# Opposition Brief — Greenville Public School District v. Western Line Consolidated School District

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 804

## Text

| Surrsme Court, US
FILED
D JUN 28 1990
No. 90-1861
| OFFICE OF THE CLERK
IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990

GREENVILLE PUBLIC SCHOOL
DISTRICT, et ai.,

Petitioners,
versus

WESTERN LINE CONSOLIDATED SCHOOL
DISTRICT, et al,
Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of Mississippi

BRIEF FOR RESPONDENTS IN OPPOSITION

J. Robertshaw

ROBERTSHAW, TERNEY & NOBLE

128 South Poplar Street

P. O. Box 1498

Greenville, MS 38702-1498

(601) 378-2171

Counsel of Record for Respondents -

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

———

I

II

i
QUESTIONS PRESENTED

Whether the law applicable to the facts of this case
was not settled by Morns v. Gressette, 432 US 491
(1977)?

Whether Petitioners are not actually seeking on cer-
tiorari a review of a question of fact, decided adversely
to their contention in Greenville Public School District
v. Western Line Consolidated School District (Appendix
A), and in Dupree v. Mabus (a three-judge court;
Appendix R), both courts considering the same evide-
nce.

III Whether, assuming the statute in question [§ 47, Ch.

492, Miss. Laws of 1986, the “Uniform School Law’”]
was not precleared, should not Petitioners’ remedy be
the traditional constitutional action to enjoin enforce-
ment of of the voting practices or procedures com-
plained of?’

‘ As will be fully developed, Petitioners could not care less about

the amorphous effect on voting. In fact, the Petition is filed by the

school district and by the individuals in their official capacities as district
trustees. They seek the tax base on real and personal property annexed.

Very few schoo! districts vote.

il

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED 2... ccvccccvesce I
TABLE OF AUTRICRAIEEGS «occ cccccnsens IV
PERCEIVED MISSTATEMENTS OF FACT 1

A. The description of Western Line School District
in n.1, Petitioners’ Brief, is inaccurate
ee eee ee

B. The Supreme Court of Mississippi did
not “approve[d] the annexation in
1987” in Farmers, Inc., supra, N.1..........

SUPPLEMENTAL STATEMENT OF FACTS ..
PRELIMINARY ANALYSIS .....cscscecee

REASONS WHY CERTIORARI SHOULD

ee EE (4-60 ks ee Ra eee a

A. In Gressette, supra, this Court settled the
law that the USAG automatically precleared
State legislation submitted under § 5 by his
failure, for whatever reason, to make a timely,
ee

B. The Uniform School Law as submitted satisfies
Gressette’s requirement the submission must be
. rT eres ree res

C. Whether the MAG fairly and squarely “submit-
ted” § 47 along with Uniform School Law to the
USAG for preclearance “in its entirety” is a

12

iii
Table of Contents (continued)

question of fact, not law, and not reviewable on
SOT ee ee eee ee
D. This case is a perfect example of what happens
when the USAG, on a § 5 review, goes beyond
the impact of State legislation on voting. ....
E. There is a lot to be said for certainty follow-
ing a preclearance of State legislation ......

14

16

19

20

24

25

lb

iv

TABLE OF AUTHORITIES

Page
CASES
Arkansas v. Mississippi, 415 U. S. 289 (1974) .... 2
Bassett v. Town of Taylorsville, 542 So2d 918
See SN rs ba Bree sacs Oe G SE Hee eee 6
City of Greenville v. Farmers, Inc., 513 So2d 932,
Fe EE 5 0s oon 06 eee een eee 2, 3, 4, 18, 21
Clark v. Roemer, --- US ---, 1991 WL 89713
ee a re ee a 2
Dotson v. City of Indianola, 514 FSupp 397
I MI Gra ater eure Us o's 5 oa 17

Dupree v. Mabus, CA No. H90-0043(W),

(SD MS, April 2, 1991)(Not officially reported.
P| egg at ee ee Aa > Sr
Greenville Public School Dist. v. Western Line

Consol. School Dist., 575 So2d 956 (Miss., 1991)

REO 5s ae eae Ue ees hae 6, 13, 17
Harrison County v. Gulfport, 557 So2d 780

ok ae a as oo 8s i 6
McCain v. Lybrand, 465 US 236 (1984) ... 11,.21 22, 23
Moms v. Gressette, 432 US 491 (1977) ....... Passim

Nickles v. Western Line Consol. School Dist., No.
GC90-45-B-O (ND MS, filed February 22, 1990) . 14
Prentiss County Annexation Committee v. Booneville,

Sak SOOO GPO THUR. TIGR) vc ce ec ccnyeevess 6
Robinson v. Board of Trustees, 477 So2d 1352
Pee ee ee eee eee ee Te ee ee 18
Western Line Consol. School Dist. v. City of Greenville,
S65 Sa.ce B57 (hee. 1967) ic ce cece 3, 6
STATUTES

et oe BB Re Og re Passim
§ 37-6-3(1), Mississippi Code of 1972 ......... 13
§ 37-7-103, Mississippi Code of 1972 ......... 7, 13

Vv

Table of Authorities (continued)

§ 37-7-105, Mississippi Code of 1972 ......... 7
§ 37-7-113, Mississippi Code of 1972 ......... 13
§ 37-7-611, Mississippi Code of 1972 ........ .Passim
§ 37-9-105, Mississippi Code of 1972 ......... 18
§ 37-S7-105, Mississippi Code of 1972 ........ 7
Ch. 492, (Miss.) Laws of 1986 (cited as Uniform
gS ee rere 7, 8, 12,.13, .15, 17, 20
§ 47, Ch. 492, (Miss.) Laws of 1986 ....... 7, 8, 14, 15
§ 52, Ch. 492, (Miss) Laws of 1986 ........ 7, 13, 24
§ 57, Ch. 492, Miss. Laws of 1986 ........... 12, 24
OTHER AUTHORITIES

The Book of Common Prayer (1928 Ed.) ....... 19
Supreme Court Rules, Rule 10.1 ............ +, o2

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 90-1861

GREENVILLE PUBLIC SCHOOL
DISTRICT, et al,
Petitioners,

v.

WESTERN LINE CONSOLIDATED SCHOOL
DISTRICT, et al.,
Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of Mississippi

BRIEF FOR RESPONDENTS IN OPPOSITION

PERCEIVED MISSTATEMENTS OF FACT

A. The description of Western Line School District in
n.1, Petitioners’ Brief, is inaccurate and misleading.

The statement challenged is “Western Line is essen-
tially a suburban school district.” [Emphasis added] Our
objection is not nit-picking, as suburban districts appear to

be given different consideration in the cases. Also, the
demography of the school district is relevant to questions
of voting, which is supposedly what this case is all about.

In fact, Western Line is approximately 40 miles north
and south, extending from the north boundary of Wash-
ington county southward into Issaquena County. It is
bounded on the west by the Mississippi River and by the
boundaries of Greenville Public School District (“GPSD”),
completely surrounding the latter. Its width varies from
one mile (at the easterly projection of GPSD) to about 15
miles, depending on the meandering of the river. It con-
tains approximately 442 square miles in Washington Coun-
ty, plus approximateiy 48 square miles in Issaquena coun-

ty.

The map, Appendix A to Arkansas v. Mississippi, 415
U. S. 289 (1974), includes that part of Western Line’s area
affected by annexation, but does not fairly show its total
area, or the general character of the District. By sub-
tracting the former acreage of Greenville from the total
acreage after annexation and deducting 5500 acres of
GPSD “added territory”, we obtain 3,761 acres of Western
Line (out of 590 square miles). This is about 1.2% of
Western Line’s total area”

See: City of Greenville v. Farmers, Inc., 513 So2d 932, 939 (Miss.
1987). The Court uses 300 square miles as Western Line’s area; we
don’t know where this number was obtained, but the difference is not
material. Both numbers illustrate our point.

2 We are reminded of a Greenville resident charged with frau i-
lently selling “rabbit burgers” during the Great Flood of 1927. When
pressed, he admitted they were only “S0% rabbit.” Asked what this

(continued...)

Western Line is a predominantly rural school district.
This is illustrated by the fact the proposed annexation
affected only about 1% of its territory, but approximately
15%’ of student enrollment, and approximately 55% of its
ad valorem tax base. Farmers, Inc., supra, n.1.

B. The Supreme Court of Mississippi did not “ap-
prove[d] the annexation in 1987” in Farmers, Inc,
supra, m1.

Western Line Consol. School Dist. v. City of Greenville,
465 So.2d 1057 (Miss. 1987), reversed and remanded the
case, directing the Chancellor to

balance the equities of the parties by weighing
all relevant factors to determine if the city’s
claim of need is defeated by inequitable conse-
quences to those in the annexation area. . . [465
So.2d at 1060.]

He did just that; he denied the whole annexation after
making specific findings related to Western Lines’ objec-
tions to annexing the Mississippi Power & Light Company
generating plant and the Comet Delta, Inc., facility,’ ob-
jections of Farmers, Inc., and certain objector-farmers.

*(._.continued)
meant, he replied, “One rabbit, one mule.” Some “suburban” school
district!

. Following annexation, more that 20% of enrollment.

* A 26.6 million dollar rice milling, processing, and storage facility.

Farmers, Inc., supra, again remanded the case with
directions to exclude the above facilities and property, and
to draw boundaries of the remainder of the proposed
annexation, thus assuring an adequate tax base and financ-
ial viability for Western Line.

SUPPLEMENTAL STATEMENT OF THE FACTS

Some background is needed in order to grasp the
true issues here. One would think that since this action
is brought under § 5 (the Voting Rights Act of 1965) that
it petitioners were concerned over the denial or abridge-
Ment of the right to vote. Nothing could be farther from
the truth. Petitioners do not give a tinker’s damn about
voting rights; they are after tax revenues.

_ Prior to 1954, there were more school districts in
Mississippi than a hound dog has fleas. For example, in
the area now comprising Western Line and GPSD, there
was the Greenville school district (which accepted all
white pupils from north to the county line and for some
8 to 10 miles to the south (boundaries were informal and
elastic), the Avon school district, the Riverside district,
the Chatham district and the Glen Allan district. Super-
imposed on these districts were separate districts for the
blacks: the Black Bayou Colored district, the Riverside
Colored district, the Glen Allan Colored district, and so
on. Virtually every school was a separate district.

> Since objectors prevailed in Farmers, Inc., supra, there was no
controversy over the Final Decree entered December 9, 1987, and the
record does not identify the Western Line acreage or tax base finally
included within the new corporate boundaries.

During 1953 and 1954, Mississippi enacted the Mini-
mum Foundation Program. Basically, control was center-
ed in the State Department of Education; the primary
source of revenues came from state taxes, distributed on
a “teacher unit” basis (in effect, per capita); districts were
re-constituted under supervision of the State Educational
Finance Commission (now abolished, its functions being
taken over by the State Board of Education, herein the
“EFC’”), winding up, as I recall, with 151 school districts,
Statewide.

These districts were re-constituted with emphasis on
viability, economic operation, and the capability of offer-
ing a varied curriculum designed to meet the needs of
modern society. A district, like a three-legged stool, had
to have: (1) sufficient students to support a curriculum
meeting accreditation standards; (2) an adequate teaching
and administrative staff; and, (3) a tax base sufficient to
support the first two.° The system must have worked,
because today we have only 153 districts, nearly 40 years
later.

This background was known to the courts and coun-
sel below; we add it here on the theory this Court should
have the same information in considering issues in this
case.

The mission of a school district is to educate pupils;

° The primary source of income was from the state. The only
other source of income for districts for “district maintenance funds”
used for enrichment (teacher salaries, local programs, etc) or for debt
service, was from ad valorem taxes on real and personal property. We
do not consider federal funds usually earmarked for specific purposes.

the mission of a municipality is to govern its residents and
furnish municipal services such as police and fire protec-.
tion, streets, drainage, sewerage, sanitation, and the like,
and these take tax revenues.’ Expansion by way of an-
nexations is triggered by this need for tax revenues, and
the municipal school district came along piggy-back, so to
speak, because of § 37-7-611 and the automatic (often
arbitrary) addition of any annexed territory to the school
district.

