Amicus Curiae Brief — Meredith v. Jefferson County Board of Education

§62G | FILED

| OCT 10 2006

No. 05-915

Hun the

Supreme Court of the Anited States

CrystaL D. MEREDITH, CUSTODIAL PARENT

AND Next FRIEND OF JosHUA RYAN McDONALD,

Petitioner,

Vv.

JEFFERSON COUNTY BOARD OF EDUCATION, ef ai.,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF FOR THE PRICHARD COMMITTEE

FOR ACADEMIC EXCELLENCE AS

AMICUS CURIAE SUPPORTING RESPONDENTS

PuHicvie J. SHEPHERD SHERYL G. SNYDER

307 West Malin Street Counsel of Record

P.O. Box 782 Amy D. CupBaGE

FRANKFORT, KY 40602 Martruew H. Jones

(502) 227-1122 Frost Brown ‘Topp LLC

400 West Market Street, 32” FL.

LouisvitLe, K'Y 40202-3363

(502) 589-5409

Counsel for Amicus Curiae Prichard

Committee for Academic Excellence

oo

oT

+

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

Amicus Curiae the Prichard Committee will address the

following question: :

Whether a school district formerly under a federal

desegregation decree and with a history of de jure

segregation, substantial current residential segregation as a

result of that de jure segregation, and a state constitutional

mandate to provide an equal and adequate public primary and

secondary education to every child, may continue to use a

race-conscious element in its student assignment plan which

was part of its desegregation plan before the district was

declared unitary, and which it applies only as to schools

which offer a standard curriculum and equal resources and

facilities.

TABLE OF CONTENTS

EE 9 4 oa Ais wee Abe RAs bee i

Ng Ld a 6 cb ae whe awe eo wk Ae il

ss dn dk ce Ske eee eee ill

Identity and Interest of Amicus Curiae ............ |

PE Tee ee T er eT Te 2

A. Pre-1970s Segregation in Louisville and Jefferson

RE <5 Gide koe eke e kee 2

1. Residential Segregation .............. 3

2. Educational Segregation .............. 5

B. Efforts to desegregate Louisville’s schools—- 1970s

DA soo sk wa-wd eo AO ee ee es 6

C. Enactment of Kentucky Education Reform Act... 9

D. Unitary declaration and the 2001 Assignment Plan

PPE ee ee re reTs Tee ee Tee Te 1]

Summary of Argument ............--.-2-25405. 13

ee ee ie eee er oe 14

I. A diverse school population is a necessary component

of a modern public education ............... 14

A. In the Commonwealth of Kentucky, one of the

stated purposes of the educational system is to

prepare future citizens to be members of a diverse

re ee er ee Pre 15

B. The history of race relations and _ school

desegregation in Jefferson County also makes

diversity a particularly compelling interest in the

Eo or wk ee eae Oe re ee ee ae 17

Il. The Board, in exercising its discretion to maintain

desegregated schools, fashioned a narrowly tailored

plan using race only to the extent necessary to achieve

SEE, i car eek rs ceed See ee eae cree 20

A. A public primary and secondary school system is

fundamentally different from higher education . . 20

B. In the context of primary and secondary public

education, the Board’s criteria are narrowly

SE GN 5 5 oO C4 ES ae ae adhe races 22

ER IPR IS Gans Cee ee hn 28

iV

TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Pena,

- 2 be — Ae ee 21

Barrows v. Jackson,

re er ee 4

Berea College v. Kentucky,

, Bb Sree ear reer 5

Braden v. Lady,

yo PRP | SF SS) eee 5

Brown v. Board of Education,

pg § EO 5 Pe 5, 6, 10, 28

Buchanan v. Warley, —

Bee es GED kk 0K bes 60 645 ee . 4

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ....... hes eee 20, 21, 23

Com. v. Braden, 291 S.W.2d 843 (Ky. 1956) ....... 5

Cunningham v. Grayson,

541 F. 2d 538 (6" Cir. 1975),

cen. denied, 430 U.S. 941 (1977) ............ 6

Freeman v. Pitts,

. ft 5 eee AR 15, 18

Gratz v. Bollinger,

i ccc eseeeeeceseees 20, 21

Grutter v. Bollinger,

ee a wee passim

Hampton v. Jefferson County Board of Education,

72 F. Supp. 2d 753 (W.D. Ky. 1999) ......... 7,8

Hampton v. Jefferson County Board of Education,

102 F. Supp. 2d 358 (W.D. Ky. 2000) . 11, 12, 18, 22

Harris v. City of Louisville,

I es ck een dececess 3

Johnson v. Bd of Educ. Of Chi.,

604 F.2d 504 (7 Cir. 1979) ............. 26, 27

McFarland v. Jefferson County Public Schools,

330 F. Supp. 2d 834 (W.D. Ky. 2004),

aff'd, 416 F.3d 513 (6" Cir. 2006),

cert. granted, 126 S. Ct. 2351 (2006) .. 12-13, 23, 24

Milliken v. Bradley,

CN PEED occ cc eccesss 7, 15, 18-19

Newburg Area Council, Inc. v. Gordon,

521 F.2d 578 (6" Cir. 1975) ........020... 6,7

‘ Regents of University of California v. Bakke,

I occ cc ccc cc ccs s 20, 21, 27

Rose v. Council for Better Education, Inc.,

790 S.W.2d 186 (Ky. 1989) ....... 1, 9, 10, 16, 21

vi

Sheet Metal Workers v. EEOC,

6 coe ah ewck howe beeen 24

Shelley v. Kraemer,

Se CU cece ce eGs bb eaaeehe hae 4

United Coop. Realty Co. v. Hawkins,

Se ED 6 co d's tb cpeesueekeen 4

Washington v. Seattle School District No. 1,

Se a ED ah oé6wene buuedestuenes 15

Constitutional and Statutory Provisions

IS SUD i Org ae ears a a ae i)

BL re rere e ara ae 5

Kentucky Education Reform Act,

See Se Gs GOD occ cceceecewes 1,2, 9, 10, 17

Kentucky Revised Statutes 158.6451(1)(b) . 10, 17, 25, 27

Other Authorities

Abstracts of Television Coverage of Louisville Desegregation,

Walter J. Brown Media Archives & Peabody Awards

Collection, available at http://www/libs.uga.edu/media/events

/oldsite/bhim/bhm2004/kentucky . html (last visited October 5,

2006)

