Divided we Fail (27 page)

Around lunchtime on June 20, 2000, Fran Thomas, Robert Douglas, and several other members of CEASE gathered in the living room of Carman Weathers's ranch house on a corner lot in the West End to wait. That morning, Heyburn had handed down another long opinion, and Deborah Stallworth was on her way from the courthouse with copies. When she arrived, she passed them around the room, and everyone settled in quietly to read. Outside, a reporter was waiting for their reaction. After an hour, Carman emerged, smiling, and invited the reporter inside. “The decision was an affirmation of my DNA,” he announced. “This says black people are not inherently inferior.”
¹

In the opinion, Judge Heyburn began by noting that the case brought before him was “truly exceptional.”
²
Only once before had individual citizens tried to remove a desegregation decree against the will of a school board, and never had such a case been brought by African Americans, for “whose supposed benefit such decrees were entered.”

The legal problem, “so closely interwoven with social and moral threads, seems to defy an absolute solution,” the judge continued. Yet he must make a decision. Since 1975, he wrote, the Louisville schools had “succeeded admirably in meeting the original objectives of the 1975 desegregation decree.” The school district had been recognized as one of the most successfully integrated schools in the nation, and black achievement had risen substantially since the beginning of the busing program, if not to the level of whites. The arguments of the third-party plaintiffs about internal segregation and unequal outcomes were “thought-provoking” but constitutionally insignificant, the judge wrote, because they couldn't prove
that those differences were related to the school board's former acts of de jure segregation. The Advance Program had not even existed in the city in 1975, he noted. It had been created just after.

Heyburn ruled that the court order set down in 1975 requiring Louisville to desegregate its schools should be lifted. The Jefferson County School system was now officially a unitary school district. He also ordered that black students who had been prevented from attending Central because of their race be admitted. “Central has two admissions tracks: one exclusively for blacks, and another for everyone else,” Heyburn wrote, and that was a violation of the equal protection clause. Ironically, the special courses provided by magnet programs, devised as a way to promote desegregation through school choice, had become the potential downfall of the district's busing plan: In his decision, the judge hinted strongly that it might be advisable to lift quotas at other magnet schools, too.

Yet the judge left the rest of the desegregation plan intact. Now that the court decree was lifted, he used “strict scrutiny,” the concept used by judges examining scenarios in which constitutional rights were abridged, to examine whether it was justifiable for the district to use race in assigning students. He found that it was. Diversity in schools could be a “compelling interest” under the strict scrutiny standard, he wrote. The judge's copy of Gary Orfield's book
Dismantling Desegregation
, about the all-black schools and falling test scores in other districts that had returned to neighborhood schools, had emerged from the trial dog-eared and covered in notes. Desegregation's history and purposes would be “ill-served if courts make the concept of local control a one-way street to neighborhood schools,” Heyburn concluded.

Frank Mellen, the school district lawyer, later hypothesized that the judge had tried to save Central from closure, realizing what it meant to the black community, while trying to make as little impact on the rest of the system as possible.

The following day, CEASE held a formal press conference outside of Central High School.
³
Its members emphasized that their intent had never been to “resegregate” the system. But they were also unapologetic about their victory. Fran Thomas took the microphone. “This is the first time in history that black people have sued to get away from white people,” Fran said. “We want to be in control of our own destiny.” Gwendolyn Hopson
stepped up next, booming out in her church-choir voice: “The days of quotas must end. I feel like this is a new era.”
⁴

But for the Hopson family, things remained the same. Dionne didn't end up attending Central. She was entering her senior year at Pleasure Ridge Park in the working-class South End and it was too late for her to join the law magnet even if she had attended Central. It had been four years since she had received her letter of rejection from Central; back then, she had believed that once they entered the court case, justice would be swift. Instead, the case had dragged on for years. Her hopes for her high school education and eventual career as a lawyer were deflated. At Pleasure Ridge Park, she loved reading Shakespeare and running track, but these were not enough to hold her there. She was still mourning her father's death, and the As and Bs she earned in middle school had dropped to Ds. She would try to hold on for another year at Pleasure Ridge Park, and then look for a job.

For the other students in the Louisville schools, it was still unclear what the fallout would be. The school board hoped it would be minimal. The board members voted and decided not to appeal Heyburn's decision.
⁵
In the higher courts, it was more likely the plan could be completely overturned. In the meantime, the district began adjusting its magnet school admissions policies at four schools, including Central, to eliminate race as the deciding factor in admission. They hoped that the victory had been as satisfactory to Teddy Gordon as it had been for his clients.

Central's predicament under the racial quotas had received the most attention, but white students were turned away from their top-choice schools much more frequently than blacks. White families were the ones who called the district most often to complain, the school district representatives had explained during the hearings. Superintendent Daeschner predicted that if the plaintiffs won, “we will be sitting back in this courtroom I hope with this judge, but it may be another judge, with white plaintiffs asking the very question from the other side.” A few beats later, Gordon had interjected: “Did you just state under oath that whites are turned away from Male because of their race?”

VI

To the Supreme Court

Chapter 23

The woman sitting across the desk from Teddy Gordon was pretty—beautiful, even, he thought. Her long red-gold hair swished past her shoulders. She was tall and had a light spray of freckles across her cheeks. She seemed very smart, if a little shy.

The Central High School victory made Teddy well known around Louisville. In the three years since the judge's ruling, he had become the first stop for angry parents wanting to take on the school district with various complaints. He was in the midst of a case at that very moment to challenge the school district's entire desegregation plan, in fact. But he still had to pay his bills. Divorces, personal injury cases, and even traffic tickets were his bread and butter. Crystal Meredith had come to see him about a custody dispute with the father of her five-year-old son. Teddy's ears perked up when she said the heart of the conflict was the elementary school where the boy had been assigned.

