Kentucky Supreme Court justices may favor JCPS in student-assignment suit

This from the Courier Journal:

Kentucky’s Supreme Court appeared willing Wednesday to uphold Jefferson County’s student-assignment plan — with several justices questioning whether state law guarantees students seats in their neighborhood schools.

Although no ruling was issued after more than 45 minutes of arguments, school board officials and advocates such as the Louisville NAACP said the seven justices’ comments have them hoping that they will overturn an appeals court ruling striking down the district’s plan. “You never can tell, but they appeared to be receptive to our arguments,” Jefferson County School Board Chairman Steve Imhoff said. “I feel pretty good.”

From Left, Justice Bill Cunningham, Justice Daniel Venters and Justice Lisabeth Hughes Abramson listen during the case before the Kentucky Supreme Court dealing with busing in Louisville during oral arguments in Frankfort. April 18, 2012

But Louisville attorney Teddy Gordon, who is representing several parents who sued the district after their children didn’t get a spot in their neighborhood schools, said he believes the justices will decide that state law supports his clients. Gordon persuaded the U.S. Supreme Court in 2007 to invalidate JCPS’ old desegregation plan because it looked at individual students’ race when assigning them to schools.



“I hope they’ll side with common sense,” said Chris Fell, one of the parents who sued JCPS and also is running for the school board in an attempt to abolish the diversity plan.



Attorneys do not know how long the justices will take to rule, which will determine if the district can keep a revised assignment policy that considers several factors, including neighborhood socioeconomics, to determine where students can attend school.


The tone of Wednesday’s questioning was much different from last fall, when a divided Kentucky Court of Appeals ruled against the district after harsh questioning, with one judge deriding voluntary integration as a failed “social experiment.”



By contrast, the high court justices hewed more closely to the legal issue at hand Wednesday — the parsing of language in a state statute.


“It’s not up to this court to decide the policy, we just have to (interpret) what the statute says,” Justice Daniel Venters said.

Kentucky law says parents may “enroll” a student at the school closest to their home. Gordon argued that the wording also entitles that student to attend the same school.

Attorneys for both sides agreed that the original law was passed in the 1970s as an attempt to thwart federal desegregation in Jefferson County. It was ruled unconstitutional while a decree was in place, but that decree was lifted in 2000.


Gordon contends the law now applies: “The contemplation (by lawmakers was that) these children go to the school where they enroll.”


But Byron Leet, an attorney for the district, argued that the legislature removed the word “attend” from the statute in 1990 to ensure that districts were allowed to make assignment decisions — not, as Gordon contended, to clean up redundant language.


There is no legislative record detailing the intent of the change.


“This case became a freewheeling political debate about the relative merits of neighborhood schools and desegregation. (But) the real issue is the statutory construction,” Leet said. “The only reasonable conclusion … (is that) when that word was taken out, the statute no longer dictates attendance.”


Venters pressed Leet on the meaning of enroll, citing a higher education case from Mississippi in which enroll meant to attend.


But Justice Lisabeth Hughes Abramson noted that enroll and attend have different dictionary meanings and that other Kentucky statutes distinguish between the two.


Justice Mary Noble asked if it was not a “reasonable inference” to consider the 1990 wording change purposeful, because the legislature at the time was aware that Jefferson County used an assignment system.


And she told Gordon that because JCPS uses clusters of elementary schools as an attendance district, “I don’t think you can argue that attendance district means the school closest to your home.”


Justice Wil Schroder asked if a neighborhood-school system would leave some overcrowded and others half empty, asking, “Isn’t that why we have a school board and elect individuals to decide who goes where?”

Leet also was asked if a right to attend the nearest school would be difficult to implement.

“It would not be difficult, it would be impossible,” Leet said. “Because of where buildings are and populations aren’t, everyone can’t attend the closest school.”


Gordon disagreed, saying the district has already considered the prospect during previous challenges, arguing that a neighborhood schools plan could be “created by the mere push of a button in today’s computer world.”


After the hearing, Gordon said districts should stop spending money to move children among schools, instead making sure all schools provide a better education. He said busing is harming student education, as evidenced by some schools’ low test scores.


Parent Belinda Abernethy, also one of the plaintiffs in the case who watched the arguments, said she isn’t sure how the court will rule. But she said even if the justices overturn the appeals court decision, she believes the lawsuit already has been successful.


“We’ve brought attention to the issue,” she said, noting that the school board recently enacted changes aimed at reducing bus-ride times, partly as a result of parent complaints.


Among the assignment-plan supporters attending Wednesday were Raoul Cunningham, president of the Louisville NAACP, and Georgia Powers, the first African American elected to the state Senate.

Powers said she hopes the high court leaves the plan in place because it helps avoid resegregating schools by race and income. She said she saw the disadvantages of segregated schools growing up.

“We’ve come so far in Jefferson County, and I don’t want to take a step back,” she said.