State Supreme Court Upholds Decision to Remove DeKalb School Board Members

By Maureen Downey
From the AJC Get Schooled blog

The state Supreme Court this morning upheld the law that enabled the governor to oust six members of the DeKalb County school board and appoint replacements. That means the appointed board meets legal muster and stays in place.

Here is a link to the 47-page opinion.

I think this is a key passage in the ruling:

“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 imminent loss of accreditation is a failure of the board as a whole all the same.”

Here is a summary of the decision from the state Supreme Court:

The Supreme Court of Georgia has unanimously upheld as constitutional the 2010 statute that authorized Gov. Nathan Deal to suspend Dr. Eugene Walker and five others from the DeKalb County school board.
In this high-profile case, a judge of the U.S. District Court for the Northern District of Georgia asked the Georgia Supreme Court to answer two questions before he issues a decision in the federal lawsuit filed by Walker and the school district:

• Does Georgia’s School Board Suspension Statute (Official Code of Georgia § 20-2-73) violate the Georgia Constitution’s doctrine that each school system shall be under the control of a local board of education whose members are elected?

• Does the potential removal of school board members under § 20-2-73 unconstitutionally exceed the General Assembly’s authority to enact general laws regarding local boards of education?

In today’s 47-page opinion, written by the Court as a whole, “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.”

In December 2012, the Southeastern Association of Colleges and Schools (SACS) placed the DeKalb County School District on “accredited probation,” which is the level of accreditation immediately preceding loss of accreditation. The school system had selected SACS from a number of organizations when it sought accreditation. Accreditation is viewed as a bellwether of a school system’s performance and can affect a student’s competitive advantage when applying to college or for scholarships. Under Georgia’s School Board Suspension Statute (§ 20-2-73), 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. (Three members of the local board were not included for consideration because they were elected after SACS put the district on probation.)

Walker, who was the board chairman at the time, and the school district then filed a lawsuit in federal court alleging that § 20-2-73 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 prior to the hearing.

On Feb. 25, 2013, Gov. Deal issued an executive order suspending the six members as recommended by the state school board. On March 1, 2013, 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. Soon after, Gov. 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, 2013, U.S. District Judge Richard Story wrote that the Georgia Supreme Court had not yet considered the issues raised by Walker regarding the constitutionality of the 2010 statute under the Georgia Constitution, and “[a] decision on these issues will have a significant impact on the public education system in Georgia.” He then sent the state Supreme Court the two certified questions to aid him in his decision.

In response, Walker’s attorneys filed briefs in this Court, arguing that § 20-2-73 violates the Georgia Constitution in a number of ways. First, they argued the legislature has no authority under the Constitution 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,” says today’s opinion, which responds to each of Walker’s arguments, although most of the opinion is devoted to an analysis of Walker’s contention that the General Assembly lacks the authority to enact a statute allowing for the governor’s removal of local school board members.

“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. The law long has acknowledged that legislative power includes “the power to provide the means by which a public officer might be suspended or removed…from office for a failure to satisfy the qualifications of the office, for malfeasance in office, or for misfeasance in office.”

“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.” Judicial precedents “point in the same direction,” the opinion says.

The 1983 Georgia Constitution specifically states that the General Assembly may set additional “qualifications” for local constitutional officers beyond those required by the Constitution. And as the state Supreme Court said in its 2012 decision in Roberts v. Deal, “the power to establish qualifications to hold office ‘presumably authorizes the General Assembly to establish a mechanism for the administrative removal of board members [for a failure to satisfy such qualifications].’”

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. A recall, however, is different from the removal allowed by § 20-2-73. “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 argue 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. But the high court disagrees. As it points out, the General Assembly has determined that the one, “clearly essential” measure of the success of a board of education is “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,” today’s opinion says. “The imminent loss of accreditation is a failure of the board as a whole all the same.”

In conclusion, the opinion states 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.”

Attorneys for Appellant (Walker): Thomas Cox, Marquetta Bryan, Michael Walker
Attorneys for Appellee (State Board): Samuel Olens, Attorney General, Dennis Dunn, Dep. A.G., Stefan Ritter, Sr. Asst. A.G.