Any day now, United States District Judge Hardy Mays will rule on municipal school districts. Well, not municipal school districts, but municipal school districts in Tennessee. Well, not municipal school districts in Tennessee, but municipal school districts in Tennessee under Public Chapter 1. Poor, poor much-maligned, much-reviled, and much-revised Public Chapter 1.
Municipal school districts are definitely legal, and definitely legal in Tennessee. The question is whether or not Tennessee Majority Leader Mark Norris, when he drafted Public Chapter 1, drafted a law that is constitutional under the Tennessee Constitution. There are states where every little township that has a stoplight has a school district. There is nothing at the federal level that requires that school districts encompass entire counties, but Tennessee has imposed its own rules. In 1982, the Tennessee legislature banned the creation of new special school districts (of which Memphis was one). In 1998, the Tennessee legislature banned the creation of new municipal school districts. The result is that in Tennessee, a state with 95 counties, most school districts were formed at the county level. Special and municipal school districts are the exception to the rule.
Here's a handy-dandy "State Education Brief" from November 2005 that recounts the history and basis of school district consolidation in Tennessee, published by the Tennessee Advisory Commission on Intergovernmental Relations.
A quirk in Tennessee's constitution requires (generally) that laws may not apply to only one city, one county, one town, one whatever without following a particular procedure. The question before Judge Mays is whether Public Chapter 1 - and now, Chapters 905 and 970, passed earlier this year to "clarify" matters - complies with the Tennessee constitution. Zack McMillin summarized the about-to-occur trial here.
The trial was difficult to watch. It was clear from observing most of the gallery that there are some fundamental misunderstandings about what the case was about. In the opening minutes, a comment from one of the County Commission's attorneys about the County Commission having been disenfranchished prompted many confused looks and frantic whispering. The looks and whispering were not sarcastic "I've got your disenfranchisement right here," but more like "wait, what? we're not disenfranching them, they're trying to disenfranchise us!" At least a couple of the mayors either had not read (or been briefed?) on what the County Commission is alleging - that the procedure to have a law apply only in one place was not followed.
This initial misunderstanding made it clear to me that not only do the parties disagree on the (any?) issue, but they actually disagree about what issue is at issue. The County Commission argues that the law was intended only to apply, and actually only does apply to Shelby County. The County Commission's attorneys at Baker Donelson start with what they believe is the better argument - that these laws (1, 905, and 970) are special, local laws. If they win that argument, then they win the case - because it is clear that no part of the process for passing special, local laws was followed - the county's legislative delegation was not consulted, and the County Commission definitely didn't vote on whether they wanted this law. That component of the process is why the County Commission is alleging that it was disenfranchised (please excuse my explanation to the court gallery).
The municipalities disagree. Their Burch Porter attorneys argue that these are not special, local laws - that instead, they are general laws. Furthermore, the municipalities argue that the court has already decided that at least Chapters 1 and 905 are general laws. As general laws, the municipalities argue, not only can these laws apply to counties other than Shelby County, but that they actually do apply to at least two other counties. Secondly, they argue that with some population growth, these laws would also apply in other counties. Chapter 970, they argue, is not restricted to any county and "simply lifts the restriction on the restrictions on the creation of the municipal school districts after the transfer of administration pursuant to Tenn. Code Ann. § 49-2-502(b)." (Dkt. No. 369 at 33). No surprise that the municipalities characterize Chapter 970 in such a bland way, given Judge Mays's previous statement that it is particularly problematic for the municipalities that the law only applies where there is a Transition Planning Commission, and there is only one Transition Planning Commission in the state.
