Prof. Wharton hints at Memphis's legal options

At a press conference today at his mayoral offices at City Hall, Memphis Mayor A C Wharton sounded like an old lawyer itching to make opening arguments in a legal case on the right of Memphis to surrender the charter of its special school district and transfer administrative control to Shelby County.

Rather than provide a normal narrative breakdown, I think it's instructive to just listen to Wharton's words and see how his legal mind works -- and understand why some have said he was such a brilliant courtroom lawyer. It's no coincidence that Wharton made such an impression as an attorney and law professor that one of his old students, John Grisham, based a character in one of his books on Wharton.

To begin with, Wharton's thoughts on the legislation from State Sen. Mark Norris that Gov. Haslam signed today:

"The bill was flawed from its very inception because no matter how you polish it up or amend it, it sets out to change the rules of the game in the middle of the game."
"I know various reasons have been assigned why the law had to be changed.

"'The schools were failing.' Well, they were failing two years ago -- nobody took any action.
"'We're sending a lot of money down there.' They've been sending a lot of money down here five, 10, 15 years ago -- nobody changed anything.
"Well, Memphis is big. Memphis was big five years ago, 10 years ago. Nobody set out to change it.
"It's just clear. You don't have to be Dick Tracy or a detective to see what happened here. Only when Memphis City Schools, whether you agree or disagree, followed a law that had been on the books for decades -- all of a sudden that law had to be changed.
"There is no way to amend the bill and erase that initial fatal flaw."

Then here is Wharton on possible legal action the city might take:

"I've already had preliminary discussion with City Atty. Herman Morris. We've had preliminary talks with Council Atty. Allan Wade and we will be getting together very shortly.

On legal grounds the city might pursue:

"I have my theories in mind.
"There's denial of equal protection. There are aspects of federal constitution embraced in state constitution, the law of land provision in the state constitution, and the fifth and 14th amendments deal with due process.
"There may also be some voting rights. I happen to have taught this and there are cases that are legendary throughout the south, in cities where they saw minorities getting the majority and they started changing the qualifications."
"Look what we have here. Six months ago Citizens of Memphis had the unbridled right to surrender the charter of Memphis City Schools and without anything else the enrollees in that school system would go back to their parents.
"Now what do I mean by that? When the Shelby County School system was chartered decadees ago it made a pledge to educate all of the children in Shelby County Tenn. That's why it's called a county school board.

"In a way, Memphis City Schools could be equated to a babsysitter who babysat those kids for a couple of decades and they are now saying we are bringing your children back to you -- because they (Shelby) have not relinquished their charter. They've always had the repsonsibilty for every child in Shelby County, Tenn. And the only thing that was required to send the children back home was to do as the board did on the 20th (Dec. 20, when the MCS board surrendered the charter and asked for a referendum to transfer administrative control). That's all that was required. If you were to ask the school system on that date, what else was required of them, the answer would be, 'Nothing.'

"But now other things are required. Again, you don't have to spend a day in law school to say, 'Wait a minute, something is wrong.'"

Wharton had other things to say, but this was his conclusion:

"I don't know what legal theory that is. It's like a Supreme Court justice said he couldn't define pornography but he knew it when he saw it. I can't tell you what it violates but I can tell you it stinks."