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BUSING IN THE BALANCE
By Joe Atkinson

November 2006




Illustrations by Cat Scott


In the beginning, all Crystal Meredith wanted was to transfer her son to kindergarten at Bloom Elementary School. Now, the eyes of the nation are on her involvement in a lawsuit — the one she joined when her son Joshua was instead forced to remain at a West End school because of the county district’s racial guidelines. And the case’s fate could affect where millions of students around the nation attend class.

"Joshua McDonald was denied access to Bloom because he is white," said Ted Gordon, the lead attorney on Meredith’s case. "At that time, his 14th Amendment rights to equal protection were violated. . . . So the basic argument of this case is: Should race be used to deny kids access to their neighborhood schools?"

In early December, the United States Supreme Court is expected to take up that question, likely making it an example for all schools that wish to use race as a determining factor when placing students in schools. The high court’s decision could reverse the course set after a 1975 case, when a federal court forced Louisville’s public schools to further integrate by busing students away from their neighborhood schools to achieve more racial balance in student bodies. This time, the Supreme Court will weigh whether a "voluntary" student placement program — one not ordered by a court — is constitutional if it bases some of its assignments on race.

According to many court watchers, civil rights activists and school officials around the country, this case is the most significant on the court’s fall docket. Depending on the decision, some say it may even be the most important Supreme Court ruling in the past several years.

Why?

"The Supreme Court is likely going to say, definitively, whether or not schools can use voluntary desegregation programs," said Davison Douglas, a judicial scholar and professor at William & Mary School of Law. "There are a lot of districts around the country that do this, because the patterns of residential segregation are such that, if you simply assign kids to schools based on geography, you would not have a very racially or ethnically diverse classroom. If the court says this (program) is not permitted, it will contribute to a greater racial and ethnic homogeneity in a lot of districts around the country."

Many say that would be a retreat toward racial segregation in education.

In 2002, Joshua was assigned for his kindergarten year to Young Elementary School, at 3526 W. Muhammad Ali Blvd. in the West End. According to his mother’s lawyer, Meredith wanted to transfer him to Bloom, at 1627 Lucia Ave., for one simple reason: It was close to home. But she didn’t get her wish; according to Superintendent Stephen Daeschner, the school was full.

It also was bumping up against the district-imposed limit on racial makeup. As part of the current student assignment plan, most schools in the county (including Bloom) must have a minority component of between 15 and 50 percent. Bloom was knocking against that 15 percent floor when Joshua was turned away. Instead, he was required to stay at Young.

That outcome has been "fairly unusual," according to Daeschner. "We can generally accommodate the parents," he said.

Specifically, according to figures provided by the district, 83 percent of African-American applicants received their first choice for elementary schools in 2005-2006, while another 7 percent attended their second choice. That same year, 92 percent of all other elementary school students received their first choice, and 3 percent attended their second choice.

Often, as happened in the Meredith case, those who don’t get one of their top choices have their problem solved in a succeeding school year. Joshua was admitted to Bloom for his second-grade year and is now a fourth-grader at the school.

"We solved her problem; she eventually got (her son) into the school she wanted to get into," Daeschner said. "But it’s a lawsuit that keeps moving forward because people want to attack the overall basis of this program, in my opinion."

Gordon said the complaint has gone forward because, in his legal opinion, Joshua’s rights were violated. For two years, he was held out of Bloom Elementary. At least in part because of his race, he was forced into a 90-minute roundtrip bus ride — or ride with his mother — to get to and from school every day, instead of attending nearby Bloom. And no matter how rare it may be, this happens to students every year, Gordon said.

The same fate befalls students who are black, white, Hispanic or of other races, he said. (The court ordered that Meredith’s name be on the case, though several other families also are represented.) That her son isn’t the only plaintiff, coupled with a desire to protect her son, is how those representing her explain why Meredith was not made available to be interviewed for this story. (She was available, and allowed a photograph of her and her lawyer to be shot, for an Oct. 10 Courier-Journal story, however, and is considering other interviews for television.)

Gordon will be in the limelight when he takes his case to Washington, but he won’t be in the clover. His legal fee from Meredith: $1.

"Joshua McDonald is merely representative of a class that includes African-Americans, Native Americans, Hispanics and others," Gordon said. "They all wanted to stay within their neighborhood schools and were denied access because of their race.

