The Education Lawsuit Moves Forward

The Banner-Herald has the deets.

A lawsuit charging the state with spending too little on education likely will go to trial after a judge rejected the state’s request to dismiss the case.

In a ruling released Tuesday, Fulton County Superior Court Judge Elizabeth Long denied the state’s motion to dismiss the suit. The state argued the 50 school districts that filed the lawsuit couldn’t prove that spending more on education would increase student achievement.

This could cost us serious money. Heads up to the legislature: the odds of winning without a series of legislative maneuvers is diminishing. See e.g. Texas.


  1. eehrhart says:


    I agree this is costing state taxpayers money right now with the legal expense.

    The legislative maneuver needs to be a resounding NO to any court which seeks to usurp both the United States constitution and the Georgia constitution with respect to the separation of powers.
    The power to appropriate resides ONLY in the legislative branch of government. PERIOD!!

    The outrageous nature of jurists across this country having the arrogance to substitute their individual judgment for the judgment of the combined will of the peoples elected representatives on spending matters is absurd and unconstitutional on its face. They have only a responsibility to interpret the law not spend money.

    The case in Georgia is even more outrageous because the judge is not even elected or accountable to anyone. Here we go again with another Fulton County Senior judge who is attempting to spend money. Anyone recall the Nichols case and Judge Fuller. His foolishness almost bankrupted the Public Defender system.

    We are really going to have to get a handle on this “Senior” judge system of unelected people putting taxpayers at such risk.

    If nothing else this may be a great opportunity to take such a case up to the Supreme Court and finally drive a stake through the heart of this crazy notion that judges can function as the legislative branch of government and direct spending.

    This should frighten anyone no matter what you think of legislators; do you really want to substitute the judgment of all elected representatives for the whim of one person, or even one jury to spend your tax money?

    Erick, you are right that in most states their elected officials have rolled over and played dead for the courts. I think you will find that Georgia will be different. At the very least the Georgia House will stand and fight this.

    At the very worst case, even if the judge rules adversely for the state taxpayers, the most she can do is throw out an unconstitutional statute. That is her only role as a jurist. Under no circumstance can she direct an appropriation. We as a legislative body could change the statute over and over and never give her the appropriation. I would submit we could then focus the issue solely on whether a court can spend tax money and we would win that battle in the US Supreme Court. We could drag this out forever. The people in those districts could then find educators more interested in their kids than in courts.

    My advice to the whiner superintendent from Oglethorpe county is to stop spending the children’s money and your schools efforts blaming someone else for your own failure to do your job in educating the kids. Spend the money and whatever skills you have in education on the children and not on lawsuits which could rage on for years and only enrich the lawyers you hired. Believe me by the time this battle is over the children in your care now, will be eligible for social security. They and their families should sue you and your co-plaintiffs for dereliction of your duties to their education.

    Again, stop spending money on lawsuits and spend it on the kids education.

  2. Tinkerhell says:

    Hmmm. Wouldn’t Eric Johnson’s voucher plan pretty much put this whole thing out of its misery?
    Give our money back to US, let US choose what school to give it to (thereby having a say in how the schools use it) and then the schools won’t have much of a leg to stand on in complaining about not having enough funding. If they want more $ then they will have to do a better job of educating and managing to survive/thrive. If they can’t do that then those in power over the school will be replaced by others who can. As the school does better it will draw more parents who want their kids at a good school. Seems simple enough to me. Then my money doesn’t have to be stolen from me to finance both sides of frivolous law suits AND to crappy schools that are run by people who have other priorities than education.

  3. midgajim says:

    “The case in Georgia is even more outrageous because the judge is not even elected or accountable to anyone. ”

    WHAT?! Civics 101: state court judges are elected. Federal court judges are appointed (for life). When the term “superior court” judge is use, that refers to a judge in the state system.

    Geez. And you’re an elected official?

  4. eehrhart says:


    Why not look up what a “Senior” Judge is with respect to Ga. law.


    They are judges who usually served in the past on the same circuit, but they are no longer elected by the people. Therefore no longer accountable to the taxpayer.

  5. Doug Deal says:


    Why does the legislature allow “senior” judges anyway? From what I have read of the constitution, even judges that have been votged out of office can serve as “senior” judges.

    If there is a backlog, or a need for a judge for some form of conflict, why not create more judge positions and have one circuit borrow from a neighbor when there is a backlog or a special case? At least those judges would have been elected and hopefully accountable to someone.

