[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2405 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2405

      Entitled the ``Restoring Authority to Schools Act of 2004''.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 11, 2004

  Mr. Miller introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
      Entitled the ``Restoring Authority to Schools Act of 2004''.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restoring Authority to Schools Act 
of 2004''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to restore authority to the public schools to conduct 
        education as a human enterprise;
            (2) to limit Federal court oversight of public schools to 
        that which is reasonable and necessary to implement Federal 
        law; and
            (3) to allow State and local education officials to bring 
        new insights and solutions to problems of allocating revenues 
        and resources for the common good in keeping with their 
        designated legislative and executive powers.

SEC. 3. APPROPRIATE REMEDIES WITH RESPECT TO VIOLATIONS OF FEDERAL LAW 
              IN THE PUBLIC SCHOOLS.

    (a) Requirements for Relief.--
            (1) Prospective relief.--
                    (A) Prospective relief in any civil action with 
                respect to violations of Federal law in the public 
                schools shall extend no further than necessary to 
                correct the violation of the Federal right of a 
                particular plaintiff or plaintiffs. The court shall not 
                grant or approve any prospective relief unless the 
                court finds that such relief is narrowly drawn, extends 
                no further than necessary to correct the violation of 
                the Federal right, and is the least intrusive means 
                necessary to correct the violation of the Federal 
                right. The court shall give substantial weight to any 
                adverse impact on other students or the school 
                community as a whole caused by the relief.
                    (B) The court shall not order any prospective 
                relief that requires or permits a government official 
                to exceed his or her authority under State or local law 
                or otherwise violates State or local law, unless--
                            (i) Federal law requires such relief to be 
                        ordered in violation of State or local law;
                            (ii) the relief is necessary to correct the 
                        violation of a Federal right; and
                            (iii) no other relief will correct the 
                        violation of the Federal right.
            (2) Preliminary injunctive relief.--In any civil action 
        with respect to violations of Federal law in the public 
        schools, to the extent otherwise authorized by law, the court 
        may enter a temporary restraining order or an order for 
        preliminary injunctive relief. Preliminary injunctive relief 
        must be narrowly drawn, extend no further than necessary to 
        correct the harm the court finds requires preliminary relief, 
        and be the least intrusive means necessary to correct that 
        harm. The court shall give substantial weight to any adverse 
        impact on other students or the school community as a whole 
        caused by the preliminary relief and shall respect the 
        principles of comity set out in paragraph (1)(B) in tailoring 
        any preliminary relief. Preliminary injunctive relief shall 
        automatically expire on the date that is 90 days after its 
        entry, unless the court makes the findings required under 
        subsection (a)(1) for the entry of prospective relief and makes 
        the order final before the expiration of the 90-day period.
    (b) Termination of Relief.--
            (1) Termination of prospective relief.--
                    (A) In any civil action with respect to violations 
                of Federal law in the public schools in which 
                prospective relief is ordered, such relief shall be 
                terminable upon the motion of any party or intervener--
                            (i) 2 years after the date the court 
                        granted or approved the prospective relief;
                            (ii) 1 year after the date the court has 
                        entered an order denying termination of 
                        prospective relief under this paragraph; or
                            (iii) in the case of an order issued on or 
                        before the date of enactment of the Restoring 
                        Authority to Schools Act (enacted ____ __, 
                        2004), 2 years after such date of enactment.
                    (B) Nothing in this section shall prevent the 
                parties from agreeing to terminate or modify relief 
                before the relief is terminated under subparagraph (A).
            (2) Immediate termination of prospective relief.--In any 
        civil action with respect to violations of Federal law in the 
        public schools, a defendant or intervener shall be entitled to 
        the immediate termination of any prospective relief if the 
        relief was approved or granted in the absence of a finding by 
        the court that the relief is narrowly drawn, extends no further 
        than necessary to correct the violation of the Federal right, 
        and is the least intrusive means necessary to correct the 
        violation of the Federal right.
            (3) Limitation.--Prospective relief shall not terminate if 
        the court makes written findings based on the record that 
        prospective relief remains necessary to correct a current and 
        ongoing violation of the Federal right, extends no further than 
        necessary to correct the violation of the Federal right, and 
        that the prospective relief is narrowly drawn and the least 
        intrusive means to correct the violation.
            (4) Termination or modification of relief.--Nothing in this 
        section shall prevent any party or intervener from seeking 
        modification or termination before the relief is terminable 
        under paragraph (1) or (2), to the extent that modification or 
        termination would otherwise be legally permissible.
    (c) Settlements.--
            (1) Consent decrees.--In any civil action with respect to 
        violations of Federal law in the public schools, the court 
        shall not enter or approve a consent decree unless it complies 
        with the limitations on relief set forth in subsection (a).
            (2) Private settlement agreements.--
                    (A) Nothing in this section shall preclude parties 
                from entering into a private settlement agreement that 
                does not comply with the limitations on relief set 
                forth in subsection (a), if the terms of that agreement 
                are not subject to court enforcement other than the 
                reinstatement of the civil proceeding that the 
                agreement settled.
                    (B) Nothing in this section shall preclude any 
                party claiming that a private settlement agreement has 
