I

104TH CONGRESS

2D SESSION H. R. 4304

To restore equal educational opportunity.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 28, 1996

Mr. HOKE introduced the following bill; which was referred to the Committee

on Economic and Educational Opportunities, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by

the Speaker, in each case for condideration of such provisions as fall

within the jurisdiction of the committee concerned

A BILL

To restore equal educational opportunity.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘School Desegregation

5 Litigation Reform Act of 1996’’.

6 SEC. 2. APPROPRIATE REMEDIES IN SCHOOL CASES.

7 (a) IN GENERAL.—Section 213 of the Equal Edu8 cational Opportunities Act of 1974 (20 U.S.C. 1712) is

9 amended to read as follows:
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1 ‘‘§ 213. Appropriate remedies in school cases

2 ‘‘(a) REQUIREMENTS FOR RELIEF.—

3 ‘‘(1) PROSPECTIVE RELIEF.—(A) A Federal

4 court shall not have jurisdiction to award prospective

5 relief in any civil action with respect to the operation

6 of public schools that extends further than necessary

7 to remedy the violation of a Federal right of a plain8 tiff.

9 ‘‘(B) A Federal court shall not have jurisdiction

10 to grant or approve any prospective relief unless the

11 court finds that such relief is narrowly drawn, ex12 tends no further than necessary to remedy the viola13 tion of the Federal right, and is the least intrusive

14 means necessary to remedy the violation of the Fed15 eral right.

16 ‘‘(C) A Federal court shall not have jurisdiction

17 to order any prospective relief that requires or per18 mits a government official to exceed authority under

19 State or local law or otherwise violates State or local

20 law, unless—

21 ‘‘(i) Federal law requires such relief to be

22 ordered in violation of State or local law;

23 ‘‘(ii) the relief is necessary to remedy a

24 violation of a Federal right; and

25 ‘‘(iii) no other relief will remedy the viola26 tion of a Federal right.
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1 ‘‘(D) Nothing in this section shall be construed

2 to authorize a Federal court, in exercising its reme3 dial powers, to order the assignment of students to

4 particular schools on the basis of race, color, or na5 tional origin, to order the raising of taxes, or to re6 peal, or make less restrictive from otherwise applica7 ble limitations, the remedial powers of the courts.

8 ‘‘(2) STUDENT ASSIGNMENT ORDERS.—(A) In

9 any civil action with respect to the operation of pub10 lic schools, a Federal court shall not have jurisdic11 tion to enter a student assignment order unless—

12 ‘‘(i) a Federal court has previously entered

13 an order for less intrusive relief that has failed

14 to remedy the violation of the Federal right

15 sought to be remedied through the student as16 signment order; and

17 ‘‘(ii) the defendant has had a reasonable

18 time to comply with the previous court order.

19 ‘‘(B)(i) In any civil action with respect to the

20 operation of the public schools, a student assignment

21 order shall be entered only by a three-judge court in

22 accordance with section 2284 of title 28, United

23 States Code.

24 ‘‘(C) A party seeking a student assignment

25 order in a Federal court shall file with any request
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1 for such relief, a request for a three-judge court and

2 materials sufficient to demonstrate that the require3 ments of subparagraph (a) have been met.

4 ‘‘(D) The three-judge court shall enter a stu5 dent assignment order only if the court finds by

6 clear and convincing evidence that—

7 ‘‘(i) the requirements of subparagraph (a)

8 have been met; and

9 ‘‘(ii) no other relief will remedy the viola10 tion of the Federal right.

11 ‘‘(b) TERMINATION OF RELIEF.—

12 ‘‘(1) TERMINATION OF PROSPECTIVE RELIEF.—

13 (A) Subject to the limitation set forth in paragraph

14 (3), in any civil action with respect to the operation

15 of the public schools in which prospective relief is or16 dered, such relief shall be terminated upon the mo17 tion of any party or intervenor—

18 ‘‘(i) 2 years after the date the court grant19 ed or approved the prospective relief; or

20 ‘‘(ii) 1 year after the date the court has

21 entered an order denying termination of pro22 spective relief under this paragraph.

