(Courtesy of Cashill Newsletter - January 12, 2000)

By Jack Cashill

Not since Panamanian boxer Roberto Duran held up his gloved hands and whimpered "No mas" has the world seen such a willful and unexpected surrender of power as it did on Wednesday, November 17.

On this quietly historic day, Federal District Judge Dean Whipple not only dismissed outright the 22-year-old school Kansas City desegregation lawsuit, but he also refused to block a Missouri state decision to strip the district of its accreditation. And so ended the most costly and ambitious desegregation project in American history, not with a bang but a whimper. How the fight began--and why Kansas City put up so lame a defense--deserves retelling.

In 1977, when Jimmy Carter plucked Russell Clark from obscurity to serve as a Federal District judge, the courts were on something of a roll. Democrats controlled the presidency and both houses. Party activists had come to support a loosely defined "living constitution." And well they might have. In the years since Brown v. Topeka, the courts had advanced a number of liberal issues that congress would surely have rejected--for pornography, against school prayer, for uniform criminal rights, against the death penalty (later reversed), for abortion rights.

To achieve "racial balance," the Court had shifted from prohibiting discrimination to insisting upon it. Indeed, by 1977, the momentum of the courts was so strong, and its direction so defined, that few in either party cared--or dared--to get in its way.

Even Clark's critics acknowledge that Jenkins v. Missouri was a sympathetic case. When he assumed it, black students had become the majority in the District, but the voting majority remained white. For a mix of reasons, voters rejected one initiative after another to fix up the schools. Buildings were crumbling, test scores were dropping, and white kids were leaving.

Lacking proof to hold the suburban districts liable, Judge Clark chose an alternate plan: he would desegregate the KCMSD by attracting white students from the suburbs. To build the schools, the state and the District would have to foot what would prove to be a $2 billion dollar bill.

Kansas City citizens were clearly not up to the task. So in 1985, Judge Russell Clark unilaterally doubled taxes on Kansas City property owners and raised the payroll taxes on its work force. He also levied a huge assessment against the state of Missouri and launched the biggest one man building project since Ramses II, including the construction of 17 new schools and the rehabilitation of 55 old ones.

Without fully realizing it, Clark had crossed a constitutional Rubicon. In the Federalist papers, Alexander Hamilton had argued for judicial independence precisely because judges would not have power over the purse or the sword. Clark had appropriated the power of both.

In a truly Sisyphean ruling, Clark went on to insist that the courts oversee the schools until the students reached the national norm on achievement tests. By this logic, the courts would control the bottom half of America's schools forever, but logic was never Clark's long suit.

On top of that, the magnet scheme was not really working. Though grandiose, the plans seemed to many untested and unfocused--in the words of Senator John Ashcroft, "a gold-plated Taj Mahal . . .planetariums, pools and pay increases."

By 1997, Clark had come to doubt whether he could ever solve the District's problems. Too many fatherless children, he came to see. Too little motivation at home. "I don't know," he mused, "if the disparity (between black and white students) can ever be eliminated. Probably not."

And so Judge Clark handed the case over to Dean Whipple. At this time, Whipple was already running the Kansas City Housing Authority, Jackson County jails, and Jackson County foster care. Indeed, no community beyond the beltway had labored under such an oppressive Federal hand since reconstruction. And no American had exercised such unlimited suzerainty over so many people since McArthur in Japan.

But the Judiciary could persist because the local establishment put up so lame a fight. Our leading citizens had abandoned self-rule as docilely as the Vichy French. If there was any protest, it was directed against the one institution that struggled to maintain a vestige of democracy, the Kansas City School Board. Indeed, in something akin to the Stockholm Syndrome, local politicos scarmbled to build a shrine to this same Judiciary more extravagant than any of the school buildings. In fact, its $108 million price tag could pay for 16 state-of-the-art, 600 student schools.

Finally, it was the judiciary who grew weary. Judge Whipple had come to see that there were "too many chefs in the kitchen." The public rebuke from the state served as wake up call. It was not segregation, but the District failure to meet any of the state's 11 performance standards that cost the District its accreditation.

"Despite the expenditure of vast sums . . . and the passage of 40 years since the end of official, de jure, segregation," Whipple wrote, the district "still struggles to provide an adequate education to its pupils."

No mas.

And although the 22 years of federal control proved a failure, it was not a tragedy. The real tragedy--for democracy's sake--would have been its success.