August 2011 Archives

We may not see a fully-elected county school board until Sept. 2014

More dispatches from the InBox, this time from the fine members of The CA's editorial board, asking about some of the logistics of how the 23-member countywide schools board will look. As background, recall that the settlement agreement the parties came to with U.S. District Court Judge Samuel "Hardy" Mays involves a new 23-member board, to take effect Oct. 1, that involves the nine current Memphis City Schools board, the seven current members of the suburban Shelby County Schools board and seven people selected from seven seats the Shelby County Commission officially created with its vote Monday to approve the deal (story on that is here).

That 23-member board, according to the agreement, will govern the two systems during the two-year transition period and also be responsible for adopting a transition plan as recommended by a 21-member transition planning commission under the terms of the Norris-Todd state law that guides transfer of MCS administration to the county. On Sept. 1, 2013, after merger has been completed, the 16 MCS and SCs members would evaporate. The judge has granted the County Commission his blessing to then create a 13-member board.

  • How does Judge Mays' order affect the Shelby County School Board election scheduled for next August involving three current members who are up for re-election?
  • Can current school board members resign their positions so that they can run in the election next August for the 7 new slots in order to extend their stay on the school board past the point at which they would otherwise have to drop off?

The agreement calls for all existing MCS and SCS seats to stay in place until Sept. 1, 2013. Those seats are never again subject to election -- the terms extend by one year for the three SCS and four MCS board seats that would've faced election in 2012. If a vacancy occurs in any of the seats, the Shelby County Commission will appoint someone from that particular district to finish out the term.

The seven NEW seats -- non-MCS and non-SCS -- will be subject to election in August of 2012. The County Commission moved forward with the process to appoint the interim members to those seats, and will have them ready to join the unified board on Oct. 1.

And, yes, the current MCS and current SCS members can indeed run for those countywide seats. As we understand it now, the current MCS and SCS members would not have to resign to run, which could make for some interesting dynamics on the countywide board if an appointed incumbent is being challenged by one of the elected MCS or SCS members.

  • How soon after the new 7-member Shelby County Consolidated School Board takes office in the fall of 2013 can the County Commission expand the board and hold an election to fill the slots?
  • Will the commission have to redraw the boundary lines and form a completely new board, or can it keep some of the original 7 members and hold an election to fill the vacancies?
The (up to) 13-member board can go into effect Sept. 1, 2013. Having talked to some commission members, a likely scenario involves the County Commission sometime early in 2013 passing an ordinance to expand to 13 members. The Commission -- with a 10-3 Memphis majority -- could redistrict the county for 13 seats, declare six seats vacant and appoint them, to take office Sept. 1, 2013. Those six seats are subject to election in 2014.

This is one reason why it may make sense for the current SCS and MCS members interested in staying on the countywide school board (not all of them are) to stand pat and NOT run for the 2012 seats -- they could just keep their political powder dry and hope the Commission will appoint them for the expanded 13-member school board. On the other hand, running in 2012 looks like a no-risk proposition since MCS and SCS members are guaranteed their seats through transition (however, politicians underestimate the risk of suffering a political loss at their own peril -- voters hate the smell of political weakness).
Even after the Commission does the likely expansion and redistricting to 13 seats in 2013, the seven people who are elected in 2012 would stay on until their terms are completed. However, it is possible some of those seven might be affected by the redistricting. If so, they would probably stay in office until the next regularly scheduled election.

Add all that up, and you can conclude that we won't likely have an entirely popularly-elected county school board in place until Sept. 1, 2014. Depending on your view of the judgment of Shelby County voters vs. the County Commission, that may or may not be a good thing.

Transition member looks closely at Louisville, New Orleans systems

One of Memphis City Schools five picks for the 21-member Norris-Todd transition planning commission, University of Memphis law professor Daniel Kiel, has published three law articles that make for very interesting reading. He's perhaps best known here for "Exploded Dream: Desegregation in the Memphis City Schools," which looks at how racist obstructionists forced the courts to impose remedies and how those legally-constructed remedies (forced busing, for one example), whatever their intentions, may have led to the erosion of both school quality and truly diverse school populations.

Kiel, a somewhat recent MCS grad (1990s) and Harvard Law School alum, has now also turned his gaze at the efforts by the Louisville-Jefferson County (Ky.) system to emphasize diversity in its school-zoning policies, and the transformation of the New Orleans public education by charter schools post-Katrina.

After the jump, find the links to the stories, with the abstract descriptions from Social Science Research Network. I'm planning to read them all myself (re-read the Memphis one again) and at some point will post about some of the key issues contained in them.

