A See-Saw Struggle 

Momentum shifts in the showdown between city and county school districts.

The struggle between Memphis City Schools and Shelby County Schools, two separately operating systems which at the moment somewhat uncomfortably share the same district, continues to look like a see-saw act performed on a high wire. So what happens next? Even the most seasoned observers hesitate to pronounce judgment.

On Tuesday, legislators from around the state began gathering in Nashville, where the next stage of the ongoing battle is likely to unfold even as various root issues undergo court scrutiny.

Braking only slightly for the just-concluded holiday season, the showdown has proceeded pell-mell since SCS board chairman David Pickler, in the wake of the November 2nd election, first announced his latest effort to seek General Assembly approval for a Special School District for the county schools.

The MCS board, fearing that would ultimately mean the sealing-off of badly needed funding from suburban property taxes, responded by voting 5-4 on December 20th to call a citywide referendum on the surrender of the MCS charter, which, if successful, would automatically merge the city and county school systems. The opposing sides have been on the see-saw ever since.

The newest development, an ominous one for the advocates of school-system integration, came from state senator Mark Norris of Collierville, the Republican majority leader in the state Senate who in the days before the MCS board vote of December 20th had been avidly courted by Memphis mayor A C Wharton and Shelby County mayor Mark Luttrell and other advocates of what they hoped would be a three-year moratorium on changing the status quo.

Norris had somehow been able to hold his peace and avoid committing himself to any course of action through all the weeks of crisis, but on Monday, with the General Assembly preparing to convene on Tuesday, he made his move, announcing that he would introduce legislation to enable suburban participation in any referendum to dissolve the MCS charter.

That was Norris' trump card, played on news that had come earlier Monday from state attorney general Robert Cooper. The attorney general, whose opinions are only advisory, had stated his belief that only legal voters within the Memphis City Schools district (ironically, a special district created in 1869) were authorized to participate in such a referendum.

Referring to the merger process already under way as a "hostile takeover," Norris said his bill, stitching together various existing statutes, would call for the creation, in any county where consolidation of systems is being considered, of a planning commission to conduct a year-long preliminary.

Public meetings would be held, after which both affected school boards would agree on a referendum to resolve the issue. Voters in both districts would then vote, with their ballots counted separately and with dual approval required.

In essence, Norris' bill would create the same prerequisites for approval of school consolidation in Shelby County that governed last November's vote for general governmental consolidation of city and county.

The proposed Metro Charter voted on then was narrowly approved by Memphis voters but soundly rejected by suburban voters at a ratio of 3 to 1. Predictably, advocates of school consolidation accused Norris of sabotage.

Coincidentally or otherwise, Norris' counterpart, House majority leader Gerald McCormick (R-Chattanooga), announced on Monday that "school reform" would be a major issue on the legislature's agenda during the current session. And the Tennessee School Boards Association, which even before the developments in Memphis had been pushing for revocation of a current prohibition of new Tennessee school districts, will be pressing its case.

Meanwhile, in Memphis, the Memphis Education Association, which during the early stages of the controversy had adamantly resisted the idea of charter surrender, was making plans to announce its attitude in a Tuesday afternoon press conference.

The initiative du jour seemed to reside with the opponents of school consolidation. But the issue was in more or less constant flux, with momentum shifting back and forth as competing strategies emerged and alliances were formed and re-formed.

Consider only the events of last week — the first full one of the new year — and the beginnings of this one: 

January 3rd: SCS had its day in the sun, with a press conference at which county school superintendent John Aitken and Pickler both predicted chaos and a decline in educational standards if a citywide-only referendum should end in a yes vote and de facto consolidation.

Pickler sounded a note that was destined to resurface, insisting for the first time that all Shelby Countians be allowed to vote in any such referendum on the grounds that, as an effective vote for or against school consolidation, it was a matter of all-county concern.   

January 4th: Wharton and Luttrell stood shoulder-to-shoulder at City Hall and offered their good offices as assurance that no chaos would attend any transition — a move that seemed to trump the gloom-and-doom prophesy of Pickler, Aitken, and company.

The two mayors proposed to appoint a diverse team of 11 political and community leaders to help oversee the transition. (One complication: Shelby County Commission chairman Sidney Chism, a supporter of the charter surrender and a longtime ally of former Memphis mayor Willie Herenton, promptly told the two mayors to butt out, allowing the county commission to guide any transition, and fronted for a consolidation plan of his own — which turned out to be remarkably similar to one that the presumably unpopular Herenton once proposed.)

