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Chapter 9 - School Law: The Basics

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Service on a board of education today requires board members to become familiar with a number of legal principles, as set forth in statutes and decisions of our federal and state courts.  The General Assembly and the Congress have enacted numerous laws that affect the governance of our public schools, as well as the rights of employees, students and parents.  We live in a litigious society, one in which parents, students and employees readily sue if they believe their rights under the law have not been respected.  School board members must be sensitive to the issues which may have significant legal consequences in order to comply with the laws affecting school districts, not only to avoid suits, but to avert claims from other agencies which may result in loss of state and federal funds.  From conducting board meetings to insuring due process of law for students and employees, board members are challenged to become aware and stay current on the laws and court decisions that apply.

 

The area of school law is exceedingly broad and complex.  The subject resists exposition in a brief summary fashion.  It is not possible to deliver succinctness and simplicity without sacrificing completeness and accuracy.  Therefore, this paper is limited to the identification of a few of the more important areas of school law affecting school board members.

 

School law has become a specialty within itself.  Some twenty-five years ago, a general practitioner could represent school boards in almost every area of school law without much difficulty.  Now there are many new federal and state laws, United States Supreme Court decisions, federal court decisions and state court decisions that have enormous impact on the authority and discretion of a board of education.  A school board member today must be conscious of the rights of many groups of people and students that some 30 years ago did not exist.  Teacher rights, student rights, children with disabilities rights, parental rights, rights of persons claiming discrimination on the basis of sex, race, color, religion, national origin, age or disability--all now demand recognition; board members must act carefully in setting the direction a school system will take in order to avoid colliding with the vested interests of these protected groups.

 

This chapter will identify a few areas of the law and suggest some areas where board members should proceed with caution.                                                                       

 

Authority of Individual Board Members

 

The General Assembly has tried to define the "fundamental" role of the board as establishing "policy... with the focus of student achievement" and the superintendent as "implementing" that policy. Boards are cautioned againts "micromanaging" the superintendent buat are directed to hold him or her "accountable." Of course, the rest of the Georgia code is full of duties and responsibilities imposed on the superintendent, boards and the district making it essential, however the division of responsibilities is defined, that board and superintendent work effectively as a unit.

 

A board member individually has no legal authority to take any action on behalf of the board unless specifically authorized by the board.  Although a board member is a public official, a board member, acting individually, has no authority to make decisions or commit the school district to any action or decision affecting the operation of the schools.  It is only the board of education acting as a body that has authority to make decisions and decisions may only be made during regular or specially-called public meetings.

 

The board of education must hold a regularly scheduled monthly meeting at a time and date established by the board at the beginning of each calendar year.  Notice must be given to the public of the date and time the board has established for its regular monthly meeting by advertisement in the official organ of the county or another county paper of equal or greater circulation at the beginning of each year.  The board may change the date and time for holding its regularly scheduled monthly meeting only once during any calendar year and the public must be advised of any change by advertisement in the newspaper two weeks in advance.  The board may call special meetings as often as is necessary for the board to conduct its business.  The board by policy may delegate to its chair or superintendent or both the authority to call special meetings when the chair and/or superintendent believes such meetings are necessary.  Otherwise, the board may call such special meetings when a majority of its members determine it is appropriate.                                                                         

 

 

Open Meetings Law

 

It is vital for board members to be conscious of the Open Meetings Law enacted and regularly amended by the Georgia legislature.  Essentially, the law requires that all meetings of a board are public, with only few exceptions.  A meeting of the board is defined as “the gathering of a quorum of the members” of the board “or of any committee of its members,” “pursuant to schedule, call or notice” at which time official business of the board is either discussed, presented or action is taken.  Thus, if a board chooses to meet in a “work session” or “committee of the whole,” such a meeting must be a public meeting, even if the board has agreed no action will be taken.  Also, all meetings of committees of the board, whether standing or special, must be in compliance with the Open Meetings Act, even if the committee consists of members numbering less than a quorum of the board.

