Divided we Fail (22 page)

On a few occasions, however, his cases had veered into civil rights law. In the early 1990s, he represented a white police officer who said he had been discriminated against because several black officers were promoted before him.
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He also argued the case of a black police dispatcher who said his supervisor had used racial slurs.
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When CEASE first contacted him, he
had been making headlines in a local election case. His client, an African American candidate for city alderman, sued her opponent for distributing chicken wings to poll workers on Election Day.
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Gordon won the case and got his client's opponent removed from office, although voters reelected the man shortly after.
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A short man with a Kentucky twang, Gordon fit the stereotype of a small-town Southern lawyer, the last person one might expect to support an Afrocentric cause. His jowly face and expressive gray eyebrows called to mind the actor Charles Durning. He wore off-the-rack J. C. Penney suits and had a large American flag painted on the side of his office building. His style was folksy. He seemed like a conservative good old boy. But he wasn't really.

Gordon had deep liberal roots. His parents were Latvian Jewish immigrants and he had been raised in the East End, Louisville's left-leaning, upper-middle-class enclave. His father had fled the pogroms, and he related to his son the fate of several relatives left behind who had been murdered and hung from meat hooks. The family ran a grocery store in the West End, a few blocks southwest of Central High School. As a kid, Teddy commuted to the store after school and delivered groceries to the surrounding black neighborhoods.

His parents weren't particularly political, but Teddy recalled them repeating adages such as “Don't say anything so bad that you can't go talk to the person again,” and instilling in him that their business depended on treating their black customers well. When he was in high school, he befriended a younger African American boy who worked at the store, Robert Jones, whom Teddy called Jonesy. In the 1960s, Teddy played football for Atherton, the traditionally white high school that served the old wealthy neighborhoods of the East End; Jonesy played basketball for Central. One winter, Teddy brought some of his football friends to watch a matchup of the Atherton and Central basketball teams. Jonesy was playing, and Teddy rooted heartily for him from the stands. But around him, he heard several Atherton students yelling out racial slurs, and saw them give him angry glances. He was shaken. He had watched the violent scenes of dogs and hoses aimed at civil rights protesters on television, but he had never witnessed overt racism in person before.

Still, as a teenager, Teddy was less concerned about the civil rights movement and more concerned about the Vietnam War and the possibility
of getting drafted. He was against the war, and the antiwar protest politics of the 1960s stayed with him. In college, he majored in Russian—a nod to his family heritage—but his goal was to go to law school and perhaps someday hold political office. After graduation, he got married and eventually found a job teaching Russian in the Louisville public schools. He juggled his teaching job with classes at the University of Louisville's night law school. It wasn't a prestigious program. Standards for admission were low, but it was cheap. After a few years, Teddy had his degree and passed the bar, but he was never satisfied with the idea of becoming a lowly ambulance chaser.

In 1971, Gordon ran for state representative as a far-left Democrat.
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He would almost certainly have lost badly, but on Election Day he was disqualified, along with his rivals, because they had mistakenly signed up to run in the wrong district.
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It was the first of five unsuccessful local political campaigns he launched over the next two decades.
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This dogged persistence fueled his law practice, too. He savored the role of the underdog and wore his lack of Ivy League credentials as a badge of honor. Losing a case, or a campaign, just made him more determined to win the next one. To gear up for a tough day in court, he blared the Tom Petty song “I Won't Back Down” from his office computer. By the mid-1990s, after winning a workers' compensation case in the Kentucky Supreme Court, he thought he was ready to go after his life's goal, one that provoked laughter when he confessed it to his friends: he wanted to argue a case in front of the US Supreme Court.

When the members of CEASE—composed of Carman Weathers, Robert Douglas, Fran Thomas, and a half dozen other West End old-timers—arrived on his doorstep that winter, Gordon was savoring his success in the case of the chicken-wing-distributing alderman. He was shocked that they wanted him to sue the Jefferson County Public Schools over the desegregation plan at Central. “Are you crazy?” he responded. “I voluntarily bused my two kids.” He thought of Jonesy, who had little choice but to attend Central. “Isn't sending them back to Central a bad thing?”

The CEASE members patiently explained that, in their view, Central had become one of the best schools in the district under the leadership of a new principal, Harold Fenderson, who had rekindled and expanded the school's magnet programs. The school offered nursing, law, and business courses, and internships at Pizza Hut and SuperAmerica convenience
stores.
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It had high graduation rates. The school was in high demand among black parents. But desegregation's racial limits meant that most black students couldn't get in. High-achieving students like Dionne Hopson and Ja'Mekia Stoner were turned away. Instead of Central, they and many others attended schools in the southwest of the city, where some white families were just as poor as those living in the black West End. Dionne was at Pleasure Ridge Park, and Ja'Mekia was at Shawnee, where graduation rates were significantly lower than at Central. Meanwhile, the other good high schools in the city, Ballard, Male, and Manual, had tiny percentages of black students compared to their lower-performing counterparts.

