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VOL. 127 | NO. 222 | Tuesday, November 13, 2012

Attorneys Revive Correspondence Requests in Schools Case

By Bill Dries

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When attorneys for the Shelby County Commission made their final arguments on municipal school districts before Memphis federal court Judge Samuel “Hardy” Mays in September and October, they focused on the intent of legislators.

Their argument in asking Mays to declare that state laws governing municipal school districts violated the Tennessee Constitution was that the legislators passed laws in 2011 and again in 2012 that applied only to Shelby County.

Attorneys for the six suburban towns and cities seeking to continue forming municipal school districts were just as adamant that the laws could be applied to other counties in the state.

The Shelby County Commission cast its net over a wide area. It included comments made to stories in The Commercial Appeal posted online as well as emails and other correspondence to and from state legislators.

But when the commission’s attorneys presented their proof to Mays in three days of hearings in September and in filings the next month, they stuck to what attorneys usually rely on when trying to interpret the intent of legislators.

They focused on what legislators said in committee debate and on the floors of the House and Senate in Nashville.

Mays is now deliberating on that part of the case. As all sides await his decision on whether the municipal school district laws meet the standards of the Tennessee Constitution, they are filing their arguments in the third part of the case.

The third part is the claim by the Shelby County Commission that the formation of municipal school districts in the suburbs violates the U.S. Constitution because they would racially resegregate public schools in Shelby County.

“Where legislation is expressly passed in response to the desires of constituents, the private biases of constituents may be imputed to public officals.”

– Imad I. Abdullah
Attorney for the Shelby County Commission

And in making that specific argument, attorneys for the commission have revived their requests for emails and correspondence to and from legislators and their staffs as well as the earlier subpoena for online comments made to articles in The Commercial Appeal as well as information about the commenters.

They specifically want Mays to order the newspaper and the state to turn over information both parties have specifically refused to provide. Mays is scheduled to try the federal constitutional claims in January, provided his ruling to come on the state constitutional questions don’t make the third part of the case a moot point.

He referred the motion seeking emails and other communications from and to state legislators and their staff to U.S. Magistrate Judge Charmiane G. Claxton Friday, Nov. 9, for a determination. Any decision by Claxton could be appealed to Mays.

The new filings demonstrate just how complex and far reaching the third part of the case will likely be. Mays has said this part of the case is the equivalent of a federal schools desegregation case from the 1960s and 1970s.

He won’t be laying out any attendance zones for students to follow. His reference to the desegregation cases is in the broader claims involved about intent of legislators and the role public opinion plays in the decisions legislators make.

That part of the case will also likely involve arguments about the racial composition of the county’s two existing school systems and what the racial composition would be of the suburban school districts.

Attorneys for the suburbs and their clients have been vehement in denying racial motives of any kind. And they have argued legislators are not bound by opinions of their constituents.

The resolution of those two divergent positions will likely move to the question of intent.

“Where legislation is expressly passed in response to the desires of constituents, the private biases of constituents may be imputed to public officials,” wrote attorney Imad I. Abdullah for the commission, in the motion specifically seeking online commenter information from The Commercial Appeal. “Otherwise, a legislative body would be allowed to place its official stamp of approval on private racial discrimination.

“Here, it cannot be seriously contested that the Municipal School Acts were proposed and pushed through the General Assembly in response to the desires of constituents,” he continued. “As a result, the foregoing framework dictates that the motivations and desires of citizens within Shelby County are directly relevant to the issues in this case.”

Abdullah specifically reminded the court that the information requested includes comments posted on The Commercial Appeal’s website as well as those removed from the site.

The newspaper refused to produce the information in August.

Attorneys for the County Commission claim in last week’s filing that the newspaper has “no credible claim of privacy, privilege or right” specifically on the posts it removed from its website.

The commenters are not sources used in stories so no shield laws protecting them apply, the attorneys argue. And the newspaper’s 24-page privacy policy for those posting online comments is among the exhibits included in the filing.

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