Saturday, May 14, 2011

Truce Reached on Injunction Issue in Shelby School-Merger Case

Posted By on Sat, May 14, 2011 at 9:01 AM

Had the Shelby County Commission just agreed to an injunction against itself? The same injunction against proceeding with its interim school-board plans that the commission had in theory been resisting for weeks in federal court?

“Yes,” acknowledged District 5 Commissioner Steve Mulroy, a consistent presence in U.S. District Judge Samuel Hardy Mays’ courtroom and a lawyer, though not one serving in this case.

But Mulroy characterized the deal, proposed Friday by special commission attorney Leo Bearman and accepted by Shelby County Schools attorney Lawrence Giordano and a battery of lawyers for other interested parties, as a trade-off — a “goose and gander” affair.

What the various parties involved in this first court case involving the imminent merger of Memphis City Schools with SCS had done was agree to take no actions outside the normal conduct of business until such time as Judge Mays could decide the entire ongoing litigation on its merits.

And Mays, liberated from having to consider the injunction, indicated that he would do so in short order, specifying “next month” as his target date for a ruling on the case at large.

The suit, filed by Shelby County Schools in February, asks for a declaratory judgment against MCS’ vote to surrender its charter last December and the Memphis City Council’s subsequent vote to ratify the charter surrender. Added as a defendant later was the commission, which had followed up those earlier actions with a plan to appoint 25 members to a newly redistricted all-county school board, from among almost 200 applicants.

For almost two months, courtroom attention had been focused on SCS’ injunction request, which was supported by the state Department of Education in deference to the Norris-Todd Act, an alternative route to MCS-SCS merger enacted earlier this year by the Tennessee General Assembly.

Mays had asked the various parties to the suit to try to reach a settlement, but informal efforts of that sort, followed by mediation, first by an appointed mediator and later by Mays himself, had achieved no agreement.

Until Friday, when Bearman made his surprise proposal for a mutual stand-down on immediate action, the commission attorney had been consistently maintaining that a delay, any delay at all, in appointing the proposed interim school board would constitute an “abandonment” of justice for residents of Memphis, who were entitled to representation on a board constructed in accordance with the one man/one vote provision of the landmark Baker vs. Carr Supreme Court decision.

That position was based on the claim, vigorously disputed by Giordano on behalf of Shelby County Schools, that Memphis City Schools had ceased to exist as a legal entity on February 10, the date of the City Council’s vote to ratify the MCS charter surrender.

Given that the MCS board had continued to meet and that MCS superintendent Kriner Cash had been received to present his latest budget request to the county commission earlier this week, the status of MCS — acknowledged by all parties to have at least a de facto existence — had become one of the chief debating points during the two days of hearings in Judge Mays’ court this week.

Another point of contention was the proper means of merging the city schools with Shelby County Schools — the charter surrender route, sanctioned by Chapter 375 of a 1961 private act, or Norris-Todd, based on a series of general legislative acts and spliced onto an all-Memphis referendum on transfer of MCS’ authority to SCS.

That referendum, which was authorized by the MCS board at the same December meeting as the vote for outright charter-surrender, passed by a 2-1 majority on March 8. Norris-Todd, hitched to the referendum results, provides for a 2 ½-year planning period to end in August 2013, after which — a key point for SCS and suburban sentiment — a pre-existing legislative ban on new special school districts would be lifted for Shelby County. The MCS majority which opted to dissolve the city school system did so with an expressed fear that SCS was on the verge of gaining legislative sanction to become a separate special school district.

Just as Giordano, on behalf of SCS, had challenged the legality of the charter-surrender route (maintaining in court that the MCS vote, at most, merely signaled an “intent” to liquidate itself), so had Bearman — supported by City Council lawyer Allen Wade — disputed the applicability of Norris-Todd, maintaining that its legal precedents were relevant only to special school districts and that MCS, created as a special school district in 1869, had ceased to be on under the terms of a 1925 statute.

This and other overriding issues will doubtless be resolved in the expedited judgment promised by Judge Mays now that the injunction matter has been, in effect, waived on Bearman’s surprise initiative.

As for why that happened, it could be that Bearman and Wade and representatives of the other parties predisposed to allow the county commission to proceed had simply taken note of Mays’ candid suggestion Friday that he was “reluctant” to approve a 25-member board before final disposition of the case.

The other motivating factor apparently was the concession extracted from Giordano and other parties to the current litigation — that their pledge to suspend any contemplated action outside the normal run of business would include the sale or purchase of property and participation in any legislative initiative to create an “innovative school district” in Shelby County.

Legislation to enable this newest wrinkle in special school districts is now being fast-tracked in the closing days of the General Assembly. A bill by state Senator Jamie Woodson (R-Knoxville) would authorize up to five county systems to become such model districts and would fix their boundaries.

Supporters of a complete merger of Memphis City Schools with Shelby County Schools have become anxious about the prospects that the bill could provide a back door for sealing the current SCS system from the city schools. They also are concerned that suburban municipalities might be trying to arrange the sale or lease of county school properties as a prelude to creating their own separate municipal school districts.

The truce arranged Friday was a means, finally, of holding everything in place until Judge Mays can rule on all the outstanding issues — and that ruling is now just around the corner.


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