Thomas D. Clark, A History OF KENTUCKY (6" ed.) .. 2

Don E. Fehrbacher, THE Drep SCOTT CASE ........ 2

Vii

Catherine Fosl, SUBVERSIVE SOUTHERNER: ANNE BRADEN

AND THE STRUGGLE FOR RACIAL JUSTICE IN THE COLD WAR

NG RRR I Te aed ee an Re I al awe 42. ee 5

Lowell H. Harrison and James C. Klotter, A NEW HISTORY

0 EE ee eee RNase ee eC 2,3

Er re roe ere eae ne 3

Thomas Llewellyn, Segregation, in KENTUCKY

ENCYCLOPEDIA (John E. Kleber, ed., 1992) ....... 3,4

Anthony Newberry, Braden Affair, in KENTUCKY

ENCYCLOPEDIA (John E. Kleber, ed., 1992) ........ 5

Robert V. Remini, HENRY CLAY ............... 2

Stuart Sprague, Civil War, in KENTUCKY ENCYCLOPEDIA

ee Ce ay MED anes 6c sees Vee eww’ 2

Harold D. Tallant, Jr., Slavery, in KENTUCKY ENCYCLOPEDIA

Sas a 2

l

BRIEF AMICUS CURIAE OF

PRICHARD COMMITTEE FOR ACADEMIC

EXCELLENCE

IDENTITY AND INTEREST OF AMICUS CURIAE

The Prichard Committee for Academic Excellence

(“Prichard Committee”) respectfully submits this brief amicus

curiae in support of Respondents Jefferson County Board of

Education and Stephen W. Daeschner, as Superintendent of

Jefferson County Public Schools, pursuant to Supreme Court

Rule 37.3.' The parties have lodged universal letters of

consent with the Clerk of this Court for the filing of briefs

amicus curiae.

The Prichard Committee is an independent, nonpartisan

group of volunteers dedicated to improving public education

in Kentucky at all levels for all Kentuckians, including

primary and secondary public school education.

The Prichard Committee has participated in important

litigation concerning the quality of education in Kentucky,

most notably Rose v. Council for Better Education, Inc., 790

S.W.2d 186 (Ky. 1989), in which the Kentucky Supreme

Court declared the system of school funding in place at that

time to be unconstitutional under the Kentucky Constitution.

Rose lead to the passage in June 1990 of the Kentucky

Education Reform Act (*“KERA”), a landmark piece of

' Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or part and that no person or

entity made a monetary contribution specifically for the preparation

or submission of this brief.

2

legislation that instituted sweeping educational reforms in

Kentucky public education that were admired and emulated

throughout the nation. The Prichard Committee played a vital

role in developing the consensus necessary to gain KERA’s

passage, and to maintain public support for KERA’s reforms.

STATEMENT OF THE CASE

A. Pre-1970s Segregation in Louisville and Jefferson

County.

Louisville and Jefferson County, Kentucky,” the

metropolitan area with the largest population and largest

African-American population in Kentucky, has an unfortunate

history of racial segregation and prejudice paralleling that of

other parts of the country. While Kentucky did not secede

from the union nor officially join the Confederacy, Kentucky

was a slave state’ which enforced a slave code.‘ After the

Civil War, Southern sympathy dominated Kentucky politics,

? Louisville and Jefferson County merged their governments in

2002 and are now known ‘as the Louisville/Jefferson County Metro

Government.

* Thomas D. Clark, A HISTORY OF KENTUCKY (6" ed.), 319-58;

Robert V. Remini, HENRY CLAY, 27-28, 347. See also Stuart

Sprague, Civil War, in KENTUCKY ENCYCLOPEDIA 92-94 (John E.

Kleber, ed., 1992); Harold D. Tallant, Jr., Slavery, in KENTUCKY

ENCYCLOPEDIA 827-29 (John E. Kleber, ed., 1992).

* Don E. Fehrbacher, THE DRED ScoTT CASE, 59-67. In 1850,

Kentucky convened a constitutional convention to enshrine the

property rights of slaveholders in its constitution. Lowell H.

Harrison and James C. Klotter, A NEW HISTORY OF KENTUCKY,

117-18.

3

and Kentucky was part of the Jim Crow South.” Kentucky

generally enforced racial segregation after the end of the Civil

War in housing, education and public accommodations.°

Louisville unfortunately still bears the scars of that

segregation.

1. Residential Segregation

Louisville and Jefferson County have long had segregated

neighborhoods and racial housing patterns, vestiges of de jure

segregation thai are still evident today. These patterns date

back to the time of legally mandated segregation in housing,

and survived through state court enforcement of restrictive

covenants. The City of Louisville enforced ordinances

mandating segregated neighborhoods as late as 1915. Harris

v. City of Louisville, 177 S.W. 472 (Ky. 1915). In Harris,

the Kentucky Court of Appeals addressed an ordinance

requiring that no person may sell a piece of property to a

person whose race is in the minority in the neighborhood. /d.

at 473-74. The court upheld this ordinance, saying:

The enforced separation of the races alone is not a

discrimination or denial! of the constitutions! guaranty

fof the Equal Protection Clause}; and if such

separation should result in the members of the colored

race being restricted to residences in the less desirable

portion of the city, they may render those portions

more desirable through their own efforts, as the white

> James C. Klotter, KENTUCKY: DECADES OF DISCORD 1865-1900.

29-49.

® Harrison and Klotter, NEW HISTORY, 234-48. See also Klotter.

DECADES OF DISCORD 90-94; Thomas Llewellyn, Segregation, in

KENTUCKY ENCYCLOPEDIA 807-08 (John E. Kleber, ed., 1992).

race has done.

Id. at 476. This Court eventually struck down Louisville’s

ordinance as violative of the Fourteenth Amendment.

Buchanan v. Warley, 245 U.S. 60 (1917).’