23 ‘‘(B) Nothing in this section shall prevent the

24 parties from agreeing to terminate or modify relief
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1 before the relief is terminable under subparagraph

2 (A).

3 ‘‘(2) IMMEDIATE TERMINATION OF PROSPEC4 TIVE RELIEF.—In any civil action with respect to

5 the operation of the public schools, a defendant or

6 intervenor shall be entitled to the immediate termi7 nation of any prospective relief if the relief was ap8 proved or granted in the absence of a finding by the

9 court that the relief is narrowly drawn, extends no

10 further than necessary to remedy the violation of the

11 Federal right, and is the least intrusive means nec12 essary to remedy the violation of the Federal right.

13 ‘‘(3) LIMITATION.—(A) Prospective relief shall

14 not terminate if the court previously entered the pro15 spective relief after finding it necessary to remedy a

16 violation of a Federal right and the plaintiff estab17 lishes by a preponderance of the evidence that pro18 spective relief remains necessary to remedy a current

19 and ongoing violation of that Federal right. The

20 court shall not permit discovery.

21 ‘‘(B) Nothing in this section shall prevent any

22 plaintiff from bringing a new civil action with re23 spect to the operation of the public schools against

24 a party to a pending civil action with respect to the

25 operation of the public schools for a new violation of
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1 a Federal right, or obtaining prospective relief con2 sistent with the provisions of this section for such a

3 new violation. If a new action is brought in Federal

4 court, it shall not be heard by any judge who has

5 previously entered an order for prospective relief in

6 a civil action that has been in effect for longer than

7 2 years with respect to the operation of the public

8 schools.

9 ‘‘(4) TERMINATION OR MODIFICATION OF RE10 LIEF.—Nothing in this section shall prevent any

11 party or intervenor from seeking modification or ter12 mination before the relief is terminable under para13 graph (1) or (2), to the extent that modification or

14 termination would otherwise be legally permissible.

15 ‘‘(c) SETTLEMENTS.—

16 ‘‘(1) CONSENT DECREES.—In any civil action

17 with respect to the operation of public schools, a

18 Federal court shall not have jurisdiction to enter or

19 approve a consent decree unless it complies with the

20 limitations on relief set forth in subsection (a).

21 ‘‘(2) PRIVATE SETTLEMENT AGREEMENTS.—

22 Nothing in this section shall preclude parties from

23 entering into a private settlement agreement that

24 does not comply with the limitations on relief set

25 forth in subsection (a).
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1 ‘‘(d) PROCEDURE FOR MOTIONS AFFECTING PRO2 SPECTIVE RELIEF.—The court shall promptly rule on any

3 motion to modify or terminate prospective relief in a civil

4 action with respect to the operation of the public schools.

5 ‘‘(e) SPECIAL MASTERS.—In any civil action with re6 spect to the operation of public schools—

7 ‘‘(1) IN GENERAL.—(A) The court may appoint

8 a special master who shall be disinterested and ob9 jective to conduct hearings on the record and pre10 pare proposed findings of fact.

11 ‘‘(B) The court shall appoint a special master

12 during the remedial phase of the action only upon a

13 finding that the remedial phase will be sufficiently

14 complex to warrant the appointment.

15 ‘‘(2) APPOINTMENT.—(A) If the court deter16 mines that the appointment of a special master is

17 necessary, the court shall request that the defendant

18 and the plaintiff each submit a list of not more than

19 5 persons to serve as a special master.

20 ‘‘(B) Each party shall have the opportunity to

21 remove up to 3 persons from the opposing party’s

22 list.

23 ‘‘(C) The court shall select the master from the

24 persons remaining on the list after the application of

25 subparagraph (B).
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1 ‘‘(D) If the court determines that the persons

2 remaining on the list are not qualified to serve as

3 special master, the court may appoint a person not

4 on the list with the consent of all parties.