"This is about equal educational opportunity."

Ask the other side what they are fighting for and the answer sounds the same.

"This suit will deny equal access in education," said Raoul Cunningham, executive director of the National Association for the Advancement of Colored People’s Louisville branch. "If (Meredith) should win, the schools would be segregated; all the schools on the West End would become poverty schools, and those kids may not have a choice to get out."

The picture painted by Cunningham and others who come down on the Jefferson County Board of Education’s side in the case of Meredith v. Jefferson County Board of Education is something of a doomsday scenario: segregated, poverty-riddled schools in lower-income areas with poor facilities, inadequate textbooks and not a qualified teacher in sight.

At present, JCPS puts 830 buses on the road every day, shuttling 59,000 students to and from school. Thousands of those (an exact number is not available) are being taken to schools other than their neighborhood schools. This is done for various reasons.

One reason, of course, is race. In order to maintain the 15 to 50 percent minority standard in each school, some students have to be bused outside their neighborhoods. Another is specialization. The Jefferson County system includes 13 "magnet" schools, which specialize in one or more areas of study, as well as magnet programs and career academies within some of its other schools — all of which draw attendance from throughout the county. If a student is interested in a career in medicine, for example, he or she might attend Central High School, which has a curriculum geared in that direction; those interested in international studies might want to attend Atherton High School.

"We use multiple criteria to assign students," Daeschner said. "We look at where space is available. There may be a special-education program for students with certain needs, or they may need certain classrooms, or the student may have English as a second language. So there are multiple criteria we use to try to fill our schools, and to create some kind of balance, because all of our schools are not located in the places they ought to be."

The resulting system, according to a study by Harvard University professor of education and social policy Gary Orfield, has helped make Kentucky’s schools the most integrated in the nation. That’s because so many of Kentucky’s African-Americans reside in Jefferson County.

"The reality of the situation is, if you’re black and you live in Kentucky, you probably live in Jefferson County," said June Hampe, a specialist in student assignment with the Jefferson County Public Schools. "With the exception of Lexington and some in Covington or Owensboro, black students are few and far between. And in the smaller communities, you can’t segregate them because there is only one school in the area.

"So if we do a good job, then the whole state goes with us."

Such a distinction likely would not survive if the Supreme Court rejects the program.

"Neighborhood schools today will be impoverished, racially segregated schools, because (Jefferson County’s) neighborhoods are not integrated," Cunningham said. "And you’re not only talking about race — you’re talking about poverty. You’ll have East End Louisville schools that are affluent, 99 percent white schools; then, you’ll have West End schools impoverished, with 90 percent of the kids on free-lunch programs. Those schools will have all of the stigmas that go with poverty."

According to several experts, so could many other schools across the country.

Davison Douglas, a scholar at the William & Mary School of Law, noted that "a lot" of districts around the country (though he didn’t know how many) use voluntary desegregation plans like Louisville’s. One of those other programs — in Seattle — also is being challenged and that case has been lumped with Louisville’s before the Supreme Court this fall. Should the Louisville and Seattle programs be ruled unconstitutional, all of those other programs around the country also would be subject to the ruling, Douglas said. That, said NAACP Legal Fund assistant counsel Anurima Bhargava, would lead to school segregation across many parts of the
country.

Certainly, Jefferson County would be among those where widespread segregation could return, Hampe said, because residential patterns in the community are largely segregated. She said that "things have loosened up a bit" since Louisville’s court-ordered program began in 1975, but pointed out that, when the school district analyzed the makeup of neighborhoods in the late 1990s, races remained largely separated. "What we found is that the community’s housing patterns have changed somewhat since the mid-1970s, but not a whole heck of a lot," Hampe said. "When you look at parts of the community, like the West End, that have for many years been African-American enclaves, they’re still there, and they’re just as much an enclave as they ever were."

A ruling against the program might considerably lessen the amount of mixing Louisville’s children do with other races. On a wider scale, experts said, such a ruling would mean that one of the most-used tactics to promote desegregation would be off the shelf across the country. "This case could return us to segregated education in these areas because of the deep residential segregation," Bhargava said. "This is the last tool that’s left to try to integrate schools, so if districts are prohibited from even having the ability to impact school assignment, it would lead back to massive resegregation."


