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High Court Hears School-Tax Case From Kansas City

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Washington--The state of Missouri would be willing to finance a larger portion of Kansas City's costly school-desegregation plan rather than allow a court-ordered increase in local taxes to stand, a lawyer for the state told the U.S. Supreme Court last week.

The concession came during oral arguments in a case in which a federal judge took the unprecedented step of ordering an increase in property taxes to fund a desegregation remedy.

U.S. District Judge Russell G. Clark exceeded his judicial authority when he ordered the tax hike, and should have considered "a less intrusive" means of financing the plan, argued H. Bartow Farr 3rd, the lawyer representing the state in the case.

When pressed by several Justices, Mr. Farr said that making the state bear a greater portion of the plan's cost would have been one such alternative.

Noting that the state will likely be required under existing orders in the case to fund a larger portion of the plan if the High Court strikes down the tax increase, Justice John Paul Stevens asked: "Isn't the position you're advocating against the best interests of your client?"

No, Mr. Farr responded, because "there is a question here of the sovereignty of the state." Allowing the tax increase to stand, he said, would amount to "taxation without representation."

Justice Antonin Scalia took Mr. Farr to task for the state's failure to volunteer to assume full responsibil4ity for funding the plan at an earlier round in the case, which would have avoided the current constitutional dilemma.

"Isn't it a little 'dog in the manger' to not propose that below and lay it all on us?" he asked.

Limits on Judicial Powers

The case, State of Missouri v. Kalima Jenkins (No. 88-1150), is one of the most closely watched of the Court's current term. Legal observers say it could provide a vehicle for the Court's new conservative majority to declare its views on the limits of federal judicial powers.

In last week's arguments, lawyers for the black plaintiffs in the suit and for the Kansas City school district contended that Judge Clark had no alternative to ordering a tax increase, given that local voters had repeatedly rejected tax proposals.

Federal judges have both "the power and a duty" to ensure that their remedial orders are implemented once they find the Constitution has been violated, argued Allen R. Snyder, the lawyer for the district.

The remedy ordered by Judge Clark in 1985, and expanded in a series of subsequent orders, is among the most comprehensive desegregation plans ever ordered by a federal court--and perhaps the most expensive.

It calls for the expenditure of hundreds of millions of dollars to upgrade both the facilities and educational offerings of the district in an attempt to attract whites back from private and suburban schools.

When the Supreme Court accepted the taxation order for review, it left standing lower-court orders outlining the scope of the remedy and finding the state liable for any expenses the district is unable to cover.

But Mr. Farr, the state's lawyer, maintained during the oral arguments that Judge Clark should have considered the district's financial position when crafting a remedy he termed "unprecedented" in its scope.

The Justices spent a considerable amount of the allotted time on a procedural question that could prevent them from reaching a decision on the merits of the case. A ruling is not expected before next year.

Whites Still Not Returning

The Kansas City desegregation plan has not attracted whites back into the system as quickly as its planners had hoped. According to school officials, the number of whites transferring into the district from suburban schools increased slightly for this school year, but the total number of whites enrolled has declined by more than 350 since last year.

"We've established recruitment of more white students as our number-one priority for this year," said George Garcia, the superintendent of schools.

In addition to parents' concerns about busing distances and lack of knowledge of the district's programs, he said, "our studies have shown there are a lot of racist perceptions" among white, suburban parents. Many of them simply "don't want their kids to be in school with black and poor children," he said.

The sluggish pace of desegregation has prompted several new efforts to expand educational opportunities for black students in the district. Hunel10ldreds of black pupils are currently on waiting lists to attend the district's magnet schools, which are under strict quotas that prevent them from accepting more blacks until more whites choose to attend.

One new lawsuit is seeking state funding to permit the district's black students to attend private schools. (See Education Week, Aug. 3, 1989.)

In the latest development affecting the case, a lawyer for the black plaintiffs has dropped his longstanding opposition to amending the magnet schools' racial quotas. The lawyer, Arthur Benson 2nd, said last week that he had petitioned Judge Clark to allow more blacks to attend magnet schools that fail after two years of recruiting to attract sufficient numbers of whites.

AIDS-Testing Ban Upheld

In other action by the Supreme Court last week, the Justices declined to review a decision that had presented them with their first opportunity to rule on the constitutionality of mandatory testing for the aids virus.

The action let stand a lower-court ruling that bars Nebraska from requiring aids tests of employees who work in a program for the mentally retarded. Such a test would violate the Fourth Amendment's protection against unreasonable searches and seizures, the lower court held.

A federal judge ruled in the case, Eastern Nebraska Office of Retardation v. Glover (No. 88-1805) that the risk of the office's clients being exposed to the virus that causes the disease was "minuscule, trivial, extremely low, extraordinarily low, theoretical, and approaches zero."

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