Uncertainty in DeKalb schools continues after federal court hearing

Feb. 21: The Georgia Board of Education conducts 14-hour hearing and recommends that Gov. Nathan Deal replace six of the DeKalb board’s nine members.

Monday: Gov. Deal follows the state board’s recommendation and suspends six board members. Three board members who began their terms in January were not included in the suspension, which now faces a legal challenge.

Friday: U.S. District Judge Richard Story heard arguments from both sides but didn’t immediately issue a ruling.

A cloud of uncertainty will continue looming over Georgia’s third largest school system after a hearing in federal court Friday produced no immediate outcome for the DeKalb County school board.

U.S. District Judge Richard Story heard arguments for and against the constitutionality of a Georgia law that allows the state to unseat the local board members because their district was placed on probation by a private accrediting entity. He promised to act quickly but declined to issue a ruling at the conclusion of the 3-hour hearing, preserving a stalemate between the DeKalb board and Gov. Nathan Deal.

Six board members want the judge to keep them in office, despite a decision by Deal to suspend them.

The lawsuit brought by DeKalb pits voter rights against assessments of school board management. The Southern Association of Colleges and Schools placed DeKalb on probation in December, alleging nepotism, financial mismanagement and other shortcomings of the district’s nine board members. That triggered a chain of events that led Deal to suspend the six who were in office last year while sparing three new board members.

Basing the exercise of such power on the opinion of an “unelected and unaccountable” private entity such as Alpharetta-based SACS and its “vague subjective standards” disenfranchises the local voters who put the board members in office, DeKalb’s lawyers wrote in court filings.

“Something’s getting lost in the process, and what’s getting lost is due process,” Robert Wilson, an attorney for DeKalb, said at Friday’s hearing.

The state counters that there is precedent that makes the law and its removal process constitutional, and that the education of children — DeKalb has 99,000 students — is at stake.

“They are the ones that really matter,” said Stefan Ritter, senior assistant for Attorney General Sam Olens.

Deal suspended the six board members Monday, but a preceding order by Judge Story prohibited the governor from appointing replacements pending Friday’s hearing. Wilson said the judge told him after the hearing that the order would remain in place until a final decision on DeKalb’s request for a preliminary injunction. Wilson said he does not expect a ruling until at least Monday.

Both sides agree that a 20-page report by SACS is key. The state says in court filings that the document, which explained the agency’s probation decision, left “no wiggle room” in establishing grounds for suspension. The report concluded that “extensive efforts, costs and resources” had been “wasted” in efforts to “bring about sustained change in the culture and operation” of the DeKalb board and that students would suffer if the “pattern of poor governance” is not corrected.

DeKalb argues that the report is deeply flawed.

At a hearing earlier this month when the Georgia Board of Education recommended suspension, DeKalb school officials testified to what Wilson described as two factual errors in the SACS report.

The report implies $12 million in textbook money went missing, saying “numerous interviews revealed that no one could identify any school that had received new textbooks.” It also says only 35 percent of classrooms have “wireless” connectivity.

A district official testified at that state board hearing that the textbooks were all accounted for and SACS never interviewed her about the issue. Another official testified that all schools had “Internet” access and that all would be wireless by the fall. SACS also didn’t ask that second official about that issue.

Wilson argued Friday that he was able to rebut those concerns because they were document-based, but other issues noted by SACS were based on anonymous interviews. Due process entails the right to probe the sources of information, Wilson said, but since SACS doesn’t reveal identities of people it interviewed, there’s no way to subpoena and cross-examine them. “We did not get our right to confront witnesses,” Wilson said.

In arguing for a preliminary injunction, the plaintiffs must show that “irreparable harm” will occur if the judge fails to stop an action.

Ritter argued that the DeKalb board members will not suffer such harm because the process allows them to petition the governor for reinstatement.

Wilson contended, however, that the grounds for reinstatement are unclear and that, in any case, that process takes two to five months and the board members will be deprived over that period and their reputations damaged.

The hearing attracted several dozen observers, including seats full of court clerks who came to witness the unusual case.

Randy Faigin David, a north DeKalb mom with four kids in the system, trained as a lawyer and said the constitutional issues are fascinating and likely the talk of the courthouse. But her children are her priority. “My kids are in a struggling school district today,” she said. “These are all interesting, important issues, but we still have to fix our schools, right now.”

Another observer, former school board member Zepora Roberts, said education isn’t the only thing at stake. Voting rights are the crucial issue, she said. “We the people in south DeKalb are very concerned about our voting rights being taken away from us,” she said. “That is the biggest thing.”