Free The Roberts Court: The Struggle for the Constitution by Marcia Coyle Page B

plan. Meredith claimed her son was denied admittance to his “neighborhood” school; the other parents said their children had been denied entry into countywide magnet traditional schools.
    The two main lawyers for the parents and the school board were as different as Kentucky moonshine and Booker’s bourbon whiskey.
    Meredith’s attorney, Teddy Gordon, a native of Louisville, was a sole practitioner—outspoken, some would say, bombastic, and emotional, but passionately dedicated to the lawsuit. He first became involved in the school assignment plan in 1998 when a group of African American teachers approached him and said they believed the plan discriminated against minority students who were denied admission to the Central High School magnet program. He won a federal court ruling that race could not be used in determining admission to magnet schools. That high-profile victory made him the logical choice of counsel for future unhappy parents. 7
    Francis Mellen and his law firm started representing the county board of education in the late 1970s. A quiet, deliberate-spoken attorney, Mellen had been advising the board on the student assignment plan and its revisions for a number of years. His firm’s Louisville office—one of eight—employed about one hundred attorneys.
    Both lawyers had children who had attended the Louisville public schools. Gordon earned his law degree at night at the University of Louisville Law School; Mellen graduated from Harvard Law.
    At a pretrial conference on Gordon’s lawsuit, U.S. District Judge John Heyburn II asked both sides to delay a trial, and both agreed to his request. Judge Heyburn sought the delay because he wanted to wait for the U.S. Supreme Court’s decision in one of the most closely watched cases of the 2002–03 term, one that could be key to answering the question raised by the Louisville and Seattle lawsuits. The Rehnquist Court had agreed to decide whether race-conscious admissions policies at the University of Michigan Law School and undergraduate program violated the Constitution’s equal protection clause.
    The Center for Individual Rights, a non-profit, libertarian public interest law firm, had challenged the Michigan policies. It also had taken the lead in challenging the use of a race-conscious admissions policy at the University of Washington—the same case that Michael Madden,lawyer for the Seattle School District, was defending when the school district turned to him for advice on its school assignment plan. To this day, the center concentrates its efforts on getting “the government out of the business of classifying citizens by race,” among other goals.
    The Michigan cases— Grutter v. Bollinger and Gratz v. Bollinger —were not the first time the Supreme Court had examined affirmative action in higher education enrollment. The Burger Court, in a highly fractured ruling in 1978, struck down what a majority found to be racial quotas in the admissions policy at the University of California, Davis, medical school. Allan Bakke, a white applicant who was twice denied admission to the medical school despite better grades and test scores than successful minority applicants, charged the school with reverse discrimination. The medical school reserved sixteen spots for minority students out of a total limited enrollment of one hundred annually.
    Justice Lewis F. Powell Jr., the courtly, southern lawyer appointed to the Court by Richard Nixon, who was considered the center or swing vote on the Court, wrote what is known as the controlling opinion in Regents of the University of California v. Bakke . Racial and ethnic classifications of any sort, he said, are inherently suspect and call for the most exacting judicial scrutiny. The goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, he explained, but this special admissions program, which foreclosed consideration to