By Ty Tagami
The Atlanta Journal-ConstitutionUpdated: 11:05 p.m. Wednesday, Feb. 20, 2013 | Posted: 11:22 a.m. Wednesday, Feb. 20, 2013
When a private accrediting agency downgraded the DeKalb County school district last year, it said its allegations were built on “significant and irrefutable evidence.”
On Thursday, the nine elected members of the DeKalb school board must confront that evidence, which is based on anonymous interviews and documents that are mostly not identified specifically.
The Southern Association of Colleges and Schools has alleged mismanagement and threatened to strip accreditation, imperiling the fortunes of college-bound students in Georgia’s third largest district. The agency’s judgment carries real legal clout, too, since it could cause the ouster of officials elected by local voters.
That has spawned a lawsuit over the Georgia constitution that will be decided later. DeKalb sought a restraining order against the state, but filed it too late to affect today’s hearing. A Fulton County judge will consider the request next week.
In the meantime, DeKalb officials must argue their innocence before the Georgia Board of Education without being able to cross-examine key witnesses and not knowing which documents support which allegations.
Atlanta Attorney Warren Fortson said that task will be difficult given the vague nature of the 20-page SACS report.
“It’s predicated on anonymous sources,” said Fortson, who was general counsel for Atlanta Public Schools for more than two decades. “You can’t defend yourself against smoke.”
The report identifies sources as “interviewees,” “stakeholder interviews,” “artifacts” or “various forms of evidence.”
“Interviewees described a feeling of hopelessness,” it says, and “based on evidence from numerous interviews, several board members continue to make harassing calls and visits to schools.”
Mark Elgart, the president and CEO of SACS parent company AdvancEd, said soon after he released the report in December that SACS promised anonymity to induce people to talk.
“We don’t have subpoena power,” Elgart said. (He didn’t return calls for comment Wednesday.) Elgart acknowledged that his agency’s judgment hinged on the truthfulness of the 50 people interviewed, most of them administrators or school principals. But he said SACS used only anecdotes that his investigators could confirm with other interviews and “boxes” of documents or that sounded consistent with similar incidents described by multiple sources.
Elgart refused to release the documents the agency used for the report because, he said in December, he did not want to subject it to “critique.”
Critics say that approach allows SACS to make bold assertions that cannot be independently verified — or contested. That’s a central claim in the lawsuit DeKalb filed Tuesday attempting to halt the proceedings. Fulton County Superior Court Judge Kelly Amanda Lee decided Wednesday not to stop the state hearing, but she also scheduled a court date next week that could tie the governor’s hands.
A 2011 Georgia law allows removal of board members in school districts that SACS or other accrediting agencies have placed on probation. The law requires the state education board to make a recommendation to the governor. If the recommendation is for removal, Gov. Nathan Deal can suspend the entire board and name replacements.
But DeKalb alleges in court that this is unconstitutional because the law “illegally defers to the unelected and unaccountable SACS” the power to initiate suspension proceedings “without any inquiry into whether an elected local board of education member has committed any misconduct.” It “unconstitutionally creates an unreasonable qualification for local school board members: that they must remain in the good graces of an unelected, unaccountable private agency.”
Another Fulton judge has stopped the state in a similar case. A majority of the Sumter County school board sued the state in November, and Judge Bensonetta Tipton Lane granted a temporary injunction that is still in place. The lawsuit is pending, with no court date set.
Don McChesney, a former DeKalb board member, said he thought the law enabling removal of the board wouldn’t withstand court scrutiny. “I’m not trying to defend the board. I think most of them ought to go,” McChesney said. “But I do think it’s unconstitutional.”
McChesney, who served during the period SACS reviewed, doesn’t envy the task his former colleagues face today. “How can they defend themselves when they are not sure as an individual what they are charged with,” he said.
Only one board member, former chairman Eugene Walker, is referenced directly in SACS’ report, and only by title, though many of the accusations center on individuals. (New board member Melvin Johnson was selected chairman by a 7-2 vote of the board Wednesday.)
Walker couldn’t be reached for comment Wednesday, but he’s spoken often about the report. He’s particularly galled by an assertion of his “interference” in hiring when, on Aug. 24, he sent an email to then-Superintendent Cheryl Atkinson recommending someone for a job.
“Please know that I have met this young man and he is the brother of one of our board … I would appreciate any assistance that you could provide,” the report quoted the email as saying.
Many took that to mean Walker was endorsing the brother of someone with power — a board member. After reviewing the email though, Walker said he realized he sent it in reference to the brother of someone with little power — the unelected school board secretary, an employee who schedules board meetings and keeps notes on them.
Walker said he thought the use of an ellipses was intentional. “They know they are misleading on that,” Walker said last month.
Such details may not matter in the face of growing public ire.
Michael Swahn, who has three kids in DeKalb schools, said the board members’ use of taxpayer money to hire lawyers to prevent their own ouster is “disgraceful.”
“Paying lawyers to save their jobs. It looks like a group trying to cover something up,” Swahn said. “I think they should save face and step down before they’re removed.”
Swahn attended a Wednesday morning gathering at a north DeKalb elementary school where new interim superintendent, former Georgia labor commissioner Michael Thurmond, was a speaker.
Even Thurmond could sense the ill political wind.
“I would question your sanity if you were not angry right now,” Thurmond told the parents. He also laid the blame at their feet. “I didn’t elect the board,” he said. “You did.”