Back to Square One

The county commission puts a brake on filling a Unified School Board vacancy.

| August 08, 2013
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The resisters — i.e., the suburban hard-core, a minority on the Shelby County Commission — won one on Monday. Their victory, putting an indefinite stall on filling a vacancy on the Unified School Board, was mainly symbolic, and it owed as much to confusion and disagreement on the part of the commission's pro-school-merger majority as to their own acumen.

In any case, the scoreboard will show that the commission's already unsteady slog toward expediting the merger process was slowed even further, a fact that could have measurable consequences down the line. If nothing else, it may have put off the day of reckoning on the expansion of the school board from seven members to 13 or at least complicated that process.

What happened on Monday was that, after what had been one of the least consequential commission meetings in years — with only one item besides the consent agenda, and that item, a zoning matter, withdrawn — the commission undertook to consider an add-on item, one that sounded, as county attorney Kelly Rayne summarized it, fairly routine.

The item was an amendment to a resolution passed two weeks ago calling for applicants to succeed school board member Reginald Porter, who resigned to become the unified system's chief of staff. Interviews for the vacancy were to be held next Wednesday.

But, as Rayne noted, that resolution had erroneously specified that Porter's successor would fill out the remaining three years of his term, instead of the single year leading up to next year's election cycle, when the seat would be on the ballot.

Nor did the resolution account for the fact that Porter's District 6 will be transformed into something else by the aforementioned expansion to 13 districts on September 1st. (The current 23-member board, a discordant group consisting of those seven, plus holdovers from the former Memphis City Schools and Shelby County Schools boards, will pass into history at that point.)

The amendment offered Monday would address those points with necessary changes, Rayne explained.

Except that, as was demonstrated in the intricate debate that followed, there were myriad uncertainties to deal with, involving: the expectations of existing applicants for what they had presumed would be a three-year term; the question of whether someone selected now for District 6 would also be a resident of the reconfigured District 9 (which most of District 6 would become) and, if not, what then; and the still unresolved question — yet to be decided by presiding federal judge Hardy Mays — of whether the six new members were to be elected or appointed by the commission.

Nothing close to a consensus on these matters was reached, with the result that — in an outcome owing much to the absence of two commissioners, Justin Ford and Melvin Burges, and to the early departure of two others, Walter Bailey and Sidney Chism — the commission would first reject the amendment on the floor and then, on the motion of Commissioner Wyatt Bunker, vote to rescind the original resolution.

So it's back to square one, a consummation devoutly to be wished by Bunker and his fellow suburbanites Chris Thomas and Terry Roland, along with Heidi Shafer, whose district straddles city and county but whose sympathies on the school matter are with the suburbs.

The District 6 seat on the school board remains vacant, and the next steps on reconfiguring the expanded school board remain, as has so often been the case during the issues of the school-merger process, for Mays to pronounce upon.

• Saturday's memorial service for the late Lois DeBerry, who died last week after a lengthy battle with pancreatic cancer, drew a multitude of mourners to the First Baptist Church on Broad Avenue, many of them blue-ribbon members of the Tennessee political establishment — past and present.

As befitted the stature of the longtime House speaker pro tem, the list of those offering testimonials began with a former vice president of the United States, Al Gore, and continued through other such personages, including a current governor, Bill Haslam, and a past one, Phil Bredesen, and concluded with DeBerry's surviving husband, Charles Traughber, who, until his retirement late last month, had been chairman of the state Pardon and Parole Board.

Gore, for whom DeBerry had made a nominating speech for president during the 2000 Democratic National Convention, returned the favor in good style, establishing that DeBerry was a role model par excellence, one without a "mean bone in her body."

Other speakers expanded on that image and, on occasion, put it in bas relief, making sure it was realized that DeBerry, who pulled her legislative oar nonstop during her four-year battle with cancer, was a fully round character.

There was a Big Chill aspect to the service, a gathering of the guard, a last hurrah for the luminaries who had constituted Tennessee state government during the long span of DeBerry's career. It was a passing in review, as Memphis state senator Jim Kyle described it, for the state's Democratic Party, leading members of which were there in numbers too great to single out by name.

Yet it was more than that. One of the more memorable moments came from a leading figure of the state's new Republican guard, current House speaker Beth Harwell of Nashville.

In a voice swelling with emotion, Harwell talked about DeBerry having her back on some important children's issues and recalled watching her use "her tenacious spirit" to fight cancer:

"At times, when I knew she was tired, and when I knew she was in pain, she was still at the Capitol working, with a smile on her face. She taught us how to live, and she taught us how to die. What a legacy. Tennessee has lost a political icon. And I lost my friend and my mentor."

