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 Com-
mittee 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘School Desegregation
Litigation Reform Act of 1996’’.
SEC. 2. APPROPRIATE REMEDIES IN SCHOOL CASES.
(a) IN GENERAL.—Section 213 of the Equal Edu-
cational Opportunities Act of 1974 (20 U.S.C. 1712) is
amended to read as follows:
‘‘§ 213. Appropriate remedies in school cases
‘‘(a) REQUIREMENTS FOR RELIEF.—
‘‘(1) PROSPECTIVE
RELIEF.—(A) A Federal
court shall not have jurisdiction to award prospective
relief in any civil action with respect to the operation
of public schools that extends further than necessary
to remedy the violation of a Federal right of a plain-
tiff.
‘‘(B) A Federal court shall not have jurisdiction
to grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn, ex-
tends no further than necessary to remedy the viola-
tion of the Federal right, and is the least intrusive
means necessary to remedy the violation of the Fed-
eral right.
‘‘(C) A Federal court shall not have jurisdiction
to order any prospective relief that requires or per-
mits a government official to exceed authority under
State or local law or otherwise violates State or local
law, unless—
‘‘(i) Federal law requires such relief to be
ordered in violation of State or local law;
‘‘(ii) the relief is necessary to remedy a
violation of a Federal right; and
‘‘(iii) no other relief will remedy the viola-
tion of a Federal right.
‘‘(D) Nothing in this section shall be construed
to authorize a Federal court, in exercising its reme-
dial powers, to order the assignment of students to
particular schools on the basis of race, color, or na-
tional origin, to order the raising of taxes, or to re-
peal, or make less restrictive from otherwise applica-
ble limitations, the remedial powers of the courts.
‘‘(2) STUDENT ASSIGNMENT ORDERS.—(A) In
any civil action with respect to the operation of pub-
lic schools, a Federal court shall not have jurisdic-
tion to enter a student assignment order unless—
‘‘(i) a Federal court has previously entered
an order for less intrusive relief that has failed
to remedy the violation of the Federal right
sought to be remedied through the student as-
signment order; and
‘‘(ii) the defendant has had a reasonable
time to comply with the previous court order.
‘‘(B)(i) In any civil action with respect to the
operation of the public schools, a student assignment
order shall be entered only by a three-judge court in
accordance with section 2284 of title 28, United
States Code.
‘‘(C) A party seeking a student assignment
order in a Federal court shall file with any request
for such relief, a request for a three-judge court and
materials sufficient to demonstrate that the require-
ments of subparagraph (a) have been met.
‘‘(D) The three-judge court shall enter a stu-
dent assignment order only if the court finds by
clear and convincing evidence that—
‘‘(i) the requirements of subparagraph (a)
have been met; and
‘‘(ii) no other relief will remedy the viola-
tion of the Federal right.
‘‘(b) TERMINATION OF RELIEF.—
‘‘(1) TERMINATION OF PROSPECTIVE RELIEF.—
(A) Subject to the limitation set forth in paragraph
(3), in any civil action with respect to the operation
of the public schools in which prospective relief is or-
dered, such relief shall be terminated upon the mo-
tion of any party or intervenor—
‘‘(i) 2 years after the date the court grant-
ed or approved the prospective relief; or
‘‘(ii) 1 year after the date the court has
entered an order denying termination of pro-
spective relief under this paragraph.
‘‘(B) Nothing in this section shall prevent the
parties from agreeing to terminate or modify relief
before the relief is terminable under subparagraph
(A).
‘‘(2) IMMEDIATE
TERMINATION
OF
PROSPEC-
TIVE RELIEF.—In any civil action with respect to
the operation of the public schools, a defendant or
intervenor shall be entitled to the immediate termi-
nation of any prospective relief if the relief was ap-
proved or granted in the absence of a finding by the
court that the relief is narrowly drawn, extends no
further than necessary to remedy the violation of the
Federal right, and is the least intrusive means nec-
essary to remedy the violation of the Federal right.
‘‘(3) LIMITATION.—(A) Prospective relief shall
not terminate if the court previously entered the pro-
spective relief after finding it necessary to remedy a
violation of a Federal right and the plaintiff estab-
lishes by a preponderance of the evidence that pro-
spective relief remains necessary to remedy a current
and ongoing violation of that Federal right. The
court shall not permit discovery.
‘‘(B) Nothing in this section shall prevent any
plaintiff from bringing a new civil action with re-
spect to the operation of the public schools against
a party to a pending civil action with respect to the
operation of the public schools for a new violation of
a Federal right, or obtaining prospective relief con-
sistent with the provisions of this section for such a
new violation. If a new action is brought in Federal
court, it shall not be heard by any judge who has
previously entered an order for prospective relief in
a civil action that has been in effect for longer than
2 years with respect to the operation of the public
schools.
