Wednesday, September 26, 2012

Separation of Powers

The shape of things to come at the Memphis City Council.

Posted By on Wed, Sep 26, 2012 at 12:53 PM

Last week's consideration of the gay rights ordinance by the Memphis City Council pushed several of the players into prominent roles. Like they say, you can't tell the players without a program.

The silent hero. Causes love converts. Reid Hedgepeth, by one media account, "rocketed himself into the city's annals on civil rights" by the way he "eloquently deconstructed" the opposition to the gay rights ordinance. While civil rights legends back in the day were fiery orators who took to the streets and pulpits, Hedgepeth took to the internet. His launching pad to the city's annals was an email he wrote and sent to members of the media after the vote. During the live debate on the vote, Hedgepeth was silent, giving new meaning to the phrase "mailing it in."

The drama queen. Nobody makes a more passionate speech than council member Janis Fullilove, who reached new oratorical heights last week in defense of gay rights. A crowd pleaser, and a nice distraction from legal problems that had her in the news.

The expert witness from across the mall. Generally speaking, city council members and county commissioners stay in their own yards. Mayors are occasionally invited to speak on the other side of the mall, but even that is rare. Steve Mulroy is a professor of constitutional law at the University of Memphis law school. He is also a member of the county commission. Last week, Mulroy showed up at the city council meeting and was invited to give his view of the charter question, which — surprise! — was different from the opinions of city council attorney Allan Wade and Memphis city attorney Herman Morris Jr. As some council members pointed out, Mulroy also happened to be a supporter of the gay rights ordinance. And as Morris pointed out, he (Morris) has an actual client.

The T-shirt gallery. If your group doesn't have a T-shirt, you ain't nothin'. Public meetings are starting to look like rock concerts. Making the grade in fine form lately were supporters of the gay rights ordinance, police and firemen, AFSCME, Stand For Children, and the Memphis Education Association. The more the better. Signs recommended.

The man upstairs. Mayor A C Wharton picks his spots. Last week, to the chagrin of some members of the council, he was nowhere to be seen when the gay rights ordinance came up. He was represented by chief administrative officer George Little. Wharton did, however, make some very nice remarks at the demolition of the Lone Star Cement silos.

The referendum option. "Let the people decide" is the most direct form of democracy. Prepare a ballot question, schedule it for the next election, and let it be voted up or down. Used sparingly, it has its merits. Overused, it leads to ballot bloat, voter fatigue, mischief, and a sneaking suspicion that elected officials are trying to pass the hot potato and get off the hook. In recent years, Memphians have voted on the city charter, annexation, and surrendering the Memphis City Schools charter. This year, a proposed local sales tax increase was headed for a Memphis referendum until the county commission trumped it. Last week, some members of the city council suggested that the gay rights ordinance should also go to a referendum, because it amounts to a charter change.

The judicial review option. A corollary to the referendum option that boots the ultimate decision to someone else, in this case the state court (the withdrawal of city funds for schools, still unresolved after four years) or federal court (municipal school districts). City attorney Morris predicted that a gay rights ordinance would lead to a lawsuit. Expensive and time-consuming.

The busy attorney. The city council's attorney is the man or woman who sits in on meetings and offers occasional advice when asked. Usually a low-profile person, but not so much lately. Allan Wade is representing the city in federal court in the municipal schools lawsuit in addition to his bimonthly council sessions and other cases in his private practice. Since the city school board charter surrender in 2010, Wade has gotten more speaking time than most council members.

The silent protest. Wanda Halbert is usually one of the council's most talkative members, but she passed on the 7-5 vote on the gay rights ordinance. Halbert did, however, ask some questions before the vote to the attorneys, which led her to decide that some of her colleagues were pulling a fast one, or even two fast ones. She suggested it's time for the council to review its policies and procedures, because "this is really getting agitating."

You think?

Wednesday, September 19, 2012

Diplomacy Needed

The city council takes up discrimination based on sexual orientation

Posted By on Wed, Sep 19, 2012 at 11:35 AM

Divided We Stand. And if Memphians can't find something to divide us, then we'll just look a little harder.

As if race, public schools, superintendents, the riverfront, and Liberty Bowl Stadium aren't enough, a few more "where do you stand?" questions have been thrown into the mix: bike lanes on city streets, and Chick-fil-A and gays.

In the latest media attention grabber, the Memphis City Council has taken up a antidiscrimination ordinance with specific attention to sexual orientation. The ordinance is supported by the Tennessee Equality Project, which supports gay, lesbian, and transgender individuals. The vote was scheduled for Tuesday afternoon, too late for Flyer deadlines for this week's newspaper.

Council members said they expected to hear from several speakers but did not know if any of them would be current or former city employees with personal stories about discrimination.

This looks like a solution in search of a problem. Testimonials could present fresh evidence, but three city and county mayors whose tenures spanned three decades recalled few if any such instances when I talked to them.

