By Zack McMillin, Commercial Appeal
July 9, 2012

As U.S. Dist. Judge Samuel “Hardy” Mays begins hearing arguments over the validity of laws allowing referendums for new municipal school districts in Shelby County’s suburbs, it’s instructive to go back to the first day of the 2011-12 school year.

About the time the first afternoon school bells rang on Aug. 8, Mays released the 146-page order that managed to give both sides items of significance: Memphis had properly dissolved Memphis City Schools and forced consolidation with the heretofore suburban-only Shelby County Schools, Mays wrote, but a new state law strongly favoring suburban interests would guide the two-year process of transferring administration and operations of city schools to the county.

Finding a way to give victories to all sides will be more challenging in this next task facing Mays, who last August declined to rule on the validity of a clause in the 2011 law allowing for the lifting of the statewide ban on new municipal school districts under certain very specific circumstances.

That issue of municipal schools in Shelby County was “not ripe,” Mays wrote, and theoretically might never ripen. Municipalities might decline to move to form school districts and the new law explicitly said they could not do so anyway until merger of the new countywide district was completed.

But late last week, Mays said he agreed with the County Commission’s assertion in a June 26 request to sue the state over municipal schools that the issue had become ripe.

A status conference scheduled for Monday evening will bring discussion over how attorneys should proceed toward an expedited hearing Mays has granted the Memphis-dominated Shelby County Commission over whether to stop the Aug. 2 municipal-school referendums in the suburbs.

The Commission also wants the judge to rule illegal the effort by municipalities in Shelby County to establish new municipal school districts.

Suburban interests say something very fundamental is at stake: “Our ability to govern and letting our citizens have what they want,” as Bartlett Alderwoman Emily Elliott put it on Saturday when Bartlett voted to join Germantown and Collierville in hiring a law firm to try and intervene in the lawsuit on their behalf.

“I’m mad,” she said, and she’s not the only suburbanite outraged at the commission.

The commission’s complaint alleges that giving the suburbs what they want would violate the Tennessee and U.S. Constitutions. Getting referendums on municipal schools, the commission says, is not a legal right but in fact would be a privilege afforded to no other county in Tennessee.

The 2012 legislation that allowed the referendums to move forward after Tennessee Atty Gen. Bob Cooper ruled them illegal, the commission says, represents special legislation improper under the state Constitution.

When Knoxville and Chattanooga dissolved their city school systems, the suburban municipalities in Knox County and Hamilton County never received the “right to vote” on whether to create new municipal districts and still do not have that “right,” thanks to the very narrow wording of the 2011 and 2012 legislation.

The commission’s complaint also points out that lawmakers from other parts of the state sought and received assurances the legislation would not allow municipal districts anywhere else in Tennessee.

Neither the state nor the suburbs have filed legal responses to 151 points the commission lawyers’ list arguing that the creation of municipal school districts would be unconstitutional. The legal team representing the county is formidable: Atop the list of five attorneys signed onto the most recent complaint by the commission’s outside firm of Baker Donelson is Leo Bearman Jr., who led the legal effort that defeated Mississippi’s claims that Memphis owed millions of dollars for stealing subterranean drinking water.

The state attorney general’s office is tasked with defending the 2012 laws allowing the referendums, but it is unclear how vigorously it will fight. It was the attorney general who this spring issued an opinion stopping referendums that had been scheduled for May, but his office’s arguments last year defending the law guiding the merger drew praise from the suburban lawmaker who authored and pushed it through, state Senate majority leader Mark Norris, R-Collierville.

However, the state nor anyone else gave much legal attention to the race-based challenge to municipal schools — that allowing them would result in substantially more segregated schools in Shelby County and thus violate the 14th Amendment of the U.S. Constitution’s equal protection clause. That was put on the “back burner” by Mays, with a promise from the judge that if at a later time attorneys felt arguments should be heard on that matter, he would allow it.

Suburban leaders have offered political responses denying that their efforts for municipal schools contains any segregationist intent. Beginning Friday with unanimous votes by the boards of aldermen in Collierville and Germantown, the suburbs moved to hire the Memphis law firm of Burch, Porter and Johnson to advance the legal defenses.

Attorneys must still ask Mays permission to allow them to enter into the litigation.

The legal costs associated with parties involved in the lawsuit, through last September, had reached $1.21 million — and that does not count substantial man-hours logged by the state attorney general’s office. Germantown, Collierville and Bartlett approved initial funds of $100,000 each in what will be a coordinated suburban legal effort to advance the cause of municipal schools, and the suburbs have already spent many thousands of dollars pushing the effort for municipal schools.

Unless Mays acts to issue the injunction sought by the County Commission to halt the referendums, early voting will begin on Friday. Absentee ballots have already been mailed.

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