Divided we Fail (29 page)

In 2005, the same summer the Sixth Circuit denied his appeal, Gordon got lucky. O'Connor announced she was stepping down.
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President Bush nominated John Roberts, a reserved fifty year old with a firmly conservative track record, to take her place. In September, Chief Justice William Rehnquist died in office after a battle with cancer, leaving another vacancy. The Bush administration elevated Roberts to the chief justice position and named Samuel Alito, a former Reagan Justice Department lawyer, to take O'Connor's place. In just a few months, the Court swung sharply to the right, leaving Justice David Kennedy, previously counted among the conservatives, as the Court's swing vote. The changes came just before Teddy filed his appeal.

Yet victory for Teddy wasn't a sure thing. In the University of Michigan Law School case, Kennedy disagreed with O'Connor and signed onto the conservative wing's minority dissent written by Chief Justice Rehnquist, which argued that the school's use of race was unconstitutional. But Kennedy also took the trouble to write his own separate opinion. In it, he distanced himself from the conservative judges, arguing that race might play a role as a “modest factor among many others.” He was frustrated that the liberal wing of the Court refused to scrutinize the law school's use of what he saw as a racial quota, however. A racial quota, Kennedy wrote, “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”

At the time of the university cases, Kennedy's separate opinion was largely irrelevant. But three years later, he was the tiebreaker. Gordon's prose may have been clumsy, but his appeal hit the same points about racial quotas that Kennedy had argued in his Michigan dissent. In the summer of 2006, Gordon's appeal was granted. The oral argument was set for December.

Another desegregation case reached the Court at the same time. The second lawsuit was based in Seattle, where parents were also disputing racial caps in the city's schools. Seattle had never been under court order to desegregate. The city had voluntarily implemented a plan to boost racial diversity in the schools after the NAACP sued in the early 1960s.
¹³
Seattle's system was more limited in scope than Louisville's, and the city had never
implemented forced busing. Instead the district used race as a tiebreaker at high schools with waiting lists, giving preference to minority students if the majority of students at the school was white. In 2000, a group of white parents whose children were unable to get into the school of their choice sued the Seattle school district.

The Seattle plaintiffs, organized by a group called Parents Involved in Community Schools, were visibly enthusiastic, in contrast to Teddy's one rather reluctant plaintiff.
¹⁴
A large law firm, Davis Wright Tremaine, with international offices and more than five hundred attorneys, took on their case pro bono.
¹⁵
After the case was appealed, the Seattle district stopped enforcing the plan to wait for a final judgment from the Supreme Court.
¹⁶

Once the Supreme Court agreed to hear his case, Teddy was bombarded with offers of help. A right-leaning think tank in California, the Pacific Legal Foundation, flew him out to practice in a moot court. His new conservative allies suggested replacing him with a more experienced lawyer with conservative credentials. But Teddy, still a staunch Democrat, was determined to argue the case himself.

In an amicus brief submitted to the Supreme Court on behalf of the Louisville and Seattle school districts, 553 social scientists argued that racial diversity was better for students of all races when it came to instilling democratic values and improving academic performance—slightly more than the number of researchers who signed a similar brief in support of the 1954
Brown
case.
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They cited a huge body of evidence in favor of desegregation compiled since the famous “doll studies,” which the NAACP had used in
Brown
to show how segregation damaged the self-esteem of black children. The research showed that racial diversity improved critical thinking skills, increased the academic performance and graduation rates of African American and Hispanic students, and improved their chances for success later in life. Research by Eric Hanushek, a Stanford professor whose views leaned to the right in education policy, found that decreasing the ratio of black students in a school was correlated to improved test scores for black students.
¹⁸
A survey of eleventh graders in Louisville suggested that racial diversity had a positive impact on aspirations and critical thinking for both blacks and whites.
¹⁹

The Pacific Legal Foundation, which had helped coach Teddy over the summer and fall, argued in its own amicus brief—much longer than Teddy's
own—that the social science research was disputed, and that it rested on “uncertain footing.”
²⁰

In the fall, Teddy bought himself a new suit at J. C. Penney and packed his lucky red underwear. The first weekend of December, he drove to Washington, DC, with members of his family. Crystal did not accompany him. He believed she would be overwhelmed by the media attention and had suggested she stay home.

Early on the morning of December 4, people lined up outside the Supreme Court.
²¹
The temperature was below freezing, but people had spent the night in hopes of getting a seat. Some were there to protest. They worried that a ruling ending Louisville's and Seattle's desegregation plans would reverse the gains achieved since
Brown v. Board of Education
. Others were excited, hoping that an opinion in favor of color-blind government would help heal America's racial divide. As the spectators were seated, Teddy strode past them to the podium in the Court's chamber carrying a single sheet of paper.
²²
On it was a typed outline of the constitutional concepts he wanted to cover. A list of court cases was jotted in pen in the margins. He quickly scrawled the names of the justices, in the order they were seated, on the back. The room felt small. Mellen stood just a few feet away, and the faces of the justices loomed above.

Teddy went first. He started off strong: “Crystal Meredith wanted to do what most moms and dads do all across this country. She wanted to put her son's hand in hers and walk around the corner and enroll her son in school,” he said, his voice rising and falling in a steady rhythm.
²³
But then he seemed to lose the thread of his argument. “But the enrollment, there was a barrier, and the pickaxe, that barrier was personified as a quota. It wasn't near any one of the percentages or tipping percentages that the quota system in Jefferson County public schools applied. But she was not allowed in.”