That was a sentiment shared by all.

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Comments (57)

Showing 1-25 of 57

Mr. Baker,
I believe Judge Mays has resolved the issue of the proposed six new members.

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Posted by Drift Boat on 08/08/2013 at 8:27 AM

Drift Boat

Excellent decision. I have always put more faith in having officials election by the people rather than being appointed. Whether I would like their decisions is another matter, but, at least an elected board will more express the will of the people.

The only problem I foresee is that this 7 member board will be reluctant to tackle issues knowing that the new expanded board will be able to reject and/or redo everything that they have done. I believe that they will kick important issues like the school buildings down the road. It is the same way with national politics, in an election year, everything is put on hold until the new members comes in.

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Posted by oldtimeplayer on 08/08/2013 at 9:06 AM

@OTP

Oh, I don't think so. Those important issues are being discussed right now.

Neither will the new board in September 2014 be able to undo those decisions at will. Any Cooperative Education Contracts entered into by the SCS BOE between Sepember 1, 2013 and September 1, 2014 are contracts enforcable by law. The new BOE will not be able to reject them, and that includes an agreement on the buildings.

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Posted by ArlingtonPop on 08/08/2013 at 10:32 AM

What the hell is Burgess doing involving himself in anything to do with the school system??? He's an employee of the school system and has a very vested interest in anything related to it.

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Posted by JuliusJones on 08/08/2013 at 11:00 AM

@AP,

That's a huge victory. I just now saw that the board won't expand until 2014 with the election.

That means that throughout the process of MSD formation, the MSD boards will be able to work with a school board that will at the very least be willing to negotiate in good faith.

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Posted by GroveReb84 on 08/08/2013 at 11:01 AM

The new 13-position districts, as drawn up by the commission back when they thought they would be appointing six new members right about now, are moot. Those districts cover the entire county. But as Heidi Shafer was quick to point out, the outlying munis will no longer "have a dog in the hunt", thus have no right to be represented on the SCS board. So if the board is expanded to 13 members next year, it will have to be with a completely redrawn district map that excludes all the outlying munis.

And expanding the board to 13 positions is unnecessary, especially now that SCS will be approx. 30% smaller next year. Since Walter MulRitz won't be able to stack the board with his own appointees, what's the benefit of expanding it by 46%? Many large districts around the country do just fine with 7- or 9-member boards. Too many cooks eff up the soup, as evidenced by the tortured snail-pace of the current bloated 23-member board.

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Posted by staythirstymyfriends on 08/08/2013 at 11:11 AM

@GR

I agree. This is as big a deal as the victory in the legislature.

We are going to start hearing stuff after September 1st, when the "appointed 16" roll off, but how much information I do not know. The participants in the on-going discussions are REALLY playing it close to their vests, as of now at least.

What I expect, and I could be very wrong, is that the SCC appointee that replaces Mr. Porter will start both leaking and spinning negotiations the SCC way as quickly as he/she can do it. The media will eat it up.

Regardless, the key number is four. Four votes. With the two surburban members already on the SCS BOE, we are halfway home to a agreement that will give both sides a win. Also an agreement that both gives everyone political cover and can be interpreted such that both sides claim victory.

Which is where the lawyers come in, who are experts at that sort of thing.

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Posted by ArlingtonPop on 08/08/2013 at 11:21 AM

Drifter et al., the good judge acted as you stated just after our deadline had passed. True fact.

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Posted by Jackson Baker on 08/08/2013 at 12:16 PM

@staythirsty,

You are correct on board expansion.

The 13 member plan, all along, was all about giving the CC8 the opportunity to APPOINT as many of members to the board as possible, so that the board would be overwhelmed with folks who supported the CC8 political agenda.

Now that the expansion won't happen until September 2014, the time when the MSDs will form, the redistricting plan will have to reflect a county without municipalities in it, assuming all 6 districts have state approval and are up and running by September.

With that in mind, it complicates things somewhat. They'll need to know which parts of the county are involved before they set the district lines, and they'll have to modify lines to balance population.

The good news is the question on filling Porter's position has been answered. They know they can fill the District 6 seat with a one year term member.

The even better news is that this likely means a much smoother settlement of negotiations between school boards, and we may even avoid some very unnecessary court battles in the process, like the buildings, as a major example.

