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VOL. 127 | NO. 226 | Monday, November 19, 2012

Mediation in Cards for Schools Case

By Bill Dries

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The silence in the municipal schools federal court case is a sign. With a gag rule in place for attorneys on all sides, there are nevertheless reports that all sides in the case that has already reshaped public education in Shelby County might get together Monday, Nov. 19, and give a mediated settlement a try.

Beyond that, not much else is known. It’s not known if Memphis federal court Judge Samuel “Hardy” Mays will be the mediator as he was last year when all sides reached a settlement on what have been the terms for the coming merger of Memphis City Schools and Shelby County Schools.

The settlement, among other things, created the 23-member transitional school board and set August 2013 as the start of the schools merger.

There are fewer clues than there were last year when the mediation sessions were listed in the electronic case file.

Mays had cleared his Monday court calendar late Friday of everything but a 9 a.m. report date in a firearms case. That suggests Mays will be free for the rest of the day to be a direct participant in any mediation.

It is unknown if the mediation attempt will be one to resolve differences in the state constitutional part of the case that Mays has heard all of the evidence on and is poised to make a decision on. Or is the mediation to be an attempt to resolve the federal constitutional questions that Mays is scheduled to hear at several days of trial that begin in January? Or will a mediation attempt involve both parts of the complex and historic case?

If he doesn’t assign himself the job of mediator, he could give the task to a third party. And there are several kinds of mediation.

The kind Mays used last year was a method in which all of the parties were put in different rooms at the federal building Downtown and Mays went from one room to another. The parties didn’t have direct contact with each other at least at first.

There were several unsuccessful attempts at mediation before that, one in which Mays appointed a retired state appeals court judge, Joe G. Riley, as mediator. That was before Mays’ ruling upholding the schools merger.

At the time, April 2011, Mays told the attorneys, “My experience is courts are terrible places to make public policy. … I would encourage settlement.”

When Mays took up the job himself, he reportedly told the attorneys that he was prepared to make a follow-up ruling to his ruling upholding the merger of the two school systems. And his message to all sides – either directly stated or implied – was that none of them would be happy with the terms for carrying out the merger that he would impose.

Meanwhile, Mays has denied a motion to subpoena information from The Commercial Appeal about the newspaper’s online commenters who posted on stories about the schools merger and formation of municipal schools.

Attorneys for the Shelby County Commission sought the information from the newspaper as part of its case against the suburban municipal school districts.

But Mays said it is not relevant.

“The information sought by the commission is not relevant to the underlying issue to be decided and is not an appropriate subject of discovery in this case,” Mays wrote in an order denying the motion posted Thursday, Nov. 15, in the electronic case file.

The motion by the attorneys is part of the preparation for a trial before Mays on federal constitutional questions scheduled to begin in January.

The issue then will be the commission’s claim that the municipal school districts violate the equal protection clause of the U.S. Constitution because the school districts would “racially resegregate” public education in Shelby County.

The commission and its attorneys claimed the information about online commenters went to the intent of state legislators and suburban political leaders.

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