Big decisions awaited after DeKalb school board hearings

By Ty Tagami
The Atlanta Journal-Constitution

The hearings have ended in the case of the DeKalb County school board shake-up, and if the testimony was truthful, thenat least some of the suspended members did nothing improper.

Witness after witness took the stand in proceedings that ended last week, asserting that one board member or another followed the rules and behaved professionally. The implication was that allegations brought by an accreditation agency were groundless.

That agency, the Southern Association of Colleges and Schools, judged that the school board was guilty of poor governance. It also alleged misdeeds by unnamed board members, but offered little to defend those assertions during the hearings, which started in June. SACS' opinions informed Gov. Nathan Deal's decision to suspend six board members in February and appoint replacements in March.

Now, parents and voters in DeKalb await a judge's recommendation and, ultimately, a decision by Deal on whether to reinstate suspended members or permanently remove them. Lurking in the background is a Georgia Supreme Court case that challenges the legality of the process and could restore the members to the seats they were elected to hold.

DeKalb's accreditation has been under threat since December, when SACS placed Georgia's third-largest school district on probation, alleging financial mismanagement, nepotism and meddling by the school board. Accreditation affects college and scholarship prospects, not to mention real estate values. So 98,000 schoolchildren and hundreds of thousands of DeKalb residents have a stake in the outcome.

In the reinstatement hearings, SACS was hampered by its own policy that guarantees anonymity for informers. The names of neither the accusers nor the accused appear in the pages of the damning report SACS released with its probation decision. Because of the anonymity, it is unclear what most individual board members are accused of doing.

Ken Bergman, the head lawyer for SACS parent company AdvancED, said on the witness stand last week that the interviews by him and the rest of the team that visited in October were never intended to produce evidence against individuals for use in such hearings.

"This is not an investigative act," he said. "This is a collegial act to determine the accreditation status of a school or school system." The team's role, he said, was "not to go ahead and make a determination as to whether or not the individual board members are responsible."

Of the six who were suspended, all but Nancy Jester petitioned Deal to reconsider. Jester is off the board now, but the remaining five - Pam Speaks, Sarah Copelin-Wood, Eugene Walker, Jesse "Jay" Cunningham and Donna Edler - will continue drawing their $18,000 salaries unless Deal rejects their requests. They each argued before a Georgia Office of State Administrative Hearings judge that their individual culpability or innocence was crucial in determining their fitness for reinstatement.

And that, they said, was impossible to prove without an opportunity to examine whatever specific evidence SACS may have.

Consider this exchange in last week's hearing for Edler.

Her lawyer, E. Brian Watkins, grilled Bergman, demanding to know what Edler had done wrong.

Bergman's response: She served on a board that was deeply flawed and unworthy of full accreditation.

Watkins: And what could she have done to distinguish herself from that board beyond casting a minority vote, which she often did?

Bergman: She could have publicly censured the board for any wrongdoing she knew about.

Watkins: How do you know she didn't try?

"How," Bergman said, "would I have evidence of something she didn't do?"

Bergman had been sequestered earlier, when Edler had described in sworn testimony how she once tried to bring a censure action but was stymied by policy and the chairman. She said no one from SACS asked her about it, and Bergman could not refute that since his agency didn't keep the interview notes. (He said SACS couldn't afford the storage costs.)

Lynn Deutsch of Dunwoody was one of two parents interviewed by SACS for the December report, and she said she was disappointed by the quality of the investigation. She agrees with the agency's conclusions about meddling and mismanagement, but thinks SACS could have done a better job unearthing evidence.

"While they got the tone and the tenor of what's been going on in the school system right," she said, "the examples they used to illustrate this didn't reflect the seriousness of the situation."

Animosity against the school board was growing intense when the governor was weighing whether to remove the board.

Viola Davis, a longtime government watchdog, testified that she and other volunteers started a recall campaign soon after SACS placed the district on probation. They hit the streets with a petition, but for every signature they got they encountered eight to 10 people who wanted immediate action.

"A majority of the people wanted the governor to remove the board," she said.

The law requires the judge's recommendation to the governor - and the governor's ultimate decision - to answer a seemingly simple question: Would each board member's reinstatement be "more likely than not" to improve the school system's ability to regain full accreditation?

Evidence of past good or bad behavior may be relevant, but the opinion of the people who control the accreditation decision probably counts more. And both Bergman and AdvancED leader Mark Elgart told Judge Maxwell Wood that DeKalb's best chances for full accreditation are with the replacement board members handpicked by Deal.

But maybe the pending decisions by Judge Wood and the governor won't matter.

Walker has challenged the constitutionality of the law that authorizes Deal to remove the board, and the Georgia Supreme Court will render a decision by the fall.

Legal expert Ronald Carlson said his reading of the case suggests that the main legal question is not one of due process and evidence. It is whether the state constitution allows the General Assembly to make an accreditation agency's opinion the grounds for undoing the will of the voters.

Whether the state must prove individual wrongdoing seems a "side point," the University of Georgia law professor said. But he said it's difficult to anticipate where the court will focus. "As we learned from the U.S. Supreme Court case over Obamacare," he said, "sometimes the side argument carries the day."

WHAT'S NEXT?

Judge Maxwell Wood is expected to issue a recommendation to Gov. Nathan Deal within 30 days of the hearings, which ended last week. Deal will then decide whether he wants to reinstate some or all of the five suspended board members who petitioned him. If he reinstates any board member, the appointee to that post will be removed.

By fall, the Georgia Supreme Court must decide constitutional questions about the law authorizing the governor to remove board members over accreditation concerns. A decision in favor of former board chairman Eugene Walker could restore him and his five former colleagues to the board.