And yet, by 2004, Louisville was largely alone in its pursuit of integrated schools.8 Under the law, the judge argued that the end of desegregation court decrees shouldn’t force school districts to abandon integration, but on the ground, that’s exactly what most were doing. In many places, middle-class flight to suburban districts outside of the city core had made trying to desegregate schools extremely difficult. Desegregation was both out of reach and out of favor in most places, yet concerns about minority achievement had reached a fever pitch. Black and Hispanic children were more isolated than ever in poor, failing schools, and local governments were struggling to come up with a response.9 Many districts and states followed the will of the majority, and the majority preferred choice.
States across the country embraced charter schools. Their numbers increased from zero in the early nineties to more than three thousand by 2003.10 Although many opened in white, suburban neighborhoods, supporters mainly saw the schools as a way to improve education in failing inner-city districts where schools were losing the battle against poverty. At the same time, the Bill & Melinda Gates Foundation began pouring millions of dollars into a new “small schools” movement, which was based on research showing that vulnerable students could thrive in smaller learning environments.11 The small schools idea was also built on choice: Often, the schools were built around themes, much like magnet schools, which were supposed to draw in students. But unlike magnets, integration wasn’t the goal.
In 2000, George W. Bush was elected president, and in January 2002, he signed the No Child Left Behind Act (NCLB) into law.12 The purpose of the law was to force states, school districts, and schools to pay attention to the performance of minority students. It bore a striking resemblance to Kentucky’s own education reform law of the 1990s, and many suggested KERA had been a model for NCLB, along with similar reforms in Texas. Schools that received federal dollars for low-income students were to separate out and report the performance of minorities on state tests. Schools that didn’t improve at a set rate were to be punished, potentially with closure. Central to the law was the concept of school choice. If schools stayed stagnant or didn’t improve fast enough, students could request a transfer to a “successful” school. The competition was supposed to spur schools to get better.
Teddy Gordon had used the new No Child Left Behind law to attack the school district throughout the second trial. The first round of school scores had been released before the hearings, and only half of the Jefferson County schools were meeting their test score goals—meaning, in most cases, that black students weren’t keeping up as well as they were expected to. Teddy used the numbers as a weapon to undercut the argument that desegregation helped minorities do better in school.
Yet, during the following year, the National Assessment of Educational Progress found a smaller achievement gap between white and black students in Kentucky—who were largely concentrated in Louisville—than in nearly every other state in the country.13 On eighth grade math and reading tests, Kentucky had the second-smallest gap between whites and blacks in the nation, after Washington State.
It was possible that Kentucky’s relatively small gap was due to the state’s high number of poor, white students. But Kentucky’s performance on reading tests for all students was about average. Black students in Kentucky posted smaller gains on reading tests in 2005 than the nation as a whole, but the state’s black students started out ahead. And the graduation rate among African American students was 2 percentage points higher in Kentucky than the rest of the country.
Some of Kentucky’s relative success was possibly linked to the statewide education reforms introduced in 1991, but its relatively narrow achievement gap also fit with the evidence the school district had presented at the trial, that integration was linked to smaller disparities in achievement. In Heyburn’s decision, the judge noted that Gordon had not presented any evidence to the contrary.
Teddy Gordon was not dissuaded by his district court defeat in the McFarland case. That summer he ran for a position on the Jefferson County school board, on an anti-busing platform, telling the newspaper that it was time he “put his money where his mouth was.”14 He lost badly. But he was more determined than ever to press his new cause. He was reading about charter schools in a book called No Excuses, by Abigail and Stephan Thernstrom, about all-black schools in the inner city that were successful despite the odds. He had paid attention to the widening impact of the new No Child Left Behind law. He followed the successes of the movement to end affirmative action in California and watched it spread to other states. He felt the wind at his back.
Chapter 24
Central was a different place by the fall of 2002, when Teddy filed his second case. Following Judge Heyburn’s decision to lift the racial guidelines at Central High School, the percentage of black students was climbing to 80 percent.1 The number continued to creep upward, along with enrollment.2
Riccardo X should have been happy. Finally, he was working at a school where his black history classes were not only appreciated, there was a large pool of African American students eager to sign up. On the walls of the Black Cultural Center in his second-floor classroom, he taped up news clippings about CEASE’s battle with the school board alongside posters about African history and famous black leaders. He wanted to make sure his students remembered that this black-majority school did not become that way without a struggle. But instead of rejoicing as a majority-black freshman class began its first year at Central, Riccardo had spent the fall leading his students in protests on the circular driveway in front of the school.
Less than two years after the victory in the Hampton case, the school district had fired Harold Fenderson, Central’s principal.3 The district cited a litany of problems, some minor, some less so, including a school employee who had been cashing bad checks from the school’s accounts and more than a dozen students who had graduated without the minimum number of credits.4 Some of those students had taken Riccardo X’s black history class, which Fenderson had allowed to count for a geography requirement.
Riccardo believed the firing was payback for Fenderson’s poorly hidden empathy for CEASE’s cause during the Hampton trial. Asked if a school with a large African American population would be a problem, he had replied that pre-Brown “there were many successful African Americans who attended all African-American schools.”5 Looking back, Riccardo thought those comments helped seal his fate.
