Respondents Brief — Texas v. United States

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Supreme Court, U.S

Ae ea a

DEC 15 1997

No. 97-29

In the Supreme Court of the United

OCTOBER TERM, 1997

STATE OF TEXAS, APPELLANT

UNITED STATES OF AMERICA

—

VUATRA

—

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

LAWRENCE G. WALLACE

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

MARK L. GROSS

MIRIAM R. EISENSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a three-judge district court for the

District of Columbia has jurisdiction under Section

5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c,

to hear and decide a declaratory judgment action

brought by a jurisdiction covered under the Act solely

for the purpose of determining whether potential

action authorized by a state enabling statute would be

a change with respect to voting covered by the Act

requiring preclearance.

2. Whether appellant’s claim, that potential action

by state education officials to impose sanctions on

local school districts authorized by a state enabling

statute would not require preclearance under Section

5, presents a ripe controversy, when appellant has

taken no action under the enabling statute.

TABLE OF CONTENTS

,n eee eee

rene ————

Argument:

II.

III.

The district court for the District of Columbia

lacks statutory jurisdiction over a declaratory

judgment action brought by a covered jurisdic-

tion solely for a declaration that a submitted

change does not affect voting ..

The district court correctly held that the

question of the applicability of Section 5 to

potential future implementations of Section

39. 13107) or (8) is not ripe for judicial

A. The State’s request for a declaratory judg-

ment does not satisfy the constitutional

requirement of a ripe controversy ............

B. Prudential considerations also counsel

against a decision at this time on the

question of Section 5’s coverage of future

implementations of Section 39.131(a)(7)

1 .

C. The state sanctions’ alleged conformity

with federa. education statutes does not

create a ripe controver .. .

Should the Court conclude that subject-matter

jurisdiction and a ripe controversy are present,

it should remand for further proceedings on

(TI)

s £8

IV V

TABLE OF AUTHORITIES C Cantiened Page

Cases: International Longshoremen’'s & Warehousemen's

Abbott Laboratories v. Gardner, 387 U.S. 136 Union v. Boyd, 347 U.S. 222 (1954) . . . 27

See 30, 33, 34, 38, 43 Keller v. State Bar, 496 U.S. 1 (1990) 43

Allen v. State Bd. of Elections, 393 U.S. 514 Lane v. Pena, 116 S. Ct. 2092 (19986) . 23

K- öũͤõhQA A J, 4, 18, 23, 24, 32 Lujan v. Defenders of Wildlife, 504 U.S. 555

Beer v. United States, 425 U.S. 130 (1976) . 19 . T See Se 28

Buda v. Sarbe, 406 F. Supp. 399 (E. D. Tenn. Lujan v. National Wildlife Fed’n, 497 U.S. 871

——A — 22 R 38

Bunton v. Patterson, 387 U.S. 136 (1967) ............ 32, 34 Moor v. County of Alameda, 411 U.S. 693 (1973) .. 23

Casias v. Moses, No. SA-95-CA-0221 (W.D. Tex. Morris v. Gressette, 482 U.S. 491 (1977) . .. 16, 22

May 11, 1995), dismissed as moot (W.D. Tex. Jan. NAACP v. Hampton County Election Comm 'n,

1 ( 3 e pol ala 39

City of Lockhart v. United States, 460 U.S. 125 NAACP v. New York, 413 U.S. 345 (1978) ........... 24

K —— 17 Northeastern Florida Chapter of Associated Gen.

City of Rome v. United States, 446 U.S. 156 Contractors v. City of Jacksonville, 508 U.S.

0G . 37 rr NI iy A 28

Clark v. Roemer, 500 U.S. 646 (1991) .. 2, 39, 43 Perkins v. Matthews, 400 U.S. 379 (1971) ............ 18

Columbia Broadcasting System v. United States, Presley v. Etowah County Comm n, 502 U.S. 491

III EEE 34 RTE Sa na a eS 5, 18, 20, 29, 33, 35, 42

Communist Party of the United States v. Subver- Public Serv. Comm'n v. Brashear Freight Lines,

sive Activities Control Bd., 367 U.S. 1 (1961) ....... 29 mm ee 21

Cornelius v. NAACP Legal Defense & Educ. Fund, Renne v. Geary, 501 U.S. 312 (1991) ............... 26, 27, 28

Dx 43 Reno v. Bossier Parish School Bd., 117 S. Ct. 1491

Dobbs v. Crew, No. CV-96-3240 (CPS) et al., 1996 00 19

WL 497060 (E. D. N. V. Aug. 23, 1996) 36, 37 Richardson v. City & County of Honolulu,

Frozen Food Express v. United States, 351 U.S. 124 F.3d 1150 (9th Cir. 1997) . . . . . 29

— 34 Robinson v. Alabama State Dep't of Educ.,

Gardner v. Toilet Goods Ass'n, 387 U.S. 167 652 F. Supp. 484 (M.D. Ala. 1987) . . .. . . . 35

a Se ee 38 South Carolina v. Katzenbach, 383 U.S. 301

Georgia v. United States, 411 U.S. 526 (1973) ....... 17 UIE —. 19, 23, 37

Gonzalez v. Automatic Employees Credit Union, Suitum v. Tahoe Regional Planning Agency,

I •¼mp 24 r Ia Se 33

Gunn v. University Comm. to End the War in Viet Texas v. United States, 866 F. Supp. 20 (D.D.C.

Nam, 399 U 8. 383 190 ——————— 21 — 12, 17, 33, 34

Toilet Goods Ass'n v. Gardner, 387 U.S. 158

— —Q— ¶u . 33, 38

Cases—Continued: Page

United Public Workers v. Mitchell, 330 U.S. 75

ee ee 27, 30

United States v. Board of Supervisors of Warren

County, 429 U.S. 642 (19777—T—pl2‚. 4 19

United States v. City of Jackson, 318 F.2d 1, on

denial of reh’g, 320 F.2d 870 (5th Cir. 1963) .......... 22

United States v. Storer Broadcasting Co.,

0. 34

Yee v. City of Escondido, 503 U.S. 519 (1992) ........ 43

Young v. Fordice, 117 S. Ct. 1228 (1997) ........ 15, 40, 41

Constitution, statutes, regulations and rule:

U.S. Const

Bn —— ů — 11, 14, 28, 29, 40

Amend. V (Due Process Clause . 23

„ . 37

Administrative Procedure Act, 5 U.S.C. 701

68 CBE. cerescecesnspressenstanansqussussucsemseunmrenuesanesstnasecesscecte 22

Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

Zee 19

Lee 18

oeh =- ( rr passim

§ 12(d), 42 U.S.C. Id) 17

BR 8 ee 17

§ 140B), 4B UBC. oo —7——ꝙ—§v—§——— 19

BD Wiis Ge cntanisbencstaninticimmciseenieiiniamnie 4

11.28 T 24

1114.2 — 9, 22

I .. K . 22

1114 — 22

11 44—„ . 10

1 . 22

Tex. Educ. Code Ann. (West 1996):

§§ 11.051-11.063 (& Supp. 1998) 3

— . —„V — 32

20. . K 7

VII

Statutes, regulations and rule Continued:

JJ rr

s ESSE SIE TRC Ene

DD .

r SR sche aiecentae Oe RR

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——c b —

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-29

STATE OF TEXAS, APPELLANT

UNITED STATES OF AMERICA

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The amended opinion and order of the three-

judge district court (J. S. App. 13a-23a, 24a-25a) are

unreported.

JURISDICTION

The initial judgment of the district court was

entered on March 5, 1997, and an amended judgment

was entered on March 17, 1997. A notice of appeal was

filed on April 23, 1997 (J.S. App. 26a-27a), and a sup-

plemental notice of appeal was filed on May 12, 1997

(J.S. App. 28a-29a). The jurisdictional statement was

filed on June 23, 1997. This Court noted probable

jurisdiction on September 29, 1997. The jurisdiction

of this Court rests on 42 U.S.C. 1973c.

(1)

STATEMENT

1. Section 5 of the Voting Rights Act of 1965 (Act),

42 U.S.C. 19736, provides that, whenever a jurisdic-

tion covered under the Act “shall enact or seek to

administer any voting qualification or prerequisite

to voting, or standard, practice, or procedure with

respect to voting different from that in force or

effect” on the date of coverage, the jurisdiction may

not enforce the new practice “unless and until” it

obtains a declaratory judgment from the United

States District Court for the District of Columbia

that the new practice “does not have the purpose and

will not have the effect of denying or abridging the

right to vote on account of race.” Alternatively, the

covered jurisdiction may enforce the new practice

without resort to the judicial declaratory-judgment

proceeding if it submits the new practice to the

Attorney General for review and receives no objection

to the practice from the Attorney General within 60

days thereafter, or if the Attorney General makes

clear that she does not object to the practice. Ibid.;

see generally Clark v. Roemer, 500 U.S. 646, 648-649

(1991). The process of seeking a declaratory judg-

ment from the United States District Court for the

District of Columbia is commonly referred to as

“judicial preclearance”; the submission of a change to

the Attorney General for review is commonly re-

ferred to as “administrative preclearance.” See ibid.

The Act does not require a covered jurisdiction to

submit a new enactment to the Attorney General for

preclearance; the provision for submission to the

Attorney General merely gives the covered [jurisdic-

tion] a rapid method of rendering a new state election

law enforceable.” Allen v. State Bd. of Elections, 393

U.S. 544, 549 (1969).

