Heated Court Fight Seen on Schools

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

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

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

The state Constitution can be amended only by voters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The mayor, in helping craft the law, would have been smart to have yielded more powers to the school district to ensure compliance with the 1946 constitutional amendment, Steinman added.

In addition to creating the Council of Mayors, the new law would give a coalition of six cities in southeast Los Angeles County the right to ratify the district superintendent’s choice of a regional administrator, Reed said. That would clearly violate the Constitution because legislators, “in their haste,” failed to designate the coalition as an educational agency, Reed said.

The district contends that the entire law would be thrown out if any single provision was found unconstitutional. The mayor’s office counters that the rest of the law would still survive.

Lawyers on both sides of the dispute conceded that neither foresees certain victory heading into the litigation.

Thomas Saenz, the mayor’s legal advisor, predicted Villaraigosa would win, but conceded that the Council of Mayors’ veto power was “legally a tougher question” for the courts than the other objections the school district is expected to raise.

School officials also are prepared for a challenging fight.

“It is not an easy case,” said John Bukey, general counsel for the California School Boards Assn., which opposes the mayor’s plan. “I am reasonably confident that the side I represent is correct ... but it is not a slam dunk.”

Saenz said the mayor’s demonstration school clusters, which would be known as the Los Angeles Mayor’s Community Partnership for School Excellence, do not raise constitutional problems because the schools ultimately would be under the control of the Department of Education. The county superintendent would have the power to authorize the schools and to rescind that authorization.

But the school district contends that county superintendent oversight is illusory. The superintendent must authorize the schools unless the mayor and his partners have an “irremediable and significant conflict of interest” in the program and are “demonstrably incapable” of running the schools.

The school district’s Reed, who called Saenz “one of the smartest lawyers I have ever worked with,” said the mayor’s dual role won’t work because school and city interests often clash.

“We’re looking at a piece of property in West L.A. for a high school,” Reed said. “There is a City Council member who is lobbying heavily to keep us from building a school there because he would prefer big-box retail,” which would generate generous tax revenue.

“He has interests that are different from our school system, and our constitutional system is designed to effectively allow each of those agencies to represent their interests.”

Reed said a school superintendent might shy away from a decision that would be in the interest of schools if it conflicted with the desires of the mayors who have veto power over his or her appointment.

Mayors in other states have assumed control of school districts, winning court challenges to do so. But Reed said California’s 1946 constitutional provision gives the school system special protection.

In Cleveland, federal courts and the Ohio Supreme Court overturned challenges to a mayoral takeover of schools that were based largely on federal voting rights law.

Reed said L.A. Unified was “fairly confident” it would win a preliminary injunction to stop the transfer of authority in Los Angeles County Superior Court. That court’s decision probably would be appealed all the way to the California Supreme Court, which has final say on matters of state law and the state Constitution. The process could take months.

Another line of legal attack by the district could be a state constitutional provision that prohibits the state from interfering with charter cities such as Los Angeles and redefining a mayor’s role unless it involves a matter of statewide concern.

But Duke’s Chemerinsky said “what is done by the state trumps the City Charter.” He said the plight of Los Angeles public schools is a matter of statewide concern.

Reed and other school officials said the new law is all about politics, giving the mayor an educational platform should he run for governor in four years, a contention the mayor’s office flatly disputes.

Villaraigosa will have scored a political victory even if the courts eventually reject the plan, Reed said.

“For him, a win was a bill enacted into law and signed by the governor. If that bill ends up being declared unconstitutional, he gets to turn around and say he tried,” Reed said.

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maura.dolan@latimes.com

Times researcher John Jackson contributed to this report.