Clarifying transition commission vs. unified board

Today's story looking at the week ahead may have oversimplified the view state Sen. Mark Norris, R-Colliverille, holds about the relationship between the Norris-Todd transition commission and the 23-member countywide schools board that will take over on Oct. 1. This week we do expect more selections to the Norris-Todd transition commission, as well as seeing the the Shelby County Commission move to identify finalists for the seven districts that will be added to MCS and SCS board members for a 23-member board.

See below for the insert, with corrections noted. In a way, the oversimplification should help us all understand a little more clearly how the dynamic should work between the transition commission, the countywide board and the state Department of Education. And lest we forget, U.S. District Judge Samuel "Hardy" Mays will also have authority over the entire process, and plans to appoint a special court "master" to resolve any legal disputes that may arise.

Transition planning

One of the settlement agreement's provisions calls for appointment of a special court "master" to settle any legal issues that arise and assure the judge's orders are carried out correctly.

One possible issue: The relationship between the 23-member countywide schools board taking over Oct. 1 and the transition commission, which is called for by the new Norris-Todd state law. State Sen. Mark Norris, the Collierville Republican who wrote the bill, emphasizes that while the transition committee is advisory, the law is written such that the county board must follow its guidelines.

The settlement agreement last week says the new 23-member board "shall be responsible for adopting a transition plan," but Norris said it is the transition commission that is largely responsible for developing the plan (EDITOR'S NOTE: An earlier version oversimplified the Norris's assertions; he objected to the use of the word "mandatory" in the original story.)

"So what this is intended to mean is that whatever the transition planning commission comes up with is what this new board shall adopt, if you read it together," Norris said.

CLARIFICATION: Sen. Mark Norris clarified today that the new unified school board and the transition planning commission are to work together, along with the state Department of Education. The Norris-Todd bill requires the consolidation plan developed by the transition planning commission to be submitted to the state Department of Education for review and comments before the plan's implementation. Norris says: "They're to work together. The planning commission technically submits its recommendation to the state Department of Education. The new school board is to be working with the Department of Education. They can all work together."

And I elaborated on this in Comments below the story:

We have updated the insert on the relationship between the 21-member Norris-Todd transition commission and the 23-member combined school board (Note to Neil: It is seven new members from those seven districts added to the nine MCS members and seven SCS members).

Sen. Mark Norris emphasized to us last week that the transition commission would be coming up with the plan, and I may have over-interpreted comments he made to Nashville bureau chief Richard Locker. While Norris sticks to his assertion that the board "shall adopt" the plan created by the committee, he said the Norris-Todd law envisions a collaborative process.

One way to think about this process is that the board is the only entity with the power to APPROVE various elements of the transition plan -- curriculum, disciplinary policy, textbooks, ordering or leasing buses, districting, etc. Normally, the administration led by a superintendent makes recommendations that boards then approve; in this case, think of the Norris-Todd transition commission as more akin to the administration, with the countywide board having final authority and responsibility.

The state's Commissioner of Education also will have a real voice in transition, too.

As the insert did point out, the special court master may indeed have something to say about the relationship between board and transition commission. Judge Mays' voice as a federal judge ultimately trumps the state in this matter, because he found a federal violation (Memphians lacked representation) and is overseeing a process to remedy it.

Merger process to accelerate this week

This morning we look ahead to what will be a pivotal week for schools consolidation, with the Shelby County Commission moving forward approve seven new school board districts covering the county and to identify finalists for those seats. Appointments to the Norris-Todd transition commission will also likely be finalized, and that board's composition, as the SCS board pointed out, may be even more important than that of the combined 23-member countywide school board a settlement agreement has set up to oversee both Memphis City Schools and Shelby County schools and manage the two-year transition process.
"I think we've got the potential for building a really solid transition team," Luttrell said Friday.
On Sunday, Jane Roberts explored how the commission plans to go about selecting its seven members. Although the combined board does not take over until Oct. 1, the commission wants to have its members chosen and ready to go before then.
"We are looking for people who've got some skin in the game -- either children or grandchildren in the public schools -- and something to offer besides political acumen of some kind," said County Commissioner Mike Ritz.
Also on Sunday, Wendi Thomas worked through her incredulous reaction to SCS board chairman David Pickler's pivot from vehemently opposing consolidating Memphis and suburban students into one system to an advocate for embracing the "opportunity" to come together and build a "world class" system.
Those who always believed what Pickler now claims he believes -- that the merger is a historic chance to create a new educational model -- may find it hard to stomach this about-face. That said, Pickler must be allowed to reverse course. How can mature adults hope for change if we cement people in their original stance, barring them from opportunities to grow, evolve, learn and change their minds?

