A major provision of the Voting Rights Act of 1965 that affects hundreds of school districts, especially in the South, went before the U.S. Supreme Court last week.
The historic law requires states and other jurisdictions covered by its Section 5 to obtain federal approval for any change in voting practices or procedures. For school systems, the law covers periodic alterations to voting districts for school board members or changes in the makeup of a board, such as switching from at-large to single-member districts.
The 2006 renewal of the law by Congress extended for 25 years Section 5’s special treatment of states and jurisdictions with a history of voter discrimination. The renewal was challenged by Shelby County, Ala., which argues that the law is an infringement on state sovereignty.
“Section 5 has done its work. People are registering and voting,” Bert W. Rein, the Washington lawyer representing the county, said during the Feb. 27 oral arguments in Shelby County v. Holder (Case No. 12-960). “But if you think there is discrimination, you have to examine that nationwide.”
Mr. Rein found sympathy among the court’s conservatives. Justice Antonin Scalia said the Voting Rights Act has become a “perpetuation of racial entitlements.”
“I am fairly confident it will be re-enacted in perpetuity unless a court can say it does not comport with the Constitution,” he said.
Run Its Course?
Justice Anthony M. Kennedy said the law’s preclearance requirements may have run their course, just as certain other prominent U.S. laws had. The Northwest Ordinance of 1787 for westward expansion, the Morrill Act of 1862 establishing land-grant colleges, and the post-World War II Marshall Plan to aid European recovery “were very good, too,” he said, “but times change.”
Members of the court’s liberal bloc defended the 2006 extension of the law.
“This is a question of renewing a statute that by and large has worked,” said Justice Stephen G. Breyer.
Justice Elena Kagan said that Congress in 2006 compiled a 15,000-page legislative record and decided that although conditions had changed, “the problem was still evident enough that the act should continue.”
“It’s hard to see how Congress could have developed a better and more thorough legislative record than it did,” she said.
Under Section 5, covered jurisdictions such as school districts must gain “preclearance” approval from either the U.S. Department of Justice or a special three-judge federal district court in Washington for voting changes. The jurisdiction must show that the change does not deny the right to vote on the basis of race, color, or language-minority status.
Nine states are covered as a whole—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—as are certain jurisdictions in several other states.
Thanks in large part to Section 5, minority voters in small towns and rural areas “are finally having a voice on school boards” and other local bodies, U.S. Solicitor General Donald B. Verrilli Jr. told the court in a brief.
In a 2010 report that is not part of the case, the National School Boards Association said 80.7 percent of school board members nationwide were white, 12.3 percent were African-American, and 3.1 percent were Hispanic. While the study didn’t distinguish elected from appointed board members in those groups, some 95 percent of board members are elected, the NSBA said.
The statute allows a covered jurisdiction to seek an exemption—called “bailout"—from Section 5’s preclearance requirements if it has met certain conditions, chiefly a 10-year record of nondiscrimination in voting. The Obama administration submitted a list of covered jurisdictions that have won such exemptions, including several dozen school districts.
One of those jurisdictions was Merced County, Calif., which last year received a bailout from preclearance requirements for itself, its 22 school districts, and other local agencies.
“After ... decades of compliance with Section 5, extensive work by the county to oversee compliance by independent cities and agencies that it does not control, the expenditure of more than $1 million in legal fees, ... and more than two years of investigations by the United States Department of Justice,” says a friend-of-the-court brief filed by the county, “the county of Merced finally achieved its goal of bailing out of Section 5 coverage.
“That effort finally relieved the county of the stigma of being covered by a statute designed to target historic discriminators.”
A version of this article appeared in the March 06, 2013 edition of Education Week as Voting Rights Act Case Has Stakes for Districts