Divided we Fail

by Sarah Garland

  Chapter 21

  January 30, 2000, was Super Bowl Sunday: Rams versus the Titans.1 Teddy Gordon woke up early and pulled out his papers for the Hampton case. The following day was the first of the new trial. But Teddy was an avid football fan. In high school, he had played in spite of his small size, and he believed the game had taught him how to take a hit and keep running.

  The Rams-Titans matchup promised to be a good one. Both teams were underdogs, and Teddy loved an underdog. He stacked up his files in front of the television. It was a low-scoring, defensive game, with the Rams only slightly in the lead throughout. With six seconds left, the Titans nearly tied it, but linebacker Mike Jones came out of nowhere and tackled their receiver just short of the line. The Rams won. The game’s Most Valuable Player was an obscure quarterback, Kurt Warner, who just five years earlier was stocking grocery shelves after being passed over by the pros in his early career.2 By midnight, after watching these unknown players suddenly become stars, Teddy felt exhilarated and prepared.

  The next morning, Teddy wheeled a suitcase full of files into the courtroom. The tables were more crowded than they had been the following spring.3 In addition to the school district lawyers and Steve Porter, the QUEST lawyer fighting to save the desegregation plan, the US Department of Justice and the American Civil Liberties Union had joined the trial.

  A third set of plaintiffs, representing the Kentucky Alliance against Racist and Political Repression, also asked to join the fray with its own lawyer and its own set of arguments. Fran Thomas was still the director there, but other members of the group, including its founder, Anne Braden, who a half century earlier had helped an African American family buy a house in Shively that was eventually bombed, had differences with CEASE.

  The Alliance agreed with CEASE members that the district’s ban on black-majority schools was inherently racist—that it supported the idea that blacks were inferior to whites. Also like CEASE, the Alliance believed that the school system was far from rooting out the institutional racism of its pre-desegregation days. Its strategy was different, however. Rather than try to do away with the desegregation plan so that Central could accept more black students, the Alliance planned to argue that the school should remain under court order until the achievement gap was closed.

  Representing them was an African American lawyer from rural eastern Kentucky named Aubrey Williams who was studying to become a preacher. Williams had followed Lyman Johnson as president of the Louisville NAACP in the 1970s, and then served as a state representative for southern Louisville.4 Later, he was fired from a state job overseeing a fund for workers’ compensation. A state official called his management style “erratic.” Williams responded by saying it was unfortunate that “racism is alive and well.”5 Anne Braden, now a thin old woman, but with the same deep-set brown eyes and jaunty bob of her youth, sat behind him throughout the trial.

  Teddy once again started the proceedings. His goal was to prove that the vestiges of segregation in the school system were gone, and though his syntax occasionally got tangled up, he stuck to his argument: “It is our position that there are no vestiges of prior de jure segregation, that an African American majority in the school cannot be considered in any way, shape or form a revestige or a prior vestige.”6

  Leet was more poetic. The word vestiges came from the Latin word for footprints, he said, and though the school district had tried in “good faith” to eliminate all of the footprints left behind by segregation, they would quickly reappear if the judge ruled that the system must discard its racial guidelines.

  Just as the school district lawyers had envisioned, the additional plaintiffs, QUEST and the Kentucky Alliance, fervently attacked those “good faith” efforts. “The Jefferson County Schools have always done just enough to look good, but never enough to accomplish the mandates of Brown,” Porter said in his opening. Aubrey Williams, with his preacher cadence, was even more forceful: “The Jefferson County Public Schools failed to realize, failed to understand and failed to address what it truly means to attempt integration. It means more than just placing kids in the same environment. It is about more than a numerical scheme or racial balances. . . . It’s about educational opportunity. It’s about seriously addressing those things that cripple a child.”

  But as eloquent as the arguments of the district and intervening lawyers were in comparison with Teddy’s, the case law was against them. Most people in the room agreed that high suspension rates, low test scores, and the high numbers of whites in advanced classes compared to the high number of blacks in disciplinary schools were evidence of segregation’s long reach. The question was whether the courts should or could force school districts to do something about those in-school discrepancies. No court examining whether a school district should be released from a decree had ever ruled that they should.

  Teddy called his first and only witness, John Whiting, a former principal at Shawnee High School. Whiting was a large, imposing man with a neatly combed Afro.7 He had graduated from Central in 1954, the year of the Brown decision, when hopes for desegregation were high. Two decades later, on the morning of the first day of busing in 1975, he found a black cat hanging from Shawnee’s flagpole, and a card on his desk that read, “The KKK is watching you.” In the afternoon, he helped sobbing black students returning from Fairdale High School climb out of buses with shattered windows.

  Afterward, as he watched black schools shuttered and black administrators demoted, he began calling the merger between the county and city “a takeover.” Yet throughout the 1980s, he had worked hard to make desegregation work. He believed that getting resources into inner-city schools depended largely on putting white children in them: “Green follows white,” he liked to say. But, like many of the CEASE activists, he was deeply disappointed in how desegregation had been carried out.

