by Joshua M. Dunn. Chapel Hill, NC: The University of North Carolina Press, 2008. 240pp. Cloth $37.50. ISBN: 9780807831397.
Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: bsweet [at] clarion.edu.
Joshua Dunn has written an enlightening book on MISSOURI v. JENKINS, one of the most controversial desegregation cases. When many people think of this case they envision a federal district court judge gone amok. Judge Russell Clark more than doubled property taxes and even attempted to implement new taxes. He ordered salary increases and the construction of cutting-edge facilities. By the time his mandates had run their course, in about a ten-year period, he had ordered the spending of $2 billion. There was little to show for all the spending. The district remained predominantly African-American, and test scores barely budged. How could a judge do something that seems so excessive and irrational? Joshua Dunn’s book, with clarity and simplicity, makes Judge Clark’s actions almost understandable.
Dunn starts by explaining how the judge had to operate within a judicial straightjacket established by Supreme Court precedents and an activist Eighth Circuit Court of Appeals. In GREEN v. NEW KENT COUNTY SCHOOL BOARD (1968), the Court imposed an affirmative duty to desegregate; simply ending legally imposed segregation was not enough. Furthermore, desegregation efforts would be “judged by their results – how effectively they eliminated racially identifiable schools” (p.18). The Court wanted to see the vestiges of discrimination eliminated. In SWANN v. CHARLOTTE-MECKLENBERG SCHOOL BOARD (1971), the Supreme Court held that any school system that had a history of legally imposed segregation and still had racial disparities in its schools was presumed to be unconstitutionally segregated. As Dunn points out, school systems in the South, and in border states like Missouri, had to overcome this presumption of unconstitutionality.
The Supreme Court seemed to be moving in the direction of blurring the distinction between de facto and de jure segregation. This distinction appeared to be nearly eliminated in KEYES v. DENVER SCHOOL DISTRICT NO. 1 (1973). The KEYES case placed the burden on school boards to prove that they did not contribute in any way to segregated housing patterns that led to racially imbalanced schools. Because this negative would be difficult to prove, school boards essentially had an affirmative duty to integrate. Some school districts thus faced an insurmountable task. How do you integrate schools when an overwhelming number of available students are minority? One suggested solution was to impose an interdistrict remedy. A proposal was made to integrate the Detroit schools by merging the city and suburban schools to create a massive metropolitan school district. [*646] The non-minority students would be found in the suburbs. This remedy was rejected by the Supreme Court in MILLIKEN v. BRADLEY I (1974). Dunn suggests that this decision made both constitutional and educational sense. The suburban schools never practiced de jure segregation, and busing students great distances becomes educationally counterproductive.
If you cannot force non-minority students to participate in an integration plan, could they be encouraged to volunteer? This was the question asked and answered in MILLIKEN v. BRADLEY II (1977). It might be possible to lure some non-minority students from the suburbs, if the urban schools were perceived to be particularly attractive. This idea led to the development of magnet schools. However, magnet programs have a very serious flaw; they frequently create isolated schools that attract gifted minority and non-minority students. The majority of minority students remain in underperforming racially isolated schools. In order to prevent this problem, the entire school system would have to be elevated to magnet school quality. This solution would obviously be a very expensive endeavor, but this is exactly what Judge Russell Clark set out to do.
In Chapters Two through Four Dunn discusses the history of educational segregation in Missouri and the ensuing legal battle in Kansas City in particular. The political and social milieu of Missouri was a composite of the South and Midwest; therefore, blacks tended to fare a little better than in many parts of the South, at least after the Civil War. Before the war it was illegal to educate blacks. Immediately after the Civil War, it was optional to establish separate schools for blacks. Not long after the Civil War it became first a legal requirement, then a state constitutional requirement, that separate schools be established for blacks. The 1945 state constitution required equal funding for white and black schools and allowed the possibility of nonsegregated schools. Despite the improvements in Missouri’s constitutional provisions, “black schools statewide were substantially inferior to white schools” (p.33). Shortly after BROWN v. BOARD OF EDUCATION was handed down in 1954, Missouri indicated that it would comply, and, in fact, the state’s early desegregation efforts were noted for their promptness and relatively smooth implementation.
Ending desegregation is very different from integrating schools. The latter is much more difficult, especially with the demographic changes that urban America experienced in the post-World War II period, that only accelerated in the 1960s. Kansas City was not an exception to these demographic changes. After BROWN, the Kansas City Missouri School District (KCMSD) created “race-neutral neighborhood attendance zones.” However, racial housing patterns, white flight to the suburbs and black migration to the city meant that most schools were predominantly of one race. The schools in Kansas City became increasingly racially isolated, leading to a call for action.
