Five plaintiffs brought the suit against all of Georgia's 180 local school districts over some officials' actions regarding a Nov. 6 referendum that would grant the state more power to select private operators for independent public schools. But in an initial hearing, Atlanta attorney Glenn Delk rolled back his arguments to Fulton and Gwinnett counties.
Superior Court Judge Wendy Shoob declined to issue a preliminary injunction blocking the Fulton County system from publishing an online Q&A about the referendum. She declined to rule on anything concerning Gwinnett County, telling the plaintiffs to take up their complaint in a Gwinnett court, where a second lawsuit has already been filed by different plaintiffs.
The Fulton case still could go to trial, and the Gwinnett case has yet to be heard. But Shoob's decision on an injunction, and her aggressive questioning of Delk before she ruled, suggests a high bar for proving that public officials have acted inappropriately. Preliminary injuctions are granted when a judge determines that plaintiffs have a reasonable chance of prevailing in the case.
Voters, meanwhile, will settle the actual amendment in less than four weeks.
The ballot measure would allow the state to create a new commission that could grant charters to independent school operators. That power now rests with local school boards, with appeals to the state Board of Education. The proposed system essentially would let local applicants who are denied choose which of the two state panels hears an appeal. Applicants for a charter school with no local attendance boundaries, meanwhile, could apply directly to the new board, bypassing local authorities.
Proponents of the ballot measure, including Gov. Nathan Deal, say establishing another avenue for charter schools would expand educational options for Georgia families and their children. Opponents, led by state Superintendent John Barge, contend that it duplicates the state school board's existing power and could siphon money away from local schools that already face tight budgets.
Delk alleged in his original complaint a sweeping "conspiracy" by state and local education officials to convince voters to reject the proposed charter school amendment.
Georgia law generally restricts public officials and employees from using taxpayer money for blatant campaign activities, including on referenda. A 1981 Georgia Supreme Court ruling says the "expenditure by a political subdivision of public money to influence the citizens and voters of the entity contains within it the possibility of the corrupt use of influence to perpetuate a local administration's power."
Delk cited officials giving public speeches opposing the amendment, several local school boards adopting resolutions against the measure and school systems posting varying documents on their official websites. He also included those documents that don't actually take an explicit position on the vote and that the systems describe as neutral information.
Shoob suggested that the prohibitions Delk cited are intended to limit overt campaigning with public money, such as "hiring a public relations firm" and "printing bumper stickers and yard signs." A website is already paid for, she said, as is the salary of any public official or employee who might express a public opinion on the matter.
Delk argued that both instances "still involve an official government resource."
The judge also told Delk that his argument effectively would block any public official from expressing an opinion. "So they can't speak if they have a title?" she asked him.
Delk called the Q&As "thinly veiled propaganda," noting that the documents state the proposed system would divert from traditional public schools.
"Isn't that the truth?" the judge replied.
Shoob has been involved in the charter school debate already. The state previously had a charter commission like the one contemplated under the November amendment. A group of plaintiffs sued, arguing that the Georgia Constitution limits the state's power to grant independent charters. Shoob sided with the state, ruling that the General Assembly was within its powers to create the body. The Georgia Supreme Court reversed Shoob in a 4-3 ruling.
That led Deal and others to push for the amendment that voters will settle next month.
Before filing the suit, Delk directed his complaints directly at Barge. The superintendent, after consulting with state Attorney General Sam Olens, took down from the Department of Education website a lengthy document about the amendment and later published a statement saying his agency is neutral on the referendum.