Crystal had moved to Louisville from a more rural neighboring county in the summer of 2002, as her son was about to start kindergarten, so that he could enroll in the Jefferson County Schools.
¹
Her moving day was in August, and the school district wouldn't let her register until she was settled into her new home. It was a small but neatly appointed shotgun house on a quiet street near the border of the Highlands, a middle-class East End neighborhood, and Smoketown, a black neighborhood bordering downtown. As a result of their late registration, her son had been among the
last in line to choose a school. Crystal had hoped he could attend Bloom Elementary, two miles from their house. Instead, he was assigned to Whitney Young Elementary on Muhammad Ali Boulevard in the far West End, about fifteen minutes away.

He was one of only a couple of white children in his kindergarten class; most of his classmates were black or Hispanic, but that wasn't the issue. Crystal didn't want him taking the school bus—the stop was on a busy street—but it was also inconvenient to pick him up and drop him off. She wrote to the school district asking for a transfer to the school near their home, Bloom. She was rejected.

After she told the story to Teddy, he asked if she still had the letter from the school board. She did. The letter said that her request had been turned down because of the district's racial guidelines. Whitney Young Elementary needed a certain number of white students to maintain its racial guidelines, and losing Crystal's son would have tipped the balance. Under the district rules, kindergartners were exempt from the racial guidelines, but in this case, someone made a mistake. They should have checked the box saying that space was the reason for the rejection of the transfer request, not race. The mistake opened up an opportunity for Teddy, however. He was now less interested in the custody issue. He wanted to know if Crystal would join his lawsuit against the school board's desegregation plan as a plaintiff.

In October 2002, Teddy had filed a new complaint in federal court on behalf of David McFarland, a father of three boys who lived in Fern Creek, on the outer edge of the county.
²
McFarland was tall, with buzzed hair, wide shoulders, and the straight-backed bearing of a Marine, but he had a gentle, low-key personality.
³
He sold air-conditioning and heating systems for a living, and had graduated from Southern High School in 1977, just after riots had torn apart the South End in the aftermath of busing.

As a teenager, McFarland was embarrassed by the protests, and made friends with the black students who joined the high school basketball team. He didn't give the issues of desegregation or education in general much thought beyond feeling some sympathy for the players who had to wait for rides downtown after practice. Once his sons were born, however, he did look back with some nostalgia on the schools he had attended as a child, where discipline, respect, and the basics were emphasized.

In the 1970s, white activists like Joyce Spond had channeled their frustration with busing into an effort to preserve those values, and the traditional
schools had been born. By the 1990s, a network of traditional elementary schools that fed into traditional middle schools and then to the district's two traditional high schools, Male and Butler, was firmly established. Students complied with a dress code, and teachers were treated as the voice of authority. The Advance Program and honors tracks that many East End parents fixated on getting their children into were eschewed. Everyone at a traditional school was expected to learn the same thing, at the same pace. Discipline and patriotism were prized. The schools were wildly popular among the white middle- and working-class parents of Louisville's central and southeastern suburbs. For whites, the waiting lists to get in, which started as early as kindergarten, were long. For blacks, however, getting in usually wasn't a problem.

After the Central High School case, the school system had lifted the racial limits on four of the city's magnet schools. But the district left the caps on the traditional schools. The traditional schools, by definition, were meant to be just plain schools.

David believed the traditional program was perfect for shaping his boys into respectful, well-behaved young men, but when he applied, one of his sons was rejected. David was not a confrontational person, but he was frustrated. It didn't make sense to him that siblings would be divided into different schools. He wrote a letter to Pat Todd, the school assignment director. He received a form letter in return. He wrote another, and made some calls, but was rebuffed again. Next, he sat down at the computer. The Central High School case popped up after a quick Internet search, along with Teddy Gordon's name. Not long after, he trekked down to Teddy's downtown office building. In a matter of weeks they had filed a complaint in federal court.

Teddy also wanted a client who would represent the students in the regular schools in the rest of the district, ideally an African American plaintiff; all of the other parents were white, and he still saw his mission as representing the interests of black students. But he didn't have much time, and he didn't expect Crystal Meredith to be the center of the case anyway. Neither did she. On May 2, 2003, Teddy added her to the list of parents in his complaint.
⁴

Two weeks later, a black woman with twin sons denied placement in their neighborhood elementary school showed up at his office, angry and ready to go to court. But by then it was too late. The judge denied Teddy's
request to add her, leaving Crystal as his sole client representing the children of the regular schools.

The school district's lawyers petitioned for Judge Heyburn to handle the case, and the trial was set for December 2003, with Heyburn once again presiding.
⁵
Many of the same characters were scheduled to testify: Superintendent Daeschner and Pat Todd would speak for the school system; the Harvard professor would return to speak about the benefits of desegregation. This time, Teddy offered no expert witnesses—he had asked Ward Connerly, an anti–affirmative action activist from California to testify, but Connerly couldn't make it.

Still, Teddy was energized. The case was even bigger than the Central High School case that had come before. The black plaintiffs and activists, Carman Weathers, Fran Thomas, Dionne Hopson, and Ja'Mekia Stoner, and the anger and disillusionment that fed their cause, were quickly fading from the public memory as attention turned to the group of white families taking on Louisville's desegregation system.

Teddy took his courtroom theatrics to a new height, dropping his notebook several times and bending to tie his shoe in order to throw off the soft-spoken Harvard professor, Gary Orfield. Later, he would describe these moments as some of his proudest during the trial.