January 5th: The initiative shifted back the other way, with a letter from state election coordinator Mark Goins to Shelby County Election Commission chairman Bill Giannini, who had inquired as to the legal basis for the referendum prior to setting an election date.

Goins' advice, which the Election Commission considers binding, was that the Memphis City Council must pass a resolution of approval for the referendum to occur. He based that on a 1961 Private Act which mentions the city's old Board of Commissioners, a radically different governmental body, in that regard.

Advocates of consolidation, like City Council member Shea Flinn, proposed a citizens' petition in lieu of such council approval. Council attorney Allan Wade, relying on a 2003 advisory on another issue involving the proposed dissolution of the MCS board from former state Attorney General Paul Summers, issued his own opinion that such an action would be sufficient and that the 1961 act did not require council approval.   

Wade further pointed out that Goins had not requested an opinion from current state Attorney General Robert Cooper before sending his advisory to Giannini.

January 6th: The momentum went back the other way again, when Chuck Cagle, a special lawyer hired to advise the SCS board, advised the county board at a special meeting to prepare for a successful referendum and the resultant merger of the two school systems. While this did not dispel the prevailing attitude of resistance among the SCS contingent, it amounted to a dash of cold water.

However, Shelby County's suburban Republican legislators, even before Norris' bombshell, had been floating legislative proposals to thwart MCS' intentions. One bill, already filed by state senator Brian Kelsey of Germantown, would require the state to take over MCS schools (as "non-performing" schools) if the city district should be liquidated.

January 7th: Proponents of school-district consolidation staged a rally in the Shelby County administration building downtown. Under the rubric of "Citizens for Better Schools," spokespersons for the diverse group included Chism, former MCS board member Maxine Smith, city councilman Shea Flinn, former county commissioner Deidre Malone, and state representative G.A. Hardaway, chairman of the county's legislative delegation.

Other participants included state Representative Johnnie Turner, city councilman Harold Collins, and MCS board members Tomeka Hart and Martavius Jones. (Memphis mayor Wharton passed through the lobby as proceedings were about to get under way but discreetly vanished into an elevator.)

Smith, in particular, added gravitas to the event. A civil rights legend in her own right, she recalled a vote of the MCS board, 35 years earlier when she was a member, that rejected charter surrender by a single vote and said that opponents of the merger "know we are right and know we are going to win."

The participants indicated they would file suit in Chancery Court to force a referendum. They said they would not choose between the various legally available methods of achieving school consolidation but, practicing Fail-Safe, would employ all of them simultaneously. City Council chairman Myron Lowery had first indicated a disinclination to act in response to Giannini's ruling on Wednesday, calling such action unnecessary. But council sentiment had shifted since then. 

As Collins expressed things after the rally on Friday, "I think we're going to have a resolution affirming the action of the school board. I think the council ought to do both things. The council ought to have a resolution ready to pass and give to the Election Commission as they suggested. And then to say we really don't need to do this in the first place. But because we want to assure that the citizens of Memphis get an opportunity to express themselves, we're going to do it. We're within about eight or nine days of our regularly scheduled meeting anyway. We'll handle it. We'll probably get it on same-night minutes as we normally would on things that need to be expedited. We'll take care of it."

After proclaiming, "We live in a nation of laws, and the laws clearly give this power to the people. We'll have a vote, and we'll see what the people in their wisdom decide to do," Flinn, who had made advance preparations for the petition strategy and already had one bearing 100 names, went to the Election Commission's downtown office and filed the petition.

January 8th: This was the closest thing to an off-day in the feverish round of activity, but participants on all sides of the school issue were consulting their allies, considering various strategies for going forward, and privately digesting a variety of legal opinions that would shortly become public.    

January 9th: The heavy winter snows began to fall, immobilizing local activity and, none too ironically, forcing closure of all area educational institutions, city and county, on the next day. But it was no day of rest for the storm front that the school crisis had become.

Even as the flakes began to fall, news was dribbling out of two crucial opinions from Shelby County attorney Kelly Rayne, who, at Chairman Chism's request, outlined to the 13 county commissioners what she saw as the legal realities of the case.

In one opinion, Rayne clarified much of what was already known or suspected, including the facts that, as Pickler had privately indicated after last Monday's SCS press conference, Special School District legislation could be initiated elsewhere than Shelby County and imposed on the county at large.

