A year and a half ago, all sides in the federal court case over the consolidation of public schools in Shelby County reached a hopeful milestone that set the ground rules for the merger.
“The proposed decree brings finality to this matter,” wrote Judge Samuel “Hardy” Mays in accepting the agreement and making it an order in the U.S. District Court for the Western District of Tennessee. “It prevents years of litigation and establishes the basis for cooperative solutions based on good public policy, rather than legal solutions imposed by the court.”
This week, all sides in the ongoing case as well as Mays were reading another section of the consent decree – the part that deals with the changes the countywide school board is about to undergo effective Sept. 1.
At issue is who gets to select six new school board members.
The settlement and consent decree created a 23-member school board that took office October 2011 and it gave the Shelby County Commission the power to appoint seven members to the body to go with the seven members of the old Shelby County Schools board and the nine members of the old Memphis City Schools board.
That 23-member board is to slim down to a seven-member board effective Sept. 1.
The Shelby County Commission is asking Mays to approve its plan and set of district lines to instead make the school board a 13-member body on Sept. 1.
That brought Mays and the attorneys back to the consent decree.
“The Shelby County Commission shall have the option of enlarging the Shelby County Board of Education and redistricting it so that the Board shall consist of not more than 13 members,” the September 2011 consent decree reads. “No such enlargement or redistricting shall take effect before Sept. 1, 2013.”
The issue is the County Commission’s claim that it should be able to appoint the six new school board members and that goes back to the talks that preceded the consent decree.
“The implication was clear,” said attorney Leo Bearman, representing the commission. “That in exchange for my client agreeing to things my client didn’t want to agree to … that my client would be entitled to enlarge the school board. … My clients consider this a done deal.”
“The Shelby County Commission shall have the option of enlarging the Shelby County Board of Education and redistricting it so that the Board shall consist of not more than 13 members.”
–2011 consent decree
Mays didn’t rule on any of what he heard during the Tuesday, April 16, hearing. But he told Bearman that whatever brought about the terms doesn’t change what is and is not in the terms.
“It says to me 13 members and redistricting,” Mays said. “There is no implication that they would be filled by appointment. I don’t think that is the position the parties negotiated.”
Attorneys for the school board and suburban leaders ultimately said they had no problem with the commission expanding the school board. But they both oppose the commission making those appointments. Their position is Mays should approve the expansion but let voters fill the six new seats in the August 2014 county general elections.
School board attorney Valerie Speakman and suburban attorney Tom Cates also argued that a seven-member board would allow the school board to move more quickly in a merger scenario that has been plagued by the limitations of a 23-member school board.
“Having new people on the board is going to stall discussions on the school board,” Speakman argued. “We’re trying to get through this as quickly as possible.”
“Maybe it was a lousy idea,” Mays replied. “But isn’t the barn door closed on that?”
Cates said a seven-member school board is the “appropriate size.”
“A small number of people generally do a better job,” he said. “My clients think the worst thing to do is to expand at the merger. … It seems to me an election is preferable.”
Mays wants to hear more, particularly from the Shelby County Election Commission, about the logistics and cost of possibly holding special elections for either every seat on a restructured countywide school board or for the six new positions.
The shift in school board district lines to create 13 single-member districts covering the entire county changed all districts by making them smaller. Mays acknowledged elections in just the six new school board districts that do not have an incumbent in them could lead to legal claims of disenfranchisement.
“My elected school board member is no longer representing me. My appointed school board member is,” is the way Mays phrased the possible claim.
The commission drew the district lines slightly different from the 13-member single-district plan the commission goes to in the 2014 county elections to avoid putting two elected school board incumbents in the same district. That was to avoid legal claims that the commission had shortened the term of an elected official. But it doesn’t speak to the issue from the voter’s perspective.
Mays gave all sides until April 26 to submit positions on all issues. He set the next hearing in the matter for April 30.