And on Saturday, SCS Supt. John Aitken talked to us about his meeting with MCS Supt. Kriner Cash to formulate a plan for getting staff to start the hard work of figuring out how to combine operations of the two systems.
"It was really an informal get together," Aitken said. "We got our calendars together, outlined next steps, what we need to hit first, second, third and get the departments together on it."

Taking fuller look at MCS transition picks

We had to condense our story this morning on SCS and MCS boards meeting to approve the merger settlement deal -- and MCS making its picks to the Norris-Todd transition commission. So here is a fuller report from Jane Roberts, who knows MCS better than any media member in the region (see posts below for some things that did not make it from the SCS meeting).

The board Thursday also selected its five members of the 21-member transition committee that make recommendations to the larger, unified board. In a blind ballot, it selected: Kenya Bradshaw, local and state director of Stand for Children; Barbara Prescott, longtime community leader and former three-term MCS school board member; Fred Johnson, former superintendent and board member in Shelby County Schools who also held administrative positions in the city schools; Reginald Green, also a former superintendent who helped in the merger between Louisville and Jefferson County, Ky., schools, and Daniel Kiel, the University of Memphis law professor who helped people understand the objectives of both school districts last winter when civic groups across the county invited him to lead panel discussions.

The Memphis board is the first to select its transition picks. Five will also  be named by SCS board chairman David Pickler and Shelby County Mayor Mark Luttrell. Three other nominations will come from Nashville, including a pick from Gov. Bill Haslam.

Using an airplane analogy, board president Martavius Jones said the 23-member Shelby County School board will guide the merger at 30,000 feet. "The transition committee will operate at 15,000 feet," he said, making decisions based on their varied expertise that will bring the new district into being.

All board members, except Sara Lewis, nominated members. Bradshaw, Green and Johnson were nominated by several board members.

Kiel, who was in the audience, said he readily accepted the nomination. "My wife and I are born and bred Memphians. This is an issue dear to us," he said after the meeting.

By selecting first, the MCS board hopes to set a high standard for whom will be selected by other boards, several members said.

 "This is a group of people who I feel will come in with unbiased attitudes and unbiased an outlook and make recommendations to then 23-member board as far as what we need to take this school district forward," Jones said.

"I am very pleased with diversity of the group,"  he said, pointing out that Green is a Collierville resident.

He hoped Luttrell and Pickler's choices would "fill the gaps" in the lineup, saying that the Memphis board did not select any business leaders or technology experts.

It also did not select any parents, although several were nominated.

Memphis City Schools board voted 7-0 to approve the agreement. Tomeka Hart and Rev. Kenneth  Whalum were absent.

Board members praised the dedication of the team that represented them and all parties to the lawsuits in the mediation.

"I am rather proud for all the publicity this mediation has received," said board member Betty Mallott, "because it has been so well done and I am sure much credit goes to Judge Mays," she said, reminding the public that the future months represent a rare opportunity to craft a premiere education system.

She also encouraged her colleagues on the board  to carry notebooks with them "to record the hopes and fears people express to you. Every little nugget will be of value in the planning process....this is how we listen to our public and address the things they tell us."
By the way, three of those five wrote guest opinion pieces for The CA during the charter surrender process: Kiel is here, Prescott is here and Johnson is here.

At Thursday's Shelby County Schools meeting, many members felt the need to explain their decision to agree to a settlement that moves schools consolidation forward. The short version -- even though it's a 23-member consolidated boad with 14 Memphians and 9 suburbanites, that was absolutely the best deal we could hope to get. Today's story looks at some of those comments, but it's worth teasing it out some more -- because what went unsaid is that the settlement agreement is likely much better than what might have happened if SCS had pushed an appeal and made the judge go with a unilateral ruling.

The longtime chairman of Shelby County Schools, Germantown attorney and financial advisor David Pickler, said that the Aug. 8 ruling by U.S. District Court Judge Samuel "Hardy" Mays was essentially the end of the fight against consolidating Memphis City Schools with SCS. Once Mays demonstrated in his meticulous ruling that a) Memphis had properly and legally surrendered the MCS charter so that B) Shelby County had ultimate responsibility for public education of Memphians, the game was over. Or, to use a football analogy, it was 4th down and about 99 yards to go for SCS. So SCS could have appealed, but getting an appeals court to issue a stay was unlikely and the very real risk was that consolidation could have gone forward with a much diminished suburban voice.

I talked to Pickler after yesterday's meeting, in which he continued his unadorned pivot from consolidation opponent to proponent of the new process, and asked him to explain to suburbanites why SCS chose not to keep fighting.

Pickler: "When the judges ruling came out, the nature of the way he did that it virtually ended any realistic possibility of any appeal or any further legislative action. It became very clear, in consultation with our attorneys, that the path before us was very clear. We were moving toward a combined school system. At that point, we needed to insure the voices of suburban Shelby County, the voices of all throughout this community were given the most weight as we move forward with the process."

