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VOL. 128 | NO. 11 | Wednesday, January 16, 2013

Schools Court Case Continues on Two Fronts

By Bill Dries

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No new mediation sessions were scheduled as of Monday evening in the municipal school district court case in Memphis federal court.

But the continued lack of specifics by the parties about what is happening is an indication that the talks will likely continue.

Meanwhile, attorneys for the state have moved ahead with their motion for Memphis federal court Judge Samuel “Hardy” Mays to reverse a ruling by Magistrate Judge Charmiane Claxton.

At issue is a request by attorneys for the Shelby County Commission for email and other communications state legislators had among themselves and with their constituents about the passage of legislation permitting the formation of municipal school districts in the suburbs.

The attorneys are seeking the communications as they work on the third part of the case. It is the claim by the Shelby County Commission that the municipal school districts violate the equal protection clause of the U.S. Constitution because the districts would “racially resegregate” public schools in Shelby County.

Mays last year denied a similar request by attorneys for the County Commission to get the identities of anonymous online commenters from articles on the controversy in The Commercial Appeal.

Mays sent the request for legislative communications to Claxton to hear and she ruled the state has to comply. But the state is appealing the decision to Mays.

They delayed filing the appeal in December saying it could “interfere” with the private settlement talks.

The extension granted by Mays ran out Monday, which is when Deputy Attorney General Kevin Steiling filed the appeal.

Steiling noted that all sides are “still in the midst of settlement discussions.”

Shelby County Commission Chairman Mike Ritz remained cautious Monday, Jan. 14, when asked about the discussions. He said he didn’t want to “crater” or derail the talks with disclosures about the details of the discussion.

“They are comprehensive in nature and everybody seems to be working hard and trying to find common ground,” he said. “The nature of the negotiations are matters go back and forth to reach agreement like paragraph by paragraph.”

Memphis City Council member Shea Flinn was only a bit more descriptive when asked about the sessions on the WKNO-TV program “Behind the Headlines.”

“We’ve moved past the gotcha schools debate of a zero sum game – one side has to lose so the other side has to win,” Flinn said.

When asked whether offers and counter offers were being made, he described them as “massive offers and counter offers.”

“But it’s been done very politely and without a lot of the rancor that you’ve seen in the other discussions,” he said.

Ritz said at some point all of the sides will go to Mays and either tell him they have a tentative settlement to take to several of the elected bodies for approval or they will tell him the talks have ended without an agreement.

If there is no agreement, before Mays would get to the federal constitutional claims, he would first rule on what is left of the questions about whether two state laws violate the Tennessee Constitution.

Mays ruled in November the 2012 state law allowing suburban leaders to move ahead immediately with municipal school districts violated the state Constitution and voided all of the moves they took during the year toward that goal.

If Mays strikes down the two remaining laws that allow for creation of municipal school districts starting after the August schools merger date, it would make the federal constitutional claims a moot point.

In this week’s appeal filing, the state contends “documents and records created or obtained by legislators as part of their work in the legislative sphere” are protected by federal common law and a “speech and debate clause” in the Tennessee Constitution.

The Tennessee Constitution clause says except for “treason, felony or breach of the peace” state legislators are “privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”

Claxton cited a 1980 federal corruption case against state Sen. Ed Gillock of Memphis that permitted the use of Gillock’s communications as a legislator.

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