#MCS – Following the Media – 2/4/11

Community Involvement, Counting to Seven, & Speeding to Litigation

One of the things that’s really impressed me about the past month and a half is the way that Memphians have come out to inform themselves on what’s happening with the schools. Town Hall after Town Hall, meeting after meeting, people have been genuinely interested in the who, what, when, where, why and how of the whole school debate.

There are few interactions with government more personal than education generally and the fate of schools in particular. Having grown up in a combination of rural and urban settings, I know how defining a school system can be for communities, but its not just small towns that go through this. Different communities within an urban setting can be just as connected to their schools as a small town can be to their system. Schools, even if they’re not performing particularly well, can serve as a point of community pride. So its not surprising that people, both in the MCS system and the SCS system are concerned about the future of “their” schools.

This sense of ownership can have many long-range impacts, some positive, some negative, but perhaps the most destructive is the sense that somehow both identity and pride will be lost if there is some kind of change. I’ve seen this more often in the consolidation of smaller districts, but I think it also applies to the MCS/SCS situation, and I think it explains some of the resistance elements on both sides of the MCS/SCS divide.

As we continue down this path of likely school unification, its important to think about the sense of ownership communities throughout Shelby County can feel toward their schools. But we need to also realize that while most political discussions are framed in the narrow view of “winners and losers” that we don’t fall into the kind of tribalism that sustains the notion that this somehow must be a zero sum game.

For the rest of their lives, the children in our schools will be interacting with each other in some way. They will grow up, and become a part of society. Some will become leaders, most will become mothers and fathers, and in those roles they will want to ultimately do right by the children they are responsible for helping raise. But they won’t be doing this in the vacuum of this school or that, they’ll be doing it in the world, and they will have to interact with each other regardless of what school’s name is at the top of their diploma.

If you think about it like that, then no failing school is acceptable. Each failing school, each failing child negatively impacts the outcome of the children that “succeed”. We live in this world together, despite the divisions we might seek to create for whatever purpose. No matter how this debate turns out, the sooner we accept that and act accordingly, the sooner we will begin to see more positives than negatives, despite the challenges we face.

Ultimately, if you don’t think it’s really that simple, you don’t have much faith in your children, or yourself.

On Thursday, the Memphis City Council again learned the importance of counting to seven. With 12 active members of the council, 7 still wins the day, as they say over and over again. Add the two abstentions from members who work in the schools and suddenly getting to seven is a bit more difficult. Getting seven out of ten, particularly the ten that were left, was going to be damn near impossible, especially at this point in the legislative process.

On Monday, the Senate will likely pass, on a party line vote, Sen. Norris’ bill SB0025. The House is scheduled to take the matter up in the full body on Thursday morning, just a few days before early voting starts. Whether or not the Memphis City Council decides to act at that time on the surrender resolution depends largely on how the legislation looks after passage.

There are, apparently, talks underway to alter the language of the bill, and Governor Haslam has pledged not to sign the bill until he’s heard from leaders in Memphis on the issue.

I don’t have a particularly positive outlook on the legislation. While the removal of a countywide vote may be seen as a concession, I think it’s more a recognition of the political reality that 30% of the electorate cannot overrule 70%.

There are plenty of problems with the bill. The three year mandatory wait, the specter of municipal and special school districts, and most importantly, the stacking of the transitional board. All of these things should cause people to want to get in front of the process before this bill becomes law. It will become law, perhaps not in this form, but with only a simple majority needed to override a veto and huge Republican majorities in the state legislature, it will become law.

There is still a question as to whether this bill, if passed in the middle of a process, will apply to that process, and that’s one of many places where the courts will come in.

Anyone not born under a cabbage leaf has known since December 20th that much of this would be decided in the courts. While many of the issues to be decided have been shifting since that date, the reality is that we all know its coming. It already took one lawsuit to get a referendum before the people. If that delay did anything, it effectively put us where we are today with the Norris bill. In the absence of that delay, we would be voting on this right now, and there would be an opportunity to get the vote in, and certified before a veto override…if it came.

Now it seems that no matter what happens, the timeline has shifted, opening up additional avenues for litigation that weren’t there on December 20th.

The litigation portion of this process is going to be a test of wills as much as a test of the law.

When I was in Junior High and High School, all the school districts in Pulaski Co., Arkansas were in the process of being sued over their desegregation plan. The suit began in 1982 and continued until 2009. Even though the plaintiffs in the case had plenty of reason to bring the suit, 10 years in even supporters of the lawsuit were tiring of the process. I don’t believe that the issues in this case will drag on for nearly 30 years, but I do know that even after a couple of years people lose their patience.

There should only be a couple of issues that vex the legal system in this case, but I don’t even want to try to list them. I’m not a lawyer, and am finding more and more that I don’t think like a lawyer. I will say that many of the suits will likely be disposed of rather quickly, resting on shaky legal ground, if any at all. The referendum issue has, for now at least, been largely conceded by opponents, so the biggest challenge will probably have to do with maintaining or changing the makeup of the current SCS board, and/or any transitional board that will emerge.

