Complex Justice

The Case of Missouri v. Jenkins

Joshua M. Dunn

• Publisher: The University of North Carolina Press
• Year: 2012
• Print ISBN: 9781469614618, 9780807831397
• eBook ISBN: 9781469606606
• Topic: Politics & International Relations
• Subtopic: Discrimination Law
• Index: Politics & International Relations

In 1987 Judge Russell Clark mandated tax increases to help pay for improvements to the Kansas City, Missouri, School District in an effort to lure white students and quality teachers back to the inner-city district. Yet even after increasing employee salaries and constructing elaborate facilities at a cost of more than $2 billion, the district remained overwhelmingly segregated and student achievement remained far below national averages.

Just eight years later the U.S. Supreme Court began reversing these initiatives, signifying a major retreat from Brown v. Board of Education. In Kansas City, African American families opposed to the district court’s efforts organized a takeover of the school board and requested that the court case be closed. Joshua Dunn argues that Judge Clark’s ruling was not the result of tyrannical “judicial activism” but was rather the logical outcome of previous contradictory Supreme Court doctrines. High Court decisions, Dunn explains, necessarily limit the policy choices available to lower court judges, introducing complications the Supreme Court would not anticipate. He demonstrates that the Kansas City case is a model lesson for the types of problems that develop for lower courts in any area in which the Supreme Court attempts to create significant change. Dunn’s exploration of this landmark case deepens our understanding of when courts can and cannot successfully create and manage public policy.

1. An Even Hollower Hope?

It appeared to be a victory. The Supreme Court’s 1990 decision in Missouri v. Jenkins (Jenkins II) upheld the federal court’s power to mandate tax increases to pay for a desegregation plan for the Kansas City, Missouri, School District (KCMSD). The plan was pouring hundreds of millions of dollars into the city’s largely failing schools. Judge Russell Clark, who presided over the case, had ordered a school improvement plan that turned all the district high schools and middle schools and half the elementary schools into magnet schools. To house the new magnet schools, he ordered a massive rebuilding and renovation program to create an unsurpassed physical plant. The state of Missouri, a defendant in the case, had to pay for most of these improvements. But the KCMSD, which very willingly supported the suit against it, had to pay for part of the remedial plan as well. The KCMSD, however, could not convince voters to approve the tax increases necessary to fund its portion of the cost. As a result, Judge Clark mandated a property tax increase on residents of the district. The Supreme Court, which had declined to review the appropriateness of the remedy—a victory in itself for the school district and plaintiffs—also upheld in principle the power of federal judges to raise taxes. Judge Clark could not set a specific rate, according to the Court, but could enjoin state laws allowing the school district to set its own rate without the public’s approval.

To those outside Kansas City, this decision appeared to validate the court’s educational experiment. But in Kansas City severe skepticism and harsh criticism of the plan was mounting. The educational gains promised by the court had not materialized. More importantly, black parents were growing disillusioned and even hostile to the court. Within a few years, their opposition grew so intense that a group of parents successfully launched a campaign to take over the school board.

Today, Missouri v. Jenkins stands as a $2 billion educational failure that also caused a substantial part of Kansas City’s black community to reject the goal of judicially mandated desegregation. Thus, Missouri v. Jenkins was a political failure as well as a policymaking one. From one perspective, the power of the courts could not have been greater. The Supreme Court had ruled that federal judges could raise taxes to fund their remedial plans, and opponents had no recourse. But at the same time, the use of this awesome power was quickly discredited in Kansas City.

In this chapter I argue that the existing literature on judicial policymaking cannot explain the outcome of Missouri v. Jenkins. Previous studies, such as Gerald Rosenberg’s The Hollow Hope, explain how courts could succeed in making policy but only under a set of very exacting conditions. In Missouri v. Jenkins those conditions were met. However, to understand the policy failure requires one to make a distinction between “mature” and “emergent” judicial policymaking.