During this period, § 37-7-611, Mississippi Code of
1972, was an anomaly. It was arbitrary and the only
method of changing district boundaries not subject to
control by the EFC. Back in the “olden days”, when a
municipality only annexed what it needed, the arbitrary
effect of § 37-7-611 did not constitute a problem. With
‘he rising cost of government exceeding inflationary in-
creases in assessed valuation, cities began to annex ter-
ritory in large gulps. This resulted in a rash of cases
where school districts were forced to oppose annexation,
literally fighting for their economic lives. Examples: Wes-
tern Line Consolidated School District v. City of Greenville,
465 So2d 1057 (Miss. 1985) (the city sought to go from
11.6 square miles to 30.4); Prentiss County Annexation
Committee v. Booneville, 551 So2d 890 (Miss. 1989) (from
6.9 square miles to 24.9); and Harmson County v. Gulfport,
557 So2d 780 (Miss. 1990) (from 29.36 square miles to
83.01).

7 See: Bassett v. Town of Taylorsville, 542 So2d 918 (Miss. 1989).
The point is that criteria supporting municipal expansion differ widely
from, and have no reasonable relationship to, those relevant to the
constitution of school districts.

The legislative purpose of the Uniform School Law
in enacting § 47 repealing § 37-7-611 was to protect the
tax bases of county districts in the path of municipal ex-
pansions.® See: Appendix M, 145a.

PRELIMINARY ANALYSIS

Since petitioners have identified no conflicts between
opinions of United States courts of appeals, or any con-
flict of the opinion by the Mississippi Supreme Court, a
State court of last resort, with that of a United States
court of appeals,’ we are left with the following criterion
for a writ of certiorari stated in Rule 10.1, Supreme Court
Rules:

(c) When a state court or a United States
court of appeals has decided an important ques-
tion of federal law which has not been, but
should be, settled by this Court, or has decided
a federal question in a way that conflicts with

8 Since school taxes were determined by the school trustees and
levied separately by the city/county under §37-57-105, there would be
no reason why the city and county school district might not co-exis’
This preserved the student enrollment and the financial integrity of the
“target” school without interference with the need of the city for
additional tax revenues. If it became necessary or desirable to adjust
school boundaries, the mechanism was there in § 37-7-103 (specifically
precleared as § 52 of the Act).

9 Because § 5 contains the right to a direct appeal to this Court, we
would not expect to find circuit court decisions construing the Voting
Rights Act; petitioners point to no three-judge court decisions conflict-
ing with the case below which, in fact cites and relies upon three-judge
court decisions and, in turn, is cited and followed by Dupree, infra, a
three-judge court.

applicable decisions of this Court.

We think Mons v. Gressette, 432 US 491 (1977), set-
tled the question of Jaw relied upon by the court below;
ie., that compliance with the precleararice procedure is
measured solely by the absence, for whatever reason, of a
timely objection by the Attorney General of the United
States (“USAG”), leaving only a question of fact as to
whether submission of the Uniform School Law’ for
preclearance was “complete”. We believe this Court has
enough to say grace over as it is, without undertaking to
review issues of fact on certiorari.

Petitioners are curiously silent in their petition about
what they really seek to accomplish in this litigation, ‘sta-
ted in their Amended Complaint. The relevant part of
the declaratory judgment sought, as stated in the Amen-
ded Complaint, is:

a. The repeal of Section 37-7-611 of the
Mississippi Code of 1972 by Section 47 of the
Uniform School Law is void and of no effect
until it has been precleared by the Attorney
General of the United States. [Emphasis add-
ed.]

The only remedy under § 5 is

... unless and until the [District of Columbia
district] court enters such [declaratory] judg-
ment no person shall be denied the nght to vote
for failure to comply with such qualification,

” Chapter 492, Mississippi Laws of 1986.

prerequisite, standard, practice or procedure .
. . [Appendix O, p. 178a. Emphasis added.]

Congress did not, never intended to, and could not
give the USAG veto power over substantive legislation of
a State, unrelated to voting. Forbidding implementation
of what may or may not be valid, nondiscriminatory State
legislation is a most serious matter. We note § 5 requires
a three-judge court, plus a direct appeal to this Court,
both of which are unusual, to say the least. Providing an
expeditious administrative preclearance as an alternative
to a time-consuming declaratory judgment is really mean-
ingless unless the State could proceed with its business
with some degree of certainty it had complied with § S.

REASONS WHY CERTIORARI SHOULD BE DENIED

A. In Gressette, supra, this Court settled the law that
the USAG automatically precleared state legislation
submitted under § 5 by his failure, for whatever’
reason, to make a timely, specific objection.

This Court in Morms v. Gressette, 432 U.S. 491 (1977),
squarely held that where a State legislative act has been
completely submitted to the USAG for preclearance, and
the USAG fails to make a specific objection to the dis-
puted section within the 60-day period allotted---for what-
ever reason---he may not later interpose an objection.

In Gressette, a South Carolina statute was submitted
to the USAG for preclearance under § 5'’ on May 12
1972. On May 23, the United States district court found

11 49 USC § 1973c, referred to herein as “§ 5”.

10

the statute constitutional, and on June 30, the USAG
notified South Carolina he would interpose no objection,
but would defer to the district court’s determination.
Thereafter, another suit was brought in the district court
for the District of Columbia challenging the USAG’s fail-
ure to object.

On May 16, the DC court directed the USAG to
make a reasoned determination of the statute’s con-
Stitutionality, and in response he stated that in his view, it
was unconstitutional but refused to interpose an objection
in deference to the South Carolina district court’s deter-
mination. On July 19, 1973, the DC court directed the
USAG to make a determination without regard to the
South Carolina court’s decision, and the following day, the
USAG interposed an objection.

By our count, the USAG’s objection was interposed
434 days after the original submission.

Gressette held: (1) from the nature of § 5 and its
potential severity, Congress did not intend that the
USAG’s actions be subject to judicial review and that
compliance with § 5 by following the preclearance
procedure is measured solely by the absence for whatever
reason of a timely objection by the USAG; (2) Congress
intended to provide covered jurisdictions with an
expeditious alternative to the declaratory judgment action
by providing submission to the USAG as an alternative,
and since judicial review of his actions would unavoidably
extend the period specified in the statute, it is necessarily
precluded; and, (3) where the discriminatory character of
an enactment is not detected upon review by the USAG,
it can be challenged in traditional constitutional litigation,

11

but it cannot be questioned in judicial review of (a) the
USAG’s exercise of his discretion under § 5, or (b) his
failure to object within the statutory period.

The effect of § 5 is that a “covered jurisdiction”
may not “enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in
force or effect on November 1, 1968,” unless or until eith-
er (1) a declaratory judgment has been entered by the
district court for the District of Columbia to the effect
that the enactment “does not have the purpose and will
not have the effect of denying or abridging the right to
vote on account of race or color, .. .”, or (2) it has been
submitted by the chief legal officer to the USAG and the
USAG has not interposed an objection within sixty days
after such submission or has affirmatively indicated such
objection will not be made. Neither an affirmative
indication he will not object, nor the USAG’s failure to
object, nor such a declaratory judgment shall bar a subse-
quent action to enjoin enforcement. Appendix O, pp. 178-
9a.

Gressette points out that this Court has described the
nature of the § 5 remedy as “unusual” and “severe” [432
US at 501]; In McCain v. Lybrand, 465 US 236, 244
(1984), this Court commented,

The “preclearance” requirement mandated
by § 5 of the Act is perhaps the most stringent
of these remedies, and certainly the most ex-
traordinary.

- Mississippi is a covered jurisdiction.

As originally drafted, all such voting changes had to be
approved by the District Court for the District of Colum-
bia, and

[Jjustified concerns arose that the time required
to pursue such litigation would unduly delay the
implementation of validly enacted, nondis-
criminatory state legislation. Cognizant of the
problem, Attorney General Katzenbach sug-
gested that the declaratory judgment procedure
“could be improved by applying it only to those
laws which the Attorney General takes excep-
tion to within a given period of time” Senate
Hearings 237. The legislation was changed to
incorporate this suggestion.

In the light of the potential severity of the
§ 5 remedy, the statutory language, and the
legislative history, we think it clear that Con-
gress intenaed to provide covered jurisdictions
with an expeaitious alternative to declaratory
judgment actions.

432 US at 504. Emphasis added.

B. The Uniform School Law as submitted satisfies Gres-
sette’s requirement the submission must be
“complete”.

The Uniform School Law was approved April 15,
1986, with an effective date of July 1, 1987. It was sub-
mitted to the USAG for preclearance under § 5 on July
22, 1986. As the title implies, the purpose was to “pro-

13

vide that all public school districts in the state of Missis-
sippi shall have a common system of administration.”
[Appendix A, p. 3a]'°

As pointed out by the Mississippi Supreme Court,

The submission included the act in its entirety; a
copy of the roll call voters of both houses; and
a looseleaf booklet entitled “Senate Bill No.
2117---Comparison of Current Law and New
Law” which set forth each section of the then
current law followed by each applicable section
of Senate Bill Number 2117 for explanatory pur-
poses. The submission states in part, “(flor the
sake of brevity, the submission will only set
forth the particular sections which deal primari-
ly with the voting rights even though the com-
plete act is submitted for review.”. (emphasis
added). The submission then lists specific prov-
isions of the Act among them Section 52, am-
ending Miss. Code Ann. § 37-7-103, and Sec-
tion 57 amending § 37-7-113. [Appendix A, p.
9a; emphasis is in the original.]

We believe the Mississippi Attorney General
(“MAG”) specifically brought to the attention of the
USAG only those sections of the Uniform School Law

13 Cf §37-6-3(1), Mississippi Code of 1972.

i My secretary counts 467 pages.

14

which he perceived as affecting voting. § 47 repealed all
sections of the current law giving different treatment to
municipal separate school districts, including the bone of
contention here, § 37-7-611, Mississippi Code of 1972.

C. Whether the MAG fairly and squarely “submitted”
§ 47 of the Uniform School Law to the USAG for

5 To be candid, neither do we perceive § 47 of the Uniform School
Law as affecting voting. Residents of Western Line will continue to
vote for district Trustees who control the education of their children
and determine the annual millage levy for school purposes. They have
a direct interest in these elections, and have a right to vote for them.
Similarly, we have no quarrel with the fact Western Line residents will
be able to vote for councilmen who appoint Trustees of GPSD. These
councilmen are responsible for the operation of the City and for levying
city taxes and furnishing all municipal services (police and fire pro-
tection, streets, drainage, sewerage, etc.) in which these residents, as a
class, have a direct interest. The flip side of that question is that these
residents, as a Class, cannot constitutionally be excluded from voting for
these councilmen. We agree with the MAG’s conclusion,

The repeal of Section 37-7411 was based on the
iegisiative finding that public educational opportunities
available to students residing in rural areas of Mississippi
were substandard to those offered to students residing in
urban areas. The purpose underlying the repeal of Sec-
tion 37-7-611 was to protect the ad valorem tax base
available to county school systems in the path of municipal
expansions. The repeal of Section 37-7-611 was an educa-
tional decision totally unrelated to voting rights con-
siderations, . . . [Appendix M, 145a]

To give this Court some idea of the nature of cases brought
under § 5 under the guise of voting, Nickles v. Western Line Consol.
School Dist., No. GC90-45-B-O (ND MS, filed February 22, 1990), cited
in Petition, p. 7, n.7, was brought by Mrs. Janice Nickles, a white resi-
dent of Western Line, and her two minor school children. Mrs. Nickles
was not even registered to vote; her children are not old enough.

15

preclearance is a question of fact, not law, and not
reviewable on certiorari.

