Holloway v. Dougherty County School System , 157 Ga. App. 251 ( 1981 )

Deen, Presiding Judge,

concurring specially.

I fully agree with the majority opinion of Judge Carley. My position as to sovereign immunity is outlined in Echols v. DeKalb County, 146 Ga. App. 560, 563 (247 SE2d 114) (1978). The law now appears to be that school boards and officials may now be immune from liability from suits by parents and children except in two situations: (1) when constitutional rights of the student are affected, and (2) where wilfulness, malice or corruption is involved.

Wood v. Strickland, 420 U. S. 308 (95 SC 992, 43 LE2d 214) (1975) made clear, if any doubt ever existed, that students may sue school board officials for money damages under the Civil Rights Act of 1871,42 USC § 1983. The opinion ruled that school officials are not entitled to an absolute immunity from suit for money damages. “Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.” Id. at 322.

The Supreme Court in Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) citing Partain v. Maddox, 131 Ga. App. 778, 781-782 (206 SE2d 618) (1974) ruled as follows: “ ‘ “[W]here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption. ” ’ ”

The complaint alleges wilful and intentional acts, therefore, the grant of the motion to dismiss was error.