2. Texas is a covered jurisdiction under Section 5.

See 28 C.F.R. Pt. 51 App. Local school boards in

Texas are elected by the voters of the district. Tex.

Educ. Code Ann. §§ 11.051-11.063 (West 1996 & Supp.

1998); J.S. App. 89a. In 1993, the Texas legislature

enacted provisions designed to make local school

boards accountable to the State for their performance

and that of their students. See App. Br. 4. The legis-

lature authorized the State Commissioner of Educa-

tion (Commissioner), in certain circumstances, to as-

sume authority over local school districts by, among

other things, appointing a management team to over-

see the operations of a school system. J.A. 22-23.

Under the 1993 legislation, a management team ap-

pointed by the Commissioner was empowered to

“direct an action to be taken by the principal of a

campus, the superintendent of the district, or the

board of trustees of the district,” and to “approve or

disapprove any action” by a principal, superintendent,

or board of trustees. J.A. 23.

In 1995, the Commissioner appointed a management

team to oversee the operations of the Somerset Inde-

pendent School District. See J.A. 24; Casias v. Moses,

No. SA-95-CA-0221 (W. D. Tex. May 11, 1995) J. A. 20-

30), dismissed as moot (W.D. Tex. Jan. 16, 1996) (J.A.

42-49). The Commissioner gave that team “broad au-

thority,” including power to veto actions of the

elected Board. J.A. 27. Neither the Texas Education

Agency nor the Commissioner gave “any indication of

1 “App. Br.“ refers to the brief for appellant; “Amici Br.”

* to the brief for amici Washington Legal Foundation, et

al.

how long the management team [might] be in place.”

J. A. 25.

Texas did not submit either the 1993 legislation or

the 1995 appointment of the management team for the

Somerset school distriet to the Attorney General for

preclearance, having taken the position that neither

the enactment of the legislation nor its implementa-

tion was a change affecting voting that would require

preclearance. J. A. 22. Nor, for the same reason, did

Texas seek judicial preclearance in the United States

District Court for the District of Columbia. Private

plaintiffs and the United States brought suit under

Section 5 in a local three-judge district court for the

Western District of Texas to enjoin the appointment

of the management team to oversee the operations

of the Somerset school district, contending that the

appointment was covered by Section 5 but had not

been judicially or administratively precleared in con-

formity with the Act.

On May 11, 1995, the district court in Texas en-

tered a preliminary injunction against the imple-

mentation of the state officials’ plan for a manage-

ment team to oversee the operations of the Somerset

school district. See J.A. 20-30. In explaining that the

plaintiffs were likely to succeed on the merits, the

court stressed that the 1993 legislation permitted the

State to “appoint a management team that can

completely usurp the function of the Somerset J. S. D.

Board of Trustees.” J.A. 27. Noting that this Court

had already concluded that “the replacement of an

elected office with an appointed one is a change sub-

ject to preclearance under § 5,” ibid. (citing Allen,

393 U.S. at 569-570), the district court reasoned that

the appointment of a management team to oversee the

operations of a local school district may well “rise to

the level of a de facto replacement of an elective office

with an appointive one” and thus require preclearance

under Section 5, see J.A. 27-28 (quoting Presley v.

Etowah County Comm’n, 502 U.S. 491, 508 (1992)).

3. Shortly thereafter, the Texas legislature re-

pealed the 1993 authorizing statute, and enacted in

its stead the authorizing provisions that are now at

issue in this ease. (The Casias litigation was then

dismissed as moot, J.A. 42-49.) The newly enacted

Chapter 39 of the Texas Education Code gives the

Commissioner authority to impose a variety of sanc-

tions, in increasing order of severity, on local school

districts. See Tex. Educ. Code Ann. § 39.131(a) (West

1996); J.S. App. 90a-91a.

The first six sanctions made available to the Com-

missioner include mild interventions such as order-

ing preparation of a student achievement improve-

ment plan (§ 39.131(a)(3)) and arranging an on-site

investigation of the school district (§ 39.131(a)(5)).

Those provisions do not fundamentally affect the

authority of the elected school board and therefore

clearly do not affect “voting” within the meaning of

the Voting Rights Act. Two provisions of Chapter 39,

by contrast, do affect voting (and appellant does not

contend otherwise). The first of those, § 39.131(a)(9),

authorizes the Commissioner to “appoint a board of

managers * * * to exercise the powers and duties

of the board of trustees” of a school district. The

second, § 39.131(a)(10), provides that the Commis-

sioner may annex the school district to one or more

adjoining districts or ask the State Board of Educa-

tion to revoke a school district’s home-rule charter.

See J.S. App. 91a.

Chapter 39 makes two further kinds of sanctions

available to the Commissioner; the potential effects of

those sanctions are central to the dispute in this case.

Section 39.131(a)(7) permits the Commissioner to ap-

point a master to “oversee” the operations of a school

district. Section 39.131(a)(8) authorizes the Commis-

sioner to appoint a management team to “direct” the

operations in areas of unacceptable performance. See

J. S. App. 90a-91a.

When the Commissioner assumes authority under

subsections (7) and (8), he must “clearly define the

powers and duties of a master or management team”

appointed pursuant to these provisions. § 39.131(e).

As was the case under the 1993 legislation, Chapter

39 states that a master or management team may

“direct an action to be taken” by a principal, super-

intendent, or board of trustees (§ 39.131(e)(1)), and

may “approve or disapprove any action” by those

officials (S 39.131(e)(2)). Thus, a master or manage-

ment team could, at least if so authorized by the

Commissioner, annul policies of the elected school

board in areas such as curriculum and personnel. The

Commissioner may not, however, give the master or

management team the power to take any action

concerning a district election, to change the number

of members or method of selecting the board, to set a

tax rate, or to adopt a budget different from the one

previously adopted by the elected board. § 39.131(e)(4)-

(6); see J.S. App. 9la-92a.

The Commissioner must review the need for the

master or management team at least every 90 days,

and must remove the master or management team

“unless [he] determines that continued appointment

is necessary for effective governance of the district

or delivery of instructional services.” § 39.131(e).

Should the Commissioner conclude that such a

continued appointment is necessary, however, no

maximum time limit is imposed on the tenure of a

master or management team.

The design of Chapter 39, and the policy of the state

agency implementing it, are that more limited inter-

ventions shall be attempted before the appointment of

a master or management team is considered. See App.

Br. 9 (State] policy requires first the imposition of

sanctions that do not include the appointment of a

master or management team.”). In fact, “most inter-

ventions begin and end” with sanctions that do not in-

volve the assumption of direct authority over a school

district by the Commissioner, through a master or

management team. /d. at 9-10.

4. Although the State initially maintained that

none of the sanctions available under Section 39.131,

except Section 39.131(a)(10), affects voting within the

meaning of Section 5, the State submitted all of Chap-

ter 39 to the Attorney General for preclearance on

June 12, 1995. J.S. App. 30a-34a. On August 14, 1995,

the Assistant Attorney General’ requested further

information with respect to the roles of various state

bodies in “the decision to investigate and/or replace

an elected or consolidated school board with an ap-

pointed master, team, board, etc.” J.A. 39. While

taking issue with the Assistant Attorney General’s

“characterization of sanctions under section 39.131 as

a ‘replacement’ of an elected school board” (J.S. App.

96a), and emphasizing limits that Chapter 39 places on

the authority of masters and management teams (id.

at 99a), the State explained that the actual author-

ity granting a specific master or team * * * is set by

2 The authority for determinations under Section 5 has

been delegated to the Assistant Attorney General for the Civil

Rights Division. 28 C.F.R. 51.3.

the Commissioner at the time of appointment depend-

ing on the needs of the district” (ibid.).

5. On December 11, 1995, the Assistant Attorney

General concluded that sanctions under Section

39.131(a)(1)-(6) do not affect voting and therefore do

not require preclearance. J.S. App. 36a. He also

precleared Section 39.131(a)(7)-(10) insofar as those

provisions were “enabling in nature.” Jbid. The

Assistant Attorney General cautioned, however, that,

with regard to those provisions, “under certain fore-

seeable circumstances their implementation may re-

sult in a violation of Section 5.“ Jbid. In particular,

he noted:

[Ijnsofar as [Chapter 39] authorizes the Texas

Education Agency to do the following: appoint a

master, management team, or board of managers

that will exercise a school board’s powers; annex

one school district to another; and revoke the

charter of a home-rule school district, it clearly

contains voting changes. In particular, [Chapter

39] retains the exact language [that the district

court] in Casias v. Moses * * * found “could

result in the replacement of the elected Board

with the appointed management team.”

Id. at 36a-37a (citations omitted).

3 Under the Attorney General’s procedures for preclear-

ance submissions under Section 5, when legislation enables a

State to institute a voting change in the future, “the failure of

the Attorney General to interpose an objection does not exempt

from the preclearance requirement the implementation of the

particular voting change that is enabled * * * unless that

implementation is explicitly included and described in the sub-

mission of such parent legislation.” 28 C.F.R. 51.15(a).

The Assistant Attorney General acknowledged that

the 90-day reevaluation requirement and the restric-

tions on powers over elections, taxes, and budgets had

narrowed the scope of the mandate that the Commis-

sioner could give any master or management team.