But SCS had already spent well in excess of $500,000 in legal costs -- why not keep going?

Pickler: "At that point, an appeal would have simply been a waste of taxpayer dollars. I do believe the dollars that were expended did provide an opportunity for all of the parties to come together with what I believe is an incredible opportunity. When was the last time you had the City Council, the County Commission, the city school board, the county school board all come together with a combined voice and a combined focus looking for the best interests of education for every child in this community."

Pickler looked like a man who may have missed some sleep over the last few weeks, but his usual energy and focus for advocating his position to the max was undiminished:
 "I think the outcome was fantastic for everyone. Now, the real work is whether or not we can come together, bring all of our resources together and develop that world class school system that everyone knows this community is capable of."

Former election chief suggests abandoning county

Having had many, many conversations with former Shelby County Election Commission chairman Bill Giannini about the fractious school debate and the dangers of painting anyone on any side with a broad brush, it was interesting to see his Facebook post responding to the schools consolidation settlement:
Screwed, blued, and tattoed... The same idiots that ruined MCS will now get to do it to SCS... I hear Atoka is nice this time of year....
During the Memphis City Schools charter surrender crisis last winter, Giannini received what he felt were very unfair attacks from critics who said he was somehow in cahoots with state elections officials trying to block or delay the referendum Memphis wanted to have on whether to transfer administration of MCS to the county (and, effectively, force schools consolidation on the suburban Shelby County residents who did not want it). Eventually, of course, the referendum was scheduled and executed, with 70 percent of those voting in favor of getting the city out of the schools business. Giannini, a Lakeland resident and former chairman of the Shelby County Republican Party, wasn't hiding his personal view that consolidation was a bad idea but insisted his actions were aimed at insuring the referendum, if held, would hold up to any legal challenges.

The irony in all this is that it turns out that if the referendum had never been held, the Norris-Todd state law would not have been triggered -- the City Council's surrender of the charter on Feb. 10 would have been sufficient and the County Commission would have had almost complete control over the merger.

Giannini also received criticism last year from fellow Republicans for being such an open and enthusiastic supporter of Bill Haslam in the GOP gubernatorial primary; after Haslam's victory, the governor gave Giannini a state job as assistant commissioner in charge of the regulatory boards for the Dept. of Commerce and Insurance.

We bring all this up not to pick on Giannini -- see this Wendi Thomas column for a good glimpse of why he can be such a likeable guy -- but because his post, and the comments that follow, help capture the view of suburban residents who really do think some of the very good schools in affluent suburban communities are endangered because Memphians will now make up about 70 percent of the school board. That view is prevalent in the suburbs, and a big reason why municipalities are now exploring starting their own districts from scratch.

A person identified as Cynthia Hammett Everett had the most impassioned response to Giannini:
First, let me say that our children, all of our children, are NOT to blame for any of this! I believe that every single child deserves to have the very best education possible! But this is only the beginning!!! No one is calling this travesty what it truly is because we have been bullied into submission by the misguided idea of "political correctness" but I think we know what the real agenda is, who is driving it & why, & who is expected to pay for it. Pardon me, but WTH happened to the morals & values upon which this country was founded? (You know, once upon a time you worked for what you got or you did without, no one was "handed" anything. You didn't bring children into the world if you couldn't provide & care for them as they deserve to be provided & cared for.) I am SICK TO DEATH of the lazy, worthless freeloaders whose way of life, generation after generation, is to sit home milking our very corrupt welfare, legal & political systems while breaking the backs of the hard-working, tax-payers who struggle everyday to make their own way providing for their own families & yet, are still being forced to pick up the slack for those whose way of life is to sit home and demand that their needs "AND WANTS" be handed to them because "it is OWED to them!" Still even more disgusting are the leaders pushing this agenda and feathering their own nests in the process. I have one question to toss out...How long will it be before all of Shelby County becomes the crime-riddled, destitute wasteland that inner-city Memphis has already succumbed to?
Obviously, there are Memphians who would strenuously object -- and it's important to note that at Thursday's Shelby County Schools board meeting (where the settlement was approved), chairman David Pickler and other commissioners seemed genuine and heartfelt in embracing the challenge of creating an educational system that is better in every respect and every community than what the county has now.