Importantly, Rayne confirmed the validity of either of the statutory means that have been suggested for authorization of a charter surrender by MCS — city council approval or a referendum authorized by the MCS board. And, crucially, she opined that, even in the event of a new SSD for Shelby County Schools, a freshly unchartered city school system would become the obligation of SCS.

In a separate opinion, Rayne named the Shelby County Commission as the authorized body to create new elective board districts for the enlarged system created by a merger and, failing special legislative action that would authorize a special election, to fill the new positions.

Though, on the whole, her opinions seemed to offer encouragement — as well as a sense of urgency — to the proponents of charter surrender, Rayne took note of the considerable ambiguities involved in the various alternatives and, significantly, underscored the overriding authority of the Tennessee legislature to alter the situation.

January 10th: With most normal activity at a standstill due to the lingering heavy snows, and with many Memphians and Shelby Countians, like the rest of the country, focused on the evening's telecast of the long-awaited BCS showdown between Auburn and Oregon, the confrontation between the school systems continued to intensify.

Braving the weather, the Memphis branch of the NAACP followed through with a scheduled afternoon press conference to support the concept of a charter surrender for MCS. Branch president Warner Dickerson, a former Fayette County Schools superintendent, said, "It is our opinion that a unified system is the best for the boys and girls of this community," and decried what he said would be an insupportable tax increase on city residents if an SSD should be instituted for Shelby County Schools.

Then came the back-to-back competing pronouncements from Cooper and Norris.

Others will take up positions on the see-saw before this contest is over. As the Tennessee Journal, a weekly newsletter on state government, has pointed out in two recent articles, the whole state is watching this one. — Jackson Baker



LOOMING QUESTIONS

"Things are just different here."

So said Nashville attorney and school system merger expert Chuck Cagle last week in his presentation to the Shelby County School Board. There is no better summation than that. Let's count the ways.

A Four-Part Play. In Act One, still unfolding, the experts have the stage — the county attorney, the city attorney, the election commissioner, state legislators and officials, and school board members. Act Two will be the referendum or, alternately, action by the Memphis City Council. If the charter is surrendered one way or the other, Act Three will be implementation of a transitional merger plan by the school boards, administrators, and possibly a committee appointed by the two mayors. Act Four will be the reaction. Will there be a replay of 1974, when some 30,000 students left the city school system? A more modest decline in enrollment? Broad acceptance of the merger? That will be up to parents and students.

No comparables. There is no precedent for a big system (103,593 students) merging with a smaller system (47,342 students). Or a forced merger by charter surrender. Or a predominantly black city system merging with a smaller majority-white county system. Hamilton County's merger with Chattanooga (with broad political and business support) in 1997 resulted in a majority-white system. Knox County's merger with Knoxville in 1986 resulted in a majority-white system. Metropolitan government in Nashville and Davidson County in 1961 merged the governments and the school systems. What was then a majority-white system has become a majority-black system with 73,000 students.

Never have so few had so much influence over so many. Just five members (one of them no longer serving) of the nine-member Memphis City Schools board forced a referendum, against the advice of their superintendent and the city and county mayors. A referendum may or may not depend on the consent of the Memphis City Council. Another way to accomplish the same thing is by a petition with 25 valid signatures. PTA resolutions have required broader support. A low bar? More like no bar.

Old bulls roar once again. On the surrender side is former MCS board member and NAACP executive secretary Maxine Smith, who recalled a surrender motion failing 5-4 in the 1970s when she was on the board. She is not leading this fight but is still an able speaker with a fighting spirit. On the county side is Shelby County school board member Joe Clayton, former principal of Briarcrest Christian school. Briarcrest was one of the first church-supported schools to form in 1975 in response to forced busing.

Young lions. State senator Brian Kelsey, "the conservative leader" as he calls himself, is one of the staunchest advocates of a separate system. Arlington mayor Russell Wiseman has suggested that Arlington break away and form its own school system. On the surrender side are board members Martavius Jones and Tomeka Hart, City Council members Shea Flinn and Harold Collins, and a support group called Stand For Children. In the middle, by position if not preference, is the head of the Shelby County Election Commission, Bill Giannini, seen as an obstructionist by surrender proponents.

Strange bedfellows. Many to pick from, but on the surrender side, blogger Thaddeus Matthews, Sidney Chism and Willie Herenton, and Herman Morris, who ran against Herenton for mayor in 2007. On the no-surrender vote on the city school board, Jeff Warren and Kenneth Whalum Jr. finally agreed on something. Also on the no-surrender side, black ministers and the Memphis Education Association are praying and making strategy with the Shelby County school board.

