Gauging judges’ leanings in a case based on the questions they ask in court is tempting. It’s also a good way to order crow for future consumption.
Just ask any legal analyst who declared Obamacare’s individual mandate “doomed” after oral arguments at the Supreme Court last year, three months before the justices upheld it.
After watching Monday’s hearing at the Georgia Supreme Court about the state’s removal of six DeKalb County school board members, I wouldn’t hazard a guess. The question raised by ousted board chairman Eugene Walker — does the state constitution permit the governor to remove locally elected board members because of a private accrediting agency’s decision? — easily could go either way.
The case’s outcome matters to Walker, to the other suspended board members (technically, they are not yet permanently removed from office), to DeKalb parents, and to many others.
It shouldn’t matter to state legislators, though, because it’s already obvious they need to fix the law. The problem is the DeKalb example doesn’t make that need clear.
In DeKalb, as in Clayton and Sumter counties before it, the board wasn’t functioning well. But not too long ago, Atlanta Public Schools’ accreditation was threatened for the wrong reasons.
By the time APS was in danger of losing accreditation from SACS (the Southern Association of Colleges and Schools), the cause was only tangentially related to the fact board members were asleep at the switch while teachers and administrators cheated on a grand scale.
Rather, SACS was concerned because five of the nine board members, realizing their own leaders misled them, decided to replace the board’s chair and vice chair. Never mind that a judge ruled their actions had been lawful, or that it’s hardly shocking for elected officials to act like politicians — or, most importantly, that their sudden bickering owed to the handling of the cheating scandal.
Nope. SACS was more worried about the bickering than the cheating.
Wrongheaded as it may have been, SACS nevertheless had the power to revoke APS’s accreditation on that basis. And, in doing so, to launch a process that could have led to the board members’ ouster.
The law that authorizes school board members’ removal names only one agency that gives an entire public school system in Georgia its accreditation, the loss of which is deemed by the law to be a disqualification from office for local board members. That agency is SACS.
This is analogous to the situation with mortgage-backed securities leading up to the housing and financial crash. Then, the federal government required lenders to have their securities rated by one of a few approved agencies, leaving no good recourse when those agencies issued flawed ratings.
Walker argues that the state should not be able to remove local elected officials, that a private accrediting agency should not wield such power, and that the removal procedure does not provide true due process. One need not agree with any of those arguments to recognize the real potential for the law to be misapplied.
So, whatever the outcome of Walker’s lawsuit, legislators would be wise to change the law.
First, it would be best to allow more than one agency to accredit an entire public system — though the limited current options may make that difficult.
Second, rather than removing local elected officials from office for non-criminal acts, it would be more clearly constitutional to penalize systems that lose their accreditation by withholding some or all of their state educational funds.
Third, given the difficulty of recalling an elected official in Georgia, the law could include a lower threshold for recalling school board members when a system loses accreditation.
Finally, to ensure students in a de-accredited system aren’t penalized, the state could offer them vouchers to attend other schools, paid for with the funds withheld from the system.
That should be incentive enough for school leaders to act right, and options enough for students when they don’t.