I will be interested to see what starts rolling out on that front, as AP notes. Between September and November, I expect a lot of work and negotiation will be done, and I expect that the MSD boards will largely have pre-negotiated plans in front of them for them to largely rubber-stamp with ideally minimal post-election discussion.

The sooner the issues of zoning for unincorporated kids, possession of buildings, and sharing of services can be worked out, the better.

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Posted by GroveReb84 on 08/08/2013 at 12:25 PM

@AP,

I agree. This decision by Mays is probably as big as the decision in the legislature to lift the MSD ban statewide.

The hurdles are getting fewer and fewer by the day.

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Posted by GroveReb84 on 08/08/2013 at 12:33 PM

Mr. Baker,
Any analysis of the seven board members (-1) and how they stand on the issues?

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Posted by Drift Boat on 08/08/2013 at 12:40 PM

I just read the same story on TDN, and it includes this sentence: "He also approved the set of district lines the commission submitted for the 13 district school board."

Those district lines didn't exclude the munis, I don't think. The muni districts didn't exist when that map was drawn. Sounds like all county residents get representation on the board, irrespective of what school district they may be part of. Either that, or the CC will have to go back before the judge to get permission to rewrite the district boundaries once again before the next election.

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Posted by staythirstymyfriends on 08/08/2013 at 12:50 PM

@staythirsty

It would really suprise me if any of the municipal towns had any representation, but certainly there are areas that are unincorporated that would need to be represented.

Although, come to think about it, the municipals will still be paying county taxes to support the county system, which is SCS. So maybe.

I dunno what the laws require here, maybe somebody can help us both understand?

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Posted by ArlingtonPop on 08/08/2013 at 1:08 PM

@staythirsty,

The CC8 will have to go back before the judge once the MSDs have been approved by the state.

They'll have to bring a new districting plan. For now, since the districts aren't officially approved by the state, their 13 district plan is what they'd implement in 2014.

If (more like when) the MSDs are formed, they'll have to go back and re-draw.

Just as Memphis didn't have representation on the SCS board while MCS existed, we won't have representation on the SCS board once the MSDs officially exist.

This is what I discussed with one of the CC8 members when I said they'd be smart to wait on their board expansion until after the MSDs settle and they know who will actually be in SCS.

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Posted by GroveReb84 on 08/08/2013 at 1:10 PM

The federal court that decided that city voters couldn't vote in the county school board races based the ruling, at least in part, on the fact that the folks outside the city paid more toward funding education than they got back for their county schools. 121 F.3d 244 (1997)
The answer may depend more on funding than geography.

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Posted by Drift Boat on 08/08/2013 at 1:27 PM

A lot of you are assuming that the 7 member elected BOE will be easier to deal with in discussions of Msds, especially the schools. I don't understand your reasoning for that. Do you seriously think that the Memphis contingent will simply sell the interest of the SCS, especially Memphis down the drain? I would not think so.

The impetus on any discussions of trying to make any deals with the SCS Board will be on the municipals, not on the SCS Board. That board would not be under any time frame to settle anything. It is the munis that want school districts up and operating in 2014, not the SCS. All the SCS has to do is wait and let things unfold. It would be more political for the elected SCS Board to let a judge sift through the buildings issue rather than they doing something rash that they might regret later.

Do you seriously think that the 7 members on this board will go against the recommendations of the administration if that administration says they need some or all of those schools? If you people think that, you don't know anything about politics and where the pressure would come from. The pressure would come from Memphis, not the munis, for they won't have any vote in this mess come 2014.

Keep wishing and hoping!

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Posted by oldtimeplayer on 08/08/2013 at 1:41 PM

@OTP,

No we don't expect the Memphis contingent on the 7 member board to sell Memphis's interests down the drain, as you say.

What we do believe is that there are at least 2 Memphis members on the current board that are less interested in making political points and more interested in making the best deals for their district.

Believe it or not, the Memphis interest, likely at least for 2 of those Memphis members, isn't just to fight MSD formation out of anger. There is a contingent in Memphis that sees MSD formation as inevitable, and that contingent would simply like to see deals worked out that make the best sense for the entire county, Memphis and suburbs alike.

The chances for the obstructionists to win in negotiations between MSDs and the suburbs are greatly diminished with this decision by Mays. As AP told you, all we need is 2 reasonable Memphis members of the 5 Memphis members on the board, and we can get deals done. We tend to believe, from the discussions that have gone on behind closed doors to this point, that we have at least that.