The Germantown effect. Since the mid-1990s, Germantown High School has seen its standing as the premier all-around county high school challenged by newer high schools — Houston and Collierville. No county school has been impacted more than Germantown by the eastward growth of Memphis and the drawing of school district and annexation boundaries. Southwind High School, a county school that will eventually be turned over to MCS under an annexation agreement, took hundreds of black students from Germantown when it opened five years ago.

Desegregation is not the issue. Not the way it was 40 or 50 years ago, when there was total segregation by law or token integration. The Shelby County school system, as its leadership has said, is arguably the most integrated system in Tennessee. Merging the city and county systems would change the racial makeup of some schools, but there are not enough white kids (about 33,000) to have a racially balanced 150,000-student system no matter how you slice it.

County schools are the new optional schools. The optional schools program started by Memphis City Schools in the aftermath of massive white flight from forced busing in the 1970s held high-achieving students in the system by clustering them in schools like White Station High School, Grahamwood Elementary, and John P. Freeman Elementary. Today there are 13,000 students in optional schools, but only 7,700 white students in MCS. With 47,342 students, Shelby County Schools are, functionally, the public school option of choice for college-bound students even though the system has no "optional schools." The magnet effect is the same. So is the pull of private and church-related schools, with an estimated enrollment of at least 30,000 students. Were it not for the Shelby County system, the number would doubtless be higher.

Report cards. Every year, SCS gets better report card grades than MCS, just as optional schools in MCS outpace non-optional schools. On the 2010 Tennessee Report Card, Shelby County Schools got grades of "A" in math (55), science (56), social studies (58), and reading/language (55) for grades 3-8. The average ACT score was 21. Memphis City Schools got grades of "D" in math (40) and "F" in science (35), social studies (38), and reading/language (38). The average ACT score was 16.6. The state average grade and score was "C" in math (49), "C" in science (49), "B" in social studies (51), and "C" in reading/language (49). The average ACT score was 19.6. Merging the two systems would result in lower average scores but no "us" and "them" comparisons of two systems.

Breakaway suburbs. Another way to opt out of a merger, under study in Arlington and other suburbs, is forming an independent school system. Arlington High School, however, was paid for by all of Shelby County, not just residents of Arlington. There would be questions about buying buildings and assuming debt. But many wealthy suburbs all over the country have their own school systems. Where there is a will there is a way.

Tax inequity. Property taxes support public education in the city and county. But there is a big inequity between the tax rate in Memphis ($7.21), Germantown ($5.44), Collierville ($5.20), Arlington ($5.02), and Lakeland and unincorporated Shelby County ($4.02). On the border of Memphis, the tax rate changes dramatically from house to house and street to street. School consolidation might not save money, but it would refigure the tax rates and probably mean higher taxes outside Memphis and lower taxes inside Memphis if there were a single tax source for schools. If Shelby County became a special school district and MCS surrendered its charter, Chuck Cagle said the tables would then be turned and county residents could find themselves double-taxed.

Whose school board? They were accused of fear-mongering, but, as Cagle said, the current county board members would indeed serve out their terms and call the shots for at least a few months and possibly a year or more. New districts would have to be drawn to cover all of Shelby County. A new board could have more than seven members, and they could be elected at-large or from districts.

Go fast, go slow? Cagle estimated the transition would take a year to 18 months, based on the experience of other Tennessee cities. But that is only a guess because the potential merger would combine MCS, the 17th largest system in the country, with SCS, which is only the 7th largest system in Tennessee. Sidney Chism and former MCS superintendent and mayor Herenton disagree. They think the merger could be completed in six months or less, possibly in time for the start of the 2011-2012 school year.

Is this a precursor to general consolidation? No. They are two issues. Knoxville never consolidated after its school systems were consolidated.

Dress codes and corporal punishment. Legal questions and arcane political procedures are getting attention now, but a merger would mean working out basic policy questions as well. Those decisions will ultimately be in the hands of parents and teachers and school board members who write policy manuals. Until then, the controlling document would be the current SCS manual. It does not have a dress code but does have corporal punishment.

In case you hadn't noticed: At the meeting last week, SCS board member Diane George asked, "Are we just making this up as we go along?" Cagle said, "Yes, pretty much."

John Branston

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