Bernice Donald – Memphis Flyer

There has been no public word yet as to the likely appointee to succeed retiring Federal Appeals Court Judge Bernice Donald, but one name seems to be surfacing more than others in speculation as to who will get the Biden administration’s nod.

That would be Andre Mathis, a member of the Butler Snow law firm’s commercial litigation and labor and employment groups. Mathis’ focus, according to his bio, is on “representing businesses and governmental entities with regard to contract disputes, employment litigation, internal investigations, education law, transportation litigation, premises liability, and financial services litigation.”

Among other lawyers likely to have been considered was the omnipresent Steve Mulroy, a University of Memphis law professor and former county commissioner.

• One of the key factors in the overwhelming support given to new Shelby County Democratic Party chair Gabby Salinas at the local party’s recent convention was the direct involvement on her behalf by the Memphis AFL-CIO Labor Council, headed by United Steelworkers President Irvin Calliste, assisted by such youthful AFL-CIO staffers as Jeffrey Lichtenstein and Sweetrica Baker.

The labor contingent taking part in the Zoom convention is estimated to have numbered in the hundreds and represented the same stepped-up commitment of resources and energy to Democratic causes as was visible locally in the “Blue Wave” election year of 2018 and the Biden-Harris presidential campaign.

• Although sparks may continue to fly involving a recent conflict in county government about how employees receive a bonus payment and how they’ll be taxed on it, the way was finally cleared for the bonus amount — ranging from $1,600 to $5,000, depending on tenure — to be paid on September 15th.

At a specially called meeting last week, the commission approved a formula to include the payment on employees’ regular payroll checks as of that date, and to be taxed according to their established withholding data rather than at a 22 percent formula that federal bookkeeping procedures can apply to add-on payments.

The larger rate, originally designated by County Financial Officer Mathilde Crosby, had been vocally protested by numerous employees who disliked having to surrender that much of the bonus, bestowed on them during budget proceedings along with a 1.5 percent pay raise in their regular salaries.

Commissioner Edmund Ford Jr., who has been in continuous disagreement with the administration of Mayor Lee Harris over numerous matters, had voiced irate suspicions that, in originally setting the higher tax rate, the administration might either have unspecified ulterior motives or have been unduly negligent. He noted that the city government had accomplished similar bonus payments for employees at their regular withholding rate.

Crosby attempted to assure him otherwise regarding his concerns, and, upon looking further into federal tax requirements, concurred that the withholding tax rate would suffice if the bonuses were incorporated into the employees’ regular pay schedule.

The “conflict” was more apparent than real, and commissioners gave the withholding formula their unanimous approval at last week’s special meeting.

• The commissioners are due to tackle a resolution on Wednesday to invite federal monitors back down to Shelby County to investigate questions of racial inequity and misconduct on the part of Juvenile Court.

The monitors, who a decade ago responded to complaints from former Commissioner Henri Brooks and others, found a series of problems to be redressed and mandated improvements. During the Trump administration then-County Mayor Mark Luttrell announced that the reforms had been accomplished and succeeded in getting the monitors withdrawn.

Skeptical Democratic commissioners — including Reginald Milton, Tami Sawyer, and Van Turner — are behind the request to return the monitors, a request which apparently also has the support of former chair Eddie Jones. Republican commissioners might well demur, but the Harris administration, with its emphasis on improvements in juvenile justice, is presumably open to the monitors’ return.

One of our readers asked a good question about a story earlier this week about the settlement of a 1965 school desegregation lawsuit in Fayette County, Shelby County’s sparsely populated eastern neighbor.

“Why did it take 47 years?”

I wish I knew. I tried unsuccessfully to reach U.S. Attorney Edward L. Stanton, III in Memphis and Assistant Attorney General Thomas E. Perez at the Justice Department in Washington and Mitchell Rivard in the communications office of the Justice Department. Stanton and Perez were quoted in the press release calling the Fayette County case “a significant landmark” in desegregation and enforcement of the 1964 Civil Rights Act in school districts “a top priority” of the feds.

So important that it was announced in a handout that nobody was available to discuss. But that is another story for another day.

The Fayette County settlement is interesting for a couple of reasons. Its proximity makes it a potential flight option for unhappy residents of Memphis and Shelby County. And the settlement (consent order, in legal language) requires the district to implement a “controlled choice program” to racially rebalance schools. Carrots and sticks, but no busing.

And the timing? Mere coincidence?