The political failure, which was just as significant and was not primarily caused by the ineffectiveness of the court’s remedial plan, was driven by the nature of institutional reform litigation. One word explains black opposition: exclusion. The black community did not choose the lawyer who represented their children in court. Black parents then found their children excluded from the district’s best schools because of the policies recommended by that lawyer. In lawsuits demanding changes to how public agencies and institutions operate, the resulting policy changes will necessarily affect broad classes of people. The danger in this kind of litigation, which was realized in Missouri v. Jenkins, is that the policies proposed by the attorney representing the official plaintiffs will not match the interests of those affected by his proposed policies.

The Policymaking Court: Power Invested, Promise Unfulfilled?

The furor prompted by Brown v. Board of Education almost alone reignited a debate over judicial activism.¹ After Franklin Roosevelt’s Court-packing plan induced the “switch in time that saved nine,” the judiciary’s role seemed settled.² Courts were to be deferential to the political branches. But Brown revived old conflicts once thought buried with the discredited Lochner-era jurisprudence. The states’ inferior status, made even more inferior by the New Deal, left them susceptible to increased judicial oversight. The Court, buoyed by the moral authority it earned with its attack on segregation, moved beyond desegregation, entering into such areas as legislative redistricting, police procedure, prison reform, and reproductive rights.

By the 1970s, judges at all federal levels were entertaining a variety of political issues not traditionally considered part of the judicial role. Resolving these new issues required judges to devise political or policy solutions. Previously, judges were limited to legal remedies, but now they had an entire horizon of legislative solutions to choose from. Scholars labeled this new type of litigation “public law” or “institutional reform litigation.” Judges operating under the public-law model heard cases involving classes of plaintiffs. Indeed, anyone who could claim to be affected by some policy or action had the right to be included as a plaintiff. In contrast to “public law” litigation, under the “traditional” model, courts were limited to cases involving individual litigants claiming violation of individual rights.³

A number of influential critiques have been leveled against the effectiveness of judicial policymaking. Two of the most prominent are The Courts and Social Policy⁴ by Donald Horowitz and The Hollow Hope⁵ by Gerald Rosenberg.⁶ Both scholars argue, for quite different reasons, that courts are constrained in important ways when trying to make effective public policy. Horowitz contended that courts are poorly equipped for making policy. His concerns centered on the informational problems confronting judges. He argued that judges receive inadequate and biased information from partisan expert witnesses, that the adjudicative process isolates issues that are connected in the real world, that the binary nature of adjudication limits the ability of courts to consider how their decisions affect groups not part of the litigation, and that judges are generalists often lacking any specialized knowledge of the policy issues brought before them.⁷ In contrast, Rosenberg focused most of his analysis on highlighting another constraint on judicial policymaking, primarily the inability of judges to compel others to take actions necessary for accomplishing judicial goals. The courts, he argued, could only overcome their constrained position under certain very narrow conditions. There must be

1) ample legal precedent for change[;]

2) support from substantial numbers in Congress and from the executive[;]

3) support from some citizens or at least low levels of opposition from all citizens; and either

a. positive incentives [must be] offered to induce compliance, or

b. costs [must be] imposed to induce compliance, or

c. court decisions [must] allow for market implementation, or

d. administrators and officials crucial for implementation must be willing to act and see court orders as a tool for leveraging additional resources or for hiding behind.⁸

Studying the courts’ attacks on segregation and enforcement of abortion rights on a national level, Rosenberg found that the courts have been unable to bring about social change on their own. In fact, he argued, the courts seem quite powerless without the help of Congress and the executive branch to bring about social change.⁹

At first glance, Rosenberg’s thesis appears to reconfirm a constitutional truism: courts need the support of other institutions, which is a testament to separation of powers, federalism, and representative government. His argument, then, provides a powerful verification of “Federalist No. 51,” which explains how the Constitution is designed to frustrate and impede the exercise of government power. Thus, there appear to be two main limitations on judicial policymaking. Horowitz’s analysis focuses on internal limitations, while Rosenberg concentrates on external constraints.

My purpose in this book is to call attention to a third type of constraint that is aptly illustrated by Missouri v. Jenkins: lower court judges, in particular, are often constrained by Supreme Court precedents that hinder their ability to frame effective policies and secure their implementation. The evidence from Missouri v. Jenkins supports the general argument that courts are constrained but also shows that they are sometimes constrained for reasons other than ones given by Horowitz and Rosenberg.