We shall not belabor this point other than to cite
Rule 10.1, Supreme Court Rules, and to point out that
petitioners have already had two bites at this cherry. The
court below called for an amicus cunae brief from the
MAG, which was prepared by Giles W. Bryant, Esq., a
Special Assistant Attorney General. By agreement of
counsel, Mr. Bryant furnished the Mississippi Supreme
Court the same documents relating to the submission as
he furnished a three-judge court in Dupree v. Mabus, Ap-
pendix R, p. 1b.’° Dupree is a “white horse” case, on all
fours as to law and the facts. Perry Sansing, Esq., repre-
senting the petitioners here, represented the plaintiffs in
Dupree, supra. The issue was the same in both cases: had
§ 47 of the Uniform School Law been precleared by the
USAG? Neither the Supreme Court of Mississippi nor
the three-judge court in the Southern District bought peti-
tioners’ argument that the repeal of § 47 was somehow
hidden from the USAG and thus “not submitted”. Of
course, had it been hidden, or if the USAG simply over-
looked or did not detect this repeal of S 37-7-611, petitio-
ners’ remedy is provided by § 5, itself:

Neither an affirmative indication by the Attor-
ney General that no objection will be made,
nor the Attorney General’s failure to object,

16 A direct appeal to this Court under § 5 has been perfected by
filing a timely Notice of Appeal. Although judgment was entered April
2, 1991, this case has not yet been officially reported, and on inquiry
there is some doubt it will be submitted for publication. Because of its
importance here, we have elected to reproduce the opinion in appendix
form.

16

nor a declaratory entered under this section
shall bar a subsequent action to enjoin enforce-
ment of such qualification, prerequisite, standard,
practice or procedure .. .’’ [Emphasis added.]

It might be useful to point out that two separate
courts, considering the same issue {whether § 47 had been
precleared], on the same facts [surrounding the original
1986 submission to the USAGI], have reached the same
result, each holding that as a matter of law on undisputed
facts there had been a “complete” submission of § 47.

D. This case is a perfect example of what happens when
the USAG, on a § 5 review, goes beyond the impact
of State legislation on voting.

In the USAG letter of March 31, 1989, interposing
an objection to repeal of § 37-7-611 (983 days after its
original submission), he gives the following as one reason:

While we recognize that demographic pat-
terns are not uniform throughout the state,
demographic data available to us suggest that

the repeal of Section 37-7-611 will have a Sig-

nificant racialimpact. According to information
published by the State Department of Educa-

tion, approximately half the municipal school
districts in the State of Mississippi have a stu-
dent population that is majority black and

7 We believe petitioners have scant interest in enjoining annexed
Wesiern Line residents from voting for city councilmen. Petitioners
want Western Line’s students and a bite out of its tax base; Western
Line doesn’t wart to surrender either. That’s this lawsuit in a nutshell.

17

about two-thirds are 40 percent black or higher.
Thus, with the repeal of Section 37-7-611, the
long term effect appears to be that, with the
movement of whites out of the cities, the munici-
pal school systems in Mississippi will essentially
be frozen in their present boundanes with increas-
ingly higher black population percentages and will
be economically disadvantaged while neighbor-
ing school distncts change in an opposite manner.
[Appendix L, pp.140a-41a. Emphasis added.]

Respectfully, what in the name of this ever-living,
blue-eyed world does this have to do with voting? If the
result intended by the USAG, and songht by petitioners,
were limited to voting by this “class of city voters”, no life
or death problem would ensue, since the § 5 remedy
would be a simple ban on implementation of the voting
change, but not on leaving school boundaries in place.
Cf.: Dotson v. City of Indianola, 514 FSupp 397 (ND MS,
1981). Preclearance of the annexation was under con-
sideration contemporaneously with the squabble over § 47,
and the USAG’s objections were not withdrawn until
February 11, 1990. [Appendix A, p. 4a-Sa.] Since the
problem is stated as creating a new class of city voters,
should not this have been logically considered in the an-
nexation preciearance, rather than in the consideration of
the Uniform School Law?

Let’s look at this.
Taking advcatage of the ambiguity in the USAG’s
preclearance of the Uniform Schoo! Law, seemingly limit-

ed to “the voting changes occasioned by Senate Bill No.
2117 as identified in your July 22, 1986, letter” [Appendix

a

18

H, p., 112a. Emphasis added.], petitioners commenced
this action seeking school taxes levied by Western Line on
property in the annexed area. In addition, they had given
the county tax collector a letter, noticing her that GPSD
claimed such taxes, which had the effect of cutting off
Western Line’s cash flow. What was the situation?

The Western Line territory affected consists of 3761
acres contiguous to the old Greenville city limits and to
the boundaries of the former Greenville Municipal Separ-
ate School District. Using data in Farmer’s, Inc., supra,
GPSD would take 300 of 2030 Western Line students, and
$39.9 (about 55%) of Western Line’s $73+ millions tax
base, but only about 1% of its territory. In addition, Wes-
tern Line would lose 11 teacher units with $212,000 in
state minimum foundation program support.”

§ 37-9-105, Mississippi Code of 1972, required school
districts to notify a teacher by April 8th of each year if
he/she were not to be tendered a contract for the ensuing
school year. Failure to give this notice meant the tea-
cher’s contract was automatically renewed. Robinson v.
Board of Trustees, 477 So2d 1352 (Miss., 1985). Because
of the uncertainty created by petitioners’ action, Western
Line did not know, and could not predict: (1) whether it
would have 2030 or 1730 pupils to educate for the follow-
ing school year; (2) whether there would be tax revenues
available during the following school year for the educa-
tion of these 300 students, or for the salaries of these 11
teachers; or, (3) if the required notice of non-reemploy-
ment were given the teachers, whether they would be lost

18 It takes no stretch of the imagination to visualize what this would
do to Western Line’s viability as an educational entity.

19

for good or available for employment if needed.

Moreover, this uncertainty extended to the students
and their parents as to where they would attend schoolite
following year, as well as to the administrative and struc-
tural staffs. One might well comment, “that’s a helluva
way to run a railroad.”

On these facts, Circuit Judge Clark granted a “mora-
torium’””’ for the fiscal year 1988-89, and petitioners ap-
pealed.

E. There is a lot to be said for certainty following a pre-
clearance of State legislation by the USAG.

We believe the language of § 5 as well as its legisla-
tive history [see pp. 11-12, supra] buttress the conclusion
it provided what Gressette refers to as an “expeditious
alternative to declaratory judgment actions”’[432 US at
504], and it was intended that a State might go about its
business implementing legislation, once precleared. With
the premise State legislation has been fairly and squarely
submitted to the USAG, we are reminded of language
most of us may be familiar with,

If any man can show just cause, why they may
not be lawfully joined together, let him now
speak, or else hereafter for ever hold his peace.
[The Book of Common Prayer (1928 Ed.), p.
300]

1? Continued by the Supreme Court of Mississippi during pendency
of the appeal by an interim order entered March 29, 1989.

20

What has happened in this case is sufficient justifica-
tion for the proposition. Because of the ambiguity arising
out of the USAG’s weasel words, “as identified in your
letter of July 22, 1986,” it is not beyond the realm of pos-
sibility some enterprising lawyer may come up with yet
another provision of the Uniform School Law perceived
to affect voting, five years after the original submission.

REBUTTAL

With deference, we believe further argument on
whether the original submission of the Uniform School
Law for § 5 preclearance by the USAG was “complete”
within the meaning of the Gressette holding would be
redundant. Suffice it to say that on the same facts, the
eight-judge Supreme Court of Mississippi and the three-
judge Dupree court have unanimously found as a matter of
law that the submission was complete. Should argument
be considered necessary, we will be content to incorporate
the Dupree opinion by reference [Appendix R].

Nowhere in this action is there any claim that any
petitioner’s right to vote has been abridged or denied on
account of race or color, nor does any petitioner claim
he/she has been “denied the right to vote for failure to
comply with such qualification, prerequisite, standard,
practice or procedure [contained in the Uniform School
Law]”. We note the parties are “named in their official
capacities” (Petition, ii]; a school trustee does not vote in
his/her “official capacity”.

In all cases cited above spawned by claims § 37-7-
611 has not been precleared, we defy petitioners to iden-
tify a single one of them based upon any alleged denial or

21

impairment the right to vote on account of race or color.”

Every one of them, without exception, is an attempt to
take students and/or ad valorem tax base from the adjoin-
ing school district, without regard for the consequences.
On pages 16-19, above, the consequences or potential
consequences of an action such as this are described in
detail. None is related to voting.

Petitioners rely heavily on McCain v. Lybrand, supra,
the opening paragraph of which is quoted:

In 1966, South Carolina enacted a statute
that altered Edgefield County’s election prac-
tices but the statute was not submitted to fede-
ral officials for their approval as required by
the Voting Rights Act of 1965. In 1971, the
Statute was amended, modifying the 1966 elec-
tion practices, and state officials submitted the
amendment to the Attorney General for his
approval. In response to a request from the
Attorney General, state officials provided him
with additional documentation in support of
their submission, including the 1966 statute.
The Attorney General approved the submis-
sion, stating that he did not object to the chan-
ge in question. The question in this case is whet-

” We in Western Line actively resent baseless charges of dis-
crimination based on race or color. When the Singleton-type desegrega-
tion decree was entered against it in January of 1970, Western Line was
determined to desegregate and make it work. It did so. Farmers, Inc.,
supra, at 939. GPSD did not. We would venture to make the general
statement there is less racial discrimination teday in Mississippi as a
whole and Western Line in particular than there is, say, in the District
of Columbia.

Se

22

her the Attorney General’s approval of the 1971
submission can be deemed to have the effect of
ratifying the changes embodied in the 1966 enact-
ment. We hold that the 1966 changes have not
been approved. 465 US at 238-39. Emphasis
added.

In the case at bar, the facts are completely different.
Here, petitioners cannot dispute the fact the Uniform
School Law was submitted for preclearance in its entirety.
The question before this Court is whether the USAG’s
failure to object to § 47 constituted preclearance under §
5. Consequently, McCain may not be used as authority
one way or another on the precise issue decided by the
court below; i.e., did the AGUS preclear § 47 by his
failure to then object?

We expect petitioners to make the same arguments
in reliance on the recent case” of Clark v. Roemer, --- US
---, 1991 WL 89713 (USSC, June 3, 1991), and we think it
distinguishable on the facts. Clark involved the holding of
elections for judgeships. As to some, the three-judge
court found the USAG had interposed valid objections
when submitted for preclearance (“Group I”); as to
others, historically some of the earlier judgeships had
never been submitted for preclearance, but most of the
later ones had (“Group II’). As to both groups, Louisiana
had filed for judicial preclearance by the District of Co-
lumbia district court. The three-judge court refused to
enjoin the elections for these judgeships, but did enjoin
the winners from taking office pending judicial preclearan-
ce. This Court held it error not to enjoin the Group I

21 Decided June 3, 1991, the same day this petition was filed.

23

elections in the face of the plain § 5 mandate. As to the
Group II seats, the three-judge court had reasoned it was
not the amendments, but the whole legislative act covering
all of the judgeships which was submitted for preclearan-
ce, and that when the USAG approved the new act, “he
not only approves the amended portion but necessarily
approves the older, reenacted part, which forms part of
the new-act.” [1991 WL 89713, *7 (US)] Clark held this
governed by McCain, supra, and that the injunction should
have issued.

Clark raises the question of identifying the voting
changes submitted for preclearance, This was done in the
context of Group II cases where the question was preclea-
rance “of what?” Specifically, was the USAG being asked
to preclear only the amendments adding new judgeships,
or both the amendments and the original legislative act
being amended, which included some unprecleared judge-
ships. In this context, we would think good faith would
require Louisiana identify both the old act and the new
additions in submitting it for preclearance, particularly if
Louisiana intended to submit the old with the new. We
use the words, “good faith”, advisedly, because we believe
a submitting jurisdiction is under a duty to present the
matter fairly and squarely. McCain, supra, 465 US at 247.
Then, too, we believe “sandbagging”, and “trial by am-
bush” have no place in the practice of law.

Clark, purely and simply, is a variation on the
McCain theme. . .nothing more.

We are convinced neither the MAG nor the USAG
had any idea the repeal of § 37-7-611 affected voting
rights, pointing out that the former had singled and dis-

24

cussed what he thought were all the “particular sections
which deal primarily with voting rights”. Appendix E, p.
35a.

What of this “preclearance by implication”? First,
applying the Gressette rule, we need not reach this ques-
tion. We suggest this “implied preclearance” is a matter
of semantics. The Court below simply demonstrated that
the specific preclearances of § 52 and § 57 is entirely
inconsistent with the objections raised to § 47, 1,403 days
after the original submission. This is entirely inconsistent
with Congressional intent that the administrative proce-
dure be an “expeditious alternative” to an action for decl-
aratory judgment. Of course, if preclearance by the
USAG can be re-opened or collaterally attacked three to
four years after the initial preclearance, no State can safely
implement legislation precleared by this “expeditious alterna-
tive”’.

