Tag: school consolidation

• JB
• Leo Bearman, attorney for the Shelby County Commission, and one of the lawyers who must now agree on a mediator in the school-merger case

After conferring with U.S. District Judge Samuel Hardy Mays, who is hearing the consolidated case involving rival plans for consolidating Memphis City Schools and Shelby County Schools, the various attorneys in the case have agreed to the appointment of a mediator in a last attempt to resolve the dispute prior to judgment on an injunction sought by the plaintiffs.

As a result of the new postponement, Tuesday morning’s scheduled hearing on the case in Judge Mays’ court has been rescheduled for May 3, the same date by which an appointed mediator would attempt to arrange a resolution of the case.

This is the second consecutive two-week delay mandated by Judge Mays prior to issuing a ruling.

The lawyers — representing MCS, SCS, the City of Memphis, the City Council, the Shelby County Commission, and other entities — will have their own meeting at 10 a.m. Tuesday in the Baker, Donelson legal offices, in an effort to agree on the identity of a mediator. If they do not agree, Judge Mays will appoint one himself.

The core of the case is a suit by Shelby County Schools, with the state of Tennessee as an associated party, against the Memphis City Council, MCS, and the Shelby County Commission, asking for a declaratory judgment against an ongoing effort to proceed with MCS-SCS consolidation.

By implication, the status of the Norris-Todd bill, passed by the legislature in January and signed into law by Governor Bill Haslam, is also at stake, as the plaintiffs’ preferred method of completing the merger that was approved by Memphis voters in a March 8th referendum.

Pending is Judge Mays’ action on an request by the primary litigants for an injunction preventing the Shelby County Commission from proceeding on its own merger plan, which involves the appointment of members to an interim all-county school board.

Mays will decide on the injunction by May 3 if mediation has been unsuccessful.

• JB
• Chism with media after hearing

The several parties to ongoing federal litigation concerning the ifs, whens, and hows of local school system merger will have to wait at least 15 days before getting their first ruling from U.S. District Judge Samuel Hardy Mays.

That’s because Mays, after conferring with attorneys from all the separate contingents on Monday, said he would wait to see if they could hash out a compromise agreement of some sort. That was his aim in summoning the lawyers back to his chambers for consultation, and he apparently made some headway, because nobody involved was saying anything afterward about it being impossible to work something out.

After a preliminary hearing last week, Mays had set today as a time for ruling on a request by Shelby County Schools and the state Education Department that the Shelby County Commission be enjoined from proceeding with their plans to appoint 25 members to a new interim all-county school board.

And the judge said that if the various litigants and defendants could not agree on a common course of action before 9:30 a.m., Tuesday, April 19, he would go ahead and issue his ruling on that date. If, on the other hand, an agreement was reached, that would obviate the need for such a ruling — and conceivably for a subsequent trial, for that matter.

Sidney Chism, chairman of the county commission and a spectator at Monday’s abbreviated hearing, commented afterward, “I think everybody would try to work something out, because, if we stay in court, it would be a long drawn-out battle and very expensive.”

Word from Chism and other principals involved in the litigation was that Memphis Mayor A C Wharton, an old hand at compromise, was taking charge of finding a solution. And, while nobody was willing to be specific about particulars, there was speculation about amending a key provision of the Norris-Todd bill, recently passed by the General Assembly and signed into law by Governor Haslam.

The bill’s validity and precedence over the private act which the county commission is relying on is one of the issues at stake in the current federal litigation (as well as in a separate federal suit filed last week that U.S. District Judge Bernice Donald will deal with). The bill establishes a 2 ½-year timetable for the merger of Memphis City Schools with Shelby County Schools, after which, in August 2013, the creation of new school districts in Shelby County would be enabled.

Members of the county commission have previously indicated that abolition of the special-district provision of Norris-Todd would make that legislation more palatable — although, as Lawrence Giordano, an attorney for SCS, pointed out, the law is a Tennessee statute and state government would have to be involved in amending it.

Coals-to-Newcastle Dept.: A new federal suit has been filed relative to the ongoing school merger controversy, and this one — aimed primarily at the current Shelby County Schools board and the General Assembly’s recently passed Norris-Todd bill — seeks to declare Memphis City Schools officially null and void and to facilitate the makeover of the SCS board as the governing agency for public schools throughout Memphis and Shelby County.

Styled a “complaint for declaratory judgment and permanent injunctive relief,” the suit, filed Thursday morning, could well end up being absorbed within the case now being adjudged by U.S. District Judge Samuel Hardy Mays, who is due to issue a ruling Monday on whether the Shelby County Commission should be enjoined from proceeding with its plan to appoint 25 members of an interim all-county school board.

