Memphis Schools Update

[NitaX]

The Federal Judge will hear arguments surrounding the newest lawsuit on Thursday. I'm trying to find out if we can get Michael Buffer to open up the hearing ...



Judge sets Thursday hearing on "heavy burden" of whether to stop municipal school referendums
Judge to hear arguments over allowing suburban vote

By Zack McMillin

Originally published 10:09 a.m., July 9, 2012
Updated 11:12 p.m., July 9, 2012

Among the 23 lawyers proceeding into the courtroom of U.S. Dist. Judge Samuel "Hardy" Mays on Monday evening were several representing four suburban municipalities in Shelby County to argue against a County Commission request to stop referendums on whether to create new municipal school districts.

Mays, who has been overseeing litigation in the fight over the structure of the county's public schools, had granted the suburbs' request to jump into the fray. By the end of the hourlong status conference, he would instruct attorneys for all parties to come back Thursday morning for a hearing to determine whether he should stop the Aug. 2 referendums.

The judge offered comments that could be seized upon by either side — those wanting a unified Shelby County school district to start in 2013-14 and those who believe suburbs should be allowed to have referendums this year in order to avoid joining the unified district.

"No judge in his right mind wants to enjoin an election," Mays said, then countered: "On the other hand, if you let an election go forward and it's based on a void statute and you can see it's a void statute, then that's a mockery."

Another example came later when Collierville Town Atty. Tom Cates tried to persuade Mays that the suburban legal team, which will include
the recently hired firm of Burch, Porter and Johnson, would need more time to argue, even over the more narrow issues of whether 2012 legislation allowing the referendums is defective.

Cates suggested stopping referendums in which absentee ballots have already been mailed would be "draconian."

Mays interrupted and said: "I don't like the word draconian, but it is a heavy burden."

Earlier in the conference, Mays referred to his previous career as a fixture in Republican politics and the job he had under former governor Don Sundquist as chief of staff writing legislation and reminded Cates that the legislation allowing the election carries a burden too.

"It does seem a shame for a bunch of people to go out in good faith and vote and come to find out when you look at the statute you can't have an election because the statute is invalid. That gives me pause," Mays said. "I'm not saying (the statute) is. I don't know. But I can see how it might be."

One thing that will not be heard Thursday is any discussion of whether the effort to create municipal schools is race-based or otherwise discriminatory. Every attorney involved in the suit agreed with Mays that the commission's challenge to municipal schools on that basis will require much more time.

Mays said a hearing on that might take "a couple of months" because he could not "decide an issue of discriminatory effect ... without hearing proof. I've got to hear statistical proof; there's extensive case law. I've never known one without experts, which means everyone would have to have an expert."

Lawyers have until Wednesday night to provide final briefings on three issues, Mays said.

One is timing — what harm is done and to whom by either allowing the election to go forward or by stopping it?

Another involves what he called "jurisdictional" issues based on the filing by suburbs Monday claiming that the County Commission's June 26 filing was improper because it violated open-meetings laws and that the complaint violates the county charter's prohibition against county government interfering in the affairs of municipalities.

The final issue is the one Mays dwelled on the most — whether the 2012 legislation pushed through by state Senate Majority Leader Mark Norris, R-Collierville, is unconstitutional because it represents special legislation that can only apply to one county. (Nitaws note: TN has Private Acts that are enacted to deal with issues that pertain to one county. The Shelby County Delegation was split along party lines over this issue, and it was widely known there were not enough votes to pass a Private Act.)

He indicated that he would pay close attention to Article 11, Section 9 of the state constitution, which essentially says that special legislation comes with requirements such as a two-thirds majority approval of a county's legislative delegation.

The suburban filings claim the judge's order last August on 2011 schools merger legislation, known as Public Chapter 1, contains the argument upholding the additional 2012 legislation. Mays had identified two other Tennessee counties, Gibson and Carroll, as places where, if population shifts occurred, the legislation could theoretically apply. The suburbs used the judge's own words that "it may apply to other counties in the future if student population changes occur."

But Lori Patterson and Leo Bearman, the commission's lead attorneys from Baker Donelson, believe they can show proof of special legislative intent through the legislative history, with Bearman promising "a disc" or a DVD of highlights that would show legislators wanted assurance the 2012 laws could not be applied elsewhere in the state. (Nitaws note: Oh SNAP! But yeah, I saw those sessions, and TRUST, the legislators did ask about how this would impact them. They knew good and well that this would be limited to Shelby County.)