J.S. App. 37a. He concluded nonetheless that the re-

maining powers made available to a master or man-

agement team under Chapter 39 “still potentially

allow] for the ‘take-over’ of a school board such that

the board cannot perform the functions that are

its ‘reason for being.“ Ibid. (citation omitted). He

therefore stated that preclearance would be required

if the State actually sought to administer “any voting

change made pursuant to Chapter 39—including but

not limited to the replacement, de facto or otherwise,

of an elected school board by an appointed master,

management team, or board of managers, the annexa-

tion of one school district to another, and the revoca-

tion of a home-rule school district’s charter.” Id. at

37a-38a.

6. On June 7, 1996, appellant filed a complaint in

the United States District Court for the District of

Columbia, seeking a declaration that Section 5 does

not apply to the sanctions authorized by Section

39.131(a)(7) and (8), because those sanctions are not

changes with respect to voting. J.A. 13-14. In addi-

tion, appellant contended, the sanction provisions in

question do not require preclearance because they

are consistent with conditions attached to grants of

federal financial assistance to education authorities,

which authorize and require the imposition of sanc-

tions to ensure the accountability of local education

authorities. J.A. 13. Appellant alleged that the dis-

trict court had jurisdiction under Section 5 and under

the general federal-question statute, 28 U.S.C. 1331.

J.A. 6. Appellant requested that a three-judge court

be convened pursuant to 28 U.S.C. 2284 and 42 U.S.C.

1973c. J. A. 7. In its answer, the United States did not

contest the allegation that jurisdiction in the district

court was based on Section 5, nor did it object to the

convening of a three-judge court to hear and decide

the matter. See J.A. 15.

The district court convened a three-judge panel.

Appellant moved for summary judgment; the United

States opposed that motion. The United States also

moved to dismiss the case as unripe and, in the

alternative, moved for judgment on the pleadings on

the basis that, absent more significant limitations

upon the authority of masters and management

teams, the disputed provisions constitute voting

changes subject to the requirement of preclearance

under Section 5.

7. The district court granted the United States’

motion to dismiss on ripeness grounds. J.S. App. 13a-

23a. The court initially observed that this action

“does not fit neatly into the statutory framework of

section 5,” for it “does not fall clearly” into any cate-

gory of suit contemplated by Section 5. Id. at 16a.

The court noted that this is not a suit by a covered

jurisdiction for preclearance of the pertinent legisla-

tion, an injunctive action brought by voters to block

implementation of an unprecleared change, or an

enforcement action against unprecleared changes

brought by the United States. Ibid. Rather, appel-

lant “seeks a blanket determination that any action

pursuant to the Commissioner’s new authority under

Chapter 39 would not be a change covered by section

5.“ Id. at 16a-17a. “The statutory basis for jurisdic-

tion over such an action is unclear,” stated the court,

and “{e]ven if a statutory basis for jurisdiction exists,

however, it is unclear whether such an action would

involve a ‘case or controversy’ sufficient to satisfy

the requirement of Article III of the Constitution.”

Id. at 17a.

The court did not find it necessary to resolve those

doubts about its statutory and constitutional jurisdic-

tion, for it concluded that this suit was unripe for

adjudication, in both the constitutional and the pru-

dential sense. With respect to the Article III com-

ponent of 1 the court held that Article III’s

requirement of an imminent injury to the in-

voking the jurisdiction of the federal bs A pe not

satisfied by appellant’s contention that it had an

interest in preventing the diminution of the quality of

education available to Texas schoolchildren, and in

moving promptly and efficiently to safeguard that

education. J.S. App. 17a-18a. The court declined to

assume that, if the State ever found it necessary to

appoint a master or management team, the Attorney

General and the courts would not handle preclearance

requests expeditiously. Any assumptions to the con-

trary “are, simply, too speculative to sustain a claim.”

Id. at 18a.

With respect to the prudential aspects of the

ripeness doctrine, the court concluded that the issues

presented were not ripe for judicial resolution under

the two-prong analytical framework set forth in

Abbott Laboratories v. Gardner, 387 U.S. 136, 149

(1967). First, the court held, this case does not pre-

sent a “purely legal question[]” that would be pre-

sumptively suitable for judicial review.” J.S. App. 18a.

Because the sanctions available to the Commissioner

“are broad, discretionary, and will be delegated so as

to respond to a host of different precipitating circum-

stances|,] * * * the actual contours of each appoint-

ment order will be determinative of whether an

elected board is displaced or its powers in any way

diminished.” Id. at 19a (internal quotation marks and

brackets omitted). “The broad discretion accorded

the Commissioner under the statute demonstrates

the necessity of examining the full factual context in

which she is acting before deciding whether an action

can be precleared. Put simply, that discretion makes

the statute one that cannot be analyzed uniformly in

Section 5 terms.” Ibid.*

The district court held further that withholding ju-

dicial decision at this stage would not “cause undue

hardship” to appellant. J.S. App. 21a. Whereas appel-

lant alleged that requiring preclearance each time

the Commissioner places a management team or mas-

ter in a school district would prevent it from moving

promptly to protect education, the court found that

allegation to be “so vague that it really amounts only

to a complaint that this issue remains unresolved.”

Ibid. (internal quotation marks omitted). The court

was “unwilling to assume that administrative or

judicial preclearance will prove so unwieldy as to

deny Texas a meaningful opportunity to expeditiously

4 The court distinguished Teras v. United States, 866 F.

Supp. 20 (D.D.C. 1994), in which a three-judge district court

held that legislation abolishing an elected water district and

creating a new appointed body in its stead required preclear-

ance, even though the new appointed authority was not yet

functional. In that case, the court concluded that any imple-

mentation of the statute would affect voting, and therefore the

statute required preclearance regardless of the precise details

of its implementation. “The statute at issue in this case, by

contrast, gives such wide discretion and flexibility to the

Commissioner that, absent an actual appointment, there is no

way to determine whether an elected school board will be

replaced or its powers diminished.” J.S. App. 20a.

implement its statutory scheme.” Jbid. It also ob-

served that, in Section 5, Congr sss itself had “struck

the balance in favor of preclearance to protect voting

interest[s] over school district changes to improve

the education process.” Ibid.

SUMMARY OF ARGUMENT

I. The district court lacked statutory subject-

matter jurisdiction over this case. The Voting

Rights Act of 1965 sets forth specific avenues for

a judicial determination whether a change in state

law is a change with respect to voting that requires

preclearance. This case, however, does not fall within

any of the categories of suits that are within the

Act’s design. In particular, this case is not a judicial

preclearance action brought by a covered jurisdic-

tion for a determination at a change does not have

a discriminatory purpose or retrogressive effect.

Rather, appellant has brought its declaratory judg-

ment action solely for a determination that its pro-

posed, possible changes would not be changes with

respect to voting. In effect, appellant has sought a

declaratory judgment to the effect that it does not

need to seek a declaratory judgment under Section 5

for preclearance of its changes. That kind of suit does

not fall within the jurisdiction granted to the United

States District Court for the District of Columbia for

actions under Section 5. The district court might,

in a properly presented action for judicial preclear-

ance of Section 39.131(a)(7) and (8), decide that those

provisions are not covered by Section 5, but it would

not be required to decide the case on that basis; and

because appellant has not brought and could not bring

an action for judicial preclearance of a hypothetical

future implementation of those provisions, there is no

basis in Section 5 for a judicial determination that

such a future implementation would not affect voting.

II. The district court correctly dismissed this

case as unripe. The case fails to meet the core Arti-

cle III requirement of a ripe controversy because

appellant has not pointed to any definite plan now

or in the immediate future to appoint a master or

management team for any particular school district

in Texas. Especially because appellant’s policy is to

use less intrusive sanctions before more intrusive

ones (such as the appointment of a master or manage-

ment team), it remains entirely speculative whether

appellant will ever find it necessary to deploy those

more intrusive measures. The courts may never be

called upon to decide whether the Commissioner of

Education’s appointment of a master or management

team would be a de facto replacement of an elected

school board requiring preclearance under Section 5.

Prudential considerations also militate against

judicial decision of the coverage issue at this time.

The powers that may be vested in a master or

management team are subject to the Commissioner's

broad discretion, and may vary widely from case to

case. The answer to the question whether such an

appointment would amount to a de facto replacement

will turn on the precise nature of the powers granted

to an appointed official and concomitantly removed

from an elected board. Therefore, the question of

coverage is not one that the district court can resolve

as a pure issue of law, but rather requires a concrete

factual context for an informed decision. Nor would

appellant suffer undue hardship if judicial resolution

of the question of coverage were postponed until such

a concrete context arises. Should the Commissioner

seek to appoint a master or management team, the

State can request expedited consideration from the

Attorney General or from the district court.

Federal education statutes relied on by appellant

provide no basis for overturning the district court’s

ripeness decision. Notwithstanding those statutes,

appellant still does not have a present, actual plan to

impose sanctions on a local school district, and post-

poning consideration of the legal issue would not

cause it hardship; therefore, it has no ripe claim.