‘‘(4) TERMINATION OR MODIFICATION OF RE-
LIEF.—Nothing in this section shall prevent any
party or intervenor from seeking modification or ter-
mination before the relief is terminable under para-
graph (1) or (2), to the extent that modification or
termination would otherwise be legally permissible.
‘‘(c) SETTLEMENTS.—
‘‘(1) CONSENT DECREES.—In any civil action
with respect to the operation of public schools, a
Federal court shall not have jurisdiction to enter or
approve a consent decree unless it complies with the
limitations on relief set forth in subsection (a).
‘‘(2) PRIVATE
SETTLEMENT
AGREEMENTS.—
Nothing in this section shall preclude parties from
entering into a private settlement agreement that
does not comply with the limitations on relief set
forth in subsection (a).
‘‘(d) PROCEDURE FOR MOTIONS AFFECTING PRO-
SPECTIVE RELIEF.—The court shall promptly rule on any
motion to modify or terminate prospective relief in a civil
action with respect to the operation of the public schools.
‘‘(e) SPECIAL MASTERS.—In any civil action with re-
spect to the operation of public schools—
‘‘(1) IN GENERAL.—(A) The court may appoint
a special master who shall be disinterested and ob-
jective to conduct hearings on the record and pre-
pare proposed findings of fact.
‘‘(B) The court shall appoint a special master
during the remedial phase of the action only upon a
finding that the remedial phase will be sufficiently
complex to warrant the appointment.
‘‘(2) APPOINTMENT.—(A) If the court deter-
mines that the appointment of a special master is
necessary, the court shall request that the defendant
and the plaintiff each submit a list of not more than
5 persons to serve as a special master.
‘‘(B) Each party shall have the opportunity to
remove up to 3 persons from the opposing party’s
list.
‘‘(C) The court shall select the master from the
persons remaining on the list after the application of
subparagraph (B).
‘‘(D) If the court determines that the persons
remaining on the list are not qualified to serve as
special master, the court may appoint a person not
on the list with the consent of all parties.
‘‘(3) INTERLOCUTORY
APPEAL.—Any party
shall have the right to an interlocutory appeal of the
judge’s selection of the special master, on the
ground of partiality.
‘‘(4) COMPENSATION.—The compensation to be
allowed to a special master shall be based on an
hourly rate not greater than the hourly rate estab-
lished under section 3006A of title 18 for payment
of court-appointed counsel, plus costs reasonably in-
curred by the special master. Such compensation
and costs shall be paid with funds appropriated to
the judiciary. In no event shall the court require the
parties to pay the compensation or costs of the spe-
cial master.
‘‘(5) REGULAR
REVIEW
OF
APPOINTMENT.—
The court shall review the appointment of the spe-
cial master every 6 months to determine whether the
services of the special master continue to be required
under paragraph (1). In no event shall the appoint-
ment of a special master extend beyond the termi-
nation of the relief.
‘‘(6) LIMITATIONS ON POWERS AND DUTIES.—
A special master appointed in any civil action with
respect to the operation of public schools—
‘‘(A) may be authorized by a court to con-
duct hearings on the record and shall make any
findings of fact based on the record as a whole;
‘‘(B) shall not make any findings or com-
munications ex parte; and
‘‘(C) may be removed at any time, but
shall be relieved of the appointment upon the
termination of relief.
‘‘(7) The requirements of paragraphs (1)
through (4) shall apply only to special masters ap-
pointed after the date of enactment of School Deseg-
regation Litigation Reform Act of 1996.
‘‘(f) INTERVENTION.—In any civil action with respect
to the operation of public schools, any State or local offi-
cial or unit of government whose jurisdiction includes the
appropriation of funds for, or the operation of, public
schools shall have standing to oppose the imposition or
continuation in effect of prospective relief and to seek ter-
mination of such relief, and shall have the right to inter-
vene in any proceeding relating to such relief.
