Posted: July 13, 2009
y almost any standard, Missouri v. Jenkins, the Kansas City, Missouri, school desegregation case, was extraordinary. Between 1985 and 2003 federal judges ordered more than $2 billion in new spending by the school district to encourage desegregation. Not only did they double property taxes to pay this huge bill, but they imposed an income tax surcharge on everyone who lived or worked in the city. The court order turned every high school and middle school (as well as half the elementary schools) into "magnet schools," each with a distinctive theme—including not merely science, performing arts, and computer studies, but also classical Greek, Asian studies, agribusiness, and environmental studies. The newly constructed classical Greek high school housed an Olympic-sized pool with an underwater observation room, an indoor track, a gymnastic center, and racquetball courts. The former coach of the Soviet Olympic fencing team was hired to teach inner-city students how to thrust and parry. The school system spent almost a million dollars a year to recruit white kids from the suburbs, and even hired door-to-door taxi service for them. By 1995 Kansas City was spending over $10,000 per student, more than any comparable school system in the country. Despite this massive effort, litigation failed either to improve the quality of education or to reduce racial isolation. Test scores continued to drop, and the percentage of minority students continued to rise. Eventually, black parents—who had long opposed the court's heavy emphasis on "magnet schools" designed to draw whites into the school system—insisted upon a return to neighborhood schools.
In Complex Justice Joshua Dunn does a masterly job bringing this complex case to life. An assistant professor of political science at the University of Colorado, he knows the case inside out and writes about it engagingly. Not only does he explain the legal issues in terms non-experts can understand, but he has a firm grasp of the local politics behind the litigation. He has mined the extensive legal record and conducted interviews with almost all the important participants. Most importantly, he refuses to accept stock answers to the central question: who destroyed the Kansas City school system? He insists, counterintuitively, that the man who presided over the case for two decades, District Court Judge Russell Clark, should not bear most of the blame for this educational disaster. Dunn is more inclined to blame the Eighth Circuit Court of Appeals (which, he argues, gave Judge Clark little room to maneuver) and the Supreme Court (which imposed conflicting demands on lower courts in desegregation cases). Dunn's refusal to finger a convenient scapegoat forces the reader to confront a number of the disconcerting dilemmas of school desegregation.
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One of the oddest features of Missouri v. Jenkins was that it was not initiated by civil rights groups or parents who claimed that the school system discriminated against minority students, but rather by the Kansas City, Missouri, School District (KCMSD) itself. After the Supreme Court decided Brown v. Board of Education in 1954 and declared separate educational facilities inherently unequal, Kansas City desegregated its schools quickly and without recourse to litigation. In subsequent decades the black population expanded rapidly while whites moved to the suburbs. By the late 1970s nearly two-thirds of the students in the system were black. When the federal Department of Health, Education, and Welfare charged the KCMSD with running a segregated system, the KCMSD responded by filing suit against the surrounding suburban school districts and the states of Missouri and Kansas, claiming that they had contributed to the racial isolation of city schools. This was the first time a school board had ever filed a desegregation suit—and the last. The district court judge quickly found the KCMSD's argument incompatible with the Supreme Court's 1974 decision in Milliken v. Bradley, which had absolved suburbs of responsibility for the concentration of minority students in urban schools.
Instead of dismissing the case, though, the judge transformed the plaintiff school district into a defendant, and then searched for a substitute plaintiff. After the NAACP and the ACLU refused to take the case, Judge Clark appointed Arthur Benson, a wealthy, white, liberal attorney, to present the plaintiff's case. But first Benson had to round up a few African-American children to "represent." This left Benson free to define the interests of the minority children who had allegedly suffered from unconstitutional segregation. Not only had the federal judge "defined the structure of the suit by picking the plaintiffs and defendants," but as litigation progressed, "Benson rarely failed in any legal appeal he made to Clark. This superficially cozy relationship eventually led black community leaders to accuse Clark and Benson of ignoring the true interests of black children." And with good reason.
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Given Judge Clark's unusual role in creating this lawsuit, why shouldn't he be blamed for the tragedy that followed? Dunn convincingly argues that Clark was not an activist judge in the tradition of Frank Johnson (who initiated judicial efforts to restructure state mental hospitals and schools for the developmentally disabled) or Jack Weinstein (who slyly orchestrated the huge Agent Orange settlement). In his initial ruling "Clark, at times, seemed contemptuous of Benson's claims. One by one, he refuted Benson's arguments but in the end found a rationale for the verdict." So why did this rather cautious judge undertake such an enormous task on the basis of such an unconvincing legal argument? Dunn's reasoning is straightforward: "the Eighth Circuit would obviously have overturned him if he had ruled differently." Not only had that appeals court found St. Louis guilty of unconstitutional segregation in similar circumstances, but when the Eighth Circuit met en banc to review the Kansas City case, it came within a single vote of reversing Judge Clark for being too lenientwith the school system. Sixteen years later, long after it had become clear that the desegregation order had been a miserable failure, the Eighth Circuit refused to allow Clark's successor to terminate the case. Although the Supreme Court was by then urging lower court judges to be more cautious, it gave them little clear guidance on how to proceed in these troublesome cases. In short, the Supreme Court remained aloof while the Eighth Circuit remained pigheaded. Under the circumstances, Judge Clark became increasingly attached to the desegregation plan he had spent a large part of his career developing.
