Therecently released audit of Memphis-Shelby County Schools has understandably generated public concern and renewed debate about the governance of public education in Memphis. Public institutions entrusted with taxpayer dollars should always be accountable, and any financial or administrative deficiencies that are ultimately established should be corrected. Accountability, however, requires not only careful examination of governmental operations but also fairness in the process by which conclusions are reached.
The Memphis-Shelby County Board of Education has disputed significant aspects of the audit and has maintained that it was not afforded a meaningful opportunity to review and respond to many of the findings before the report was publicly
released. Whether those concerns ultimately prove justified, they deserve thoughtful consideration before the audit is accepted as the definitive account of the district’s performance. Public confidence is best served when governmental audits are not only thorough but are also conducted in a manner that affords those being audited a fair opportunity to be heard.
But accountability is not synonymous with state control.
The question before Tennessee is, therefore, not whether every statement contained in the audit should be accepted as fact, nor whether Memphis-Shelby County Schools should continue striving to improve. It should. The more fundamental question is whether disputed audit findings should become the basis for diminishing the authority of the elected Memphis-Shelby County Board of Education and transferring local decision-making to state-appointed officials. That is not merely a policy debate. It is a constitutional question.
History rarely repeats itself
Having practiced law in Memphis for more than five decades, including participation in landmark civil rights and school desegregation litigation, I have learned that history rarely repeats itself in precisely the same form. Instead, it reappears through new laws, new governmental structures, and new reallocations of political power.
That is why three recent developments should not be viewed in isolation: the Tennessee Accountability Act, congressional redistricting that divided Memphis among three congressional districts, and now the audit of Memphis-Shelby County Schools. Standing alone, each may be defended on their own terms. Taken together, however, they reveal a continuing shift of governmental authority away from officials elected by the citizens of Memphis.
History teaches us to pay close attention whenever that occurs.
Accountability and fair process?
That is especially true where governmental action affecting local self-government is preceded by an official report whose principal findings remain contested by the very public body whose authority may be diminished. Constitutional government requires more than accountability; it requires fair process. Before an audit becomes the foundation for restructuring democratic governance, those charged with governing should be afforded a meaningful opportunity to respond and have their responses fairly considered.
I witnessed firsthand one of the defining episodes in Shelby County's educational history.
When Memphis City Schools surrendered its charter and merged into the Shelby County School System in 2014, six suburban municipalities refused to remain within the unified district. They sought relief in federal court. During that litigation, the Shelby County Commission entrusted me to present and express the Commission's opposition to any settlement or court order that would dismantle the unified school district.
When the federal litigation did not produce the result the municipalities sought, they turned to the Tennessee General Assembly. The Legislature enacted special legislation authorizing Arlington, Bartlett, Collierville, Germantown, Lakeland, and Millington to establish independent municipal school districts.
I watched the State defend the principle of local self-government when there were six suburban municipalities. Today, I watched the State question that same principle when the community seeking its protection is Memphis.
The principle embraced by the State then was unmistakable: local communities should govern their own public schools through locally elected representatives. Lakeland, with only two schools was nevertheless entrusted with operating its own municipal school district. Tennessee concluded that even a comparatively small community possessed a legitimate interest in directing its own educational future.
Today, Memphis asks for nothing more than equal application of that same principle.
That history presents a constitutional question Tennessee has yet to answer. If local self-government justified creating separate municipal school districts for small suburban communities, by what constitutional principle may the State now diminish the authority of the elected board governing Tennessee's largest public school district?
The purpose of this discussion is not to dismiss the audit or to suggest that Memphis-Shelby County Schools should be insulated from public accountability. On the contrary, every public school system should welcome fair and objective review. But accountability requires confidence not only in the conclusions reached, but also in the fairness of the process with which those conclusions are reached. Where the governing Board disputes significant findings and contends that it was not afforded a meaningful opportunity to review and respond before the report's public release, the audit should not be regarded as the final or unquestioned account of the district’s operations.
Any deficiencies ultimately demonstrated should be corrected promptly and transparently. But disputed audit findings should not become the predicate for diminishing the authority of locally elected officials or transferring governance to the State before those findings have been fully examined and fairly tested. Throughout our constitutional tradition, reform has meant strengthening democratic institutions and improving their performance—not replacing them.
Our Constitution promises equal protection of the laws. It also reflects a deep and enduring commitment to representative government and local self-government. Those principles cannot depend upon whether a community is suburban or urban, politically influential or politically inconvenient. If local control is a principle worthy of protection in Lakeland, it is a principle worthy of protection in Memphis.
This debate is therefore about far more than an audit.
It is about whether Tennessee will apply its constitutional principles consistently to every community it governs. Equal protection cannot mean one principle for suburban Tennessee and another for Memphis.
If constitutional principles are to remain worthy of public confidence, they must be applied consistently, regardless of geography, politics, or race.
Walter L. Bailey Jr. is a Memphis attorney whose legal career has included significant civil rights and school desegregation litigation.
This article originally appeared on Memphis Commercial Appeal: Should treatment of MSCS mirror how Lakeland was treated in 2014? | Opinion