This Court’s decision in Buchanan did not stop the white

majority in the City of Louisville from attempting to maintain

segregated neighborhoods, as whites turned to the use of

restrictive covenants. The Kentucky Court of Appeals

enforced restrictive covenants in a case originating in

Jefferson County. United Coop. Realty Co. v. Hawkins, 108

S.W.2d 507 (1937). Restrictive covenants were enforced in

Kentucky until this Court’s decisions in Shelley v. Kraemer,

334 U.S. 1 (1948) (holding that a court could not restrain a

sale in violation of a restrictive covenant), and Barrows v.

Jackson, 346 U.S. 249 (1953) (holding that a party cannot be

held liable for damages for violating a restrictive covenant).

- Though restrictive covenants became unenforceable

concurrently with de jure school segregation becoming

unlawful in the 1950’s, one cannot determine how long they

were honored as “gentlemen's agreements” after Sheiley and

Barrows.

In 1954, Carl and Anne Braden were prosecuted for

sedition after they bought a home in a white neighborhood

with the intent of deeding it to an African-American family.

When segregationists bombed the home, Carl and Anne

Braden were charged with sedition on the theory that the mere

purchase of the home on behalf of the Wades was sedition

against the Commonwealth. Carl Braden was convicted and

” See also Thomas Llewellyn, Segregation, in KENTUCKY

ENCYCLOPEDIA 807-08 John E. Kleber, ed., 1992).

5

sentenced to 15 years in prison. He served 8 months in

prison, and was eventually released on bail until the sedition

law under which he was convicted was invalidated by the

Kentucky Supreme Court in 1956.*

The Louisville Board of Aldermen enacted an open

housing ordinance in December 1967. Even with the passage

of this ordinance in the late 1960s, however, there has been

little integration of neighborhoods when judged by census

data. See, e.g., JA 99. The segregated neighborhoods of

today are the direct by-product of the history of de jure

segregation of housing in Louisville and Jefferson County.

2. Educational Segregation

Both the City of Louisville and Jefferson County school

systems also enforced de jure segregation in the public

schools until this Court's landmark opinion in Brown v. Board

of Education, 347 U.S. 483 (1954).” Prior to Brown, the City

of Louisville school system maintained separate schools for

both African-American and white students. The Jefferson

County school system also enforced segregation, and paid to

* Catherine Fosl, SUBVERSIVE SOUTHERNER: ANNE BRADEN AND

THE STRUGGLE FOR RACIAL JUSTICE IN THE COLD WAR SOUTH,

135-74; see also Com. v. Braden, 291 S.W.2d 843 (Ky. 1956);

Braden v. Lady, 276 S.W.2d 664 (Ky. 1954); Anthony Newberry,

Braden Affair, in KENTUCKY ENCYCLOPEDIA 114 (John E. Kleber,

ed., 1992).

” Kentucky’s 1891 Constitution required segregated education. KY.

CONST. § 187 (1891). See also Berea College v. Kentucky, 211

U.S. 45 (1908) (affirming enforcement of Kentucky statute

mandating racially-segregated education). This provision was not

repealed until 1996.

6

send African-American high schoolers to the Louisville all-

black high school Central High School because the County

system did not maintain a high school for African-American

students. Newburg Area Council, Inc. v. Board of Educ. of

Jefferson Co., 489 F.2d 925, 927-28 (6" Cir. 1973). After

Brown, both the City of Louisville and Jefferson County took

some minor steps to desegregate, but the majority of the

schools attended by African-American were still racially-

identifiable as of the 1970s. /d. at 930.

B. Efforts to desegregate Louisville’s schools—1970s to

1990s.

When parents brought class actions to force the Louisville

and Jefferson County Boards of Education to fully integrate

the public schools, the local federal district court judge, James

F. Gordon, refused to order the schools to desegregate. It

was not until the Sixth Circuit Court of Appeals reversed the

findings of Judge Gordon, and held that the segregated

schools were vestiges of prior de jure segregation, that the

efforts to desegregate the schools began to bear fruit. The

Louisville Board of Education voted to dissolve itself, putting

the city schools under the control of the County Board of

Education (“Board”), to ensure that any remedial decree

would apply county-wide, removing the interdistrict remedy

issue as a point of contention."

0 The Kentucky State Board of Education approved of the

dissolution in 1975. See Cunningham v. Grayson, 541 F.2d 538 (6"

Cir. 1976).

7

When the Sixth Circuit issued a writ of mandamus,”

Judge Gordon desegregated the now-unified Louisville and

Jefferson County schools, issuing a decree that involved

massive busing of students based on the first letter of the

students’ last name—the so-called “alphabet” system. Busing

appeared to be the only option for effective integration due to

the stark residential segregation in Louisville and Jefferson

County, particularly in light of the Sixth Circuit’s finding that

reliance on neighborhood schools were part of the problem:

“[tJhe attendance areas tracked neighborhood lines; the

demographics of each neighborhood shaped the racial

composition of the schools.” Hampton v. Jefferson County

Board of Education, 72 F.Supp.2d 753, 759(W.D. Ky. 1999)

(“Hampton I”).

The “alphabet” system busing plan - one of the most

extensive busing plans in the nation - engendered great public

discord, and even violence. See id. at 755. Anti-busing

protests surrounding the beginning of the 1975 school year

erupted into riots. One riot in September 1975 involving over

10,000 people on Dixie Highway, one of Louisville’s largest

thoroughfares, resulted in fires, and rocks and bottles being

thrown at police. Another riot occurred the same night on

Preston Highway, another large thoroughfare. That riot led

'' Judge Gordon resisted the issuance of a desegregation decree

even after the Sixth Circuit’s opinion in Newburg. Judge Gordon

stalled while the parties litigated over the issue of whether the Sixth

Circuit could require an interdistrict remedy in light of Milliken v.

Bradley, 418 U.S. 918 (1974), and the Sixth Circuit had to resort

to a issuance of writ of mandamus ordering Judge Gordon to

fashion a remedy for the 1975-1976 school year. Newburg Area

Council, Inc. v. Gordon, 521 F.2d 578 (6" Cir. 1975).

8

to 35 school buses being damaged by fire and required the use

of tear gas and nightsticks to disperse the crowd."

Judge Gordon’s decree remained largely intact until 1984,

though Judge Gordon ended active oversight of the decree in

1978. Hampton I, 72 F. Supp.2d at 765. In 1984, the Board

sought to amend the decree in order to gain greater support

for the public schools among parents and taxpayers.