Yes, SCS and MCS members can run for new spots

Otis Sanford, the editor everyone at The CA misses greatly since he left us for academia, emails with the kind of insight you expect from a great editor. He asks:
Two unanswered questions I have are: Would existing city and county school board members be eligible to run for one of the new seven spots in August, 2012? Since then won't roll off the  unified board until 2013, I'm wondering are all of them automatically retired at that time. Also, I still don't get to the number 21 on the transition planning commission. I can only get to 18 people. Who are the other three? Just curious.
And my answers:
  • Yes, they can run for those elected positions. If an MCS or SCS member wins a spot in August, the County Commission would then appoint a replacement for them from their MCS or SCS district. Keep in mind it is also possible for the County Commission to give one of the new seven seats to  current MCS or SCS members by appointment and then appoint their replacements to the MCS or SCS boards.
  • On the Norris-Todd transition committee, there are 18 appointments and three ex-officio non-voting members - Pickler (as SCS president), Jones (as MCS president) and Luttrell. 

Credit for schools deal shared among all local parties

The schools consolidation settlement deal  the various parties agreed to after three days of mediation sessions really did seem to please all sides. There was genuine appreciation flowing between the attorneys and clients -- and to and from U.S. District Judge Samuel "Hardy" Mays.

We have the attorneys listed in the story, but an error made on deadline -- a faulty cut-and-paste by yours truly -- omitted the Memphis City Schools attorneys Dorsey Hopson (lead counsel on staff) and Mike Marshall and Ernest Kelly (MCS's longtime outside attorneys). So, for the record, here is that passage again.

Memphis City Council member Shea Flinn said many of the various attorneys helped find ways in mediations to build momentum toward an agreement. They included: Dorsey Hopson, Mike Marshall and Ernest Kelly (MCS), Allan Wade and Brandy Parrish (City Council), Leo Bearman and Lori Patterson (County Commission), Larry Giordano (SCS), Scott Bennett and Greg Grisham (SCS board members) and Regina Morrison-Newman (city of Memphis).

"People put down their swords and came up with ideas for how we could make it work," Flinn said. "Nobody is going to be perfectly happy with the agreement because it was a good negotiation."

The end, as we point out in this morning's story, came swiftly -- the previously shut-off courtroom, with papered-over windows, suddenly opened and the few members of the media who were on the 11th floor were invited in. After going through the legal motions and reading the settlement, Mays passed along his appreciation.

It should be noted that those involved, though they were under a gag order, did repeatedly emphasize that Mays was doing everything possible to make a deal happen and thus avoid making a unilateral order on how to reconstitute a suburban-only schools board he had deemed unconstitutional unless it had Memphis representation.

Here are some of my notes on the Mays remarks:
  • He offered thanks "for the diligence and care and patience with which you've approached this matter."
  • He pointed out that, "Most of the decision-makers here actually have other jobs. You've taken time from your jobs and I'm grateful for your participation."
  • Of the lawyers, Mays said: "I want to thank counsel for your professionalism, creativity and flexibility and your many courtesies."
  • Finally, he concluded: "If we haven't solved all the problems, we have solved enough of the problems to move the process along. It will be the beginning of a new process."

MCS, SCS say they are cooperating on merger info

After last week's landmark order from U.S. District Court Judge Samuel 'Hardy' Mays, the incremental developments may seem less earth-shaking.

But one year ago, who could imagine the superintendents of Memphis City Schools and Shelby County Schools talking about accelerating the pace of cooperation toward consolidating the county's two school systems?

Jane Roberts reports on MCS agreeing to cooperate with information requests from SCS, with the caveat that MCS expects SCS to also share information and access to its inner workings, too. MCS Supt. Kriner Cash and SCS Supt. John Aitken both were at County Commission budget meetings today, and Daniel Connolly has filed a report on more talk of cooperating and moving forward.

And Lela Garlington provides a comprehensive look at where official efforts are going in Germantown toward the possibility of establishing a municipal school district. It looks more and more like Germantown will spend real money hiring consultants to provide information on what it will take (financially, politically, legally) to make a municipal district happen.

Jane Roberts also has breaking news on the release of data showing ACT scores dipped in Tennessee.

By the way, most stories having anything to do with schools consolidation will continue to be cross-posted to our "Showdown Over Schools" page.

Consolidation legal costs and the blame game

We got information on litigation costs from the various parties involved in the schools merger lawsuit, and our story today shows the number at $912,895.31, and that does not cover costs for last week's flurry of activity after Judge Mays issued his 146-page order. Legal costs almost certainly exceed $1 million right now, and that does not include a lot of man hours spent by in-house attorneys and attorneys for the Memphis Education Association teachers union and the five individual county schools board members acting as intervening plaintiffs to try and hold onto power.

We had a small sidebar with the story talking about other known costs -- the referendum in March (which the judge said ultimately was not technically necessary) cost almost $1 million. And if neither of the current system superintendents, John Aitken and Kriner Cash, are retained, it would cost the county more than $750,000 in severance pay and benefits.