Mature versus Emergent Judicial Policymaking

Superficially, Missouri v. Jenkins appears to be the archetypal case that critics and skeptics of judicial policymaking envisioned. It involved a judge with little personal knowledge of education policy and whose insulation from politics deprived him of essential information. In addition, the adversarial process gave him poor information from biased expert witnesses. He then ignored constitutional principles of federalism and separation of powers, not to mention American Revolutionary and constitutional principles, such as “taxation without representation is tyranny” and “the power to tax involves the power to destroy,” and mandated tax increases on Kansas City’s property owners.

Looking more closely, though, we see that doctrinal precedents constrained Judge Clark more than lack of information or external constraints. In fact, he was warned from a variety of sources that his plan would not work. In addition, citizens and political institutions offered little resistance and were easily compelled to follow the court. The court provided positive incentives to induce compliance and imposed costs for not complying. Finally, officials responsible for implementing the court’s decisions were willing to act and use the court to leverage additional resources.

By its very nature, the Supreme Court must decide legal controversies. Lower courts are then obliged to follow the Court’s decisions. When these controversies involve public policy, the Court’s decisions often limit the policy choices available to lower court judges, who then lose flexibility when crafting public policy. In fact, Supreme Court precedent can actually force judges to adopt inappropriate policies. In Missouri v. Jenkins Judge Clark had little choice but to adopt an extensive, costly remedy that failed to address the fundamental problems afflicting Kansas City’s educational system. This case then points to a difference between “mature” and “emergent” areas of judicial policymaking. Horowitz’s and Rosenberg’s analyses apply to emerging areas of judicial policymaking in which higher courts have not set down many policy boundaries for district court judges. By the time Judge Clark had to rule in Kansas City, however, desegregation was a mature area of judicial policymaking. By the late 1970s the Supreme Court had issued multiple decisions and the contours of its approach to desegregation were settled. In fact, the Court offered no opinions on desegregation in the 1980s. Judges presiding over late-developing desegregation cases had few remedial options. Thus, if the doctrines laid down by the Supreme Court failed to match the policy problems of a particular community, the likely result was ill-conceived public policy.

This is not to say that the adversarial process did Judge Clark any favors. The expert witnesses routinely exaggerated the effectiveness of their proposed remedial programs and provided unjustified assurances to Judge Clark. One would not describe them as circumspect. However, Judge Clark was compelled largely by doctrinal precedent to adopt an extremely large and costly remedial plan. Even a cursory examination of the KCMSD during the 1980s and 1990s reveals that it was incapable of effectively implementing any large or costly program. Under the Court’s precedents, Clark was required, one could say, to accept the offer of the highest bidder, which was naturally the plaintiffs.

Desegregation was the most sustained and detailed effort at policy change undertaken by the courts. It is surely revealing that this process removed nearly all meaningful discretion from Judge Clark. Missouri v. Jenkins was, in a sense, foreordained to fail. Precedent required Clark to attack a deep, complicated social problem with meager and impotent weapons.

From Simple Justice to Complex Remedies: The Maturing of Desegregation Law

Institutions both constrain and compel action. Their rules and customs guide the behavior of those under their influence. In considering the judiciary as an institution, its precedents and hierarchical structure hold judicial action within boundaries and channel judicial decisions in a certain direction. Judges in the lower courts are obliged to follow the doctrines set down by superior courts. Flagrantly disregarding precedent is generally not an option. To do so can cause judges to suffer both legal and personal penalties. Perhaps the most reliable restraint on idiosyncratic j...

Table of contents

• Cover Page
• Complex Justice
• Copyright Page
• Dedication
• Contents
• Illustrations and Tables
• Acknowledgments
• Introduction
• 1. An even Hollower Hope?
• 2. From Segregation to Litigation
• 3. Courthouse Magic
• 4. The Field of Dreams
• 5. Waking Up
• 6. Ambivalence and Anger
• 7. The last Days of Desegregation?
• Conclusion
• Notes
• Bibliography
• Index