CONCLUSION

Backing off for a proper perspective, it is apparent
the confusion arose as to whether § 37-7-611 had been
repealed arose because the USAG neither precleared nor
objected to § 47 of the Uniform School Law. Under Gres-
sette, this constitutes preclearance. When State legislation
is properly submitted to the USAG for preclearance, the
time has come; “let him now speak, or else hereafter for
ever hold his peace.”

Preclearance can never constitute an “expeditious
alternative to the declaratory judgment action” under § 5
unless and until the State can rely upon the preclearance
by the USAG as full compliance with § 5.

and Ne

25

The petition for certiorari should be denied.

Respectfully submitted,

Vee Tow

J. Robertshaw

(Counsel of Record)

ROBERTSHAW TERNEY & NOBLE
128 South Poplar Street

P. O. Box 1498

Greenville, MS 38702-1498

(601) 378-2171

CERTIFICATE

I certify that I have this date forwarded the foregoing
Brief in Opposition via Federal Express, charges prepaid,
to the Press of Byron S. Adams, Washington, D. C., for
printing, binding and filing with the Clerk of this Court
not later than July 5, 1991, with further directions to serve
three copies, each, upon counsel for Petitioners at the
addresses stated below, and to file its affidavit of such
service with this Court:

HOLMES S. ADAMS, Esq.

PERRY SANSING, Esq.

(Counsel of Record)

BRUNINI, GRANTHAM,
GROWER & HEWES

1400 Trustmark Building

P. O. Box 119

Jackson, MS 39205

26

CLELL G. WARD, Esq.
McLEMORE & WARD
525 North Broadway

P. O. Box 75

Greenville, MS 38702

Dated: June 25, 1991.

QUT haw

J. Robertshaw
Counsel of record for Respondents

APPENDIX

APPENDIX R

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

JOHNNY DUPREE, ET AL,

Plaintiffs,
versus

RAY MABUS, Governor of Mississippi, ET AL,

Defendants,

THE LAMAR COUNTY BOARD OF EDUCATION
and TRUSTEES, in their official capacities and
FORREST COUNTY SCHOOL DISTRICT and the
Members of the BOARD OF TRUSTEES in their
official capacities,

Defendants /Intervenors.

Civil Action No. H90-0043(W)

‘SOUTHERN DISTRICT OF MISSISSIPPI
FILED
APR 02 1991

J.T. NOBLIN, CLERK
BY DEPUTY

MEMORANDUM OPINION AND ORDER

' Pursuant to 42 U.S.C. § 1973c and 28 U.S.C. § 2284,

2b

this action under § 5 of the Voting Rights Act of 1965 is
before this three-judge Court on motions for summary
judgment pursuant to Fed.R.Civ.P. 56 by (1) the plain-
tiffs, members of the Board of Trustees of the Hattiesburg
Public School District; (2) defendants, Ray Mabus and
Mike Moore in their capacities as Governor and Attorney
General of Mississippi, respectively, and the State of
Mississippi; and (3) intervenor/defendant, the Forrest
County School District and its Board of Trustees; and on
the Rule 12(b) motion to dismiss by intervenor/defendant,
the Lamar County Board of Education and its Trustees.’

I.

Beginning in 1966, the City of Hattiesburg (City)
began expanding, through annexations, into Forrest and
Lamar Counties; and the citizens in these annexed areas
vote in City municipal elections. However, the City’s
municipal school district boundaries have not expanded
with the annexations.

State laws enacted, and in one instance repealed,
since 1977 affect the composition of both municipal and
county school districts and allow the annexed areas’ voters
not residing in the City school district to vote for the City’s
governing authorities, who in turn select the City school
board. Accordingly, the plaintiffs allege that these
changes constitute voting changes covered by § 5 of the

1 The state defendants moved to dismiss for failure to state a claim
upon which relief may be granted, Rule 12(b)(6), or alternatively for
summary judgment. Rule 12(b) provides that if a 12(b)(6) motion is
made and “matters outside the pleading are presenied to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56.” Because we
consider matters outside the pleadings, we treat the motions to dismiss
as summary judgment motions.

3b

Voting Rights Act of 1965 (Act), 42 U.S.C. § 1973c.

The plaintiffs, residents and registered voters in the
City and Forrest County and duly appointed members of
the Board of Trustees of the City school district, filed this
action in February 1990, seeking, inter alia, to enjoin the
State of Mississippi and state officials from enforcing three
State statutes: (1) the 1977 amendment to Miss. Code
Ann. § 21-1-59, Ch. 379, 1977 Miss. Laws 5432; (2) the
1978 revision of the 1977 amendment to § 21-1-59, Ch.
312, 1978 Miss. Laws 418; and (3) the 1986 repealer of
Miss. Code Ann. § 37-7-611, Uniform School Law, Ch.
492, § 47, 1986 Miss. Laws 687. The plaintiffs contend
that these laws have not been precleared pursuant to § 5
of the Act and are therefore unenforceable.”

The Lamar and Forrest County Boards of Education
and the members of their Boards of Trustees intervened
as defendants. The Lamar County Board filed a counter-
claim, alleging that the relief sought by the plaintiffs would
violate a desegregation order under which the Lamar
County School District .
operates, by radically altering the racial balance of that
district in violation of 42 U.S.C. § 1983 and the Four-
teenth Amendment.

It is undisputed that § 52 of the Uniform School Law,
§ 37-7-103, was precleared. In effect, it is the successor to
one of the three statutes in issue--§ 37-7-611. The Missis-
sippi Supreme Court recently heid in Greenville Public
School District, et al. v. Western Line Consolidated School
District, et al, No. 07-CA-59534 (December 12, 1990), that
repeal of § 37-7-611 was precleared when the United

? Pursuant to its March 7, 1991, motion, the United States was
granted leave to submit a brief as amicus curiae. The United States
contends that § 5 applies and that the requisite preclearance has not
been received.

| a

4b -

States Attorney General (USAG) failed to interpose an
objection to the entire 1986 Uniform School Law. That
court also held that if not expressly precleared, § 37-7-
611 was precleared implicitly by the express preclearance
of § 37-7-103 of the Uniform School Law, because the two
provisions are "clearly inconsistent." Id. at 14.

II.

The Act provides that certain jurisdictions may not
implement any “voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November
1, 1964" without first obtaining approval from the United
States District Court for the District of Columbia or,
alternatively, from the USAG that the proposed change
does not, or will not, have a discriminatory purpose or
effect. 42 U.S.C. § 1973(c).

Due to the expense and burden of instituting and

action for declaratory judgment in the D.C. District Court,
most covered jurisdictions opt for the USAG approval
alternative. The Act and regulations implemented under
it provide that once a proposed change has been sub-
mitted to the USAG, he has 60 days within which to
object. The USAG may request additional information;
and if an objection is interposed by the USAG, the
submitting party may request reconsideration.
28 C.F.R. §§ 51.37; 51.45. Such a request triggers another
60 day period for the USAG to decide whether to
continue or withdraw his objection. Jd. at § 51.48. If the
USAG fails to object within the prescribed time, the
jurisdiction is free to implement the new enactment. But,
even if the legislation is precleared by the USAG, nothing
in the statute prevents a subsequent judicial challenge to
that legislation.

Sb

We turn first to a discussion of the Mississippi statutes
in issue: §§ 21-1-59 and 37-7-611 (repealed).

A.

Prior to 1977, § 21-1-59 provided that "[n]o municipality
shall be created or shall change its boundaries so as to
include within the limits of such municipality any of the
buildings or grounds of any state institution" unless
consent was obtained from the governing body of the
institution. In 1977, the section was amended to add the
following:

Provided further, that any change in the boun-
daries of a presently existing municipality which
crosses county lines shall not affect the public
school district located in the annexed area unless
and until. consent thereto shall have first been
obtained in writing from the Board of Trustees
of the school district proposed to be partially or
wholly included in the change of municipal
boundaries.

Ch. 379, 1977 Miss. Laws 543 (emphasis added). This
amendment was applicable to certain of the City’s annexa-
tions; it created an exception to the above referenced §
37-7-611, further discussed. below, which provided that
such expansion automatically included the municipal
school district incorporating the annexed area.

As discussed below, the 1977 amendment was not
submitted for preclearance to the USAG until March 23,
1990, because the state defendants believed that the
amendment was not subject to § 5, being of the view that
it had the effect of preserving the status quo and was thus
not a voting "change."

! |

6b

In 1978, § 21-1-59 was amended again. Ch. 312, 1978
Miss. Laws 418. The amendment made the statute
applicable to future annexations into a neighboring county
by adding the following italicized language:

Provided further that any changes in the boun-
daries of a presently existing municipality which
extends into or further extends into a county in
which the municipality’s principal office is located
shall not affect the public school district located
in the annexed area, unless and until consent
thereto shall have been first obtained... .

(Emphasis added.) A referendum provision was also
added for the Jones County-Laurel area concerning the
acquisition of county school territory by the Laurel public
schools.

The statute, as amended in 1978, was submitted for
preclearance in April 1978. The submission did not
mention the “extends into or further extends” language,
referencing only the referendum. When the State respon-
ded to the USAG’s request for additional information,
again no mention was made of the "extends" language. In
March 1981, the USAG interposed no objection.

The 1986 Uniform Sckool Law did not change § 21-
1-59. In May 1990, the USAG objected to the 1977
amendment submitted for preclearance, stating:

[W]e note that the state makes several claims
about the preclearance status of the instant
changes which appear to seriously misconstrue
the structure, purpose, and history of the preclea-
rance requirement... .The state. . .contends that
a 1978 amendment which clarified the scope of
the instant 1977 change was precleared when the

Tb

state in 1981 received preclearance for a separate
| portion of the 1978 statute.

The USAG rejected this claim.
B.

Prior to being repealed in 1986 by § 47 of the Uni-
form School Law, Ch. 492, 1986 Miss. Laws 687, the other
Statute in issue, § 37-7-611, enacted in 1926, stated in part:

Where the corporate limits of any municipality
which constitutes a municipal separate school
district, either with or without added territory,
| are extended so as to include the whole or any
| part of an existing adjacent school district in the
| county school system or municipal separate
school district, then such adjagent school district,
or such part thereof as is included within the
corporate limits of the municipality by reason of
the extension thereof, shall thereby automatically
be merged with and become a part of such
municipal separate school district.

Miss. Code Ann. § 37-7-611 (1972). As discussed above,
§ 21-1-59, as amended in 1977 and 1978, provided an
exception to § 37-7-611, concerning how municipal school
districts were affected by certain municipal expansions.

In 1986, the Mississippi Attorney General (MAG)
submitted Senate Bill 2117, the Uniform School Law of
1986, for preclearance. The cover memorandum for the
submission stated that the law was submitted "in its
entirety" and provided:

The act accomplishes a reorganization and

a a

8b

streamlining of laws which govern the operation,
financing, and administration of the public
schools in Mississippi. Senate Bill number 2117
is reform legislation supplemental to and a
logical extension of the Education Reform Act of
1982. . . For the sake of brevity, the submission
will only set forth the particular sections which deal
primanly with voting nghts even though the com-
plete act is submitted for review.

(Emphasis added.) The memorandum explained 13
sections of the Uniform School Law and their effect on
voting.

The repealer of § 37-7-611 was not discussed in this
cover letter. However, accompanying the submission was
a booklet comparing each section of Senate Bill 2117 with
prior law, together with an underlined version of Senate
Bill 2117, reflecting the new language as well as deletions
of prior language. The booklet’s introductory note provid-
ed:

This booklet sets forth on a section by section
basis each section of the current law which has
been amended followed by each individual
section of Senate Bill Number 2117, Laws of
Mississippi, 1986 Regular Session. Where the
sections of Senate Bill Number 2117 are new law
then only those particular sections will be deno-
ted with no comparison of current law. This
section by section comparison provides ex-
planatory materials adequate to disclose the
difference between the prior and the proposed
law. Each section of Senate Bill Number 2117
which is the version of the bill as sent to the
governor is marked to show the changes made in

9b

the current law. Underlining indicates language
added and a check mark indicates language
deleted. By comparing each section of Senate
Bill Number 2117 and the current practice, the
changes to current law are easily identified.

