Kentucky’s Court of Appeals announced today that a 3-judge panel has ruled in favor of Jefferson County Public Schools parents who argue that state law gives parents the right to send their children to neighborhood schools. This ruling overturns a 2010 Jefferson Circuit Court ruling and orders the district to develop a new plan for the 2012-13 school year.
Court of Appeals presiding judge, Judge Kelly Thompson, stated that Kentucky law clearly states students have a right to attend the school closest to their home:
“The legislature’s mandate that parents and legal guardians have the right to choose the school nearest their home for their children to attend is not without reason nor fortuitous. The benefit of children attending neighborhood schools is obvious. Busing creates the impediment of distance among parent, child, and school and, therefore, increases the difficulty of family involvement.
“We reiterate that the statute does not require that every child enroll in the school nearest his or her home but only that the parent or legal guardian has a right to enroll the child in a school near his or her home. All children have the freedom, with JCPS’s permission, to enroll in magnet schools and schools other than those located nearest their homes.”
WHAS-11 reports on the Court of Appeals ruling:
During oral arguments in the case, Judge Thompson, sitting on the panel with Judges Sara Combs and Michael Caperton, urged the school district to drop its voluntary diversity plan as a failed "social experiment" that hadn't adequately improved test scores and paid only "lip service" to the U.S. Supreme Court's 2007 ruling that limited the use of race in assigning students.
In today’s ruling, Judges Thompson and Caperton held that Kentucky law guarantees parents the right to send their children to the nearest public school. Judge Sara Combs, in a dissent, disagreed with the majority. If the Jefferson County School Board appeals the ruling, the final decision may be made by Kentucky’s Supreme Court.
Last year, the liberal Washington Post  ran a comprehensive article by Robert Barnes, discussing the efforts of Metro Louisville’s Jefferson County Public Schools to force racial integration, despite a ruling four years ago by the U.S. Supreme Court declaring that Louisville’s efforts to desegregate its schools violated the Constitution.
Reading this article, I couldn’t help but imagine my old friend Tom Hogan spinning in his grave. When I passed the Kentucky bar exam, I joined Tom in his civil rights law practice. We opened the “Hogan & McAdam Law Clinic,” and became the first lawyers in Kentucky to advertise (“Last Will & Testament, $20, 2-lawyers, no waiting”).
Tom was in the last stages of representing the plaintiffs in the Haycraft case—the litigation that brought forced busing to Louisville schools—and I tagged along for a couple of conferences with U.S. District Court Judge James Gordon, and went with Tom to Cincinnati for an oral argument before the Sixth U.S. Circuit Court of Appeals.
The Haycraft case was significant, in that it proved that the racial segregation in Louisville’s schools was not merely de facto, based upon neighborhood housing patterns, but was also de jure, because of school board action. Tom was able to prove that the morons out at the Vanhoose Educational Center (actually, it was old Superintendent Vanhoose himself) had gerrymandered two school districts—Cane Run and Newburg—to prevent racial integration.
Neighborhood schools, if the boundaries are fairly drawn, do not violate the spirit of Brown vs. Board of Education, even if the resulting school populations are disproportionately comprised of one race or another. Absent the misguided efforts of the Jefferson County Public Schools in trying to keep Black kids out of Cane Run, and White kids out of Newburg, we would never have had busing in Louisville.
Thirty-five years ago, the courts understood the difference between desegregation and forced integration. But somewhere along the line of contentious litigation, the difference evaporated and the goal of integration and racial diversity, based upon quotas, became an end in and of itself. The concept of integration as simply a remedy for legally-imposed segregation was forgotten, and 6 year-olds were forced to ride buses long distances, across town, for sometimes two hours each way. The kids hated it, and their parents hated it worse.
And almost everyone hated my friend Tom Hogan. He was physically assaulted, had a cross burned in his yard, and the H&M Legal Clinic got so many threatening telephone calls, we quit keeping track of them. But we knew we were right. We truly believed that desegregation was required by the constitution’s 14th Amendment, and that racial diversity in the public schools would improve the educational experience of children of all races. To the end of his life—he died an early death of cancer—Tom Hogan believed this.
It now appears that we were wrong. Not about desegregation; government-imposed racial segregation is as immoral as it is unconstitutional. No, we were wrong about the educational value of forced integration. The elitist intellectual dogma that little Black kids will learn better if seated next to little White kids (and vice-versa) has not proved to be true. In fact, all available empirical evidence argues to the contrary.
Here in Louisville, a couple of generations of students have attended integrated public schools, with integrated faculties, and by every standardized measure, our children are receiving poorer educations than before busing. No Child Left Behind, CATS, and SAT scores are all sliding into the toilet, while the Jefferson County School Board and their enablers on the left blame everything on a lack of funds. “Just raise taxes a little bit more, and your kids will finally learn to read, write, and do their sums.” Just a little bit more.
The teachers’ union blames unmotivated students and uninvolved parents. Well, a couple of hours riding in a big yellow bus can certainly have an effect on your academic motivation, and parents aren’t too keen to attend patent/teacher conferences on the other side of town. And the millions of dollars wasted on bus transportation, or the hundreds (you read that right, hundreds) of school board employees making over $100 grand a year do nothing to improve the quality of our kids’ education.
It’s time to admit our mistakes. The 35-year experiment has been a failure. Diversity does nothing to improve education; and in many ways may actually be detrimental. Governmentally-imposed segregation is a thing of the past; to be replaced by a different—and hardly more benign—form of racial discrimination. Three years ago, in the combined cases of Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County Board of Education, Chief Justice John Roberts wrote: "The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race."
In his lengthy article, Barnes described the efforts of JCPS to get around the Supreme Court’s ruling: “The final product, which integrates schools based on socioeconomic factors rather than on race alone, has proven to be more complex and costly than the previous system. Long bus rides and complaints from a vocal minority of parents have threatened popular support of the plan. The school board has delayed full implementation.”
JCPS Superintendent Sheldon Berman—before he got himself fired by the School Board—told Barnes he was convinced that a school system cannot be successful for all children without “diverse classrooms.” If Louisville's plan is more costly and complex, he said, it is because of a flawed and doctrinaire court decision that ignored the consequences. "If we're going to create a vital democracy, and see our schools as the seeds of that democracy, we need schools that maintain diversity," Berman said.
But Justice Clarence Thomas, the Supreme Court's only African American, denounced this sort of “racial paternalism” in Meredith v. Jefferson County Board of Education: "If our history has taught us anything, it has taught us to beware of elites bearing racial theories," he wrote. I agree. And I think my friend Tom Hogan would too.
Read more: Get your very own copy of today’s Court of Appeals opinion HERE .
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