So far, two courts have decided to leave Jefferson County’s plan basically intact. Judge John Heyburn II, in U.S. District Court, held in two separate rulings that, with the exception of magnet and traditional school assignments, the public schools’ plan was constitutional. (As a result, some schools have since been allowed to enroll students outside of the 15-50 percent guidelines.) In July 2005, a U.S. Court of Appeals upheld Heyburn.

"The legal standard, based on the (Supreme Court case involving the) University of Michigan Law School, is twofold," said Frank Mellon, the attorney representing the Jefferson County Board of Education. "First, the school district or college or governmental body that wants to use race in determining applications has to show that there is a compelling interest to consider race. Second, the governmental consideration of race has to be narrowly tailored, which means you should use race only in a limited manner."

In both earlier hearings, the court found both of those standards met by the Jefferson County school assignment plan.

"Our argument was successful before the District Court," Mellon said. "And the 6th Circuit Court of Appeals agreed so strongly they didn’t even write their own opinion. . . . They simply affirmed the district court ruling."

Of course, Gordon and his clients still aren’t sold. They continued appeals in January 2006 and the Supreme Court agreed in June to hear the case.

While Daeschner cites one of Orfield’s studies — which concludes that education has declined in areas returning to segregation — Gordon said he has not seen any evidence that integration benefits students academically. What’s more, the plaintiffs’ lawyer said, anyone who can show him such evidence would convince him to drop the case.

"I made that offer to the (school) board," Gordon said. "Give me Kenwood and McFerran (elementary schools), and let them be neighborhood schools for five years. We’ll compare them after year five and year six, and if there is a 10-point drop (in scores) at the African-American school, you won’t hear from me.

"I told them that I would agree to settle, and they turned me down. They didn’t even want that chance to settle."

Jefferson County officials say they did receive such a proposal, but it was not feasible to implement it. "There was such an offer, and to be very honest, it wasn’t anything that was even workable," Hampe said. "It didn’t look like any kind of proposal that one could implement or do; it was impractical to even consider it."

Gordon also cited Central High School, which is predominantly African-American. (As a magnet, according to the Heyburn ruling, it is not subject to the 15 to 50 percent minority standard, thus allowing it to be more than 50 percent minority.) Its test scores are among the best in the county and the school boasts the highest percentage of African-Americans going on to complete four-year college degrees.

Gordon contended as well that the majority of West End students who allegedly benefit from the program by being sent to better schools actually are sent to low-end socioeconomic schools in other parts of town, so there is really no educational improvement. "Just show me where there is some type of improvement, instead of these generous platitudes that African-American students are better off (under the current system)," Gordon said. "Our position is that, in this context, diversity is not a compelling interest. And the major reason for that is that there is no improvement in educational outcome."

Naturally, many on the other side fear that the Supreme Court will agree with Gordon.

Already, one branch of the federal government has done so: In August, the Bush administration — in the person of the solicitor general — filed a brief with the Supreme Court, urging the justices to strike down the Jefferson County program. In the brief, the administration stated that it, like Gordon, does not believe that diversity is a "compelling governmental interest" that should allow race to be used as a factor in student assignment. The brief also states that "innocent third parties" like Crystal Meredith’s son are adversely affected by the program because they can be kept from a school simply because of their race.

And the administration broke out the dirty "Q" word, saying that the 15 to 50 percent standard is "indistinguishable from a quota" — a sentiment echoed by Gordon.

It’s also a sentiment vehemently denied by the schools.

"Every other word out of (Gordon’s) mouth is ‘quota,’" Hampe said. "From our perspective, that totally misrepresents the situation. The reality of our situation is that our community is roughly 35 percent African-American, and our whole plan is to try to produce an enrollment at each school that approximates that 35 percent. So we have a sliding range between 15 and 50 percent.

"That doesn’t strike any of us as a hard-core, mechanized quota. We’re talking about a range, and we have a whole range of processes to make that happen."

Gordon, however, strongly disagreed.

"This is a hardcore, mechanized quota," he said, "and the (Circuit Court) ruling should be reversed."

The stakes appear to be high.

