U.S. Supreme Court Justice Samuel Alito refused Tuesday to block a law requiring Nebraska's smallest schools to merge with larger districts.
Former Nebraska Attorney General Don Stenberg filed an appeal last month on behalf of the schools arguing that the law requiring the elementary only — or Class I — districts to merge with larger, K-12 districts by June 15 was unconstitutional.
He asked Alito for an injunction until the court decides whether it will hear the case, "In the absence of an injunction enjoining the orders dissolving 205 Class I school districts, the questions presented ... will be moot before the court can consider the case on its merits," Stenberg wrote.
Alito rejected the request without comment.
"It does not mean this is over," Stenberg said. "We may refile our request for an injunction if the court agrees to take the case."
Last month, the Nebraska Supreme Court ruled that a judge was wrong to put on hold the state law that calls for the mergers.
The Nebraska high court ruled in a case challenging a law (LB126) passed last year over Gov. Dave Heineman's veto.
Sen. Ron Raikes of Lincoln, chairman of the Legislature's Education Committee, hailed Alito's ruling.
"The statute and arguments have been scrutinized very carefully and continue to survive that scrutiny," he said.
In his appeal to the U.S. Supreme Court, Stenberg argued that closing the schools before voters weigh in would be "akin to executing a convicted murderer before his appeal is decided or destroying subpoenaed evidence before it can be presented to the court.
"There are very few questions presented to this court that are more important than federal constitutional questions concerning the right to vote," Stenberg added. "If in fact the First Amendment to the Constitution of the United States does not protect the right to vote in initiative and referendum elections, then the door is open for state legislatures hostile to the initiative and referendum process to effectively deny people the right to vote," Stenberg said.
But the Nebraska high court cited the state Constitution, which says "an act of the Legislature shall be suspended only in the event that a referendum petition is signed by `not less than ten percent of the registered voters.' "
"In this case, there is no dispute that plaintiffs collected the signatures of only a little more than 7.7 percent of the registered voters in Nebraska," Chief Justice John Hendry said. "Under such circumstance, to suspend 'the taking effect' of LB126 pending the referendum vote would require this court to ignore the will of the people as clearly expressed in the state Constitution. This we will not do."
The state court also declined to weigh in on Stenberg's contention that the merger law illustrates a need to change the referendum process.
Merger proponents say that having K-12 districts statewide will save money and provide a more equitable education to all students.
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