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State Education Department Seeks To Dismiss Birmingham Takeover Lawsuit

State schools chief Tommy Bice (center right), Birmingham Mayor William Bell (lower left) and other area leaders look on with concern at a contentious April 2012 board meeting that helped trigger state intervention. Photo by Dan Carsen.

By Dan Carsen, 12:25 p.m., Dec. 5, 2013

BIRMINGHAM, Ala. -- Lawyers representing the Alabama State Department of Education late yesterday filed a brief asking a federal judge to dismiss a lawsuit against the state's 2012 intervention in Birmingham City Schools.

The lawsuit alleges ALSDE disenfranchised black voters who elected Birmingham school board members, whose authority was overruled when state officials overturned their decisions, including the board's initial refusal to adopt a controversial cost-cutting plan last spring. That plan, eventually adopted, was meant to help the school system build up a legally required reserve of one month's operating expenses. Birmingham and state officials predict the district will have that $17-million reserve in place before the end of fiscal 2014.

Five Birmingham residents -- including two former Birmingham school board members and an Alabama Education Association representative -- brought the suit and maintain the state intervention violates Section 2 of the Voting Rights Act, the due process clause of the 14th Amendment, and the equal protection clause of the 14th Amendment.

But according to last night's motion, filed electronically at 6:25 p.m., "[the suit alleges] State School Superintendent Bice violated the Voting Rights Act and the 14th Amendment when he intervened to compel the Birmingham Board of Education to comply with state school finance laws. If that sentence sounds peculiar, it should: Plaintiffs claim a violation of [Section 2] of the VRA, but they do not take issue with the number of members making up the board, the districts from which board members were elected, how voters registered to vote, who was allowed to vote, or how their votes were counted...

"Plaintiffs also claim that the intervention violated their 14th Amendment rights of due process and equal protection. [Those claims should be dismissed] because there is no constitutionally protected right to vote for members of the school board, and the intervention was rationally related to a legitimate state purpose."

ALSDE's lawyers also maintain that local boards of education -- unlike municipal boards -- are, legally speaking, extensions of the state education department.

The suit, filed in February with the U.S. District Court for the Northern District of Alabama, Southern Division, names defendants Tommy Bice in his capacity as superintendent of the state education department; Ed Richardson -- the sometimes controversial leader of the state intervention team, and acting chief financial officer of Birmingham City Schools; and the Alabama State Board of Education. Judge David Proctor could decide on the motion to dismiss as early as March.

All of Dan's education reporting, including numerous stories about Birmingham Schools, can be found here.