Divided we Fail

by Sarah Garland

  “I don’t understand,” the superintendent replied.

  “Lower for African Americans?”

  “Difference in what? Please explain yourself.”

  “Once again, I apologize because I’m not familiar with the terminology, and obviously educators always have a brilliant way of stating things,” Gordon replied.

  Later, one of the school officials testified that test scores were actually up.

  The judge frequently intervened to steer Gordon’s questions toward the relevant legal issues. On more than one occasion, Gordon seemed to bolster the school board’s cause. In one exchange, as he tried to establish that students barred from Central were denied a head start in a business or legal career, he led Orfield into a monologue about how magnets, though important draws in a desegregation scheme, didn’t actually make a big difference in determining a student’s career: “It is really silly to think that students know what they’re going into in 8th grade,” Orfield said. “I was going to be a dentist.”

  The school board finished its case on the second day, and closing arguments were scheduled for the following week. On Friday, the judge sent a message to the lawyers.7 Based on what he had heard from Gordon and his witnesses, he was not convinced the plaintiffs had standing to bring a lawsuit. Most of the students had ended up at other schools or graduated, and none had ever reapplied to Central. Even if Gordon won the case, it would be both unconstitutional and logistically impossible for the judge to ensure that any of them got to attend Central. In addition, Gordon’s complaint, written the previous spring, had ignored key issues. He had not asked for relief under the Fourteenth Amendment, the linchpin of his case. If it were appealed, it was almost certain that higher courts would throw it out. To move forward, Gordon would have to rewrite his complaint after the hearings ended if he wanted his case to be taken seriously.

  The following Tuesday, April 20, 1999, two students walked into Columbine High School in Littleton, Colorado, and gunned down more than two dozen students and teachers. The next day, Gordon incorporated the shootings into his closing statement: “For the tragedy that happened yesterday, what must happen today is a school system of inclusion, not exclusion. We want the least possible number of estranged students possible. We want them near where they live. We want more parental involvement, and we want the $25 million that they bus our kids around from morning to night used for better school security. The end of racial guidelines occurs now. Thank you very much,” Gordon said.

  He turned to sit down, but the judge stopped him. He still had a few questions for Gordon, and his patience appeared to be cracking. They spent the next half hour going back and forth between Gordon’s demands that Dionne—who, unlike the other students, still wanted to attend Central—be paid damages and allowed to go to Central the following fall, and Heyburn’s insistence that neither of these requests were constitutional. Finally, Heyburn sent Gordon to his seat.

  Heyburn wasn’t gentle with the school board lawyers, either. As Leet began listing a series of court cases that were analogous to the Louisville scenario, the judge interrupted to grill him on more abstract points of the law. The school district was essentially arguing that “if the discrimination is benign, if it’s for a good purpose, then it’s okay, and if it’s for a bad purpose, it’s not okay, which is facially a very appealing argument,” Heyburn said. “It’s just that how do you as a constitutional doctrine go about determining when something is benign and when something is bad?” Where do you draw a line? he wanted to know. Were color-conscious policies necessary to identify and uproot racial discrimination, or did they perpetuate the old system of racial segregation and inequality?

  The lawyers struggled to respond. There was no pat answer; historians, legal scholars, and sociologists had been grappling with those same questions for a century. The judge interrupted again to wonder about the odd situation in which the district found itself: “At some magic moment, when the school system becomes unitary, not only are they not ordered to [assign students by race], but in fact, what they had been ordered a moment ago to do is now impermissible? Is that possible?”

  Leet said no; Gordon said absolutely.

  Steve Porter, the lawyer for the third party in the case, stood up last to make his own plaintiffs’ case. He argued that Central probably owed most of its success to the very student assignment plan the plaintiffs were trying to dismantle, and closed by invoking Lyman Johnson. “Lyman could tell us what unequal treatment is. He knew it,” Porter said. “Then he spent the last 10 years or so of his life imploring us in that famous phrase, which you might have heard, not to let the wagon roll back down the hill. . . . That wagon could roll back down the hill if the plaintiffs are allowed their remedies.”

  The hearing ended, leaving some CEASE members feeling confident. Others were uneasy. As Teddy gathered his things, Riccardo X exchanged looks with the others. “Shit, we lost this,” he thought. “He doesn’t really know what he’s doing.”

  CEASE’s coordinator Deborah Stallworth, the nurse with the seven-year-old son, was also disheartened. Watching the white lawyers, the white school officials, the white experts, and a white judge decide the fate of her child and other black children had been draining. “There’s nobody up there representing me for real,” she told a newspaper reporter. “They have made this system so complex, so ridiculously hard to navigate that you don’t know whether you’re getting screwed or not.”8

  Chapter 20

  Teddy spent the afternoon after the hearing rewriting his complaint to focus on Dionne Hopson and her bad experience at Pleasure Ridge Park.1 He finished in a few hours, although the judge had given him five days to work on it. Over the next two weeks, CEASE members tracked down four ninth graders who had been denied entrance into Central the previous fall, and Teddy added their names to the list of plaintiffs.2

  In June, the judge handed down what he admitted was a “surprising” ruling.3 To the lawyers, activists, experts, and the reporters following the case, this was an understatement. In his opinion, Heyburn declared that in fact, after a careful review of the long history of Louisville’s desegregation plan, the city had never actually been officially declared unitary. It was, as far as Heyburn was concerned, still under the 1975 court order to desegregate, so its student assignment plan could stay intact. Gordon and his clients would have to prove that the vestiges of segregation were erased from the school system if they wanted to go forward with their case. Only afterward could they turn to the matter of whether racial limits should be applied to Central or not.