The existing federal lawsuit was filed by Shelby County Schools, which was joined in the action by the state Department of Education.

Plaintiffs in the new suit, represented by Allan Wade (who doubles as the City Council’s attorney in merger-related cases) are four Shelby County residents: Eddie Jones, Kathryn Leopard, Jason Pearson, and Regina Guy. As the suit notes, all but Leopard are African Americans. Jones, Leopard, and Pearson reside within the Memphis city limits; Guy lives in outer Shelby County.

Essentially, the suit maintains that MCS, as a special school district chartered in 1869, conclusively ceased to be, under terms of a 1961 Private Act, when the Memphis City Council voted to terminate it. The suit further disputes the former legality of MCS as a special school district on grounds that it did not possess taxing authority and maintains that any doubt as to its defunct status was resolved by the Council’s action on February 10 in formally dissolving it.

The suit alleges that the same facts make illegitimate the Norris-Todd bill of this year, which provides for the continuation of the temporary existence of MCS until 2012; the suit further alleges that state law makes the SCS board the proper governing authority for all public schools in Shelby County but that the board, unless reconstituted to reflect proportional representation for all citizens of Shelby County, including Memphis, is in violation of the Constutition’s “one person/one vote” provisions.

Efforts by the currently constituted SCS boad and its sympathizers In the legislature to maintain the existence of two side-by-side school boards and/or to allow the subsequent creation of new special school districts in Shelby county are attributed to “motives wholly unrelated to the best interests of the public school children of the City of Memphis, but rather…purposefully intended to maintain the current racial balance of the two (2) school systems.”

Formally, the Shelby County Commission is designated as a co-defendant (along with county mayor Mark Luttrell), but the suit essentially seeks a judicial mandate for the county commission to continue with actions it has already initiated under its proposed 25-district formula — in the language of the suit: “to adopt a plan establishing districts from which members the Board of Education of the Shelby County Schools can be elected that guarantees to all qualified voters of Shelby County one-man one vote guaranteed by the Fourteenth Amendment to the United States Constitution.”

• JB
• Commission attorney Leo Bearman with media after hearing

Round One of what will be many legal encounters to come on the issue of local school-system merger took place Thursday in the federal building as U.S. District Judge Samuel Hardy Mays conducted a status conference with lawyers representing parties to one aspect of the dispute.

The specific issue is whether the Shelby County Commission, which has created 25 provisional districts for a unified all-county school board and interviewed almost 200 candidates for them on Wednesday is legally entitled to continue with that process.

The Shelby County Schools board has sued the county commission, as well as Memphis City Schools and the Memphis City Council in an effort to block the committee process, citing what it sees as an overriding formula for MCS-SCS merger specified under the terms of the Norris-Todd bill, recently passed by the legislature and signed into law by Governor Haslam. The state Education Department has joined into that suit, and the various affected entities, including the federal government itself, were all represented.

Judge Mays’ courtroom often resembled a game of whack-a-mole, with one attorney rising as another one sat down, the process continuing in rapid sequence until all six or seven had been heard from in answer to one of Mays’ interrogatories.

The most immediate question was whether to grant the injunction sought by SCS and the state against further action by the commission. The matter was timely, in that the commission had planned to make its appointments on Monday. After considerable back-and-forth between Mays and the various lawyers, two alternative dates were agreed on as possible times for him to rule on the injunction request — 9:30 a.m. Monday, immediately before the planned commission appointments, or 9:30 the following Monday, providing that the commission was willing to postpone its appointments until then.

Judge Mays made it clear that he preferred having more time to sift through the evidence and issues and that he wanted to rule on a possible injunction before the appointments got made. “Once it’s done, how do you undo it?” he said.

Leo Bearman, the attorney engaged by the commission specifically to deal with legal questions relating to the merger issue, agreed to consult his clients, who agreed to postpone making any appointments before Monday, April 4, giving Mays a chance to rule on the requested injunction earlier that morning. (There will apparently still be a convening of the lawyers with Judge Mays next Monday, March 28, but the judge’s ruling will not occur on that date.)

A variety of dates were agreed upon during the hearing, including the key one of April 25, set as the deadline for ruling on dispositive motions — i.e., on the matter of which legal basis, the Norris-Todd law or the private act under which the commission is proceeding, should prevail. If the answer to that basic question is conclusive, the matter of a trial, provisionally set for September, could be rendered moot.

Given the gravity of the issues involved, Judge Mays maintained a light, if business-like, mood. The multiplicity of lawyers was a godsend for Mays, who has a penchant for delivering quips in a Southern drawl which has become ever more molassified during his tenure on the bench.

