Norris-Todd – Memphis Flyer

As the current session of the Tennessee General Assembly heads toward its conclusion, either late this month or early in May (see cover story, “Nashville Gets Serious”), two questions of serious concern to the Memphis area are about to be revisited.

Up for reconsideration this week are the voucher bill, co-sponsored by state Senator Brian Kelsey (R-Germantown) and state Representative Harry Brooks (R-Knoxville), and a measure enabling de-annexation, sponsored by state Senator Bo Watson (R-Hixson) and state Representative Mike Carter (R-Ooltewah).

The voucher measure, a variant of which has been brought up unsuccessfully by Kelsey for years, may have its best prospects for passage yet — its odds improved by the fact that it is styled as a “pilot program” restricted to the Shelby County Schools district alone.

Brian Kelsey

That fact removes some of the onus from legislators elsewhere in the state who might be deterred by the prospect of immediate blowback affecting their own districts. In much the same manner, the way was cleared in 2012 for the Norris-Todd bill, which eliminated a freeze on new special school districts in Tennessee and allowed new suburban districts in Shelby County, when Norris-Todd was successfully revised to apply only to Shelby County.

The difference, and it could prove to be major, is that support for Norris-Todd was relatively stout in the major suburbs of Memphis, represented by several key legislators, notably state Senate Majority Leader Mark Norris of Collierville, the bill’s chief author, while a majority of Shelby County legislators, Republican and Democratic and from Memphis and as well as its suburbs, are on record as opposing vouchers.

And the Kelsey bill prompts doubts as to its ultimate constitutionality, inasmuch as it fails to qualify as a “private” bill — i.e., one supported by a county’s chief legislative body. That would be the Shelby County Commission, which voted unanimously in February to oppose the voucher measure.

In any case, the voucher bill, which has been hanging fire on the Senate side for a month awaiting action by the House, was placed on the calendar of the House Government Operations Committee last Thursday. Action was deferred until Wednesday of this week.

The Watson-Carter bill on de-annexation is essentially the same measure that was introduced last year, gaining quick passage in the House and getting immediate traction in the Senate, until an all-out resistance on the part of Memphis city officials, the city’s allies in other Tennessee cities, and the Greater Memphis Area Chamber of Commerce managed to get it postponed in the Senate State and Local Government Committee.

That reprisal was based on the understanding that Memphis deserved the option of proposing its own formula for de-annexation — one presumably kindlier than the Watson-Carter version, which provided a fairly easy means for any area annexed by a city since 1998 to hold a referendum to gain its independence. A hastily appointed city/county task force came up with a formula for “right-sizing” the city and allowing a relatively graceful exit of such hotbeds of de-annexation sentiment as South Cordova and Southwind-Windyke.

But the right-sizing plan envisioned that implementation would be postponed until 2021, a fact unsettling to local de-annexation activists. And, instead of promptly giving the plan an up-or-down vote, the city council has opted for a more deliberated response, allowing for a series of public meetings in the potentially affected areas and envisioning possible referenda in those areas later on.

Both those facts moved Carter and Watson to schedule new action on their bill, which was first reset for last Thursday’s calendar of the Senate State and Local Government Committee and then postponed for action by the committee on Tuesday of this week.

Judge Mays

The long-awaited ruling from U.S. District Judge Hardy Mays concerning the municipal-schools issue has come down. In a 65-page ruling, Mays has found Chapter 905, the enabling legislation from the 2012 sesson of the General Assembly unconstitutional, effectively putting a stop to the plans of six Shelby County suburbs to set up special school districts for the 2013-14 school year.

Mays further held in abeyance the question of the constitutionality of two other pieces of enabling legislation — Chapter 970, also from the 2012 session, and Section 3 of Chapter 1 of 2011 (a.k.a. Norris-Todd), which first authorized the lifting of a long-standing state ban on new special school districts.

That original legislation — by state Senator Mark Norris and state Representative Curry Todd — was conceived in response to the then pending surrender of the Memphis City Schools charter, already voted by the MCS board and later ratified by the Memphis City Council.

It was the fact of charter surrender that made merger of MCS and Shelby County Schools inevitable and forced the hand of those in the suburbs who desired to keep their schools independent of the Memphis system.