Moreover, appellant’s contention on the merits that

those statutes exempt it from coverage under Section

2 by Young v. Fordice, 117 S. Ct. 1228

III. Should the Court conclude that a justiciable

controversy is present in this case, it should remand

the case to the district court for further proceedings

on the question of coverage under Section 5, rather

than address that issue in the first instance. Appel-

lant did not present the question of coverage in its

jurisdictional statement, the district court made no

findings of fact or conclusions of law on that issue,

and discovery may be necessary for a proper presenta-

tion of the question to the district court.

ARGUMENT

I. THE DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA LACKS STATUTORY JURIS-

DICTION OVER A DECLARATORY JUDGMENT

ACTION BROUGHT BY A COVERED

JURISDICTION SOLELY FOR A DECLARA-

TION THAT A SUBMITTED CHANGE DOES

NOT AFFECT VOTING

1. The gravamen of appellant’s complaint in its

declaratory judgment action is that the potential

future appointment of a master or management team

by the Texas Commissioner of Education for a local

school district would not be a new “voting qualifica-

tion or prerequisite to voting, or standard, practice,

or procedure with respect to voting,” for which

preclearance would be required by Section 5 of the

Voting Rights Act of 1965, 42 U.S.C. 19736. The Act

sets forth four mechanisms by which a determination

can be made that a particular covered jurisdiction’s

action is or is not a change with respect to voting.

First, under Section 5, the jurisdiction may submit

the proposed change to the Attorney General for

preclearance. The Attorney General may conclude

that the proposed change does not affect voting, and if

the Attorney General makes no objection to the pro-

posed change within 60 days or indicates within that

time that no objection will be made, then further

litigation on coverage is precluded and the change

may be freely implemented. See Morris v. Gressette,

432 U.S. 491, 502-505 (1977).

Second, if and when a covered jurisdiction intends

to implement a change, it may request a declaratory

judgment from a three-judge district court in the

District of Columbia that “such qualification, pre-

requisite, standard, practice, or procedure 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.” 42 U.S.C. 19736. In deciding such

an action, the district court has authority to decide

whether a proposed change affects voting. See Texas

v. United States, 866 F. Supp. 20 (D.D.C. 1994) (three-

judge court); see also City of Lockhart v. United

States, 460 U.S. 125, 131-132 (1983) (deciding whether

new practice was a change from previous practice and

thus covered by Section 5). If the change does not

affect voting, then it is not a “practice” or “proce-

dure” that could denyl] or abridgle] the right to

vote” within the meaning of Section 5.

Third, a covered jurisdiction that believes that a

change does not affect voting may simply implement

it. If the Attorney General believes that the change

does affect voting and should have been precleared

under Section 5, the Act expressly provides that she

may institute an enforcement action in a local three-

judge district court to enjoin its implementation until

preclearance is completed. See 42 U.S.C. 1973j(d) and

(D.“ In such an enforcement action, the district court

has authority to decide whether or not the imple-

mented change affects voting and therefore requires

preclearance (and this Court on appeal has the same

authority). See Georgia v. United States, 411 U.S.

526, 531-535 (1973). If the courts conclude that the

Section 12(d) of the Act, 42 U.S.C. 1973j(d), provides:

“Whenever any person has engaged or there are reasonable

grounds to believe that any person is about to engage in any act

or practice prohibited by [Section 5] * * the Attorney

General may institute for the United States * * * an action

for preventive relief.” Section 12(f) provides that the district

courts have jurisdiction over such actions. 42 U.S.C. 1973j(f).

change does not affect voting, then preclearance is

not required, and the Attorney General’s enforcement

action should be dismissed.

Private plaintiffs may also pursue a similar, fourth

avenue of review that is available under Section 5 by

necessary implication. Once a covered jurisdiction

implements a proposed change, private plaintiffs may

also sue for injunctive relief in a local three-judge

district court if they believe that the change required

preclearance. See Allen v. State Bd. of Elections, 393

U.S. 544, 554-557 (1969). In such a private action, the

district court (and this Court on direct appeal) may

decide whether or not the change affects voting and

requires preclearance. See, e.g., Presley v. Etowah

County Comm’n, 502 U.S. 491 (1992); Perkins v.

Matthews, 400 U.S. 379, 387-395 (1971); Allen, 393

U.S. at 563-571.

2. The Voting Rights Act therefore provides spe-

cific and carefully focused mechanisms for resolution

of the question of coverage. But as the court below

noted (J.S. App. 16a), this case “does not fit neatly into

the statutory framework” of the Act and “does not fall

clearly into any of the[] three categories” of lawsuits

contemplated by the Act. In particular, appellant’s

declaratory judgment action is not a preclearance

action that falls within the jurisdiction of the district

court for the District of Columbia expressly estab-

lished by Section 5.° Nor is there in Section 5 a

6 It is appropriate to view Section 5’s limited grant of

authority to the District of Columbia district court to hear

preclearance actions as jurisdictional. When this Court upheld

the related and similar grant of authority to the District of

Columbia district court in Section 4(a) of the Act, 42 U.S.C.

1973b(a), to hear and decide declaratory judgment actions

brought by covered jurisdictions to terminate the suspension of

waiver of the United States’ sovereign immunity for

the kind of action brought by appellant in this case.

The central authority of the District of Columbia

district court in judicial preclearance actions is to

determine whether a proposed change is retrogres-

sive or is motivated by a discriminatory purpose. See

Reno v. Bossier Parish School Bd., 117 S. Ct. 1491,

1497-1501 (1997); Beer v. United States, 425 U.S. 130,

140-141 (1976). Appellant, however, has not sought a

voting tests and devices, it stated that “Congress might appro-

priately limit litigation under this provision to a single court in

the District of Columbia, pursuant to its constitutional power

under Art. III, § 1, to ‘ordain and establish’ inferior federal

tribunals.” South Carolina v. Katzenbach, 383 U.S. 301, 331

(1966). The exclusive jurisdiction of the District of Columbia

district court to hear declaratory judgment actions under both

Sections 4 and 5 is based on the same provision in Section 14(b),

42 U.S.C. 1973) (“No court other than the District Court for

the District of Columbia * * * shall have jurisdiction to issue

any declaratory judgment pursuant to [Section 4 or 5].”). The

Court has also stated that “only the District Court for the

District of Columbia has jurisdiction to consider the issue of

whether a proposed change actually discriminates on account

of race,” in holding that other district courts may not decide

substantive issues arising under Section 5, but may decide only

whether a change is covered by Section 5 and was precleared.

United States v. Board of Supervisors of Warren County, 429

U.S. 642, 646 (1977) (per curiam).

As we noted above (p. 10, supra), the United States did not,

in the district court, contest that the court had jurisdiction

under Section 5 (although we did argue that the case was not

ripe). Nevertheless, because subject-matter jurisdiction may

not be conferred on a federal court by consent, and because

appellant raised the issue of the district court’s statutory juris-

diction as a question presented in its jurisdictional statement

(see J.S. i), this Court may at this stage decide whether the

district court had statutory subject-matter jurisdiction over

this case.

determination from the district court that its pro-

posed change is neither retrogressive nor invidiously

motivated. Rather, it has sought a “blanket deter-

mination that any action pursuant to the Commis-

sioner’s new authority under Chapter 39 would not be

a change covered by section 5.” J.S. App. 16a-17a.

It is true that, when the District of Columbia

district court hears a traditional judicial preclear-

ance action in which a ripe controversy is presented,

that court may decide the case in favor of the covered

jurisdiction if it concludes that preclearance is not

required at all because the proposed change does not

affect voting. See pp. 16-17, supra. To hold otherwise

would be to impose a pointless requirement on a

covered jurisdiction. Because “changes subject to § 5

pertain only to voting,” Presley, 502 U.S. at 502, the

district court, when hearing a preclearance action,

would not be justified in denying relief to the covered

jurisdiction from the strictures of Section 5 simply

because Section 5 was not applicable at all. In that

situation, however, the district court has statutory

authority under Section 5 to hear and decide the case.

The fact that the district court may grant relief on

that basis when it does have jurisdiction over a

preclearance action does not imply that it also has

jurisdiction to decide declaratory judgment actions

brought to raise only the question of coverage, and

when no question of preclearance is presented.

Moreover, although a covered jurisdiction might

bring a preclearance action in the District of Colum-

bia district court and request relief on the alternative

basis that legislation or its implementation is not

covered by Section 5, the district court would not be

obligated to rule on that basis; it might rule in favor

of the covered jurisdiction on the ground that the

legislation does not have discriminatory purpose and

will not have a retrogressive effect. In such a case,

the covered jurisdiction would be a prevailing party in

the district court and could not appeal to this Court

from the declaratory judgment in its favor merely on

the ground that it would have preferred that the lower

court rule in its favor on another rationale with

broader implications for hypothetical future conduct.

See Gunn v. University Comm. to End the War in

Viet Nam, 399 U.S. 383, 390 n.5 (1970); Public Serv.

Comm’n v. Brashear Freight Lines, Inc., 306 U.S.

204, 206-207 (1939) (per curiam).