Typical of the judge’s many jests was his remark to one of the attorneys, as another possible hearing date got added to the provisional calendar, “There you go. You get to collect an even bigger fee.”

The levity was catching. At one point Bearman made a mock-complaint about a “facetious” remark made by a lawyer for SCS, to which Judge Mays replied, “The only thing worse is a facetious judge, but we won’t go there.”

• JB
• One candidate whiles away the wait as a spectator makes her feelings known

It took all day and into the night, but the Shelby County Commission managed on Wednesday to interview almost 200 candidates, eager to serve in positions that may never materialize, on a unified all-county school board that may or may not come to pass in something like the foreseeable future.

Beginning at 8 a.m. and continuing until almost 8 p.m., assorted commissioners manned their seats on the raised stage of the county building auditorium, hearing out a field of aspirants that included unknowns and the well-known and members of both extant school boards, the one representing Shelby County Schools and the one representing Memphis City Schools. For each of 25 positions, commissioners voted to single out a maximum of three candidates for non-binding recommendation.

The full commission — minus, presumably, the three holdouts from District 4, the county’s suburban rim, who boycotted the process on Wednesday — will select 25 appointees on Monday. Maybe.

The validity of the process happens to be under challenge — from the state Department of Education as well as the SCS board, both of which are seeking an injunction against the appointments from U.S. District Judge Samuel Hardy Mays, who had a status hearing on the case scheduled for Thursday.

The three suburban holdouts from District 4 — Terry Roland, Chris Thomas, and Wyatt Bunker — have maintained all along that the process is illegal and that no appointments to a unified board can be made outside a different formula prescribed by the Norris-Todd bill, now a state law after its fast-track passage by the Republican-dominated Tennessee General Assembly in January.

A commission majority has maintained that it, and only it, has the authority to make appointments — and its calendar calls for an active board by August 2012, a full year earlier than Norris-Todd envisions.

A united SCS front against the commission’s action was broken Wednesday when Ernest Chism, a senior SCS board member, allowed himself to be interviewed for Position #7. The commission’s grateful acceptance of Chism’s acquiescence, culminating in his inclusion on the list of recommendees, was in contrast to the treatment given MSC board president Freda Williams, an outspoken merger opponent who was denied the commission’s recommendation for District 25.

Three other MSC board members, Betty Mallott, Stephanie Gatewood, and Martavius Jones, were recommended; all were part of the MSC majority favoring merger — though Mallott had not initially been a supporter of the charter surrender that, approved by Memphis voters on March 8, was the necessary prelude to consolidation of the two extant school systems.

Asked by commissioners about the frequently heard challenge, mainly from the boycotting District 4 commission members, that members of the MCS majority that voted for charter surrender had in effect jumped ship and should not be reappointed, Gatewood responded, “Are they here? They’re not part of the process anyhow.”

As Wednesday’s interviewing process wore on, commissioners came and went in shifts as their itineraries permitted — though a hard core, including Commissioner Mike Carpenter, who chaired the event, and commission chairman Sidney Chism, stayed at the task throughout. At several points, commissioners expressed appreciation at a candidate field so good that it seemed to them an embarrassment of riches.

Not every interviewee had smooth sailing, however. Even some of those whose credentials sparkled got snagged on a checklist of delinquent or overdue property taxes kept by Commissioner Mike Ritz. And there were some whose eagerness to appear distinctive backfired — like the youthful Nicholas Pegues, who in defense of his candidacy read aloud a politely worded form letter from a representative of the Queen of England, acknowledging receipt of an unsolicited letter from Pegues to Her Majesty.

Although Judge Mays has indicated he will not entertain specific motions on Thursday, he could conceivably avail himself of the opportunity to offer the commission a green light for Monday or to brake it with a red light.

• JB
• Four District 12 candidates on their P’s and Q’s

• JB
• Chairman Chism with media after committee meeting

Toward the end of an Education Committee discussion Wednesday about a back-up redistricting plan for what will ultimately be a new all-county unified school board, Shelby County Commissioner Henri Brooks observed, “We’re having the same debate that we’ve had for the last three weeks. We just need to move forward.”

It was hard to dispute the commissioner’s observation about the fact of redundancy.

Wednesday’s committee session concerned whether or not the commission, which had previously approved a provisional 25-member school board, should also prepare a contingency plan for a reapportioned board of seven (the same number as the current Shelby County Schools board) in case the courts should require one.

But the discussion Wednesday had less to do with that legal possibility than with the continuing reluctance of a commission minority to endorse a plan that might conflict with the Norris-Todd bill, recently enacted by the state legislature.

