Judge will decide whether to change Ferguson-Florissant school board voting | St. Louis Public Radio

Judge will decide whether to change Ferguson-Florissant school board voting

Jan 19, 2016

Does the method of electing the Ferguson-Florissant school board discriminate against African-Americans? Or would proposed changes give them less power than they have now, not more?

After listening to arguments on both sides, it will be up to a federal judge to decide whether board members should be elected from districts, not at large as they are now.

U.S. District Judge Rodney Sippel heard more than an hour of closing arguments Tuesday after a six-day trial on a suit filed by the American Civil Liberties Union. It argues that the at-large election of the seven board members in Ferguson-Florissant violates federal voting law by diluting the power of black voters.

The arguments by both sides paid close attention to numbers. Depending on whether statistics from the 2010 census or the more recent American Community Survey are used, African Americans are either just shy of a majority of the voting age population in the district or just more than a majority.

Student enrollment in Ferguson-Florissant is about 80 percent black. In the past two years, one black member has been elected to the board at each April election, so the board now has two blacks and five whites.

In the background of the case were two issues that have put the north St. Louis County district and the surrounding area in the headlines in recent years: the departure of Superintendent Art McCoy and the fatal shooting of Michael Brown by a Ferguson police officer.

Cindy Ormsby, attorney for the Ferguson-Florissant school district, started her closing argument by stating flatly:

Ferguson-Florissant parent Redditt Hudson, attorney Dale Ho, and past school candidate Willis Johnson at a press conference announcing a lawsuit against the Ferguson-Florissant schools in 2014.
Credit Diane Balogh | ACLU of Missouri

“Let’s face it: If the word Ferguson were not in the name of the school district, we would not be here today.”

She said that any information about the McCoy suspension and resignation that was withheld from the public was kept confidential because of board policies and McCoy’s wishes, not because the board was unresponsive to the black community.

But Anthony Rothert of the ACLU cited a history of discrimination against African Americans in north St. Louis County and said that such bias has carried over to elections.

In general, he said, “African-American candidates usually lose, and white candidates usually win.” And, he added, facts that have come to light in the wake of the killing of Brown underscore the disparities that blacks face.

“In 2014,” Rothert said, “the world saw that in in part of St. Louis, particularly in North County, African Americans and whites have a very different experience. … The experience in the Ferguson-Florissant school district shows that equal opportunity has not yet arrived for African-American voters.”

Sippel heard the case without a jury. He gave both sides until late April to turn in additional briefs, then responses to the new briefs on the other side, before rendering a decision.

Equal opportunity, not results

Before final arguments began, the last witness in the trial was Courtney Graves, an African-American woman who won a seat on the Ferguson-Florissant school board last year. In the at-large election where two seats were at stake, she won more votes than any of the other candidates.

She said that keeping the at-large voting process would help guarantee that the board represents the whole school district, not individual areas.

“If we go to individual districts,” Graves said, “it’s almost like you get whoever runs. It if it’s only one person, you’re kind of just stuck. And people will be fighting for their own turf.”

On cross-examination, Graves said she ran because she wanted to improve representation in general, not from a racial standpoint.

“I felt the best candidates or the best people weren’t on the board,” she said. “They needed candidates such as myself, so that’s why I ran.”

During her closing argument, Ormsby asked Graves and other board members in the courtroom to stand, as well as the district’s new superintendent, Joseph Davis. She noted that the board currently represents all parts of the district – three from the south side, four from the north side – and that they work together well, not to preserve the status quo but to improve the lives of all of the district’s students.

“They are cohesive,” she said. “They cohesively support the superintendent. They cohesively support the entire school district and all of its students.”

'Let's face it: If the word Ferguson were not in the name of the school district, we would not be here today.' -- Cindy Ormsby, attorney for Ferguson-Florissant

She said that the fact that whites have held a majority on the school board does not mean that the at-large voting process in Ferguson-Florissant violates the federal voting rights act.

“It’s not a guarantee of equal outcomes,” she said of the law. “The question is whether there is equality of opportunity, and there is.”

Ormsby acknowledged that voters often favor candidates of their own race, but she also said there is a lot of crossover voting, and the ACLU is trying to discount the success of African-American candidates.

“The plaintiffs want to go inside the minds of voters and say they didn’t really prefer this person,” she said, “But we can’t really know what they preferred. When African-American-preferred candidates lose an election, there is more to the situation than meets the eye. For them it’s always about race.”

She concluded by saying that the lawsuit has drained resources – money, time and attention – that could be better used in the classroom.

“Let them spend the district’s money on educating and caring for students in the district,” Ormsby said.

Patterns of discrimination

In their closing argument,  ACLU attorneys Rothert and Julie Ebenstein pointed to what they said were well-established patterns of discrimination that have blocked African-Americans from electing the candidates of their choice.

They cited figures about lower participation rates by blacks in voter registration and showing up at the polls. And they cited a number of legal precedents they said favor a process of district voting, not at-large voting, that would give African-Americans the electoral power they should have.

“White voters usually vote as a bloc to defeat African-American candidates,” Ebenstein said. “Voters should have an opportunity to elect candidate from their own racial group if they show preference for candidates within their own racial group.”

'White voters usually vote as a bloc to defeat African-American candidates.' -- ACLU attorney Julie Ebenstein

She said the elections in 2014 and 2015, where black candidates won seats on the board, were influenced first by the shooting of Brown, then by the filing of the lawsuit. But, she added, that success does not mean that the changes sought by the ACLU are not needed.

“Because of those special circumstances,” Ebenstein said, “their election is not an indication of the usual patterns in the district.”

Rothert enumerated nine separate factors that historically have pointed to discrimination in voting. He also linked such bias to recent findings in north St. Louis County, such as the prevalence of traffic stops involving black drivers and the historical success of black candidates in the city of Ferguson.

And he noted that the Ferguson-Florissant district itself was created in the 1970s – 20 years after the U.S. Supreme Court struck down school segregation – because of racial disparities in the old Berkeley, Kinloch and Ferguson school districts.

On the subject of McCoy – the school district’s first black superintendent, who was placed on suspension in 2013 for unspecified reasons, then later resigned – Sippel asked Rothert how that information should figure into his decision.

“You want to use this example to show how the district is unresponsive,” the judge said. “I’m not saying I want to disregard it. Tell me how I handle that. Help me out.”

Rothert responded:

“It doesn’t matter ultimately why he was suspended, especially because the feeling in the community was that it was because of race. The refusal to give an explanation allowed that to fester and allowed that to grow.”

Follow Dale on Twitter: @dalesinger