From Friday: Legal arguments arguing constitutionality of a Governor being able to oust a local School Board
Posted by
Strongbad (aka Rambler14)
Mar 4 '13, 06:56
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Under the constitution, it�s the citizens who live in a county who have the right to choose who is going to represent them on the school board. Local control is a paramount principle in k-12 education.
Board members have constitutional status. The state constitution guarantees an elected local school board. There are three ways a school board member can be removed under the constitution.
1. Recall for malfeasance, which is an ethical or legal violation. 2. A felony indictment for a malfeasance related to their office. 3. Conviction of any felony.
While the constitution allows the state to provide for additional qualifications for office, it does not allow for additional causes to remove school board members. And those qualifications are usually practical matters of residency, citizenship, age and education.
The legislative branch, the General Assembly, cannot hand a power, removing the school board, over to the executive branch, the governor.
The six members suspended were elected by margins of 51 to 74 percent by DeKalb voters.
It is a privilege of citizenship to be able to vote, run for office and hold office. Taking any of those privileges away requires due process, which was denied to the DeKalb board.
By using SACS probation as a trigger under which the governor can then oust a school board, the state has given a private, unregulated and unelected agency great power. �There is no oversight except their own,� said Wilson. �They make the rules of their game. I am not sure anywhere else in the law � federal or state � so much power is delegated to an unregulated private agency outside government.�
The state Board of Education, in its 14 hour hearing on whether to recommend suspension, had no clear standards by which to decide whether the DeKalb board had, in fact, done something wrong. Each state board member applied her or his own standards. And they debated for only a few minutes before they voted. Only four board members spoke about why they wanted to suspend and each offered a different rationale.
�The hearing officer never gave any instructions on the standard that had to be met,� said Wilson. �What are the rules? Nobody told me.�
The burden was supposed to be on the state to show why the six members ought to be suspended, but Wilson said, �With all due respect to the state, it�s hogwash.�
One of the inconsistencies in the law that Wilson cited is one we�ve discussed here: The law calls for the removal of all board members, which the state stressed at a hearing in January. The governor must remove all the DeKalb board members or none, stressed the state attorney at the January state board meeting.
Yet, the state opened the Feb, 21 hearing by announcing that the three newly elected members were off the hook. In its rebuttal to Wilson, Ritter did not get into the sudden reversal on that point, only saying it was �a gift to their side� that the three newly elected members were not losing their seats.
�All this is saying is that something is getting lost in the process and it�s due process,� said Wilson.
Wilson also hammered the lack of details in the SACS report, noting that allegations against the board came from unnamed sources and that SACS does not keep the notes from its review team interviews. �We did not get a chance to confront witnesses,� said Wilson.
Anticipating the state�s rejoinder that DeKalb board members had 14 hours before the state board to make their case, Wilson said, �Just because you were there for a long time doesn�t mean it was done right.�
Wilson also blasted SACS for the misinformation in its report, including the contention that DeKalb could not account for $12 million in textbooks and that many schools lacked Internet. DeKalb, he said, �has been beat up pretty badly on wrong facts from SACS.�
He criticized the head of SACS, Mark Elgart, for denying that the SACS review relied on hearsay. �He�s too smart to say that, but he did,� said Wilson. He noted that he got Elgart to admit during the Feb. 21 hearing that SACS had no records, tapes or videos of the interviews of witnesses who made allegations against the board, thus denying Wilson the opportunity to question the statements.
�He has no records. There is no way we could do it,� said Wilson.
And he questioned the �en masse� approach of the law, which he charges paints the entire board with the same brush. He noted that the state board didn�t even ask three of the six members about any wrongdoing.
But Ritter countered that it was appropriate to treat the board as a group in assessing their governance record because �the actions of the board reach all.�
Through the appeals process, Ritter said, �They will have another day in court. They got a process and they are going to get more if they want it.�
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