Willie Herenton, mayor of Memphis from 1992 to 2009, remembered a couple of events, but they were not directly related to city policy or city employees. In 2000, he met with Judy Shepard, mother of Matthew Shepard, a young man who was murdered in Wyoming in 1998 in a hate crime. She was in Memphis to give a talk, and Herenton offered his sympathy. Another time, Herenton went to a ribbon cutting at the Memphis Gay and Lesbian Community Center in Midtown. He was criticized both times, he recalled.

"My philosophy was that discrimination on the basis of race, religion, gender, or sexual orientation is just wrong," he said.

Bill Morris, Shelby County mayor from 1978 to 1994, could not remember any complaints based on sexual orientation reaching his office but said it was possible that they would have been handled by a division director without his knowledge.

"That was never an issue for us," he said. "My policy was equal rights for everyone from the time I was elected. I established that on day one."

Dick Hackett, mayor of Memphis from 1982 to 1991, said activists tried to force the issue once, but his position was that federal law covered all types of discrimination.

"We said we would abide by federal law that is already on the books," he said. "I think somebody thought they were going to get us to fight it. The issue was probably more divisive back then."

Memphis mayor A C Wharton, ever accommodating in his 10 years as county mayor and city mayor, has met with thousands of groups and activists but has stayed out of this debate and left it to the city council. Present policy prohibits discrimination based on "race, color, religion, sex, national origin, age, disability, genetic information, veteran status, political affiliation, or other non-merit factors." The proposed ordinance could wind up being watered down to a general statement of nondiscrimination, like a similar proposed ordinance that came before the Shelby County Commission.

As Hackett said, things were different back when the word "gay" might have still had some shock value. In 30 years of covering city and county government on and off, I have probably known several gay employees, but sexual orientation did not come up in our conversations, so I really cannot say. If a city employee failed to get official redress for a grievance based on anti-gay discrimination, I think I can safely say that there are members of the Memphis media who would consider that a possible story.

The reasons I have heard and read for the need for this ordinance are unpersuasive at best and silly at worst:

Memphis should do it because Knoxville and Nashville did it and Memphis will be compared unfavorably to them.

Richard Florida, "the guru of the creative class," thinks cities should make sure they are known to be gay friendly.

An ordinance is stronger than a general policy, because it is harder to change.

An ordinance is needed, because this is a civil rights issue and Memphis is home of the National Civil Rights Museum, where supporters of the ordinance rallied last week.

I say, what else is new, so what, don't think so, and hypothetical job discrimination against gays at work is not morally equivalent to legal segregation and racism.

Memphis should be a city where people think for themselves. And a little more diplomacy and a lot less confrontation would serve us well.

Wednesday, September 12, 2012

A Judicial Joke

The Milan Effect and its surprising repercussions from the schools case.

Posted By on Wed, Sep 12, 2012 at 11:33 AM

Funny thing, nobody from the Milan Mirror-Exchange weekly paper showed up. And nobody from the Humboldt Chronicle. Or the Jackson Sun. And no mayors from Milan or Humboldt or other towns in Gibson County, and no state legislators.

What a bunch of slackers. One of the biggest stories in Gibson County history unfolded in federal court in Memphis last week, and the locals completely blew it off. By local, I mean rural West Tennessee and, of course, its centerpiece, Milan, located about 100 miles northeast of Memphis. Because the trial in U.S. district judge Samuel Hardy Mays' courtroom is all about municipal school systems in Gibson County.

State senator Mark Norris from Collierville was there, hanging on every word that might impact the Humboldt strawberry region. Bartlett mayor Keith McDonald, Germantown mayor Sharon Goldsworthy, and Shelby County Schools superintendent John Aitken dropped in too in a show of solidarity with their Milan brothers and sisters.

To be fair, there is also an eentsy teentsy chance that the Norris-Todd bill could also apply to Shelby County, and on that chance, eight Memphis news organizations are covering the trial. But really, this is all about Milan and demographic trends in urban growth areas in rural Tennessee counties.

Do you realize that if the cohort component forecasting method is correct, Milan could positively explode? I don't mean literally, although conceivably it is possible given the presence of the Army Ammunition Plant. The potential ramifications of what is now being called the Milan Effect are so great that Mays called a halt to the dueling demographers until September 20th so that more experts can be consulted and more legal bills can be submitted.

The Norris-Todd bill, now known as the Gibson County Growth Act, is one of the most misunderstood pieces of legislation in history, possibly because lawmakers were specifically told that it would apply only to Shelby County before voting for it in case any of them were too groggy or dim-witted to get the point.

The delay has caused a whole lot of rethinking about, well, everything.

It is possible that the Unified School Board will decide after a national search for a superintendent to offer the job to Willie Herenton.

It is possible that the law firms in this trial wake up each morning and kiss the pictures of Shelby County commissioners Sidney Chism and Steve Mulroy.

It could be that Alabama football coach Nick Saban keeps a straight face when he warns his players not to be complacent when they face Florida Atlantic. And that Ole Miss will remain undefeated. And that Memphis will fill the Liberty Bowl.

And it could be that when someone booms, "Band, take the field!" the Tiger band will march out of the tunnel and across Central Avenue to Tobey Field.