  6. John Konop says:

    Rep. Eehrhart

    I agree with much of what you wrote, yet unfunded failed mandates like math 123 from Kathy Cox do not help the problem. In all due respect we need leadership from lawmakers like you pushing joint enrollment programs for vocational students as well as college bound, not one size fit all education Kathy Cox supports. This concept that all students need to be on a college education track fails everyone involved.

    I realize Kathy Cox is a fellow Republican but this issue is bigger than party loyalty!

  7. Old Vet says:

    The state constitution is a document ratified by the citizens establishing the acceptable framework of our government. Emphasis on OUR. The constitution we ratified gives the courts the power to check the legislature when it gets wildly out of line. Without recourse to the courts, how do we ensure that the legislature or the executive branch follow the rules that we, the people, have established? Anyone who thinks legislators or the Governor give a damn about the constitution when it stands in the way of something the want hasn’t been payingthe shightest bit of attention. Only fear that the Supreme Court will declare their actions unconstitutional keeps them in check.
    If the conservatives want to kill the public education we mandated in our constitution, let them do it in the manner we set out in our constitution – propose a constitutional amendment for us to consider and ratify or reject. Let the people decide.

  8. eehrhart says:

    So old vet,

    Let me make sure I understand you. Are you saying that you are OK with one unelected judge telling all of the peoples elected representatives, Republican and Democrat alike, how to spend your tax money?

    I am certainly OK with the judicial role when ruling laws of the legislative branch unconstitutional, or in your words “wildly out of line; although I do not think that is exactly a constitutional standard. This is the balance of power and separation of power.

    However this is an issue of who appropriates the money.

    I do not think you will find a large constituency to place such funding decisions in the hands of one person.

  9. Old Vet says:

    Well, the General Assembly could certainly subvert the constitution by withholding appropriations. For an extreme example, in the next budget they could appropriate zero money and effectively kill a constitutionally mandated governmental function.
    That, of course, is the heart of the suit. At some point underfunding so cripples a mandated service that the constitutional mandate is violated. Who but the judicial branch can make the call of when that point is reached? Certainly not the folks who are withholding the money in the first place! That would be like letting a criminal pass judgment on his or her crimes.
    As I said, a number of constitutional points are debatable, so let’s debate them openly instead of trying to circumvent the constitution.
    For example, legislators are always trying to funnel public funding to religious institutions. Instead of the cute little gimmics they try every year, such as school vouchers or “faith based” services, let’s call it what it is, debate it openly, and put a constitutional amendment out for the vote. If people want their tax dollars going to spread someone else’s religion, we’ll ratify it and there won’t be a problem.
    Oh, and since such constitutional decisions are untimately made by the Supreme Court of Georgia, they are made by seven diverse persons elected state-wide.

  10. dorian says:

    Some congressman came up with a similar rant back in 1956

    “The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.

    The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.

    We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.

    The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States. “

  11. eehrhart says:


    The court in Brown v. Board of Education acted completely within their constitutional responsibility They struck down state laws on separate but equal education which violated the equal protection guarantees of the 14th amendment. This was a crystal clear violation of the constitution.

    Nice try but not a relevant example.

    In Georgia and across the country in these education lawsuits judges have made the remedy a certain appropriation which is what I am saying is outside their jurisdiction.

    I really doubt as I said earlier, that there is any constituency for allowing one judge or even seven to substitute their judgment for the appropriation’s authority of a legislative branch.

    The judge can certainly rule our education statute is unconstitutional and we could change it over and over and continue to go back to the courts. What they cannot do is tell elected legislative members how much to spend. No more than they could tell elected city or county officials what to spend. Again the power to spend the peoples money resides with the legislative branch at all levels of government as it should.
    Take a look at Federalist 51 and see what the framers had to say about the encroachment of one branch upon another’s prerogative.

    This case will very probably follow the route of other states and you had better hope that the legislative branch stands up to the whim of one jurist or we will set a terrible precedent in this state where the judiciary becomes both branches of government on spending matters.

  12. Old Vet says:

    I reiterate my point, then I’ll shut up. The statute may be a shining example of educational equality and excellence, but if it is not funded it is as null and void as if it had never been enacted. There has to be some remedy.
    I think that seven men and women elected state wide are more representative of the people of the state than the General Assembly ,where 3 or 4 men in leadership positions in each chamber, each elected from a small House of Senate district, make all of the relevant decisions for the entire body, with the other members acting as mere extras. The only real debate is between the two chambers, and that debate is mostly driven by personal egos and political ambitions. You know that’s true. Leadership is rarely challenged in its own chamber.

  13. eehrhart says:

    I reiterate my point old vet..Find a constituency that wants to do away with the legislative branch no matter you personal opinions of them and trade it for seven people.

    Maybe in Soviet Russia.

