Education Law - Jerry A. Lumley

• Publication year: 2003

Education Lawby Jerry A. Lumley^*

While the 2003 session of the Georgia General Assembly did not produce as much legislation in the area of school law as in years past, significant school legislation was signed into law by Governor Perdue in 2003. Additionally, Georgia's appellate courts issued several important decisions in this area. This Article discusses the significant legislation passed and major appellate decisions issued during the survey period.

I. Legislation

A. Relaxation of Expenditure Controls and Maximum Class Size Requirements

Georgia authorizes funding for nineteen instructional programs.¹ The State Board of Education annually computes the total funds needed for direct instructional costs for each program for each local school system.² For each program, each local school system must "spend a minimum of [ninety] percent of funds designated for direct instructional costs on the direct instructional costs of [that] program at the school site in which the funds were earned."³

These expenditure controls will be relaxed for one year because of the financial constraints many school systems are facing.⁴ During the 20032004 school year only, each local school system may spend one hundred percent of funds designated for direct instructional costs for each authorized instructional program on one or more of the state-authorized programs at the system level.⁵ Further, there is "no requirement that the school system spend any specific portion of [the] funds at the site where [the] funds were earned."⁶ Two exceptions to this exception exist. "Direct instruction[al] funds for the kindergarten early intervention program, the primary grades early intervention program, the upper elementary grades early intervention program, the remedial education program, and the alternative education program shall be expended on one or more of these programs at the system level . . . ."⁷ But, there is "no requirement that the school system spend any specific portion" of the funds for these programs at the site where the funds were earned.⁸ Similarly, "[e]ach local school system [must] spend [one hundred] percent of the funds designated for media center costs" and media materials at the system level.⁹ Again, there is no requirement that the funds for these programs be spent at the site where they were earned.¹⁰ Even in these areas, staff development funds may be spent on any state authorized program.¹¹

The State Board of Education is required to adopt, for each instructional program, "the maximum number of students [that] may be taught by a teacher in an instructional period."¹² For funding purposes, the maximum class size for each program may not exceed ratios established for each instructional program by more than twenty percent.¹³ Further, under the Education Reform Act of 2000, the State Board of Education was required to lower the maximum class sizes that were in effect for the 1999-2000 school year "by a proportional amount each school year so that, beginning with the 2003-2004 school year, [the] State Board of Education rules are in compliance" with the maximum class size statutory requirements.¹⁴

Again, because of financial constraints, these requirements have been relaxed for one year.¹⁵ The maximum class sizes established by the State Board of Education for the 2002-2003 school year will be applied to the fourth through twelfth grades during the 2003-2004 school year.¹⁶ These maximum class sizes will also apply to kindergarten and the first through third grades during the 2003-2004 school year, with the exception that a kindergarten class may be increased to twenty students if a paraprofessional is assigned to the class with a certificated teacher.¹⁷ During the 2003-2004 school year, a school system's compliance with maximum class size requirements at each grade level will be determined by the school system average for that grade level.¹⁸ However, no class can exceed the maximum class size applicable to that class by more than two students.¹⁹

B. Recruitment of Student-Athletes

Legislation designed to curtail improper recruitment of, and payments to, student-athletes in Georgia was passed in 2003.²⁰ It is now illegal to

give, offer, promise, or attempt to give any money or other thing of value to a student-athlete or member of a student-athlete's immediate family: (1) [t]o induce, encourage, or reward the student-athlete's application, enrollment, or attendance at a public or private institution of postsecondary education in order to have the [student-] athlete participate in intercollegiate sporting events, contests, exhibitions, or programs at that institution; or (2) [t]o induce, encourage, or reward the student-athlete's participation in an intercollegiate sporting event, contest, exhibition or program.²¹

Exceptions to these prohibitions exist. Public or private institutions of postsecondary education and officers or employees of such institutions, when acting in accordance with an official written policy of the institution that is in compliance with the bylaws of the National Collegiate Athletic Association, are not subject to this law.²² Similarly, exceptions exist for intercollegiate athletic awards, grants-in-aid and scholarships, members of the student-athlete's immediate family, and money or things of value in an annual amount less than $250.²³

Criminal penalties apply to violators of the student-athlete recruitment and payment provisions. A person who violates the prohibitions imposed by O.C.G.A. section 20-2-317(b)²⁴ "shall be guilty of a misdemeanor of a high and aggravated nature."²⁵ Additionally, high school student-athletes must receive written notice of the law.²⁶ At the beginning of each sports season, every high school in Georgia must give written notice of the provisions of section 20-2-317(b) to each student who participates in any interscholastic athletic program sponsored by the school and must provide each student with information concerning the effect of violating this law.²⁷

In addition to criminal penalties for recruiting or paying student-athletes, violators can be subjected to civil actions for damages and injunctive relief.²⁸ Every Georgia public and private postsecondary education institution now has the right to bring suit against any person whose involvement with a student-athlete causes the institution to be "penalized, disqualified, or suspended" from participating in intercollegiate sports.²⁹ The institution is entitled to recover all damages related to improper activity.³⁰ These damages include: "loss of scholarships, loss of television revenue, loss of bowl revenue, and legal and other fees associated with the investigation of the activity and the representation of the institution before the sanctioning organizations."³¹ If the institution prevails, it also can recover court costs and litigation expenses, including attorney fees.³² Any person found liable may also be enjoined from attending any athletic event sponsored by the institution and from having any further contact with the institution and any of the institution's student-athletes or prospective student-ath-letes.³³

C. Salary Increase for Increased Test Scores

Effective July 1, 2004, a tenured teacher, whose students earn a "significant increase" in average scores on tests selected by the State Board of Education in a school year following a school year in which the students were taught by that teacher, is entitled to a five percent increase in his or her annual state salary.³⁴ The State Board must define the term "significant increase."³⁵ The increase in salary for a significant increase in test scores is supplemental to all other salary increases.³⁶

D. Tenure Rights for Teachers

The Education Reform Act of 2000 excluded teachers employed on or after July 1, 2000 from acquiring rights to continued employment under the Fair Dismissal Act.³⁷ Effective July 1, 2004, "[a] person who first became a teacher on or after July 1, 2000, shall acquire rights . . . to continued employment as a teacher" under the Fair Dismissal Act in the same manner as teachers who were employed prior to that date.³⁸

E. Rape Prevention and Personal Safety Education Programs

The State Board of Education is required to develop a rape prevention and personal safety education program and "a program for preventing teen dating violence for grade eight through grade [twelve]."³⁹ Local boards are not required to implement these programs.⁴⁰ However, local boards may implement them "at any time and for any grade [the] boards find appropriate."⁴¹ The state board is required to encourage the implementation of the programs.⁴²

II. Appellate Decisions

A. Eligibility to Serve on School Board

In Hardin v. Brookins,⁴³ the Georgia Supreme Court considered whether a plea of nolo contendere to a felony charge in another state disqualified a person from serving on a local board of education.⁴⁴ In 1982, "Brookins pled nolo contendere in Florida to a charge of possession of . . . a controlled...