The rebalancing standard is a racial ratio within 15 percent of the ratio of black and white students in the county school system as a whole. Readers may remember seeing this before in 2007 when then-U.S. District Judge Bernice Donald ordered it (with some allowances) for the Shelby County School System which she refused to release from the grip of the federal court. She was overturned by the Sixth Circuit Court of Appeals in 2009 in a 2-1 decision, and in 2011 she was elevated to the appeals court herself.

Depending on what happens the rest of this year with the Shelby County Commission suit on municipal schools, maybe she will get a Shelby County do-over.

It’s not like judges are not human, not subject to political pressure, don’t get it wrong sometimes, and don’t change their minds. There is plenty of evidence of all of those things in the court records of school desegregation in Memphis and Shelby County.

Court-ordered busing in the Memphis case in 1972 was upheld 2-1 by the appeals court, but history would show that it was dissenter Paul Weick who got it right: “The burden of eliminating all the ills of society should not be placed on public school systems and innocent school children.”

Donald was openly critical of herself and “the court” in her 2007 ruling. She wrote: “The court’s failure to adopt clear and unequivocal guidelines for achievement of the court’s goals is in large part responsible for the fact that the county is seeking unitary status some 44 years after this suit was first filed, at a time when the county system is in some respects more racially polarized than in the distant past.”

But her order for a “special master” to oversee school-by-school rebalancing, scary as it sounded to some people, never came to be. She was overturned on appeal: “Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.”

As in Memphis in 1972, there was a powerful dissent to the Shelby County case (Robinson v. Shelby County Board of Education) in 2009. In light of the pending federal lawsuit on the constitutionality of municipal schools, it is worth quoting at some length: “Nothing — not the agreement of the parties jointly to seek dissolution of the desegregation decree, not the number of years that this case has been pending and the general progress in race relations nationwide that has occurred in that time, and not the eagerness of the courts or school boards to restore local control over community schools — can substitute for evidence showing the Board’s compliance with the desegregation decree. The evidence in fact reveals that among the forty-four schools for which the Board has data, two thirds of them are not in compliance with the flexible benchmark set forth by the district court for measuring racial balance . . . Because the parties have not carried their burden of showing that the racial disparities that continue to plague the County’s schools are not the vestiges of past unlawful discrimination, I would affirm the district court’s judgment.”

The Fayette County settlement (the Justice Department in Washington has domain over all cases involving enforcement of the Civil Rights Act of 1964 in schools) suggests that the plus-or-minus 15% standard could be back in play, along with “controlled choice programs.”

Attorneys for the Shelby County Commission argue that muncipal schools would amount to segregation, or resegregation.

You don’t have to read through a pile of legal briefs and judicial rulings to get some perspective on this. You just have to look at the brief history of Southwind High School.

It was built in 2006 and opened in 2007 after Shelby County built and opened Arlington High School in northeastern Shelby County. Arlington is majority white. Southwind was nearly all-black the day it opened. It is in a Memphis annexation area. A planning official once stated in an affidavit that if Memphis completed the annexation (which it has not), the black enrollment in Shelby County schools would be 7.6 percent, not 35 percent as it was in 2007.

Southwind was located on an expensive piece of land at Hacks Cross and Shelby Drive. A less expensive site was rejected. That site was farther east and would have changed the demographics of the new high school.

Southwind High was a joint project of the city and county school boards. The understanding was that it would become a city school, meaning it would not be “racially identifiable” — a key legalism — in a system that was 90 percent minority. The Memphis superintendent at the time, Carol Johnson, signed off on it, then left a year later. The annexation was delayed, giving residents of Southwind and Windyke subdivisions another six years of no Memphis property taxes. Mayor Herenton disavowed annexation, saying “mayors don’t annex.” The City Council disavowed it too, after agreeing on annexation boundaries that excluded certain subdivisions under development next door to Southwind High School. The Office of Planning and Development was left holding the bag. It was politics at its finest.

Bernice Donald mentioned it in her order, and the appeals court mentioned it in their reversal: “The annexations by the City of Memphis, along with voluntary housing choices made by the public, have drastically altered the racial composition of the school district. In addition, school construction and student boundaries (including the new Southwind High School) approved by the district court over the past few decades have affected the present racial unevenness. Although the district court now faults itself for “rubber-stamp[ing]” school construction and zoning requests, its role in managing and shaping the school district cannot be ignored.”

Judge Donald never explained her curious ruling, self criticism, or change of direction. And to this day, no city or county mayor or school superintendent has explained the hows and whys of Southwind High.

Everybody’s baby is now nobody’s baby.

Long answer to a short question, but that’s why school desegregation cases hang around for 45 or 47 years. And we are not done yet.