Help Desk: If our school board became a charter school authorizer, what liability issues could that cause?
Don't be discouraged from becoming a charter school authorizer because of fears regarding liability.
In its simplest terms, our charter schools act (the Alabama School Choice & Student Opportunity Act) says that if your school board assumes this duty, your board is expected to comply with the law. Therefore, you only incur liability if you do not comply with the law. This is the case with duties or programs you are subject to now, no matter the subject. The act states as follows:
An authorizer that grants a charter to a 501(c)(3) tax-exempt organization for the purpose of opening and operating a public charter school is not liable for the debts or obligations of the public charter school, or for claims arising from the performance of acts, errors, or omissions by the charter school, if the authorizer has complied with all oversight responsibilities required by law, including, but not limited to, those required by this act. Act 2015-003, Section 6(q).
We are not suggesting that boards face no risk in the area of charter schools. There is inherent risk in any action we take. Alabama boards of education do, however, remain protected from liability by the immunity provided by the Constitution of Alabama. The same is true for public employees and officials sued in their official capacities.
Much like federal laws trump state laws, the Constitution trumps state laws. Therefore, irrespective of the language in the charter act, our boards still enjoy absolute immunity, subject to certain well-established exceptions provided in case law.
In the event a charter school could not meet its financial obligations or was otherwise sued for some incident, the school board authorizer would not necessarily be the entity automatically responsible. The school board authorizer does not operate the school or otherwise monitor its daily activities. The charter school’s governing board, which is obligated by law and by the charter contract to obtain appropriate insurance coverage and whose officials would likely be bonded, would be the more likely target.
It is also worth mentioning that ATBE will continue to provide GL/EO coverage to boards, board members and superintendents in their official capacities, including for litigation arising out of charter school authorization.
We encourage you to work closely with your local board attorney to assess your risk.