Divided we Fail

by Sarah Garland

  The district’s lawyers asked Heyburn to dismiss the case.20 They rejected the allegations that black students were the only ones who didn’t get their choice of high school and argued that the students lacked standing to bring a case. They also noted that the requests for remedies, such as monetary damages and placement in their first-choice school, were unconstitutional. The judge refused.

  The lawyers spent the summer meeting in conferences with each other and Heyburn, and taking depositions from students and other witnesses. The civil rights leaders who had battled with Carman Weathers and his allies over integration and Afrocentric education throughout the early 1990s were not content to watch the lawsuit unfold from the sidelines. In the fall, QUEST, Georgia Powers’ group that had formed in reaction to Ingwerson’s attempts to dismantle forced busing in elementary schools, filed a petition with Judge Heyburn asking to join the lawsuit as a third party.21

  The group added its own plaintiffs into the mix of people who would be fighting over the desegregation plan in court: five students attending Central, both white and black, who wanted to see the desegregation plan continue. Steve Porter, a white, Republican East End lawyer who had grown up down the block from Judge Heyburn and who had served on the monitoring committee with Carman and Robert, was the group’s lawyer.22 Rather than end busing, QUEST argued, the school district should go further, desegregating “all schools, programs, classrooms and faculty since the vestiges of de jure segregation remain.”23 The school district didn’t want QUEST to join the legal fray, saying it would essentially be arguing the same thing as Jefferson County’s lawyers. Teddy also protested the group’s attempt to barge into his case.

  Heyburn wanted to hear as many opinions as possible, however. He allowed QUEST to enter the case as a third party, and set a hearing date for the following spring.

  Chapter 19

  In the fall of 1998, Ja’Mekia Stoner entered her senior year at Fern Creek High School. After struggling for a year at Shawnee, the high school across the street from their house in the West End, where more than half the students were poor, Ja’Mekia and her mother had decided she needed to switch. She was bored, skipping classes, and on the verge of failing. They looked for a magnet program elsewhere that would better match her experiences in the affluent East End schools she had attended in elementary and middle school.

  Ja’Mekia chose Fern Creek, a school on the outer edge of the county surrounded by white middle-class subdivisions. Parents, mainly white, had fought to protect the school from closure during the 1980s, leading the school system to close Carman Weathers’s old school, Thomas Jefferson, and several other schools instead. Fern Creek was not the best in the county—in fact, student achievement was mediocre—but several of Ja’Mekia’s cousins were students there, and they liked it.1 The summer before her sophomore year, Ja’Mekia applied to join the school’s communications magnet.

  She was accepted, and at Fern Creek, she thrived once again: She joined the debate team and made friends. She stopped skipping classes and threw herself back into her schoolwork. The difference between Shawnee and Fern Creek was stark. At Fern Creek, Ja’Mekia believed, teachers cared about education. The work was more difficult, and she rose to the challenge. At Shawnee, she had assumed the teachers didn’t care because they didn’t ask her to try hard. But the fact that Fern Creek was a better school than Shawnee irked her. She didn’t understand why she had to wake up at five in the morning to travel halfway across town to get a better education. She should have been able to travel across the street.

  Ja’Mekia remained a plaintiff in the CEASE case, but in name only. Her mother, Jacquelyn, had never shied away from telling her children about her terrible experience of being bused to Fairdale, where violence and hatred ruined her last years of high school, but she was also wary of instilling in her children the belief that race and racism could define them and limit their options in life. In the spring of 1999, she decided that her daughter should not testify during the hearings. Ja’Mekia was content at Fern Creek and no longer interested in attending Central, and Jacquelyn worried that keeping the family involved in the case would only set her daughter back by reminding her of the obstacles she faced as a black woman. After meeting with CEASE members numerous times over the course of two years, Jacquelyn was tired of listening to the back-and-forth over race, and she didn’t want her daughter to get caught up in the debate and lose her focus on school. She wanted her to move on.

  Dionne Hopson’s name also was still listed as a plaintiff. She had not been as fortunate as Ja’Mekia after her rejection from Central. A year younger than Ja’Mekia, in the 1998–99 school year, Dionne was seventeen and in her junior year at Pleasure Ridge Park in the South End. She hated it, but she had not applied elsewhere; she still had hopes of getting into Central if the lawsuit went well. In the fall, Gwen Hopson told the press that the family planned to stick with Teddy “to the end.” Dionne had been “turned away because she was black . . . because no other whites wanted to come to the West End and go to Central High School, she could not go,” Gwen said.2 She and Dionne wanted justice. That spring, Dionne was assigned to be the first witness to take the stand.

  On April 13, 1999, the lawyers filed into the courtroom.3 Teddy took his place at a table on the far left, where he sat alone. On the other side of the aisle, half a dozen lawyers for the school board and the interveners rustled papers at their tables. The audience was filled with parents and members of CEASE. Some looked in dismay at their representative in the court. Compared to the debonair coterie of lawyers on the far right of the room, Riccardo X thought Teddy resembled the disheveled television detective Columbo.