 

In order to legally hold a special meeting of the board, “due notice” must be given to the public at least twenty-four hours in advance by posting at the place where the board holds its regular meetings a written notice to the public as to the date, time and place of the called meeting.  Also, in addition to posting notice of a called meeting, the board must give “written or oral notice” (presumably by telephone or facsimile) to the legal organ in the county or another newspaper having a general circulation in the county equal to the legal organ.  If the legal organ is published less than four times weekly and if requested in writing, the board by telephone or facsimile must notify any broadcast or print media requesting such notice of each called meeting.  It is wise, but not required, for the notice of a called meeting to be given in writing to the required news media by facsimile and that a record be maintained of the transmission and the printed receipt indicating that the transmission was received.

 

When an emergency arises and a meeting of the board must be held with less than twenty-four hours notice, notice at least by telephone must be given to the legal organ or to a newspaper having a general circulation in the county at least equal to that of the legal organ of the meeting and this notice must specifically contain the subjects to be discussed at the emergency meeting.  In this circumstance, the minutes of the meeting must reflect what the reason for the emergency meeting was and how notice was given to the public.  Again, the use of facsimile machine as previously described is recommended so that there is a record of the notice given.

 

The Open Meetings Act requires that the agenda for any meeting, regular, called, or emergency, be posted “as far in advance of the meeting as is reasonably possible ... but not more than two weeks prior to the meeting ... [but] at a minimum, at some time during the two-week period immediately prior to the meeting.”  The agenda should be posted in the same location as the notice of meetings is posted.  The board may add to or delete items from the posted agenda during a meeting and may lawfully conduct any business which may come before the governing body, which was not known in time to be included on the posted agenda, but which becomes “necessary” to address during the meeting.

 

A board may close a meeting or go into executive session from which members of the public and news media are excluded only for very specific reasons indicated in law.  When the board closes a portion of its meeting, a majority of members present must vote to do so in an open meeting and the minutes “shall reflect the names of the members present and the names of those voting for closure, and that part of the minutes shall be made available to the public as any other minutes.”  The specific reasons for closing the meeting also must be included in the minutes.  Therefore, a member seeking to close a meeting should offer a motion to do so, stating the specific purpose, which should be one of the reasons the Act permits to close a meeting.

A board may discuss or deliberate in a closed meeting “the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee, but not when receiving evidence or hearing arguments on charges filed to determine disciplinary action or dismissal of a public officer or employee.”  The vote on any personnel matter must be taken in public.  Meetings of the local board to discuss or take action on the filling of a vacancy on the board must be open to the public as well.

 

If the complaint will result in a disclosure of information concerning a student’s school records, then the federal law, Family Educational Rights and Privacy Act, forbids the disclosure of this information unless the parents or guardian of the student have granted written consent. 

 

When a school board is considering student disciplinary matters, including appeals from student disciplinary tribunals, the board must close its meeting for this purpose.  As indicated previously, boards must close meetings when considering any issue that would require the identity of students and the content of their school records to be disclosed without prior express written consent of their parents or guardians.

 

A board may “consult and meet” with its attorney to discuss “pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought by or to be brought by or against” the board or any officer or employee of the board.  However, the Act forbids a meeting to be closed for advice on whether to close a meeting.

 

Future acquisition of real estate may also be discussed, and action concerning the same may be taken, in a closed meeting.  However, once the real estate has been acquired or the effort abandoned, the minutes that recorded the action taken must then be open to the public.  This same exception to the Act does not apply when the board is considering the sale of real estate it owns.

 

The evaluation of the superintendent may be discussed and completed in a closed meeting of the board and the evaluation of any other employee may be discussed in a closed meeting.

 

These are the only exceptions to the Open Meetings law.  If the board discusses or takes action in an unauthorized closed meeting, then the action taken by the board in violation of law may be held invalid by the superior court if challenged within the time provided by the Act.  Board action may also be invalidated if the board misleads the public into believing that a meeting is adjourned, but then improperly holds discussions or takes action after the public departs.  Courts have held that, although the Open Meetings Act does not create an affirmative duty on the board to inform the public of their right to remain at a meeting, where the board undertakes to advise the public, that advice must not be misleading.  In addition, board members may be subjected to fines if the provisions of the Open Meetings law are intentionally violated.  There have been instances of members of public bodies being prosecuted for violation of the Open Meetings law resulting in fines not exceeding $500.00.