It is possible that The Commercial Appeal will turn over the names of its commenters, revealing that half of them were Curry Todd, half were residents of Milan, and some comments were deleted by staff due to mistakes in spelling and grammar.

It is theoretically possible that the lawyers assigned to read the comments will, after bathing in Lysol, decide to renounce law and become GIS map specialists.

It is also possible that lawyers on both sides will decide in light of the outrageous fees and nature of the case to put it on the pro bono account and settle.

It is possible that North Korea, Pakistan, or Indiana will launch an invasion of Tennessee using Highway 45 and the Tennessee River and the Milan Army Ammunition Plant will hire thousands of employees and the Milan Effect will reopen International Harvester in Frayser and the Memphis Defense Depot. When this happens, it is possible that nobody will call it a "population boom" or "real estate explosion."

It is possible that Memphis rapper Al Kapone will sing in the new television series Nashville and that its success will inspire another series called Memphis Blues starring the Romney Brothers, with music by the Mormon Tabernacle Choir.

It could be that Clint Eastwood thought he was talking to the presidential nominee of the Green Party and that Bill Clinton did not realize he exceeded his time limit by half an hour and has therefore sworn off public speaking, golf, and sex for four years.

And it could be that Judge Mays knows exactly what the legislature was up to but thinks it is unwise to overrule the wishes of 85 percent of suburbanites and Milan has given him an out.

Wednesday, September 5, 2012

Calling Clarence Thomas

The schools trial this week could just be a warm-up for the main event.

Posted By on Wed, Sep 5, 2012 at 12:32 PM

Let's face it. This divided country needs a fresh U.S. Supreme Court statement on school desegregation on the order of Brown v. Board of Education (separate is unequal) in 1954 or Swann v. Charlotte-Mecklenburg (busing) in 1971. Memphis v. Shelby County is as ripe a case as there is.

The little sideshow scheduled to start Tuesday in Judge Hardy Mays' courtroom is not going to settle anything; it will only prolong it. Mark Norris and his mates in suburbia and in Nashville will have a Plan B, C, and D in about 15 minutes if Mays decides the enabling legislation for municipal school districts is unconstitutional.

Same goes for the settlement last month of a 47-year-old desegregation case involving the Fayette County School Board and the NAACP. The settlement calls for "controlled choice" and racial balancing in each school. The Justice Department's civil rights lawyer and U.S. attorney Ed Stanton III hailed it as an important landmark, but Fayette County has a total of 3,474 students in public schools, or about as many as two Shelby County high schools.

If the Justice Department is looking for landmarks, it should pick on someone its own size — like us.

In another federal desegregation case this summer in Hot Springs, Arkansas, a judge declared that the Constitution's equal protection clause doesn't prohibit white kids from moving to majority-white magnet schools. But he concluded his ruling with this thought: "The court fully expects this case to be appealed in view of the important issues presented in this case."

And in a Nashville case this year, parents argued that a rezoning plan intentionally moved black students out of higher-performing schools to racially isolated, subpar schools. U.S. district judge Kevin Sharp disagreed: "While the school board's action caused a segregative effect, the court is unable to conclude that the school board adopted the plan with a segregative purpose. Therefore, it passes muster under federal constitutional principles of equal protection."

The main event in Memphis comes up in November when Mays will turn to the Shelby County Commission's claim that municipal school systems would be unlawfully segregated. That decision, too, seems likely to be appealed in view of the importance of the issues.

Meanwhile, Memphis and Shelby County are spending time and money on non-solutions that are half-baked (municipal schools and the unified school system), half-successful (charter schools), and half-crazy (subpoenas for the identities of commenters on The Commercial Appeal's website). The unified system is supposed to be up and running a year from today.

Greater Memphis is the ideal place for a 21st-century statement from the Supreme Court on desegregation and resegregation in urban school districts. Our history includes the sham of gradual integration in the 1960s, leading to Plan Z and forced busing and white flight in the '70s, Frayser residents burying a school bus, a "unitary" Memphis system where 90 percent of black students attend all-black schools, another "unitary" suburban system that is majority white, and now the largest school system merger in post-integration American history.

Plan Z, hatched in 1972, was supposed to be the "terminal" desegregation plan. Instead, the school systems and the courts went through the alphabet and back again: controlled choice, magnet schools, optional schools, neighborhood schools, new schools, shared city and county schools, racial balancing to a 15 percent standard, consent decrees, special masters that never materialized, and the biggest concentration of Gates Foundation money, charter schools, and Teach For America in Tennessee.

And no one has any idea what the unified school system will look like.

The Supreme Court stated its position on school segregation in a 5-4 decision in 2007 that involved the school systems in Seattle and Louisville.

Here's how Justice Clarence Thomas, siding with the majority, defined public school segregation:

"In the context of public schooling, segregation is the deliberate operation of a school system to 'carry out a governmental policy to separate pupils in schools solely on the basis of race.' ...

"However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us."

Since then, President Barack Obama has appointed two new Supreme Court justices — Sonia Sotomayor and Elena Kagan. Both replaced justices who voted with the minority in the Seattle-Louisville school desegregation case. The next Supreme Court appointment could be pivotal.

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