5 ‘‘(3) INTERLOCUTORY APPEAL.—Any party

6 shall have the right to an interlocutory appeal of the

7 judge’s selection of the special master, on the

8 ground of partiality.

9 ‘‘(4) COMPENSATION.—The compensation to be

10 allowed to a special master shall be based on an

11 hourly rate not greater than the hourly rate estab12 lished under section 3006A of title 18 for payment

13 of court-appointed counsel, plus costs reasonably in14 curred by the special master. Such compensation

15 and costs shall be paid with funds appropriated to

16 the judiciary. In no event shall the court require the

17 parties to pay the compensation or costs of the spe18 cial master.

19 ‘‘(5) REGULAR REVIEW OF APPOINTMENT.—

20 The court shall review the appointment of the spe21 cial master every 6 months to determine whether the

22 services of the special master continue to be required

23 under paragraph (1). In no event shall the appoint24 ment of a special master extend beyond the termi25 nation of the relief.
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1 ‘‘(6) LIMITATIONS ON POWERS AND DUTIES.—

2 A special master appointed in any civil action with

3 respect to the operation of public schools—

4 ‘‘(A) may be authorized by a court to con5 duct hearings on the record and shall make any

6 findings of fact based on the record as a whole;

7 ‘‘(B) shall not make any findings or com8 munications ex parte; and

9 ‘‘(C) may be removed at any time, but

10 shall be relieved of the appointment upon the

11 termination of relief.

12 ‘‘(7) The requirements of paragraphs (1)

13 through (4) shall apply only to special masters ap14 pointed after the date of enactment of School Deseg15 regation Litigation Reform Act of 1996.

16 ‘‘(f) INTERVENTION.—In any civil action with respect

17 to the operation of public schools, any State or local offi18 cial or unit of government whose jurisdiction includes the

19 appropriation of funds for, or the operation of, public

20 schools shall have standing to oppose the imposition or

21 continuation in effect of prospective relief and to seek ter22 mination of such relief, and shall have the right to inter23 vene in any proceeding relating to such relief.

24 ‘‘(g) DEFINITIONS.—As used in this section—
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1 ‘‘(1) the term ‘consent decree’ means any relief

2 entered by the court that is based in whole or in

3 part upon the consent or acquiescence of the parties,

4 but does not include private settlement agreements;

5 ‘‘(2) the term ‘civil action with respect to the

6 operation of public schools’ means any civil proceed7 ing arising under Federal law with respect to the op8 eration of any public school system by any State or

9 local government that alleges that the public school

10 system has been or is being operated in violation of

11 the 5th or 14th amendment rights or any other pro12 vision of Federal law that guarantees equal edu13 cational opportunity;

14 ‘‘(3) the term ‘student assignment order’ in15 cludes any order, including a temporary restraining

16 order or preliminary injunctive relief, that has the

17 purpose or effect of directing or regulating the par18 ticular public school to which students are assigned

19 to attend;

20 ‘‘(4) the term ‘private settlement agreement’

21 means an agreement entered into among the parties

22 that is not subject to judicial enforcement other than

23 the reinstatement of the civil proceeding that was

24 concluded as a result of the agreement entering into

25 force;
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1 ‘‘(5) the term ‘prospective relief’ means all re2 lief other than compensatory monetary damages, in3 cluding the appointment of a special master;

4 ‘‘(6) the term ‘special master’ means any per5 son appointed by a Federal court pursuant to rule

6 53 of the Federal Rules of Civil Procedure or pursu7 ant to any power of the court to exercise the powers

8 of a master, regardless of the title or description

9 given by the court;

10 ‘‘(7) the term ‘relief’ means all relief in any

11 form that may be ordered or approved by the court,

12 and includes consent decrees but does not include

13 private settlement agreements; and

14 ‘‘(8) the term ‘violation of a Federal right’ in15 cludes a violation of a Federal constitutional or Fed16 eral statutory right, but does not include a violation

17 of a court order that is not independently a violation

18 of a Federal constitutional or Federal statutory

19 right.’’.

