirmed that the resulting state charter school had access to the same funding streams (local, state, federal) as locally approved charter schools.

Common questions

Q: What is a "special school" under the Georgia Constitution?
A: A school created under Art. VIII, Sec. V, Para. VII, which authorizes the General Assembly to provide for special schools in "such areas as may require them." Special schools operate under State Board regulations and may have local-board participation on terms set by the legislature. The constitutional clause was the basis for the new state-charter authority.

Q: Did this opinion give the State Board the power to override local boards generally?
A: No. It interpreted a specific statutory grant of authority (the 2000 amendment to § 20-2-2064(d)) and a coordinate constitutional clause (the special schools provision). The opinion did not expand the State Board's general authority over local school operations.

Q: What if the local board refuses to comply with state-charter requirements?
A: The AG's opinion concluded that local boards "must comply" with State Board regulations governing state charter schools. Practical enforcement would presumably involve the same mechanisms available for other state-board mandates on local boards.

Q: Why did the AG read all the existing charter provisions to apply to state charters?
A: To avoid leaving state charter schools without an operational framework, and to honor the presumption that the legislature knew the existing law when it amended it. The "golden rule" of construction (TelecomUSA v. Collins*) supported a literal reading of the existing provisions unless that would produce absurdity, and applying them to state charters did not produce absurdity.

Background and statutory framework

The Charter Schools Act of 1998 (codified at O.C.G.A. §§ 20-2-2060 through 20-2-2071) was the statutory backbone for Georgia's charter school program. Petitions had to include detailed elements (curriculum, governance, parent/community involvement, etc.) and required local board approval before going to the State Board. The 2000 amendment opened the State Board path for petitions that met statutory requirements but were rejected by local boards.

The constitutional special schools clause is the structural fallback. It authorizes the General Assembly to create special schools and to set the terms of local board participation. The clause has been used historically for various non-traditional school structures and provided the constitutional anchor for state charter schools.

The funding mechanism is layered. State funds flow on the basis of FTE (full-time equivalent) calculations under O.C.G.A. § 20-2-160(b) and related provisions. Federal grants like special education under 20 U.S.C. § 1411 flow on federal-program rules. Local funding flows from local property taxes and other local revenue. The "no less favorable" rule in § 20-2-2068(d) prevents local boards from systematically underfunding charter schools relative to other district schools.

Citations and references

Constitutional and statutory:
- Ga. Const., Art. VIII, Sec. V, Paras. I, II, VII (school governance and special schools)
- O.C.G.A. §§ 20-2-2060 through 20-2-2071 (Charter Schools Act)
- O.C.G.A. § 20-2-160(b) (FTE)
- 20 U.S.C. § 1411 (federal special education)

Cases:
- State v. Davis, 246 Ga. 761 (1980) (legislature presumed aware of existing law)
- TelecomUSA v. Collins, 260 Ga. 362 (1990) (golden rule of construction)
- Porter v. Food Giant, Inc.*, 198 Ga. App. 736 (1991) (cannot read out parts of statute as surplusage)

Prior AG opinions:
- 1997 Op. Att'y Gen. U97-8 (charter schools background)
- 1998 Op. Att'y Gen. U98-2 (special schools)

