II 

108TH CONGRESS 

2D SESSION S. 2405 

Entitled the ‘‘Restoring Authority to Schools Act of 2004’’. 

IN THE SENATE OF THE UNITED STATES 

MAY 11, 2004 

Mr. MILLER introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

Entitled the ‘‘Restoring Authority to Schools Act of 2004’’. 

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 ‘‘Restoring Authority 

5 to Schools Act of 2004’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are— 

8 (1) to restore authority to the public schools to 

9 conduct education as a human enterprise; 

10 (2) to limit Federal court oversight of public 

11 schools to that which is reasonable and necessary to 

12 implement Federal law; and 
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1 (3) to allow State and local education officials 

2 to bring new insights and solutions to problems of 

3 allocating revenues and resources for the common 

4 good in keeping with their designated legislative and 

5 executive powers. 

6 SEC. 3. APPROPRIATE REMEDIES WITH RESPECT TO VIOLA7 TIONS OF FEDERAL LAW IN THE PUBLIC 

8 SCHOOLS. 

9 (a) REQUIREMENTS FOR RELIEF.— 

10 (1) PROSPECTIVE RELIEF.— 

11 (A) Prospective relief in any civil action 

12 with respect to violations of Federal law in the 

13 public schools shall extend no further than nec14 essary to correct the violation of the Federal 

15 right of a particular plaintiff or plaintiffs. The 

16 court shall not grant or approve any prospective 

17 relief unless the court finds that such relief is 

18 narrowly drawn, extends no further than nec19 essary to correct the violation of the Federal 

20 right, and is the least intrusive means necessary 

21 to correct the violation of the Federal right. 

22 The court shall give substantial weight to any 

23 adverse impact on other students or the school 

24 community as a whole caused by the relief. 
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1 (B) The court shall not order any prospec2 tive relief that requires or permits a govern3 ment official to exceed his or her authority 

4 under State or local law or otherwise violates 

5 State or local law, unless— 

6 (i) Federal law requires such relief to 

7 be ordered in violation of State or local 

8 law; 

9 (ii) the relief is necessary to correct 

10 the violation of a Federal right; and 

11 (iii) no other relief will correct the vio12 lation of the Federal right. 

13 (2) PRELIMINARY INJUNCTIVE RELIEF.—In any 

14 civil action with respect to violations of Federal law 

15 in the public schools, to the extent otherwise author16 ized by law, the court may enter a temporary re17 straining order or an order for preliminary injunc18 tive relief. Preliminary injunctive relief must be nar19 rowly drawn, extend no further than necessary to 

20 correct the harm the court finds requires prelimi21 nary relief, and be the least intrusive means nec22 essary to correct that harm. The court shall give 

23 substantial weight to any adverse impact on other 

24 students or the school community as a whole caused 

25 by the preliminary relief and shall respect the prin-
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1 ciples of comity set out in paragraph (1)(B) in tai2 loring any preliminary relief. Preliminary injunctive 

3 relief shall automatically expire on the date that is 

4 90 days after its entry, unless the court makes the 

5 findings required under subsection (a)(1) for the 

6 entry of prospective relief and makes the order final 

7 before the expiration of the 90-day period. 

8 (b) TERMINATION OF RELIEF.— 

9 (1) TERMINATION OF PROSPECTIVE RELIEF.— 

10 (A) In any civil action with respect to vio11 lations of Federal law in the public schools in 

12 which prospective relief is ordered, such relief 

13 shall be terminable upon the motion of any 

14 party or intervener— 

15 (i) 2 years after the date the court 

16 granted or approved the prospective relief; 

17 (ii) 1 year after the date the court has 

18 entered an order denying termination of 

19 prospective relief under this paragraph; or 

20 (iii) in the case of an order issued on 

21 or before the date of enactment of the Re22 storing Authority to Schools Act (enacted 

23 llll ll, 2004), 2 years after such 

24 date of enactment. 
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1 (B) Nothing in this section shall prevent 

2 the parties from agreeing to terminate or mod3 ify relief before the relief is terminated under 

4 subparagraph (A). 

