LAUSD BILL PARTS COULD SURVIVE TESTS IN COURT CRITICS SAY SEVERABILITY CLAUSE MAY WORSEN ISSUE.

Byline: HARRISON SHEPPARD Sacramento Bureau

SACRAMENTO -- Even if part of Mayor Antonio Villaraigosa's school-takeover legislation is struck down by the courts, portions of it could survive because of a legal clause inserted through amendments last week.

But some say the ``severability clause'' also could result in haphazard, ineffective reforms and is equivalent to a ``bait-and-switch'' for members of the public who support mayoral influence at Los Angeles Unified but are unaware of the other provisions.

``The intent of this bill is the mayor's involvement and control. If that all gets taken out and the only thing that's left is these peripheral issues, that was never the intent of what this legislation was meant to be,'' said Sen. George Runner, R-Lancaster, an opponent of Assembly Bill 1381.

``That would be a worse situation than what we currently have.''

Villaraigosa's proposal involves a few key elements including a council of mayors to ratify the hiring and firing of a superintendent and a mayor's community partnership to directly oversee three clusters of the lowest-performing schools.

It also includes a stronger superintendent with more authority over daily decision-making and awarding contracts, with a weakened school board limited to broad policy-making; and greater control at the local level over school management and curriculum.

It calls for the district's curriculum advisory committees to be composed of a majority of teachers, selected by teachers rather than district administrators.

But critics already have questioned the constitutionality of the mayor asserting control over a school district, and lawsuits are considered likely if AB 1381 is passed and signed into law.

Observers expect the most likely elements to be subject to court review are those directly involving the mayor's role -- the council of mayors and the partnership for lowest-performing schools.

If they are struck down on constitutional grounds, the severability clause would mean the other elements -- the curriculum committees, local control and stronger superintendent -- could remain.

Thomas Saenz, the mayor's counsel, said the clause wasn't really necessary because every law in California is considered severable by the courts. He said the clause was added to ensure that the issue is clear in the text of the bill because of the increased discussion of its legality.

That question aside, Saenz said the mayor remains fully behind all elements of the legislation. He supports, for example, a stronger superintendent, and more local control, and would continue to support those concepts even if the council of mayors and the partnership were struck down.

``Don't get me wrong -- something significant would be lost if both of those are struck down, which is the mayor's direct role and responsibility for education,'' Saenz said.

``That certainly is a loss. But what remains is still some significant elements of a reform framework for the district. You would still have a very changed school board, a changed superintendent and changed school sites in terms of decision-making.''

Saenz also remains confident the bill will withstand constitutional review, and noted that some of the other amendments added last week were designed to strengthen its legal viability.

In particular, a clause was added subjecting the mayor's partnership for lowest-performing schools to review by the county superintendent of education in an effort to mimic language used for charter schools that has already withstood legal review.

Elizabeth Garrett, a law professor at the University of Southern California, said severability clauses are common, although the factors in the decision to add one can be complex and are based on both strategic and political as well as legal concerns.

Bill authors have to consider whether the bill is worth keeping at all if its main provision is struck down.

For example, in a major national campaign finance reform bill several years ago, the courts struck down expenditure limits, but kept contribution limits. Some felt the two were so closely related that it should have been both or neither.

``The severability analysis is always really tricky in any of these big bills,'' Garrett said. ``People are willing to vote for the whole deal because they get the sweet with the bitter -- and if it turns out you get the bitter instead of the sweet, they wouldn't have voted for it.''

Sometimes, she said, bill authors will choose an inseverability clause, which says if any part of the bill is struck down, the entire measure is invalid.

And, she added, the mere presence of a severability clause doesn't always mean the rest of a bill will remain intact.

Courts typically consider the severability issue when weighing whether to strike down all or part of a piece of legislation, and can decide to overrule a severability clause and strike down the entire bill, she said.

``Some people think, I want this as a package and if a court strikes this down, I'm stuck with the stuff I don't like.''

The LAUSD school board and administration oppose all aspects of the mayor's effort. LAUSD General Counsel Kevin Reed said he agreed there is a possibility that only some portions of the bill would withstand a lawsuit.

The district would equally oppose those remaining provisions.

For example, the objection to giving greater control to the local school site is that some of those issues are subject to collective bargaining between the administration and the unions.

``It's also an issue that's at the core of a relationship between the principal and the staff of a school site,'' Reed said.

Dictating that relationship in legislation means teachers might be more likely to sue if they have a dispute with their supervisor, Reed said.

``I fail to comprehend how that helps kids.''

harrison.sheppard(at)dailynews.com

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