Last week the Supreme Court began to pry loose the grip of judicial arrogance from Kansas City, where a judge’s unbridled willfulness has produced one of the most spectacular abuses of power, and failures of policy, in American history. After nine years and a cost of approximately $1.5 billion, a program with the one goal of increasing the non-minority enrollment in the city’s schools has produced a school system in which such enrollment is lower than ever – below 25 percent. Furthermore, test scores are down, the dropout rate is up and the principles of separation of powers and self-government have been violated. The only good that has come of this is Justice Clarence Thomas’s concurring opinion when the Court emphatically reasserted that “local autonomy of school districts is a vital national tradition.”
Missouri schools were segregated by law until 1954. In 1986, after nine years of litigation about removing the “vestiges” of segregation, a district judge, Russell Clark, decided that that goal justified judicial Caesarism. He seized control of not only the schools but also, in a sense, the city itself and a portion of the state’s budget. He could not just order the usual futility – forced busing to shuttle children around to achieve a school-by-school racial balance pleasing to the judiciary. That social engineering has provoked black as well as white flight, reduced public support for public schools and failed to prevent the proliferation of schools in which minorities are the majority. But in Kansas City there were not enough white children to shuffle because so many families had moved to the suburbs or across the state line into Kansas. Clark’s solution was to decree “suburban comparability” in order to achieve “desegregative attractiveness.” He ordered the creation within the city of “magnet” schools so attractive that white pupils from out of the district would enroll.
He ordered that money be lavished on 56 such schools. While wielding this executive power, he also exercised the legislative power to tax. When state constitutional and statutory limits on taxation prevented the school district from paying its judicially decreed share for the capital improvements, Clark enjoined the laws limiting taxes. The U.S. Supreme Court, in its first go-around with this case five years ago, approved this judicial overreaching. With Clark cracking his whip, various schools were endowed with Olympic-size swimming pools, planetariums, vivariums, greenhouses, a model United Nations wired for language translation, radio and television studios with an animation and editing lab, movie editing and screening rooms, a temperature-controlled art gallery, a dust-free diesel mechanics room and much more. He ordered pay raises for all but three (what did they do to offend His Majesty?) of the approximately 5,000 employees of the school system. This delighted the teachers’ union, which was spared the rigors of collective bargaining. Clark found in the U.S. Constitution a mandate that parking lot attendants. trash collectors and food handlers be paid particular amounts.
But last week the Supreme Court, ruling against the wishes of four justices and the Clinton Justice Department, held that Clark improperly pursued “suburban comparability” and could not use the failure of the district’s students to achieve national norms on standardized tests as an excuse to continue commandeering the state budget. The Court noted that per pupil expenditures in Kansas City far exceed those m surrounding suburban districts. This is another blow to the theory, promoted by the public education lobby, that the best predictor of a school’s cognitive output is the financial input into the school.
Fireworks came from Justice Thomas, who traced the cause of Clark’s policy to the jurisprudence of liberal racism. “It never ceases to amaze me,” wrote Thomas, “that the courts are so willing to assume that anything that is predominantly black must be inferior.” The mere fact that a school is predominantly black does not, said Thomas, prove that the school is the product of, or is, a constitutional violation. It is not surprising that there will be predominantly black schools in a district where enrollment is predominantly black. Such “racial isolation” long after de jure segregation has ended may reflect voluntary housing choices and other private decisions, not impermissible state actions.
But, Thomas wrote, the assumption of black inferiority, buttressed by dubious social science, has given rise to the notion that black students suffer some unspecified psychological harm when they are not in school with white children. “This position appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.”
Thomas said Clark misread the Brown decision as saying that “racially isolated” schools are inherently inferior. Actually, the harm Brown identified was linked entirely to the stigma of inferiority imposed by state action establishing de jure segregation. Said Thomas. “After all. if separation itself is a harm, and if integration therefore is the only way that blacks can achieve a proper education. then there must be something inferior about blacks.” Under this theory, even de facto segregation injures blacks – but not whites. So, according to Thomas. the theory must be that “blacks, when left on their own. cannot achieve, To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.”
The road from Topeka to Kansas City is straight and smooth. But the road from Brown to this most recent school-related case – a case ostensibly about segregation but really about using racial patterns as pretexts for social engineering – has been winding and bumpy. The decision to restrain Judge Clark is one more sign that the nation is escaping from the intellectual dead end of solving social problems – including the most intractable ones, regarding race – by allowing judges to bend the Constitution to the service of their political agendas.
