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Georgia Supreme Court finds law enabling school board suspensions constitutional

The removal of DeKalb County School Board members last year does not violate the state Constitution

ATLANTA — In a unanimous opinion released today, the Georgia Supreme Court has upheld the 2010 state law that allowed Gov. Nathan Deal to suspend Dr. Eugene Walker and six others from the DeKalb County Board of Education.

A judge with the U.S. District Court for the Northern District of Georgia had asked the state Supreme Court to answer two questions before he issued a decision on a federal lawsuit brought by Walker and the DeKalb School District.

First, the federal judge asked whether the Georgia School Board Suspension Statute violated the doctrine of the Georgia Constitution that each school system should be under control of a local, elected school board.

Second, he asked whether the General Assembly exceeded its authority with the potential removal of school board members under the state statute.

In a 47-page opinion written by the Court as a whole, the court said “we conclude that [Official Code of Georgia] § 20-2-73 does not violate the Georgia Constitution. Accordingly, we answer the questions of the District Court in the negative.”

According to a summary of the case from the Supreme Court, in December 2012 the Southeastern Association of Colleges and Schools (SACS) placed the DeKalb County School District on “accredited probation,” the level of accreditation immediately preceding loss of accreditation.

Under Georgia’s School Board Suspension Statute, which the state Legislature passed in 2010, when an accredited school system “is placed on the level of accreditation immediately preceding loss of accreditation for school board governance related reasons,” the State Board of Education must consider whether to recommend to the governor that he suspend members of the local board of education.

Following several hearings on the matter, the state board recommended that the governor suspend six of the DeKalb board’s nine members, with the remaining three members not included because they were elected after SACS put the district on probation.

Walker, the board chairman, and the school district filed a lawsuit in federal court alleging that the statute violated both the U.S. and Georgia constitutions. In an Emergency Motion for a Temporary Restraining Order, they sought to stop the governor from suspending the board members and appointing replacements. The federal court subsequently ruled that while the governor could suspend the members, they would remain in office but not be permitted to take any official actions until the district court could conduct a hearing. Similarly, if the governor appointed new members, they would not be able to take office before the hearing.

On Feb. 25, Deal suspended the six members. On March 1, the federal court held a hearing to consider Walker’s and the school district’s Motion for Preliminary Injunction. The federal court denied their motion and vacated the earlier temporary restraining order, finding that Walker had failed to show it was likely he would prevail on his claim that the statute violated the U.S. Constitution. Deal appointed six new members to the DeKalb board and they subsequently took office. Walker remained suspended but still held office, with pay. The other suspended members did not join the lawsuit, and the school district voluntarily dismissed itself from the federal suit.

In an order issued March 15, U.S. District Judge Richard Story wrote that the Georgia Supreme Court had not considered the issues raised by Walker regarding the constitutionality of the 2010 statute under the Georgia Constitution. He then sent the state Supreme Court the two certified questions to aid him in his decision.

Walker’s attorneys filed briefs with the Supreme Court, arguing that the law violates the state Constitution in that the General Assembly has no constitutional authority to provide by statute for the suspension and permanent removal of local school board members who are constitutional officers. Second, they argued that the statute unconstitutionally delegates the power to suspend and remove the members to a private accrediting agency, SACS, which is not accountable to the voters. Third, the attorneys contend the statute unconstitutionally empowers the governor to remove school board members, which in turn gives him the power to manage and control local school systems in violation of the separation of powers. Finally, they argue that the statute unconstitutionally denies due process to members of a local board of education.

“We are unpersuaded by these contentions,” the justices said. While they responded to each of Walker’s arguments, most of the opinion is devoted to an analysis of Walker’s contention that the General Assembly lacks the authority to enact the statute.

“First, it is a fundamental principle of our constitutional tradition that no public officer – whether constitutional or only statutory – is above the law,” the opinion states.

“Throughout our history, the General Assembly has understood its legislative power to include the power to provide by general law for the removal of local constitutional officers for cause, notwithstanding that the Constitution did not explicitly and specifically confer such a power, and in some cases, even with respect to officers for whom the Constitution made other provision for their removal,” the court wrote, noting that Judicial precedents “point in the same direction.”

Walker’s attorneys argue that under the state Constitution, the only way local school board members may be removed from office is through a recall election by the voters. “Recall is not a means for the removal at law of public officers, but instead is a means for the political removal of such officers,” the opinion says. “Given that every public officer must be amenable to the law, it would be odd to conclude that the Constitution renders certain public officers not amenable to removal at law by any means whatsoever.”

Walker’s attorneys also argued that the statute improperly permits the removal of a board member for the fault of the board as a whole rather than for individual wrongdoing. The high court disagreed, pointing out that the General Assembly had determined the “clearly essential” measure of the success of a board of education was “maintaining accreditation and the opportunities it allows the school system’s students.”

“When the conduct of a board threatens the school system with an imminent loss of its accreditation, it matters not to the public or the children of the school system whether it is the fault of a single board member, the fault of every board member, or the fault of no one in particular, just an unfortunate result of well-meaning individuals who cannot or do not work well together,” the opinion states. “The imminent loss of accreditation is a failure of the board as a whole all the same.”

The opinion concluded that as “the people of Georgia seek to improve Georgia’s educational system, this Court must be mindful of the broad discretion granted by the Constitution to local school boards to manage and control local school systems. For all the reasons set forth herein, however, we conclude that [Official Code of Georgia] § 20-2-73 is not an unconstitutional infringement upon the governing authority of local school boards, nor is it a violation of any other constitutional provision or right, as asserted by Walker in this case, and we answer the questions of the District Court in the negative.”