Specifically, the Board sought a mechanism by which it could

maintain desegregation without as much reliance on busing.

The Board developed a “managed choice” student assignment

plan, allowing some parental choice while maintaining

desegregation through the introduction of the 15-50 low and

high percentages for African-American enrollment per school.

The Board sought to make these changes due to minor

demographic changes and the continued lack of community

support for desegregation. The original plaintiffs from the

1970s opposed the transition to this plan, and sought to

maintain the “alphabet” busing plan. The Board sought a

declaration from the federal court that it had been declared

“unatary” so that it could implement the new “managed

choice” plan. The federal court ruled that Judge Gordon's

withdrawal! of active oversight in 1978 gave th: Board the

authority to amend the assignment plan. /d. at 766-67.

The institution of the “managed choice” plan has led over

time to greater public satisfaction and acceptance of public

school desegregation in Louisville and Jefferson County.

While the great majority of Louisvillians opposed

'2 Abstracts of Television Coverage of Louisville Desegregation,

Walter J. Brown Media Archives & Peabody Awards Collection,

available at http://www/libs.uga.edu/media/events/oldsite/bhm/bhm

2004/kentucky html (last visited October 5, 2006).

9

desegregation in 1975, the vast majority of parents polled in

2000 - 77% - supported the use of race in student

assignment, and 82% of parents believed that students

benefited from a racially diverse school environment. JA

107.

C. Enactment of Kentucky Education Reform Act.

The Board was faced with an additional mandate with the

passage of the Kentucky Education Reform Act (“KERA”),

1990 Ky. Acts Ch. 476, enacted in the wake of the Kentucky

Supreme Court’s opinion in Rose v. Council for Better

Education, Inc., 790 S.W.2d 186 (Ky. 1989). In Rose, the

Kentucky Supreme Court (1) declared the system of school

funding in place at the time to be unconstitutional under the

Kentucky Constitution’s requirement that the Kentucky

General Assembly provide for an “efficient system of

common schools,” Ky. CONST. § 183; and (2) held that

students in Kentucky had a constitutional right to an adequate

public primary and secondary education, and that funding

disparities between rich and poor areas would not be allowed:

The system of common schools must be adequately

funded to achieve its goals. The system of common

schools must be substantially uniform throughout the

state. Each child, every child, in this Commonwealth

must be provided with an equal opportunity to have an

adequate education. Equality is the key word here.

The children of the poor and children of the rich, the

children who live in the poor districts and the children

who live in the rich districts must be given the same

opportunity and access to an adequate education.

Id. at 211.

10

In reaching its ruling in Rose, the Kentucky Supreme

Court called on the words of this Court in Brown:

Education is perhaps the most important function of

state and local governments. . . . It is required in the

performance of our most basic public responsibilities,

even service in the armed forces. It is the very

foundation of good citizenship. Today it is a principal

instrument in awakening the child to cultural values,

in preparing him for later professional training, and in

helping him to adjust normally to his environment.

Id. at 191 (quoting Brown, 347 U.S. at 483).

KERA represented a radical departure in state educational

theory. It established new organizational structures in

addition to setting new educational standards. KERA

instituted six goals and academic expectations, including a

goal that students should become “self-sufficient individuals,”

a goal that students should “develop their abilities to become

responsible members of a family, work group, and

community, including demonstrating effectiveness in

community service,” and a goal that students should “develop

their abilities to think and solve problems in schoo! situations

and in a variety of situations they will encounter in life.” Ky.

Rev. Stat. § 158.6451(1)(b); see also JA 31. All of these

goals stretch beyond the normal conception of school of

imparting “book learning”—the goal of KERA is to educate

students to reach the goals quoted from Brown: good

citizenship, awakening to shared cultural values, and

adjustment to the social environment.

Because public education is a state constitutional mandate

in Kentucky, taxpayer support for the public educational

system as a whole - the kind achieved in Louisville for the

“managed choice” plan since 1984 - is vital to maintaining

the funding necessary for an “efficient system of common

schools” that provides an equal and adequate education for

each and every child.

D. Unitary declaration and the 2001 Assignment Plan

The Board continued to use the 1984 Assignment Plan

essentially unamended until 2000, when the Federal District

Court for the Western District of Kentucky determined that

the Board had achieved unitary status. Hampton v. Jefferson

County Board of Education, \02 F. Supp.2d 358 (W.D. Ky.

2000) (“Hampton IT”). Notably, the unitary declaration was

made over the objection of the Board, in contrast to the

Board’s arguments in 1984 when it introduced the 15-50

racial percentages to minimize busing. /d. at 359.

Having declared the Jefferson County Public Schools

unitary, the District Court held that the Board could not apply

the 15-50 racial percentage to schools offering special

curricula such as magnet schools and magnet programs. /d.

at 380-81. However, the court specifically found that, in

contrast to magnet schools and magnet programs, schools

offering the basic standardized curriculum - called “resides”

schools in the terminology of the 1984 Assignment Plan - are

essentially “fungible,” and that there is no individual right to

attend a specific school in those circumstances. /d. at 380.

That factual finding was not challenged on appeal.

The Board developed a modified assignment plan in light

of the holding in Hampton I/. The 2001 Assignment Plan

maintains the “managed choice” plan introduced in 1984, and

the 15-50 racial percentages, only as to “resides” schools, and

only after all the “managed choice” aspects are exhausted.

Primary schools are grouped into clusters in the same manner

12

as first presented in 1984, and each student is assigned a

“resides” school, the “fungible” schools in the terminology

of the District Court. Students may then transfer between

cluster “resides” schools based on parental preference, or

apply for admission to one of the magnet schools available at

the primary level. JA 37-39. At the secondary school level,

students are also assigned a “resides” school, just like in the

1984 Assignment Plan. If a student does not wish to attend

the “resides” school, he or she may apply for a transfer to

any other “resides” school in the county or apply to magnet

schools and magnet programs. JA 41-43. Transfers may be

requested and granted based on day care arrangements,

medical issues, adjustment problems, general hardship, or any

other valid reason. JA 43. Only after these options for

achieving student assignment does race affect student

asSignment, and only with respect to the “resides” schools.

