Divided we Fail (28 page)

The hearings lasted five days, and most of the time was spent arguing over whether the traditional schools offered a special benefit to students or not. David McFarland took the stand for about twenty minutes to tell his story. By then, all of his sons had been admitted to traditional programs, but he had decided to continue with the case on principle. Crystal spoke for less than five minutes. No one mentioned the clerical error at the center of her case: that her son had really been denied because there was a lack of space, not because he was white.

The following summer, on June 29, 2004, Judge Heyburn issued his decision. This time, the school district won. The racial guidelines could remain intact.

Heyburn cited a Supreme Court ruling of a year earlier to justify his decision. On June 23, 2003, the Rehnquist court had thrown out the University of Michigan's affirmative action plan for its undergraduate college. Under the system, underrepresented minorities who applied were given a certain number of points that tipped the scale in favor of their admittance. In
Gratz v. Bollinger
, the Court ruled 6 to 3 that the system wasn't “narrowly
tailored.”
⁶
In other words, it was focused too heavily on race for its own sake.

But in a related case also brought against the University of Michigan,
Grutter v. Bollinger
, Justice Sandra Day O'Connor joined the liberal side of the Court.
⁷
The majority found that the university's law school could keep race as one of its admissions factors, because it was part of a system that was much more fluid than the one in the undergraduate school. Admissions officials kept race in mind as they looked at a candidate's application and tried to create a “critical mass” of minorities in each entering class of law students, but it wasn't so blatant as awarding points for being black or Hispanic. Diversity was also a useful part of a law school education, the justices argued. It “promotes learning outcomes and better prepares students for an increasingly diverse workforce, for society, and for the legal profession.”

Likewise, Heyburn argued that the Louisville school district had good reasons for maintaining integrated schools. In Louisville, the school board had a reasonable belief that “school integration benefits the system as a whole by creating a system of roughly equal components, not one urban system and another suburban system, not one rich and another poor, not one Black and another White,” the judge wrote. Once again, Heyburn also brought up the irony of a court forcing a school district to stop doing what it had been ordered to do only a quarter century earlier.

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 controversy 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.