Source

• Landing page: https://law.georgia.gov/opinions/2001-9

Original opinion text

You have asked a number of questions about charter schools created by a charter contract between the State Board of Education (hereinafter "State Board") and the charter petitioner. The questions arise out of an amendment to the Charter Schools Act of 1998, O.C.G.A. §§ 20-2-2060 through -2071, that allows the State Board to grant a state charter in cases in which the local board of education has refused to approve the charter petition. See O.C.G.A. § 20-2-2064(d) (amended by 2000 Ga. Laws 618, 720-21). GENERAL DISCUSSION The Charter Schools Act of 1998 originally provided for a three party contract between the charter petitioner, the local board of education, and the State Board. 1998 Ga. Laws 1080, 1084-85 (amended by 2000 Ga. Laws 618, 720-21). As stated in 1997 Op. Att'y Gen. U97-8, "[c]harter schools are authorized by O.C.G.A. § 20-2-255 to 'provide a means whereby local schools may choose to substitute a binding . . . performance based contract approved by both state and local boards of education' for rules, regulations, policies and state statutes. The proposal is brought by the local school system to the State Board through the mechanism of a petition which must include several components, including a 'proposal to directly and substantially involve the parents of students enrolled in the school as well as the faculty, instructional staff, and the broader community in the process of creating the petition and in carrying out the terms of the charter.' O.C.G.A § 20-2-255(d)(4)." Id. at 125. The statutory framework in 1998 was such that a local school board's approval was necessary before the petition could even be presented to the State Board of Education. See O.C.G.A. § 20-2-2064. Then, in 2000, the General Assembly added subsection (d), apparently to address the problem of local systems' refusing to approve charters even when they met the criteria set out in the Act. Subsection (d) authorizes the State Board, pursuant to the constitutional authority to create special schools, to grant a state charter when a petition meets the statutory requirements of O.C.G.A. § 20-2-2063 and is in the public interest. O.C.G.A. § 20-2-2064(d); GA. CONST. Art. VIII, Sec. V, Para. VII; see also 1998 Op. Att'y Gen. U98-2. At the outset it is instructive to examine the actual language of the constitutional provision for a "special school." The General Assembly may provide by law for the creation of special schools in such areas as may require them and may provide for the participation of local boards of education in the establishment of such schools under such terms and conditions as it may provide; but no bonded indebtedness may be incurred nor a school tax levied for the support of special schools without the approval of a majority of the qualified voters voting thereon in each of the systems affected. Any special schools shall be operated in conformity with regulations of the State Board of Education pursuant to provisions of law. The state is authorized to expend funds for the support and maintenance of special schools in such amount and manner as may be provided by law. GA. CONST., Art. VIII, Sec. V, Para. VII(a). In the 2000 amendment, the General Assembly acted pursuant to the above authority and authorized the State Board of Education to create a special charter school. However, the amendment to the Act did not create any new provisions for the management of this new kind of school nor did it specifically state that all of the existing charter school provisions apply to the new schools. For instance, the Act still provides that a charter is "an academic or vocational performance based contract . . . between the state board, a local board of education, and a charter petitioner." See O.C.G.A. § 20-2-2062(1) (emphasis added). It could be argued that since the local board has refused to approve the charter it should not be a party to the charter contract when subsection (d) is invoked. However, if the Act is interpreted to "read out"1 any involvement of the local board in the operation of the new charter schools, there is no statutory provision for the mechanics of funding and oversight of the state charter school. Charter schools that have been approved by the local board are governed by O.C.G.A. §§ 20-2-2065(a)(2) (control by local school board) and 20-2-2068(d) (allotment of state grants). Furthermore, such an interpretation would require that other statutory provisions for charter schools be ignored. See, e.g., O.C.G.A. § 20-2-2063(5) (petition must provide for control and management by the local school board). Because of those difficulties, I have concluded that the General Assembly intended that the state charter schools be governed by the same statutory provisions as charter schools that were approved by the local school boards. In arriving at the meaning of an ambiguous statute, there are several rules of statutory construction that may be used. First, the intent of the legislature must be ascertained, "keeping in view at all times the old law, the evil, and the remedy." O.C.G.A. § 1-3-1(a). In the absence of any legislative history or other method of determining intent, certain presumptions are utilized as appropriate. One of those presumptions is that the legislature was aware of the state of the law at the time it enacted the legislation in question. See State v. Davis, 246 Ga. 761 (1980). In this case, the legislature is presumed to have had in mind the existing scheme for funding and oversight of charter schools in general and the interpretation of that statute in 1997 Op. Att'y Gen. U97-8. That opinion concluded that it was possible for the General Assembly to create a charter school without the approval of the local board of education by creating a "special school" pursuant to Art. VIII, Sec. V, Para. VII of the Georgia Constitution. The legislature is also presumed