  Heyburn was a tall man, with a receding gray hairline and shrewd but friendly blue eyes behind large glasses. His courtroom was a relatively easygoing place, but the case before him that day was a complicated one. To win, the Central parents would have to prove that their rights to equal protection under the Fourteenth Amendment had been violated, that they were being denied something—an education at Central—that was unique and unavailable elsewhere in the system.

  The school board’s path to a win meant successfully arguing that its desegregation system did not deserve the “strict scrutiny” of the court, a legal concept requiring judges to take a close look at any scenario that infringed on constitutional rights. If that argument failed and the judge decided to move forward, in order to win, the school board’s lawyers would have to prove that the district had a “compelling interest” in using race for student assignment, a concept that had been laid out in detail in a 1978 Supreme Court case, University of California v. Bakke.4

  Allan Bakke, a white man, had been denied admission to the University of California-Davis’s medical school because of racial quotas that reserved a certain number of seats for minority applicants. The court ruled that Bakke’s constitutional rights had indeed been violated and that the Constitution prohibited the use of rigid racial quotas. But the justices didn’t go so far as to ban the use of race in admissions. Instead, they said government institutions—including public universities—might have a “compelling interest” to ensure racial diversity, and that in those cases, as long as rigid quotas weren’t used, they could consider race for such things as college applications and student assignments.

  Teddy opened the hearing. “Our purpose today is to allow more African American students in Central, regardless of any type of quota system,” he began. He talked about the numbers who had been turned away from Central and refused their first choice. He mentioned dropout rates, suspensions, and self-esteem. But he did not mention the Fourteenth Amendment or equal protection. “The testimony we hope to show is that although there is diversity to some extent and the desegregation efforts by the school board have been a good attempt, what happened is that African-American students are no better off, in fact they’re worse off, than they were 25 years ago. Test scores between the two races are still widely apart.”

  As Teddy wrapped up, Heyburn looked
down at him: “Your central point, is it not, is that to the extent the pupil assignment plan denies black students admission to Central High School solely on the basis of race, that that is a denial of those students’ equal protection under the 14th amendment?”

  “That is correct,” Teddy replied. “Constitutionally impermissible.”

  The judge went on to press Teddy on whether he understood that he couldn’t make a legal case based on whether or not busing was bad for black children. His job was to argue that the system, regardless of whether it worked or not, denied their rights.

  “That’s correct,” said Teddy, “although we believe that the student assignment plan as it exists should be thrown out as constitutionally impermissive.”

  Next up was Frank Mellen, the scholarly Harvard Law graduate who represented the school district. He began by warning the court that this case would likely reach far beyond Central if allowed to continue. “We think this case raises an issue that affects or impacts the entire plan.” The school district had a compelling interest in using race to assign students to school because minority students benefited both academically and in more intangible ways from desegregation, he went on. They were more likely to live in interracial neighborhoods later on and “navigate in a diverse interracial society.”

  The lawyers sat down, and Dionne Hopson, the first witness, stood up. She had dreamed of being a lawyer since middle school five years earlier. But this was not how she had imagined she would first enter a courtroom. This was not a field trip with her fellow Central classmates. She was not an intern in an attorney’s office. Instead, she sat down in the witness chair.

  Teddy asked her to spell her name.

  “Dionne,” he said. “Did I pronounce your name right?”

  She corrected him: “Dee-on.”

  He asked about her school background, and she told the story of being denied at Central.

  “How have you done at Pleasure Ridge?” he asked.

  “I slipped totally,” Dionne said. “I mean, in the last two years, I just—I lost my father, and it’s like ever since I have been at Pleasure Ridge, my grades have slipped drastically. It’s like I went from an Honors student to like C minuses and D’s and U’s, to barely passing, to barely making it.”

  “Why did you want to go to Central?” Teddy asked.

  “Because it had the curriculum that I wanted,” she replied.

  “Are you offered the same curriculum at Pleasure Ridge?”

  “No, I’m not.”

  “Obviously there’s no way of telling, but if you had gotten the curriculum you wanted in the school you wanted, do you think you would be a better student today?”

  “Yes I do.”

  The school district lawyers objected, but the judge let it go. “It’s not really legally significant, is it, how a particular student does, better or worse,” Heyburn said. “But I’m going to let the testimony come in.”

  When the school system’s attorneys cross-examined Dionne, they asked her if, after being rejected at Central, she had applied to any other magnets.

  “No, I didn’t,” Dionne said.

  Then the judge turned to her. He asked gently where her parents went to school, and when they had graduated. “Sixty-nine,” Gwen yelled from her seat. At that, Dionne was sent to join her.