 

The Open Meetings Act places a greater burden on the chairs of the board to monitor compliance with the Act since the individual presiding over a closed meeting must execute a notarized affidavit when that body closes any portion of a meeting to the public.  This affidavit must state that the subject matter of the closed portion of the meeting “was devoted to matters within the exceptions provided by law and identifying the specific relevant exception.”  This affidavit must be filed with the minutes of any meeting during which a closed portion of the meeting is held.  In light of this responsibility, the chair especially, and all members of the board, need to understand clearly the provisions of the Act which permit closed or executive sessions.  However, it is part of the chair’s task to guide the members at all meetings to stay within the parameters established by law.  Unfortunately, the Act is not without ambiguity; there will be occasions when the whole governing board must use its best judgment as to how to comply with the Act in particular circumstances.  Boards may use the chairman's affidavit distributed by GSBA as a checklist for when the board may enter into executive session.           

 

 

Open Records Law

 

Georgia’s Open Records Law is broad indeed, and requires that all “documents, papers, letters, maps, books, tapes, photographs, computer-based or computer generated information or similar materials and records prepared and maintained in the course of the operation of a public office” be available for inspection and copying by members of the public.  The General Assembly and the courts of Georgia have given the state’s Open Records Act a very broad scope in order to foster its purpose of encouraging “public access to such information in order that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions, but also to foster confidence in government through openness to the public.”  The Act requires all public records, except those specifically required to be kept confidential by court order or state or federal law, of a public entity to be open for inspection by a citizen at a reasonable time and place. However, the Act does not require public officials to respond to requests for information not contained in records nor to prepare reports or compilations that are not in existence at the time of the request.

 

In addition, there are a number of exceptions to the Open Records Act, which make certain records exempt from public disclosure.  However, while the scope of the Act is construed very broadly, the state courts construe exceptions to the Act very narrowly.  While not every exception in the Open Records Act will apply to school districts or other educational entities, there are several which routinely apply:

 

1.  Records that are specifically required by the federal government to be confidential.  One of the more important federal laws, which require confidentiality for some records, is the Family Educational Rights and Privacy Act (FERPA).  Under FERPA, educational records are specifically required to be confidential and can only be disclosed after parental consent is obtained, at least for those students still in school and under the age of eighteen.  If the student is eighteen, then his or her prior consent must be obtained.  The term “educational records” is defined to include records that directly relate to a student and are maintained by an educational institution or by a party acting for the agency or institution. It is important to note that FERPA does not require that the person be currently enrolled in an educational program.  Thus, most, if not all, of the information included in a student’s file is confidential.  Moreover, while a teacher’s employment application is an open record, his or her college transcripts may be confidential.  Our Georgia courts have not ruled upon this specific issue.  Other examples of information which is required to be confidential under federal law includes social security numbers, tax information, credit histories and FBI criminal background checks.

 

2.  Medical records and similar files which if disclosed would amount to an invasion of privacy.  Medical information that is included in a student’s file or in an employee’s personnel file should not be disclosed pursuant to an Open Records Act request.  This would include any psychological evaluations or reports and may include certain information in connection with a leave request from an employee.

 

3.  Records involving a pending investigation or prosecution of criminal or unlawful activity.  It should be noted that once an investigation has come to completion or the litigation involving the unlawful activity is final or has been terminated, the records no longer fall within this exception.  The Supreme Court has held that the fact that some of the information contained in these records may comment upon certain public employees' performance of their official duties does not warrant suppression by the courts.

 

4.  Confidential evaluations prepared in connection with the appointing or hiring of an employee.  Evaluations of personnel and all documents that are a part of the evaluation file, as required by O.C.G.A. § 20-2-210, and letters of recommendation for employment purposes are confidential and not available for inspection.

 

5.  Documents surrounding investigations used in the suspension, firing, or investigation of complaints against an employee. Once a decision has been made or the investigation has been completed, the records are available for public inspection after the passage of ten days.

 

What makes the Act more daunting is that the Open Records Act requires a board to provide the requested public records within three business days specifying in writing any records that are exempt from the Act and the legal authority for that position.  Fortunately, the General Assembly included a provision that allows a school system to provide a written response in situations where it will take longer than three days to obtain the responsive documentation – included in the response should be a description of the documents and a timetable as to when the documents will be available.

