24 LC 49 1482
House Bill 1262
By: Representative Mainor of the 56
th
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to
1
elementary and secondary education, so as to provide for a cause of action by aggrieved2
students against local education agencies for breach of the duty to provide for an adequate3
public education; to provide for definitions; to provide for construction; to require each local4
education agency to provide for an adequate public education to each enrolled student in each5
core academic course; to provide for remedies; to provide for waiver of sovereign immunity;6
to amend Title 36, Chapter 21 of Title 50, and Code Section 5-6-34 of the Official Code of7
Georgia Annotated, relating to local government, waiver of sovereign immunity as to actions8
ex contractu and state tort claims, and judgments and rulings deemed directly appealable,9
respectively, so as to provide for a limited waiver of sovereign immunity for breach of the10
duty to provide for an adequate public education; to provide for definitions; to provide for11
exceptions; to provide for immunity of officers and employees in their individual capacity;12
to provide for appeals; to provide for legislative findings and intent; to provide for related13
matters; to provide for an effective date and applicability; to provide for related matters; to14
repeal conflicting laws; and for other purposes.15
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
16
PART I17
SECTION 1-1.18
(a) The General Assembly finds that:19
(1) Paragraph I of Section I of Article VIII of the Georgia Constitution states, "The20
provision of an adequate public education shall be a primary obligation of the State of21
Georgia.";22
(2) Local boards of education, other public school governing bodies, local school23
systems, public schools, private schools that receive state funds for educational purposes,24
and the officers and employees thereof, are essentially responsible for ensuring the state25
meets its constitutional obligation to provide an adequate public education;26
(3) The proper functioning of state government requires that state officers and employees27
be free to act and to make decisions, in good faith, without fear of thereby exposing28
themselves to lawsuits and without fear of the loss of their personal assets;29
(4) The responsibility of public school officers and employees to educate, monitor,30
supervise, and control students is a discretionary action which is protected by the doctrine31
of sovereign immunity as a matter of fact, law, and sound public policy; and32
(5) While the officers and employees of Georgia's public schools have traditionally not33
been subject to lawsuit or liability arising from the performance or nonperformance of34
their official duties or functions, the strict application of the traditional doctrine of35
sovereign immunity can result and has resulted in unfair and inequitable results for36
residents of this state.37
(b) It is the intent of the General Assembly to provide for a limited waiver of the state's38
sovereign immunity for certain individual claims alleging deprivation of an adequate public39
education.40
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PART II
41
SECTION 2-1.42
Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and43
secondary education, is amended by adding a new article to read as follows:44
"ARTICLE 18B
45
20-2-1005.46
As used in this article, the term:47
(1) 'Governing body' means the local board of education, governing council, governing48
board, or other entity by whatever name responsible for creating and implementing the49
budget of a local education agency.50
(2) 'Local education agency' means any local school system, any charter school subject51
to the provisions of Article 31 or 31A of this chapter, and any completion special school52
subject to the provisions of Article 31C of this chapter, except this shall not include53
college and career academies that are charter schools; conversion charter schools, as54
defined in Code Section 20-2-2062, whose charter is not held by a nonprofit corporation;55
or system charter schools, as defined in Code Section 20-2-2062.56
(3) 'Public school' means any public school in this state.57
(4) 'Student' means any person who has been enrolled as a student by a local education58
agency.59
20-2-1006.60
(a) Each local education agency shall provide for an adequate public education to each61
enrolled student in each core academic course.62
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(b) A student aggrieved by the failure or refusal of the local education agency enrolling63
such student to provide for an adequate public education in one or more core academic64
courses may recover against such local education agency for the breach of such legal duty65
if he or she suffers damage thereby.66
(c) A student who is entitled to recover against a local education agency for such local67
education agency's breach of its duty to provide such student with an adequate public68
education shall be entitled to an award of compensatory education services, reimbursement69
for the costs of tuition and expenses directly related to enrollment for up to one year in an70
accredited postsecondary preparation program or a workforce development program71
recognized by the Office of Workforce Development, and attorney's fees or expenses of72
litigation as provided in Code Section 9-15-14.73
(d) If a judgment or finding is rendered in favor of a local education agency in any action,74
complaint, or other proceeding brought by or on behalf of a student and arising out of or75
resulting from the alleged failure to provide for an adequate public education and such76
