Legal Clips, [April 2008]Last week’s Legal Clips included an excerpt, now at the first link below, of a Washington Post article about a lawsuit by some parents in Virginia’s Fairfax County over the school board’s redrawing of high school attendance zones. The website of the organization criticizing the plan, Fairfax County Coalition of Advocates for Public Schools (FairfaxCAPS), and the complaint filed in the case are below. The complaint asserts that the school board’s decisions were “arbitrary and capricious and an abuse of discretion” because they violated the board’s own policies, ignored counter-arguments, and would not accomplish the professed goals. More significant for school diversity efforts, the group argues that the school board’s actions are precluded by state law because Virginia is a “Dillon’s Rule state” in which “a school board can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable.” Dillon’s Rule refers to a legal doctrine by 19th Century jurist John Forrest Dillon under which local governmental agencies derive their existence and powers solely from the state legislature. For details, as well as discussions of respective arguments for and against Dillion’s Rule and home rule systems, see the 2004 publication below by Fairfax County’s League of Women Voters.
In the lead-up to and aftermath of the U.S. Supreme Court’s June 2007 ruling against student assignment plans in Seattle and Louisville, much attention has focused on race-neutral approaches like school attendance zones and consideration of socioeconomic factors. NSBA and a national coalition of education organizations had filed a brief in the case, below, arguing that local school boards urgently need the discretion to adopt local policies to reduce racial and socioeconomic isolation and to realize the educational benefits of diverse learning environments. The Supreme Court’s decision in PICS v. Seattle School District No 1, summarized below, further restricted that discretion when it comes to consideration of race. However, the concurring opinion by Justice Anthony Kennedy, who cast the critical fifth vote in the case, specifically stated that school boards are free to use race-conscious measures not focused on individual students, including school sitings and attendance zones. Even opponents of race-conscious policies had argued strenuously that race-conscious policies were unnecessary because school boards could adopt race-neutral alternatives. The parents’ complaint in Fairfax County, however, argues that Virginia school boards “are precluded from explicit authority to consider the socioeconomic characteristics of school populations in making decisions to redistrict school boundaries.” Indeed, the complaint asserts that state law precludes a Virginia school board even from considering instructional effectiveness when making such decisions. According to a 2003 report published by the Brookings Institution, available at the last link, 31 states apply Dillon’s Rule to all municipalities, eight apply it only to certain municipalities, and only 10 do not adhere to it at all.
NSBA School Law pages on filing of Pascale v. Fairfax County Sch. Bd.
FairfaxCAPS site
Complaint in Pascale v. Fairfax County Sch. Bd.
Fairfax League of Women Voters on Dillon’s Rule
NSBA School Law pages on PICS v. Seattle Sch. Dist. No 1
Education coalition brief in diversity cases
Brookings Institution report on Dillon’s Rule and growth management