 

In addition to these exceptions, the General Assembly in the 2001 session amended the Open Records Act to allow for the redaction (or removal) of certain information.  The following information requested for school employees should be redacted or removed before disclosure: home address and phone number, social security number, mother’s birth name, credit card and debit card information, bank account information, day and month of birth, financial data and insurance and medical information.  Even though an employment application is a public record subject to disclosure, there is certain information on the application that must be redacted; for example, the applicant’s home address and phone number.  Thus, a single document can include information that is subject to disclosure under the Open Records Act but still contain confidential information.

 

Moreover, the General Assembly devised a rule to apply to employment of agency heads, which would include a local superintendent of schools.  A board is not required to release the names and records of those persons who have applied for the position of superintendent until the search has narrowed to “as many as three” of the most qualified individuals from whom the board intends to make a final selection.  The records relative to those finalists must be made available to the public at least 14 days before final board action is taken.  However, upon request, any individual may withdraw his or her name from consideration and that individual’s name may not be released; the board then may add the next most qualified individual to the list.  All records that the board has received pertaining to the finalists must be released upon request, excepting perhaps transcripts, evaluations, and confidential recommendations.

 

 

Employment of Personnel

 

All employees of the school system, whether certificated or non-certificated employees, are employed and assigned by the board of education upon the recommendation of the superintendent.  The board of education is not required to accept the recommendation of its superintendent, but is forbidden from employing any person who has not been recommended by the superintendent.  Also, no one employed by the system may be reassigned by either board or the superintendent without the approval of the other.  What is meant by assignment may be a matter of local system practice or local board policy. 

 

All employees are employed by an affirmative act of the board and no employment agreement is valid until the board has approved the same.  However, the board has no authority to compel a superintendent to recommend its choice for a particular position within the school system, as the superintendent has the discretion to recommend those individuals the superintendent believes to be the best qualified.  If the board rejects a recommendation the superintendent has made, then the superintendent should recommend someone else hopefully after discussing with the board the reasons for its rejection of the last recommendation.  Otherwise, a stalemate would be reached to the detriment of the school system.

 

There are certain restrictions on the process that a board can use to employ certain "immediate family members" of the board members (spouse, child, sibling, parent or spouse of a child, sibling or parent). No such relative may be employed or promoted without a separtate vote being taken on that employee and the related board member must abstain from voting.

 

Of more importance to board members is a recent prohibition against anyone being eligible to serve on a board of education who has an "immediate family member" on the board or employed as a superintendent, principal, assistant principal or system administrative staff if the administrator's employment began on or after January 1. 2010. There remains at this time several legal challenges pending to the implementation of the provision related to board members. An identical provision was passed to limit who can be eligible to serve as superintendent (if there is immediate family member on the board or serving as principal, assistan principal, or system administrative staff).

 


Termination of Non-Certificated Employees

 

All nonprofessional employees of the board of education, including bus drivers, custodians, maintenance workers, lunchroom workers, and office workers may be employed for indefinite terms and work at the pleasure of the board.  These employees are generally referred to as “at will” employees and may be terminated at any time the board finds they are no longer suitable or their employment is no longer in the best interest of the school system.  However, if the board has signed employment contracts with these employees for definite periods of time, then the board may not terminate these contracts without cause.

 

It is unwise to provide for definite terms of employment for nonprofessional employees in a contract, by board policy or in the board minutes.  Such contracts would require the board to hold a hearing for the termination of any employee under the Fair Dismissal Act; this would grant to nonprofessional employees rights not required by law.

 

Regardless of whether employees are serving “at will” or at the pleasure of the board, an employee may not be dismissed for a constitutionally impermissible reason.  Specifically, an employee may not be terminated because of his or her race, sex, color, religion, creed, national origin, age or disability; as to disability, the employee may not be dismissed because the employee has a disability if the employee, with reasonable accommodation, has the ability to perform the essential functions of his or her job.

 

An employee may not be terminated because that employee has exercised a constitutional right, such as the right to speak freely on matters of public concern or to be active politically outside the normal hours of his or her employment.  There are also many statutes that grant certain rights to employees, including workers’ compensation, grievance rights, and family medical leave, which include a non-retaliation provision.

 

The United States Supreme Court has reviewed in a number of cases issues involving termination of school employees for constitutionally impermissible reasons.  If a board chooses to take detrimental action involving an employee who claims that his exercise of a protected constitutional or statutory right is a motivating factor in the board’s decision or in the superintendent’s recommendation, the board should obtain competent legal advice before proceeding further in order to avoid severe legal consequences.

