Divided we Fail (25 page)

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.

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.