Chapter 905 was an add-on bill offered by Norris and Todd last spring as a means of circumventing a ruling by state Attorney General Robert Cooper which prevented any preliminary activity toward creating new districts until August 2013, the date specified by Norris-Todd.

In striking down 905, Mays found credible and compelling a mass of testimony and evidence — including videos of sponsors’ statements from the legislative session — that plaintiffs had offered during a September trial as proof that the 2012 legislation was intended by its sponsors to apply only to Shelby County.

As the judge summarized things in his ruling, “The Municipalities cite portions of the legislative history in which references are made to ‘counties’ or in which the possible application to a few other counties is mentioned. …

“There is in the history a sense of a wink and a nod, a candid discussion of the bill‟s purpose occasionally blurred by a third-party correction. The history is clear, however, that the bill never would have passed had it not been intended to apply only to Shelby County.”

That fact rendered Chapter 905 a private bill disguised as a general bill, Mays said in declaring it null and void. Bills applying only to a single county must be ratified by the chief legislative authority of that county. That would be the Shelby County Commission, the major plaintiffs in this case, who were not consulted on the measure’s passage.

Said Mays: “Although general in form, Public Chapter 905 is local in effect. Because it does not include a provision for local approval, Chapter 905 is VOID under Article 11, Section 9 of the Tennessee Constitution. All actions taken under the authority of Chapter 905 are VOID. The Municipalities are enjoined from proceeding under Chapter 905 to establish municipal school districts.

“The Third-Party Plaintiffs are invited to submit additional arguments, both factual and legal, addressing only the constitutionality of Chapters 970 and Section 3 of Chapter 1 under Article 11, Sections 8 and 9 of the Tennessee Constitution. Those arguments should be submitted not later than December 11, 2012, and should not include further references to legislative history. The Third-Party Defendants may respond no later than December 27, 2012.”

Judge Mays entered his ruling on the eve of his departure for a brief vacation. He had held off releasing it until court-ordered mediation sssions between the parties last week ended with no agreemnt in sight.

The ruling would appear to be a clear victory for the plaintiffs in the case — the Shelby County Commission, the Memphis City Council, and the City of Memphis — and an equally smashing defeat for the five suburbs — Grermantown, Collierville,Bartlett, Lakeland, Arlington, and Millington — whose voters had authorized the special disricts in the August 2 election and elected school boards on November 6.

Shelby County Commission chairman Mike Ritz, when contacted some 15 minutes after the ruling became public at 7:50, declared, “It looks like we got what we asked for.”

Ritz would elaborate on that after completing his reading of the court document. “This means that everything the suburbs have done thus far is canceled out, and I don’t believe they will ever convince Republican legislators elsewhere in the state to legislate an alternative applying to the whole of Tennessee.”

A Commission colleague, Steve Mulroy, who had predicted the form of the outcome earlier on Tuesday, said simply, “We won.”

Indications were that the suburbs would simultaneously appeal the Mays ruling and make a preliminary start on a possible network of charter schools.

Such schools would have to be approved by local school authority — in this case the Unified School System board — but the suburbs could expect more help from Norris and, for that matter, from the charter-friendly administration of Governor Bill Haslam, which has already compelled boards in both Shelby County and Davidson County (Nashville) to reverse decisions against charter school applicants.

Whatever further action the suburbs take, the ruling seems to have made it clear that the August 2013 school year will begin with the Unified School District serving as the public school jurisdiction for all of Shelby County.

Bartlett Mayor Keith McDonald, a consistent spokesperson for the municipal-school movement, said upon learning of the Mays ruling, “We’re wounded, but we’re not dead.” McDonald conceded that the ruling made municipal systems imposible for the 2013-14 school year but held out hope that Norris-Todd might still be found viable, permitting the suburbs to make a new start on Municipal districts after August 2013.

“There are all kinds of creative new ideas for public education, in both the state and the nation,” McDonald said, apropos the idea of seeking alternatives to the concept of municipal school districts. “As I’ve said for two years, we’re in this for as long as it takes.

David Pickler, the former chairman of the Shelby County Schools board, a current member of the Unified School Board representing Germantown and Collierville, and a proponent of municipal schools, said of the Mays ruling, “This is certainly a delay but not necessarily a defeat. It’s even an opportunity for all parties to the issue to engage with each other in a board room, not a courtroom, possibly to create a new vision that respects everybody’s rights and the principle of self-determination.”

More to come as things develop