Senator Mark Norris
9A Legislative Plaza,
Nashville, Tennessee 37243-0232
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Opponents: Issue ‘not settled’
By Zack McMillin, CommercialAppeal.com
May 6, 2012
Those opposed to the creation of municipal school districts in Shelby County believe significant legal barriers remain even after the state legislature’s passage of a bill last week designed to allow as many as six municipalities to hold referendums for new school systems.
They are prepared to challenge the municipalities over what they believe is a fundamental misunderstanding about the ruling in the schools merger lawsuit that U.S. Dist. Judge Samuel “Hardy” Mays delivered in August.
The judge, they believe, has never ruled on whether it is even legal for municipal or special school districts to be formed in Shelby County.
“Let me assure you this matter is being closely scrutinized by those of us who have an interest, a passionate interest,” said Shelby County Commissioner Walter Bailey, who was a key player in the mediation sessions that led eventually to a settlement of the lawsuit. “I’m not at liberty at this point to discuss where we are in terms of our intentions.”
While it is true that Mays upheld most tenets of the controversial 2011 Public Chapter 1 law, also known as Norris-Todd, the judge did not make a definitive ruling on the specific clause that called for lifting the statewide ban on municipal and special school districts.
That clause, referred to in legal documents as clause b-3, was subject to a number of challenges from the Memphis-controlled interests involved in the lawsuit.
Here is what Mays wrote:
“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.”
Citing case law, he wrote: “The challenges to Public Chapter 1’s addition of section (b)(3) . . . are not ripe.”
In other words, Mays told the parties that he could not rule on a hypothetical. Unless someone attempted to create a municipal or special school district in Shelby County, the issue was, in his words, “not ripe.”
But state Sen. Mark Norris, R-Collierville and the author of the law, said last week he’s confident the entire bill, the b-3 municipal clause included, has survived any relevant challenges.
“There really is no issue and there is no issue before the court. That claim was dismissed,” Norris said. He added: “The court didn’t retain jurisdiction over it.”
Norris points to other language in the ruling:
“Because those challenges are not ripe, the court lacks jurisdiction over them and they must be dismissed. Therefore the claims of the city, the city board and the county commission that section (b) (3) is unconstitutional are hereby dismissed.”
Said Norris: “I say there is no issue.”
Bailey, like Norris, is an attorney and he says: “I would vehemently disagree. The judge deferred any ruling after having determined the issue was premature.”
Commission colleague Steve Mulroy, a professor of constitutional law at the University of Memphis, also was circumspect about legal strategy but said he believes until the judge rules on the b-3 clause that the ban on municipal and special school districts has “clearly not” been lifted.
“Of course it’s not settled, it’s clearly not settled,” Mulroy said. “The whole point, what ‘not ripe’ means is we are not deciding it now, we will probably decide it later.”
Mulroy has consistently earned the ire of municipal school proponents by among other things calling them “separatists” for wanting to form their own districts before Shelby County’s schools merger Transition Planning Commission finishes its work.
The 21-member TPC was created as a result of the Public Chapter 1 law that Norris says he crafted to create a more orderly transfer of Memphis City Schools administration and operations to the county. MCS and the City Council voted to surrender the city’s special school district charter, and Memphis voters approved transfer of administration to the county.
The TPC plans to have a draft blueprint of recommendations to the unified Shelby County Board of Education sometime this summer. Those recommendations would then go to the board and the state for approval, and the TPC has included time in the fall to allow for any adjustments that may be required.
The new county school district is scheduled to begin operations in time for the 2013-14 school year.
County Commissioners said they would not do anything at least until after it was clear the bill that passed last week allowing referendums becomes law. Gov. Bill Haslam, who had said he did not want to see any new legislation that would interfere with the county’s schools merger Transition Planning Commission, had not signed it as of Saturday.
If Haslam chooses not to sign the bill, it would become law after May 15. If he chose to veto it — he said last week that was very unlikely — the legislature would have to come back into session.
The leaders of both the House and Senate have said they will not call for an extra session so, in essence, a Haslam veto means no referendums this year.
Shelby’s suburban municipalities are working quickly to pass ordinances that would put referendums approving municipal school districts on the ballot for the Aug. 2 elections that include federal and state primaries, county general elections and county school board elections.
The timing of those referendums is key because the municipalities are racing to form districts, elect a school board and hire a superintendent, staff and teachers in time to open their schools for the 2013-14 school year. That would prevent children in suburban towns from joining the new Shelby County district that is also set to begin in time for the 2013-14 school year.
County Commissioners would not say if they intend to try and stop the referendums. Bailey said the usual precedent of a judge being reluctant to overturn the expressed will of voters means the prospect of referendums “does exacerbate our concerns.”
“I can assure you that our posture won’t be passive,” Bailey said.
— Zack McMillin: (901) 300-9225
Nashville bureau chief Richard Locker contributed to this story.
Civil rights challenge?
Allan Wade, the Memphis City Council’s attorney, had planned to challenge the clause lifting the ban on new municipal or special school districts based on potential violations of the 14th Amendment’s equal protection clause.
Wade was prepared to argue that allowing the clause would lead to public schools in Shelby County becoming more segregated, triggering a possible civil rights violation.
In the May hearing where all parties agreed to forego a jury trial and allow U.S. Dist. Judge Samuel “Hardy” Mays to make a ruling from the bench, a key moment came when Wade agreed to “putting the 14th Amendment issue to the back burner.”
Mays promised Wade and other attorneys he would consider the issue, if it arose — i.e., if anyone applied to be granted municipal or special school districts by the state.
Of “Mr. Wade’s 14th Amendment concerns,” Mays said: “If that matter doesn’t resolve otherwise, I would have to perhaps move to those arguments; but, if we’re going down that road, that requires extensive discovery, I think, in terms of facts of the matter and requires expert testimony.
“I would want to hear from people who have spent years studying these matters because that’s a matter of the gravest significance to reach that issue. It’s just a matter of the gravest significance.”