What was distinctive about Clark's approach was that he refused to take the simple but futile step of using busing to spread around the city's few remaining white students. He recognized that this would only accelerate white flight. Since the Supreme Court had prevented federal judges from ordering busing between cities and suburbs, he decided to take measures to dramatically improve the quality of education in Kansas City schools. This, he expected, would pull white students back into city schools—or, as the court put it, increase their "desegregative attractiveness." Even if this effort at integration failed (as it quickly and obviously did), then the minority students left in city schools would at least be more likely to receive the "equal educational opportunity" promised in Brown. In the abstract, this was not a bad idea. But it never came close to working.
Why, despite all the money poured into the Kansas City school system, did the court do such a lousy job improving urban education? One can cull at least four reasons from Dunn's detailed examination of the court order's implementation. First, Judge Clark relied much too heavily on two educational "experts" who had quickly thrown together an ambitious magnet school plan. These education school professors made extravagant claims about the prospect for rapid improvement: instituting their plans, they claimed, would raise Kansas City students' test scores to the national average within four or five years and would draw in enough white students from the suburbs to make the school system 40% non-minority. Even Benson, the lawyer for the plaintiffs, found these claims preposterous. But who could argue with such educational "experts" with their reams of reports on "best practices"?
Second, the judge repeatedly ignored the preferences and complaints of black parents whose children were the subject of his experiment. Many black parents objected not only to their children being bused long distances, but also to the fact that most of the new schools emphasized exotic themes rather than the basic skills so many students lacked. When the black school superintendent, the black members of the school board, several dozen black pastors, and the local chapter of the NAACP asked the court to institute a more modest magnet plan, they were rebuffed. The longer the case went on, the deeper grew the schism between black leaders and parents and the white judges, lawyers, and experts claiming to represent black interests.
Third, the school administrators who were handed this huge pile of money were hopelessly incompetent and corrupt. Between 1969 and 1999 the school system went through 21 superintendents. In 1991, after firing yet another superintendent, the school board hired a white replacement who had recently been fired for running a California school district into bankruptcy. His primary qualification was that he was an avid supporter of magnet schools. After surrounding himself with "highly paid, mostly white assistants," he took a paid medical leave, and moved to Florida, where a local TV news crew caught him doing construction work on his new house. The central staff of the KCMSD grew to 600—one for every 60 students. By 1990 the district was spending less than half its budget on instruction. One high school spent nearly $50,000 on a trophy case despite the fact that it had no trophies to display. Dunn reports that every year "hundreds of thousands of dollars worth of computers, overhead projectors, VCRs, and TVs would disappear." The court substantially increased teacher pay, but did nothing to remove incompetent teachers.
Finally, the court remained wedded to the notion that black children cannot learn unless white children sit in their classrooms. Dunn offers the following description of the judge's effort to create integrated schools:
Under Clark's plan each magnet school had a rigid quota system. For every six black students, there had to be four white students. The quota system was based on total enrollment in a school rather than the total number of seats. Hence, if a school had 1,000 total seats but had 240 white students, only 400 black students could attend that school. Because the district could not come close to filling all of the "white" seats in the magnet schools, many black children could not attend the magnet school of their choice, even though space was available in the school. The quota system was so rigid that...the district became concerned about being able to find space for all of its black students. In 1989 there were over 7,000 black students on waiting lists for magnet schools even though there were thousands of available seats. Adding insult to injury was KCMSD's advertising campaign, which touted the magnet schools as the "best education in Kansas City." ...These quotas and the penalties they imposed on minority children infuriated the black community.
This anger among black parents spawned a political organization that eventually took control of the school board and forced a return to neighborhood schools.
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One can agree with Dunn that the Supreme Court and the Eighth Circuit bear much of the responsibility for what happened in Kansas City and still conclude that he goes a bit easy on Judge Clark. Clark was distressingly slow to change his plan when it became clear that white students would not stream back into urban schools, that magnet schools were doing little to raise student achievement, and that millions of taxpayer dollars were being poured down a rat hole. He blamed his plan's failure on the ineptness of the school system and its penchant for "lavish" spending without taking any responsibility for his own mistakes. Even more importantly, he made little effort to explain to appellate courts what was happening on the ground. Since district court judges are the only members of the judiciary with the capacity to monitor developments in these complex institutional reform cases, they have a special responsibility to share this assessment—including all the bad news—with their superiors. If the judges on the Eighth Circuit remained woefully ignorant of the realities of urban education, it is in part because no one made an effort to teach them.
Dunn emphasizes that while the judicial effort to improve Kansas City schools was a dismal failure, this case does not prove the oft-repeated claim that courts are weak institutions. As he puts it, "Judge Clark showed an extraordinary capacity to command others and have those commands followed. He ordered the KCMSD and the state of Missouri to build multimillion-dollar school buildings, and they were built; he ordered tax increases on the citizens of Kansas City, and they were imposed." What the judiciary demonstrated in Kansas City was not its lack of power, but its lack of wisdom and prudence. Never did any of the judges involved in this decades-long case—from the district court to the Eighth Circuit to the Supreme Court—speak clearly about what they were trying to accomplish, the trade-offs among their various goals, or the best ways to measure the results of their costly experiment. They remained lost in a fog of legal abstractions. The case of Missouri v. Jenkins shows that courts are in fact capable of bringing about significant social change: they turned a merely failing school system into a much more expensive, totally dysfunctional one. What courts have not demonstrated is the capacity to produce the equal educational opportunity that they so ostentatiously and self-righteously champion.