Ruth Bader Ginsburg jumped in before he could go further. One of her first questions was why Crystal hadn't enrolled earlier. She had moved from Florida, Teddy said. It was unclear if he had forgotten that she had grown up in Louisville and merely moved across the county line, or whether he made it up on the spur of the moment to make the case sound better. From there, he got in few words as the liberal wing of the Court pounced on the irony of the case: Wasn't it an anomaly, Ginsburg asked, that “what's constitutionally required one day gets constitutionally prohibited the next
day?” Teddy rebutted that desegregation “hasn't worked,” and finally hit his stride as his argument came to a close.

“Educational outcome is the only key to unlock the chains of poverty,” he said, reading from the page in front of him. “African Americans in Jefferson County, Kentucky, the largest percent go to the worst performing schools. The lowest percent go to the better performing schools. That can't be constitutional.”

Frank Mellen faced an onslaught of questions from the right-leaning justices, Alito, Roberts, Scalia, and Kennedy. Thomas, as he usually did during oral arguments, kept quiet. Mellen's focus, however, was on winning over Justice Kennedy.

Earlier that morning during the arguments in the Seattle case, Kennedy had suggested that the limitations on choice bothered him. “The question is whether or not you can get into the school that you really prefer,” he said. “And that in some cases depends solely on skin color. You know, it's like saying that everybody can have a meal but only people with separate skin can get the dessert.”
²⁴

For both lawyers, the hour seemed to last only a few minutes. Before it ran out entirely, Teddy stood up again. He had reserved two minutes of his time, and now he had the last word. He used it to read the last paragraph typed on his piece of paper: “All I can say is that, may this day be the embryonic beginning of Dr. King's dream, as paraphrased, that all children are now judged by the content of their character and their education, not by the color of their skin.”

Chapter 25

Teddy Gordon was going about his usual business, handling a traffic ticket for an old client, when the Supreme Court handed down its ruling in the Louisville and Seattle cases on June 28, 2007, the last day of the Court's session that year. Within a few hours, he was presiding over a press conference, flanked by Crystal Meredith and Deborah Stallworth.
¹
They had won.

In the majority opinion, Chief Justice Roberts condemned the Seattle and Louisville desegregation plans as “extreme,” suggesting that they were in fact vestiges of the discrimination they were intended to uproot.
²
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote. In a concurring opinion, Justice Thomas was also sharply critical, comparing Seattle and Louisville to the five segregationist school districts in the
Brown
case. As to the school districts' arguments that racial integration promoted academic achievement and long-term career outcomes, Thomas wrote, “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.”

Justice Kennedy agreed with the majority's decision, but only in part. He wrote his own concurring opinion, and because he was the swing vote, it was his opinion that mattered most. He did not approve of the Louisville and Seattle plans, but wrote that racial integration was still a compelling government goal. “That the school districts consider these plans to be necessary should remind us that our highest aspirations are yet unfulfilled,” he
wrote. “But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome.” While Justice Harlan's call for color blindness in his
Plessy v. Ferguson
dissent was a noble aspiration, he wrote, in the “real world” it was not a “universal constitutional principle.”

School districts that wanted to reduce the achievement gap could not ignore race, his argument suggested. But Kennedy believed Louisville's racial guidelines were too “broad and imprecise,” basing this belief mainly on the unexplained clerical error that had prevented Meredith's son from attending his elementary school of choice.

Teddy was triumphant at the press conference. “All the schools are equal,” he told reporters. “We will no longer accept that an African-American majority within a school is unacceptable.”
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Crystal stood up and read a short statement in shaky voice. “The day my wonderful son was born, I promised I would do everything I could to do what's best for him,” she said. “Going to the US Supreme Court is not really what I had in mind.” But it was “exactly where I had to go to keep my promise,” she added.
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Afterward, Deborah Stallworth, the only member of CEASE who attended the press conference, gave her a hug.

The other members of CEASE didn't show up. They felt similarly to Riccardo X: the
Meredith
case wasn't their fight. By that time, Central appeared to have regained some of its former glory: once again, it functioned much like a prep school for the black community's most promising students. Its students tended to come from lower-income families, but the school selected them based on grades and recommendations, and even after the departure of its beloved principal, Harold Fenderson, Central's graduation rate had held steady.
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Carman Weathers, Fran Thomas, Robert Douglas, and the other members of CEASE were pleased at their victory and saw CEASE's work as done.

After the Central High School case, Fran Thomas left her position as director of Anne Braden's group, the Kentucky Alliance against Racist and Political Repression. The case had highlighted their differences: Fran was fighting for black self-determination; Anne had fought on the side of the desegregationists. Fran couldn't bring herself to retire from activism, however. Instead, she joined the board of the NAACP, where she occasionally
clashed with members over support of integration, but was otherwise satisfied that she was still in the thick of the fight against racism.

Anne Braden, who remained in the same West End house she had lived in fifty years earlier, died in 2006. Not long after, Fran and her husband moved from their West End home overlooking the Ohio River, where CEASE had first formed, to an immaculate new colonial-style house with a large porch and lawn. This time, the house was not deep in the suburbs, but on the same land that had once been stripped during urban renewal and turned into the housing projects where Riccardo X grew up. The government had come back to the neighborhood, this time to build attractive, single-family housing that would draw a mix of incomes back into the city. It seemed to work. Middle-income families moved into a pocket of the city once known as a haven for gangs, and a few white families even moved in, too. Fran picked a house on a quiet block named after her former teacher and adversary, Lyman T. Johnson.