JA 37-43.

When evaluating the 2001 Assignment Plan in the context

of this litigation, the District Court (affirmed by the Sixth

Circuit) again determined that there was no right to attend a

particular “resides” school because they offered comparable

curricula, and affirmed the use of the 15-50 percentages as

they applied to the “resides” schools. The District Court

invalidated the 15-50 percentages with respect to schools

offering the “traditional” program, a unique program not

offered at other schools.’ McFarland v. Jefferson County

Public Schools, 330 F. Supp. 2d 834, 856-863 (W.D. Ky.

2004), aff'd, 416 F.3d 513 (6" Cir. 2006), cert. granted, 126

'S The traditional schools were not addressed in Hampton Il. The

District Court applied the same rationale to the traditional schools

in this case as it did to the magnet schools and magnet programs in

Hampton II because of their uniqueness.

13

S. Ct. 2351 (2006). The District Court’s ruling with respect

to the “traditional” schools is not before this Court.

In sum, the 15-50 percentages do not apply to magnet

schools, magnet programs, or traditional schools. The

percentages only apply to the “resides” schools, and there has

been no challenge to the District Court’s factual determination

that the “resides” schools offer equal educational

opportunities in curricula, facilities and resources.

SUMMARY OF ARGUMENT

The 2001 Assignment Plan represents the culmination of

a long, unique history of attempting to provide an adequate

and equal public education within Jefferson County. Because

of the requirements of Kentucky’s constitution, and the

sometimes tumultuous background of desegregation efforts in

Jefferson County’s history, the Board created a system that

balanced its compelling interest in fostering diversity with the

requirement to use racial considerations in a narrowly tailored

manner. In order to achieve this goal, the Board created a

plan that used race only as a last resort to be considered at the

end of the assignment process in limited cases so as to

effectuate the goals of a diverse learning environment.

Unlike the other cases that this Court has considered

concerning the interest in diversity, the Jefferson County

school district contains “fungible” schools, thus ensuring that

race is not used to award any “prize” to a particular student,

but is simply a placement method for allocating substantially

similar resources. The use of racial considerations is

substantially limited so that school districts have a wide range

of racial makeups (from 15-50% African-American students)

and nothing resembling a “quota”. is in place. The Board

engages in individual review as much as is feasible

considering the age of the students, and student choice is

14

given substantial weight in the final assignment of a particular

child. The use of race is as limited as it can be considering

the practicalities of elementary and secondary school

education. Thus, a decision that this narrowly-tailored system

is unconstitutional would have the effect of holding that there

is simply no way to achieve the compelling interest of

diversity at the pre-university level.

ARGUMENT

I. A diverse school population is a necessary component

of a modern public education.

In today’s modern and diverse world, any individual who

expects to succeed must have the ability to interact with a

wide range of individuals from a variety of different types of

backgrounds. For the vast majority of children, their first

interaction with people with different social, economic and

ethnic backgrounds is through the public educational system.

_ For the reasons this Court recognized in Grutter v. Bollinger,

a school district has a compelling interest in obtaining “the

educational benefits of a diverse student body.” 539 U.S.

306, 328 (2003). In Grutter, the court accorded deference to

the University of Michigan Law School's determination that

“diversity is essential to its educational mission.”"* Jd. Like

'* It is important to note that more than five justices agreed that

deference should be given to education bodies’ “considered

judgment that racial diversity among students can further its

educational task.” Grutter, 539 U.S. at 388 (Kennedy, J.,

dissenting). While there was a dispute as to whether, and how

much, deference should be, or was given, to the university in the

implementation of that goal, the notion that deference is due to a

local school district’s decision that deference integral is a

“compelling interest” is one that has broader support.

15

the law school, the Board has long recognized the benefits of

having a diverse student body, and through the course of

time, so have the citizens of Jefferson County. At this point,

77% of the citizens of Jefferson County believe that the use

of race in student assignment is helpful and 82% believe that

students benefit from these racially diverse environments. JA

107. In order for Jefferson County to be able to continue to

provide its students with the popularly-supported reality of

racially-diverse school environments, the Court must uphold

the current student assignment plan.

A. In the Commonwealth of Kentucky, one of the

stated purposes of the educational system is to

prepare future citizens to be members of a diverse

society.

As much as any other governmental function, education

of children in the United States has been a matter of local

control. This can be seen in a number of different ways,

none more obvious than the fact that this Court has

continually endorsed the important role of locally-elected

school boards in determining the crucial educational policies

for their communities. See, e.g., Freeman v. Pitts, 503 U.S.

467, 489-90 (1992); Wash v. Seattle Sch. Dist. No. 1, 458

U.S. 457, 482 (1982); Milliken v. Bradley, 418 U.S. 717, 741

(1974). Allowing local school districts to maintain the

primary control over the curriculum and makeup of their

schools increases the involvement of those in the community,

but also makes the crucial connection between parents and

their children’s schools, a connection that is integral to both

the success of the individual student and the district as a

whole. Thus to whatever extent deference was deemed to be

significant for institutions of higher learning, that importance

is only magnified on the primary and secondary school level,

16

where local control is a foundational hallmark of successful

school systems.

In order to put the 2001 Assignment Plan in the proper

context, it is important to consider the context of not only the

history of Jefferson County but the goals of the Kentucky

educational system as a whole. As this Court pointed out in

Grutter, “|njot every decision influenced by race is equally

objectionable and strict scrutiny is designed to provide a

framework for carefully exam’ ing the importance and the

sincerity of the reasons advanced by the governmental

decisionmaker for the use of race in that particular context.”

539 U.S. at 327.

In the specific context of Jefferson County, the creation of

school districts that foster the values necessary to become

good citizens is at the heart of the educational system. When

the Kentucky Supreme Court declared the state system of

school funding unconstitutional in 1989, it did so because the

system did not allow each student in the Commonwealth to be

provided with an equal and adequate education. Rose, 790

S.W. 2d. at 211. The Kentucky General Assembly was thus

charged with carrying out its constitutional mandate and

providing for an “efficient system of common schools.” /d.

