Divided we Fail

by Sarah Garland

  To Carman and the others, the small number of black students in Advance Program classrooms, the disproportionate number of blacks suspended from school, and the stagnation of their achievement on tests confirmed that the integration plan wasn’t working and had never worked. To counteract the problems they believed desegregation had brought about, they proposed an Afrocentric magnet school in Louisville, probably with Central in mind as the perfect location, but the other committee members quashed the idea.41

  In August 1994, frustrated by the squabbling in the monitoring committee, Carman sent off another op-ed to the Courier-Journal. “From the very beginning of African-American culture in America, there have always been blacks who thought that the best way to survive in America would be to disappear completely, leaving no trace at all that there had even been an Africa, or slavery, or even, finally, a black man,” Carman wrote. “Integration cannot work when the powerless conscious of blacks integrates with the consciousless power of whites.”42

  When the newspaper reported a month later that ten black students had been transferred out of Central so that the school could comply with the school system’s racial guidelines, Carman, Fran, and Robert received the news like a slap in the face.43 Two years earlier, the school had an enrollment of more than 1,400 students, thanks in part to a new dynamic principal, but during the fall of 1994, that number had dwindled to about 1,100. They knew a teacher inside the school who reported that people were nervous about the school board’s intentions: Riccardo X.

  Mr. X, as his students now called him, had moved around from school to school for a decade after his first traumatic year of teaching in 1975 near the heart of the city’s busing protests in the Bittersweet Shopping Center. As a young boy in the projects he had dreamed of following his hero, Muhammad Ali, to Central, before he ended up attending Male High School instead. Now X was finally there, and he had reason to be content.

  After years of battling principals to let him teach a black history course, he had found a principal, Harold Fenderson, who was thrilled to have a black history teacher, and at last he had students who were enthusiastic about the subject. He organized students to participate in a Liberation Bowl, a black history quick-recall contest in which they competed with teams from around the country. His team won six national championships. The local Liberation Bowl racked up $150,000 in scholarships for students. He also took students on “sojourns” to cities around the country to tour famous sites in black history. He was one of the most popular teachers at the school. But he was worried. If the number of students continued to drop, it would be easy for the district to close Central. He reached out to the members of CEASE and asked how he could help.

  Over the next two years, they organized, attending board meetings and pushing for change from the pulpit of the monitoring committee. They also laid the groundwork for a lawsuit. Finding plaintiffs wasn’t difficult. By 1996, many black parents were infuriated by Project Renaissance, the choice-focused student assignment plan that Ingwerson had introduced three years earlier.44 Black students were more than five times more likely to be rejected from the new magnet programs that West End schools had implemented to entice white students downtown. Not enough white students took the bait, so even as many black students were blocked from attending their neighborhood schools, enrollments in the West End were dropping. Central’s shrinking student population now seemed to be a problem trickling down to the younger grades.

  Meanwhile, suburban schools were expanding—some were in such demand they opened portable classrooms to accommodate the growing student population.45 The new superintendent, Stephen Daeschner, made some tweaks to the assignment plan in 1996 after a series of critical stories in the newspaper pointing out the distress in West End schools.46 But not all black parents were placated.

  CEASE demanded that the school district raise the ceiling for the percentage of black students allowed at each school and that more black children be included in the Advance Program. Gradually, new members were enticed to join. Deborah Stallworth, a nurse with a seven-year-old son, knew Carman Weathers from church and Fran Thomas from her activism in the neighborhood.47 She wanted her son to attend the school down the street from her West End home, but it was oversubscribed with black students. Instead, he was assigned to a struggling school in the white, working-class neighborhood of Portland, two miles to the north. She was incensed. Stallworth campaigned relentlessly until the district finally agreed to move her son. Then she poured her energies into CEASE. Stallworth, organized and passionate, was soon appointed the group’s coordinator.