  Whiting’s nuanced views did not make him ideal as the plaintiff’s sole witness. Teddy’s main task was to convince the judge that racial balance had been maintained at every district school over two decades, and so therefore the vestiges of segregation were gone. But when Teddy asked Whiting to affirm that no Louisville schools had an African American majority (ignoring the point he had made in the last hearing that the alternative schools, Buechel and Liberty, both did), Whiting veered from the script.

  “I would like to expand the definition of desegregation,” Whiting said. Outcomes mattered, too, he argued, and outcomes certainly reflected that racial inequality still existed. Later, asked whether the schools maintained “any type of dual or separate system for blacks and whites,” Whiting suggested that the small number of blacks in the Advance Program and the large number in special education raised “some questions.” He added, “I think we could debate whether it’s institutionalized or whether it’s blatant.”

  Soon after, Teddy let him sit down and once again rested his case before lunch on the first day of the trial. His questioning had lasted about fifteen minutes.

  During the cross-examinations, Whiting delved further into his belief that tracking and achievement gaps were indeed markers of the city’s century of school segregation. Afterward, one by one, the lawyers at the other tables stood up to ask Heyburn to dismiss Teddy’s case. It was too monumental of an issue to move forward on such paltry evidence, they argued. “We do not think the plaintiffs have made their case, Your Honor,” Porter said. “They have not carried their burden at all.”

  Judge Heyburn, however, believed it was too important an issue not to hear everything that each side had to say. The following day, the Harvard professor, Gary Orfield, appeared again, as the first witness for the defendants. His testimony repeated much of what he had told the court the previous spring: that minorities reaped benefits from desegregated schools, and that school systems that ended desegregation decrees saw their schools quickly resegregate and minority test scores drop. When it was Teddy’s turn, he once again jabbed at the professor, trying to get him to admit that adding more blacks to Central would make l
ittle impact on the rest of the schools. Then he changed tactics.

  “Let me ask you point blank,” Teddy said. “What approach can we take in Jefferson County, Kentucky, to make both sides happy?”

  “Well,” Orfield replied. “Making everybody happy completely is usually . . .”

  “Impossible?”

  “You don’t have a lawsuit if there’s an easy answer to that,” Orfield said.

  “If this goes to the extent of eliminating the desegregation plan, everybody is going to be unhappy in the long run and your clients are going to lose very badly.”

  That fall, at Heyburn’s urging, the two sides had in fact tried to hash out a compromise that would allow Central to pull more students from its neighborhood while maintaining diversity.8 CEASE offered to drop the suit if the school district allowed 150 additional black students to enroll at Central and created law and medicine magnets elsewhere to accommodate additional applicants. They also asked that 200 more black students be admitted at the district’s best-performing schools, including Ballard and Manual. The school board refused the proposal. CEASE reduced its request to 75 additional black students at Central.9 The school board again refused, arguing that letting one school go out of balance would open the door to requests from every school in the district. The judge had hoped that over several days of hearings, the opponents might be convinced to sit down to talk again. But, as the hearings went on, that looked increasingly unlikely.

  Pat Todd, a spry blonde who favored cowboy boots and long skirts, ran the school district’s student assignment program. She had grown up in a conservative family in Oklahoma, but had moved to Louisville in the 1970s to teach at an all-black school in the inner city.10 From there, she had ascended the ranks of administration and become deeply involved with the monitoring committee, taking charge of the district’s desegregation plan in 1996. She usually had the cheery demeanor of a kindergarten teacher, but with Teddy, her warmth faded.

  Throughout the hearings, he had attacked the school district over statistics that showed black students were more represented in South End schools like Fairdale, where poverty among whites was high and outcomes were low. At Manual, Male, and Ballard, where blacks were only a fifth of the population or smaller, the college-bound rates were more than 80 percent. And at Central, 86 percent of students went on to college.

  “Are there certain high schools in Jefferson County where African American kids have a better chance to go to a four-year college than other high schools?” Gordon asked.

  “No, I do not accept your premise,” Todd replied.

  “You don’t?” Teddy shot back. “Haven’t we eliminated 65 percent chance of having an equal opportunity to go to college because you make the choice rather than these parents?”

  “No, sir,” Todd replied calmly.

  Leet jumped up. “Your honor, I object to that, whatever it is,” he said.

  “She can answer,” the judge replied.

  “And I said no, sir,” Todd repeated.

  Teddy sat down.

  To the lawyers and witnesses in the room, it seemed that Gordon was twisting himself into a knot as he tried to argue simultaneously that black students were being discriminated against by the school system but that the vestiges of racial segregation were gone. The lawyers from the two third-party groups, QUEST and the Kentucky Alliance, took advantage of the awkward position CEASE was in as they tried to convince the judge that racial inequality was still pervasive throughout the district and that the desegregation system should stay intact. Steve Porter sent subpoenas to the members of CEASE, and on February 18, the fourth day of the trial, he called Deborah Stallworth, Fran Thomas, Robert Douglas, and Carman Weathers to the stand. Gordon complained that they were “harassment witnesses,” but the judge ignored him.

  Stallworth, a middle-aged woman with soft features, was first up. Porter asked if there were other problems besides the quotas at Central for African American children in the school system.