The first suburban legal response to the County Commission's third-party complaint focuses heavily on the precedent of judges being very cautious about stopping elections, especially those that had already begun. Mays several times made the point that each day an election continues and more voters cast ballots, the more "weighty" the decision to stop it becomes.

Regina Morrison Newman, an attorney representing the city of Memphis, did point out that no votes are counted until after polls close on Aug. 2. Early voting begins Friday.

The suburban filing at several points contains withering language aimed at the commission's complaint. Memphis and Memphis City Council attorneys indicated they agreed with the commission and would file motions to that effect.

The suburbs say the commission is "grasping at straws" trying to prove that allowing the referendums would cause irreparable harm, and that it "has offered no substantive allegations sufficient to back its fanciful doomsday rhetoric."

But Mays eventually decided that even if it was not possible to prove harm soon enough to stop the referendum, he wanted to make sure the statute allowing it is valid.

"Come prepared," Mays said. "We'll see how far we can get and see if anything can be done. If we don't get to the point of enjoining the election by then, then I don't think we can do it."

www.commercialappeal.com/news/2012/jul/09/lakeland-votes-to-join-other-suburbs-in-schools/

[iammalcolmx]

Why are they trying to stop the vote? Do they think it would pass?

[NitaX]

One - the crux of the argument is that the law allowing them to vote is unconstitutional. Instead of doing a Private Act, Norris and company passed a Public Act which means it should have statewide implications. A Private Act would be limited to just Shelby County and would be constitutionally valid. But, they didn't have 2/3 majority vote from the Shelby Delegation to pass it. So, they shouldn't even have this vote because the law is void.

Two - I don't know if anyone will bring this up, but again, you figure this is targeted only to one county because back in the 1980s, the state banned the creation of new school districts. They had been trying to do this for years and finally succeeded. Since then, Chattanooga and Hamilton County merged their school districts (1997). No new laws were created to allow other cities to opt out. In 2002, Covington and Tipton County Schools merged. Same thing. So now, suddenly Memphis and Shelby County can't do the same thing without new districts popping up? Oh ok.

Third - The cost. MCS gave up the charter because the way the law is written, the county does not have to fund a special school district. Considering that MCS was fresh off the heels of a legal battle with the City of Memphis to reduce its funding, the MCS Board felt it prudent to just give up the charter because there are no guarantees that the Shelby County Commission would continue to fund two special school districts (At the time Shelby County Schools wanted to become a Special School District).

A new state AG opinion says that Shelby County would have to fund any municipal school district in the county. When I say new, I mean as dated June 25, 2012. The SC Commission said oh Hellz No, we can't afford that and filed the lawsuit. Meanwhile, the suburbs haven't released any "real costs" to the citizens, and the SC Commission thinks it is going to be far more costly than people are being told.

I think I just covered everything. Whew.

[iammalcolmx]

So Shelby doesn't want to combine with Memphis schools is that right?

[Deleted]

And last night the candidates for state rep were saying every special district should merge. I don't think they were thinking through the implications.....

[NitaX]

Jul 10, 2012 10:59:37 GMT -5 iammalcolmx said:

So Shelby doesn't want to combine with Memphis schools is that right?

Yes. The suburbs call the merger a "hostile take over" and they don't want their kids "bused." 8-D

[NitaX]

Jul 10, 2012 11:00:38 GMT -5 @septimus said:

And last night the candidates for state rep were saying every special district should merge. I don't think they were thinking through the implications.....

Well, I think there is some validity because you can reduce some overlap and reduce the ADA split. Plus, cities can decide not to fund the school system (a la the MCS vs City of Memphis lawsuit). The research I did on the issue was that the state felt there were too many districts, and many were in the best financial position. And the state didn't want to fund a gazillion school systems. The hope was that eventually there would only be a county system operating in each county.

[Deleted]

Jul 10, 2012 11:03:27 GMT -5 NitaX said:

Jul 10, 2012 11:00:38 GMT -5 @septimus said:

And last night the candidates for state rep were saying every special district should merge. I don't think they were thinking through the implications.....

Well, I think there is some validity because you can reduce some overlap and reduce the ADA split. Plus, cities can decide not to fund the school system (a la the MCS vs City of Memphis lawsuit). The research I did on the issue was that the state felt there were too many districts, and many were in the best financial position. And the state didn't want to fund a gazillion school systems. The hope was that eventually there would only be a county system operating in each county.

I agree with you. By not thinking through the implications,I was referring to the fact that FSSD has a huge chunk of kids who are ESL and reduced/free lunch that would then be mixing with the county kids where most of the schools have less than 5% free/reduced lunch.