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Achievement Standard at Issue in Kansas City Case

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May federal judges consider student-achievement scores when evaluating the effectiveness of desegregation programs?

That is the official question before the U.S. Supreme Court this week as it takes up an appeal stemming from the long-running Kansas City, Mo., desegregation case.

But some Justices may be more interested in a much broader question: Is there any end in sight for a sweeping desegregation remedy that so far has cost taxpayers more than $1.3 billion?

The state of Missouri, forced by federal courts to pay most of the costs of Kansas City's plan, has relegated to the background its argument about the student-achievement question in Missouri v. Jenkins (Case No. 93-1823) that the Justices agreed last September to review.

Instead, the state has invited the High Court to re-examine the entire remedial plan, which has included construction of new schools, extensive magnet programs, and other educational enhancements over the last decade.

The lower courts in the case have pursued "a course that is inherently misguided," Missouri's attorney general, Jeremiah W. Nixon, argues in the state's main brief.

But state officials are taking a risk by asking the Court to review the entire plan. Five years ago, the Justices rejected an opportunity to reduce the overall scope of the plan, letting most of it stand. (See Education Week, 05/03/89.)

"We've got the classic bait and switch here, and we think it's wrong," said Arthur A. Benson 2nd, the lawyer for the original black plaintiffs in the case, who sued in 1977 to desegregate the Kansas City schools.

"This attack on a 10-year-old remedy far exceeds the petition the state presented to the court," he added.

The plaintiffs are joined in their defense of the desegregation plan by the school district itself, which has benefited from the hundreds of millions of dollars in increased property taxes and state aid ordered over the years by U.S. District Judge Russell G. Clark.

One point that all sides agree on is that the stakes of the case are enormous for Kansas City schoolchildren and Missouri taxpayers--and potentially for school districts under desegregation orders nationwide.

"Now is not the time to sound the retreat from this Court's historic commitment to educational equality," says a friend-of-the-court brief filed by more than four dozen prominent social scientists, who urged the Justices to reject Missouri's arguments.

Massive Magnet Plan

The Kansas City case began in 1977 when the school district sued suburban districts and the state in an effort to create a metropolitan desegregation plan. Judge Clark realigned the case, however, to make the district a defendant, and he later rejected a metropolitan remedy that would require suburban districts to accept Kansas City students.

In 1984, Judge Clark ruled that the state shared liability for segregation in the Kansas City schools since state law had required segregation by race before the Supreme Court's 1954 decision in Brown v. Board of Education.

The remedial plan first approved by Judge Clark in 1985 included massive capital improvements, special educational programs designed to boost student achievement, and a plan for turning most of the district's schools into magnet facilities.

Because the district could not afford to pay for most of these improvements, the judge shifted most of the burden to the state, while also ordering a doubling of the property tax for Kansas City residents. That order led to a landmark 5-to-4 Supreme Court decision in 1990 that said federal judges could order local governments to increase taxes to correct constitutional violations. (See Education Week, 04/25/90.)

Because of its scope and cost, the Kansas City desegregation plan has been one of the most scrutinized in the nation. Many educational experts have lamented that the addition of first-class facilities and whopping increases in spending have resulted in only modest increases in student achievement.

As costs to state taxpayers have grown, Missouri officials have tried several times in recent years to get the Supreme Court to take a fresh look at the case.

The latest appeal stems from 1992, when the state asked Judge Clark for a partial release from its obligation to pay for the desegregation remedy.

'No Guarantee of Education'

The state argued that special programs designed to improve student achievement had been fully implemented and thus that segment of the desegregation plan should be declared complete.

Judge Clark did not specifically act on the state's request. On appeal, however, a panel of the U.S. Court of Appeals for the Eighth Circuit rejected the idea.

The court said that it was not enough merely to implement the special programs, but that the state had to show their effectiveness in improving student achievement. Improvements in test scores could be one tool the district judge could use to make that evaluation, the court said.

Before the Supreme Court, Missouri argues that the Eighth Circuit court went beyond its authority by requiring improved student achievement, which the state points out can be influenced by a variety of factors beyond its control.

"The Constitution provides no guarantee of an education of any particular quality or of any particular level of individual or collective achievement by students," Mr. Nixon, the state attorney general, told the Justices in court papers.

But the district, the plaintiffs, and many desegregation experts respond that the Eighth Circuit did not really call for a specific achievement level to be reached before the state could win partial unitary status.

"The district court considered test scores in finding that racial segregation had caused lower achievement. It is logical to consider test scores in deciding whether that violation has been remedied," says a brief filed by U.S. Solicitor General Drew S. Days 3rd, who will participate in the Jan. 11 oral arguments in the case on the side of the Kansas City plaintiffs and school district.

1990 Dissent

It is not clear whether the High Court granted review of the case because it is interested in ruling on the test-score issue or because there is sentiment among some Justices to try to speed up the end of court supervision of the Kansas City schools.

Four Justices who dissented from the 1990 tax decision had strong concerns about the costs of Kansas City's remedial plan. All four--Chief Justice William H. Rehnquist and Associate Justices Anthony M. Kennedy, Sandra Day O'Connor, and Antonin Scalia--remain on the Court, while four of the five members of the majority have since left.

The Kansas City district, Justice Kennedy wrote in the 1990 dissent, "demonstrated little concern for the fiscal consequences of the remedy that it helped design. ...The plaintiffs and [the district] might well be seen as parties that have joined forces apparently for the purpose of extracting funds from the state treasury."

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