Here are the legal arguments for why govenor can’t oust DeKalb school board. Are you swayed?

I attended the three-hour federal court hearing Friday in which the attorney for the DeKalb school board challenged the constitutionality of the state law that Gov. Deal used to suspend six school board members this week.

DeKalb County schools were placed on probation by the accreditation agency SACS in December. In response to that probation and because of cited problems with how the school board operates,  Gov. Nathan Deal moved to suspend six of the nine members, as the State Board of Education had recommended after a grueling 14-hour hearing on  Feb.  21. He relied on a law that went into effect in the spring of 2011.

The DeKalb board filed suit to block the removals, arguing that the law is illegal and full of inconsistencies. Former DA Bob Wilson contended that the law was contradictory, flawed and unfair to those snagged by it. “You have a sense people are flying by the seat of their pants to figure this out,” said Wilson.

The question is whether those flaws are lethal or whether an appeals process built into the law mitigates some of them.

The law is already under siege by six suspended Sumter County school board members, who retain their seats while their court case awaits a hearing.

U.S. District Court Judge Richard Story — impressive in his comments about how seriously he takes this case and how he spent eight hours the night before reading documents submitted by Wilson — is attempting to move decisively so DeKalb schools are not stuck in limbo. But Story said he wants to be thorough.

Story said he will decide this case on the legal merits of the law rather than on the accusations against the DeKalb school board by its accrediting agency, the Southern Association of Colleges and Schools.

“I don’t expect this to be a terribly exciting hearing. My responsibility is to determine whether the constitution of the United States or the state of Georgia is being violated,”  he said. “I understand the impact my decision can have on a multitude of children. Let me assure you that I am going to give this the time it needs.”

The hearing was a battle of Decatur legal titans as both Wilson and the attorney representing the state, assistant attorney general Stefan Ritter, live within blocks of each other.

Wilson argued that the board members were treated as a group under the law and there was no clear sense of what they had done wrong, no access to the unnamed sources quoted in the SACs report and no identified standards under which the State Board of Education judged them as wanting.

Ritter countered that the law offers due process to the six suspended board members becasue there is an appeals process under which they can ask the governor for their jobs back.  He also argued that there has been no irreparable harm to the six, who, under the law, continue to be paid.

The audience for the hearing was mostly press and attorneys, including three lawyers from DeKalb’s general counsel and two from the state Department of Education. But there was one blast from the past, former DeKalb CEO Vernon Jones, who sat behind me.

I heard Jones debate the lawsuit with two DeKalb mothers sitting next to him. He told the women that the law “overturned the will of the people.”

The only testimony came from Bonnie Holliday, who now heads the Charter Schools Commission but testified in her prior capacity as the head of the Governor’s Office of Student Achievement.

She gave a basic primer on accreditation and why it is important, explaining that a loss of accreditation undermines the ability of high school students to get into colleges and earn scholarships.

(My view: It doesn’t make sense for college admissions and scholarships to be casualties of an accreditation loss since accreditation status in Georgia has little to do with a system’s academic performance. It focuses solely on how smoothly and effectively the school board operates.)

Wilson noted that SACS didn’t even consider academics when it reviewed DeKalb’s status. He cited the standards in the SACS report.

“None of those standards addresses academic achievement,” Wilson told Holliday. In fact, Wilson, one of  two investigators appointed by Gov. Perdue  to lead the statewide probe of CRCT cheating, pointed out that DeKalb saw greater gains last year on the CRCT than the state average and showed improvement in 24 of 30 areas.

That may be, said Holliday, but her own quick review of DeKalb’s data showed neither significant improvements nor decline in scores over the last five years.

Here is a summation of the problems that Wilson and his associate Stephen G. Quinn cited in the law. Please note that these are not my contentions. This is a summary of the attorney presentations:

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.”

–From Maureen Downey, for the AJC Get Schooled blog