Judge’s emergency order pre-empts Deal’s action on DeKalb schools
6:17 pm, February 25th, 2013
A federal judge’s emergency order intended to “preserve the status quo” issued Friday night pre-empted Governor Nathan Deal’s decision today to replace six members of the DeKalb County Board of Education.
Judge Richard Story issued his order after Deal announced his intention to take action regarding a likely removal of the majority of the school board in order to salvage the DeKalb County school system’s endangered accreditation.
Story denied a request by lawyers representing the DeKalb County School District and school board chairman Eugene Walker to restrain the governor from suspending or removing any elected member of the school board prior to what had been a hearing on the matter scheduled for Tuesday. The other members of the school board are not listed as parties to the suit.
But Story halted the implementation of Deal’s decisions “to preserve the status quo until after this Court has held a hearing on the matter.”
“Thus, if Governor Deal decides to appoint any new member to the Board, that proposed member shall not be permitted to take office at this time,” Story ordered. Story also said in his order that if the governor attempted to remove any school board member, “that member will remain in office, but shall not be permitted to act on behalf of of the board or take any other official action in his or her capacity as [a] board member.”
Story delayed Tuesday’s scheduled hearing until Friday at 2:30 p.m.
Last week, Story refused to grant an earlier emergency petition from lawyers representing Walker and the school district. They had sought to bar the State Board of Education from convening a hearing on whether board members should be removed in order to salvage the school district’s accreditation, which the Southern Association of Colleges and Schools has suspended based on what its representatives have said was threatening and abusive behavior by board members, coupled with chronic financial irresponsibility that has left the system deeply in debt.
DeKalb school board lawyers also sought to bar the state board from making any recommendation to suspend any member of the DeKalb board and prevent the governor from suspending board members or stripping them of their elected office.
Story had denied that first request, finding that while a recommendation by the state board to suspend DeKalb school board members “is a prerequisite to a suspension determination by the governor…the SBOE’s [state board of education’s] action following the hearing is just that – a recommendation. No suspension or removal from office can result directly from the SBOE hearing. … The Governor is the ultimate decision-maker under the statute.”
He changed his mind after Deal announced his intention to take action before the federal hearing Story had scheduled.
Decatur attorney Robert Wilson, a former DeKalb County district attorney who participated in the cheating investigation of Atlanta Public Schools, is representing the DeKalb school district and Walker. In a court pleading accompanying his first emergency motion, Wilson argued that the Georgia law giving the governor authority to remove the board violates board members’ property rights to the political offices to which they were duly elected.
Wilson argued that the law “on its face… lacks the most basic rudiments of due process because it does not provide notice and an opportunity to be heard before any governmental deprivation of a property interest.”
The law, he said, also “illegally defers to the unelected and unaccountable SACS [Southern Association of Colleges and Schools] to initiate suspension proceedings, fails to provide notice of charges against members, fails to provide a standard of review for the SBOE [State Board of Education] to apply, then upon suspension places the burden of proof on the member to gain reinstatement essentially by meeting the incredibly vague and subjective ‘standard’ of showing that a private accreditation agency (SACS) would have a favorable view of the suspended member’s participation in [school] District governance.”
“It is not just the members of the DeKalb County Board of Education that have a constitutional right to hold their office, but the public also has a right to have its elected officials remain in office,” Wilson said. “Moreover, the public has no interest in enforcing an unconstitutional law.”
Attorney General Sam Olens, Deputy Attorney General Dennis Dunn and Senior Assistant Attorney General Stefan Ritter countered in a response to the school district’s second TRO request filed Friday that the governor had not taken any action at that time. “The circumstances have not changed from the prior denial of a TRO except that the procedural process provided by the state is continuing,” their response stated. “No injury in fact has arisen to the plaintiffs (and no circumstances would an injury in fact occur to DeKalb School District, it should be noted, even if the board members are ordered removed.) While the plaintiffs assert that they seek to ‘maintain the status quo’ that is not the standard for an injunction in federal court.”