Judicial intervention was perceived to be the only plausible course of action. A complex array of actors either jumped or were dragged into the legal fray. Some of the litigants included the KCMSD, the Departments of Health, Education, and [*647] Welfare (HEW), Transportation (DOT), Housing and Urban Development (HUD), the State of Missouri, suburban school districts in Missouri and Kansas, and children attending KCMSD schools. The general argument was that governmental policies at the federal, state, and local levels, even if unintentional, left KCMSD racially isolated. Dunn does an excellent job of explicating the complexity of this virtual legal free-for-all. When the dust settled, the only remaining defendants were KCMSD and the State of Missouri. With suburban schools released from the litigation, it became increasingly unclear how a racial balance could be achieved. Interestingly, for some of the parties, racial balancing was not a priority.
This latter point was particularly true for many black parents whose priority was simply better schools. This reviewer found Dunn’s description of the social conflict and political infighting particularly informative. The lead plaintiff’s counsel, Arthur Benson, was a white activist lawyer, who was obviously sincere about wanting to help black children, but he was not in synch with their parents and black leaders in the community as to how to achieve an appropriate result. Benson’s dream was integration, the parents and the KCMSD wanted resources to improve the schools.
Chapters Five and Six describe the near total failure of the desegregation plan, ensuing finger pointing, and resentment within the African American community. In terms of assessing the success of the desegregation plan, Dunn discusses the three primary objectives of capital improvements, desegregation, and student achievement. The first objective was accomplished, despite evidence of waste and likely corruption. The KCMSD did build a number of impressive cutting-edge facilities. Dunn credits this success to the hiring of a Project Management Team (PMT), a group of respected local architects and contractors who were able to bring competency to the construction projects. Despite the PMT, the KCMSD still allowed an excessive number of change orders, leading to delays, cost overruns, and no-bid situations. Nonetheless, the showpiece Central High School was completed on time, albeit at twice the original projected cost. The building is so extravagant that some have called it the “Taj Mahal” (p.116).
Dunn describes the desegregation effort as a total failure. In fact, “data from 1987-95 show the plan to be a costly exercise in futility” (p.117). Overall, the percentage of minority students actually rose. The number of black students increased, while their percentage held fairly constant because the number of Hispanic students also went up. The number and percentage of white students went down. KCMSD spent millions of dollars advertising and recruiting white students, but to no avail.
Dunn provides a number of reasons for the failure to attract white students. First and foremost, white parents where satisfied with the quality of education their children were receiving in the suburbs. Additionally, students wanted to attend schools in their neighborhoods and did not want to be transported long distances. There were also safety concerns. The final two reasons given were the complexity of the magnet program and the constant criticism of the KCMSD, which confirmed the belief that it was incompetent. [*648]
The effort to improve student achievement was also a total failure. In some instances, student performance declined after implementation of the magnet school plan. More embarrassingly, some of elementary schools, although not converted to magnet schools and showered with additional resources, performed very well. Additionally, the non-magnet Lincoln Academy provided the best high school education in the district. Some educational experts argued that magnet schools actually hurt black student achievement because they need to master basic skills before specializing.
Dunn presents a number of other explanations for the plan’s failure to improve student performance, including KCMSD administration’s inability to implement the magnet programs. It was also suggested that parental involvement was a problem. Many of the KSMSD parents were described at being educationally inattentive or disadvantaged. Parental involvement and supervision is a key factor in a child’s educational success. Sometimes parental involvement was encouraged at the wrong time, for instance with KCMSD’s waiver policy. Parents could sign a waiver to allow their failing middle school student to move into the next grade. In fact, at one point, 20% of middle school students were advancing on waivers.
Another explanation is the boogeyman of standardized testing. The argument against standardized testing seemed to fit the pattern of student performance in the KCMSD. Students drilled on taking standardized tests do better in the early grades but do not develop the more complex skills necessary for later grades. The KCMSD students performed well through about grade four, but then began to fall desperately behind. Finally, some of the blame for poor student performance can be attributed to the quality of teaching. Arthur Benson estimated “that at least 20 percent of the teaching staff was completely incompetent” (p.131).
One of the most interesting parts of the book covers the reaction of the African American community to the magnet school plan. Blacks seemed to be initially indifferent to the plan but then grew increasing hostile to it. Dunn provides three “reasons for black ambivalence and hostility” (p.139). One, black community leaders were not included in the planning decisions for the magnets. Two, many blacks were not too keen about magnet schools to begin with. Three, implementation of the plan was described as “racially insensitive.”
The racial insensitivity charge basically had two components. First, the plan set up quotas for the magnet schools because the goal was integration. Each magnet school was supposed to enroll six black students for every four white students. However, because the schools failed to attract white students, the number of black students was severely limited to maintain the 60/40 ratio. Thousands of black students remained on waiting lists to get into magnet schools that had thousands of empty seats. Adding to black parent frustration was the multimillion dollar ad campaign aimed at white students boasting the superior quality of the magnet schools.
