Governor signs OPS bill despite segregation concerns

Lincoln Journal Star (NE) - Friday, April 14, 2006
Legislation breaks up Omaha schools into three districts; some say the move is unconstitutional. 

Unflinching in the face of concerns it could lead to unconstitutional segregation, the Legislature and Gov. Dave Heineman approved a law that will allow the breakup of Omaha Public Schools into possibly three districts that could have racial borders. 

Now the courts are expected to sort out what lawmakers and the governor have done. 

"We believe the state may face serious risk due to the potential constitutional problems raised by LB1024," Attorney General Jon Bruning said in a letter distributed to lawmakers before they voted on the bill that represents a stunning turn in the Omaha schools dispute. 

While Bruning expressed concerns about the bill, he could be in the position of defending the governor who signed it. 

Near the time the Legislature voted 31-16 to pass the bill Thursday, Heineman got a phone call from an attorney representing OPS. Heineman said the attorney told him he could be sued for signing the bill. Asked if he took that as a threat, Heineman responded: "It certainly was hard to take it any other way." 

Though "uneasy" about the possible breakup of OPS, Heineman said bigger is not always better and that "the motivation behind this proposal is neither separation nor segregation." 

Motivation aside, "you cannot physically divide up the Omaha Public Schools District in a manner other than a segregated manner," said Sen. Pat Bourne of Omaha, who led opposition to the bill. 

Supporters of the bill say breaking up OPS into three smaller districts of maybe 15,000 students each would improve education by granting more attention to the needs of children and pumping more dollars into classrooms instead of administrative offices. 

Additionally, Sen. Ernie Chambers of Omaha, who shepherded the OPS breakup, argued the district has failed minority and poor children and it's time for the schools they attend to be administered by those most familiar with their needs. 

Echoing statements from Lincoln Sen. Ron Raikes and other lawmakers who pushed for what could be a massive reorganization of the state's largest school district, Heineman said the bill could force OPS to the negotiating table with administrators of the suburban districts to strike a deal to resolve their high-pitched dispute. 

OPS announced last year it wanted to take over the suburban districts. If all parties reach an agreement before early next year, Heineman said he might call a special legislative session in which a resolution could be built into state law. 

The top administrator of OPS said during a news conference in Omaha that the new law is unconstitutional and will not stand, according to The Associated Press. 

"There simply has never been an anti-city school victory anywhere in the nation," Superintendent John Mackiel said. "This law will be no exception." 

The informal opinion issued by Bruning on Thursday at the request of Bourne says the bill "raises serious constitutional questions" related to segregation. In the letter, Bruning cited Brown v. Board of Education, the landmark 1954 civil rights case in which the U.S. Supreme Court ruled that segregated schools are unequal schools. 

Intentional segregation of schools by government violates the 14th Amendment of the U.S. Constitution, "even if the state believes that 'separate but equal' is superior for minority children," Bruning wrote. 

Bruning, because of his cursory opinion, now has the responsibility to further research LB1024, Bourne said, and has an obligation to file a suit challenging the bill if he concludes it is unconstitutional. 

Bourne said he is more convinced than ever that the bill amounts to state-sponsored segregation and that Nebraska will go down in history as the first state in more than two decades to endorse school segregation. 

Asked what assurance he had the bill is constitutional, Heineman replied: "There's never total assurance" an action is constitutional. 

Heineman has been a vocal opponent of OPS' planned takeover of the suburban districts that are within Omaha city limits.

The main underpinnings of LB1024 would allow those districts to keep their current boundaries while forcing them to work with OPS under a new government structure called a learning community. They would share such things as a common tax levy as well as a responsibility to integrate schools. 

"We're not creating separate districts, we're creating interrelated districts," Sen. Pam Redfield of Omaha said, trying to assuage segregation concerns. "We're ahead of the nation. We're not going backwards." 

A last-minute change to the bill responds to segregation worries. If a district within the learning community does not follow the integration plan, it could be dissolved. 

Chambers, the Legislature's senior member and only black lawmaker, called Bruning's opinion "an exercise in total incompetency" and crumpled up the letter to emphasize his point. 

Reciting one of his core arguments throughout debate on LB1024, Chambers said the bill is not unconstitutional and is not intended to segregate. Segregation, he said, already exists because OPS administrators over the years intentionally instituted the separate schools he argues are unequal. 

The argument that may be made in court hasn't swayed some lawmakers. 

"I believe the end result of LB1024 is segregation," said Sen. Gwen Howard of Omaha. 

Reach Nate Jenkins at 473-7223 or 


Nebraska lawmakers voted 31-16 Thursday to pass a bill (LB1024) to divide Omaha Public Schools into three districts. The bill needed 25 votes to pass. A "yes" vote was to pass the bill. A "no" vote was against passing the bill. 

Voting yes: (31) Aguilar, Baker, Beutler, Brown, Burling, Byars, Chambers, Combs, Cudaback, Cunningham, Engel, Fischer, Heidemann, Hudkins, Janssen, Jensen, Johnson, Kremer, Kruse, Louden, McDonald, Pahls, Dw. Pedersen, D. Pederson, Price, Raikes, Redfield, Schrock, Stuhr, Stuthman, Wehrbein. 

Voting no: (16) Bourne, Brashear, Connealy, Cornett, Erdman, Flood, Foley, Friend, Howard, Kopplin, Landis, Langemeier, Mines, Preister, Synowiecki, Thompson. 

Present, not voting: (1) Schimek. 

Excused, not voting: (1) Smith. 

--The Associated Press