Thus, instead of submitting Section 39.131(a)(7) and

(8) to the Attorney General for administrative pre-

clearance (or if the Attorney General had denied

preclearance), appellant could have brought a judicial

preclearance action under Section 5, asking the dis-

trict court to preclear those provisions and arguing,

inter alia, that they are not voting changes. The

district court, however, might have precleared those

provisions on narrower grounds as enabling legisla-

tion that does not itself have a prohibited purpose or

effect, just as the Attorney General precleared them

as enabling legislation (see p. 8, supra). Appellant,

moreover, could not have asked the district court

to preclear any hypothetical actual implementation

of Section 39.131(a)(7) or (8) under Section 5, because

the State does not yet “seek to administer” those

provisions (and indeed appellant did not request

preclearance of their implementation under Section

5). It follows that, because appellant could not yet

obtain substantive judicial preclearance of any actual

implementation of a particular sanction under Section

39.131(a)(7) or (8), there is no statutory basis under

Section 5 for the District of Columbia district court

to entertain a suit merely to provide appellant with a

ruling that such an implementation would not be a

voting change covered by Section 5.

Nor can the district court’s authority to decide this

case be predicated on another express statutory

source of federal jurisdiction, such as 28 U.S.C. 1331,

the general federal-question statute, or 28 U.S.C

1343(a)(4), providing for jurisdiction to grant equita-

ble relief “under any Act of Congress providing for

the protection of civil rights, including the right to

vote.” To proceed against the United States under

either statute, appellant would also have to point to

some applicable express waiver of sovereign im-

munity, such as the Administrative Procedure Act

(APA), 5 U.S.C. 701 et seg. This Court has already

heid, however, that the Attorney General's preclear-

ance decisions are not subject to judicial review under

the APA, Morris v. Gressette, 432 U.S. at 506, and in

any event appellant has never suggested that this

case was brought as an APA action.

7 Appellant’s complaint alleged jurisdiction under Section

1331, but not Section 1343, and did not refer to the APA at all.

J.A. 6. In its jurisdictional statement, appellant presented only

the question of jurisdiction under Section 5. J.S. i. In its brief

on the merits, appellant has not addressed the question of

statutory jurisdiction at all.

In addition, Section 1343 limits federal jurisdiction to civil

rights actions brought by “any person.” It is doubtful that a

political entity, such as appellant, is a “person” within the

meaning of Section 1343. See United States v. City of Jackson,

318 F.2d 1, 8 (United States not a “person” under Section

1343), on denial of reh’g, 320 F.2d 870 (5th Cir. 1963); Buda v.

Saxbe, 406 F. Supp. 399, 403 (E.D. Tenn. 1975) (State not a

“person” under Section 1343). Section 1343 and its substantive

counterpart, 42 U.S.C. 1983, were enacted to allow the

enforcement by “private parties” of their civil rights against

Finally, there is nothing in the structure or

purpose of the Voting Rights Act to indicate that

Congress implied authority for the District of Co-

lumbia district court to decide actions of this na-

ture against the United States. This Court has found

that Congress implied for private plaintiffs an avenue

of relief from voting changes that have not been

precleared in conformity with Section 5. Allen, 393

U.S. at 554-557. That situation, however, did not

involve the need for any waiver of sovereign immunity

by the United States, since the implied cause of

action did not run against the United States. See id.

at 558-559. A waiver of the federal government’s sov-

ereign immunity, by contrast, must be unequivocally

expressed in the statutory text, and must extend

unambiguously to the specific kind of claim that is

pressed against the United States. See Lane v. Pevia,

116 S. Ct. 2092, 2096-2097 (1996). There is no express

provision in the Act permitting covered jurisdictions

to sue the United States solely for a declaration that

a proposed change is not covered by the Act.

Furthermore, the considerations that persuaded

the Court in Allen to find an implied avenue of relief

for private plaintiffs against covered jurisdictions are

not applicable here. The Court in Allen concluded

that Congress would not have wanted private persons

to be completely dependent on the Attorney General's

limited resources for protection from unprecleared

changes, and that “(t]he guarantee of § 5 that no

governmental actors, see Moor v. County of Alameda, 411 U.S.

693, 699 (1973), but political entities such as appellant have no

such civil rights against the United States. See South Carolina

v. Katzenbach, 383 U.S. at 323-324 (“person[s]” protected by

the Due Process Clause of the Fifth Amendment do not include

States).

person shall be denied the right to vote for failure to

comply with an unapproved new enactment subject to

§ 5, might well prove an empty promise unless the

private citizen were allowed to seek judicial enforce-

ment of the prohibition.” 393 U.S. at 557. By con-

trast, a covered jurisdiction that desires to implement

a proposed change has effective remedies; it may

submit the change to the Attorney General for

review, it may bring a traditional judicial preclear-

ance action, or it may simply implement the change

and raise as a defense to any enforcement action the

argument that the change is not covered by Section 5.

Accordingly, the district court lacked statutory

jurisdiction under the Voting Rights Act to decide

this case.”

Although the district court lacked jurisdiction over this

action, this Court has appellate jurisdiction over the State’s

appeal from the district court’s judgment of dismissal. Section

5 provides that “any appeal” from a decision of a three-judge

district court convened to decide a case under Section 5 shall

lie to the Supreme Court. 42 U.S.C. 19736. This Court has

held that the words “any appeal” in Section 5 are to be given a

broad construction. See NAACP v. New York, 413 U.S. 345,

353 (1973). Thus, even if the three-judge court was not prop-

erly convened in this case (because it lacked subject-matter

jurisdiction over appellant's complaint), this Court has statu-

tory authority to hear and decide the State’s direct appeal

from that court’s judgment of dismissal on ripeness grounds.

That point contrasts with the Court’s much more limited

appellate jurisdiction under 28 U.S.C. 1253; under that

provision, this Court may hear and decide appeals only from

orders of district courts granting or denying an injunction “in

any civil action, suit or proceeding required by any Act of

Congress to be heard and determined by a district court of

three judges” (emphasis added). Cf. Gonzalez v. Automatic

Employees Credit Union, 419 U.S. 90, 101 (1974) (concluding

that Court lacked jurisdiction to hear direct appeal from three-

II. THE DISTRICT COURT CORRECTLY HELD

THAT THE QUESTION OF THE APPLICABIL-

ITY OF SECTION 5 TO POTENTIAL FUTURE

IMPLEMENTATIONS OF SECTION 39.131(a)

(7) OR (8) IS NOT RIPE FOR JUDICIAL

REVIEW

Even if the district court had statutory subject-

matter jurisdiction under Section 5, it nonetheless

correctly dismissed this case. In the absence of

any definitive plan by state authorities to appoint a

master or management team to any particular local

school district now or in the future, the district court

correctly ruled that the question of the applicability

of Section 5 to the State Education Commissioner's

potential invocation of such sanctions is not ripe for

judicial review.

A. The State’s Request For A Declaratory -

ment Does Not Satisfy The — =

quirement Of A Ripe Controversy

1. Chapter 39 of the Texas Education Code empow-

ers the Texas Commissioner of Education to impose a

number of sanctions on school districts, in ascending

order of severity and intrusiveness. The Commis-

sioner may, for example, issue a public notice of a

school district’s deficiency, order the preparation of a

student achievement plan by a school district, appoint

an agency monitor to “participate in” the activities of

a school board, appoint (as pertinent here) a master to

“oversee” the operations of a district or a manage-

ment team to “direct” the operations of a district, or

judge court’s order dismissing case for lack of standing, and

remanding for entry of fresh order to be appealed to court of

appeals).

appoint a board of managers to “exercise the powers”

of the school board. See Tex. Educ. Code Ann.

§ 39.131(a) (West 1996). The available powers afford

the Commissioner wide discretion in choosing a

sanction appropriate to the degree of deficiency in any

particular school board, and it is not contested that

the Commissioner has authority to use a less intru-

sive sanction (such as appointing a monitor) before

deploying a more drastic one involving the removal of

authority from a local school board (such as appoint-

ing a master or management team). Indeed, appellant

acknowledges (Br. 9) that the policy of the state

education agency is to use the less intrusive inter-

ventions, such that the more intrusive ones may

never become necessary. In the event that a school

district’s deficiencies justify intervention under

Chapter 39, the exercise of less intrusive powers by

the Commissioner may resolve the problems. It is

therefore not certain that the Commissioner will ever

find it necessary to appoint a master or management

team under Chapter 39 for any school district, and

appellant has not pointed to any specific situation in

which even the potential application of Section

39.131(a)(7) or (8) is currently foreseen.

Because the State may never find it necessary to

appoint a master to oversee the operations of a school

board or to appoint a management team to direct those

operations, the State’s request for a declaratory

ruling that such an appointment would not implicate

Section 5 is not ripe for review, in the constitutional

sense. This case is similar to Renne v. Geary, 501

U.S. 312 (1991), where the Court ruled that a ripe

controversy was not presented by political parties’

constitutional challenge to a state statute prohibiting

political party endorsements of candidates for nonpar-

tisan offices. As was the case in Renne, where the

Court “discern[ed] no ripe controversy in the allega-

tions that [the political parties] desire to endorse

candidates in future elections” because the parties

had not “allege{d] an intention to endorse any partic-

uar candidate,” id. at 321, here appellant has not

alleged any intention to impose the relevant sanctions

in any particular case. And as in Renne, where the

Court stressed its uncertainty about “the nature of

the endorsement, how it would be publicized, or the

precise language [the State] might delete from the

voter pamphlet,” id. at 322, here it remains entirely

uncertain what powers the Commissioner might vest

in a master or management team, and concomitantly

what powers might be removed from an elected school

board.

In effect, appellant has asked for an advisory opin-

ion that, if the Commissioner decided at some point to

appoint a master or management team, that appoint-

ment would not require preclearance under Section 5.