The second component of the racial insensitivity charge was the selection of [*649] magnet themes. The proposed Asian studies magnet school became a flashpoint. However, other themes also angered black parents, like Slavic studies. In response to these themes, the black community requested an Afrocentric magnet school. Arthur Benson resisted this proposal because it would not facilitate his goal of integration. Afrocentric studies were not deemed likely to attract white students. However, the resistance to Afrocentric studies was perceived as racist. Once again the different objectives became painfully obvious. Benson wanted integration; black parents want a better education for their children.
One positive outcome of black frustration with the desegregation plan was that it sparked a political movement. Blacks became motivated to participate in the political process in order to wrest control of their children’s education from the then current school board, Arthur Benson, and Judge Clark. Dunn indicates “[t]he unintended consequence . . . was the creation of a new black political force that mobilized black parents, established coalitions across political and racial lines, and reasserted common sense against the far-fetched theories of educational experts” (p.157). By 1995 the political movement achieved control of the school board.
Chapter Seven wraps up the saga with a discussion of the Supreme Court decisions that sounded the death knell for the magnet school plan. The Oklahoma City School District was struggling with the same demographic changes experienced in Kansas City. Busing was becoming increasingly counterproductive, and the district wanted to return to neighborhood schools. The issue was whether the school district had achieved unitary status. In BOARD OF EDUCATION OF OKLAHOMA CITY v. DOWELL (1991), the Court signaled that judicial supervision could be withdrawn with a finding that a school district was within constitutional compliance. Additionally, the decision marked the resurrection of the de jure and de facto distinction. FREEMAN v. PITTS (1993) also involved the issue of removing judicial supervision and de facto segregation. The Dekalb County schools in Georgia had experienced demographic changes which made maintaining integrated schools difficult. Justice Kennedy’s opinion stated that racial balancing is not an end in itself; it is a goal when a racial imbalance is the result of a violation of the Constitution. Dunn indicates that the Court sent “a clear warning to district judges that segregation itself was not unconstitutional and that they should not attempt to undo segregation that is only tenuously related to past discrimination” (p.162).
The above two cases laid the groundwork for the demise of Judge Clark’s supervision of the KSMSD. In the face of these decisions, Judge Clark ordered pay raises, with commensurate tax increases, and extended the magnet school program for two more years. These actions triggered litigation that brought the case to the Supreme Court again in 1995. In a 5-4 decision, the Court found that the District Court was imposing an interdistrict remedy for an intradistrict violation. It was inappropriate to attempt to lure teachers and students away from districts that had not violated the Constitution. The Court again emphasized the distinction between de facto and de jure segregation. Moreover, the Court reminded Judge Clark that it was important to restore the schools to local [*650] control as soon as there was no constitutional violation. Given that de facto segregation was no longer a violation, this meant as soon as possible.
The State of Missouri responded quickly to the Supreme Court decision and moved for a grant of unitary status. However, Judge Clark would not go quietly. In 1997, he issued a caustic opinion, denying most of the state’s motion. He then proceeded to criticize the Supreme Court’s legal reasoning and to lambast the KCMSD. Perhaps in frustration and disgust, Judge Clark then stepped down from the case, and it was reassigned to another judge to complete. The case was finally ended in 2003.
Dunn concludes his book with a brief discussion of the limits judicial policymaking and other education policy proposals to deal with KCMSD’s problems. It is relatively easy for a judge to strike down laws and policies that lead to segregation. It is much more difficult for a judge to formulate solutions for an underperforming school system. The latter requires public support and cooperation, which was clearly lacking in the Kansas City case. The educational policy lesson from the case was that money alone cannot solve the problem. Other proposed solutions include an expansion of charter schools, changes in how the school board is elected, eliminating the KCMSD and absorbing it into the suburban districts, vouchers, and finally a state takeover. Dunn suggests that the latter option is the most likely and that the state could put in its own administration, or contract it out like Pennsylvania did in Philadelphia.
In conclusion, Joshua Dunn has written a highly informative and readable book that nicely blends legal and policy analysis. COMPLEX JUSTICE provides the reader with a comprehensive understanding of the historical, political, and social issues involved in MISSOURI v. JENKINS. The book would make excellent assigned reading in courses on civil liberties/civil rights or judicial policymaking.
BOARD OF EDUCATION OF OKLAHOMA CITY v. DOWELL, 498 U.S. 237 (1991).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
FREEMAN v. PITTS, 503 U.S. 467(1993).
GREEN v. NEW KENT COUNTY SCHOOL BOARD, 391 U.S. 430 (1968).
KEYES v. DENVER SCHOOL DISTRICT NO. 1, 413 US. 189 (1973).
MILLIKEN v. BRADLEY, 418 U.S. 717 (1974).
MISSOURI v. JENKINS, 495 U.S. 33 (1990), 515 U.S. 70 (1995).
SWANN v. CHARLOTTE-MECKLENBERG SCHOOL BOARD, 402 U.S. 1 (1971).
© Copyright 2008 by the author, Barry N. Sweet.