 


Termination or Non-Renewal of Professional Certificated Employees

 

The subject of a teacher or administrator dismissal and non-renewal is complex.  The Fair Dismissal Act of Georgia controls dismissal of professionally certificated employees under contract.  Every board member needs to be reasonably familiar with this Act since this law governs any decision affecting the contract rights of employees.  A board must carefully follow the terms of the Act in terminating, non-renewing, or demoting employees in order to avoid unnecessary litigation or appeals.

 

All educatiors are required to be employed under written contracts for a definite term. Educatiors and any other employees provided with writen contracts by the school district may not have that contract terminated during its term without a hearing before the local board (or a tribunal appointed buy the local board) at which evidence must be presented establishing that cause exists to justify the termination of the contract. There are eight such causes recognized under the Fair Dismissal Act: incompetency, insubordination, iwllful neglect of duties, immorality, inciting, encouraging or couseling a student to violate any valid sate law or rule of the local board, reduction in staff failure to secure and maintain educational training and other good and sufficient cause. The Act sets forth specific requirements as to what must be in the charge letter, how the hearing will be conducted and the right to appela to the State Board of Education and ultimately to superior court.

 

A teacher who does not have tenure as defined by the Fair Dismissal Act is not entitled to a hearing in the event his or her contract is not renewed for the next school year.  However, if the reason for the non-renewal is a cause which amounts to a stigma or mark upon the character or professional competency of the teacher which may affect the reputation of the teacher and the ability to gain employment elsewhere and this reason becomes public as a result of statements or actions of the board or administration, the teacher may be entitled to a hearing for the purpose of clearing his or her name.  No teacher may be denied a contract because of the teacher’s exercise of a constitutionally protected right, such as freedom of speech.  Caution should be exercised, therefore, in making public reasons for non-renewal of non tenured teachers.

 

Any teacher, tenured or otherwise, must be notified before May 15 of any calendar year that his or her contract will not be renewed or renewal occurs automatically.  When the board or superintendent has decided not to renew the contract of a nontenured teacher, written notice of such intention must be given to the teacher no later than May 15.  Any non-renewed teacher may request a written explanation for failure to renew and, upon request; the explanation must be furnished by the executive officer, the superintendent.

 

Tenured teachers may be non-renewed only for cause and with the right to request a due process hearing before the local board.  According to the Fair Dismissal Act, “tenure” requires three consecutive school years of service under contract with the same school system and the acceptance of a fourth contract before the teacher is entitled to a due process hearing for any subsequent non-renewal of his or her contract.  A school year for this purpose is defined as 180 days.  A teacher under contract for less than 180 days may not count that year toward the earning of tenure.

 

In addition, any teacher who has acquired tenure in one school system and is subsequently employed by another school system acquires tenure in the second system after acceptance of his or her second contract with the school system.  A teacher must be under contract for one entire school year, 180 days, and have been offered and accepted a contract for the second year with the subsequent system in order to be in a tenured status.  In other words, the new system must non-renew the teacher the first year his or her contract comes up for renewal or else the teacher automatically acquires tenure in the new system.

 

The General Assembly in 2000 amended the Fair Dismissal Act by denying the right to acquire tenure protection to any person who first became a teacher on or after July 1, 2000.  However, in 2003, the General Assembly repealed that amendment effective July 1, 2004, thus all teachers, regardless of when employed, may acquire tenure once they have met the requirements of the Fair Dismissal Act.

 

At one time, a school administrator had the same tenure protection with a local school district as a teacher, but in 1995, legislation sponsored by GSBA, essentially removed these tenure rights from school administrators.  Now, a person who first became a school administrator on or after April 7, 1995, will not acquire any tenure protection with any school district with respect to any position of school administrator.  An administrator who acquired tenure prior to April 7, 1995, will retain tenure protection in the position the administrator held immediately prior to that date and in any other administrative position to which the administrator is “involuntarily transferred or assigned.”  Further, a teacher who acquired tenure prior to April 7, 1995, and who became an administrator after April 7, 1995, without any break in service and with the same school district in which that teacher acquired tenure will retain tenure rights as a teacher with that particular school district.

