No matter where they are on the municipal school districts issue, most Shelby County Commissioners were surprised by the subpoena issued last week by attorneys trying to have the municipal school districts legislation declared unconstitutional.
The attorneys represent the commission as a body. But commission members are sharply divided on the overall legal quest with a majority favoring the pending court action.
The subpoena seeks the identities of readers who commented on stories on The Commercial Appeal website.
The newspaper is opposing the request.
And commissioners had a lively debate Monday, July 30, about municipal school districts, the part of the court case in which the commission alleges racial discrimination as a motive for municipal school districts and the subpoena.
“What we have, I think, is a law firm out of control,” said Commissioner Terry Roland who tried unsuccessfully to get the commission to order the attorneys to revoke the subpoena. “Folks, this is dangerous. I think this is a witch hunt.”
Some commissioners saw a threat to freedom of speech or at least a chilling effect. Others saw no threat to freedom of speech and cited the newspaper’s disclaimer that says identifying information can be used by the newspaper and to meet legal requests for the information.
Commissioner Steve Mulroy said the information would be kept private by the attorneys in the case under a court order. He said it is an attempt to see whether the commenters on the newspapers website followed up with letters to state legislators. And that could go to one of the commission’s court claims – that the intent of lawmakers was, in part, to racially segregate school populations with separate school districts.
“This is not a slam dunk,” Mulroy added in outlining the legal strategy. “But it is relevant. It is part of the puzzle.”
Commissioner Brent Taylor didn’t see a puzzle or a case.
“So what?” Taylor countered. “People who have racist tendencies still have the right to access to their elected officials.”
And Taylor added that those elected officials also have the right to reject those racist tendencies.
“You say a lot of things that you don’t necessarily believe when you are in the cloak of anonymity.”
Shelby County Commissioner
The information sought is the part of the court case to be heard by U.S. District Court for the Western District of Tennessee Judge Hardy Mays in which both sides will explore the intent of legislators who proposed and passed the legislation on how to create a municipal school district.
The commission’s pending motion claims the intent, in part, was to keep public schools in Shelby County racially segregated.
“It’s nothing smoking gun,” Mulroy continued. “It’s all inferences because in 2012 nobody announces racial intentions anymore.”
But they might when they are allowed to make anonymous comments at the bottom of an online article about the issue.
“You say a lot of things that you don’t necessarily believe when you are in the cloak of anonymity,” Taylor argued.
“What you tend to say under the cloak of anonymity tends to be closer to what is really in your heart,” Mulroy countered.
Commissioner Mike Ritz acknowledged that there are some important issues involved that give everyone on both sides pause.
He said there is a third possibility. It is that those favoring municipal school districts and who were instrumental in passing the legislation at issue in the suit didn’t intend to discriminate but nevertheless their actions were “inadvertently discriminatory.”
“You’ve got dirt on your hands,” Ritz concluded. “If in fact they are discriminatory, that’s what they are. That doesn’t mean those people are bad.”
Roland, meanwhile, was pointing to other motives in a court fight that still had a profoundly political durability outside the courtroom.
“This is war,” he said. “This whole school matter … it’s about money and power and being in charge.”