  The decision, nearly thirty pages long, methodically detailed the twists and turns in Louisville’s desegregation story from 1954 on. It also addressed the deeper, underlying American dilemma the arguments in the case raised: the responsibility of the Constitution to be both color-conscious and color-blind at the same time. “While this case illustrates the tension between these two seemingly parallel sides of the same right, it will not decide which is more essential. Each is fundamental,” Heyburn said. “Understanding and reconciling the two parallel, but sometimes contradictory, elements of equal protection may be the Court’s ultimate challenge.”

  The long memorandum was evidence of Heyburn’s investment in the case. It was eloquent and detailed and had gone through many drafts. If the plaintiffs pressed on, the case would likely be the biggest of Heyburn’s career as a federal district court judge. And yet the ruling was also an obstacle thrown in the path of Teddy and the members of CEASE. In his decision, the judge was clear that the Central case could potentially open the door to dismantling the entire Louisville student assignment plan. If the plaintiffs appealed, they might set a national precedent that could upend desegregation programs in other cities, too. He wanted to make sure they understood the potential consequences of their lawsuit, and, if an end to desegregation made them uncomfortable, to perhaps reconsider.

  Going forward would also force Teddy into odd contortions as he attempted to make his case. If the school
system were declared unitary, then Gordon would be on much firmer ground in arguing that the racial limits on the schools should be lifted. Yet to get there, Gordon, who had spent much of the spring hearings describing the ways in which the school system was “arbitrary, capricious and discriminatory” and arguing that black students were purposefully sent to the worst schools in the system, would have to argue that racial discrimination in the schools was a problem of the past.

  His clients, of course, were convinced of the opposite. They wanted to end busing, but that didn’t mean they believed the vestiges of segregation were gone. In their eyes, things had only gotten worse: Blacks were still as powerless over their schools and their children’s education as they had ever been under segregation. White people still ran the show. “I would like for someone, anyone to prove that 22 years of busing have relieved racial tension in this community,” Carman Weathers had written in his most recent Courier-Journal op-ed.4 His friend Robert Douglas put it more bluntly: The way desegregation had been carried out—with the closure of black schools, the firing of black teachers, and the one-way system of busing black children—was nothing more than a “neo-slavery method of dealing with black people.”5

  The new turn in the case wasn’t any more comfortable for the school board’s lawyers. If the judge found vestiges of desegregation in the school system, then the school board’s case to keep the student assignment plan intact was easily justified. Yet it would be impossible for Mellen and Leet to stand up and argue that their clients still practiced racial segregation in their schools. Fortunately for them, QUEST was a part of the case. The school lawyers had protested the interference of the group as the second set of plaintiffs. But now, this third party could be helpful. QUEST disagreed fundamentally with Gordon and his clients, believing that desegregation had not gone far enough, and they were happy to make the argument the school board couldn’t: racial discrimination was still alive and thriving in the Jefferson County Public Schools. Like the school district, the QUEST members wanted to save desegregation, but they wanted the student assignment plan to become more expansive, so that it addressed the racial disparities inside schools, not just between them.

  Teddy and CEASE eagerly embraced Judge Heyburn’s challenge. In fact, Teddy saw the ruling as an invitation for him to move forward. He also embraced the irony of the case, joking that he was now standing in the shoes of the Topeka Board of Education in the 1950s, fighting against desegregation; the Louisville schools were like Linda Brown and the NAACP, fighting for it. His clients were a little more circumspect. They had never actually argued for the desegregation plan to end, they just wanted the racial limits expanded so that Central might have more black students. If the school board agreed to lift the limit to 85 percent, they would walk away. As Deborah Stallworth put it, “We keep trying to tell people we don’t want segregation. We just feel like it can be defined in a different direction.”6

  Teddy filed a new complaint, arguing that the school system should be declared unitary and racial limits lifted. A hearing was set for the following January. Even if Heyburn’s order wasn’t encouraging, the national climate was. Across the country, parents were taking school districts to court over their desegregation plans and winning. Cities that had devised elaborate busing systems and networks of magnet schools under pressure from judges two decades earlier were now being ordered by those same courts to dismantle them.

  In the 1990s, circuit court judges struck down a ban in Montgomery County, Maryland, on any school transfer that increased racial segregation, and Richmond, Virginia, judges did the same regarding a weighted lottery system that gave preference to minority students.7 A case out of Charlotte, North Carolina, where the concept of busing had emerged from the Swann ruling in 1971, was also on appeal.