Cf. International Longshoremen’s & Warehouse-

men’s Union v. Boyd, 347 U.S. 222, 224 (1954) (“That

is not a lawsuit to enforce a right; it is an endeavor to

obtain a court’s assurance that a statute does not

govern hypothetical situations that may or may not

make the challenged statute applicable.”). But appel-

lant has given no indication that the Commissioner

intends imminently to appoint a master or manage-

ment team to any particular school district. There is

“no factual record of an actual or imminent appli-

cation of [state sanctions] sufficient to present the

[Section 5] issues in clean-cut and concrete form.”

Renne, 501 U.S. at 321-322 (internal quotation marks

omitted); cf. United Public Workers v. Mitchell, 330

U.S. 75, 90 (1947) (justiciable controversy is pres-

ent only when “definite rights appear upon the one

side and definite prejudicial interferences upon the

other”).

Furthermore, the powers that may be conferred

on masters and management teams under Section

39.131(a)(7) and (8) are subject to the Commissioner’s

broad discretion. Those provisions allow appointment

of a master to “oversee” the operations of a school

district or a management team to “direct” such op-

erations. While such appointments may result in a

change affecting voting if broad powers are conferred

by the Commissioner, an appointment may also nar-

rowly circumscribe the powers granted to the ap-

pointed officials. Thus, postponing consideration of

the Section 5 issue “also has the advantage of permit-

ting the state [authorities] further opportunity to

construe” the pertinent provisions of Chapter 39 and

giving greater clarity to the federal question of the

application of Section 5 that would be presented by

appointment of a master or management team. Cf.

Renne, 501 U.S. at 323.

Appellant suggests (Br. 18-20) that the Article III

requirement of ripeness is precisely equivalent to

that of standing, and that a justiciable controversy

is presented because it has standing under Lujan

v. Defenders of Wildlife, 504 U.S. 599 (1992), and

Northeastern Florida Chapter of Associated General

Contractors v. City of Jacksonville, 508 U.S. 656

(1993). Appellant’s premise that it currently has

Article III standing is dubious, in light of the hypo-

thetical and contingent nature of its present claim.

In any event, “[jjusticiability concerns not only the

standing of litigants to assert particular claims, but

also the appropriate timing of judicial intervention.

Renne, 501 U.S. at 320. “That a proper party is be-

fore the court is no answer to the objection that he is

there prematurely.” Communist Party of the United

States v. Subversive Activities Control Bd., 367 U.S.

1, 79 (1961). The justiciability issue in this case is not

whether appellant is a proper party to bring a suit

under Section 5; Section 5 itself specifically accords a

covered jurisdiction standing to seek preclearance as

the entity that has enacted (and may seek to admin-

ister) a change. It does not follow, however, that a

ripe controversy is present before the State seeks to

administer a particular change, such as the imposi-

tion of sanctions on an elected school board.

Appellant claims to suffer injury ripe for adjudi-

cation because, if it wishes to invoke one of the

sanctions authorized by Section 39.131(a)(7) or (8) at

some point in the future, it might then suffer from

“inability to move promptly and efficiently to safe-

guard the education of its children” and therefore

might then suffer an “unwarranted” federal interfer-

ence into “routine matters” of governance (App. Br.

19, quoting Presley, 502 U.S. at 507). But appellant

may never actually invoke the powers authorized by

Section 39.131(a)(7) and (8); and even if in the future it

does invoke those powers and seek to have the specific

implementation precleared, there is no basis for pre-

suming that undue delay will occur. And even if there

were such a basis, that would not authorize a federal

court to render an advisory opinion about an array of

hypothetical potential future events. As the district

court pointed out, Article III ripeness is not satisfied

when a “case involves uncertain or contingent future

events that may not occur as anticipated, or indeed

may not occur at all.“ J. S. App. 6a; see Richardson v.

City & County of Honolulu, 124 F.3d 1150, 1160 (9th

Cir. 1997) (challenge to constitutionality of Hawaii

condemnation statute unripe as long as many

conditions precedent to condemnation may never be

fulfilled). “A mere hypothetical threat is not enough”

to create a ripe controversy. United Public Workers

v. Mitchell, 330 U.S. at 90.

B. Prudential Considerations Also Counsel Against

A Decision At This Time On The Question Of

Section 5’s Coverage Of Future Implementa-

tions Of Section 39.131(a)(7) And (8)

Even apart from the fact that appellant’s request

for a declaratory judgment fails to meet the core

constitutional requirement of ripeness, prudential

considerations also strongly militate in favor of post-

poning decision as to whether particular implemen-

tations of Section 39.131(a)(7) and (8) might affect

voting, as the district court concluded. The question

of “prudential ripeness” is “best seen in a twofold

aspect, requiring [a court] to evaluate both the fitness

of the issues for judicial decision and the hardship

to the parties of withholding court consideration.”

Abbott Laboratories v. Gardner, 387 U.S. 136, 149

(1967). As the district court pointed out (J. S. App.

18a), “[bloth prongs of the [Abbott Laboratories] test

must be satisfied before a court may hear a case and

render a decision on the merits.” Both factors point

here to the conclusion that the claim raised by appel-

lant, that Section 5 does not cover certain sanctions

that could be imposed on local school districts by the

Commissioner, is not ripe for judicial resolution at

this time.

1. The district court correctly observed (J.S. App.

18a-19a) that the central question that appellant

sought to have adjudicated is not appropriate for

judicial resolution at this time because it does not

turn on a pure question of law. Appellant contends

that implementation of Section 39.131(a)(7) or (8)

would not affect voting within the meaning of Section

5. To prevail in advance of any definite plan to invoke

the sanctions authorized by those subsections, appel-

lant would have to persuade the courts that in no

circumstance could the appointment of a master or

management team affect voting. In our view, that

absolute rule cannot be sustained in the abstract, as

the State would wish it to be, for under Section 5

jurisprudence much depends on the extent and nature

of the powers that will actually be conferred on a

master or management team.

Section 39.131(e) provides that the commissioner

shall clearly define the powers and duties of a master

or management team appointed to oversee the oper-

ations of [a school] district.” Tex. Educ. Code Ann.

§ 39.131(e) (West 1996). The Commissioner therefore

has broad discretion to decide which powers shall be

exercised by the appointed officials, and which shall

be withdrawn from the elected boards. Subject only to

the exceptions set forth in Section 39.131(e)(3)-(6), “if

directed by the commissioner,” the master or man-

agement team “may direct an action to be taken

by * * * the board of trustees of the district”

(§ 39.131(e)(1)) and “may approve or disapprove any

action of * * * the board of trustees of the district”

(§ 39.131(e)(2)) (emphasis added). Appointed under

these provisions, appointees might be charged with

setting curricula, determining disciplinary policy,

hiring and firing teachers, and generally exercising

the principal functions of elected school boards. By

contrast, the limitations set forth in appointed offi-

cials’ powers in Section 39.131(e) may or may not rep-

resent meaningful limitations on the power of the ap-

pointed body. For example, it may be that the elected

board did not have, or had already relinquished, the

power to determine the manner by which it would be

elected. See, e.g., Tex. Educ. Code § 11.058(f) (West

1996) (if board of independent school district opts for

numbered posts, no future board may rescind that ac-

tion). Under such a circumstance, the limitation in

Section 39.131(e)(4), preventing masters and manage-

ment teams from changing the method of election of

the board of trustees, would not meaningfully with-

hold any power from the appointed entity that was

previously held by the elected board. And although

appellant argues that the powers granted to a master

or management team are temporary, the statute does

not actually establish any fixed time limit on the

exercise of such powers. The appointment is subject

to renewal every 90 days, and there is no limit to

the number of times the Commissioner may renew

the appointment.

The potential question of coverage under Section 5

is, therefore, whether the appointment of a master or

a management team might amount to a de facto re-

placement of an elected school board by an appointed

official and might, for that reason, require preclear-

ance. In Bunton v. Patterson, a companion case to

Allen v. State Board of Elections, this Court held

that the replacement of an elected official with an

appointed one is a change affecting voting, within the

coverage of Section 5. 393 U.S. at 569-570. Although

this case does not involve the outright abolition of an

elected board and its replacement with an appointive

body, the Court has carefully reserved the question

“whether an otherwise uncovered enactment of a

jurisdiction subject to the Voting Rights Act might

under some circumstances rise to the level of a de

facto replacement of an elective office with an appoint-

ive one, within the rule of Bunton v. Patterson.”

Presley, 502 U.S. at 508.

Appellant correctly points out (Br. 29 & n.25) that

this Court has not endorsed the United States’

proposed criterion for determining when a shift in

governmental authority amounts to a de facto

replacement—viz., when the change divests an

elected body of its “reason for being.” Neither, how-

ever, has the Court rejected that criterion or set

forth a definitive alternative rule. The courts have

not yet been presented with many examples of

changes alleged to be a de facto replacement.’ Nor is

a sufficiently concrete example presented in this case.