In the black community, Fenderson’s firing was a uniting force. CEASE members joined the student demonstrations outside the school, and then held a rally at the church where Lyman Johnson had once stood in the pulpit and railed about dangers of resegregating the schools.6 Fenderson, who was also an evangelical preacher, had been widely regarded as a strong leader who was lifting up the expectations and achievement of young African Americans, in the mold of predecessors like Lyman and Maude Brown Porter.7 He had set up partnerships with the University of Kentucky, law firms, and businesses like SuperAmerica, the gas and convenience store chain. During his tenure, Central finally got its own football stadium. It seemed white school administrators were ignoring once again what the black community wanted for its schools. In the wake of the firing, people worried that the district might eventually try to close down Central after all.
Standing in the pulpit where Lyman had once stood, Riccardo X announced to the crowd at West Chestnut Street Baptist Church that the “war was on” to save Fenderson and Central, “the pride of the black community.”8 But the war did not last long.
Fenderson hired Teddy Gordon to defend him. They submitted an appeal of more than one hundred pages to the school district, disputing the accusations point by point.9 Fenderson also sued the district, arguing that his due process rights had been violated. In the end, however, Fenderson settled and soon after left the district for a job at the University of Kentucky. Daniel Withers, an African American assistant principal, was appointed to take his place.
By the summer of 2004, the cont
roversy had faded away. Central was a majority-black school with a black principal, yet it was clear to Riccardo that the black community had not really won control of the school. They were just as powerless over what happened there as they had ever been. Except for a handful of teachers who shared his politics and missed Fenderson, too, X felt alone. As Teddy Gordon prepared to appeal his case with the white parents, Riccardo X watched from a distance. He regarded Teddy’s new mission to dismantle the school district’s student assignment plan as he had the Vietnam War. As far as he was concerned, he didn’t have a dog in this fight.
The three parents who had fought the admission system for the traditional schools, including David McFarland, dropped out of the case after Judge Heyburn’s decision. To go forward, Teddy would have to rely only on Crystal Meredith—if he could convince her to appeal. But by the summer of 2004, Crystal’s son was headed to second grade at Bloom, the school in her neighborhood, after she had made another request for a transfer. Teddy hoped she would be willing to fight the system anyway, but she was nowhere to be found. He called her repeatedly, but she didn’t pick up. He hired a private investigator, and after weeks of searching, he finally found her.
Meredith was fiercely protective of her son, and the media attention would likely be intense if they kept going. But Teddy had never been one to quit. The Supreme Court was now in sight. He convinced her, reminding her that she had promised to stick with it when he first took on her case three years earlier. In June 2005, they appealed to the Sixth Circuit Court of Appeals. In July, a panel of judges handed down a brief decision affirming Judge Heyburn’s ruling. Shortly after, Teddy got to work on his appeal to the Supreme Court.
To the supporters of the desegregation plan, Teddy’s case seemed like a long shot. In his request for the Sixth Circuit hearing, Gordon had submitted a short brief full of muddled arguments. In his conclusion, he argued that American society had finally become color-blind, pointing to the “rainbow composition” of the workplace, “emphasized by the color-blind appearance of our local television networks.”10
His appeal to the Supreme Court, which he filed in January, was not much better. Michael Dorf, a Columbia law professor who had clerked for Supreme Court Justice Anthony Kennedy, called the brief “extraordinarily weak.”11 He told the Courier-Journal that Gordon was “out of his league,” saying his writing was “something you’d expect from a prisoner” who was representing himself. In addition, despite the tilt of the country away from desegregation, the Supreme Court’s University of Michigan decisions seemed to bode well for Louisville. Sandra Day O’Connor, the moderate swing vote on the Court, was tolerant of schools that used race as a factor in admission. The decision didn’t apply to elementary and secondary schools, and the circuit courts had clashed on the issue, but the Supreme Court had already turned down more than a dozen similar cases. It seemed highly likely the Jefferson County case would be batted down, too.
In 2005, the same summer the Sixth Circuit denied his appeal, Gordon got lucky. O’Connor announced she was stepping down.12 President Bush nominated John Roberts, a reserved fifty year old with a firmly conservative track record, to take her place. In September, Chief Justice William Rehnquist died in office after a battle with cancer, leaving another vacancy. The Bush administration elevated Roberts to the chief justice position and named Samuel Alito, a former Reagan Justice Department lawyer, to take O’Connor’s place. In just a few months, the Court swung sharply to the right, leaving Justice David Kennedy, previously counted among the conservatives, as the Court’s swing vote. The changes came just before Teddy filed his appeal.
