How to say this? We want, after all, to stay well within the tradition of civility, to be open-minded about accommodating views that are not our own, to be gracious in extending the benefit of the doubt, to acknowledge our relative ignorance about certain professional conventions, and to stay safely out of the way of a contempt-of-court citation.
Having said all that, let us confess that we are perplexed about the ruling made last week by U.S. district judge Hardy Mays in response to a county commission effort to halt the forthcoming August 2nd referenda on municipal school districts in Shelby County's six suburban communities.
There were two parts to the commission's legal undertaking (a "third-party complaint," in legalese): 1) an assertion that the two pieces of legislation hurriedly enacted by the General Assembly this spring to legitimize immediate referenda were unconstitutional because they explicitly violated the state's requirements regarding local legislation; and 2) a claim that by allowing the suburbs to seal their public educational facilities off from the rest of Shelby County, the two laws (Public Chapters 905 and 970, collectively known as Norris-Todd Two) were enabling school resegregation.
Wisely, Mays sensed in the second claim a giant and unruly ram in an outsized thicket and put off immediate consideration of it, as he reflected on whether or not to issue an immediate injunction regarding the referendum process.
On the other issue, the commission's claim was straightforward: State law requires that any legislation designed for and affecting only a single county must be approved by a two-thirds vote of that county's legislative body — in this case, the commission itself. The commission was not afforded that right, although in recorded excerpts from the legislative debate played in court, the bills' sponsors had been forthright that the two measures, in their final form, affected "only Shelby County."
As Leo Bearman, attorney for the commission, said to Mays, "Everybody in this courtroom knows that, and everybody in the legislature knew it."
That did not prevent claims being made by attorneys for the suburbs and the state that, come some utterly unforeseen population explosion unimaginably far down the historical curve, other counties (Carroll and Gibson counties were mentioned) might quadruple their populations and somehow also acquire an obligatory "transition planning commission," of which one, and one only — the one in Shelby County — has ever existed. Only then might the Norris Todd Two bills apply, even theoretically.
Farris v. Blanton, a legal precedent accepted, it seemed, by every lawyer in the courtroom (including Mays), is explicit: For legislation to be accorded reach beyond a single jurisdiction, its relevance elsewhere cannot be "theoretical, illusory, or merely possible." We cannot imagine a more explicit disqualifier for the Carroll County/Gibson County hypothesis.
In Judge Mays' own language, he chose to "second-guess" the question of the referenda by letting them happen, rather than to enjoin them outright. We are ill-prepared to second-guess his expertise, and he has scheduled a full-scale trial of the issue between August 2nd and the projected school board elections in November.
But we remain perplexed and keep reflecting on that famous metaphor about putting toothpaste back in the tube.