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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0239%3A56

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 938

## Text

§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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0239%3A56. Public record. Not legal advice.