‘‘(g) DEFINITIONS.—As used in this section—
‘‘(1) the term ‘consent decree’ means any relief
entered by the court that is based in whole or in
part upon the consent or acquiescence of the parties,
but does not include private settlement agreements;
‘‘(2) the term ‘civil action with respect to the
operation of public schools’ means any civil proceed-
ing arising under Federal law with respect to the op-
eration of any public school system by any State or
local government that alleges that the public school
system has been or is being operated in violation of
the 5th or 14th amendment rights or any other pro-
vision of Federal law that guarantees equal edu-
cational opportunity;
‘‘(3) the term ‘student assignment order’ in-
cludes any order, including a temporary restraining
order or preliminary injunctive relief, that has the
purpose or effect of directing or regulating the par-
ticular public school to which students are assigned
to attend;
‘‘(4) the term ‘private settlement agreement’
means an agreement entered into among the parties
that is not subject to judicial enforcement other than
the reinstatement of the civil proceeding that was
concluded as a result of the agreement entering into
force;
‘‘(5) the term ‘prospective relief’ means all re-
lief other than compensatory monetary damages, in-
cluding the appointment of a special master;
‘‘(6) the term ‘special master’ means any per-
son appointed by a Federal court pursuant to rule
53 of the Federal Rules of Civil Procedure or pursu-
ant to any power of the court to exercise the powers
of a master, regardless of the title or description
given by the court;
‘‘(7) the term ‘relief’ means all relief in any
form that may be ordered or approved by the court,
and includes consent decrees but does not include
private settlement agreements; and
‘‘(8) the term ‘violation of a Federal right’ in-
cludes a violation of a Federal constitutional or Fed-
eral statutory right, but does not include a violation
of a court order that is not independently a violation
of a Federal constitutional or Federal statutory
right.’’.
(b) APPLICATION OF AMENDMENT.—Section 213 of
the Equal Educational Opportunities Act of 1974 (20
U.S.C. 1712), as amended by this section, shall apply with
respect to all prospective relief whether such relief was
originally ordered or approved before, on, or after the date
of the enactment of this Act.
SEC. 3. DENIAL OF EQUAL EDUCATIONAL OPPORTUNITY
PROHIBITED.
Section 204 of the Equal Educational Opportunities
Act of 1974 (20 U.S.C. 1703) is amended to read as fol-
lows:
‘‘§ 204. Denial of equal educational opportunity pro-
hibited
‘‘No State shall deny equal educational opportunity
to an individual on account of race, color, or national ori-
gin, by—
‘‘(1) the intentional segregation by an edu-
cational agency of students on the basis of race,
color, or national origin among or within schools;
‘‘(2) the assignment or transfer by the State,
the courts of any State, any educational agency or
official thereof, or any Federal agency or official
thereof of a student to a school, other than the one
closest to the place of residence within the school
district in which the student resides, if the assign-
ment was made on the basis of race, color, or na-
tional origin, of students among schools in the
school district, including assignments made for the
purpose of attaining a balance on the basis of race,
color, or national origin, unless—
‘‘(A) such assignment is necessary to rem-
edy the violation of a Federal right (as defined
in section 213(g)(8)); and
‘‘(B) there are no other means for remedy-
ing the violation of the Federal right; or
‘‘(3) the modification of the lines drawn by the
State, subdividing its territory into separate school
districts, if the modification was made for the pur-
pose of attaining a balance, on the basis of race,
color, or national origin, of students among public
schools, unless—
‘‘(A) such assignment is necessary to rem-
edy the violation of a Federal right (as defined
in section 213(g)(8)); and
‘‘(B) there are no other means for remedy-
ing the violation of the Federal right.’’.
SEC. 4. CONFORMING AMENDMENTS.
(a) POLICY.—Section 202 of the Equal Educational
Opportunities Act of 1974 (20 U.S.C. 1701) is amended—
(1) in subsection (a), by striking ‘‘(a) The’’ and
inserting ‘‘The’’; and
(2) by striking subsection (b).
(b) FINDINGS.—Section 203(b) of the Equal Edu-
cational Opportunities Act of 1974 (20 U.S.C. 1702) is
amended in subsection (b) by striking ‘‘elimination of the
vestiges of dual school systems, except that the provisions
of this title are not intended to modify or diminish the
authority of the courts of the United States to enforce
fully the fifth and fourteenth amendments to the Constitu-
tion of the United States.’’, and inserting ‘‘denial of equal
educational opportunity, limit the jurisdiction of the Fed-
eral courts over the operations of public schools, and pro-
hibit the use of race, color, or national origin as a basis
for making school assignments.’’.
(c) CIVIL ACTIONS.—Section 207 of the Equal Edu-
cational Opportunities Act of 1974 (20 U.S.C. 1706) is
amended by—
(1) inserting ‘‘or a school district in which such
an individual resides on behalf of such an individual,
or any State or local official or unit of government
whose jurisdiction includes the appropriation of
funds for, or the operation of, a school district in
which such an individual resides on behalf of such
an individual,’’ after ‘‘this part’’ in the first sen-
tence; and
(2) striking ‘‘institute a civil action’’, and in-
serting ‘‘institute or intervene in a civil action’’.