Gordon listened. His sense of right and wrong was offended. He had never thought much about the desegregation plan; like many liberal East Enders, he accepted it as the moral thing to do. But listening to CEASE's view of the system, suddenly it just didn't seem right. He also saw a glimmer of potential. This could be his Supreme Court case. He had little experience in civil rights or education, but CEASE was desperate for a lawyer to take its case. What Gordon lacked in experience and credentials, he made up for in feistiness and ambition. He was also cheap. In the spring of 1998, Gordon told his new clients that he would charge them $1 as a retainer; he hoped they could recoup his fees in civil damages.

On April 22 that year, Teddy B. Gordon filed the Central case in federal district court.
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He listed Sandra Hampton, Robert Douglas's niece, as the lead plaintiff, followed by Clara Hilliard, Gwen Hopson, Lisa Logan, Joan Shields Merritt, and Jacquelyn Stoner. By then, Central's enrollment had dropped to nine hundred students. “If the seats are open, why can't our children have them?” Jacquelyn Stoner asked a local newspaper reporter the day the case was filed.
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Six months earlier, Lyman Johnson had died at the age of ninety-one. He had been unable to keep his vow to stay alive until one hundred to fight the people who wanted to send “the wagon rolling back down the hill.” Gordon and the members of CEASE were insistent that they wanted only to adjust, not end, the desegregation plan. “Integration can be defined as over 50 percent,” Gordon told the press.
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In his complaint, Teddy wrote that “only African American students are denied their first choice as to where to attend high school within the Jefferson County School System, based on their race, and only African American students are involuntarily
bused to a high school other than their first choice.” He also pointed out the racial disparities in the Advance Program, where only 11 percent of students were black. “Contrary to the admitted goals of integration and diversity of the Board, African-American students are denied an equal opportunity to gain entrance into the advanced program based on the systemic discrimination of the Defendant.”
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The complaint was short, only five pages, and it would also turn out to be rife with problems.

Judge John G. Heyburn seemed like a lucky draw for the plaintiffs. Heyburn had conservative credentials. He was the scion of an established legal family in Louisville.
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His father and grandfather were both partners in one of Louisville's most prestigious law firms, and an office tower downtown bore his family's name. He had begun his career working on the campaign of Republican senator Mitch McConnell in 1977, when McConnell first ran for a local county position. President Bush appointed Heyburn to the federal bench in 1992, and Chief Justice Rehnquist picked him to work on budget issues for the Judicial Conference of the United States, a group that disseminated information to federal judges.

Growing up in Louisville, Heyburn attended Chenoweth, an East End public elementary school near several upper-middle-class enclaves. The school had opened in 1954, and was desegregated while Heyburn was there.
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He could remember when the handful of African American students first appeared in his classroom. Later, however, his parents moved him to private school and then boarding school in New England. He graduated from Harvard and then the University of Kentucky Law School. His first job out of college was in the West End, working at the Park Duvalle Community Health Center. The medical center took up several buildings in the Cotter Homes, next door to the housing project where Riccardo X grew up, and had been founded after local activists agitated for better health services for the isolated project residents. During the summer, Heyburn started a tutoring program for the local kids, and got to know Lyman Johnson's son, who also worked there, and Lyman Johnson himself.

Heyburn sent his own children to one of the city's most exclusive private schools. Despite his early involvement with the Republican Party, it was difficult to decipher Heyburn's politics. In one of his most important cases, he had struck down a partial-birth abortion ban in Kentucky. He had also dismissed a corruption case against a shady national lottery company.

In May, the school district responded to the case. A large private firm
with offices on the upper floors of a skyscraper in downtown Louisville and satellite offices in other cities around the country represented the Jefferson County Schools. Shelves of books, polished wood furniture, and rows of framed awards and degrees decorated the rooms. Frank Mellen, a lean, serious man with owlish glasses and a Harvard law degree, was the lead attorney.
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Byron Leet, who would lead the questioning at the hearings, was more dapper, with fashionable clear-framed glasses, prematurely silver hair, and a more jovial disposition. He had graduated from Vanderbilt.
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Less than a decade earlier under Superintendent Don Ingwerson, the school district had fought a long campaign to loosen the racial limits on its desegregation plan and reduce the use of forced busing. But unlike many school districts elsewhere, which had been eager and even proactive in trying to end busing plans, the Jefferson County Public Schools had never tried to rid itself of desegregation entirely. The board paid attention to the polls showing that a majority of parents supported the plan. And the board members believed desegregation was actually an important educational goal. They also believed that if they gave in to Carman Weathers and his fellow activists and let Central exceed the racial limits, the entire plan would eventually collapse. A higher concentration of black students at one school would decrease the number available to attend schools in the predominantly white suburbs, thus increasing segregation everywhere, not just at Central. In addition, if Central were allowed to become primarily African American, it would set a precedent for schools and students elsewhere to clamor for exemptions from the desegregation rules.

The district's lawyers asked Heyburn to dismiss the case.
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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.
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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.
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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.”
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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.