As AP said, all settlements will likely be done in a way to allow both sides to save political face, but your hopes for simply being obstructionist to suburban interests out of petulance are greatly diminished with the current board make up.

And honestly it really doesn't matter what the majority of Memphis wants. It matters what the majority of those 7 members want. Do I expect us to get the buildings for free? Nope, because I expect a deal will be worked out that includes shared services, settlements of school zoning for unincorporated children, AND the buildings.

We will find out a lot between September and November, but from what I'm hearing, those negotiations are going on already, and there is a very good chance that a lot of those questions, including the buildings, will be settled out of court. There are many ways to settle that issue other than all or nothing for both sides.

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Posted by GroveReb84 on 08/08/2013 at 1:57 PM

Let me add that if the obstructionist agenda is diminished allowing for cooperative agreements between SCS and the MSDs to settle all the remaining issues related to zoning, services, and buildings, then the only hurdle left is the Equal Protection challenge, which we've covered extensively to this point.

I think we'll see a lot of those other hurdles, maybe all of them, cleared by Christmas, and we'll see how the Equal Protection suit proceeds, if it does. We've covered that discussion many times.

OTP, you may not know it yet, but this was a bad day for those like you that simply want to make the MSD formation process as long, painful, and costly as possible. The potential for delay is greatly diminished with today's decision. The good news, for those that simply want the best for the entire county, is that there will probably be some agreements that are wins for both parties, Memphis and suburbs, that come out of the negotiations, wins that wouldn't be achieved had the obstructionists had their way.

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Posted by GroveReb84 on 08/08/2013 at 2:08 PM

Playa -

Hope for a petulant and obstructionist board all you want. If the buildings issue isn't decided through negotiations by Feb. '14, the legislature in Nashville will be quite happy to resolve it for us.

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Posted by staythirstymyfriends on 08/08/2013 at 2:49 PM

GroveReb84

You have no equal protection claim. First of all, you are not a suspect class, second, your financial status precludes you from saying that you can't afford school buildings.

You asked for msds and the state gave them to you, provided that you meet the requirements, which, includes suitable facilities to house your students. If that is not solved by the time you want, you will not have msds. the onus for meeting those requirements are on you and no one else.

Those two members you are talking about are not as guaranteed as you think. They will vote or withhold even having a vote based on what the SCS administration suggest. If the SCS says, no, we need to study because we will definitely need those buildings, the 7 member, the majority of them will agree.

The incentive for delay is the ADA funds that will still be going to the SCS until you get your asds. That is millions of dollars. Those two members are not just going to give away that money when they don't have to.

But, please read the 14th amendment and the civil rights laws, they do not apply to you.

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Posted by oldtimeplayer on 08/08/2013 at 2:49 PM

OK Player - what if the SCS board, with the full endorsement of the administration, enters into cooperative, mutually beneficial negotiations with the munis? Are you going to spontaneously combust?

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Posted by staythirstymyfriends on 08/08/2013 at 3:43 PM

@OTP

You are sadly mistaken, on several counts.

Your claim that the SCS BOE will do what the SCS administration wants is not credible. The administration works for the board, not the other way around. The administration, including the Superintendent, will follow the policies and guidance of the board.

There is another side to the ADA argument, and that is the expenses associated with educating the students now attending schools in the municipal boundaries. You know that the munis could close their borders to those students and do so without any 14th Amendment issues. Consider what that senario would cost the SCS before you jump on that "millions of dollars" ADA bandwagon.

I think we will have a crackerjack 14th Amendment claim. Namely, that in denying the munis the use of the buildings necessary for us to perform our legal duty to educate, you are denying us the rights enjoyed by other MSDs in Tennessee. You know better than to think being a suspect class is necessary for a 14th Amendment charge. Perhaps you get all confused about equal protection and strict scrutiny?

Since you asked about our reasoning that the seven will be easier to deal with, I will answer that for you in a word:

Relationships.

The elected six have been working with our representatives on the Unified BOE for a long time, and in fact, several of them were members of the TPC together before that. This is not a negotiation between people with opposite points of view about education, the "we versus you" mentality. This is a negotiation between people who like each other personally, have a common purpose in seeing that all children get a first class education, and are motivated by the realization that failure to reach an agreement means more court cases, more discord, and more separation betweeen the parts of this community.

None of those things would be true if the SCC would have been allowed to pack the SCS BOE.

