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VOL. 128 | NO. 84 | Tuesday, April 30, 2013

Mays Ponders Changes in Merger Terms

By Bill Dries

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U.S. District Judge Samuel “Hardy” Mays is considering whether he should change the terms of the 2011 consent decree that so far has governed the path to consolidation of Shelby County’s two public school systems.

Mays raised the possibility Tuesday, April 30, as he heard from all sides in the case on the move by the Shelby County Commission to appoint six new members to what otherwise becomes a seven-member school board effective Sept. 1.

The commission wants to make it a total of 13 members.

Mays has not ruled on the County Commission plan and said he has not decided whether he should amend the consent decree that was agreed to by all sides in the case.

But Mays expressed concern that allowing the commission to appoint six school board members to serve with seven elected members would create new equal protection concerns.

The 2011 consent decree provided for the County Commission’s appointment of seven members to a countywide school board that took office that October as a solution to one-person, one-vote Constitutional claims by the commission and the city of Memphis.

That same consent decree allowed for a later expansion of the board to up to 13 members total by the County Commission. But Mays noted at an earlier hearing that the decree doesn’t specifically say the commission could expand the board with appointments at that later time.

And Mays is concerned that the appointments will mean that although more than 400,000 Shelby County citizens elected school board members last year, they would be represented by different appointed school board members if he lets the commission make the six new appointments.

“I don’t intend to go from one equal protection problem … to another equal protection problem with an enlarged school board,” Mays said.

He also expressed concern that if the settlement terms are open for change on that point, there could be more moves to change the terms.

“I’m not convinced I have the authority, but I might,” Mays said, telling attorneys he would hear from them first if he decides to go down that path and would only go down the path “if it makes sense.”

Otherwise, Mays gave no indication of when he might rule on the commission’s plan.

Attorney Leo Bearman, representing the County Commission, argued that the commission has the power to fill vacancies on the school board as it does other vacancies.

“There is not a problem,” he told Mays. “It is a vacancy.”

Valerie Speakman, attorney for the countywide school board, argued it is a not a vacancy as recognized in Tennessee law caused by a death or resignation or an inability to otherwise serve in an elected office.

“If the County Commission can create a vacancy any time … then I don’t know where that’s going to lead,” Speakman told Mays.

Attorney Tom Cates, representing leaders of Shelby County’s six suburban towns and cities, said the new school board positions amount to “more power” for the County Commission over education policy.

“I think the appointments call into question the independence and legitimacy of the school board,” he added.

Mays also questioned an estimate from the Shelby County Election Commission that the earliest a special election this year for six school board seats could be held is Dec. 5.

He quizzed election commission attorney John Ryder on the process of reconciling precinct boundaries with the proposed school board district boundaries. He and Ryder concluded there are 10 split precincts involved.

“We experienced some problems with this in a prior election,” Ryder said, referring to problems in the 2012 election cycle that prompted two Chancery Court lawsuits, one still pending, and an investigation by the state comptroller’s office. “So, the election commission wants to be very careful.”

Mays questioned the estimate election commission officials gave Ryder that it would take six months to sort out those voting boundaries in 10 precincts.

“That does not seem to me intuitively obvious,” Mays said of the six-month timeline.

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