The above referenced section 47 of the Uniform School
Law provided for the repeal of 23 sections, including § 37-
7-611. The booklet stated that these 23 sections "which
provide for the creation and operation of municipal
separate schoo! districts, are hereby repealed."

Section 52 of the Uniform School Law amended § 37-
7-103. This provision was specifically discussed in both
the cover memorandum accompanying the submission and
the booklet. The cover memorandum provided:

Section 52 amends Section 37-7-103. . .[and] sets

forth that . . .the schoo! board of any school .
. district may abolish such existing district or

reorganize, change or alter the boundaries of any
such district. Additionally, the school board with
the consent of the school board of the district
involved may add to such school district any part
of the school district adjoining same or may
detach territory from such school district and
annex the same to an adjoining district. The
present law enables the county board of educa-
tion to create, alter or abolish any school dis-
tricts of such county, other than the municipal
separate school districts. In addition, the county
board of education with the consent of the board
of trustees of the municipal separate school
district involved may add to such municipal
separate school districts any part of the county
adjoining same or may detach territory from such

|

10b

municipal separate school district and annex
same to an adjoining district in the county school
system.

On August 29, 1986, the USAG advised the MAG
that he did "not interpose any objection to the voting
changes occasioned by Senate Bill No. 2117 (1986), as
identified in your July 22, 1986, letter." (Emphasis added.)
The letter concluded:

We note that several of the provisions of Senate
Bill No. 2117 (1986) authorize officials of the
political subdivisions of the State to make chan-
ges affecting voting which are viewed as enabling
legislation. Therefore, local officials are not
relieved of their responsibility to seek precle-
arance, pursuant to the requirements of section
5, of any changes effecting voting (e.g., changing
voting precinct lines, polling places, special
election dates and procedures, boundary changes,
etc.) which are adopted as a result of the provisi-
ons of Senate Bill No. 2117. 28 C.F.R. 51.14.

The State concedes that the USAG’s letter raised
doubt about whether the preclearance included provisions
other than those 13 specifically listed in its cover memora-
ndum. Therefore, in December 1987, the MAG sought an
affirmative preclearance of § 47 insofar as it repealed
Miss. Code Ann. § 37-7-611. In the State’s resubmission,
it reserved the right to object to § 47 being subject to
preclearance. The memorandum accompanying the
resubmission further stated:

It is the automatic expansion of the school
district which has been repealed by the instant

11b

submission. The option to expand however, is
not foreclosed. Section 52, of the Chapter 492 of
the 1986 Laws of Mississippi (precleared by the
United States Justice Department on August 29,
1986) provides that the school board of any
school district may abolish such existing district
or reorganize, change or alter the boundaries of
any such school district.

On February 29, 1988, the USAG requested addition-
al information concerning the repeal of § 37-7-611. The
State responded; and on March 31, 1989, the USAG
objected to the implementation of § 47 of the Uniform
School Law insofar as it repealed § 37-7-611. The State
requested reconsideration; and by letter dated May 25,
1990, the USAG declined to withdraw his original objec-
tion, stating in part:

It is well-established that to trigger Section 5
review a covered jurisdiction must submit a
voting change to the Attorney General in an
“unambiguous and recordable manner.” [T]he
prior submission of the Uniform School Law. .
identified specific voting changes adopted by
those statutes, but...[the] submission contained
[no] reference to the voting changes which the
State now claims were precleared. Section S, as
interpreted by the courts and our submission
guidelines, plainly fixes the responsibility for
identifying voting changes on the state, not the
United States Attorney General, yet the state
appears to be arguing...that the Attorney Gene-
ral should have uncovered voting changes of
which the state itself seemingly was unaware at
the time the prior submissions were made.

8 nn taal

12b
Il.

Rule 56 provides that summary judgment "shall be
rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). The language of Rule 56 "mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden at trial." Celotex corp. v. Catrett, 477 U.S. 317, 322
(1986).

A.

The intervenors and defendants raise several issues
which must be addressed before consideration of the § 5
issues.

8

The defendants and Lamar County assert that no
relief can be granted against the Governor or the MAG
because they have no duty to administer laws concerning
alteration or definition of school district boundaries.
Section 5 provides that state enactments may not be
enforced unless they have "been submitted by the chief
legal officer or other appropriate official of such State or
subdivision to the [United States] Attorney General. .. ."
42 U.S.C. § 1973c (emphasis added).

The primary issues in this case are whether the
Statutes are covered by § 5 and, if so, whether they have

13b

been precleared. In Mississippi, the attorney general is
"the chief legal officer and advisor for the state." Miss.
Code Ann. § 7-5-1 (1972). The Attorney General is a
proper party to this action. The Governor, however, is
not responsible for preclearance. The Act uses the phrase
chief legal officer or other appropriate state official.
Because the MAG is the chief legal officer, no other state
official is required to act. The Governor has no statutori-
ly imposed responsibility to ensure that statutes are
precleared.’ Accordingly, he will be dismissed from this
action.

2.

The intervenors contend that the plaintiffs lack
standing to pursue their claim, because the statutes do not
result in a change in voting affecting the Board of Trus-
tees of the City school district. Whether plaintiffs have
Standing is directly related to whether these statutes are
§ 5 changes in voting; and as discussed infra, they are. To
have standing, the plaintiffs must have a "distinct and
palpable injury" and a “fairly traceable" causal connection
between the claimed injury and the challenged conduct of
the defendant. Warth v. Seldin, 422 U.S. 490, 501 (1975)
and Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252, 261 (1977); see also Duke Power
Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72
(1978). The Act extends to States and the subdivisions
thereof. "It is consistent with the broad purpose of the
Act to allow the individual citizen standing to insure that

. Moreover, the Lamar and Forrest County Boards and Trustees
have intervened in the suit. To the extent administration or enforce-
ment of the statutes in issue were required, such relief could be directed
to these parties.

14b

his city or county government complies with the § 5
approval requirements." Allen v. State Bd. of Elections, 393
U.S. 544, 557 (1969). In Allen, the Court further stated:

[T]he major purpose of the Act indicates that
appellants may seek a declaratory judgment that
a new state enactment is governed by § 5.
Further, after proving that the State has failed to
submit the covered enactment for § 5 approval,
the private party has standing to obtain an
injunction against further enforcement, pending
the State’s submission of the legislation pursuant
to § 5S.

Id. at 555.

The plaintiffs are residents and registered voters in
the City and are members of the Board of Trustees of the
City school district. They allege that if the statutes
continue to be enforced, voters in the annexed territory
who are not residents of the City school district will elect
the City mayor and council members who, in turn, will
select the trustees of the City school board. The plaintiffs
allege a distinct injury under the Act which is directly
traceable to the defendants’ alleged failure to comply with
the requirements of § 5. As noted by the Court in Allen,
§ 5 "might well prove an empty promise unless the private
citizen were allowed to seek judicial enforcement of the
prohibition." /d. at 557. The plaintiffs have standing.

3.

The state defendants contend that the action is barred
by the Eleventh Amendment, asserting that only the
USAG may sue a State pursuant to the Act. This argu-
ment is without merit. The Supreme Court in Allen,

15b

discussed supra, held that private citizens may bring an
action under § §.

Lamar County argues that the action is barred by the
Eleventh Amendment, pursuant to Pennhurst State School
& Hosp. v. Halderman, 465 U.S. 89 (1984). But Pennhurst
concerned the failure of state officials to carry out their
duties under state, not federal, law; the plaintiffs’ claim
concerns failure to adhere to federal law. Furthermore,
as is more than clearly established, Eleventh Amendment
immunity does not bar actions for injunctive relief against
state officials on the basis of federal law under the doc-
trine of Ex parte Young, 209 U.S. 123 (1908).

+.

The intervenors also contend that the case is not ripe
for decision, because a 1966 City annexation into Lamar
County was never precleared by the USAG.* (The other
annexations were precleared.) The 1966 annexation was
the basis for all subsequent annexations, because they are
contiguous to that annexation. Under Mississippi law,
annexations must be "adjacent" to the municipality. Miss.
Code Ann. § 21-1-27 (1972).

The status of the 1966 annexation does not affect our
jurisdiction to consider whether the statutes in issue are
covered by the Act and, if so, whether they have been
precleared. The "basic rationale [of the ripeness doctrine]
is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements." Abbott Laboratones v. Gardner, 387 U.S.

* The Lamar County intervenors stated that they were contemplat-
ing an amendment to their Answer for leave to file a third party
complaint against the City challenging the validity of the 1966 annexa-
tion. They have not done so.

52a

(j) To see that fuel and heating are provided
in the schools at all times when same are needed;

(k) To authorize the use of the school build-
ings and grounds for the holding of public meet-
ings and gatherings of the people under such
regulations as may be prescribed by said board;

() To prescribe and enforce rules and reg-
ulations not inconsistent with law or with the
regulations of the State Board of Education for
their own government and for the government
of the schools, and to transact their business at
regular and special meetings called and held in
the manner provided by law;

(m) To maintain and operate all of the
schools under their control for such length of
time during the year as may be required;

(j) To see that fuel and heating are provided in the
schools at all times when same are needed;

(k) To authorize the use of the school buildings and
grounds for the holding of public meetings and gatherings

of the people under such regulations as may be prescribed
by said board;

(1) To prescribe and enforce rules and regulations not
inconsistent with law or with the regulations of the State
Board of Education for their own government and for the
government of the schools, and to transact their business
at regular and special meetings called and held in the
manner provided by law;

(m) To maintain and operate all of the schools under
their control for such length of time during the year as
may be required;

53a

(n) To enforce in the schools the courses of
study and the use of the textbooks prescribed by
the proper authorities;

(0) To suspend or dismiss pupils when the
best interest of the school makes it necessary,
and to deny admission to or suspend or dismiss
children who are found to be so mentally or emo-
tionally abnorinal that their attendance at the
school is detrimental to the best interest of the
child involved or to the other pupils attending
the school;

(p) To make orders directed to the county
superintendent of education for the issuance of
pay certificates for lawful purposes on any avail-
able funds of the district;

(q) To select superintendents, principals, and
teachers in the manner provided by law;

(r) To provide and regulate athletic programs
and other school activities; and

(s) To join, in their discretion, for the school
trustees in their district, any association of school
boards and to pay from local funds other than
minimum foundation funds, any membership dues.

(n) To enforce in the schools the courses of study and
the use of the textbooks prescribed by the proper
authorities;

(0) To suspend or dismiss pupils when the best interest
of the school makes it necessary, and to deny admission
to or suspend or dismiss children who are found to be so
mentally or emotionally abnormal that their attendance at
the school is detrimental to the best interest of the child
involved or to the other pupils attending the school;

(p) To make orders directed to the county superin-
tendent of education for the issuance of pay certificates
for lawful purposes on any available funds of the district;

54a

(q) To select superintendents, principals, and teachers
in the manner provided by law;

(r) To provide and regulate athletic programs and
other school activities; and

(s) To join, in their discretion, for the school trustees
in their district, any association of school boards and to
pay from local funds other than minimum foundation funds,
any membership dues.

55a

(t) To expend local school activity funds, or
other available school district funds, other than
minimum education program funds, for the pur-
poses prescribed under this paragraph. “Activity
funds” shall mean all funds received by school
Officials in all school districts paid or collected to
participate in any school activity, such activity
being part of the school program and partially
financed with public funds or supplemented by
public funds. Activity funds may only be ex-
pended for any necessary expenses or travel costs
incurred by students and their chaperones in at-
tending any in-state or out-of-state school-related
programs, conventions or seminars and/or any
commodities, equipment or school supplies which
the local school governing board, in their discre-
tion, shall deem beneficial to the official or ex-
tracurricular programs of the district, including
items which may subsequently become the per-
sonal property of individuals, including year-
books, athletic apparel, book covers and trophies.
The local school governing board shall be au-
thorized and empowered to promulgate rules and
regulations specifically designating for what pur- —
poses school activity funds may be expended, and
what type of bookkeeping methods, procedures
and auditing shall be utilized in accounting for
such funds. The local school governing board shall
provide (a) that such school activity funds be au-
dited annually, or (b) that a financial statement
for such school activity funds be prepared and
spread upon the minutes of the board. The board
may utilize the services of a certified public ac-
countant, a public accountant, the State Depart-
ment of Audit or its own personnel in preparing
such audit or financial statement.