Perhaps you think the elected six want that kind of result (since you do) but I don't think so. I think I can identify three Memphis members of the SCS BOE who don't want that, maybe four. They particularly don't want to get into court with us over the buildings. The case law is pretty clear who has the rights to administer school buildings in any district. Of course, the legislature will act if they need to do so.

I don't know what the final agreement will look like, but GR is right that it will involve some redrawing of attendance zones, some unincorporated children attending muni schools, the munis having administration of the buildings, and some shared services, maybe a bunch of shared services. I also think the munis will be customers of the SCS by purchasing some goods and services. I would not be suprised to see a couple of the schools that are in the SCS geographic zones being administered under contract by one of the munis, either.

I predict each side will come out of these negotiations a winner. Neither side will get exactly what they want, but neither side will walk away feeling like they lost.

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Posted by ArlingtonPop on 08/08/2013 at 4:09 PM

Further on the column vis-a-vis Judge Mays' ruling: I can't say he would have ruled otherwise if the Commission had expedited the other appointment issue, but their failure to act stalled the whole process and made it easier for him to rule as he did, which was strongly foreshadowed in the column.

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Posted by Jackson Baker on 08/08/2013 at 4:09 PM

@OTP,

As I've said all along, there are ways for both sides to get wins, and some of those board members that recognize the inevitability of MSDs also realize that NOW is the time to be able to win something in negotiation.

You mention the ADA funds that come with those students. Most people also realize that those students come with COSTS too, so you're cutting costs at the same time in losing those students.

The middle ground for negotiation is figuring out exactly how to balance those funds and costs between the districts. I know you like to think that there is no reason for the Memphis interests to negotiate, but that's extremely short-sighted, and not all of the Memphis board members are that short-sighted.

I say it's short-sighted, because if the posture is taken to delay to maintain the ADA funds as long as possible, then 2-3 years from now, you still lose those ADA funds, but you get no financial benefit of negotiations. There are board members that see that and realize that they need to find the best LONG-TERM solution for the district, and that can include any number of ways to share funds, share costs, etc.

If you truly think the building issue will go to court, I think there is a good chance you'll be disappointed. I know you think the SCS administration will pressure the board to fight over the buildings, but I think what you'll see is an agreement that addresses the long-term need of SCS to have facilities for children and the long-term need of the MSDs to have their own facilities. There is plenty of gray area for negotiation to make that happen to be beneficial to both parties. I know you don't want to see the potential for middle ground negotiations, but they exist, and that's what the suburbs and the SCS board is working toward right now.

Bottom line, the obstructionist stance is not nearly as popular as you seem to think it is. There are reasonable heads involved in this situation, which will lead to reasonable negotiations. Why do you think the CC8 was so hell-bent on appointing 6 members to the school board ASAP? They knew that the current board didn't have enough obstructionists to achieve their goal of making life more difficult on the suburbs out of spite.

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Posted by GroveReb84 on 08/08/2013 at 4:36 PM

@OTP,

AP hits on what I'm talking about. Aside from the relationships that these people have developed and the fact that it isn't "us vs. them" for those on the current board the way it is on the SCC, there is potential for SCS to gain some long-term financial agreements from the MSDs through negotiation.

Just as a hypothetical, Germantown could agree to pay a yearly fee to SCS out of its MSD fund in order to use certain services offered by SCS, and that fee could be negotiated at a certain level to satisfy the SCS members for allowing building transfers to occur at no cost.

The fee for the buildings could be wrapped into the amount paid for services or the other agreements, but as part of the negotiation, it would come with the "free" transfer of the buildings without a court battle. Those negotiations will also likely include agreements for how to educate those unincorporated zones now and in the future to make sure the cost burden isn't an issue for SCS.

That type of agreement would be MUCH more attractive long term for SCS than trying to fight over the buildings in court. The best case scenario in a court battle for SCS would be either a flat purchase fee for those buildings that you get one time or the ability to force the MSDs to build new facilities. Neither a one-time fee or forcing MSDs to build buildings would do much for the SCS or its students now or in the future. Keep in mind, that's assuming a best case scenario for SCS where the legislature didn't step in AND that a judge would rule in SCS's favor in a court battle. Those are big assumptions. In my hypothetical for agreement, you're looking at a yearly payment from Germantown to SCS that could still exist 50 years from now potentially.

That's just giving you an idea for the type of agreement you're likely to see. I am not enough of an insider to know exactly how that'll play out, but I'm giving you the general idea, and that's what the parties involved are discussing right now.

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Posted by GroveReb84 on 08/08/2013 at 5:00 PM
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