    If the people do not want a legislative branch they are much easier to change than judges.

  14. eehrhart says:

    Sorry John I got caught up in the other. I agree with you on joint enrollment and other tracks as one size does indeed not fit all.

    Did you follow the bridge bill last year which provided such a track in the DTAE system?

  15. John Konop says:

    Rep. Eehrhart

    I do appreciate once again the time you take on the PP to give us your insights. I am not familiar with the bill and if you have time I would appreciate information about it. And thank you for your support on joint enrollment.

    One question are you familiar about how the math 123 requirements are forcing students toward a college track? And this will hurt the joint enrollment for vocational students because they are caught up in a college track that will create drop outs ie 8th grade math results.

    A few other issues regarding math 123 I brought up a few years ago.

    Problem #1: Forcing all students to be “average”
    There are currently four math tracks available to high school students. They vary in difficulty to accommodate a broad range of math abilities. Under Cox’s proposed change, freshmen, sophomores, and juniors will now only have two tracks (Math 1 and Advanced Math 1, Math 2 and Advanced Math 2…).
    Big mistake. This minimalist offering will be too difficult for the lower rungs of math students (encouraging them to disengage) and too easy for the upper rungs (failing to adequately develop their abilities). Why institutionalize mediocrity?
    Also, Cox spokesperson and Georgia’s math program manager Claire Pierce told me the new program was designed around gifted kids because Georgia was “having a problem with the gifted program”. That’s just not true according to Mark Smith, a Cherokee County school system employee assigned to review this math curriculum change. Mark pointed out that gifted kids from Cherokee County are doing great with admissions into top universities and colleges. It is, in fact, the lower end of the math students that are having the biggest performance issues.
    Problem #2: Unrealistic goals for the students
    Cox spokesperson Claire Pierce also told me that a goal of the new math program is to have 85% of students graduate having completed the equivalent of Algebra II. I believe this goal makes the same mistake as President Bush’s unpopular No Child Left Behind (NCLB) program: not all high school students should prepare for college. It is wildly unrealistic to expect that they should, and it damages the self-esteem of kids that would be better served by a vocational program.
    Problem #3: Unrealistic goals for the teachers
    I support high (yet realistic) expectations. But Kathy Cox’s unrealistic plan to graduate 85% of our high school students with the equivalent of Algebra II will destroy the morale of math teachers. Georgia’s high school classrooms face an explosion of immigrants with very poor English skills, pregnant teens, drug users, and kids with parents that don’t support academics.
    Finally, Cox needs to double check her math–if currently 44% of Georgia’s high school students drop out and only 29% (nationally) graduate with math proficiency (which doesn’t include Algebra II), how can she possibly meet her 85% goal? The only way is to hide watered-down standards behind the vaguely titled Math 1, 2, and 3.
    Problem #4: A rushed and careless policy
    Cherokee County’s Mark Smith says Cox’s new math program hasn’t been reviewed with any colleges except those within Georgia’s state system. Meaning no one knows if or how colleges from other states will accept it.
    The state has also failed address how to handle students transferring into Georgia public high schools. Since the new curriculum is mandatory, advanced students transferring into our systems could be forced to sit through math classes they have already mastered. The same holds true for middle school students who have taken advanced math courses.

  16. Citizen Tom says:

    So, Rep. Ehrhart, let me make sure I understand this. Because the judge declined to grant your favored side SUMMARY JUDGMENT (which is rarely granted in any proceeding), she’s “usurp[ing]” legislative prerogative and is one of those dreaded activist judges? Hmmm, fifty school systems seemed to think there was enough to “whine” about to join in on this baseless suit.

    Your knee-jerk, default-to-“activist judges”-mantra is ridiculous. Judge Long is an excellent jurist who probably was assigned this case through Fulton’s Business Court so that this complex case could get the attention it deserved while other cases didn’t get baclogged as a result and got the attention they deserved.

    It really does show your true colors when you paint with this broad brush.

  17. eehrhart says:

    Typical liberal CT.

    Try dealing with the issue I raised.

    Show me where I mentioned the summary judgment?
    Where did I mention activist judge?

    I am talking specifically about an unelected jurists who MAY ATTEMPT to cost the taxpayers millions.

    Judge long may be a good judge. I never insulted her once. If unelected is an insult it is a fact.

    In other states judges have imposed remedies which required appropriation.

    Deal with facts if you want to make your point.

  18. Chris says:

    Why limit outrage to unelected jurists? Frankly I find the election of judges to be worrisome. They become subject to the same plebeian pandering that legislators do.

    The point of an independent judicial system is to act as a check on abuses by the legislative or executive branches. By providing for direct elections, you’ve reduced the judiciary to appeasing the same special interests.