Of course, everybody is blaming everyone else for the costs. SCS says MCS and the city forced it to go to court for the good of all students. MCS and the city say the legal costs will be a bargain to Memphians compared to the longterm costs if SCS had been able to forevemore freeze system boundaries and become a special school district.

Proposals build frame for schools merger negotiations this week

One week ago today, I was hitting 'reload' on the browser every 15 minutes to see if the federal judge had yet issued a ruling on the schools merger lawsuit. Was that really only seven days ago? Now that U.S. District Court Judge Samuel 'Hardy' Mays Jr. has issued an order untangling the various legal statutes lawyers were arguing about, negotiations for a settlement can proceed with a strong framework. It is possible that the officials up in the replay booth (aka, appeals court judges) could choose to give the legal calls more scrutiny, but the ruling on the field, in the courts as in football, is given great deference -- judges won't overrule unless they see obviously bungled judicial reasoning.

We ran a Sunday story really aimed at catching people up on just what Judge Mays determined, but the most significant action came late Friday, when all parties proposed various remedies for the currently all-suburban Shelby County Board of Education voting districts that Mays deemed to be "unconstitutional." Six different entities offered six different ways to go about adding Memphis representation, but the important thing to remember here is that, all last week, longtime Shelby County Schools board chairman David Picker used the word "negotiating" many, many times.

The proposals run the gamut, though we chose to focus on the way in which SCS and five SCS board members, acting as intervening plaintiffs, chose to carefully word their proposals. The board members came right out and told the judge they disagreed with him on whether Memphis deserves countywide representation for education during the transition and on what they feel is their right under state law to complete their terms (Mays, being a federal judge, can trounce state law). The board itself was less openly hostile, but still took pains to reserve the right to challenge the ruling. Tellingly, no other parties so much as hinted at wanting the right to disagree.

The easiest way to understand the proposals is, unfortunately, to see them once again through the Memphis/non-Memphis divide. Memphis entities (Shelby County Commission, Memphis City Council, City of Memphis) want an election as quickly as possible and ask the judge to allow the Commission to appoint, if necessary. Those with a suburban tilt want elections to wait until next August, with no appointments. The City Council lawyer, Allan Wade, appears to have waited Friday until other proposals came through, allowing him time to deconstruct the various flaws in them, and offered up a compromise -- elections next March (coinciding with the presidential primaries and county government primary) for a seven-member board AND allow the current SCS board to remain in place with very direct orders to go to the judge for permission to make any decisions that could at all affect consolidation. City of Memphis actually asks the judge to do nothing, claiming that the County Commission has full authority to act now that the judge has ruled an all-suburban county schools board is unconstitutional and has been since February.

Go to the story and check out the actual proposals for yourself (links to documents top left of story). Does anyone else notice the difference in language and even energy in the proposals? The parties, by the way, meet Friday for mediation sessions. Once a settlement is reached -- or not reached and the judge lays down a decree -- his 146-page 'order' becomes a ruling.
At Thursday's meeting of the Shelby County Commission, Steve Mulroy made a point that nobody had yet brought up but which now is quickly becoming conventional wisdom for those advocating the Memphis side of the schools consolidation debate. Mulroy wondered whether, if U.S. Dist. Court Judge Samuel 'Hardy' Mays is wanting to reconstitute the currently all-suburban Shelby County Board of Education, the current members should be allowed to make appointments to the Norris-Todd transition commission.

"It's unconstitutionally formed so I don't think they should be making appointments to the Norris-Todd planning commission until they are constitutionally formed," Mulroy said.

That would change the balance of power considerably on Norris-Todd. Many Memphians have been complaining since it was first introduced that Norris-Todd's appointed commission would over-represent suburban interests and harm Memphians. In terms of the 21 members, MCS, SCS and county mayor Mark Luttrell get five appointments each, and then one each from Gov. Bill Haslam, state House speaker Beth Harwell and state Senate speaker Ron Ramsey. Nonvoting members are Luttrell, and the president or chairmen of MCS and the county school board.

MCS board president Martavius Jones has complained the Memphis may get only six appointees, though it should be noted Luttrell lives inside the city limits and being an elected official, surely will realize that voters might well remember if he doesn't give Memphis some representation among his choices. However, if the judge agrees with Mulroy's position and wants a reconstituted, Memphis majority countywide school board to make the Norris-Todd choices, Memphis might indeed hold the majority on the transition commission. 

If judge orders elections, will legislators act?

The suburban state legislators Richard Locker talked to for a story today on the possibility of new schools legislation emphasized a wait and see attitude, but read closely and it appears at least some of them are prepared to act if the federal judge overseeing the schools merger lawsuit orders reconstitution of the currently suburban-only Shelby County Board of Education.

