High Court Takes a Look at Takeovers

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The U.S. Supreme Court last week encountered for the first time the growing trend of state intervention in troubled school districts.

In a case involving a Texas intervention law, some justices expressed concern that the state's appointment of a temporary master or management team with powers over a district's operations would require federal review under the Voting Rights Act of 1965.

The federal law requires Texas and certain other states and jurisdictions with a history of discriminatory electoral practices to get federal approval for any change in law or practice that affects voting.

Texas is challenging the Department of Justice's view that certain intervention provisions of the state's 1995 school reform law come under the Voting Rights Act and that each attempt to intervene would require federal approval on a case-by-case basis. The voting-rights law puts the burden on covered jurisdictions to get approval, or "preclearance," from either the Justice Department or the federal district court in Washington for any "change in voting."

But Texas argues that the provisions of its intervention law at issue in the case do not raise concerns under the Voting Rights Act.

"The temporary appointment of a master or management team with limited powers to assist a school district is not a change with respect to voting," Javier Aguilar, a special assistant Texas attorney general, told the justices during oral arguments Jan. 14 in Texas v. U.S. (Case No. 97-29).

The state contends that having to seek Justice Department approval severely hampers the education commissioner's ability to act quickly to come to the aid of districts with serious problems.

In the one case in which the state has intervened with its own management team, in the Wilmer-Hutchins district near Dallas, the Justice Department took 90 days to grant preclearance, Mr. Aguilar said.

Procedural Problems

It was not clear last week that the Supreme Court would reach the merits of whether temporary intervention in a district raises issues under the voting-rights law.

Much of the hourlong argument was spent debating a complex procedural issue: whether the Texas case was legally ripe for review, or in court at the proper time. A special three-judge panel of the U.S. District Court in Washington ruled last year that it could not consider the state's request for a declaratory judgment that its intervention measures did not affect voting under the 1965 law.

Paul Wolfson, an assistant U.S. solicitor general, told the justices that Texas could have waited to use an actual intervention as the basis for challenging the Justice Department's view.

"I think the state is, in effect, asking for an advisory opinion" about whether it can implement its intervention measures without running afoul of the Voting Rights Act, Mr. Wolfson said. The federal courts do not issue advisory opinions.

But Justice Anthony M. Kennedy suggested that for Texas to intervene in a district without federal preclearance could expose the state to greater legal liability, and that any actions of a management team that was not precleared could later be called into question.

Justice John Paul Stevens called the preclearance requirement "a significant burden."

Wide Implications

The issue being considered by the high court could gain broader significance as more states adopt intervention procedures. An overwhelming majority of such takeovers involve predominantly minority districts, and some civil rights activists have expressed concerns about whether the drastic state actions trample the rights of voters to choose their own policymakers. ("Racial Issues Cloud State Takeovers," Jan. 14, 1998.)

At least one other jurisdiction covered by the preclearance requirement of the Voting Rights Act has run into conflict with the Justice Department. The department said New York City Schools Chancellor Rudy F. Crew ran afoul of the law when he tried to oust the elected board of one of the school system's 32 subdistricts.

In addition to Texas, the states covered under the preclearance requirements of the Voting Rights Act are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Certain jurisdictions in 14 other states are also covered.

Intervention Arsenal

Texas does not dispute that the two most extreme measures in its intervention arsenal would unquestionably require federal approval under the Voting Rights Act. Those measures are annexation of a troubled district by another and the replacement of the elected school board with a state-appointed board of managers.

But the state argues vigorously that the temporary appointment of a master or management team with limited powers would not affect the electoral power of a district's voters. Under these measures, the elected school board remains in office and continues to approve the overall budget and tax rate for the district.

"The master or management team does not have all the authority of the board," Mr. Aguilar said.

The Texas law provides, however, that a master or management team could reallocate spending in the budget and order other policy actions.

Mr. Wolfson said the Justice Department considers that power "a de facto replacement of the elected school board."

Justice Stevens suggested that the master and management-team provisions "would raise the same problems" as the provisions of the law allowing annexation or outright replacement of the school board.

But he later added that it might depend "on what the master or management team does."

Justice Antonin Scalia said that as he understood it, Texas would only appoint a master or management team after other intervention measures had failed. Indeed, the state law calls for a series of milder sanctions before the state commissioner appoints a master or management team.

"'Draconian' is the word" for the most severe sanctions, Justice Scalia said to Mr. Aguilar. "You would hope to never have to use them, wouldn't you?"

The case is expected to be decided by the end of the court's term in late June or early July.

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