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Court Grants Flexibility in Revising Consent Decrees

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Washington---The U.S. Supreme Court last week gave state and local officials greater flexibility to seek changes in federal consent decrees governing institutional reform, such as those used to promote school desegregation.

Ruling in a jail-overcrowding case from Massachusetts, the High Court held that a consent decree could be revised if one party proved "a significant change in facts or law" surrounding the case.

In a 6-to-2 ruling on Jan. 15, the Court said a federal judge in Boston had erroneously applied a much stricter standard in denying a request by the Suffolk County sheriff to modify a consent decree governing jail operations.

"The upsurge in institutional-reform litigation since Brown v. Board of Education has made the ability of a district court to modify a decree in response to changed circumstances all the more important," the majority opinion by Associate Justice Byron R. White said.

"The experience of the district and circuit courts in implementing and modifying such decrees has demonstrated that a flexible approach is often essential to achieving the goals of reform litigation," he wrote.

Justice White cited several key precedents on desegregation in analyzing the proper standards for allowing modifications to a decree.

The new standard also requires proposed changes to a decree to be "suitably tailored to the changed circumstance," Justice White wrote.

Reform advocates had argued that federal judges should modify consent decrees only if changed conditions cause a "grievous wrong."

Gary Orfield, a professor of education and social policy at Harvard University and an expert on school desegregation, said the ruling could have a wide impact on the "considerable number" of school districts nationwide that have entered into desegregation consent decrees.

"Sometimes a seriously out-of-date court order is very counterproductive,'' he said. "Circumstances do change dramatically, particularly in urban school districts."

Some school districts are also under consent decrees on other issues, such as bilingual education and education of the handicapped, he noted.

Associate Justice Sandra Day O'Connor filed a concurring opinion. Justices Harry A. Blackmun and John Paul Stevens dissented over the way the new standard was applied to the facts in the jail-overcrowding case.

Justice Clarence Thomas did not participate in the case, Rufo v. Inmates of the Suffolk County Jail (Case No. 90-954). Testimony of Children In a separate decision last week, the High Court upheld the child-molestation conviction of an Illinois man based on statements his young victim made to police and medical personnel after the assault.

In a 9-to-0 ruling, the High Court said the Confrontation Clause of the U.S. Constitution did not require the prosecution to put the child-victim on the witness stand or to prove that she was not available to testify before introducing her out-of-court statements as evidence.

The girl's "out-of-court statements admitted in this case had substantial probative value, value that could not be duplicated" by the girl's later testifying in court, the Jan. 15 opinion by Chief Justice William H. Rehnquist said.

The case was White v. Illinois (No. 90-6113).

Also last week, the High Court declined to review the firing of an employee at a Wyoming correctional school for girls who had bypassed her supervisor to complain about school operations.

The Justices on Jan. 13 let stand a Wyoming Supreme Court decision upholding the firing of a bookkeeper who had phoned state officials to complain about practices at the Wyoming Girls' School.

The Wyoming court said that letters the woman wrote alleging mismanagement were protected speech, but that her subsequent phone calls making complaints were outweighed by the school's interest in "maintaining discipline and esprit de corps" among its employees.

The case was Mekss v. Wyoming Girls' School (No. 91-668).

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