State Rep. Curry Todd, R-Collierville, told Locker that the intent of the new Norris-Todd state law, which he sponsored in the House, "was for both school boards to remain through the planning process leading up to merger, when a new school board would be elected." Todd said if the judge calls for a special election to "remedy" the unconstitutional violation he determined, the state legislature might well act. He said: "Based on how he rules, it may set a whole new parameter on that issue. I think an election is premature."

All of this  may turn on how strictly the order from U.S. District Court Judge Samuel 'Hardy' Mays Jr. is read. He clearly says the current "electoral districts" of the Shelby County Board of Education represent a constitutional violation, and he's ordered all parties to submit to him today their proposals for a remedy. The relevant section of the order is titled, "Constitutionality of Shelby County Board of Education's Current Electoral Districts." One could argue, then, that what is currently unconstitutional are the electoral districts, and not the current board members themselves. That seems to be the direction Todd is going with his logic, that an "election" is premature.

But proponents of creating a new countywide board have a lot of evidence supporting their view. Why then did the judge order immediate proposals for a "remedy"? Why did he so sharply reject the claim by the current SCS board members that they have a constitutional right to finish out their terms (some ending in 2012, some in 2014)? Why did he go into great detail describing the ways in which Memphis residents and schoolchildren would be disenfranchised during the transition?

And then there is the way Mays talks about how the county's school board, during the transition, will be making "decisions" that "will shape the education of Memphis schoolchildren and the vitality of the City of Memphis for years to come." He continues. "They cannot be delayed until the transition process has been completed. They are an essential part of that process. Despite Memphis residents' substantial and direct interests in the Board's decisions, the Shelby County Board of Education has no representatives elected by Memphis voters and has unanimously opposed assuming control of Memphis City Schools." Note that Mays, as he does elsewhere, cites the current board's vehement opposition to schools consolidation.

It will be interesting to see the proposals Mays receives today (probably late today), and how different lawyers interpret that key section about the "Constitutionality of Shelby County Board of Education's Current Electoral Districts." The Memphis entities have spoken loud and clear -- they see it as a "constitutional crisis," in the words of Memphis Republican County Commissioner Mike Carpenter, that therefore demands relief as soon as possible (the commission voted Thursday to redistrict a seven-member countywide schools board that would be dominated by Memphians). At the Shelby County Schools meeting on Wednesday, the current board members would not say whether they believed the board should be reconstituted, but they acted as if they would remain in charge for some time to come.

MCS, SCS distract with tit-for-tat over dithering

Because the most important substance of Wednesday's Shelby County Schools board meeting concerned what was said -- or, more to the point, what wasn't said -- about the federal judge ruling the seven-person board "unconstitutional," we only gave passing mention to Supt. John Aitken pushing back against Memphis City Schools charges of dithering.

The important news regards how SCS will respond to U.S. Dist. Court Judge Samuel 'Hardy' Mays's determination that Memphis representation is required on the now all-suburban Shelby County Board of Education. Whether SCS or MCS could have or should have shown more diligence in sharing information is secondary, at most. Basically, MCS Supt. Kriner Cash said Monday night that once SCS filed its lawsuit in February, the suburban system's initial efforts to cooperate with ironing out consolidation logistics ceased. On Wednesday, Aitken fired back with examples of official information requests from January and into early February that he said yielded no response.

MCS chief legal counsel Dorsey Hopson responded Wednesday with a copy of a response to SCS that stated the system would be unable to meet the comprehensive information requests in seven days. Here's Hopson:
"We met with SCS several times and also informed them that we were working on their last request. Several days after notifying them that we were working on the request, they filed suit."
At Wednesday's SCS board meeting, chairman David Pickler read into the record a long list of requests for information and access to MCS's inner workings, including a forensic audit. I was sitting near an MCS board member and staff member, and they shared an exchange that was mixed with astonishment and bemusement. Paraphrasing their conclusion: "Do they not realize this is irrelevant? The judge says they are unconstitutional. They don't have the authority."

That, of course, will be up to the judge, who has directed all parties to submit proposals to remedy the unconstitutionality of the county board. County Commission seems poised to present their backup plan of a seven-member board of edcuation, where four districts are all Memphis, two are all non-Memphis and one is a mix, but with a majority of Memphis voters -- for a likely 5-2 Memphis majority on the board.

As my story this morning points out, nobody at SCS was giving any hints at what it might propose, with Pickler mostly emphasizing he's still negotiating. SCS is not saying if it's appealing, but it is sure not saying it will NOT appeal.