 

When the superintendent or board has decided not to renew the contract of a tenured teacher or administrator, or to demote a tenured teacher or administrator, written notice of such intention must be given to the educator not later than April 15.  This notice, and all other notices required by the Fair Dismissal Act, should be served by certified mail addressed to the last known address of the teacher. The notice must be given by the superintendent who states in the notice that the teacher's employment will not be renewed for the following year and inform the teacher of his or her procedural rights, including the right to a hearing.  The notice must inform the tenured teacher that he or she may exercise these rights by mailing to the superintendent by certified mail within twenty days after the notice of non-renewal a request for reasons for the non-renewal and a hearing.  A copy of the Fair Dismissal Act, O.C.G.A. §§ 20-2-940 through 20-2-947, and 20-2-211(b) must be attached to the notice from the superintendent.

 

If the teacher requests the reasons, the superintendent must prepare a notice within fourteen days of the request very similar to the notice required in a termination case.  The grounds required for termination cases are the same grounds for denying tenured teachers a renewal of their contracts.  The failure to meet the fourteen-day deadline may automatically cause a renewal of the teacher’s contract.

 

No teacher, tenured or not, may be denied a renewal of his or her contract because the teacher is a member of the protected groups previously discussed or because that teacher has exercised a protected constitutional right.  Regardless of tenure, an employee, whether professional or not, may not be publicly stigmatized by a board of education in a manner which affects that employee’s right to obtain employment elsewhere.  Such employees would be entitled to clear their name before the board of education in a hearing to be conducted by the board.

 

In summary, it must be remembered that employees of the school system are public employees and therefore have much broader rights and protection provided by law than do private employees.  In considering the termination or non-renewal of any employee, the board must be conscious of these rights and must not take action without competent legal advice to assist the board and, hopefully, to avoid future litigation or to ensure that future litigation will be successful.  In many instances, employees who have the right to a hearing should be granted a full hearing as to all the contentions that employee may urge.  If litigation should result, courts may defer to the findings of the board if the board has followed proper procedures and afforded the employee a meaningful opportunity to be heard.

 


The School Board as Hearing Tribunal

 

One provision of Georgia school law that is often litigated and continues to be interpreted by our courts is O.C.G.A. § 20-2-1160.  This section of our code provides that every board of education "shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses or take testimony if necessary."

 

The Georgia Supreme Court has interpreted this section to require a board to conduct a section 1160 hearing as to the reasons for non-renewal of a nontenured teacher if the teacher contends he or she was not renewed in retaliation for the exercise of a constitutionally protected right.  The United States Court of Appeals for the Eleventh Circuit has held also that under some circumstances a school board must provide a hearing to an employee who had been demoted due to a reduction-in-force and who has subsequently applied to fill a vacancy in the same position held before the demotion but been denied that position.

 


Discipline of Students

 

The board of education must provide a "due process" hearing in three types of discipline cases: (1) when a principal or superintendent seeks to suspend a student from school for more than ten school days or expel that student for the remainder of the school year; (2) for an alleged act of physical violence against a teacher, school official or other school employee; and (3) for an alleged assault or battery upon any teacher, school official or other school employee if such employee so requests a hearing.  Under state law, this responsibility is given to disciplinary tribunals or a hearing officer as determined and selected by the school board.  However, if the student or parents are dissatisfied with the recommendation of a disciplinary tribunal or hearing officer, they may appeal the decision to the board of education for determination. 

 

When a student disciplinary hearing is necessary, the charges against the student must be presented in writing to the student and parents before the hearing.  The charges must be in sufficient detail to permit the student to defend himself or herself and should include a brief description of the offense, the names of the witnesses, the fact that the student has the right to be represented by counsel, and to have subpoenas issued by the board for witnesses or documents.  The hearing is to be held no later than ten school days after the beginning of the suspension.  At such a hearing, the burden is upon the school system to prove by a preponderance of the evidence that the student has committed the offense for which the student is charged.  This burden may be carried by the witnesses or documentary evidence presented to the tribunal or hearing officer.  The student has the right to be represented by counsel and cross-examine witnesses presented by the school system and to present his or her own witnesses and documents.  As explained earlier, such hearings and any appeals must be conducted in executive session for the protection of the students.

