The 17-page ruling shows judge worried more about harm to students than to school board members

Here are key passages in Judge Story’s 17-page ruling, which does call for questions about the state law authorizing the removal of school board members to go to the state Supreme Court.

But, in the meantime, the judge allows the suspensions to stand and replacements to be named.

From the ruling:

The School District has no interest in any particular person serving on the school board. Rather, the interest of the School District is that a duly constituted board be in place so that it can conduct business. The School Board Suspension Statute assures continuity of operations through appointments by the Governor to fill vacancies created by the suspensions. Thus, the loss of any property interest by the School District is not apparent to the Court. In the absence of a showing of loss of a property interest, the School District would lack a key element in its Fourteenth Amendment claim.

Based on the foregoing, the Court concludes that the School District has failed to show a substantial likelihood of success on the merits of its Fourteenth Amendment claim.

Dr. Walker’s claim:

The Court finds that the SACS report provided the Board Members adequate notice. The report contains specific allegations of conduct that violate applicable standards and policies. Though more specificity could have been provided, an “ordinary person exercising ordinary common sense can sufficiently understand” the allegations. The Court further finds that the hearing before the SBOE met the basic requirements of pre-termination due process.

Moreover, the Statute provides additional process before a termination can take place. If a Member petitions for reinstatement, subsection (c) provides for another hearing (conducted in compliance with the Georgia Administrative Procedure Act) and judicial review. Thus, there is considerable evidence that due process as required by the Fourteenth Amendment has been satisfied. Based on the foregoing, the Court finds that Dr. Walker has failed to show a substantial likelihood of success on his Fourteenth Amendment claim.

In this case, the Court finds that comity requires that the state law issues raised by Plaintiffs be decided by the courts of the State of Georgia. Having reached this conclusion, the Court is faced with two alternative means of obtaining that result. The Court may simply abstain from deciding the issue and leave it to Plaintiffs to pursue their claims in the State judicial system. Alternatively, the Court can certify the issues to the Georgia Supreme Court for decision.

Rather than having to wait on a newly-filed state action to work its way through to appeal, this Court can promptly certify questions to the Supreme Court. Believing that time is of the essence, the Court chooses to proceed by certifying questions to the Georgia Supreme Court. This approach will assure that a State court decides these issues that are so directly related to state institutions and state functions and will further assure that a decision is made as expeditiously as possible.

Therefore, the parties are directed to confer in an effort to agree upon certified questions for submission to the Georgia Supreme Court. If the parties are unable to agree within 10 days of the entry of this Order, each party shall submit proposed certified questions to the Court.

C. Injunctive Relief
Neither Plaintiff has satisfied the requirements for a preliminary injunction based on the Fourteenth Amendment claims. The question of injunctive relief on the state claims is a closer question. Until the Georgia Supreme Court rules on the certified questions, the likelihood of success on the merits of Plaintiffs’ state law claims is uncertain. While Plaintiffs make persuasive arguments challenging the School Board Suspension Statute, the  suggestion in Roberts v. Deal, 723 S.E.2d 901, 903 (Ga. 2012) that the General Assembly is “presumably” authorized “to establish a mechanism for the administrative removal of board members” weighs against their position.

Assuming Plaintiffs could show a substantial likelihood of success on the merits, the Court finds that consideration of the harms at stake does not favor issuance of a preliminary injunction. At this time, the harm to Plaintiffs is their temporary inability to perform the duties of the office to which they were elected.

Because they are presently suspended with pay, they are suffering no monetary loss. Of course, if they are permanently removed as authorized by the Statute, they will suffer the loss of their positions and the compensation therefor. The latter consequences can only occur after they have been afforded the process provided by the Statute. In the event Plaintiffs ultimately prevail in the case, they will be reinstated to their positions and will receive compensation to which they are entitled. Thus, if they ultimately prevail, they will have only suffered they will have only suffered the loss of the opportunity to serve in their elected office for a limited period of time.

The most significant competing interest to that of Plaintiffs is the interest of the public. Though the public has an interest in its elected officials being allowed to serve in the offices to which they were elected, there is an even greater public interest at stake here. The interest of the public in a healthy public school system outweighs the interests of board members in serving in their positions. Though Plaintiffs have refuted some SACS’ allegations which served as part of the basis for the recommendation of the SBOE that they be suspended, there was sufficient evidence to convince SACS and the SBOE that actions of the Board were in violation of applicable standards and policies.

In fact, the violations were so egregious that the School District was placed on “Accredited Probation,” the level of accreditation immediately preceding loss of accreditation. The harm from the loss of accreditation to the School District and the resulting harm to the students in the district are profound.

To permit the Board Members to continue to serve while their individual claims are resolved risks substantial consequences for the School District and its students. The Court finds that this risk of harm far outweighs the risks to the Board Members. Should Plaintiffs prevail, the Board Members can more nearly be made whole than can the students if the return of the members results in loss of accreditation.

–From Maureen Downey, for the AJC Get Schooled blog