5 (2) IMMEDIATE TERMINATION OF PROSPECTIVE

6 RELIEF.—In any civil action with respect to viola7 tions of Federal law in the public schools, a defend8 ant or intervener shall be entitled to the immediate 

9 termination of any prospective relief if the relief was 

10 approved or granted in the absence of a finding by 

11 the court that the relief is narrowly drawn, extends 

12 no further than necessary to correct the violation of 

13 the Federal right, and is the least intrusive means 

14 necessary to correct the violation of the Federal 

15 right. 

16 (3) LIMITATION.—Prospective relief shall not 

17 terminate if the court makes written findings based 

18 on the record that prospective relief remains nec19 essary to correct a current and ongoing violation of 

20 the Federal right, extends no further than necessary 

21 to correct the violation of the Federal right, and 

22 that the prospective relief is narrowly drawn and the 

23 least intrusive means to correct the violation. 

24 (4) TERMINATION OR MODIFICATION OF RE25 LIEF.—Nothing in this section shall prevent any 
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1 party or intervener from seeking modification or ter2 mination before the relief is terminable under para3 graph (1) or (2), to the extent that modification or 

4 termination would otherwise be legally permissible. 

5 (c) SETTLEMENTS.— 

6 (1) CONSENT DECREES.—In any civil action 

7 with respect to violations of Federal law in the pub8 lic schools, the court shall not enter or approve a 

9 consent decree unless it complies with the limitations 

10 on relief set forth in subsection (a). 

11 (2) PRIVATE SETTLEMENT AGREEMENTS.— 

12 (A) Nothing in this section shall preclude 

13 parties from entering into a private settlement 

14 agreement that does not comply with the limita15 tions on relief set forth in subsection (a), if the 

16 terms of that agreement are not subject to 

17 court enforcement other than the reinstatement 

18 of the civil proceeding that the agreement set19 tled. 

20 (B) Nothing in this section shall preclude 

21 any party claiming that a private settlement 

22 agreement has been breached from seeking in 

23 State court any remedy available under State 

24 law. 
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1 (d) STATE LAW REMEDIES.—The limitations on rem2 edies in this section shall not apply to relief entered by 

3 a State court based solely upon claims arising under State 

4 law. 

5 (e) PROCEDURE FOR MOTIONS AFFECTING PRO6 SPECTIVE RELIEF.— 

7 (1) GENERALLY.—The court shall promptly 

8 rule on any motion to modify or terminate prospec9 tive relief in a civil action with respect to violations 

10 of Federal law in the public schools. Mandamus shall 

11 lie to remedy any failure to issue a prompt ruling on 

12 such a motion. 

13 (2) AUTOMATIC STAY.—Any motion to modify 

14 or terminate prospective relief made under sub15 section (b) shall operate as a stay during the pe16 riod— 

17 (A)(i) beginning on the 30th day after 

18 such motion is filed, in the case of a motion 

19 made under paragraph (1) or (2) of subsection 

20 (b); or 

21 (ii) beginning on the 180th day after such 

22 motion is filed, in the case of a motion made 

23 under any other law; and 

24 (B) ending on the date the court enters a 

25 final order ruling on the motion. 
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1 (3) POSTPONEMENT OF AUTOMATIC STAY.— 

2 The court may postpone the effective date of an 

3 automatic stay specified in subsection (e)(2)(A) for 

4 not more than 60 days for good cause. No postpone5 ment shall be permissible because of general conges6 tion of the court’s calendar. 

7 (4) ORDER BLOCKING THE AUTOMATIC STAY.— 

8 Any order staying, suspending, delaying, or barring 

9 the operation of the automatic stay described in 

10 paragraph (2) (other than an order to postpone the 

11 effective date of the automatic stay under paragraph 

12 (3)) shall be treated as an order refusing to dissolve 

13 or modify an injunction and shall be appealable pur14 suant to section 1292(a)(1) of title 28, United 

15 States Code, regardless of how the order is styled or 

16 whether the order is termed a preliminary or a final 

17 ruling. 