  “There’s a lot of problems in the treatment of African American students in the Jefferson County Public School system,” she replied. “The suspension rates are there, the high drop-out rates. The achievement gap that you have been talking quite a bit about here.”

  But she didn’t have a problem with Central becoming 100 percent black?

  “What I send my child to school for . . . is to get an education. I do not send him to be socialized.”

  Fran Thomas was called next. Her hair was white and short-cropped, but with her smooth skin and bright eyes she looked much younger than her seventy-two years.

  “Would it bother you if Central High School were a hundred percent black?” Porter asked her.

  “Mr. Porter, I have no qualms about being black, being with blacks, associating with blacks,” she replied. “I have no qualms.”

  “Would it be good for the black community?” he asked.

  “I think it would present a positive force in the African American community,” she replied.

  He asked her about her perceptions of the top-performing high schools in the county, Male, Ballard, and Manual, which had the fewest numbers of African Americans.

  They are “elitist,” she said. “You have to already be where you are in order to get there.” Fairdale, in contrast, the high school in the South End where some of the worst violence had occurred during the days of busing, was still “racially-motivated against African Americans,” she said.

  “There’s a history there, isn’t there?”

  “There is a history there,” she replied.

  “Why can’t you forget?”

  “I think I could forget if somehow or another that the Jefferson County public school system could erase race from their minds and take on the dream of Martin Luther King that one day we will be accepted for the contents of our minds and not by the color of our skin.”

  Did she believe racism still existed?

  “Yes I do,” Fran said. She stood up, and returned to her seat in the audience.

  Carman stood up next. He still looked the part of a coach, with his rounded-out linebacker physique and bushy mustache.

  When Porter asked why he didn’t mind if Central became an all-black school, he was blunt. “One of the stresses that impacts on the cognitive ability of black children is racism. More black kids in a school, less racism. You don’t have to be a brain surgeon to figure that one out,” he said.

  “You think white children are already taken care of—”

  “Always,” Carman said.

  “—because the system is white-controlled, white dominated?”

  “Always in this country,” he said.

  “And white racism pretty much controls it?”

  “Always in this country,” he said.

  “In the Jefferson County public school system?”

  “I think white racism is a predominant factor anywhere you see white people,” Carman replied.

  Teddy stood up to try to salvage the day: “As far as you are aware, is the system unitary under the rulings of the court?”

  “If by unitary, you mean Jefferson county has gotten rid of all its policies that lend themselves to a dual system, yes,” Carman replied.

  “Do you see any vestiges of by-law segregated schools?”

  “No.”

  Chapter 22

  Judge Heyburn was not interested in Carman’s, Fran’s, or Deborah Stallworth’s testimony. After they stepped down, he told the lawyers he didn’t want to hear people’s opinions about racism, or about the school system’s failures to eliminate the remnants of segregation. He wanted to see evidence.

  Steve Porter and Aubrey Williams, representing the two groups who wanted to push desegregation even farther, tried to provide it for him. They brought data showing that more than half of the high school classrooms did not meet the racial guidelines. In hundreds of classrooms in the Jefferson County schools, only one or two black students were enrolled. In dozens, there were none.

  At the same
time, not only were black children less represented in the district’s gifted and talented program, they were much less likely to be recommended to take the entrance test. And those who did take the test were much less likely to be recommended to join the program than white children, even if they scored in the top percentile. In fact, more than two-thirds of black middle and high school students who did well on the Advance Program tests were refused entrance to the program by the teachers and counselors who made the final determinations, compared to one-third of white kids. Wasn’t this a stigma of inferiority? Telling black children as a group that they belonged in the lower academic classes, even when they tested high enough to qualify for the higher ones?

  “Your honor, this is not just a little program. This is not an advanced placement course that kids get to choose and not choose,” Steve Porter said. “This is not discipline and a kid acts up and it doesn’t matter whether he’s black or white, the teacher is going to do something about it. This is every class in the system. . . . It’s bad.”

  The lawyers also hammered on the differences in test scores and grades that still persisted twenty-five years after the advent of busing, showing that the implicit promise of Brown—that black children would be brought onto equal footing with whites—had not yet been kept. “The court’s goal [in Brown] was to repair the damage to the hearts and minds of the children,” Orfield had said during his testimony. “That can’t be done by letting the kids in the front door and then treating them unfairly inside the building.”

  Ultimately, however, the judge was not convinced that the “numbers spoke for themselves.” The judge’s roots were conservative, and he was trying to keep his opinion as limited as possible. He didn’t want to make new law, or set a new precedent. The Supreme Court’s only explicit order in 1954 was that the segregation between schools be dismantled. Brown might have inspired hope that children would be integrated inside classrooms and that their academic outcomes would be equalized, but it had never made those steps a legal requirement. Judge Heyburn was focused on the simpler question of whether any schools in Jefferson County were still racially identifiable: Had the school system complied with the letter of the law and ensured that no school went out of bounds from the racial limits? Was racial intimidation still a factor that kept black people from making free choices in where they sent their children to school?