                been breached from seeking in State court any remedy 
                available under State law.
    (d) State Law Remedies.--The limitations on remedies in this 
section shall not apply to relief entered by a State court based solely 
upon claims arising under State law.
    (e) Procedure for Motions Affecting Prospective Relief.--
            (1) Generally.--The court shall promptly rule on any motion 
        to modify or terminate prospective relief in a civil action 
        with respect to violations of Federal law in the public 
        schools. Mandamus shall lie to remedy any failure to issue a 
        prompt ruling on such a motion.
            (2) Automatic stay.--Any motion to modify or terminate 
        prospective relief made under subsection (b) shall operate as a 
        stay during the period--
                    (A)(i) beginning on the 30th day after such motion 
                is filed, in the case of a motion made under paragraph 
                (1) or (2) of subsection (b); or
                    (ii) beginning on the 180th day after such motion 
                is filed, in the case of a motion made under any other 
                law; and
                    (B) ending on the date the court enters a final 
                order ruling on the motion.
            (3) Postponement of automatic stay.--The court may postpone 
        the effective date of an automatic stay specified in subsection 
        (e)(2)(A) for not more than 60 days for good cause. No 
        postponement shall be permissible because of general congestion 
        of the court's calendar.
            (4) Order blocking the automatic stay.--Any order staying, 
        suspending, delaying, or barring the operation of the automatic 
        stay described in paragraph (2) (other than an order to 
        postpone the effective date of the automatic stay under 
        paragraph (3)) shall be treated as an order refusing to 
        dissolve or modify an injunction and shall be appealable 
        pursuant to section 1292(a)(1) of title 28, United States Code, 
        regardless of how the order is styled or whether the order is 
        termed a preliminary or a final ruling.
    (f) Special Masters.--
            (1) In general.--
                    (A) In any civil action in a Federal court with 
                respect to violations of Federal law in the public 
                schools, the court may appoint a special master who 
                shall be disinterested and objective and who will give 
                due regard to balancing the needs of the school 
                community as a whole against the requested relief, to 
                conduct hearings on the record and prepare proposed 
                findings of fact.
                    (B) The court shall appoint a special master under 
                this subsection during the remedial phase of the action 
                only upon a finding that the remedial phase will be 
                sufficiently complex to warrant the appointment.
            (2) Appointment.--
                    (A) If the court determines that the appointment of 
                a special master is necessary, the court shall request 
                that the defendant State officials and the plaintiff 
                each submit a list of not more than 5 persons to serve 
                as a special master.
                    (B) Each party shall have the opportunity to remove 
                up to 3 persons from the opposing party's list.
                    (C) The court shall select the master from the 
                persons remaining on the list after the operation of 
                subparagraph (B).
            (3) Interlocutory appeal.--Any party shall have the right 
        to an interlocutory appeal of the judge's selection of the 
        special master under this subsection, on the ground of 
        partiality.
            (4) Compensation.--The compensation to be allowed to a 
        special master under this section shall be based on an hourly 
        rate not greater than the hourly rate established under section 
        3006A for payment of court-appointed counsel, plus costs 
        reasonably incurred by the special master. Such compensation 
        and costs shall be paid with funds appropriated to the 
        Judiciary.
            (5) Regular review of appointment.--In any civil action 
        with respect to violations of Federal law in the public schools 
        in which a special master is appointed under this subsection, 
        the court shall review the appointment of the special master 
        every 6 months to determine whether the services of the special 
        master continue to be required under paragraph (1). In no event 
        shall the appointment of a special master extend beyond the 
        termination of the relief.
            (6) Limitations on powers and duties.--A special master 
        appointed under this subsection--
                    (A) may be authorized by a court to conduct 
                hearings and prepare proposed findings of fact, which 
                shall be made on the record;
                    (B) shall not make any findings or communications 
                ex parte;
                    (C) may be authorized by a court to assist in the 
                development of remedial plans; and
                    (D) may be removed at any time, but shall be 
                relieved of the appointment upon the termination of 
                relief.
    (g) Definitions.--As used in this section--
            (1) the term ``consent decree'' means any relief entered by 
        the court that is based in whole or in part upon the consent or 
        acquiescence of the parties, but does not include private 
        settlements;
            (2) the term ``civil action with respect to violations of 
        Federal law in the public schools'' means any civil proceeding 
        arising under Federal law with respect to any aspect of 
        operation of the public schools or the provision of public 
        education, including extra curricular and ancillary activities, 
        but does not include civil proceedings relating to 
        desegregation of the public schools;
            (3) the term ``public schools'' means a public elementary 
        or secondary school as such terms are defined in section 9101 
        of the Elementary and Secondary Education Act of 1965 (20 
        U.S.C. Sec. 7801);
            (4) the term ``private settlement agreement'' means an 
        agreement entered into among the parties that is not subject to 
        judicial enforcement other than the reinstatement of the civil 
        proceeding that the agreement settled;
            (5) the term ``prospective relief'' means all relief other 
        than compensatory monetary damages;
            (6) the term ``special master'' means any person appointed 
        by a Federal court pursuant to Rule 53 of the Federal Rules of 
        Civil Procedure or pursuant to any inherent power of the court 
        to exercise the powers of a master, regardless of the title or 
        description given by the court; and
            (7) the term ``relief'' means all relief in any form that 
        may be granted or approved by the court, and includes consent 
        decrees but does not include private settlement agreements.
                                 <all>