State law governing school transition is not as incomplete at Sen. Norris would have you believe. In fact, Norris’ bill is very similar, in some ways, to TCA ยงยง 49-2-1201 which sets forth the process by which a planning commission for transfer may be established, except that Norris’ bill turns the appointment process on its head.

Current law states:

(b) (1) The county mayor, the mayor of each municipality operating a school system and the chair of the board of education of each special school district may each appoint five (5) competent citizens as members of the planning commission.

Under this planning scenario Mayor Luttrell would appoint 5 members, Mayor Wharton would appoint 5 and the MCS board would appoint 5. Whether or not the SCS board would be able to appoint 5 or not is not explicitly stated by the statute, though that would seem fair.

Norris’ proposed bill vests the transfer authority much differently:

(A) The county mayor, the chair of the county board of education and the chair of the board of education of the special school district shall serve as ex officio members of the commission;

(B) The county mayor, the chair of the county board of education and the chair of the board of education of the special school district shall each appoint five (5) competent citizens to serve as members of the transition planning commission; and

(C) The governor, the speaker of the senate and the speaker of the house of representatives shall jointly appoint three (3) competent citizens to also serve as members of the transition commission.

This change isn’t lost on Mayor Wharton who is seeking concessions in the bill proposed by Norris.

Numbers represented on boards matter. Neither scenario takes into account the size of the districts that would seek to merge, a problem that, perhaps, should be heard before a court. Even in the best case scenario of proportionality, the bill Norris proposes enables the board to be stacked 11-10, con-pro. The only “enhancement” to “self-determination” I see in this scheme is that it enhances the prospect that 30% of the population can run roughshod over 70%.

Current law allows for the possibility of disproportionality. However, there is, at least, the possibility of creating proportionality. Norris’ bill ensures that the body will be stacked, and if he thinks that won’t ensure that a lawsuit is brought, he’s dreaming.

Enabling the City mayor the right to appoint members rather than the three ex-officio members and the three members appointed by the state would likely solve the problem. The state’s role is and should be regulatory rather than directly engaging in the process. This is well understood and accepted in state law. Giving the state three seats at the table, or nearly 15% of the members, does not ensure the process will meet state requirements. If anything it takes power away from the very people who should be guiding the process, residents of Shelby County.

Certainly, the state has skin in the game. State funding represents about 38% of all the funding that the two school districts receive. However, it has been relatively understood that schools are locally controlled. Giving 15% of the voice on the transitional board to the state flies in the face of this understanding.

The state has ample opportunity to weigh in during the process and help direct the transitional board in a way that would be suitable to the needs of the state. Further, the state ultimately has veto power over any plan that would emerge. Giving it additional power is not “enhanced self-determination” by any understandable definition.

Yesterday’s post included a link to an article entitled Motivation for Norris Bill Under Scrutiny. I nearly laughed when I saw the headline. The motivation for Sen. Norris’ bill has been clear from the day he filed it; gum up the process. First, it would have attacked the referendum. Norris, being an attorney, knew that in the long run that would be an unsuccessful tactic, so he moved to the transition knowing full well that there would be no established state precedent for this situation as nothing like this has ever come up.

The shift in focus makes Norris’ motivation clear. If he can poison the process after the vote, either the referendum will fail, or, at least, those who share his goals will control the transition process. All the smiling and “awww shucksing” in the world doesn’t change that reality. The video of the exchange between Norris and Sen. Andy Berke I posted yesterday showed that.

When challenged, Norris’ armor of “good guy trying to guide the process” fell away and turned into that of a man seeking to minimize anyone who would question him, in this case, Sen. Berke. Norris’ continued attempts to stay away from the media spotlight, where his motives cannot be questioned directly, further shows the chinks in his armor. If Norris was truly interested in a fair process going forward, he’d be all over the airwaves trumpeting it. That he isn’t, should cause people to further question his motivation.

At the end of the day, no one knows how this will end up any more than they did a week ago or a month ago. What happens in the coming days in regards to the transition process will have a huge impact on a lot of things, most importantly the legal arguments that will ultimately pass through the courts.

Finding comfort in this uncertainty is difficult, and surely people in Memphis are having more and more difficulty finding that comfort in the face of a process that’s being mucked with for political gain as we speak. For now, uncertainty is all we have outside of the resolve to do what’s best for our children.

Ultimately, that’s all we can do…what we think is best. That decision is only made more difficult in the face of an ever-shifting standard thanks to moves by legislators whose motives should not only be questioned, but challenged.

Ed Note: This was intended to be published on Saturday. Unfortunately, I scheduled it for 2012 rather than 2011, so I’m publishing this am. I’ll have the weekend/Monday edition as usual tomorrow.

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