With a mediation deadline of Nov. 27 looming and U.S. Dist. Judge Samuel "Hardy" Mays expected to issue a ruling any day on state constitutional challenges to laws allowing new municipal school districts, attorneys have recently been discussing whether "there would be any meaningful lines of reasoning to resolve issues in mediation," said Memphis City Council attorney Allan Wade.
"Or if it would be fruitless, we needed to tell the judge it would be fruitless."
Mays asked attorneys to correspond with their clients and convene for a conference call on Thursday morning.
Tom Cates, attorney for the suburban governments, said the sides are trying to agree on scheduling, including when the suburban mayors are available. He said the suburbs would enter into the discussion "in good faith."
"Right now we are just talking about the logistics of mediation," said Lori Patterson, one of the Baker Donelson attorneys representing the Shelby County Commission. "We didn't do any actual mediating."
Bartlett Mayor Keith McDonald said he was limited in what comments he could make about the matter. He also invoked the term "good faith," adding: "Our counsel has advised us not to comment while the mediation is in process."
He acknowledged that the prospect for mediation was "out there, and this came up quickly."
A trial in September concerned whether the laws allowing the statewide ban to be lifted on new municipal school districts can be applied solely in Shelby County and are thus unconstitutional. A ruling has been expected any day by Mays, with the City Council, County Commission and City of Memphis aligned as plaintiffs against the state and the suburban municipalities.
Another trial is scheduled for Jan. 3 over what Mays calls the "1983 claims," shorthand for section 1983 of the Civil Rights Act of 1871.
That provision allows for federal challenges to constitutional violations by state lawmakers or officials, and the commission, council and City of Memphis claim that allowing MSDs to form in the suburbs will violate civil-rights education laws because it will make schools in the county more segregated.
A new filing in the case on Thursday, by Memphian Eddie Jones, claims that his daughter's right to attend a desegregated school in a desegregated school system will be violated if Shelby County's suburban municipalities are allowed to opt out of the unified countywide district by forming systems of their own.
Jones, also represented by Wade, has asked Mays to allow him to join the commission, the city and Memphis City Council as a plaintiff asserting civil rights-related challenges to the 2011 and 2012 state laws that would lift the statewide ban on new MSDs in Shelby County only.
His proposed complaint says that "the effect of each, or all, of these Municipalities creating their own school districts ... would be to create predominately Caucasian schools in those Municipalities while leaving the Unified Shelby County school district predominately African-American."
The state of Tennessee and six suburban municipalities, aligned as defendants in trials challenging laws that would lift the statewide ban on new municipal school districts, have filed various briefs defending the laws against the equal protection claims. The state and the suburbs maintain that the new MSDs would be desegregated and that residential patterns in the county, and not intentional discrimination, explain why many schools in the city are now and will likely in the future be comprised almost entirely of nonwhite students.
The state and suburbs have filed motions with Mays to dismiss the civil-rights claims altogether, claiming the plaintiffs have failed to prove disparate discriminatory impact and that, even if they could, that they are unable to prove any discriminatory intent on the part of state officials.
Mays originally began presiding over the litigation in February of 2011, when suburban interests filed a federal lawsuit seeking to block the forced consolidation of the county's schools. Mays ruled in August of 2011 that the city had legally forced consolidation by surrendering the charter of Memphis City Schools, but upheld key provisions of a 2011 state law aimed at guiding merger of MCS into suburban Shelby County Schools, to be completed by July 1, 2013.
When lawyers met in July to lay out schedules for the two trials, it was Mays who insisted on including a deadline for mediations. Last year, Mays pushed hard for a negotiated settlement to the initial legal wrangling over schools merger issues, eventually succeeding with a consent agreement that followed his ruling in August 2011.
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