action or complaint is found to be nonmeritorious, frivolous, or without just cause, all77
reasonable court costs, reasonable attorney's fees, and reasonable expenses incurred by the78
public school in defending such action or complaint shall be assessed by the court and shall79
be paid by the plaintiff.80
(e) Except as expressly provided for in this article, in Article 2 of Chapter 80 of Title 36,81
and in Article 3 of Chapter 21 of Title 50, nothing in this article shall be construed as82
waiving any immunity or privilege now or hereafter enjoyed by the State Board of83
Education, by the Department of Education, by the board of control of any cooperative84
educational service agency, by any local board of education, by any other public school85
governing body, by any school system, by any member or employee of any such board,86
body, department, or system, or as waiving any immunity or privilege of any state or other87
public body, board, agency, or political subdivision."88
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PART III
89
SECTION 3-1.90
Title 36 of the Official Code of Georgia Annotated, relating to local government, is amended91
in Code Section 36-33-1, relating to a municipal corporation's immunity from liability for92
damages and the waiver of immunity by the purchase of liability insurance, by adding a new93
subsection to read as follows:94
"(c) Sovereign immunity of a municipal corporation shall be waived as provided in
95
Article 2 of Chapter 80 of this title."96
SECTION 3-2.97
Said title is further amended in Chapter 80, relating to general provisions regarding98
provisions applicable to counties, municipal corporations, and other governmental entities,99
by designating the existing Code sections as Article 1 and adding a new article to read as100
follows:101
"ARTICLE 2102
36-80-50.103
As used in this article, the term:104
(1) 'Governmental entity' means a department, agency, division, bureau, board,105
commission, authority, office, or committee formed or established by a political106
subdivision.107
(2)(A) 'Officer or employee' means, whether with or without compensation, any natural108
person who is:109
(i) Elected to a political subdivision office;110
(ii) Appointed to a political subdivision governmental entity; or111
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(iii) Employed by a political subdivision or a political subdivision governmental112
entity.113
(B) Such term shall not include an independent contractor doing business with this114
state, a political subdivision, a state governmental entity, or a political subdivision115
governmental entity.116
(3) 'Penal institution' shall have the same meaning as set forth in Code Section 42-1-5.117
(4) 'Person' shall have the same meaning as set forth in Code Section 50-21-50.118
(5) 'Political subdivision' means a county, municipal corporation, or consolidated119
government.120
(6) 'State' shall have the same meaning as set forth in Code Section 50-21-50.121
(7) 'State mental health facility' shall have the same meaning as set forth in Code122
Section 37-1-1.123
(8) 'State statute' means a title, chapter, article, part, subpart, Code section, or part thereof124
that is codified in the Official Code of Georgia Annotated or has become law.125
(9) 'Suit' means a civil lawsuit or legal proceeding that contains one or more claims.126
36-80-51.127
(a) Sovereign immunity of a political subdivision as defined in Code Section 36-80-50, a128
political subdivision governmental entity as defined in Code Section 36-80-50, or an officer129
or employee as defined in Code Section 36-80-50 in his or her official capacity is hereby130
waived as to any claim for the breach of the duty to provide for an adequate public131
education to an aggrieved student as provided in Article 18B of Chapter 2 of Title 20 by132
any officers and employees while acting within the scope of their official duties or133
employment and shall be liable for such breach in the same manner as a private person or134
entity would be liable under like circumstances; provided, however, that such sovereign135
immunity is waived subject to all exceptions and limitations set forth in this article. The136
governmental entity shall have no liability for losses resulting from conduct on the part of137
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officers or employees which was not within the scope of their official duties or138
employment.139
(b) This Code section shall not waive sovereign immunity of a political subdivision, a140
political subdivision governmental entity, or an officer or employee in his or her official141
capacity as to any claim:142
(1) For which a state statute explicitly prohibits such waiver;143
(2) For monetary relief, attorney's fees, or expenses of litigation except as provided in144
Code Section 9-15-14;145
(3) Alleging a violation of federal law, other than the United States Constitution;146
(4) Brought in a court of the United States; or147
(5) Brought by, or on behalf of, a person in a penal institution or a state mental health148
facility.149
36-80-52.150
This article shall be narrowly construed and shall not:151
(1) Toll or extend any applicable period of limitations;152
(2) Alter or amend any other waiver of sovereign immunity provided by state statute;153
(3) Be construed to waive other immunities provided by state statute or recognized by154
the courts of this state, including, but not limited to, grand juror immunity, judicial155
immunity, legislative immunity, official immunity, prosecutorial immunity, or qualified156
immunity; or157
(4) Except as expressly waived by this article, alter or amend any other legal requirement158
for filing a suit or obtaining relief, including, but not limited to, jurisdiction, standing,159