 

Local school systems must adopt grievance procedures for students who may have been harassed or subjected to discrimination based upon their race, color, sex, national origin or disability.  These grievance procedures should direct a student or parent to someone in the school who will investigate and recommend corrective action designed to protect the student from discrimination or retaliation for the complaint.  The failure of a district to have in place reasonable grievance or complaint procedures for students may cause a school district to be subjected to federal agency investigations or litigation.

 

The 2004 General Assembly amended several provisions of the Georgia code concerning student discipline.  The list of conduct that must be addressed in a student code of conduct was expanded to include a total of 16 items, now includes a total of 17 items, which must also cover behavior on school buses.  Student codes of conduct must also address off-campus behavior of a student which constitutes a felony and which makes their continued presence at school potentially dangerous or which disrupts the educational process. Local board policites must provide that the superintendent will fully support the authority of principals and teachers to remove disruptive students from a classroom.

 

The legislature also provided for the creation of a "student attendance protocol committee" in each county. Each committee is established by the judge of the superior court of the county and both the superintendent and a local school board member from each school system in the county are to serve on the commitee. After adoping a protocol, the committee is to meeti at least twice annually to evaluate compliance wit the protocol, effectiveness of the protocol, and appropriate modifications.

 

 

Charter Schools and Local School Governance

 

Charter schools are public schools that operate pursuant to a charter or contract waiving compliance with most state laws, State Board of Education rules, and local board policies as defined in the charter.  There are various types of charter schools.  Conversion charters involve an existing public school within a local school district that decides to convert to a charter school in order to take advantage of flexibility and often to implement some particular program or curriculum.  Local startup charters involve an agreement between the local board of education and a private group to form a new school within the community.  Boards of education also have the option of creating a charter system whereby every school in the district operates under the terms of a single charter taking advantage of the flexibility provided by the law.  A related concept is a cluster charter formed around a high school and its feeder middle and elementary schools, creating something of a partial charter system within the larger school district.  All of these charters must be approved by the local board of education and the State Board of Education.  However, another option exists as a result of a 2012 amendment to the state Constitution.  State commission charter schools do not involve an agreement or approval by the local board of education.  In many cases, the charter must first seek approval from the local board, but if it is rejected, it can then seek a charter directly from the State Charter Schools Commission and, if approved, it functions independently of the local district totally.  No matter the nature of the charter, one of the key elements involves the creation of a local governing council with significant authority defined within the charter to make decisions governing the school. 

Local school councils are required for all schools that are not charters.  A school council consists of at least seven persons, but must contain a majority of parents, two of whom must be business persons, two teachers, the principal, and others as set forth in the council’s by-laws.  The chair of the council must be a parent.  The council meets at least four times a year and provides advice and recommendations to the principal, superintendent and board.  The board of education is to respond to the recommendations of a council within 60 days after being notified in writing of the recommendation. 

 

 

  

Policies And Procedures

 

The board of education is best served when it chooses to act through established policy which has been carefully developed and deliberated and which is followed consistently in the administration of the school system.  Before enacting a policy, the board should first determine whether a policy is needed in a particular area, and, if needed, what its provisions should include to ensure as nearly as possible that any contingency can be resolved by the application of the policy and that the policy is legal and fair to all those affected.  Policy manuals should be reviewed often and any policy not needed or whose purpose has been forgotten should be repealed.

 

A policy manual should avoid unnecessary policies that impede the board's exercise of its discretion. Policy manuals may include job descriptions and expectations for employees. Policy manuals should include expectations of student's behavior through codes of conduct.  Policies should be prepared when orderly procedures are required for carrying out the mandate of certain laws. The board's attorney should be involved with the board, the superintendent and the administrative staff in drafting policies and in determining whether policies should remain or be repealed.

 

For subscribers to GSBA eBOARD and the eLAW module, more information is available on what Georgia law says about roles and responsibilities and school board ethics. Go to your local eBOARD site. If your district subscribes to eLAW, it will be under the Legislation tab. It provides an excellent source of school law information for school board members, superintendents and those in administrative positions with school systems.
 


Conclusion

 

It cannot be overemphasized that board members should stay informed as to the development of school law and be able to recognize when issues involving application of law arise so that a board will not take action without being aware that there are legal consequences.  Your school board attorney should be well-versed and informed in school law and should participate with other school board attorneys in the activities of the Georgia Council of School Board Attorneys in order to be of value to the school system. 

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