The vast majority of the trial focused on this disagreement over whether these laws are general laws. The trial had a pretty narrow focus on one of the requirements of the statute: that in order for the laws to apply in a county, the enrollment of the county school system must increase by 100% as a result of the special school district's surrender. Baseline, the County Commission says that Shelby County is the only county where the special district (Memphis City Schools) is larger than the county school system (Shelby County Schools). The County Commission's impressive expert witness testified that natural population growth would not result in any special school district large enough to increase the corresponding county school district by 100%. The municipalities' less impressive expert disagreed, using a different predictive model. As a backup argument, the municipalities argued that instead of natural population growth, the focus should be on potential annexation areas. If, the argument goes, certain Tennessee cities annexed areas in their known annexation zones, the special school district would be larger than the county school district, achieving the necessary population benchmark to bring them under the 905/970 application umbrella - joining little old Shelby County.
A second municipality witness was billed as just a regular old witness that could testify about populations and maps. Turns out she was an expert mapmaker, and actually the Cartographer for the Tennessee legislature. A two week delay resulted over a dispute about whether to treat the cartographer as an expert or not. When the trial resumed, two weeks later, it became apparent that this issue had not been resolved among the parties. Fast forward to a forced conference among the parties, and by agreement, her testimony was not completed, but she was directed to construct particular maps that would be jointly submitted by the parties. Phew.
Not discussed at trial was the backup to the backup argument. The County Commission argues that the caption of the law does not accurately reflect the contents of the law. A fine point, yes, but a constitutional requirement, nonetheless.
Hmmm. So how will this turn out? My money is on Judge Mays finding that the legislature tried to pass a general law. The special/local law issue is too easy, and would definitely come out for the County Commission. It is clear that the legislature was trying to pass a general law because it simply did not comply with any of the special/local law requirements. So if it's a general law, is it actually a general law? Judge Mays has definitely left plenty of room to rule either way. I think he will rule that the statutes only apply to Shelby County. I think the legislative history, as summarized in a chart taking up pages 7-18 of the County Commission PreTrial Response (Dkt. No. 379), is clear that the legislators sought to limit the application of the law to Shelby County.
Here's the thing. The state legislature, and particularly Senate Majority Leader Mark Norris (R-Collierville), understood that in order to meet constitutional muster, general laws may not apply in only one locale. But they didn't want it to apply anywhere besides Shelby County. Turns out other parts of the state do not want their municipalities to willy-nilly form their own school districts. Explicit in the negotiation and discussion of these statutes was that they would not apply any place other than Shelby County. So the question is - even in the face of all of that knowledge and discussion in committee, and on the floor, and I have to assume, a number of back rooms - whether the state legislature was successful in making it appear that the statutes are not applicable only to Shelby County.
To me, it's a pretty transparent bait-and-switch. Of-course-it-won't-apply-anywhere-besides-Shelby-County-but-of-course-it-applies-other-places-besides-Shelby-County. My money is on Judge Mays finding this little group of statutes unconstitutional.
So if he finds them unconstitutional, then that's the end of the game. Well, until the appeals start. And until the legislature's next attempt to revise Public Chapter 1. But it will mean a respite from federal court activity at least at the District Court level.
But if he finds that these statutes are constitutional under the state constitution, then it just gets uglier from here. Because the next federal trial is scheduled to start in January. And that's the case on the federal constitutional claims. You know, where the County Commission alleges that allowing municipal school districts in Shelby County would have the effect of resegregating public education in Shelby County. Ugh.
But when, When, WHEN will Judge Mays rule? Since this decision could negate the need for the second trial, the sooner the better. But this is a major case, and Judge Mays has a significant caseload. I think we'll get it either right before or right after Thanksgiving. This decision is the most important federal court decision in the Western District of Tennessee (if not the state of Tennessee) since the consent order in August 2011. So it's important that it be well-written, well-reasoned, and in general, as well-done as possible. Judge Mays understands that it will need to hold up to scrutiny on appeal, and he'll be writing it with that awareness. And that just takes time. Once you get past Thanksgiving, though, you start interfering with the holidays. And if there won't be a second trial, then it seems needless to put the parties (and the court) through trial preparation.
And so, we all are waiting . . . you know, in Memphis.
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