Waiting for the Word 

Scrutinizing the deseg plan

Scrutinizing the deseg plan

Metro legal director Jim Murphy may have the toughest job in the city right now.

He’s the one responsible for drafting a much-anticipated independent legal opinion on the constitutionality of the controversial desegregation plan currently proposed for Metro schools.

If approved by the Metro Council, the plan would bring an end to a federal lawsuit that has held Nashville’s public schools under court supervision for more than 40 years. It also has a price tag of $206 million, which Mayor Phil Bredesen hopes to fund with a proposed 12-cent property tax increase.

The plan—for which Council will consider funding this summer—has led to a rare period of good will between members of the Metro school board and the plaintiffs in the desegregation case. But it has at least one potentially serious hitch. To achieve racial diversity, the plan calls for new school zones, to be determined, in large part, by race. That sort of zoning may be unconstitutional, and Murphy may wind up being the one to bring the bad news.

Even the school board’s attorney, Marian Harrison, has been guarded in her defense of the plan’s legality. “I believe it is very likely to be found, if it is ever challenged, to pass constitutional muster,” she said at a school board meeting last week. But at the same meeting Harrison also suggested that there is some chance Metro would be vulnerable to further litigation if it funds and implements a plan that uses race to determine which schools students attend.

“You’ve got to pick your risks,” Harrison told a hostile Murray Philip, the school board member who is perhaps the city’s most vocal critic of the plan.

Bredesen, who has asked for Murphy’s opinion on the plan, says there is no “ironclad legal opinion” to say whether a city can use race as a factor when assigning students to schools. “There’s no case law out there on the subject,” Bredesen says, and that situation makes Murphy’s job all the more difficult.

Recent case law does suggest that federal courts are increasingly reluctant to permit public agencies to use race as a determining factor for much of anything. Still, no specific precedent says whether it is legal or illegal for a school system, once it has been released from court-ordered busing, to use race as a factor in making school assignments.

“I think [Murphy] sees this as one of the more important opinions he will write as a legal director,” the mayor says. “It certainly is one that, if there are lawsuits, will be picked apart and discussed at length.” Bredesen says Murphy’s situation is not unlike that of Susan Webber Wright, who recently handed down a much-publicized ruling in Paula Jones’ harassment case against Bill Clinton. “When [Murphy] writes this one, it’s going to be out there and it’s going to get a lot of discussion,” Bredesen says. “He wants to be right.”

Murphy has been slow to give a thumbs-up to the plan, leading to some tension between Metro and Richard Dinkins, the plaintiffs’ attorney in the desegregation case. Asked about the legality of the plan at last week’s school board meeting, Dinkins offered an emotional response. In his “humble opinion,” Dinkins said, the plan is constitutional. He also criticized the Metro Legal Department as being “concerned only about the rights of white children.” That, he told the school board, is “why we’re in a lawsuit now.”

Metro’s proposed desegregation plan could indeed inspire more litigation, and it could come from school board member Philip, who’s livid that race might be used to determine which schools students attend. Philip and other critics of the plan say the new zones would not actually result in the “neighborhood schools” promised by the plan’s proponents. Although the plan would allow more children to attend schools that are closer to home, opponents say, others would still be bused away from their neighborhoods to achieve racial diversity.

Bredesen says he and Philip have agreed to disagree on the desegregation plan. “I think [Philip] sees the world in ideal terms,” Bredesen says. “And I agree with him that an ideal world would be completely colorblind.”

As a point of comparison, the mayor notes that Metro has made an extraordinary effort to involve minority contractors in constructing the Tennessee Oilers’ stadium. Such efforts, Bredesen says, are on “the hairy edge,” when it comes to giving preferential treatment to minorities. But in the case of the stadium, and with the school desegregation plan, he says, “I think it’s OK to try to push the envelope a little bit.”

Bredesen says he is willing to face the criticism he may receive for such decisions, because “if you’re going to get slapped down for something, trying to bring a minority contractor in is a better thing to get slapped down for than what politicians are normally slapped down for.”

What’s more, the mayor remains confident that, if the desegregation plan were to be challenged and found unconstitutional, it would require only minor adjustments. “You might have to tune it up here or tune it up there,” he says. “Murphy did tell us that, even if it’s clear from the record that the decision-making was made on race, if [the decisions are] justifiable on other grounds, that’s OK.”

For example, Bredesen points out that it is legal to send certain students to certain schools to achieve economic integration. There would be significant overlap between a classification on the basis of economics and a classification on the basis of race, the mayor says.

For the moment, while Murphy drafts his opinion, the mayor seems to have few doubts about the viability of the plan. “Look, the plan may not be challenged,” he says, “and if it is, I’m convinced the zoning is either OK or easily tuned up.”

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