  Another student, Terrell Shields, who had already graduated from Fern Creek, followed Hopson. Then Teddy called his third and final witness, Joseph McMillan, who had formed the anti-busing group SAVE with Carman Weathers and Robert Douglas. McMillan, who often wore a round African kufi cap over his close-cropped gray hair, walked up to the stand. Teddy prompted him to talk about the alternative schools where the majority of students were black, Liberty and Buechel, where Carman taught. He then asked about the rate of suspensions for black students. McMillan’s answer, that 41 percent of black students would be suspended at some point in high school, caused gasps and shouts in the audience. After the judge had quieted everyone down, Teddy finished his examination by asking if desegregation had hurt the self-esteem of blacks.

  It had, McMillan said: “The Supreme Court decision of Brown v. Board of Education was based on an erroneous assumption in my mind.” That is, he believed that Brown had gone wrong by focusing on integrating black students with whites, instead of trying to enforce equal outcomes for both groups. Bringing the groups together physically mattered much less to him that bringing them together academically.

  Satisfied, Teddy sat down.

  The judge turned to the witness with a more esoteric line of questioning. “Blacks and whites have been arguing and discussing about this question of self-esteem for a hundred years at least?”

  “Yes, sir,” McMillan replied.

  “Have you ever heard the term ‘twoness’?” the judge asked.

  McMillan nodded.

  “And what do you think W. E. B. Du Bois meant when he used that term, ‘twoness’?”

  “I know what he meant. He meant that a black person has to have two sides. He’s got to be in one instance black and in one instance white. That dual consciousness that Du Bois talked about still exists, that we have to be both/and instead of either/or,” McMillan said.

  “It’s not just a fact that those two things exist; it’s that there’s constant tension between those two things?”

  “Almost always constant tension between those two,” McMillan replied. “It was in 1903 when he wrote that book, Souls of Black Folk, and it still exists today.”

  “So you would agree with his fundamental concept of this intellectual struggle, I guess, is an important thing that every African-American has to deal with?” Heyburn asked.

  “Every African-American and every white American has to contend with that. We move toward the millennium, I hope that we will solve that, Judge.”

  The judge was quiet. It was clear that he had been reading before the hearing, and not just case law. In fact, he had read all of Taylor Branch’s voluminous books on the civil rights movement, Richard Kluger’s history of the Brown cases, Simple Justice, and the works of other sociologists and historians of black culture, including W. E. B. Du Bois, who had argued that the “history of the American Negro is the history of this strife, —this longing to attain self-conscious manhood, to merge his double self into a better and truer self” without losing either his black identity or his American one.5

  Heyburn applied Du Bois’s ideas to his very specific purpose. For the judge, the issue of self-esteem was important, but not because it might affect student achievement. He was trying to understand whether black students, after twenty years of proactive school desegregation, still felt the same sense of intimidation that had prevented freedom of choice plans from working. Was racial discrimination still pervasive enough and still felt so deeply in the black community that aggressive desegregation policies were necessary? Did black people still perceive themselves as separate, or did they perceive themselves as part of the whole? Had school desegregation done its job, or was there more work to be done?

  Teddy stood up again to ask a few more questions, including “a real stupid” one: “We are a unified school system, right?”

  “Yes, as of 1978,” McMillan replied. “Unitary, they call it.”

  The lawyers in the room assumed that the question in the case was not whether Louisville was still under a court decree to desegregate its schools. No one realized that the judge was not so sure.

  With that, before the lunch recess on the first day of the hearing, Teddy rested his case.

  The school district lawyers set up easels with maps and charts. Their witnesses included Stephen Daeschner, the superintendent who had replaced Ingwerson in 1993, district administrators, the retired CEO of a Louisville bank, and a professor from Harvard, Gary Orfield. They moved through their questioning efficiently as they tried to establish that assigning students by race was beneficial both to the students and to the city as a whole. The school administrators explained the intricacies of the desegregation pl
an for the judge; the bank director said the diverse schools produced good employees and drew people to the city; the Harvard professor testified that studies showed minorities who attended integrated schools achieved better test scores and higher-paying jobs.

  The superintendent, a Kansan, who, like Ingwerson, had been born in a small prairie town, talked about diversity.6 He had worked in Alaska and also St. Louis, where desegregation had also been highly contentious and the fight over it ongoing. Daeschner had less swagger than his predecessor, perhaps having learned from Ingwerson’s struggles and from his own dabbling with the Project Renaissance plan in 1996, that messing with desegregation meant risking his job. In his testimony he warned that changing just one element of the plan, including the fifteen to fifty ratio of blacks allowed at each school, could disrupt and perhaps overturn the whole system.

  During his cross-examinations, Gordon’s folksy, aw-shucks style was often barbed with sarcasm. In his first question to Gary Orfield, for example, a soft-spoken professor born in Minnesota, he pointed out that Harvard was spelled wrong on his résumé.

  The sarcasm didn’t always work. In his cross-examination of the superintendent, Gordon tried to establish that test scores had been falling for African Americans. “In fact, aren’t the KERA results showing a five percentage point difference even in elementary schools over the last two years?” Gordon asked Daeschner.