On municipal districts, pump those brakes

Judging by the 400-plus comments, Clay Bailey's story on municipal mayors ready to hit the accelerator on creating municipal school districts tapped into a hot issue. Most people in those municipalities with children probably would love to see a municipal district, but of course that will mean eventually persuading people without children (or families committed to private schools) that it would be worth paying possibly much higher city taxes. Even many Memphians, who understand the issue, have said they can deal with other municipalities running their own schools, so long as they pay the full cost.

However, the mayors who talked to Clay appear to have misread Judge Mays's ruling. Yes, Mays ruled that the new Norris-Todd state law is constitutional and valid, and, yes, Norris-Todd contains a provision that calls for the lifting of the long state ban on new municipal or special school districts. But Mays's ruling is very explicity and clear -- he did not make any determination on the legality of the (b)(3) provision of Norris-Todd that lifts the ban. Mays even points out the matter was not even briefed. Mays writes:

Whether (b)(3) itself is constitutional is not properly before the Court. Although the parties have not briefed the issue, any harm resulting from the addition of this subsubsection would not occur until an attempt was made to create  municipal school district or special school district. Nothing in the record suggests that such an attempt has been made or will be made in the future. Any harm depends on contingent future events. As the Supreme Court has explained, "[a] claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Prods. Co., 473 U.S. 568, 580-81 (1985)); see also Magaw, 132 F.3d at 280 ("Ripeness requires that the 'injury in fact be certainly impending.' Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review.") (citations omitted). The challenges to Public Chapter 1's addition of section (b)(3) to Tennessee Code Annotated § 49-2-502 are not ripe.

Furthermore, those proponents of municipal schools following the issue most closely are well aware that that (b)(3) provision also says that the ban is not lifted until AFTER the merger is completed, at this point most likely sometime later spring or early summer of 2013. It's also worth noting that Allan Wade, attorney for the City Council, told reporters Tuesday that any attempt to carve a new municipal or special district out of the consolidated countywide system would be met with fierce legal resistance. Some of his briefs hinted at a likely challenge, pointing out that such a district would have a disparate racial impact -- intended or not -- on students and would fall under heavy scrutiny by federal courts unfriendly to efforts that -- intentionally or not -- work to INCREASE racial segregation in schools.

Add all of this up, and it points to, again, what those who know the issue best have been saying -- municipal districts are possible but it won't likely happen easily and without much persistence. Given likely court actions (and absent some new state legislation), it might be 2015-16 or later before we see municipal districts in Shelby County.

NOTE: Put an edit in second-last paragraph. Obviously, federal courts are unfriendly to efforts that increase racial segregation in schools.
Welcome back to With the ruling by U.S. Dist. Court Judge Samuel 'Hardy' Mays on Monday, we're going to providing more frequent updates of developments related to the pending consolidation of Shelby County's public schools. Because we have actually read almost all the briefs and every line of the ruling, we'll use this blog as a way to provide more detailed analysis and reporting on the various legal issues Judge Mays' clarified in his ruling.

We'll get started with links to today's story looking ahead to a 3 p.m. meeting of the Shelby County Schools board. There, we will get our first strong sense of how the SCS board, led longtime chairman David Pickler, will respond to Judge Mays ruling that the current all-suburban makeup of the board is unconstitutional. Mays also ruled that the seven current incumbents have no constitutional right to finish out their terms. He's asked all the parties involved with the lawsuit to submit proposals by Friday for ways to "remedy" the unconstitutional board.

Most of the Memphis entities involved have indicated they will not appeal, but SCS has not given a signal one way or the other. City Council attorney Allan Wade is predicting SCS will appeal and give his firm yet more unexpected revenue while the case is considered by higher courts. "I assume Pickler and his group are still going to appeal no matter what happens," Wade said Monday. "They played it out this far, I think they will play it out farther. But maybe they will read the tea leaves and say it's a futile exercise."

What's interesting here is that the Shelby County Commission plan that SCS opposed, an appointed 25-member board, sought to preserve the current seven members. Doing so and giving Memphis proportional representation required adding 18 Memphians to the seven suburban incumbents to get to 25 members. In all, 191 people applied for those appointments; commissioners said they could still be considered if an eventual plan includes an interim process requiring appointments, and they also have submitted names to those officials who are putting together the 21-member Norris-Todd transition planning commission.

Clay Bailey also has a story today on mayors of municipalities outside of Memphis saying they want to go full-steam ahead with exploring ways to implement municipal districts in their cities. They make it pretty clear they prefer not to be part of a unified countywide school system. About which more later, in a post before we head to the SCS meeting.
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As the process for merging Shelby County's schools accelerates into action, we'll provide bonus coverage here at, with a particular focus on the 21-member transition team and the 23-member unified school board. Comment early and often. If you have any tips or suggestions you wish to share, contact Zack McMillin at or 529-2564.

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