  A white father there was contesting a quota system used in the district’s magnet schools, which had been set up in Charlotte’s black neighborhoods in 1992 as a way to shift from forced busing to voluntary desegregation. The magnets seemed to be working. The schools had long waiting lists for white children, who were limited to 60 percent of enrollment. But the district court declared that Charlotte’s school system was unified, and that the racial quotas used in the magnets were unconstitutional. Later, a Fourth Circuit judge, William Byrd Traxler Jr. from Greenville, South Carolina, would uphold the district judge’s opinion, writing that “unfortunately, the end result of the challenged magnet schools admissions policy is placement of racial quotas ahead of educating students—an inappropriate result nowhere countenanced in the district court’s orders or in the Supreme Court’s desegregation decisions.”8

  Magnet schools were the target of other cases, too. The prestigious Boston Latin School, a highly selective public high school that in the 1970s had been ordered to maintain a minority enrollment of at least 35 percent, was told this quota was unconstitutional in 1996.9 In 1997, a group of Chinese parents in San Francisco lost a case trying to end the city’s desegregation court decree, but they succeeded in changing the admissions system at one of the city’s top magnet schools, Lowell High School.10 Black and Hispanic enrollments dropped significantly at both the San Francisco and the Boston school.11

  Magnet schools, developed as a way to promote diversity, were now helping to undermine it. In many places, they had met the goal of encouraging white parents to become more invested in urban public school systems, but in doing so, they had fueled a sense of entitlement to a choice of schools. They also fed the perception that certain schools were unique and better than their counterparts, and that being denied entrance left one at a disadvantage. Just as the old “freedom of choice” plans had demonstrated in the 1960s, the concept of school choice and racial integration were once again turning out to be incompatible. A Columbia University law professor, Samuel Issacharoff, called the inability of school systems to find a way to reconcile the two a “tragedy.”12

  Many didn’t see it that way. As the era of school desegregation was beginning to wane in the 1990s, a growing education reform movement based on the promotion of more school choice was following closely on the heels of the standards and accountability movement.13 The two were, in fact, closely intertwined. Proponents of school choice believed that if schools, both private and public, were pitted against each other to compete for students, they would be forced to improve. The same market-based concept formed the argument behind the standards and accountability movement: Schools forced to compete with each other on the basis of student achievement would get better. And accountability systems were supposed to create a more informed marketplace of parents, who could compare the performance of their child’s school with that of others and make better choices.

  While many school choice supporters liked the idea of private school vouchers, others saw choice as a way for educators inside the public school system to innovate and break free from a status quo that clearly wasn’t working as minority test scores stagnated. Despite opposition from teachers’ unions and some education researchers, both liberal and conservative policy makers increasingly embraced school choice as the 1990s drew to a close. There was more evidence showing that integration improved student achievement than choice. But school choice won out based on politics and convenience.

  The philosophical underpinnings of the two education reforms were diametrically opposed: Fundamental to a market-based system of choice-based education was Darwinian competition that created winners and losers; desegregation was meant to equalize all schools, lift all boats. But mixing students by race had never been implemented in many cities, while the courts and demographic changes were weakening or dismantling entirely the dwindling number of desegregation plans still in existence.

  President Bush made open enrollment and vouchers a major plank in his education plan in 1991, and five years later, Bob Dole and Bill Clinton both embraced school choice when they faced off in the 1996 presidential election campaign.14 Dole praised vouchers, calling school choice the “civil rights movement of the 1990s.”15
Clinton preferred charter schools, an idea born in Minnesota in 1991 to create autonomous, privately run but still publicly funded schools that could act as laboratories for testing education reforms.16

  Despite the apparent incompatibility of the two education models, a popular argument for school choice rested on some of the same principles as the desegregation argument: Choice, like desegregation, would give students a way out of failing inner-city schools filled with high concentrations of black and Hispanic students living in poverty. But one sociologist, Peter Cookson, pointed out that school choice fit better with the American ethos, with its focus on individual freedom and market competition.17 Desegregation, which had to rely on state coercion and cooperation among citizens, did not.

  While some choice programs focused on giving students the option to transfer out of their neighborhoods (or to private schools), the school choice movement increasingly focused on creating good schools for inner-city students near their homes, avoiding the difficult political problems created by inconveniencing white suburbanites. If they succeeded, they would no longer have to fight battles over forcing middle-class parents to mingle their children and share their resources with poor black and Hispanic children.

  Like other districts caught up in desegregation court battles that decade, Louisville, with its Project Renaissance plan, had attempted the difficult juggling act of mixing integration with choice. But as the decade ended, they were going against the grain. A 1999 Public Agenda poll had found that 79 percent of American parents strongly believed they should have a right to choose their children’s school.18 Another poll a year later found that while 80 percent of black parents believed that sending their children to an integrated school was important, 82 percent said raising academic standards was more important.19 The choices the Louisville school board was trying to create under its desegregation plan were inevitably geared toward drawing white parents into the city, not creating a myriad of new programs for black parents to choose from. In Louisville, as the CEASE activists saw it, white people got choice, black people got integration. They preferred choice.