exhaustion of administrative or other remedies, notice requirements, and defenses to or160
limitations on the exercise of equitable jurisdiction.161
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36-80-53.162
(a) An officer or employee shall not be subject to a suit under this article in his or her163
individual capacity for performance or nonperformance of his or her official duties.164
(b) The immunity conferred by subsection (a) of this Code section shall:165
(1) Extend to any suit, including, but not limited to, suits seeking monetary, declaratory,166
or injunctive relief, unless such suit against such officer or employee in his or her167
individual capacity is expressly authorized by state statute; and168
(2) Apply notwithstanding an allegation in a suit that an officer's or employee's conduct169
was ultra vires, unconstitutional, or illegal.170
36-80-54.171
A suit for which sovereign immunity is waived under this article shall name only the172
political subdivision, a political subdivision governmental entity, an officer or employee173
in his or her official capacity, or a combination thereof. If an officer or employee is named174
in such suit in his or her individual capacity, upon proper motion, the court shall dismiss175
him or her as the party defendant and, if appropriate, order such officer or employee in his176
or her official capacity be joined as a party defendant.177
36-80-55.178
(a) No suit for which sovereign immunity is waived under this article against a political179
subdivision, a political subdivision governmental entity, or an officer or employee in his180
or her official capacity as provided in Code Section 36-80-51 shall be commenced, and the181
courts of this state shall not have jurisdiction thereof, until 30 days after the date that a182
written notice is mailed by certified mail, return receipt requested, or by statutory overnight183
delivery to:184
(1) The sole county commissioner or chairperson of the county commission, as the case185
may be, in the case of a county; or186
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(2) The mayor or chairperson of the city council or city commission, as the case may be,187
in the case of a municipal corporation or consolidated government.188
(b) Such notice shall identify the action being challenged pursuant to this article and the189
nature of the relief being sought.190
(c) No suit containing a claim under Code Section 36-80-51 shall proceed in the courts of191
this state until the plaintiff provides the court with proof of service upon the appropriate192
authority as provided in this Code section.193
(d) The notice required by this Code section shall not be required for suits brought194
pursuant to paragraph (3) of subsection (b) of Code Section 36-80-51.195
(e) A suit for which notice has been provided in accordance with this Code section shall196
be filed no later than 90 days after such notice has been provided."197
PART IV198
SECTION 4-1.199
Chapter 21 of Title 50 of the Official Code of Georgia Annotated, relating to waiver of200
sovereign immunity as to actions ex contractu and state tort claims, is amended by adding201
a new article to read as follows:202
"ARTICLE 3203
50-21-50.204
As used in this article, the term:205
(1) 'Governmental entity' means a department, agency, division, bureau, board,206
commission, authority, office, or committee.207
(2)(A) 'Officer or employee' means, whether with or without compensation, any natural208
person who is:209
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(i) Elected to a state office;210
(ii) Appointed to a state governmental entity; or211
(iii) Employed by the state or a state governmental entity.212
(B) Such term shall not include an independent contractor doing business with this213
state or a state governmental entity.214
(3) 'Penal institution' shall have the same meaning as set forth in Code Section 42-1-5.215
(4) 'Person' means an individual, corporation, partnership, firm, business trust,216
joint-stock company, association, syndicate, group, pool, joint venture, unincorporated217
association or group, county, municipal corporation, consolidated government, or school218
system, but such term shall not include a hospital authority, housing or other local219
authority, or any other unit of local government.220
(5) 'State' means the State of Georgia, but such term shall not include a county,221
municipal corporation, consolidated government, school system, hospital authority,222
housing or other local authority, or any other unit of local government.223
(6) 'State mental health facility' shall have the same meaning as set forth in Code Section224
37-1-1.225
(7) 'State statute' means a title, chapter, article, part, subpart, Code section, or part thereof226
that is codified in the Official Code of Georgia Annotated or has become law.227
(8) 'Suit' means a civil lawsuit or legal proceeding that contains one or more claims.228
50-21-51.229
(a) The state waives its sovereign immunity for the breach of the duty to provide for an230
adequate public education to an aggrieved student as provided in Article 18B of Chapter231
2 of Title 20 by any state officers or employees while acting within the scope of their232
official duties or employment and shall be liable for such breach in the same manner as a233
private person or entity would be liable under like circumstances; provided, however, that234
the state's sovereign immunity is waived subject to all exceptions and limitations set forth235
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in this article. The state shall have no liability for losses resulting from conduct on the part236