As part of this mandate, it was recognized that education “is

the foundation of good citizenship. It is a principal

instrument in awakening the child to cultural values, in

preparing him for later professional training and in helping

him to adjust normally to his environment.” /d. at 191. This

theory became the basis for the legislative effort to seek a

broader educational scheme in order to transform the

Kentucky educational system.

The Kentucky General Assembly then created what at the

time was a radical new experiment in state educational theory

17

with KERA. KERA recognized that, in Kentucky, education

meant more than simply memorizing theorems or reading

great literature. Educational goals should also include the

creation of “self-sufficient individuals.” Emphasis was placed

on helping students develop their abilities to “become

responsible members of a family, work group, and

community” and. “think and solve problems in school

situations and in a variety of situations they will encounter in

life.” Ky. Rev. Stat. § 158.6451(1)(b). The 2001

Assignment Plan was constructed based in part on the

mandates of KERA, and as part of this Plan, a new emphasis

was made on helping students become more valuable

members of their community and better citizens, able to

succeed in a diverse world.

B. The history of race relations and _ school

desegregation in Jefferson County also makes

diversity a particularly compelling interest in the

local system.

In addition to the various features of KERA, the Board

also considered the specific history of Jefferson County and

the various racial problems that have plagued the city over the

years. As recounted above, segregation in Louisville was

difficult to overcome. Despite the difficulties, the Board

continues to attempt to remedy the past effects of segregation.

Over the course of the last 30 years, the idea of educational

equality and the benefit of an integrated learning environment

has become ingrained in the community and has gained

widespread acceptance.

This unique background showcases the importance of

granting local school districts deference in determining what

educational goals should be priorities for their local area.

There may be school districts in the country that do not

18

possess the historical racial difficulties that have occurred in

Jefferson County or that do not operate under a state

educational system with such wide-ranging educational

mandates. In these localities, diversity may not be one of the

most important values that the local school board seeks to

implement. However, creating a diverse school environment

has become an ingrained part of the educational mission in

Jefferson County and is one that has not only bettered the

local school system, but also maintained the support of

taxpayers and voters that is essential to maintaining equal

opportunity for all students. Unique local characteristics

matter, and the Board “is convinced that integrated schools

provide a better educational setting for all its students; [and]

that concentrations of poverty which may arise in

neighborhood schools are much more likely to adversely

affect black students than whites.” Hampton IJ, 102 F.Supp.

2d. at 371 n.30. This is a conclusion made based upon the

unique circumstances of Louisville and Jefferson County and

is one that should be given the appropriate deference.

The finding of unitary status by the District Court in

Hampion II finally turned the school system fully over to the

Board’s control. Prior to that time, the federal courts

substituted their judgment concerning local educational policy

for that of the Board. This Court has repeatedly stated that it

is not ideal to maintain the federal court’s involvement in

local educational policy indefinitely, and has supported the

concept of allowing local school boards set policy within

constitutional bounds. See, e.g., Freeman v. Pitts, 503 U.S.

467, 490 (1992) (“As we have long observed, ‘local

autonomy of school districts is a vital national tradition.’”);

see also id. at 506 (Scalia, J., concurring) (“We envisioned

it as temporary partly because ‘no single tradition in public

education is more deeply rooted that local control over

operation of the schools.’”) (quoting Milliken v. Bradley, 418

19

U.S. 717, 741 (1974)). This Court has also cautioned,

however, that local school boards must keep a watchful eye

out for racial discrimination even after a declaration of unitary

status:

Yet it must be acknowledged that the potential for

discrimination and racial hostility is still present in our

country, and its manifestations may emerge in new

and subtle forms after the effects of de jure

segregation have been eliminated. It is the duty of the

State and its subdivisions to ensure that such forces do

not shape or control the policies of its school system.

Where control lies, so too does responsibility.

Id. at 490. It would be illogical to hold that the Board must

maintain desegregated schools for 25 years using a race-

conscious plan imposed by federal court order, but once the

order is dissolved, to forbid the Board from using its

discretion to retain the race-conscious plan to protect against

resegregation. The Board, in attempting to provide an equal

and adequate public education to all students, exercised its

hard-earned discretion to enact a race-conscious plan to

ensure that the desegregation victories of the past 25 years

would not be lost. There can be no doubt that the Board has

a compelling interest in support of its student assignment plan,

and this Court should give deference to the board in making

the determination that it is necessary to maintain a race-

conscious plan.

20

Il. The Board, in exercising its discretion to maintain

desegregated schools, fashioned a narrowly tailored

plan using race only to the extent necessary to achieve

the goal.

Even when attempting to achieve a compelling purpose

such as diversity, the Board may admittedly only use race in

a manner “specifically and narrowly framed to accomplish

that purpose.” Grutter, 593 U.S. at 333. In order to meet

this requirement, the Board’s use of race must “fit the

compelling goal so closely that there is little or no possibility

that the motive for the classification was illegitimate racial

prejudice or stereotype.” Richmond v. J.A. Croson Co., 488

U.S. 469, 493 (1989). The 2001 Assignment Plan thus must

be carefully “calibrated to fit the distinct issues raised by the

use of race” in Jefferson County, taking into account the

special needs of the county and its unique history and

situation. Grutter, 593 U.S. at 334. Thus, in determining

whether the Jefferson County assignment plan has been

narrowly tailored and is the proper “fit,” it is important to

consider the specifics of the Plan as compared to the plans

approved by the Cousin Grutier and struck down in Gratz.

A. A public primary and secondary school system is

fundamentally different from higher education.

All of the cases in which this Court has considered the use

of race in promoting the compelling interest of diversity in

education have been in the context of higher education. See

Grutter v. Bollinger, 593 U.S. 306 (2003); Gratz v.

Bollinger, 593 U.S. 244 (2003); Regents of the University of

California v. Bakke, 438 U.S. 265 (1977). In all of these

cases, the Court was reviewing the constitutionality of

systems designed to determine which students would be

denied admission to a special educational opportunity. The

21

UC Davis Medical School in Bakke, the Michigan

undergraduate program in Graiz, and the Michigan law school

in Grutter are all systems in which the admissions process is

one of exclusion. Boards of Admissions in each case used

various factors to determine who will be admitted, with those

who do not meet the criteria rejected. These systems of

exclusion make admission into the particular institution

essentially a “prize”; thus the factors utilized in determining

the winners of that “prize” are of significant importance. See

also Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995)

(invalidating the use of race in the awarding of the “prize” of

a governmental contract); J.A. Croson Co., 488 U.S. at 493

(invalidating the use of race in the awarding of the “prize” of

municipal contracts).