Whether or not there is a “de facto replacement” of

local authority will depend upon the extent of the

elected body’s authority and the specifics of the

commissioner’s mandate in each case. Only when

these matters are made clear will the issue be

suitable for judicial determination. See Toilet Goods

Ass'n v. Gardner, 387 U.S. 158, 163-164 (1967) (case

did not present pure issue of law because, to deter-

mine whether regulation authorizing inspections was

valid, court would have to consider FDA’s need for

enforcement tools “in the context of a specific applica-

tion of this regulation”); cf. Abbott Laboratories, 387

US. at 149 (noting that “all parties agree that the

issue tendered is a purely legal one”); Suitum v.

Tahoe Regional Planning Agency, 117 S. Ct. 1659,

1667 (1997) (zoning determination ripe for adjudica-

tion where agency has no further discretion to exer-

cise over plaintiff’s right to use her land).

Teras v. United States, 866 F. Supp. 20 (D. D.C. 1994),

was not such a case. See p. 34, n. 10, infra.

This case is therefore not like the various finality

cases relied on by appellant’s amici (Br. 9-11), such

as Columbia Broadcasting System v. United States,

316 U.S. 407 (1942), Frozen Food Express v. United

States, 351 U.S. 40 (1956), and United States v. Storer

Broadcasting Co., 351 U.S. 192 (1956). In those cases,

as in Abbott Laboratories—which relied on those

three cases, see 387 U.S. at 149-151—a federal agency

had issued an order or a regulation announcing a

definitive legal rule immediately binding on private

parties, and not dependent on particular circum-

stances for its effect. See id. at 151. Similarly, in

cases arising under the Voting Rights Act where the

legal effect of the change at issue has been clear-

cut and nondiscretionary, the courts (including this

Court) have not postponed decision. In all of those

cases, however, the future allocation of authority did

not turn on the discretionary authority of an official

or body.” Here, by contrast, the contours of the

For example, in Bunton v. Patterson, private plaintiffs

sought a declaratory judgment that a change in the Mississippi

Code was covered by Section 5 and could not be enforced with-

out preclearance. Eleven counties that had previously had the

option of electing or appointing their superintendents of edu-

cation were required, by the change, to have superintendents

appointed by their board of education. This Court held (393

U.S. at 569-570) that the change in question was covered by

Section 5 because, after the change, citizens were “prohibited

from electing an officer formerly subject to the approval of the

voters” (id. at 570). In so holding, the Court recognized that de

jure replacement of an elected body by an appointed one neces-

sarily affects voting, and that the change might in some con-

texts have the purpose or effect of abridging the right to vote

of those who had thereto been disenfranchised on account of

race by other, less subtle means. Bunton was followed in Teras

vy. United States, 866 F. Supp. at 25-26, in which the district

authority of a master or management team appointed

by the Commissioner remain to be defined.

2. The district court also did not err in concluding

(J 8. App. 21a) that appellant would not suffer hard-

ship if judicial resolution of the question of the appli-

cability of Section 5 were postponed until the Com-

missioner might actually seek to use one of the

pertinent powers authorized under Chapter 39. If the

Commissioner found it necessary to appoint a master

or management team for a school distriet, then, once

the Commissioner had clearly defined the powers of

that person or body as required by Section 39.13 10e)

of the Education Code the State could present the

appointment plan to the Attorney General for pre-

clearance with a request for expedited consideration.

The State would also then be able to request a

declaratory judgment from the District of Columbia

district court in a concrete factual context. There is

as the district court pointed out (J.S. App. 21a), no

reason “to assume that administrative or judicial pre-

court found that a change in law clearly ousted one elected

governing body and substituted another, appointed one. See

also Robinson v. Alabama State Dep't of Educ., 652 F. Supp.

484 (M.D. Ala. 1987) (three-judge court) (transfer of control of

public schools from elected county board of education to city

board appointed by city council). Those changes were nondis-

cretionary ones that affected voting. The statutes in question

in Presley, supra, also did not call for the exercise of official

discretion in determining what power would be exercised by

what official. One of the changes clearly effected only a reallo-

cation, from individual commissioners to the entire commission

of authority over road building and repair, 502 U.S. at 503-506;

the other required an immediate delegation of authority over

road improvement to an appointed engineer, id. at 506-508.

Nothing was left open to any official’s or body’s discretion for

the future reallocation of authority.

clearance will prove so unwieldy as to deny [appellant]

a meaningful opportunity to expeditiously implement

its statutory scheme.”

Appellant suggests that it would suffer hardship

from postponed resolution of the issue of coverage

because it might be prevented from acting promptly in

cases of educational emergency. See App. Br. 36-37;

see also Amici Br. 13-16. The United States is not

unaware of the States’ need to be able to act promptly

when local school districts are in trouble. Concern

for the voting rights of minorities and for account-

ability in education are not mutually exclusive. When

implementation of a statute such as Texas’s Chapter

39 is submitted with all the necessary and rele-

vant information, administrative preclearance can be

accomplished expeditiously. See, e.g., Dobbs v. Crew,

No. CV-96-3240 (CPS) et al., 1996 WL 497060

(E.D.N.Y. Aug. 23, 1996) (three-judge court). In

Dobbs, state legislation in 1974 and 1996 had au-

thorized the New York City Schools Chancellor

temporarily to suspend local school boards under

specified circumstances. Both enactments had been

submitted to and precleared by the Attorney General

as enabling legislation with the caveat that individual

implementations would need to be precleared as well.

Id. at *3." In June 1996, Chancellor Crew exercised

his authority under the amended statute with respect

to three Community School Boards and sought

expedited preclearance. He received a letter of no

objection in approximately 22 days. Id. at *3-*4. The

u Under New York law, the Chancellor may continue the

“suppression” or “suspension” of a local elected community

board for up to one year, and may institute a new board at the

end of that time. 1996 WL 497060, at *3 n.6.

Section 5 component of a private suit to enjoin those

changes was then declared moot. Id. at *4. In short,

preclearance need not entail undue delay.

Appellant also contends (Br. 39) that postponing a

decision on the merits will cause it harm because of

the burden on state sovereignty effected by the

requirement of preclearance under Section 5. That

contention, however, amounts to little more than a

disagreement with Section 5 itself. Section 5 does

place some restrictions on the ability of covered

jurisdictions to reorganize their governmental struc-

tures. When the change affects voting, it cannot be

implemented until preclearance has been sought and

obtained, and that restriction applies to changes in

voting for educational authorities no less than to

other aspects of state and local governance. But, as

the Court made clear long ago, after enduring

nearly a century of systematic resistance to the

Fifteenth Amendment, Congress might well decide to

shift the advantage of time and inertia from the

perpetrators of the evil [of race discrimination] to its

victims.” South Carolina v. Katzenbach, 383 U.S.

301, 328 (1966); see also City of Rome v. United

States, 446 U.S. 156, 172-183 (1980). The process of

preclearance required by Congress imposes some

burdens on state sovereignty, but the judgment that

a short delay in the implementation of state voting

changes is necessary to effectuate the guarantees of

the Fifteenth Amendment was for Congress to make.

And the hardship suggested by the State is really

nothing more than the uncertainty of the eventual

outcome of the preclearance process. As the district

court observed, this allegation of a grievance “is so

vague that it ‘really amounts only to a complaint that

this issue remains unresolved.“ J.S. App. 21a.

Nor is this a case like Abbott Laboratories, where

the agency issued a regulation that had an immedi-

ately binding effect on private parties. Even though

the agency was not in a position to enforce the order

or regulation immediately, the Court emphasized that

the order was “made effective upon publication, and

* * * that compliance was expected.” Abbott Labora-

tories, 387 U.S. at 151; see Lujan v. National Wildlife

Fed’n, 497 U.S. 871, 891 (1990) (ripe controversy

exists when agency issues “a substantive rule which

as a practical matter requires the plaintiff to adjust

his conduct immediately”). The Assistant Attorney

General's December 11, 1995, letter to appellant,

taking the position that preclearance is required for

individual implementations of sanctions under Sec-

tion 39.131(a)(7) and (8), did not require appellant to

adjust its primary conduct. No “advance action” was

required of appellant, and the impact of the letter

(which merely restates the preexisting statutory

requirement of preclearance) cannot be said to be felt

immediately in appellant’s “day-to-day affairs.” See

Toilet Goods Ass’n v. Gardner, 387 U.S. at 164; ef.

Gardner v. Toilet Goods Ass un, 387 U.S. 167, 171

(1967) (finding case ripe because challenged regula-

tions “are self-executing, and have an immediate and

substantial impact upon the respondents”).

Indeed, a concern for ripeness is reflected in the

very structure of Section 5 and in the Attorney Gen-

eral’s regulations. Section 5 applies when a jurisdic-

tion either “enacts” or “seeks to administer” a voting

change. When an authorizing statute vests discretion

in a state official, the Attorney General may be able to

preclear the “enactment,” but she cannot predict how

the official having discretion will ultimately “seek to

administer” that enactment. The Attorney General

cannot, and the district court should not, give a

covered jurisdiction carte blanche by assuming that

specific actions pursuant to the authorizing statute,

not yet identified or described, will not affect voting,

or will not have either a discriminatory purpose or

retrogressive effect. See, e.g., NAACP v. Hampton

County Election Comm’n, 470 U.S. 166, 178 (1985)

(separate preclearance required for change in qual-

ifying period for an election even though general

underlying statute had already been precleared);

compare Clark v. Roemer, 500 U.S. 646, 658 (1991)

(changes to be precleared must be identified with

specificity). The Attorney General’s procedures re-

quiring the preclearance of specific implementations

of a general authorizing statute, 28 C.F.R. 51.15, also

reflects a ripeness concern that changes should be

submitted for preclearance in a concrete context.”