18 (f) SPECIAL MASTERS.— 

19 (1) IN GENERAL.— 

20 (A) In any civil action in a Federal court 

21 with respect to violations of Federal law in the 

22 public schools, the court may appoint a special 

23 master who shall be disinterested and objective 

24 and who will give due regard to balancing the 

25 needs of the school community as a whole 
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1 against the requested relief, to conduct hearings 

2 on the record and prepare proposed findings of 

3 fact. 

4 (B) The court shall appoint a special mas5 ter under this subsection during the remedial 

6 phase of the action only upon a finding that the 

7 remedial phase will be sufficiently complex to 

8 warrant the appointment. 

9 (2) APPOINTMENT.— 

10 (A) If the court determines that the ap11 pointment of a special master is necessary, the 

12 court shall request that the defendant State of13 ficials and the plaintiff each submit a list of not 

14 more than 5 persons to serve as a special mas15 ter. 

16 (B) Each party shall have the opportunity 

17 to remove up to 3 persons from the opposing 

18 party’s list. 

19 (C) The court shall select the master from 

20 the persons remaining on the list after the oper21 ation of subparagraph (B). 

22 (3) INTERLOCUTORY APPEAL.—Any party shall 

23 have the right to an interlocutory appeal of the 

24 judge’s selection of the special master under this 

25 subsection, on the ground of partiality. 
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1 (4) COMPENSATION.—The compensation to be 

2 allowed to a special master under this section shall 

3 be based on an hourly rate not greater than the 

4 hourly rate established under section 3006A for pay5 ment of court-appointed counsel, plus costs reason6 ably incurred by the special master. Such compensa7 tion and costs shall be paid with funds appropriated 

8 to the Judiciary. 

9 (5) REGULAR REVIEW OF APPOINTMENT.—In 

10 any civil action with respect to violations of Federal 

11 law in the public schools in which a special master 

12 is appointed under this subsection, the court shall 

13 review the appointment of the special master every 

14 6 months to determine whether the services of the 

15 special master continue to be required under para16 graph (1). In no event shall the appointment of a 

17 special master extend beyond the termination of the 

18 relief. 

19 (6) LIMITATIONS ON POWERS AND DUTIES.—A 

20 special master appointed under this subsection— 

21 (A) may be authorized by a court to con22 duct hearings and prepare proposed findings of 

23 fact, which shall be made on the record; 

24 (B) shall not make any findings or commu25 nications ex parte; 
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1 (C) may be authorized by a court to assist 

2 in the development of remedial plans; and 

3 (D) may be removed at any time, but shall 

4 be relieved of the appointment upon the termi5 nation of relief. 

6 (g) DEFINITIONS.—As used in this section— 

7 (1) the term ‘‘consent decree’’ means any relief 

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

9 part upon the consent or acquiescence of the parties, 

10 but does not include private settlements; 

11 (2) the term ‘‘civil action with respect to viola12 tions of Federal law in the public schools’’ means 

13 any civil proceeding arising under Federal law with 

14 respect to any aspect of operation of the public 

15 schools or the provision of public education, includ16 ing extra curricular and ancillary activities, but does 

17 not include civil proceedings relating to desegrega18 tion of the public schools; 

19 (3) the term ‘‘public schools’’ means a public el20 ementary or secondary school as such terms are de21 fined in section 9101 of the Elementary and Sec22 ondary Education Act of 1965 (20 U.S.C. § 7801); 

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

24 means an agreement entered into among the parties 

25 that is not subject to judicial enforcement other than 
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1 the reinstatement of the civil proceeding that the 

2 agreement settled; 

3 (5) the term ‘‘prospective relief’’ means all re4 lief other than compensatory monetary damages; 

5 (6) the term ‘‘special master’’ means any per6 son appointed by a Federal court pursuant to Rule 

7 53 of the Federal Rules of Civil Procedure or pursu8 ant to any inherent power of the court to exercise 

9 the powers of a master, regardless of the title or de10 scription given by the court; and 

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

12 form that may be granted or approved by the court, 

13 and includes consent decrees but does not include 

14 private settlement agreements. 

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