"I think, whatever the ruling is, it will become the standard for the country," Cunningham said. "And consider that last year the court did not hear any race assignment plans. Now, exit (Justice) Sandra Day O’Connor, and enter (Chief Justice John) Roberts and (Justice) Samuel Alito. That makes me very nervous."

While no one knows how the Supreme Court will rule — its decision to hear this case, like all others, came with no explanation — many who favor the Jefferson County program feel there is cause to be nervous. And among the reasons for their nerves is the role O’Connor played on the court.

In the 2003 University of Michigan Law School case, which set the standard that race could be used as part of the admissions criteria if there was a strong societal benefit, O’Connor was part of the five-
justice majority (former Chief Justice William Rehnquist was one of those in the minority). She also was part of the court that has refused to hear any other cases on the subject — particularly those cases dealing with elementary and secondary education.

And now that she’s off the court, the court has quickly agreed to hear such a case?

"The court had an opportunity, in the last 12 months, to take on a similar case with Sandra Day O’Connor on the court," Douglas observed. "So some have speculated that, with the shift from O’Connor to (the more conservative) Alito, the court has taken this case because it wants to disallow this practice."

As the schools’ attorney, Mellon refuses to be so pessimistic, noting that, after deciding the University of Michigan case, the court could be expected to settle the issue in elementary and secondary education as well. "As soon as the (Michigan) decision hit, people started asking about elementary and secondary schools," Mellon said. "The logical next step for the Supreme Court to take is to take on the subject and issue an opinion so that the question is answered, once and for all."

Whatever the reason, Gordon is simply glad the court has decided to hear his
clients’ case. "It’s grossly speculative to talk about how the Supreme Court justices will rule or won’t rule," Gordon said. "But at least I intrigued them enough (with his appeal) that they want to hear the story of Joshua, and they want to hear whether or not the rights of equal protection were violated."

The rest of the nation will be listening as well.

Timeline

1975

The separate Jefferson County and Louisville city school
districts are merged into one countywide system.

The new Jefferson County school district is ordered by U.S. District Court to implement a desegregation plan under which all elementary schools would have an African-American enrollment of 12-40 percent (except in first grade) and all middle and high schools would range from 12.5-35 percent.

1978

First-graders are added to the desegregation plan, some of them bused to schools outside of their neighborhoods to meet minority enrollment percentages.

1984

Attendance areas for middle and high schools are redrawn to allow students to stay at the same middle school for all three years and the same high school for four.

1991

The school board adopts modifications to its student assignment plan in response to the recently passed Kentucky Education Reform Act (KERA). Among the changes: the establishment of cluster schools at the elementary level; new guidelines of 15-50 percent African-American students at elementary schools, 16-46 percent in the middle schools and 12-42 percent in the high schools; and implementation of the concept of "managed choice," in which students may apply for schools of their choice and assignments are made based on those choices plus other criteria.

1996

Further modifications to the student assignment plan include the guidelines for African-American enrollment, which are set at between 15 and 50 percent at all schools in all grade levels.

1998

A lawsuit filed by parents of certain black students
challenges the 50 percent limit on African-American enrollment at Central High School.

2000

U.S. District Judge John Heyburn II rules that race and racial guidelines can be used in general student assignments at schools offering regular programs, but finds that assigning students based on race to magnet programs, such as those offered at Central, which give coursework not replicated elsewhere in the district, is unconstitutional.

2001

In response to the judge’s ruling, four of the district’s magnet schools — Central, Brandeis, Brown and duPont Manual/YPAS — are exempted from the 15-50 percent black enrollment guidelines.

2002

A parent of a white student files a lawsuit claiming that his children had been denied admission to "traditional" magnet elementary and middle schools, citing the 15-50 percent guidelines for African-American enrollment.

2003

Crystal Meredith, who claimed that her child was denied admission to a non-magnet elementary
school by enrollment guidelines, is added as an additional white parent to the pending lawsuit.

2004

Judge Heyburn finds that "traditional" magnet schools cannot use race-separate lists in the applications process, but that regular schools — those without magnet or traditional status — may continue guidelines.

2005

On appeal, the Sixth Circuit Court of Appeals affirms Heyburn’s 2004 decision.

2006

After a petition is filed in January to the U.S. Supreme Court, the nation’s highest court agrees in June to hear the case, which is scheduled for arguments on Dec. 4.

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