56a

(t) To expend local school activity funds, or other
available school district funds, other than minimum edu-
cation program funds, for the purposes prescribed under
this paragraph. ‘Activity funds” shall mean all funds re-
ceived by school officials in all school districts paid or
collected to participate in any school activity, such activity
being part of the school program and partially financed
with public funds or supplemented by public funds. The
term “activity funds’ shall not include any funds raised
and/or expended by any organization unless deposited with
existing activity funds, regardless of whether the funds
were raised usin, school facilities. Organizations shall not
be required to make any payment to any school for the
use of any school facility if, in the discretion of the local
school governing board, the organization’s function shall
be deemed to be beneficial to the official or extracurricular
programs of the school. For the purposes of this provision,
the term “organization” shall not include any organization
subject to the control of the local school governing board.
Activity funds may only be expended for any necessary
expenses or travel costs, including advances, incurred by
students and their chaperones in attending any in-state or
out-of-state school-related programs, conventions or sem-
inars and/or any commodities, equipment, travel expenses,
purchased services or school supplies which the local school
governing board, in their discretion, shall deem beneficial
to the official or extracurricular programs of the district,
including items which may subsequently become the per-
sonal property of individuals, including yearbooks, athletic
apparel, book covers and trophies. Activity funds may be
used to pay travel expenses of school district personnel.
The local school governing board shall be authorized and
empowered to promulgate rules and regulations specifically
designating for what purposes school activity funds may
be expended. The local school governing board shall pro-
vide (a) that such school activity funds shall be maintained
and expended by the principal of the school generating

ise eateenaeemeeneeieieiien

57a

the funds in individual bank accounts, or (b) that such
school activity funds shall be maintained and expended by
the superintendent of schools in a central depository ap-
proved by the board. The local school governing board shall
provide ~ that such school activity funds be audited an-
nually. ~ The board may utilize the services of a certified
public accountant or the State Department of Audit ~ in
preparing such audit. ~ The State Auditor shall prescribe
a uniform system of accounting and financial reporting for
all school activity fund transactions to be implemented by
July 1, 1986;

58a

(u) To contract, on a shared savings, lease
or lease-purchase basis, for energy efficiency ser-
vices and/or equipment as provided for in Section
31-7-14, not to exceed ten (10) years.

SOURCES: Laws, 1982, ch. 466, § 1; 1985, ch.
466, § 1; 1985, ch. 493, § 3, eff from and after
July 1, 1985.

(u) To contract, on a shared savings, lease or lease-
purchase basis, for energy efficiency services and/or equip-
ment as provided for in Section 31-7-14, not to exceed ten
(10) years.

(v) To maintain accounts and issue pay certificates on
school food service bank accounts; and

(wXi) To lease a school building from an_ individual,
partnership, nonprofit corporation or a private for-profit
corporation for the use of such school district, and to ex-
pend funds therefor as may be available from any non-
minimum program sources. The school board of the school
district desiring to lease a school building shall declare by
resolution that a need exists for a school building and that
the school district cannot provide the necessary funds to
pay the cost or its proportionate share of the cost of a
school building required to meet the present needs. The
resolution so adopted by the school board shall be pub-
lished once each week for three (3) consecutive weeks in
a_ newspaper having a general circulation in the school
district involved, with the first publication thereof to be
made not less than thirty (30) days prior to the date upon
which the school board is to act on the question of leasing
a_ school building. If no petition requesting an election is
filed prior to such meeting as hereinafter provided, then
the school board may, by resolution spread upon its min-
utes, proceed to lease a school building. If at any time
prior to said meeting a petition signed by not less than

a d

59a

twenty percent (20%) or fifteen hundred (1500}, whichever
is less, of the qualified electors of the school district in-
volved shall be filed with the school board requesting that
an election be called on the question, then the school board
shall, not later than the next regular meeting, adopt a
resolution calling an election to be held within such school
district upon the question of authorizing the school board
to lease a school building. Such election shall be called and
held, and notice thereof shall be given, in the same manner
for elections upon the questions of the issuance of the
bonds of school districts, and the results thereof shall be
certified to the school board. If at least three-fifths (3/5)
of the qualified electors of the school district who voted
in such election shall vote in favor of the leasing of a
school building, then the school board shall proceed to lease
a school building. The term of the lease contract shall not
exceed twenty (20) years, and the total cost of such lease
shall be either the amount of the lowest and best bid
accepted by the school board after advertisement for bids
or an amount not to exceed the current fair market value
of the school building as determined by the averaging of
at least two (2) appraisals by members of the American
Institute of Real Estate Appraisers or the Society of Real
Estate Appraisers. The term ‘‘school building’’ as used in
this item (w) shall be construed to mean any building or
buildings used for classroom purposes in connection with
the operation of schools and shall include the site therefor,
necessary support facilities, and the equipment thereof and
appurtenances thereto such as heating facilities, water sup-
ply, sewage disposal, landscaping, walks, drives and play-
grounds. The term “‘lease”’ as used in this item (wi) may
include a lease/purchase contract.

(ii) If two (2) or more school districts propose to
enter into a lease contract jointly, then joint meetings of
the school boards having control may be held but no action
taken shall be binding on any such school district unless
the question of leasing a school building is approved in

60a

each participating school district under the procedure here-
inabove set forth in item (w\i). All of the provisions of
item (wXi) regarding the term and amount of the lease
contract shall apply to the school boards of school districts
acting jointly. Any lease contract executed by two (2) or
more school districts as joint lessees shall set out the
amount of the aggregate lease rental to be paid by each,
which may be agreed upon, but there shall be no right of
occupancy by any lessee unless the aggregate rental is
paid as stipulated in the lease contract. All rights of joint
lessees under the lease contract shall be in proportion to
the amount of lease rental paid by each.

(x) To borrow such funds as may be reasonable and
necessary from the federal government, the State of Mis-
sissippi or any political subdivision or entity thereof, or
any other governmental agency, public interest corpora-
tion, or nonprofit entity established or operated to aid
school districts in asbestos removal, to be repaid out of
any non-minimum program funds; provided, however, that
the grant of authority shall in no way be construed to
require said boards of trustees to remove asbestos material
or substances from any facilities under their control, nor
shall there be any liability to said school districts or boards
for the failure to so remove such asbestos materials.

6la

(From and after July 1, 1987, this section shall read as
follows:)

37-7-301. The school boards of all school districts shall.
have the following powers, authority and duties in addition
to all others imposed or granted by law, to-wit:

(a) To organize and operate the schools of the district
and to make such division between the high school grades
and elementary grades as, in their judgment, will serve
the best interests of the school; -

(b) To introduce public school music, art, manual train-
ing and other special subjects into either the elementary
or high school grades, as the board ~ shall deem proper;

(c) To be the custodians of real and personal school
property and to manage, control and care for same, both
during the school term and during vacation;

(d) To have responsibility for the erection, repairing
and equipping of school facilities and the making of nec-
essary school improvements;

(e) To suspend or to expel a pupil for misconduct in
the school, upon school buses, on the road to and from
school, during recess or upon the school playgrounds, and
to delegate such authority to the appropriate officials of of
the school district;

(f) To visit ~ schools in the district, in their discretion,
in a body ~ for the purpose of determining what can be
done for the improvement of the schoo! in a general way;

(g) To support, within reasonable limits, the super-
intendent, administrative superintendent, principal and
teachers where necessary for the proper discipline of the
school;

(h) To exclude from the schools students with what
appears to be infectious or contagious diseases; provided,
however, such student may be allowed to return to school

62a

upon presenting a certificate from a public health officer
or duly licensed physician that the student is free from
such disease;

(i) To require those vaccinations specified by the State
Health Officer as provided in Section 41-23-37, Mississippi
Code of 1972;

(j) To see that all necessary utilities and services are
provided in the schools at all times when same are needed;

(k) To authorize the use of the school buildings and
grounds for the holding of public meetings and gatherings
of the people under such regulations as may be prescribed
by said board;

(1) To prescribe and enforce rules and regulations not
inconsistent with law or with the regulations of the State
Board of Education for their own government and for the
government of the schools, and to transact their business
at regular and special meetings called and held in the
manner provided by law;

(m) To maintain and operate all of the schools under
their control for such length of time during the year as
may be required;

(n) To enforce in the schools the courses of study and
the use of the textbooks prescribed by the proper
authorities;

(0) To make orders directed to the ~ superintendent
of ~ schools or administrative superintendent for the is-
suance of pay certificates for lawful purposes on any avail-
able funds of the district and to have full control of the
receipt, distribution, allotment and disbursement of all
funds provided for the support and operation of the schools
of such school district whether such funds be derived from
state appropriations, local ad valorem tax collections, or

otherwise;

63a

(p) To select all school district personnel in the man-
ner provided by law;

(q) To provide and regulate athletic pee and
other school activities;

(r) To join, in their discretion, ~ any association of
school boards and other public school related organizations,
and to pay from local funds other than minimum foun-
dation funds, any membership dues;

(s) To expend local school activity funds, or other
available school district funds, other than minimum edu-
cation program funds, for the purposes prescribed under
this paragraph. ‘‘Activity funds” shall mean all funds re-
ceived by school officials in all school districts paid or
collected to participate in any school activity, such activity
being part of the school program and partially financed
with public funds or supplemented by public funds. The
term ‘activity funds’ shall not include any funds raised
and/or expended by any organization unless deposited with
existing activity funds, regardless of whether the funds
were raised using school facilities. Organizations shall not
be required to make any payment to any school for the
use of any school facility if, in the discretion of the local
school governing board, the organization’s function shall
be deemed to be beneficial to the official or extracurricular
programs of the school. For the purposes of this provision,
the term “organization” shall not include any organization
subject to the control of the local school governing board.
Activity funds may only be expended for any necessary
expenses or travel costs, including advances, incurred by
students and their chaperones in attending any in-state or
out-of-state school-related programs, conventions or sem-
inars and/or any commodities, equipment, travel expenses,
purchased services or school supplies which the local school
governing board, in their discretion, shall deem beneficial
to the official or extracurricular programs of the district,
including items which may subsequently become the per-

64a

sonal property of individuals, including yearbooks, athletic
apparel, book covers and trophies. Activity funds may be
used to pay travel expenses of school district personnel.
The local school governing board shall be authorized and
empowered to promulgate rules and regulations specifically
designating for what purposes school activity funds may
be expended. The local school governing board shall pro-
vide (a) that such school activity funds shall be maintained
and expended by the principal of the school generating
the funds in individual bank accounts, or (b) that such
school activity funds shall be maintained and expended by
the superintendent of schools in a central depository ap-
proved by the board. The local school governing board shall
provide that such school activity funds be audited annually.
The board may utilize the services of a certified public
accountant or the State Department of Audit in preparing
such audit. The State Auditor shall prescribe a uniform
system of accounting and financial reporting for all school
activity fund transactions to be implemented by July 1,
1986;

(t) To contract, on a shared savings, lease or lease-
purchase basis, for energy efficiency services and/or equip-
ment as provided for in Section 31-7-14, not to exceed ten
(10) years.

(u) To maintain accounts and issue pay certificates on
school food service bank accounts; and

(vXi) To lease a school building from an individual,
partnership, nonprofit corporation or a private for-profit
corporation for the use of such school district, and to ex-
pend funds therefor as may be available from any non-
minimum program sources. The school board of the school
district desiring to lease a school building shall declare by
resolution that a need exists for a school building and that
the school district cannot provide the necessary funds to
pay the cost or its proportionate share of the cost of a
school building required to meet the present needs. The

65a

resolution so adopted by the school board shall be pub-
lished once each week for three (3) consecutive weeks in
a newspaper having a general circulation in the school
district involved, with the first publication thereof to be
made not less than thirty (30) days prior to the date upon
which the school board is to act on the question of leasing
a school building. If no petition requesting an election is
filed prior to such meeting as hereinafter provided, then
the school board may, by resolution spread upon its min-
utes, proceed to lease a school building. If at any time
prior to said meeting a petition signed by not less than
twenty percent (20%) or fifteen hundred (1500), whichever
is less, of the qualified electors of the school district in-
volved shall be filed with the school board requesting that
an election be called on the question, then the school board
shall, not later than the next regular meeting, adopt a
resolution calling an election to be held within such school
district upon the question of authorizing the school board
to lease a school building. Such election shall be called and
held, and notice thereof shall be given, in the same manner
for elections upon the questions of the issuance of the
bonds of school districts, and the results thereof shall be
certified to the school board. If at least three-fifths (3/5)
of the qualified electors of the school district who voted
in such election shall vote in favor of the leasing of a
school building, then the school board shall proceed to lease
a school building. The term of the lease contract shall not
exceed twenty (20) years, and the total cost of such lease
shall be either the amount of the lowest and best bid
accepted by the school board after advertisement for bids
or an amount not to exceed the current fair market value
of the school building as determined by the averaging of
at least two (2) appraisals by members of the American
Institute of Real Estate Appraisers or the Society of Real
Estate Appraisers. The term “school building’’ as used in
this item (v) shall be construed to mean any building or
buildings used for classroom purposes in connection with

66a

the operation of schools and shall include the site therefor,
necessary support facilities, and the equipment thereof and
appurtenances thereto such as heating facilities, water sup-
ply, sewage disposal, landscaping, walks, drives and play-
grounds. The term ‘“‘lease’’ as used in this item (v\i) may
include a lease/purchase contract.