  Robert’s niece Sandra Hampton signed up to be a plaintiff in CEASE’s plan to sue the district.48 Her son had applied to Central and been turned away—although she was pleased with his assignment to Butler, one of the discipline-focused traditional high schools, instead. Jacquelyn and Ja’Mekia Stoner, Gwen and Dionne Hopson, and three other disgruntled families also joined CEASE that fall and signed up to be plaintiffs in the lawsuit.

  Finding black parents angry at the system was easy. The group’s most difficult task was finding a lawyer. In 1998, two years after CEASE had held its protest outside Central’s doors and recruited the Hopsons and Stoners, they were still looking. They knocked on the door of nearly every black lawyer in Louisville. Some suggested fees that were far beyond their meager budget—the lowest retainer they were offered was $10,000. Many black lawyers simply turned them away, horrified at the idea of bringing a case against desegregation. The prospects for their lawsuit seemed about as bleak as the plan to open an Afrocentric school in Louisville.

  Chapter 18

  The law offices of Teddy B. Gordon occupied a small, two-story brick building marooned among acres of parking lots and skyscrapers in downtown Louisville. The diminutive building was a remnant of earlier iterations of the city, when the street had been lined with retail stores and saloons, before business headed to the suburbs and wrecking balls transformed the streetscape. Somehow, the building had survived.

  In the winter of 1998, the members of CEASE called Gordon, on a tip from a friend that he might be willing to take the Central case.1 Inside the building, a small reception area was nestled under a staircase leading to the second floor. Instead of law books, the shelves in his office held a collection of dozens of teddy bears in every shape and size, each one labeled with a child’s name. They were souvenirs from the many private adoption cases Gordon had handled over the course of his three-decade career.2 In addition to adoptions, he did no-contest divorces, personal injury cases, and workers’ compensation claims. In the early 1990s, he had made the local news for representing an overweight couple who injured themselves on a water slide at Louisville’s amusement park, Kentucky Kingdom.3

  On a few occasions, however, his cases had veered into civil rights law. In the early 1990s, he represented a white police officer who said he had been discriminated against because several black officers were promoted before him.4 He also argued the case of a black police dispatcher who said his supervisor had used racial slurs.5 When CEASE first contacted him, he had been making headlines in a local election case. His client, an African American candidate for city alderman, sued her opponent for distributing chicken wings to poll workers on Election Day.6 Gordon won the case and got his client’s opponent removed from office, although voters reelected the man shortly after.7

  A short man with a Kentucky twang, Gordon fit the stereotype of a small-town Southern lawyer, the last person one might expect to support an Afrocentric cause. His jowly face and expressive gray eyebrows called to mind the actor Charles Durning. He wore off-the-rack J. C. Penney suits and had a large American flag painted on the side of his office building. His style was folksy. He seemed like a conservative good old boy. But he wasn’t really.

  Gordon had deep liberal roots. His parents were Latvian Jewish immigrants and he had been raised in the East End, Louisville’s left-leaning, upper-middle-class enclave. His father had fled the pogroms, and he related to his son the fat
e of several relatives left behind who had been murdered and hung from meat hooks. The family ran a grocery store in the West End, a few blocks southwest of Central High School. As a kid, Teddy commuted to the store after school and delivered groceries to the surrounding black neighborhoods.

  His parents weren’t particularly political, but Teddy recalled them repeating adages such as “Don’t say anything so bad that you can’t go talk to the person again,” and instilling in him that their business depended on treating their black customers well. When he was in high school, he befriended a younger African American boy who worked at the store, Robert Jones, whom Teddy called Jonesy. In the 1960s, Teddy played football for Atherton, the traditionally white high school that served the old wealthy neighborhoods of the East End; Jonesy played basketball for Central. One winter, Teddy brought some of his football friends to watch a matchup of the Atherton and Central basketball teams. Jonesy was playing, and Teddy rooted heartily for him from the stands. But around him, he heard several Atherton students yelling out racial slurs, and saw them give him angry glances. He was shaken. He had watched the violent scenes of dogs and hoses aimed at civil rights protesters on television, but he had never witnessed overt racism in person before.