In this case, however, the Board is under a staie

constitutional and statutory obligation to provide an adequate

and equal education to all students within its jurisdiction. See

Rose, supra. Unlike the other higher education admissions

policies in Bakke, Grutter and Gratz, the Board is not

excluding any students. It is merely determining where it will

place students under its regular assignment policy. Jefferson

County will educate all of its students at some school within

its jurisdiction. The only question is which school a

particular student will attend. Thus, the concern expressed by

some members of this Court in Grutter, i.e. that a part of the

interest being upheld was the University of Michigan Law

School’s interest in remaining an elite institution with high

academic admittance standards, is not relevant here. See

Grutter, 539 U.S. 306, 351 (Thomas, J., dissenting in part).

The Board is obliged to educate all of its students, and its

stated goal of achieving diversity is not for the benefit of the

schoo! district itself. The goal is solely designed to benefit

the students.

22

With this in mind, it is important to remember that, under

the District Court’s various judgments in Hampton I] and this

case, the 15-50 guideline is inapplicable to magnet schools,

magnet programs, and traditional schools. The limited use of

race in the 2001 Assignment Plan occurs solely as a final

factor in determining whether a student who has requested a

transfer to a particular school outside of his or her “cluster.”

A choice to seek admission to a particular school within the

district does not equate to the “prize” of admission to an elite

college. The “resides” schools within Jefferson County have

been found as a fact to be “fungible” by the District Court, a

finding made at the same time the school district was declared

unitary. Hampton II, 102 F.Supp. 2d. at 371 n.30. Thus

from a legal perspective, all the “resident” schools in

Jefferson County at issue in this case offer equal educational

opportunities in terms of curriculum, resources and facilities.

It is surely the case that a variety of attributes may make a

particular school more appealing to a particular student or

parent. Parents may prefer the school closest to their

workplace or to their residence. But such individualistic

preferences are distinctly different from the opportunity to

attend an elite institution of higher learning. No court has

ever held that a particular student has the right to attend a

particular school based upon their own individualized criteria,

when from a legal perspective the schools offer equal

educational opportunities.

B. In the context of primary and secondary public

education, the Board’s criteria are narrowly

tailored.

While it is clear that the requirement that the 2001

Assignment Plan must be narrowly tailored in order to survive

strict scrutiny, it is equally true that the inquiry must “be

calibrated to fit the distinct issues raised by the use of race”

23

in the particular case, issues that produce distinct challenges —

in the context of a mandatory primary and secondary school

system. The District Court identified a number of factors that

this Court considered in Grutter in making its determination

that the Michigan Law School Plan was sufficiently narrowly

tailored to satisfy strict scrutiny. McFarland, 330 F. Supp.

2d at 856. When considered in this context, the 2001

Assignment Plan satisfies all of these criteria.

As the District Court noted, the most important issue with

respect to narrow tailoring is whether the Board’s Plan

operates as a quota. /d. This Court has held that a quota is

“a program in which a certain fixed number or proportion of

opportunities are ‘reserved exclusively for certain minority

groups.’” Grutter, 539 U.S. at 335 (quoting J.A. Croson

Co., 488 U.S. at 496). It is not the case, however, that any

use of numbers by a school district immediately dooms the

Assignment Plan. Rather, as this Court noted in Grutter,

“[s]ome attention to numbers, without more, does not

transform a flexible admission system into a rigid quota.” /d.

at 336. In fact, if school districts are to able to fully reach

their compelling interest in diversity, numbers must be

considered, as it would be impossible for a district to

accurately gauge to what extent diversity is being attained

without some consulting of racial numericai data.

The numerical data are used in the most flexible way

possible in the 2001 Assignment Plan. The Board has a goal

of achieving between 15 and 50 percent African-American

students at each school in the district. This range is so widely

dispersed that calling it a “quota” would deprive the word of

any meaning. In fact, when compared with the ranges

accepted by this Court in Grutter, the Jefferson County range

is substantially more variant. Justice O'Connor in her

majority opinion found that the range of minority students at

24

Michigan Law School varied between 13.5% and 20.1%, “a

range inconsistent with a quota.” /d. While Justice Kennedy,

writing in dissent, took issue with the exact range being used

by Michigan Law School, he cited approvingly the range of

minority applicants accepted at Amherst College, a range that

varied between 8.5% and 13.2%. Id. at 389 (Kennedy, J.,

dissenting).

In this case, not only is the range much wider than those

approved by both the majority and members of the dissent in

Grutter, but the disparity between individual schools in

Jefferson County proves that the broad target range is

flexible. The District Court found that 62 of the 87

elementary schools, 17 of the 23 middle schools and 15 of the

20 high schools have over 40% or under 30% African-

American students. McFarland, 330 F. Supp. 2d at 856.

Only 30% of all schools have an African-American population

within five percent of the system-wide average. /d. The

Board has determined that, due to the many factors that make

up a diverse school environment, true diversity can be

reached within a wide range of racial demographic

populations. In so doing, the Board has shown a commitment

to diversity as a compelling interest, rather than simply a

static attempt at racial quotas. It is constitutionally

permissible to set broad racial goals in student assignment so

long as a good-faith effort is made “to come within a range

demarcated by the goal itself.” Sheet Metal Workers v.

EEOC, 478 U.S. 421, 495 (1986). The Board has enacted

such a range here and, in so doing, has far exceeded the range

of plans already approved of by this Court and done so in a

way that has gained the approval of the community as a

whole.

In addition to the prohibition on the use of racial quotas,

the Court’s opinion in Grutter made clear that, in the context

25

of higher education, a “highly individualized, holistic review”

of applications is required in order to ensure that “each

applicant is evaluated as an individual and not in a way that

makes an applicant’s race or ethnicity the defining feature of

his or her application.” Grutter, 539 U.S. at 337. While it

is clear that individualized decisions must be made by schools

and race can only be considered as one of many factors in

making student assignments, it is important to remember that

the Board’s Plan is instituted in a context very different from

the elite law school in Grutter. Unlike a university or

graduate program, the Board’s goal is not to exclude

applicants or to weigh criteria in a competitive manner, but

rather to create equal educational opportunities for all its

students. The particularized individual review in this context

has a completely different purpose. Rather than rewarding

those who have already achieved, the Board is attempting to

foster greater achievement by all students in a broad range of

areas, see Ky. Rev. Stat. § 158.6451(1)(b), and thus its

individualized attention should be considered with that goal in

my mind.