  19. Chris says:

    Wouldn’t any decision by said Senior Judge be appealable to the …. and eventually find its way before the elected Georgia Supreme Court?

  20. Citizen Tom says:

    Rep. Ehrhart, you were absolutely talking about the present state of this case, not what may happen down the road. No, you didn’t type the phrase “activist judge”, but your little diatribe was the typical anti-judiciary rant that y’all engage in all the time. (From your comments above: “Here we go again with another Fulton County Senior judge who is attempting to spend money.”) No, sir, I dealt with the facts and the FACT here is that fifty school systems want their day in court and YOU pitched a hissy-fit because the judge didn’t dismiss the case — hence another tired ol’ activist judge tirade.

  21. eehrhart says:


    Why is it so hard for you to deal with the topic.

    I am talking about the concept of a judge finding a remedy through appropriation. Period. I know you think you know what I am talking about, but you do not and no amount of wishing will make it so for you.

    Tell me why judges should usurp the appropriation authority of a legislative branch and tell me why you think people will go along with it? Yes this is what the remedy was in other states in similar suits.

    As for the 50 systems who think that the courts should do their job for them, I think they deserve their day in court just like anyone else.

    I am also entitled to my opinion, that they are wasting the money which could be better spent educating the kids in their care. They would rather whine that it is someone else’s fault for their failure.

    C’mon, argue for doing away with the legislative branch and creating a totalitarian judiciary made up of like minded left wing elitists. You know you want to.

  22. Citizen Tom says:

    Rep. Ehrhart, you are wholly incapable of having an intellectually honest debate. When called on your initial rant, you denied that this was about activist judges or about the current posture of the case — both of which were exactly your points. Now, despite belittling “whiner [school] superintendent[s]”, you’re all for them having their day in court, something you’d rather be denied.

    I’ve been a Georgia voter my entire adult life, have always voted in the Republican primary and for Republicans (before it was cool). Although I’ve never had the honor, my grandparents were delegates to the Republican national convention. So your liberal lob is hollow.

    No, sir, I believe in the Constitutions (state and federal) — three separate BUT EQUAL branches. You, on the other hand, think you’ve been anointed savior and that you’re the smartest guy in the room. You ain’t even close.

  23. John Konop says:

    Citizen Tom you have the GOD giving right to disagree with Rep. Erhart, but you should give him credit for engaging in the debate. I wish more lawmakers were as willing as Rep. Erhart to answer question on an open forum like this.

    I have not always agreed with Rep. Erhart but I have always given him full respect for his willingness to answer question. I have also asked him many tough questions, yet with due respect, and he has always presented his view point.

    It seems like you would rather attack him rather than understand his side of the argument.

  24. eehrhart says:

    Ok CT

    One more time and no hyperbole from either side if you will?

    What part of the equal branch of government concept allows the judiciary to appropriate taxpayer funds by judicial remedy?

    Simple focused question.


    If you will email my office I will get you and entire package on the bridge bill and the dual vocational track which anticipates many of the arguments you espoused earlier. I would like your input as it died in the Senate and we plan to bring it back.

  25. dorian says:

    With all due respect Chris, I have yet to meet a Judge that has corporate sponsored parties in his honor. Also, judges generally abstain from cases involving a major contributor, as opposed to sponsoring legislation for them. Of course, corporate sponsored legislation is for our own good. I wouldn’t be surprised to see privatized “McSchools” soon to go along with the “McPrisons”. In fact and if I may be so bold, we ought to outsource all our critical services (the ones we don’t just eliminate completely) to the lowest bidder. Now, that’s what I call being fiscally conservative.

    On a side note, if you live in the metro Atlanta area look a new, improved 285 brought to you by titlemax will be coming in 2009.

  26. eehrhart says:

    Such cynicism!

    Of course on no judges disclosure is there ever one dollar from the thousands of attorney’s who practice in front of them?? And whose entire success or failure monetarily are at risk from that same jurist.

    Of course if I were the same type cynic the same conclusion could be jumped too there as with a corporate donor to any campaign.

    I am not

  27. dorian says:

    I prefer the more politically correct term “pragmatic”. In any event, judges and legislators also share another characteristic, they both tend to bend on the arrogant side. I think is a quirk that develops from surrounding yourself with people who tell you what you want to hear. One thing always follow pride Rep. Ehrhart. Proverbs 16:18. You don’t get to vote on that.

  28. Jane says:

    If Georgia cared about good schools they would not have elected Kathy Cox. Jaybird was not much better.

    Mitchell Kaye on the other hand might have been an improved.

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