  Still, as a teenager, Teddy was less concerned about the civil rights movement and more concerned about the Vietnam War and the possibility of getting drafted. He was against the war, and the antiwar protest politics of the 1960s stayed with him. In college, he majored in Russian—a nod to his family heritage—but his goal was to go to law school and perhaps someday hold political office. After graduation, he got married and eventually found a job teaching Russian in the Louisville public schools. He juggled his teaching job with classes at the University of Louisville’s night law school. It wasn’t a prestigious program. Standards for admission were low, but it was cheap. After a few years, Teddy had his degree and passed the bar, but he was never satisfied with the idea of becoming a lowly ambulance chaser.

  In 1971, Gordon ran for state representative as a far-left Democrat.8 He would almost certainly have lost badly, but on Election Day he was disqualified, along with his rivals, because they had mistakenly signed up to run in the wrong district.9 It was the first of five unsuccessful local political campaigns he launched over the next two decades.10 This dogged persistence fueled his law practice, too. He savored the role of the underdog and wore his lack of Ivy League credentials as a badge of honor. Losing a case, or a campaign, just made him more determined to win the next one. To gear up for a tough day in court, he blared the Tom Petty song “I Won’t Back Down” from his office computer. By the mid-1990s, after winning a workers’ compensation case in the Kentucky Supreme Court, he thought he was ready to go after his life’s goal, one that provoked laughter when he confessed it to his friends: he wanted to argue a case in front of the US Supreme Court.

  When the members of CEASE—composed of Carman Weathers, Robert Douglas, Fran Thomas, and a half dozen other West End old-timers—arrived on his doorstep that winter, Gordon was savoring his success in the case of the chicken-wing-distributing alderman. He was shocked that they wanted him to sue the Jefferson County Public Schools over the desegregation plan at Central. “Are you crazy?” he responded. “I voluntarily bused my two kids.” He thought of Jonesy, who had little choice but to attend Central. “Isn’t sending them back to Central a bad thing?”

  The CEASE members patiently explained that, in their view, Central had become one of the best schools in the district under the leadership of a new principal, Harold Fenderson, who had rekindled and expanded the school’s magnet programs. The school offered nursing, law, and business courses, and internships at Pizza Hut and SuperAmerica convenience stores.11 It had high graduation rates. The school was in high demand among black parents. But desegregation’s racial limits meant that most black students couldn’t get in. High-achieving students like Dionne Hopson and Ja’Mekia Stoner were turned away. Instead of Central, they and many others attended schools in the southwest of the city, where some white families were just as poor as those living in the black West End. Dionne was at Pleasure Ridge Park, and Ja’Mekia was at Shawnee, where graduation rates were significantly lower than at Central. Meanwhile, the other good high schools in the city, Ballard, Male, and Manual, had tiny percentages of black students compared to their lower-performing counterparts.

  Gordon listened. His sense of right and wrong was offended. He had never thought much about the desegregation plan; like many liberal East Enders, he accepted it as the moral thing to do. But listening to CEASE’s view of the system, suddenly it just didn’t seem right. He also saw a glimmer of potential. This could be his Supreme Court case. He had little experience in civil rights or education, but CEASE was desperate for a lawyer to take its case. What Gordon lacked in experience and credentials, he made up for in feistiness and ambition. He was also cheap. In the spring of 1998, Gordon told his new clients that he would charge them $1 as a retainer; he hoped they could recoup his fees in civil damages.

