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 17. Liability and Immunity of School Districts and Employees


Attempts to sue the government are as old as government itself. The English common law, developed by appointees of the Crown, created a doctrine which made it illegal to sue the King, the doctrine known to this day as sovereign immunity. That doctrine was continued in the common law of this country and the common law of Georgia. With the development and subsequent widespread availability of liability insurance, recent years saw Georgia courts and the General Assembly modify the blanket application of the doctrine to allow claims where insurance existed, at least to the limits of the insurance available. However, in the 1990 general election, the people of the State of Georgia amended the state constitution to make sovereign immunity available to the state and local governmental entities without regard to insurance unless the General Assembly passed a specific law waiving the sovereign immunity. Other immunity doctrines have developed, primarily to protect governmental officials and employees in the performance of their duties. Over the last 50 years, litigation against school districts, board members and administrators has often taken place in federal court where constitutional claims, allegations of civil rights violations and complaints of violation of federal statutes can be brought, avoiding the state-created protection of sovereign immunity.

This chapter will summarize when and how school districts can be sued in both the state and federal courts. The various immunity doctrines will be described and specific attention will be paid to claims under some of the federal statutes which are most often utilized to get school districts and their employees into court.

17. 1 Can a board of education be sued?
17. 2 What is sovereign immunity?
17. 3 Has the General Assembly expressly waived sovereign immunity as to any type of lawsuit?
17. 4 Are there any statutory waivers of sovereign immunity which apply to school districts?
17. 5 Are local school councils entitled to immunity under state law?
17. 6 If school districts are immune in most cases, can school employees be sued individually?
17. 7 What is meant by an official acting with actual malice?
17. 8 What is the difference between a discretionary function and a ministerial function?
17. 9 What are some examples of discretionary and ministerial functions?
17. 10 Are all school system employees protected by official immunity?
17. 11 Are there other immunities provided by Georgia law to school officials?
17. 12 How can a school district be sued for allegedly violating the United States Constitution or a federal law?
17. 13 How does the school district create a policy, practice or custom?
17. 14 Who is a policymaker in Georgia for purposes of § 1983 liability?
17. 15 Can the school district be sued under 42 U.S.C. § 1983?
17. 16 Can the action of a local school council lead to a § 1983 lawsuit?
17. 17 When is a board member, council member or school district employee subject to suit under § 1983?
17. 18 What is qualified immunity?
17. 19 What is the statute of limitations for claims under § 1983?
17. 20 When can a school district be sued for alleged violations of Title VI, Title IX or § 504?
17. 21 What is the statute of limitations for actions under these statutes?
17. 22 Are there other federal court suits frequently brought against boards of education involving allegations of discrimination?
17. 23 Can an individual board member or employee be sued under Title VII or similar statutes?
17. 24 Why are lawsuits claiming sex discrimination (as an example) sometimes brought pursuant to 42 U.S.C. § 1983 and other times pursuant to Title VII or Title IX?
17. 25 Can the board of education purchase liability insurance?
17. 26 Does the purchase of insurance waive any immunity available to the school district or its employees?
17. 27 Can boards of education pool their resources to provide liability protection for each member of the pool?
17. 28 If there is no insurance available, can school funds be used to defend lawsuits against individual employees?
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