Once again ignoring its own legal counsel, and seemingly defying a state order, the Metro school board Tuesday rejected the controversial charter school application of Great Hearts Academies.
This time, the decision came down to a 5-4 vote. And after denying the Phoenix-based charter group for the fourth time in three-plus months Tuesday, Metro’s continued resistance might have forced a new reality: It appears Great Hearts’ entry to Nashville could require a lawsuit from the charter group or further pressure from the Tennessee Department of Education.
Following a summer of balking at the charter group’s plans for a West Nashville school over concerns of diversity, Metro made its position even clearer Tuesday: If Great Hearts doesn’t dramatically alter its diversity plan, it won’t receive the Metro board’s blessing.
Following Tuesday’s latest rejection, Great Hearts’ attorney Ross Booher said he would have to speak to his client when asked whether he would pursue litigation.
“Great Hearts is obviously disappointed that the school board chose to again break state law but remains hopeful for the future,” he said.
State Education Commissioner Kevin Huffman did not immediately return a phone message.
Cheryl Mayes, newly minted as the board’s chair prior to the vote, broke a 4-4 tie to reject Great Hearts. The meeting marked the first for four new board members, and District 9’s Amy Frogge was the only of the new crop to vote to deny.
Frogge, who defeated a well-financed, pro-charter candidate in August’s election, said the new board “inherited this problem,” adding that there’s been talk about the board being sued “collectively and possibly individually” over the Great Hearts matter.
“I don’t want all of this talk over litigation and potential personal liability to cloud our collective decision–making,” Frogge said before outlining her case.
The state board of education, on appeal from Great Hearts, in July remanded Great Hearts’ proposal back to Metro  for approval contingent on meeting three requirements, she pointed out. The local board last month deferred the matter to Tuesday instead.
Board members have expressed satisfaction with Great Hearts’ ability to meet two of the conditions — that it hire licensed teachers and open just one school as opposed to five schools — but they still hold lingering questions about its willingness to adopt a diversity plan that “mirrors” Metro’s plan for choice schools.
Metro Department of Law Director Saul Solomon told the school board that the clarity of state statute is a “9 or a 10” on a 1-through-10 scale on whether the state board can remand a charter’s approval back to a local board.
“It is very clear that the state board of education has the ultimate say on appeal and, from that decision, there is no right to appeal,” Solomon said.
But Frogge disagreed with that analysis when taking into account the state-mandated contingencies.
“With all due respect to Mr. Solomon, the state law is unclear as regard to the facts of this case,” Frogge said, referring to the diversity issue, which she called a “key part” of MNPS’ vision.
“Make no mistake: We are setting a precedent here tonight about what we will expect in our system and what we expect from our schools that will be far-reaching and that will affect many children, including my own,” Frogge said.
Calling the Great Hearts matter “not only a legal issue but also a moral issue,” Frogge said Great Hearts doesn’t have a track record of diversity at its existing schools in Arizona and also questioned its transportation plan for Nashville.
Other board members who voted to deny Great Hearts in addition to Mayes and Frogge were Anna Shepherd, JoAnn Brannon and Sharon Gentry.
Voting to authorize Great Hearts were Will Pinkston, Elissa Kim, Jill Speering and Michael Hayes.
Shepherd, who also voted last month to reject Great Hearts’ proposal, alluded to emails from the education department’s Huffman  that revealed his department had for months actively assisted Great Hearts in working around Metro.
“As a school district, we go through great lengths to discourage bullying in our schools, and apparently bullying is condoned at the state level,” Shepherd said. “Over the weekend, we discovered that not only was the state board of education encouraging Great Hearts to appeal, they were driving the bus.”
Great Hearts would be the first publicly financed, privately led charter in Nashville to explicitly take advantage of the state’s new open enrollment law. Previously, charters were reserved for low-income students. No longer beholden to the old guideless, Great Hearts has attracted parents from affluent parts of West Nashville.
Prior to the final vote, new board member Pinkston — who advised a “change in tone and tenor” from Great Hearts officials — announced he would be “reluctantly” voting yes for Great Hearts, arguing that Metro had “left itself exposed” in regards to the Great Hearts issue.
“To use a football analogy, we have left our blindside open and the blindside in this case is our lack of an ability to succinctly articulate diversity guidelines for charter schools,” Pinkston said. “As it turns out, our policies for promoting diversity in schools of choice do not exist in a single memo or filing cabinet somewhere. But rather, they live across a range of procedures, zone plans and other documents.”
Great Hearts backers have argued a similar case –– that is, Metro doesn’t have a clearly defined diversity plan for choice schools, but rather relies on an assortment of policies. They’ve pointed out one choice Metro school, Glendale Spanish Immersion School , has a white population that exceeds 80 percent and a black population that is under 10 percent.
Pinkston’s remarks seemed to give the board a way to vocally denounce Great Hearts but still succumb to the state order.
But when Mayes tallied the votes a split board emerged. She then revealed here position, and swayed the final vote. “My hand is up as opposed.”