(ii) If two (2) or more school districts propose to
enter into a lease contract jointly, then joint meetings of
the school board having control may be held but no action
taken shail be binding on any such school district unless
the question of leasing a school building is approved in
each participating school district under the procedure here-
inabove set forth in item (vi). All of the provisions of
item (vi) regarding the term and amount of the lease
contract shall apply to the school boards of school districts
acting jointly. Any lease contract executed by two (2) or
more school districts as joint lessees shall set out the
amount of the aggregate lease rental to be paid by each,
which may be agreed upon, but there shall be no right of
occupancy by any lessee unless the aggregate rental is
paid as stipulated in the lease contract. All rights of joint
lessees under the lease contract shall be in proportion to
the amount of lease rental paid by each.

(w) To borrow such funds as may be reasonable and
“necessary from the federal government, the State of Mis-
sissippi or any political subdivision or entity thereof, or
any other governmental agency, public interest corpora-
tion, or nonprofit entity established or operated to aid
school districts in asbestos removal, to be repaid out of
any non-minimum program funds; provided, however, that
the grant of authority shall in no way be construed to
require said boards of trustees to remove asbestos material
or substances from any facilities under their control, nor
shall there be any liability to said school districts or boards
for the failure to so remove such asbestos materials.

67a

(x) To contract, on a shared savings, lease or lease-
purchase basis, for energy efficiency services and/or equip-
ment as provided for in Section 31-7-14, not to exceed ten
(10) years;

(y) To employ and fix the duties and compensation of
such clerical help, other non-instructional personnel deemed
necessary pursuant to the recommendation of the super-
intendent of schools or the administrative superintendent;

(z) To employ and fix the duties and compensation of
such legal counsel as deemed necessar:’; and

res |

(aa) Subject *> rules and regulations of the State
Board of Education, to purchase, own and operate trucks,
vans and other motor vehicles, which shall bear the proper
identification required by law.

68a

§ 37-7-409. Funds for joint construction of
buildings or operation of schools.

(1) When any school districts shall be author-
ized to unite, join and cooperate in the construc-
tion, erecting and equipping of a joint school
building or school facility or in the joint operation
of a school erected, constructed and equipped en-
tirely by one of such districts, any school district
so authorized may, with the prior consent and
approval of the state educational finance com-
mission, expend in the construction, erecting and
equipping of such joint school building or the
school building which is to be jointly operated
any available state public school building funds,
or any available funds derived from bonds issued
by such school district for such purpose, or any
other funds which are otherwise available to such
school district for such purpose, as is set forth
and stipulated in the agreement entered into be-
tween the school districts involved. Except as is
herein specifically provided ail provisions of law
relative to the construction, erecting and equip-
ping of school buildings, the acquisition of land
therefor, and the expenditure of funds for such
purposes, shall be fully applicable to any joint
school building which has been or is to be con-
structed, erected and equipped or which is to be
operated jointly pursuant to an agreement en-
tered into under the provisions of section 37-7-
405.

SECTION 25. Section 37-7-409, Mississippi Code of 1972,
is amended as follows: |

37-7-409. (1) When any schoo! districts shall be author-
ized to unite, join and cooperate in the construction, erect-
ing and equipping of a joint school building or school facility

ae iro ters Be ory

69a

or in the joint operation of a school erected, constructed
and equipped entirely by one of such districts, any school
district so authorized may, with the prior consent and
approval of the State Board of Education, expend in the
construction, erecting and equipping of such joint school
building or the school building which is to be jointly op-
erated any available state public school building funds, or
any available funds derived from bonds issued by such
school district for such purpose, or any other funds which
are otherwise available to such school district for such
purpose, as is set forth and stipulated in the agreement
entered into between the school districts involved. Except
as is herein specifically provided all provisions of law rel-
ative to the construction, erecting and equipping of school
buildings, the acquisition of land therefor, and the ex-
penditure of funds for such purposes, shall be fully appli-
cable to any joint school building which has been or is to
be constructed, erected and equipped or which is to be
operated jointly pursuant to an agreement entered into
under the provisions of Section 37-7-405.

70a

(2) When a contract is made and entered into
for the construction, erecting and equipping of
joint school facilities or the joint operation of
school facilities erected, constructed and equipped
entirely by one of such districts, as provided in
section 37-7-405, and where such contract has
been approved by the state educational finance
commission, then any funds which are available
for the lawful operating and incidental expenses
of a school district may be expended by such
school district as provided and stipulated in the
agreement entered into between the school dis-
tricts involved (including, but not limited to, funds
for payment of tuition, funds payable as a rental
upon the use of the building and equipment, and
funds for maintenance and incidental costs of op-
eration). The board of supervisors, upon receipt
of a certified copy of an order adopted by the
board of trustees of any school district in the
county requesting same, or the governing
authorities of the municipality, upon receipt of a
certified copy of an order adopted by the board
of trustees of a municipal separate school district
requesting same, shall at the same time and in
the same manner as other ad valorem taxes are
levied, levy an annual tax in the amount fixed
in such order as may be required to meet any
monetary obligation incurred under such con-
tract. Notwithstanding any statute to the con-
trary, such number of mills as is necessary to
defray any such contractual obligation shall be
levied. However, this provision shall in no way
be construed to increase the number of mills now
reimbursable under the homestead exemption
laws of the State of Mississippi

Tla

(2) When a contract is made and entered into for the
construction, erecting and equipping of joint school facil-
ities or the joint operation of school facilities erected, con-
structed and equipped entirely by one of such districts, as
provided in Section 37-7-405, and where such contract has
been approved by the State Board of Education, then any
funds which are available for the lawful operating and
incidental expenses of a school district may be expended
by such school district as provided and stipulated in the
agreement entered into between the school districts in-
volved (including, but not limited to, funds for payment
of tuition, funds payable as a rental upon the use of the
building and equipment, and funds for maintenance and
incidental costs of operation). The levying authority for
the school district, as defined in Section 37-57-1, upon
receipt of a certified copy of an order adopted by the
school board »~ of the school district in the county re-
questing same, shall at the same time and in the same
manner as other ad valorem taxes are levied, levy an
annual tax in the amount fixed in such order as may be
required to meet any monetary obligation incurred under
such contract. Notwithstanding any statute to the con-
trary, such number of mills as is necessary to defray any
such contractual obligation shall be levied. However, this
provision shall in no way be construed to increase the
number of mills now reimbursable under the homestead
exemption laws of the State of Mississippi.

72a

(3) Before levying any taxes under the provi-
sions of this section, which levy would exceed the
limitations otherwise provided upon the number
of mills which may be levied for school purposes,
the board of supervisors shall adopt a resolution
declaring its intention so to do, stating the
amount of millage to be levied and the purpose
for which the proceeds are to be used, and the
date upon which said board of supervisors pro-
poses to make such levy. Such resolution shall be
published once a week for not less than three
consecutive weeks, in at least one newspaper
published in the county. The first publication of
such resolution shall be made not less than
twenty-one days prior to the date fixed in such
resolution for the levying of taxes, and the last
publication shall be made not more than seven
days prior to such date. If within fifteen days
after the final publication of said resolution, a
petition signed by at least twenty percent of the
qualified electors of said county, requesting an
election on the proposition of levying such ad-
ditional taxes for schoo! purposes is filed with
the clerk of the board of supervisors, such levy
shall not be made until an election shall be held
to determine whether or not a majority of qual-
ified electors of said county shall favor the ad-
ditional levy for school purposes. If a majority of
the qualified electors of said county voting in
such election approves the levying of the addi-
tional taxes, then the levy shall be made within
the manner, form and time as required by law.
If no such petition if filed with the clerk of the
board of supervisors, then said levy shall be made
by the board of supervisors in the manner, form
and time as required by law. If any election is
held under the provisions of this section, said

73a

election shall be under the supervision of the
county election commission in the manner, form
and time as required by law for conducting gen-
eral elections in this state.

SOURCES: Codes, 1942, § 6328-74; Laws, 1956,
ch. 266, § 4; 1960, ch. 301, § 3; 1968, ch. 386,
eff from and after passage (approved June
24, 1968).

(3) Before levying any taxes under the provisions of this
section, which levy would exceed the limitations otherwise
provided » for school purposes, the levying authority for
the school district, as defined in Section 37-57-1, shall adopt
a resolution declaring its intention so to do, stating the
amount of millage to be levied and the purpose for which
the proceeds are to be used, and the date upon which it
proposes to make such levy. Such resolution shall be pub-
lished once a week for not less than three (3) consecutive
weeks, in at least one (1) newspaper having general cir-
culation in the school district. The first publication of such
resolution shall be made not less than twenty-one (21) days
prior to the date fixed in such resolution for the levying
of taxes, and the last publication shall be made not more
than seven (7) days prior to such date. If within fifteen
(15) days after the final publication of said resolution, a
petition signed by the lesser of fifteen hundred (1500) or
twenty percent (20%) of the qualified electors of said school
district, requesting an election on the proposition of levy-
ing such additional taxes for school purposes is filed with
the clerk of the board of supervisors or the clerk of the
municipality, as the case may be, such levy shall not be
made until an election shall be held to determine whether
or not three-fifths (3/5) of qualified electors of said school
district shall favor the additional levy for school purposes.
If three-fifths (3/5) of the qualified electors of said school

district voting in such election approves the levying of the

T4a

additional taxes, then the levy shall be made within the
manner, form and time as required by law. If no such
petition is filed with the clerk as herein provided, then
said levy shall be made by the levying authority in the
manner, form and time as required by law. If any election
is held under the provisions of this section, said electicn
shall be under the supervision of the county or municipal
election commission, as the case may be, in the manner,
form and time as required by law for conducting general
elections in this state.

SECTION 47. Sections 37-7-601, 37-7-603, 37-7-605, 37-
7-607, 37-7-609, 37-7-611, 37-7-613, 37-7-615, 37-7-617, 37-
7-619, 37-7-621, 37-7-623, 37-7-625, 37-7-627. 37-7-629, 37-
7-631, 37-7-633, 37-7-635, 37-7-637, 37-7-639, 37-7-641, 37-
7-643 and 37-7-645, Mississippi Code of 1972, which pro-
vide for the creation and operation of municipal separate
school districts, are hereby repealed.

75a
:

76a

§37-7-103. Abolition, alteration or creation of
districts by county board of education.
After school districts have been reconstituted

and created in the manner prescribed by Article
1 of this chapter, the county board of education
shall have full jurisdiction, power, and authority,
at any regular meeting thereof or at any special
meeting called for that purpose, to abolish any
existing district other than a municipal separate
school district, to change or alter the boundaries
of any such district, to create any new districts,
and to otherwise create, alter, or abolish any of
the school districts of such county, other than
the municipal separate school districts. In addi-
tion thereto, with the consent of the board of
trustees of the municipal separate school district
involved, the county board of education may add
to such municipal separate school districts any
part of the county adjoining same, and with the
consent of the board of trustees of the municipal
separate school district involved, the county board
may detach territory from such municipal sepa-
rate school district and annex same to an ad-
joining district in the county school system.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,
Ex Sess, ch. 16, § 6, eff from and after July
1, 1954.

