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Court Asked To Re-Examine Board Use Of Multiple Bond-Project Referendums

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By Mark Walsh

Washington--The U.S. Supreme Court has asked a lower court to re-examine a Georgia case in which black residents contend their voting strength was diluted by the school board's grouping of several capital projects in a single bond referendum.

The High Court late last month returned the case, Board of Public Education and Orphanage of Bibb County v. Lucas (Case No. 90-1167), to the U.S. Court of Appeals for the 11th Circuit on a procedural question. But the central issue in the case--whether school boards can present multiple bond projects to voters without abridging minority voting rights--may yet return to the Supreme Court for review.

School-board officials nationwide have expressed concern about the 11th Circuit ruling in the case, which said the grouping of bond projects in a single referendum may violate the Voting Rights Act of 1965. Multiple bond-project referendums are used by many school districts as a means of attracting broad voter support for a diverse array of capital projects.

The Georgia case began in 1988, when a group of black Bibb County residents filed suit challenging a decision by the Bibb County school board to put a controversial new high-school project in a bond referendum along with a plan to install air conditioning in existing schools.

The black residents said the district lumped the projects together to coerce support from the black community, which generally opposed the high-school project. The residents said the form of the referendum forced them to vote for a project they did not want in order to support the air-conditioning work they did favor.

The plaintiffs contended that the election structure diluted black voting strength in violation of the Voting Rights Act and of several of their constitutional rights, including free speech and equal protection under the law.

Referendum Approved

The bond referendum, held in November 1988, was narrowly approved by Bibb County voters.

A federal district court later found that the multiple-issue bond referendum was not in violation of the Voting Rights Act, but did not rule on the constitutional claims raised in the lawsuit.

The U.S. Court of Appeals for the 11th Circuit last year reversed the district court's ruling, stating that combining several bond projects in a single referendum constitutes a "standard, practice, or procedure" under the Voting Rights Act that had the potential to abridge minority voting rights.

The district appealed that ruling to the Supreme Court, which sought the advice of the Justice Department on whether to review the case.

In a friend-of-the-court brief filed last month, Solicitor General Kenneth W. Starr said that, except for a jurisdictional problem with the case, he would have recommended review by the High Court and reversal of the appeals court's decision.

Since the district court did not rule on the black residents' original constitutional claims, the appeal to the 11th Circuit was improper because it was not based on a final judgment, the Justice Department said.

Upon remand from the Supreme Court, the brief suggested, the appeals court could determine whether to send the case back to the district court for consideration of the constitutional issues, or it could decide that the residents had waived their constitutional claims by appealing the district court's ruling on the Voting Rights Act question.

The Supreme Court, following the Justice Department's recommendation, vacated the appellate ruling and sent the case back for resolution of the procedural problem.

Nonpartisan Elections

In other action last month during the final weeks of its 1990-91 term, the High Court reinstated California's ban against political-party endorsements in nonpartisan local elections, including school board races.

The court's 6-to-3 ruling in Renne v. Geary (No. 90-769) was a setback for California parties, which have argued that the state constitution's ban on endorsements in such elections leaves them unable to participate in elections for 99 percent of all offices in the state.

The California School Boards Association supports the ban, however, arguing that it allows school-board races to remain free of outside political interference.

The case began in 1987, when 10 political activists challenged the endorsement ban because it prohibited candidates from citing party endorsements in their mailings to voters. A federal district court ruled the provision violated the First Amendment right to free speech. The decision was eventually affirmed by the U.S. Court of Appeals for the Ninth Circuit.

The Supreme Court sidestepped the central issue of whether the restriction violates the First Amendment. Instead, the majority opinion by Justice Anthony M. Kennedy declared that the case did not present a "live controversy ripe for resolution by the federal courts."

Justice Kennedy said that although the First Amendment issues raised by the case are "fundamental and far-reaching," party officials failed to show that that they were injured by the endorsement ban. Thus, the High Court ordered the appeals court to dismiss the free-speech claim.

Pension-Tax Refunds

The Justices sent back to Virginia's highest court two cases involving the question of whether federal retirees who were wrongly taxed are entitled to refunds.

The Supreme Court ruled in 1989 that states may not tax income from federal pensions if they exempt state and local pensions from the same taxes. But the High Court did not rule on whether retired workers were entitled to refunds of the ille8gally collected taxes.

Thousands of federal retirees in 20 states that taxed their pensions before 1989 have filed claims for tax refunds. In most cases, the states have declined to refund the taxes.

The issue is a crucial one for Virginia, which has approximately 192,000 retired federal workers. As a result, the state could owe as much as $440 million in refunds of taxes collected on federal pensions.

The Virginia Supreme Court ruled in March against giving such refunds. The large amount of money required would have a "potentially disruptive and destructive impact" on state services, it declared.

In Harper v. Virginia Department of Taxation (No. 90-1685) and Lewy v. Virginia Department of Taxation (No. 90-1772), the U.S. Supreme Court vacated that ruling. The Justices ordered the Virginia court to reconsider its decision in light of a June 20 High Court ruling that said Georgia must provide retroactive relief to a liquor distributor for an alcohol tax that was collected illegally.

The ruling in the Georgia case, James B. Beam Distilling Company v. Georgia (No. 89-680), was seen by several legal experts as clearing the way for lower courts to rule in favor of the retirees' claims for refunds.

Other Action

In other action, the Supreme Court declined to review lower court rulings in the following cases:

  • Grossmont Union High School District v. Davies (No. 90-1720), in which the U.S. Court of Appeals for the Ninth Circuit voided a provision of a consent agreement resulting from an employment-discrimination lawsuit that barred a man from election to a California school board.
  • Philbrook v. Ansonia Board of Education (No. 90-1664), in which the U.S. Court of Appeals for the Second Circuit ruled that a Connecticut school board's personnel policies do not violate federal civil-rights law by prohibiting employees from using their three annual days of "necessary personal business" for religious observances.
  • Hudson v. Chicago Teachers Union (No. 90-1550), in which the U.S. Court of Appeals for the Seventh Circuit ruled that the union was providing sufficient information to nonmembers about whether "fair share," or agency, fees paid by nonmembers were going for collective-bargaining activities.

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