Divided we Fail (24 page)

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 plan 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.
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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.

“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.
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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.”
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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.
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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.
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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.
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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.”
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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.”
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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.