The Tenuous Constitutionality of Nebraska’s L.B. 1024

On April 13, 2006, Nebraska Governor Dave Heineman signed Legislative Bill 1024 (L.B. 1024) into law. The law is set to take effect in 2008. By its language, this bill only applies to the city of Omaha and allows Omaha to separate into three racially-identifiable school districts. The language of the bill is facially-neutral insofar as it doesn’t specifically require school attendance in the new districts to be contingent on a student’s race. Rather, it requires new district lines to be drawn around existing high school attendance areas, mandates that each district contain only two or three high schools, and requires districts to be comprised of contiguous neighborhoods. Thus, insofar as L.B. 1024 uses race-neutral language, it is able to avoid being directly and immediately struck down under the precedent set forth in Brown v. Board of Education. Because most Omaha neighborhoods are highly racially-segregated, however, this bill will have the effect of causing Omaha’s new school districts to be segregated on the basis of race as well. When application of a facially-neutral statute results in a racially-discriminatory effect, the Supreme Court has deemed such a statute unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886).

In addition, there is significant circumstantial evidence that L.B. 1024 was passed for the purpose of creating racially-identifiable school districts. For example, Ernie Chambers, one of L.B. 1024’s key sponsors, stated that he supported the bill, because it would provide minorities with more control over their own schools. This discriminatory purpose in passing L.B. 1024 would also likely cause the statute to fail to pass constitutional muster under the past Supreme Court precedent of Washington v. Davis.

Thus, L.B. 1024 produces an unconstitutional racial classification which violates the Equal Protection Clause of the Fourteenth Amendment, and the Nebraska legislature should repeal the bill before it goes into effect in 2008. Many groups have already recognized the potential unconstitutionality of L.B. 1024. Both the NAACP and the Chicano Awareness Center have filed separate lawsuits against Nebraska Governor, Dave Heineman, in federal and state court, respectively.

The NAACP case is still pending; but, in the case of Chicano Awareness Center, et al. v. Dave Heineman as Governor, et al., a Douglas County District Court judge issued a temporary restraining order on September 19, 2006, restraining and enjoining implementation of L.B. 1024. It declared the bill unconstitutional under the Nebraska constitution, because of issues related to the voting structure of the governing board L.B. 1024 creates. Because of the strong feelings on both sides of this debate, the district court’s decision will likely be appealed.