The Attorney General correctly relied upon that

provision, and the district court correctly invoked the

same principle in its constitutional and prudential

manifestations when it decided to stay its hand until

it was presented with a ripe case or controversy.

2 Section 51.15(a) provides:

With respect to legislation (1) that enables or permits the

State * * * to institute a voting change or (2) that

requires or enables the State * * * to institute a voting

change upon some future event or if they satisfy certain

criteria, the failure of the Attorney General to interpose

an objection does not exempt from the preclearance

requirement the implementation of the particular voting

change that is enabled, permitted, or required, unless that

implementation is explicitly included and described in the

submission of such parent legislation.

C. The State Sanctions’ Alleged Conformity With

Federal Education Statutes Does Not Create A

Ripe Controversy

Finally, appellant contends (Br. 32-37) that the

sanctions in question need not be precleared because

they are consistent with federal statutes requiring

recipients of federal financial assistance to have in

place methods to impose sanctions on school districts

that fail to show improved performance, and provid-

ing those recipients with flexibility in choosing their

sanctions. That contention provides no basis for over-

turning the district court’s ripeness ruling.

Whether state sanctions are consistent with the

provisions of federal law on which appellant relies is,

arguably, a purely legal question, and therefore there

may be fewer prudential concerns militating against

a decision whether those provisions of federal law

pretermit the requirement of preclearance imposed

by Section 5. Nonetheless, the irreducible Article III

requirement of a live controversy is still absent, for

the reasons we have explained (pp. 25-30, supra); in

particular, appellant has demonstrated no concrete

plan to impose the relevant sanctions on any school

district. That part of appellant’s case presents a

purely legal question in the abstract does nothing to

provide concreteness to the controversy. And, as we

have explained (pp. 35-39, supra), appellant would

suffer no hardship from a postponement of the contro-

versy until it actually seeks to implement sanctions

on a local school district.

Furthermore, appellant’s reliance on the federal

education statutes is unavailing anyway. In Young v.

Fordice, 117 S. Ct. 1228, 1235-1236 (1997), this Court

reaffirmed that even changes in state law relating to

voting that are enacted to conform to federal statu-

tory requirements require preclearance under Sec-

tion 5. When the federal law leaves matters of im-

plementation to the State’s discretion, “[iJt is the

discretionary elements of the new federal system

that the State must preclear.” Id. at 1239. Appellant

does not suggest that the precise details of any ap-

pointment of a master or management team under

Section 39.131(a) (7) and (8) are prescribed by federal

law; rather they are, plainly, left to the State’s

discretion. Thus, Young v. Fordice makes clear that

the federal education statutes relied on by appellant

are irrelevant to this case. As to the central issue in

the case—whether the appointment of and conferral of

authority on a master or management team requires

preclearance—there remains no live controversy.”

% There are at least two further difficulties with appel-

lant’s reliance on federal education statutes, especially the

statute authorizing the so-called “Ed-Flex” program permit-

ting the Secretary of Education to waive certain requirements

arising under federal statutes providing financial assistance to

local education programs, 20 U.S.C. 5891. First, the Secretary

of Education has concluded that Ed-Flex “does not, in any

way, modify the State’s obligations with respect to civil

rights.” J.S. App. 40a. Second, on July 25, 1997, the Depart-

ment of Education advised the Texas Commissioner of Educa-

tion that Ed-Flex does not authorize waivers of requirements

that are applicable to state education agencies, but rather

applies “only to waivers of requirements applicable to [local

education agencies} or schools.” App., infra, 2a. Accordingly,

the Ed-Flex statute provides no basis for a conclusion that the

imposition of sanctions on local school districts is exempt from

Section 5.

III. SHOULD THE COURT CONCLUDE THAT

SUBJECT-MATTER JURISDICTION AND A

RIPE CONTROVERSY ARE PRESENT, IT

SHOULD REMAND FOR FURTHER PRO-

CEEDINGS ON THE MERITS

Should the Court conclude, contrary to our submis-

sions, that the district court had subject-matter

jurisdiction over this case and that a ripe controversy

is present, it should remand the matter for further

proceedings in the district court, rather than decide

in the first instance the questions of coverage under

Section 5 raised by appellant’s brief. As we have ex-

plained, whether applications of the sanctions under

Chapter 39 are covered by Section 5 may turn on

the specific powers granted by the Commissioner of

Education to a master or management team and the

specific powers withdrawn from a local school board.

Only when the extent of the intervention by the

Commissioner is made clear will the courts be able to

make a fully informed decision as to whether there

would be a “de facto replacement of an elective office

with an appointive one,” Presley, 502 U.S. at 508, such

that preclearance under Section 5 would be required.

There has been no development of the record on that

question, and discovery may be necessary for a proper

presentation of the matter to the district court.”

The district court also made no findings of fact or

conclusions of law on the question of coverage. This

Court ordinarily does not decide in the first instance

Thus, contrary to appellant’s suggestion that this Court

decide the merits of the coverage question in the first instance,

this is not a case in which “[tJhe record is adequate to enable

[the Court] to decide whether the challenged changes should

have been submitted for approval” (App. Br. 18 n.22).

matters that have not been addressed at all in the

lower courts. See Clark, 500 U.S. at 659-660; Keller

v. State Bar, 496 U.S. 1, 17 (1990); Cornelius v.

NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.

788, 812-813 (1985). Moreover, the State did not raise

the issue of coverage of Section 5 as a question

presented in its jurisdictional statement. See J.S. i.

Nor is the question of coverage “fairly included”

within the questions that were presented by the

jurisdictional statement, viz., the district court's

statutory jurisdiction and the ripeness of the

controversy. This Court therefore should not reach

the substantive issue of coverage. See Yee v. City of

Escondido, 503 U.S. 519, 533 (1992); Sup. Ct. R. 18.3

(incorporating, for jurisdictional statements, require-

ments for certiorari petitions). Should this Court

reverse the district court’s ripeness ruling, it should

remand the case to the district court to address the

question of coverage in the first instance. Cf. Abbott

Laboratories, 387 U.S. at 156 (after finding that

review was not precluded and that case was ripe,

remanding for proceedings on the merits).

CONCLUSION

The judgment of the district court should be

affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

LAWRENCE G. WALLACE

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

MARK L. GROSS

MIRIAM R. EISENSTEIN

Attorneys

DECEMBER 1997

APPENDIX

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF ELEMENTARY AND SECONDARY EDUCATION

THE ASSISTANT SECRETARY

Jul. 25, 1997

Honorable Michael A. Moses

Commissioner of Education

Texas Education Agency

William B. Travis Building

1701 North Congress Avenue

Austin, TX 78701-1494

Dear Commissioner Mike Moses:

This is in response to your May 19, 1997 letter to

Tom Fagan, Director of Goals 2000, concerning two

proposed modifications in the way the Texas Educa-

tion Agency (TEA) exercises its Ed-Flex authority.

As Chairperson of the Department’s Waiver Action

Board, I have been asked to respond to your proposals.

The state proposes to require evaluation reports only

from districts that do not meet performance objec-

tives established by the Commissioner of Education

in granting waivers. In light of the sound state ac-

countability system and the required campus and

district improvement plans tied to measurable per-

formance objectives, we have no objection to this

proposed modification. I understand that data already

available at the TEA will be used to monitor the

progress of all waiver recipients in meeting their

(la)

performance objectives, and that it may be duplicative

to require districts that are meeting or exceeding

their objectives to resubmit this data as part of a

separate Ed-F lex evaluation report.

Texas has also requested the authority to approve

waivers of provisions applicable to the state educa-

tional agency (SEA), in addition to approving waivers

on a statewide basis of provisions applicable to eligible

districts and campuses. We are unable to grant this

request for several reasons. First, it is unclear

whether Congress intended that the Ed-Flex author-

ity be extended to include waivers of requirements

applicable to an SEA. Although the general provision

authorizing Ed-Flex (Section 311(e)(2)(A) of the Goals

2000: Educate America Act) does reference require-

ments applicable to SEAs, the specific statutory

provisions governing the submission of Ed-F lex plans

to the Department and the actual implementation of

Ed-Flex authority by states refer only to waivers of

requirements applicable to LEAs or schools.

Furthermore, it does not seem appropriate for the

Secretary to delegate to states the authority to grant

waivers of requirements applicable to SEAs. In every

other instance where waivers are granted, a separate

entity determines the appropriateness of the waiver.

If an SEA were permitted to grant a waiver to itself,

there may not be adequate independent safeguards for

evaluating the permissibility of reasonableness of a

waiver.

This decision concerning the scope of Ed-Flex au-

thority should in no way impede a state’s education

reform initiatives. An Ed-Flex state, like any other

state, may request that the Department waive par-

ticular SEA-level requirements that are barriers to

the implementation of state or local reform plans. We

will act on these waiver requests as expeditiously as

possible.

I appreciate the opportunity to respond to proposals

and applaud your efforts in improving education for all

students in Texas.

Should you have any question concerning these mat-

ters, do not hesitate to contact me at (202) 401-0113.

Sincerely,

/s/ GERALD N. TIROZZI

GERALD N. TIROZZI

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.