of state officers or employees which was not within the scope of their official duties or237
employment.238
(b) This Code section shall not waive sovereign immunity of this state, a state239
governmental entity, or an officer or employee in his or her official capacity as to any240
claim:241
(1) For which a state statute explicitly prohibits such waiver;242
(2) For attorney's fees or expenses of litigation except as provided in Code Section243
9-15-14 or for compensatory relief except as provided in Code Section 20-2-1006;244
(3) Alleging a violation of federal law, other than the United States Constitution;245
(4) Brought in a court of the United States; or246
(5) Brought by, or on behalf of, a person in a penal institution or a state mental health247
facility.248
50-21-52.249
This article shall be narrowly construed and shall not:250
(1) Toll or extend any applicable period of limitations;251
(2) Alter or amend any other waiver of sovereign immunity provided by state statute;252
(3) Be construed to waive other immunities provided by state statute or recognized by253
the courts of this state, including, but not limited to, grand juror immunity, judicial254
immunity, legislative immunity, official immunity, prosecutorial immunity, or qualified255
immunity; or256
(4) Except as expressly waived by this article, alter or amend any other legal requirement257
for filing a suit or obtaining relief, including, but not limited to, jurisdiction, standing,258
exhaustion of administrative or other remedies, notice requirements, and defenses to or259
limitations on the exercise of equitable jurisdiction.260
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50-21-53.261
(a) An officer or employee shall not be subject to a suit under this article in his or her262
individual capacity for performance or nonperformance of his or her official duties.263
(b) The immunity conferred by subsection (a) of this Code section shall:264
(1) Extend to any suit, including, but not limited to, suits seeking monetary, declaratory,265
or injunctive relief, unless such suit against such officer or employee in his or her266
individual capacity is expressly authorized by state statute; and267
(2) Apply notwithstanding an allegation in a suit that an officer's or employee's conduct268
was ultra vires, unconstitutional, or illegal.269
50-21-54.270
A suit for which sovereign immunity is waived under this article shall name only the state,271
a state governmental entity, an officer or employee in his or her official capacity, or a272
combination thereof. If an officer or employee is named in such suit in his or her273
individual capacity, upon proper motion, the court shall dismiss him or her as the party274
defendant and, if appropriate, order such officer or employee in his or her official capacity275
be joined as a party defendant.276
50-21-55.277
(a) No suit for which sovereign immunity is waived under this article shall be commenced,278
and the court shall not have jurisdiction thereof, until 30 days after the date that a written279
notice is sent to the state governmental entity or officer or employee to be named as a party280
defendant and the Attorney General by certified mail, return receipt requested, by statutory281
overnight delivery, or delivered personally to such entity and persons and obtaining a282
receipt for such delivery. Such notice shall identify the specific law or action being283
challenged and the nature of the relief being sought.284
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(b) No suit for which sovereign immunity is waived under this article shall proceed until285
the plaintiff provides the court with proof of service upon the Attorney General or his or286
her designee and the state governmental entity that is charged with enforcing the state287
statute being challenged.288
(c) A suit for which notice has been provided in accordance with this Code section shall289
be filed no later than 90 days after such notice has been provided."290
PART V291
SECTION 5-1.292
Code Section 5-6-34 of the Official Code of Georgia Annotated, relating to judgments and293
rulings deemed directly appealable, procedure for review of judgments, orders, or decisions294
not subject to direct appeal, scope of review, hearings in criminal cases involving a capital295
offense for which death penalty is sought, and appeals involving nonmonetary judgments in296
child custody cases, is amended in subsection (a) by deleting "and" at the end of paragraph297
(12), by replacing the period with "; and" at the end of paragraph (13), and by adding a new298
paragraph to read as follows:299
"(14) All judgments, orders, or rulings denying or refusing to grant immunity to one or300
more parties based upon sovereign, official, qualified, or any other immunity established301
by the United States Constitution or the Constitution, laws, or common law of this state302
when such party or parties are the state, state governmental entities, political303
subdivisions, political subdivision governmental entities, or officers or employees as such304
are defined in Code Section 36-80-50 or 50-21-50, as applicable; provided, however, that305
the right of direct appeal under this paragraph shall not be exercised by any one party306
more than once in a case. This paragraph shall not preclude taking an appeal pursuant307
to any other paragraph in this subsection."308
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PART VI
309
SECTION 6-1.310
This Act shall become effective July 1, 2024, and shall apply to causes of action occurring311
on or after July 1, 2024.312
SECTION 6-2.313
All laws and parts of laws in conflict with this Act are repealed.314
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