SECTION 52. Section 37-7-103, Mississippi Code of 1972,
is amended as follows:

37-7-103. From and after July 1, 1987, the school board
of any school district shall have full jurisdiction, power

and authority, at any regular meeting thereof or at any
special meeting called for that purpose, to abolish such
existing district, or to reorganize, change or alter the

77a

boundaries of any such district. ~ In addition thereto, with
the consent of the school board vy of the » school district
involved, the school board ~ may add to such vy school dis-
trict ~ any part of the school district adjoining same, and

with the consent of the school board - of the » school
district involved, ~ may detach territory from such school
district and annex same to an adjoining district. -

78a

§37-7-105. Procedure to abolish, alter or create
a district in absence of petition filed by elec-
torate.

In cases where the county board of education
abolishes, alters, or creates a school district with-
out a petition therefor as is otherwise provided
in sections 37-7-107, 37-7-109, the county board
of education shall publish the order creating, al-
tering, or abolishing such district or. districts in
some newspaper published and having a general
circulation in such county once each week for
three consecutive weeks, which said order shall
be duly certified by the president of said county
board of education. If no newspaper be published
in said county, then such order shall be published
for the required time in some newspaper having
a genera! circulation therein, and, in addition, a
copy of said order shall be posted for the required
time at three public places in the county. The
order so published shall contain a provision giving
notice that said order shall become final thirty
days after the first publication of said notice un-
less a petition is filed protesting against same
within such time. In the event no such petition
be filed, the said order shall become final at said
time. However, in the event twenty per cent of
the qualified electors of any school district cre-
ated, altered, or abolished by such order shall file
a petition with the county board of education,
within thirty days after the first publication of
said notice, protesting against the creation, al-
teration, or abolition of such district, then an
election shall be called and held, on order of the
county board of education, by the county election
commission, after publication of legal notice of
such election, which said election shall be held
within thirty days after the first publication of

7Sa

the notice of such election. At such election the
question shall be submitted to the qualified elec-
tors of the district or districts affected and from
which a petition is filed as to whether or not
such district or districts shall be created, altered,
or abolished as provided in the said order of the
county board of education. If a majority of those
voting in said election in each district affected
and from which a petition is filed shall vote in
favor of the order of the county board of edu-
cation then such order shall become final. If a
majority of those voting in said election in any
district from which a petition is filed shall vote
against the order of the county board of educa-
tion then such order shall be void and of no effect
and no further attempt to make the proposed
change in such district shall be made for a period
of at least two years after the date of said elec-
tion.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,
Ex Sess, ch. 16, § 6, eff from and after July
1, 1954.

SECTION 53. Section 37-7-105, Mississippi Code of 1972,
is amended as follows:

37-7-105. In cases where the school board y abolishes,
alters or reorganizes a school district without a petition
therefor as is otherwise provided in Sections 37-7-107 and
37-7-109, the school board y shall publish the order reorg-
anizing, altering or abolishing such district or districts in
some newspaper published and having a general circulation
in such district(s) once each week for three (3) consecutive
weeks, which said order shall be duly certified by the
president of said school board. ~ If no newspaper be pub-
lished in said school district, then such order shal! be pub-
lished for the required time in some newspaper having a

80a

general circulation therein, and, in addition, a copy of said
order shall be posted for the required time at three (3)
public places in the school district. The order so published
shall contain a provision giving notice that said order shall
become final thirty (30) days after the first publication of
said notice unless a petition is filed protesting against
same within such time. In the event no such petition be
filed, the said order shall become final at said time. How-
ever, in the event twenty percent (20%) of the qualified
electors of any school district reorganized, altered or abol-
ished by such order shall file a petition with the school
board, ~ within thirty (30) days after the first publication
of said notice, protesting against the reorganization, al-
teration or abolition of such district, then an election shall
be cailed and held, on order of the school board, » by the
county election commission(s), after publication of legal no-
tice of such election, which said election shall be held within
thirty (30) days after the first publication of the notice of
such election. At such election the question shall be sub-
mitted to the qualified electors of the district or districts
affected and from which a petition is filed as to whether
or not such district or districts shall be reorganized, al-
tered or abolished as provided in the said order of the
school board. » If a majority of those voting in said elec-
tion in each district affected and from which a petition is
filed shall vote in favor of the order of the school
board ~ then such order shall become final. If a majority
of those voting in said election in any district from which
a petition is filed shall vote against the order of the school
board ~ then such order shall be void and of no effect and
no further attempt to make the proposed change in such
district shall be made for a period of at least two (2) years
after the date of said election.

8la

§37-7-107. Procedure to abolish district pur-
suant to petition filed by electorate.

If a petition signed by two-thirds of the qual-
ified electors of an existing school district shall
be filed with the county board of education re-
questing that such district be abolished, then the
county board of education shall enter an order
abolishing such school district. Such order shall
become final without publication thereof upon
such date as may be fixed by the county board
of education but not later than the first day of
July next succeeding the date of such order.

SECTION 54. Section 37-7-107, Mississippi Code of 1972,
is amended as follows:

37-7-107. If a petition signed by two-thirds (2/3) of the
qualified electors of an existing school district shall be filed
with the school board » requesting that such district be
apolished, then the school board » shall enter an order
abolishing such school district. Such order shall become
final without publication thereof upon such date as may
be fixed by the school board » but not later than July 1
next succeeding the date of such order.

82a

§37-7-109. Procedure to alter district pursuant
to petition filed by electorate.

If a petition signed by a majority of the qual-
ified electors of specifically described territory of
an existing school district shall be filed with the
county board of education requesting that said
described territory be taken from such existing
district and annexed to an adjacent district, the
county board of education, after consideration
thereof, and with the consent and approval of
the board of trustees of the district to which such
territory is to be annexed, shall have the power
and authority, in its discretion, to take such ter-
ritory from the existing district and annex same
to the adjacent district. However, before doing
so, the county board of education must find and
determine that the taking of the territory from
the existing school district will not seriously in-
terfere with or impair the efficiency of such
school district, and all orders adopted under the
provisions of this section shall be invalid unless
such finding and determination be made. Any or-
der adopted under the provisions of this section
shall become final without publication thereof
upon such date as may be fixed by the county
board of education but not later than the first
day of July next succeeding the date of such
order. The taking of territory from existing school
districts under the provisions of this section shall
not release the property in such territory from
assessment and liability for the payment of the
oustanding bonds or other indebtedness of the
district from which the territory is taken and it
shall be the duty of the board of supervisors to
continue to levy taxes on such territory in an
amount sufficient to pay such territory’s pro rata
part of all outstanding bonds or other indebt-

No det wt mein |

83a

edness existing at the time the territory is taken
from such district. In addition thereto, the ter-
ritory involved shall become liable for its pro rata
part of the outstanding bonds or other indebt-
edness of the district to which it is annexed and
taxes shall be levied thereon for the payment
thereof to the same extent as taxes are levied
upon the other territory of such district.

SECTION 55. Section 37-7-109, Mississippi Code of 1972,
is amended as follows:

37-7-109. If a petition signed by a majority of the qual-
ified electors of specifically described territory of an ex-
isting school district shall be filed with the school
board ~ requesting that said described territory be taken
from such existing district and annexed to an adjacent
district, or reorganized into a new school district, the said
school board, » after consideration thereof, and with the
consent and approval of the school board - of the district
to which such territory is to be annexed, if such be the
case, shall have the power and authority, in its discretion,
to take such territory from the existing district and annex
same to the adjacent district, or to create a new school
district of such specifically described territory. However,
before doing so, the school board ~ must find and deter-
mine that the taking of the territory from the existing
school district will not seriously interfere with or impair
the efficiency of such school district, and all orders adopted
under the provisions of this section shall be invalid unless
such finding and determination be made. Any order
adopted under the provisions of this section shall become
final without publication thereof upon such date as may
be fixed by the school board but not later than the first
day of July next succeeding the date of such order. The
taking of territory from existing school districts under the
provisions of this section shall not release the property in

84a

such territory from assessment and liability for the pay-
ment of the oustanding bonds or other indebtedness of the
district from which the territory is taken and it shall be
the duty of the board of supervisors to continue to levy
taxes on such territory in an amount sufficient to pay such
territory’s pro rata part of all outstanding bonds or other
indebtedness existing at the time the territory is taken
from such district. In addition thereto, the territory in-
volved shall become liable for its pro rata part of the
outstanding bonds or other indebtedness of the district to
which it is annexed and taxes shall be levied thereon for
the payment thereof to the same extent as taxes are levied
upon the other territory of such district.

85a

ave a

§37-7-111. Effect of abolition on indebtedness
of district; territory of district shall be an-
nexed to another district.

When any school district is abolished under the
provisions of sections 37-7-105, 37-7-107, the ab-
olition thereof shall not impair or release the
property of such school district from liability for
the payment of the bonds or other indebtedness
of such district and it shall be the duty of the
board of supervisors of said county to levy taxes
on the property of said district so abolished from
year to year according to the terms of such in-
debtedness until same shall be fully paid. No ex-
isting school district shall be abolished unless the
territory comprising such district shall be an-
nexed to another district by the county board of
education in the same order abolishing the former
district.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,
Ex Sess, ch. 16, § 6, eff from and after July
1, 1954.

SECTION 56. Section 37-7-111, Mississippi Code of 1972,
is amended as follows:

37-7-111. When any school district is abolished or altered
under the provisions of this act, the abolition or alteration
thereof shall not impair or release the property of such
school district from liability for the payment of the bonds
or other indebtedness of such district and it shall be the
duty of the board of supervisors of said county to levy
taxes on the property of said district so abolished or al-
tered from year to year according to the terms of such
indebtedness until same shall be fully paid. No existing
school district shall be abolished unless the territory com-

86a

prising such district shall be annexed to another dis-
trict ~ in the same order abolishing the former district.

87a

§37-7-113. Necessity of approval by state edu-
| cational finance commission.
Notwithstanding any of the foregoing provi-
sions of sections 37-7-103 to 37-7-111, it is hereby
expressly provided that no order of the county
board of education creating, abolishing, or alter-
ing any school district, whether same be taken
with or without a petition therefor, shall be final
unless and until said proposed creation, altera-
tion, or abolition shall be submitted to and ap-
proved by the state educational finance
commission. In the event the proposed action shall
be disapproved by the state educational finance
commission, the same shall be void and of no
effect. In the event of the filing of any petitions
with the county board of education under the
provisions of said sections, the county board of
education shall verify same and make a deter-
mination of whether same are signed by the req-
uisite number of qualified electors. The finding
of the county board of education upon such ques-
tion shall be final and conclusive for the purpose
of the submission of said matter to the state
educational finance commission and the approval
or disapproval of the action by said commission.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,
Ex Sess, ch. 16, § 6, eff from and after July
1, 1954.

SECTION 57. Section 37-7-113, Mississippi Code of 1972,
is amended as follows:

37-7-113. Notwithstanding any of the foregoing provi-
sions, ~ it is hereby expressly provided that no order of
the school board y reorganizing, abolishing or altering any

school district, whether same be taken with or without a

88a

petition therefor, shall be final unless and until said pro-
posed reorganization, alteration or abolition shall be sub-
mitted to and approved by the State Board of Education.
In the event the proposed action shall be disapproved by
the State Board of Education, the same shall be void and
of no effect. In the event of the filing of any petitions
with the school board y under the provisions of said sec-
tions, the school board y shall verify same and make a
determination of whether same are signed by the requisite
number of qualified electors. The finding of the school
board ~ upon such question shall be final and conclusive
for the purpose of the submission of said matter to the
State Board of Education and the approval or disapproval
of the action by said board.

89a

§37-41-95. Manner of issuance and form thereof.
All such notes issued by a county shall be
signed by the president of the board of super-
visors and countersigned by the clerk of the board
of supervisors, and the seal of the county shall
be impressed on each note as it is issued. All
notes issued for a municipal separate school dis-
trict or special municipal separate school district
shall be signed by the mayor of the municipality
and shall be countersigned by the clerk of the
municipality, and the seal of the municipality shall
be affixed thereto. The interest on said notes may
be evidenced by proper coupons attached thereto
and such coupons may bear only the facsimile
signatures of the president of the board of su-
pervisors and the clerk thereof, or the mayor of
the munic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2181%3A2. Public record. Not legal advice.