20 (b) APPLICATION OF AMENDMENT.—Section 213 of

21 the Equal Educational Opportunities Act of 1974 (20

22 U.S.C. 1712), as amended by this section, shall apply with

23 respect to all prospective relief whether such relief was

24 originally ordered or approved before, on, or after the date

25 of the enactment of this Act.
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1 SEC. 3. DENIAL OF EQUAL EDUCATIONAL OPPORTUNITY

2 PROHIBITED.

3 Section 204 of the Equal Educational Opportunities

4 Act of 1974 (20 U.S.C. 1703) is amended to read as fol5 lows:

6 ‘‘§ 204. Denial of equal educational opportunity pro7 hibited

8 ‘‘No State shall deny equal educational opportunity

9 to an individual on account of race, color, or national ori10 gin, by—

11 ‘‘(1) the intentional segregation by an edu12 cational agency of students on the basis of race,

13 color, or national origin among or within schools;

14 ‘‘(2) the assignment or transfer by the State,

15 the courts of any State, any educational agency or

16 official thereof, or any Federal agency or official

17 thereof of a student to a school, other than the one

18 closest to the place of residence within the school

19 district in which the student resides, if the assign20 ment was made on the basis of race, color, or na21 tional origin, of students among schools in the

22 school district, including assignments made for the

23 purpose of attaining a balance on the basis of race,

24 color, or national origin, unless—
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1 ‘‘(A) such assignment is necessary to rem2 edy the violation of a Federal right (as defined

3 in section 213(g)(8)); and

4 ‘‘(B) there are no other means for remedy5 ing the violation of the Federal right; or

6 ‘‘(3) the modification of the lines drawn by the

7 State, subdividing its territory into separate school

8 districts, if the modification was made for the pur9 pose of attaining a balance, on the basis of race,

10 color, or national origin, of students among public

11 schools, unless—

12 ‘‘(A) such assignment is necessary to rem13 edy the violation of a Federal right (as defined

14 in section 213(g)(8)); and

15 ‘‘(B) there are no other means for remedy16 ing the violation of the Federal right.’’.

17 SEC. 4. CONFORMING AMENDMENTS.

18 (a) POLICY.—Section 202 of the Equal Educational

19 Opportunities Act of 1974 (20 U.S.C. 1701) is amended—

20 (1) in subsection (a), by striking ‘‘(a) The’’ and

21 inserting ‘‘The’’; and

22 (2) by striking subsection (b).

23 (b) FINDINGS.—Section 203(b) of the Equal Edu24 cational Opportunities Act of 1974 (20 U.S.C. 1702) is

25 amended in subsection (b) by striking ‘‘elimination of the
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1 vestiges of dual school systems, except that the provisions

2 of this title are not intended to modify or diminish the

3 authority of the courts of the United States to enforce

4 fully the fifth and fourteenth amendments to the Constitu5 tion of the United States.’’, and inserting ‘‘denial of equal

6 educational opportunity, limit the jurisdiction of the Fed7 eral courts over the operations of public schools, and pro8 hibit the use of race, color, or national origin as a basis

9 for making school assignments.’’.

10 (c) CIVIL ACTIONS.—Section 207 of the Equal Edu11 cational Opportunities Act of 1974 (20 U.S.C. 1706) is

12 amended by—

13 (1) inserting ‘‘or a school district in which such

14 an individual resides on behalf of such an individual,

15 or any State or local official or unit of government

16 whose jurisdiction includes the appropriation of

17 funds for, or the operation of, a school district in

18 which such an individual resides on behalf of such

19 an individual,’’ after ‘‘this part’’ in the first sen20 tence; and

21 (2) striking ‘‘institute a civil action’’, and in22 serting ‘‘institute or intervene in a civil action’’.
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1 (d) Sections 214, 215, 216, 217, and 219 of the

2 Equal Educational Opportunities Act of 1974 are

3 repealed.

Æ