  On April 22 that year, Teddy B. Gordon filed the Central case in federal district court.12 He listed Sandra Hampton, Robert Douglas’s niece, as the lead plaintiff, followed by Clara Hilliard, Gwen Hopson, Lisa Logan, Joan Shields Merritt, and Jacquelyn Stoner. By then, Central’s enrollment had dropped to nine hundred students. “If the seats are open, why can’t our children have them?” Jacquelyn Stoner asked a local newspaper reporter the day the case was filed.13

  Six months earlier, Lyman Johnson had died at the age of ninety-one. He had been unable to keep his vow to stay alive until one hundred to fight the people who wanted to send “the wagon rolling back down the hill.” Gordon and the members of CEASE were insistent that they wanted only to adjust, not end, the desegregation plan. “Integration can be defined as over 50 percent,” Gordon told the press.14 In his complaint, Teddy wrote that “only African American students are denied their first choice as to where to attend high school within the Jefferson County School System, based on their race, and only African American students are involuntarily bused to a high school other than their first choice.” He also pointed out the racial disparities in the Advance Program, where only 11 percent of students were black. “Contrary to the admitted goals of integration and diversity of the Board, African-American students are denied an equal opportunity to gain entrance into the advanced program based on the systemic discrimination of the Defendant.”15 The complaint was short, only five pages, and it would also turn out to be rife with problems.

  Judge John G. Heyburn seemed like a lucky draw for the plaintiffs. Heyburn had conservative credentials. He was the scion of an established legal family in Louisville.16 His father and grandfather were both partners in one of Louisville’s most prestigious law firms, and an office tower downtown bore his family’s name. He had begun his career working on the campaign of Republican senator Mitch McConnell in 1977, when McConnell first ran for a local county position. President Bush appointed Heyburn to the federal bench in 1992, and Chief Justice Rehnquist picked him to work on budget issues for the Judicial Conference of the United States, a group that disseminated information to federal judges.

  Growing up in Louisville, Heyburn attended Chenoweth, an East End public elementary school near several upper-middle-class enclaves. The school had opened in 1954, and was desegregated while Heyburn was there.17 He could remember when the handful of African American students first appeared in his classroom. Later, however, his parents moved him to private school and then boarding school in New England. He graduated from Harvard and then the University of Kentucky Law School. His first job out of college was in the West End, working at the Park Duvalle Community Health Center. The medical center took up several buildings in the Cotter Homes, next door to the housing project where Riccardo X grew up, and had been founded after local activists agitated for better health services for the isolated project residents. During the summer, Heyburn started a tutoring program for the local kids, and got to know Lyman Johnson’
s son, who also worked there, and Lyman Johnson himself.

  Heyburn sent his own children to one of the city’s most exclusive private schools. Despite his early involvement with the Republican Party, it was difficult to decipher Heyburn’s politics. In one of his most important cases, he had struck down a partial-birth abortion ban in Kentucky. He had also dismissed a corruption case against a shady national lottery company.

  In May, the school district responded to the case. A large private firm with offices on the upper floors of a skyscraper in downtown Louisville and satellite offices in other cities around the country represented the Jefferson County Schools. Shelves of books, polished wood furniture, and rows of framed awards and degrees decorated the rooms. Frank Mellen, a lean, serious man with owlish glasses and a Harvard law degree, was the lead attorney.18 Byron Leet, who would lead the questioning at the hearings, was more dapper, with fashionable clear-framed glasses, prematurely silver hair, and a more jovial disposition. He had graduated from Vanderbilt.19

  Less than a decade earlier under Superintendent Don Ingwerson, the school district had fought a long campaign to loosen the racial limits on its desegregation plan and reduce the use of forced busing. But unlike many school districts elsewhere, which had been eager and even proactive in trying to end busing plans, the Jefferson County Public Schools had never tried to rid itself of desegregation entirely. The board paid attention to the polls showing that a majority of parents supported the plan. And the board members believed desegregation was actually an important educational goal. They also believed that if they gave in to Carman Weathers and his fellow activists and let Central exceed the racial limits, the entire plan would eventually collapse. A higher concentration of black students at one school would decrease the number available to attend schools in the predominantly white suburbs, thus increasing segregation everywhere, not just at Central. In addition, if Central were allowed to become primarily African American, it would set a precedent for schools and students elsewhere to clamor for exemptions from the desegregation rules.