"The courts have moved pretty far away from activism in determining school matters," said David Pickler, the perennial chairman of the Shelby County Schools board, on Tuesday, by way of commenting on the latest action by U.S. district judge Samuel Hardy Mays, who is hearing the consolidated case involving rival plans for consolidating Memphis City Schools and SCS.
After conferring with Mays on Monday afternoon, the various attorneys in the case have agreed to the concept of appointing a mediator in a last attempt to resolve the dispute prior to judgment on an injunction sought by the plaintiffs.
As a result of the new postponement, Tuesday morning's scheduled hearing on the case in Mays' court was rescheduled for May 3rd, the same date by which an appointed mediator would attempt to arrange a resolution of the case.
This is the second consecutive two-week delay Mays has mandated prior to the prospect of his issuing a ruling from the bench.
The lawyers — representing MCS, SCS, the city of Memphis, the Memphis City Council, the Shelby County Commission, and other entities — agreed to huddle Tuesday morning in the Baker, Donelson legal offices, in an effort to agree on the identity of a mediator. Mays had served notice: If they could not agree, he would appoint a mediator himself.
The core of the case is a suit by Shelby County Schools, with the state of Tennessee as an associated party, against the Memphis City Council, MCS, and the Shelby County Commission, asking for a declaratory judgment against an ongoing effort to proceed with immediate MCS-SCS consolidation.
By implication, the status of the Norris-Todd bill, passed by the legislature in January and signed into law by Governor Bill Haslam, is also at stake, as the plaintiffs' preferred method of completing the merger that was approved by Memphis voters in a March 8th referendum.
Still pending is Mays' action on a request by the primary litigants for an injunction preventing the County Commission from proceeding on its own merger plan, which involves the appointment of members to an interim all-county school board.
Mays indicated he would decide on the injunction by May 3rd if mediation has been unsuccessful.
Selection of a mediator may turn out to be the easy part. But it's hard to see where the axis of compromise lies. There had been some speculation, soon after Mays first arranged on April 4th for the parties to attempt an agreement, that a bargaining point might be the final provision of Norris-Todd.
This is the mechanism that allows, after an MCS-SCS merger, for the creation of new special school districts within Shelby County — providing an "out" for any or all of the suburbs which had been served by Shelby County Schools.
But Norris-Todd is now state law and amending it would require legislative action, which, by definition, is outside the immediate scope of a local bargaining table. Moreover, the principal author of the bill, state senator Mark Norris (R-Collierville), made it clear, when asked about the matter over the weekend, that he regarded the special-school-district provision to be the keystone of the legislation, something not to be altered.
Since Norris' clout, as both author of the bill and as state Senate majority leader, is essential to any change in the nature of Norris-Todd, that avenue seems closed. And Sidney Chism, chairman of the County Commission, evinced little interest in going in that direction, anyhow. "That's not the important part for me," he said Monday, after the conclusion of the commission's regularly biweekly session.
"What they're fixated on is still the idea of appointing a 25-person interim school board," Pickler said, adding, "That's not only contrary to state law, it defies reason on a practical basis."
Pickler, whose interest in special-school-district status for Shelby County Schools is of long standing, said the County Commission majority and its attorney Leo Bearman seemed "entrenched" in its goals. "And we are in ours. There's a wide gulf." He said if there had been any movement at all toward a common understanding, it was in a possible "coalescing" around the idea that adequate time was needed to achieve transition toward merger of the two extant school systems.
• In Nashville, meanwhile, the current week looked to be crucial in deciding the fate of several bills that hinged, directly or indirectly, on the issue of education. Collective bargaining for public-school teachers appeared to be on the endangered-species list after state House speaker Beth Harwell of Nashville said in Memphis two weeks ago, "I think you will see an end to collective bargaining as we have known it." Harwell's comment concerned the shape of a revamped Senate bill responding to a previous House version that she and Haslam had endorsed, allowing a modicum of collective bargaining to continue.
That sterner version abolishing collective bargaining altogether was on the agenda this week in two venues: the House Finance, Ways and Means Committee on Tuesday afternoon and the Senate Education Committee on Wednesday afternoon.
And House Bill 368, a highly controversial measure that opponents see as licensing the teaching of creationism in public schools and backers see as merely guaranteeing an open classroom dialogue on evolution and other matters, moves to the Senate Education Committee after its passage last week in the House.
Also advancing this week is a bill, sponsored by state senator Brian Kelsey (R-Germantown) that would provide state tuition grants for use in private schools. Kelsey's bill received an okay from the Senate Education Committee last week and now goes to the Senate Calendar Committee, which will schedule it for floor action.
Meanwhile, a House version was scheduled to be considered by the House Education Subcommittee this week.
The bill, SB485/HB388, provides for state tuition grants to low-income public-school students in districts with ADA (Average Daily Attendance) of at least 38,000 students and applies therefore only to Shelby County (Memphis), Davidson County (Nashville), Knox County (Knoxville), and Hamilton County (Chattanooga).
The tuition grants could be equal to as much as "half the amount spent on each child by the local school system," Kelsey explained in committee last week. The grants could be applied by recipient students to public schools in other districts, to public charter schools, or to participating private schools, including religious institutions.
Testifying on the bill's behalf before the committee were two parents — one with a child in a Catholic parochial school in Memphis and another who wished to be able to enroll her child in such a school — and Henry Littleton, administrator for Our Lady of Sorrows parochial school in Memphis.
Testifying against the bill was Jerry Winters, executive director of the Tennessee Education Association (TEA), who said, "We can call this all kinds of fancy names. ... This is just a very blatant voucher bill. ... This is public money going to religious schools. That is a door, if you open it here today, or whenever you might open it, you will never get it closed. ... If there's not a constitutional issue here, there's not a constitutional issue anywhere."
Further evidence of significant change on the state education front came via the signing into law last week of one key aspect of Governor Haslam's educational reform package — the provision of more stringent regulations for the granting of teacher tenure — and the okay given by the House Education Committee to a bill, backed by the governor, that would greatly widen the purview and number of charter schools.
• Much attention has been focused on what has seemed an undeclared power struggle between Haslam and Lieutenant Governor Ron Ramsey, the Senate speaker who has differed with the governor on numerous issues — including collective bargaining for teachers, with Ramsey apparently on his way to achieving his goal of outright abolition.
Ramsey, a Haslam opponent in last year's Republican gubernatorial primary, has disclaimed an interest in challenging Haslam again in 2012 — perhaps because, as Tennessee Conservative Union head Lloyd Daughterty recently opined, the position of lieutenant governor is arguably "just as powerful if not more powerful." As Daughterty argued, "Governors are going to come and go, but there's no term limits on the speaker, the lieutenant governor."
It was Haslam's view that prevailed, however, not Ramsey's, when the state Republican committee voted over the weekend not to require party registration for participation in GOP primaries. Among those resisting closed primaries was Memphian John Ryder, who said "inclusiveness" is just what has allowed the state GOP to grow.