DALLAS — A federal lawsuit claiming racial discrimination threatens to prevent the Houston Independent School District from issuing bonds from an $805 million package approved by voters in September. The suit, filed in U.S. District Court on behalf of three families, is similar to one filed in the nearby Waller Independent School District that has prevented it from issuing bonds from a $49 million package approved in May.Attorney Ty Clevenger of Bryan, Tex., a former attorney in the civil rights division of the U.S. Department of Justice, represents plaintiffs in both lawsuits.In both suits, the districts sought court permission to issue bonds. However, the Houston ISD filed its bond validation suit in anticipation of the lawsuit, whereas Waller filed its after it was sued.Clevenger’s clients are asking that a Dec. 3 state district court judgment affirming the validity of the bond issue and enjoining any lawsuits be overturned. The suit claims that HISD sought to avoid scrutiny of its pre-emptive suit by filing it in Austin instead of Houston. Clevenger said that his clients were not aware that the bond validation suit had been filed until two weeks later.The lawsuit also asks the court to overturn Texas’ Expedited Declaratory Judgment Act as unconstitutional. That law was passed in 1999 to allow debt issuers to get court validation of bonds along with an injunction against future lawsuits. The law also allows courts to consolidate related cases.The act plays a role in both cases. In the Waller ISD case, the plaintiff DeWayne Charleston, a justice of the peace represented by Clevenger, has suits in federal and state court. An appeal in Texas’ First Court of Appeals is considering Charleston’s appeal of a bond validation suit. The appeals court is expected to decide whether the state court can consolidate the federal suit and prevent another appeal to the Texas Supreme Court.The Houston lawsuit claims the district “consistently provides lower-quality academic programs, equipment, facilities, and materials at school facilities located in predominantly minority communities, and particularly at those located in African-American communities.”The suit claims that “left unrestrained with $805 million in new bond proceeds, HISD is certain to continue its pattern and practice of diverting resources away from minority communities.”Clevenger said that the Houston opponents of the bond issue approached him after reading about the Waller lawsuit. Tying up bond issues in court is a new way of combating perceived racial discrimination, he said.“If they don’t negotiate, this bond issue could be delayed for years,” he said.On the other side, attorney Patrick Mizell of Vinson & Elkins LLP is seeking to unsnarl both the Waller and Houston ISD bond issues.“The mere filing of a lawsuit by any plaintiff implicating a bond issue can result in a practical injunction that stops badly needed public projects in their tracks — without bond, without hearing, and even without substance,” Mizell argued in his bond validation suit.Without the Expedited Declaratory Judgment Act, “Legal questions regarding the validity of any proposed actions of a district would, even if without merit, stop the sale of public securities by the state’s bond-issuing subdivisions, instrumentalities, and public corporations for needed public purposes and infrastructure,” HISD’s suit maintains.Mizell said that Clevenger’s claim that the litigation could keep the bond issue tied up for years is “just evidence at his attempt at a shakedown. If this is all about tying the bond issue up for years, that is the very definition of a frivolous and vexatious lawsuit.”
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