to be aware of the constitutional authority of local boards of education. See GA. CONST. Art. VIII, Sec. V, Paras. I and II.2 With all of these things in mind and intending to correct the problem of a meritorious charter petition that was nevertheless not approved by the local board, the General Assembly may have reasonably concluded that the pre-existing charter school provisions, such as having the local school system oversee the charter school, apply to state charter schools authorized by the State Board of Education pursuant to subsection (d) of O.C.G.A. § 20-2-2064. Reinforcing that conclusion is the "golden rule" of statutory construction, requiring a court to "follow the literal language of the statute 'unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.'" Telecom*USA v. Collins, 260 Ga. 362, 363 (1990), quoting Department of Transp. v. City of Atlanta, 255 Ga. 124, 137 (1985) (Clarke, J., concurring). It does not produce an "absurdity" to give meaning to all the terms of the statute and apply the existing provisions of the Charter School Act to the state charter schools. There may be some limited circumstances in which too literal an adherence to this principle might produce an absurdity. For instance, in O.C.G.A. § 20-2-2061(1) the intention of the General Assembly is stated as providing a means for substituting a "performance based contract approved by both state and local boards of education" for state and local rules. Obviously state charter schools will not be approved by a local school board. Instead that intent could be read to include, as a substitute for local approval, the mechanism added by subsection (d) for state approval of meritorious charter petitions. See O.C.G.A. § 20-2-2064(d). Based on the above general discussion I have concluded that state charter schools are subject to the control and management of local boards. The local school board must treat the state charter no less favorably than the other schools in the district and local school boards must supply local funding except that if a tax levy or bonded indebtedness is required for that funding, it must be approved by a local referendum. In addition, the state charter schools are entitled to federal and state grants on the same conditions as other charter schools. The State Board has been given the power in the Georgia Constitution to promulgate regulations regarding the operation of state charter schools and local boards of education would have to comply. 1. Are state charter schools subject to the management and control of the local board of education pursuant to Art. VIII, Sec. V, Para. II of the Georgia Constitution? If not, does their creation violate the prohibition against the formation of new independent school systems in Art. VIII, Sec. V, Para. I of the Georgia Constitution? As discussed above, the Act's provisions regarding the operation and funding of charter schools should be construed to apply to state charters as well. Thus, the state charter schools are subject to the control and management of the local board of education as the Act requires in O.C.G.A. §§ 20-2-2065 and 20-2-2063(5). 2. What funds or funding schemes are the state charters granted by subparagraph (d) entitled to? Do they receive state FTE3 funds and other state grant funds, federal funds, and local funds? If they are entitled to these funds, are the funds to be administered through the local board of education where the charter is located or in some other manner? Since the state charters have the benefits of the same statutory provisions as the local charters, they have the same funding schemes as the local charters do. For instance, state charter schools could qualify for special education funding from the federal government pursuant to 20 U.S.C. § 1411 and for various state grants pursuant to O.C.G.A. § 20-2-2068(d). 3. Are the state charters to be treated "no less favorably" than other local schools as set forth in O.C.G.A. § 20-2-2068? If so, does this include the provision of local funds? Since all of the existing charter school statutes apply to state charters, O.C.G.A. § 20-2-2068(d) applies and the local system is obliged to treat the state charter school "no less favorably than other local schools located within the applicable school system." Id. 4. Must any state charter granted under the provisions of O.C.G.A. § 20-2-2064(d)(1) meet the same requirements and definitions of other charter schools that are set forth in the Charter Schools Act? Can the state board mandate additional requirements for these state charters? Yes, the state charter must meet the same requirements and definitions as other charter schools in the Charter Schools Act. The local board has constitutional authority to manage and control schools within its system but its authority is limited by the constitutional provision for special schools allowing the General Assembly to "provide for the participation of local boards of education in the establishment of [special] schools under such terms and conditions as it may provide." See GA. CONST., Art. VIII, Sec. V. Para. VII. Therefore, the General Assembly may invade the constitutional province of the local school board under the aegis of a coordinate constitutional provision. Prepared by: KATHRYN L. ALLEN Senior Assistant Attorney General 1 "It is contrary to the generally accepted principles for construing statutes to 'read out' any part of the statute as 'mere surplusage' unless there is a clear reason for doing so." Porter v. Food Giant, Inc., 198 Ga. App. 736, 738 (1991). 2 This presumption is confirmed by explicit reference to the "control and management" of the local board of education as a required element of the charter petition in O.C.G.A. § 20-2-2063(5). Those exact words are used to describe the authority of a local board over its school system in Art. VIII, Sec. V, Para. II of the Georgia Constitution. 3 "Full-time equivalent." See O.C.G.A. § 20-2-160(b).