Yet victory for Teddy wasn’t a sure thing. In the University of Michigan Law School case, Kennedy disagreed with O’Connor and signed onto the conservative wing’s minority dissent written by Chief Justice Rehnquist, which argued that the school’s use of race was unconstitutional. But Kennedy also took the trouble to write his own separate opinion. In it, he distanced himself from the conservative judges, arguing that race might play a role as a “modest factor among many others.” He was frustrated that the liberal wing of the Court refused to scrutinize the law school’s use of what he saw as a racial quota, however. A racial quota, Kennedy wrote, “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”
At the time of the university cases, Kennedy’s separate opinion was largely irrelevant. But three years later, he was the tiebreaker. Gordon’s prose may have been clumsy, but his appeal hit the same points about racial quotas that Kennedy had argued in his Michigan dissent. In the summer of 2006, Gordon’s appeal was granted. The oral argument was set for December.
Another desegregation case reached the Court at the same time. The second lawsuit was based in Seattle, where parents were also disputing racial caps in the city’s schools. Seattle had never been under court order to desegregate. The city had voluntarily implemented a plan to boost racial diversity in the schools after the NAACP sued in the early 1960s.13 Seattle’s system was more limited in scope than Louisville’s, and the city had never implemented forced busing. Instead the district used race as a tiebreaker at high schools with waiting lists, giving preference to minority students if the majority of students at the school was white. In 2000, a group of white parents whose children were unable to get into the school of their choice sued the Seattle school district.
The Seattle plaintiffs, organized by a group called Parents Involved in Community Schools, were visibly enthusiastic, in contrast to Teddy’s one rather reluctant plaintiff.14 A large law firm, Davis Wright Tremaine, with international offices and more than five hundred attorneys, took on their case pro bono.15 After the case was appealed, the Seattle district stopped enforcing the plan to wait for a final judgment from the Supreme Court.16
Once the Supreme Court agreed to hear his case, Teddy was bombarded with offers of help. A right-leaning think tank in California, the Pacific Legal Foundation, flew him out to practice in a moot court. His new conservative allies suggested replacing him with a more experienced lawyer with conservative credentials. But Teddy, still a staunch Democrat, was determined to argue the case himself.
In an amicus brief submitted to the Supreme Court on behalf of the Louisville and Seattle school districts, 553 social scientists argued that racial diversity was better for students of all races when it came to instilling democratic values and improving academic performance—slightly more than the number of researchers who signed a similar brief in support of the 1954 Brown case.17 They cited a huge body of evidence in favor of desegregation compiled since the famous “doll studies,” which the NAACP had used in Brown to show how segregation damaged the self-esteem of black children. The research showed that racial diversity improved critical thinking skills, increased the academic performance and graduation rates of African American and Hispanic students, and improved their chances for success later in life. Research by Eric Hanushek, a Stanford professor whose views leaned to the right in education policy, found that decreasing the ratio of black students in a school was correlated to improved test scores for black students.18 A survey of eleventh graders in Louisville suggested that racial diversity had a positive impact on aspirations and critical thinking for both blacks and whites.19
The Pacific Legal Foundation, which had helped coach Teddy over the summer and fall, argued in its own amicus brief—much longer than Teddy’s own—that the social science research was disputed, and that it rested on “uncertain footing.”20
In the fall, Teddy bought himself a new suit at J. C. Penney and packed his lucky red underwear. The first weekend of December, he drove to Washington, DC, with members of his family. Crystal did not accompany him. He believed she would be overwhelmed by the media attention and had suggested she stay home.
Early on the morning of December 4, people lined up outside the Supreme Court.21 The temperature was below freezing, but people had spent the night in hopes of getting a seat.
Some were there to protest. They worried that a ruling ending Louisville’s and Seattle’s desegregation plans would reverse the gains achieved since Brown v. Board of Education. Others were excited, hoping that an opinion in favor of color-blind government would help heal America’s racial divide. As the spectators were seated, Teddy strode past them to the podium in the Court’s chamber carrying a single sheet of paper.22 On it was a typed outline of the constitutional concepts he wanted to cover. A list of court cases was jotted in pen in the margins. He quickly scrawled the names of the justices, in the order they were seated, on the back. The room felt small. Mellen stood just a few feet away, and the faces of the justices loomed above.
Teddy went first. He started off strong: “Crystal Meredith wanted to do what most moms and dads do all across this country. She wanted to put her son’s hand in hers and walk around the corner and enroll her son in school,” he said, his voice rising and falling in a steady rhythm.23 But then he seemed to lose the thread of his argument. “But the enrollment, there was a barrier, and the pickaxe, that barrier was personified as a quota. It wasn’t near any one of the percentages or tipping percentages that the quota system in Jefferson County public schools applied. But she was not allowed in.”
Ruth Bader Ginsburg jumped in before he could go further. One of her first questions was why Crystal hadn’t enrolled earlier. She had moved from Florida, Teddy said. It was unclear if he had forgotten that she had grown up in Louisville and merely moved across the county line, or whether he made it up on the spur of the moment to make the case sound better. From there, he got in few words as the liberal wing of the Court pounced on the irony of the case: Wasn’t it an anomaly, Ginsburg asked, that “what’s constitutionally required one day gets constitutionally prohibited the next day?” Teddy rebutted that desegregation “hasn’t worked,” and finally hit his stride as his argument came to a close.
Divided we Fail Page 21
