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Heated Court Fight Seen on Schools

Villaraigosa and L.A. Unified each have strong arguments regarding the new law that will give him substantial control over the district.

September 25, 2006|Maura Dolan | Times Staff Writer

A lawsuit to topple Mayor Antonio Villaraigosa's plan to assume substantial control over the Los Angeles Unified School District is expected to ignite a court battle that will hinge on whether the state Legislature had the power to intervene on the mayor's behalf.

L.A. school officials said they would file a lawsuit within the next couple of weeks to strike down a law that the Legislature passed to pave the way for Villaraigosa's initiative. The California attorney general's office will defend the law, but the mayor also is arranging for a private lawyer to help protect his plan.

At the heart of the battle will be a 1946 amendment to Article IX, Section 6 of the state Constitution, which states: "No school or college or any other part of the public school system shall be, directly or indirectly, transferred from the public school system or placed under the jurisdiction of any authority other than one included within the public school system."

The state Constitution can be amended only by voters.

To get around the constitutional bar, the Legislature declared that a Council of Mayors, dominated by Villaraigosa and empowered to reject the school board's choice of a district superintendent, was a "local educational agency," making it part of the public school system specified in Article IX. A pivotal legal question the courts must answer is whether a body becomes an educational agency simply because the Legislature says it is.

"It's a close question that could go either way," said Erwin Chemerinsky, a law professor at Duke University.

Chemerinsky said he believes the Legislature has the authority to decide what constitutes an educational agency and, therefore, Villaraigosa "probably has the better legal argument."

But no California court has ever ruled on the constitutional question of a partial mayoral takeover, and both sides pointed to peripheral rulings that bolstered their cases.

"It is reasonable that a court could say no, these are mayors, and you can't make a council of mayors an educational agency just by calling them one," said Chemerinsky, an expert on constitutional law and the Los Angeles City Charter.

Michael Hersher, deputy general counsel for the state Department of Education, said he also believes the mayor has the stronger case, although his boss, state schools chief Jack O'Connell, opposes the Los Angeles plan.

"The general rule is that the Legislature has complete authority to decide how school districts are going to be governed, how they are organized and what their territory is," Hersher said. "They could decide to do away with the LAUSD or split it into 10 districts."

If the Legislature can define what is an educational agency, a fast-food outlet could legally become an educational agency, said Kevin S. Reed, L.A. Unified's general counsel. The district contends that the Legislature can shift power over schools only to a true educational body.

If a council of city mayors is an educational agency, "so is my mother," Reed said. "The Legislature can't say they have created an exception that completely swallows the purpose of the Constitution and why it was put there in 1946."

Indeed, the state legislative analyst's office in two opinions expressed doubt that the transfer of power was constitutional.

"My gut reaction is that the mayor is not going to win," said Edward Steinman, a Santa Clara University law professor and expert in education law and the state Constitution who reviewed the legislative analyst's reports and arguments from the mayor.

The law, signed by the governor last week and to take effect in January, would do more than give Villaraigosa a powerful role in the hiring of the next district superintendent. The superintendent would assume new powers now held by the school board.

The law also would permit Villaraigosa to oversee three clusters of low-performing schools, each containing a high school and its feeder schools. Potentially 40 schools could be placed under the mayor's oversight.

No mayor in California has wielded such authority since voters passed a state constitutional amendment in 1946 separating the school system from municipalities.

In cases in which the state has taken over school districts, the schools have remained under the jurisdiction of the state Department of Education, which the 1946 amendment permits. In Oakland, Mayor Jerry Brown managed to insert three appointees on the school board, but the district eventually was taken over by the state anyway.

If a court found the new agencies created by the Legislature were not truly part of the public school system, it would then have to determine whether the mayor was given mere advisory power rather than control.

A law that includes a mayor in school governance may be found constitutional "as long as the school system retains some control," Steinman said. The question is whether the district retains enough, he said.

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