As Wyatt Bunker, one of three representatives from District 4, which serves the outer county, put it, “We’re throwing bunch of stuff on the wall and seeing what sticks…It’s like elementary school….It seems like desperate grasps at trying to redistrict, trying to gain power, when we know that there’s a law in place….” That view was repeated, with variations, by Terry Roland, another District 4 commissioner, and by Heidi Shafer, whose District 1 constituency contains an overlap of city and suburban populations.

Mike Ritz, who also represents District 1, contended that commission’s proceeding with a transition plan, including provisions for new school board districts, is in no “inherent conflict” with Norris-Todd, though he argued that the later “was prepared to stall the merger of the two school systems” and to open up the possibility of new suburban special districts at the end of its prescribed 2 ½-year planning period.

Shafer’s tack was that there was indeed an inherent conflict, that the commission’s action and those prescribed by Norris-Todd “can’t exist in the same sphere,” and that if the commission just waited until a legal ruling could clarify the matter. Otherwise, the commission would be doing “twice as much work” needlessly.

“We can walk and chew gum at the same time. It’s better for us to have a [contingency] plan and not need one than to need a plan and not have one,” countered District 5 commissioner Steve Mulroy. And committee chairman Walter Bailey pointed out that a lengthy appellate process would follow in the wake of any forthcoming legal judgment. “We need to have positions in place. Otherwise we’ll just be at a standstill,” Bailey said.

As has often been the case in debates on the matter of the commission’s involvement in moving forward with a merger plan, Roland insisted on having the last word: “This is a back door deal,” he maintained, an attempt by consolidation advocates to achieve an end “they couldn’t win that the ballot box.”

Roland wondered: “How come, if you are fighting for something in Memphis, you’re an activist, but if you’re fighting for something outside in the county, you’re considered a racist? …We’re not all white. We will fight this to the bitter end, tooth and nail.”

At the end of the committee hearing Wednesday, the backup plan passed by an 8 -2-1 — Bunker and Roland voting no, Shafer abstaining.

“We can agree to disagree. Let the courts decide,” said District 3 member Sidney Chism, the current commission chairman, who has pushed for expedited action on creating a unified school board under commission auspices. He told reporters after the meeting that the commission would keep to its schedule, which includes interviews with prospective members of a 25-member interim School Board on Wednesday, March 23, with appointments made on Monday, March 28.

• Mayor Luttrell

As it turned out, Shelby County Mayor Mark Luttrell supplied one of the first in what will undoubtedly turn out to be a series of complications arising in the aftermath of last week’s citywide referendum on transfer of authority for Memphis City Schools to Shelby County Schools.

In a letter dated Monday and dispatched to Shelby County Commission chairman Sidney Chism and the rest of the county commission, Luttrell advised that with “great deliberation” he had chosen not to sign the package, which included an ordinance and two resolutions, that the commission recently passed in order to begin its own plan of transition to an expanded all-county school board.

Luttrell’s stated reason was that the measures — which increased the number of current SCS board members and provided for interviewing, then appointing candidates to fill the new seats — conflict with the Norris-Todd bill, passed by the General Assembly on February 11. That bill, later signed into law by Governor Haslam, provided for a 2 ½-year itinerary toward merger and prescribed a planning commission to which Luttrell and others were to make appointments.

In line with a prior advisory from Kelly Rayne, his appointee as county attorney, Luttrell described Norris-Todd as “the prevailing authority…presumed constitutional until such time that it is successfully challenged.” Luttrell said the commission’s package might also conflict with the county charter and with 1923 private acts that govern the county school board.

Informed of the letter’s contents, Chism said, “It’s political. Obviously I don’t agree. It’s obvious, too, that the bill {Norris-Todd] is unconstitutional, and it’s hard to imagine that a judge would ignore the will of the people who voted on March 8.” Chism also noted that Luttrell had not attempted to veto the commission package. “His signature doesn’t matter. He knows we would override a veto. We’re going straight ahead with our plans.”

Another commissioner who supports the commission’s merger package is Mike Ritz, a Republican like Luttrell (and like state Senator Mark Norris and state Representative Curry Todd, authors of the Norris-Todd bill). Ritz said of Luttrell, “Maybe he expects us to use the attorney we hired [Leo Bearman] to sue him. We haven’t considered anything like that yet.” Like Chism, Ritz said he doubted any additional actions were required to implement the commission’s package.

“We’re going to follow our schedule — interviewing candidates on March 23rd and appointing members on the 28th.” Ritz said that, in addition to 18 new members representing city districts, the commission would probably reappoint six of the seven current members of the county school board for the remaining seven seats.

“I doubt that [current SCS board chairman] David Pickler could get seven votes,” said Ritz, noting that three commissioners representing District 4, the outer county, had chosen to boycott the commission’s appointment procedures.