Even with this distinct goal, the Board's assignment

process focuses a great deal of attention on the individualized

characteristics of the student’s application. Factors such as

place of residence and student choice represent the initial

criteria in student assignment, and the vast majority of

placement decisions derive from this criteria. In a very few

instances, when requests for student transfers would bring the

diversity of a particular school outside the range deemed ideal

for the Board to achieve its compelling interest, race can be

used as a “tipping factor” in accepting or denying the

application. JA 44-45. This factor is not used to grant a

special educational benefit or an academic or career “prize.”

Rather, because it has already been held that the “resides”

schools in Jefferson County are fungible and provide the exact

26

same educational opportunity, this use of race does nothing

except potentially deny a student from a preference for

attendance at a particular school, a benefit that amounts to

nothing more than personal preference, not a constitutional

right. See Johnson v. Bd of Educ. Of Chi., 604 F.2d 504,

515 (7" Cir. 1979).

Various amici have criticized the Jefferson County Plan

for its use of race in even this limited capacity and have

argued that the Board does not consider the wider range of

potential diverse qualities that were utilized by the University

of Michigan Law School. While this is true, this argument

seeks to remove this case from its proper context. The Board

is responsible for the education of all students in Jefferson

County, including students as young as five years old. The

law school in Grutter utilized criteria such as potential foreign

travel, knowledge of several languages, overcoming personal

adversity, potential family hardship, leadership qualities,

extensive community service and careers in other fields.

Grutter, 539 U.S. at 338. While these criteria certainly are

applicable in helping create a diverse student body for

individuals who are at least 21 years old and have experienced

a variety of activities, those criteria have virtually no

corollary in the primary and secondary school context. The

factors that can be utilized to ensure diversity are strictly

demographic. The Board has chosen to do this by creating

diversity through the “resides” areas, while allowing for the

opportunity for the free-flow of students to schools away from

their home area and in very few cases, the potential use of

race as a “tipping point.”

In Grutter, this Court noted that entities ranging from the

United States Armed Forces to various corporations have

made clear that diversity, including racial diversity, is of a

benefit in educating individuals for success in the real world.

\

27

Id. at 334; Ky. Rev. Stat. § 158.6451(1)(b). When dealing

with students of primary and secondary school age, other

important components of diversity, such as interests, beliefs

and experiences, have yet to develop in any meaningful way.

Thus the “individual, holistic review” presented in Grutter

would be impossible as applied to children of a much younger

age. To the extent that individualistic review is possible for

these young students, the Board engages in such a review.

This review ensures that, in the context of primary and

secondary education, its plan is narrowly tailored.

The 2001 Assignment Plan is also sufficiently narrowly

tailored so as to not “unduly harm members of a racial

group.” /d at 341. This criterion also must be considered in

the context of primary and secondary education. As Justice

Powell first noted in Bakke, there is a distinct difference

between denial of admission to a selective graduate school and

the assignment of a student to an alternative, but functionally

equivalent public school.- Bakke, 438 U.S. at 300 n.39. As

noted above, a student does not have a right to attend

whatever public school s/he chooses. Johnson, 604 F.2d at

515. So long as a school district is providing the equivalent

educational opportunity to all its students, a finding made

when the 1975 decree was dissolved, it cannot be said that a

particular student has been “unduly harmed” by a decision to

deny a transfer. There are no zero-sum decisions where one

student is accepted and receives the “prize” of higher

education while the other is excluded. Rather, all students

receive the benefit of a fungible education, and the system in

place simply guides the Board’s permissible discretion in

determining the particular student’s placement.

Finally, the evidence suggests that the Board more than

met its obligation to undertake “serious, good faith

consideration of workable race-neutral alternatives that will

28

achieve” its goals. /d. 539 U.S. at 339. The vast majority of

students in Jefferson County never have their race taken into

account at any point during the process. A significant number

of the students are enrolled in the traditional programs or

magnet schools and magnet programs, and these programs

have no racial component to their admissions policies. In

-addition, the vast majority of the students are assigned using

school geographic boundaries which help create the “resides”

schools, albeit boundaries that integrate a variety of

neighborhoods. The fact that these criteria are used to assign

the vast majority of Jefferson County students illustrates that

the board’s motives in creating this system are legitimate. It

seeks to increase diversity in the school system while utilizing

race in the most limited way necessary to achieve the goal.

After over thirty years of experience attempting to

desegregate the schools in the County and achieve workable

solutions to increasing diversity within the system, the 2001

Assignment Plan reflects the Board’s reasoned judgment as to

the best method of accomplishing these goals in the most

narrowly tailored way possible.

CONCLUSION

Beginning in the mid-1970s, nearly twenty years after

Brown v. Board of Education, a federal desegregation order

was entered in Jefferson County in order to reach the goal of

what is now in place: an integrated school system with

community-wide support that produced a diverse learning

environment for the betterment of all of the county's students.

The litigation, political conflicts and social turmoil of the last

few decades has amazingly produced a system that, while not

perfect, is substantially closer to the mandates of Brown and

its progeny than many would have ever believed. The

Respondents and supporting amici simply ask for the ability

29

to keep that system in place and continue to provide its

benefits for students in the future.

For the foregoing reasons, the decision of the Sixth

Circuit Court of Appeals should be affirmed. »

Respectfully submitted,

Phillip J. Shepherd Sheryl G. Snyder

307 West Main Street Counsel of Record

P.O. Box 782 Amy D. Cubbage

Frankfort, KY 40602 Matthew H. Jones

(502) 227-1122 Frost Brown Todd LLC

400 West Market Street

32™ Floor

Louisville, KY 40202-3363

(502) 589-5400

Counsel for Amicus Curiae

Prichard Committee for

Academic Excellence