School Integration - Kansas City &

Detroit 1 s 1 1
Remedies Fall 2014
Fordham Law School
Integration of Schools -
Kansas City and Detroit
Do the courts have any role to play?
George W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law &
Ethics
Room 409
gconk@law.fordham.edu
212-636-7446
Torts Today: http://tortstoday.blogspot.com
Otherwise – Commentaries on Law, Language & Politics
Blackstonetoday.blogspot.com


1
School Integration - Kansas City &
Detroit 2 s 2 2
Remedies Spring 2014
Fordham Law School
Integration of Schools -
Detroit – Milliken v. Bradley
George W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law &
Ethics
Room 409
gconk@law.fordham.edu
212-636-7446
Torts Today: http://tortstoday.blogspot.com
Otherwise – Commentaries on Law, Language & Politics
Blackstonetoday.blogspot.com


2
People ex rel. Workman v. Board of
Education of Detroit, 18 Mich. 400
(1869)
 Act 34, § 28, Mich. Pub. Acts of 1867:
"[every] school district shall provide for
the education of its pupils without
discrimination as to religion, creed, race,
color or national origin"
 Mich. Const. 1963, Art. 8, § 2:
 "[no] separate school or department shall
be kept for any person or persons on
account of race or color"
School Integration - Kansas City &
Detroit 3
People ex rel. Workman v. Board of
Education of Detroit, 18 Mich. 400
(1869)
 Mich. Comp. Laws § 340.355:
 "[all] persons, residents of a school district
. . . shall have an equal right to attend
school therein,", § 340.356.
 See also Act 319, Part II, c. 2, § 9, Mich.
Pub. Acts of 1927.
 What role do these laws play in the
decision of the SCOTUS majority?
School Integration - Kansas City &
Detroit 4
Michigan Const. 1963, Article VIII
 § 2 Free public elementary and
secondary schools; discrimination.
 The legislature shall maintain and support
a system of free public elementary and
secondary schools as defined by law.
Every school district shall provide for the
education of its pupils without
discrimination as to religion, creed, race,
color or national origin.
School Integration - Kansas City &
Detroit 5
Elementary and Secondary Education and
the Michigan Constitution, Michigan
Constitutional Convention Studies 1 (1961)
 Michigan’s Constitution and laws have
resulted in "the establishment of a state
system of education in contrast to a series
of local school systems.”

 Does this undermine the Supreme
Court’s refusal to approve a multi-
district remedy?
School Integration - Kansas City &
Detroit 6
Milliken v. Bradley - 1974
 Detroit had been losing jobs and
population for ten years
 Black students were in a school district
that suffered from declining resources
 The City school board was found to have
engaged in de jure segregation.
 Should that have been attributed to the
State, permitting a cross-district remedy?
School Integration - Kansas City &
Detroit 7
Milliken v. Green– vacated 1973
What impact should this have had
on federal courts?
1972: Michigan Supreme Court holds
inequality in per-pupil expenditure among
districts, violated the equal protection clause
of the state constitution
* Education is a fundamental interest
* Wealth is a suspect class
* State had no compelling interest in, nor ea
rational basis for classifications based on
wealth that caused inequalities in public
school funding.
School Integration - Kansas City &
Detroit 8
Milliken v. Bradley (1977)
433 U.S. 267
 State compelled to pay half the costs of
remediation including reading and skills
programs
 Why does the federal court have authority
to do that?

School Integration - Kansas City &
Detroit 9
What now?

 Now that Detroit is bankrupt is the
case for a multi-district remedy
stronger, weaker, or unchanged?
 Under equal protection?
 Under the Michigan state
Constitution?
School Integration - Kansas City &
Detroit 10
Remedying de jure discrimination
Limits of equitable power
Kansas City
The magnet
District
strategy
School Integration - Kansas City &
Detroit 11
Kansas City’s Failed Public Schools -
NPR
 Does the failure of Kansas City’s public
schools prove that money can’t solve the
problems of the schools?
 Or does it show that the dissenters in
Missouri v. Jenkins were correct?
 Or none of the above?
School Integration - Kansas City &
Detroit 12
Racial discrimination in Missouri
 *1724, Louis XV of France issued the Code
Noir, the first slave code for the Colony of
Louisiana, an area that included Missouri.
 * 1821 Missouri entered the Union as a
slave State
 * Missouri law declared "No person shall
keep or teach any school for the
instruction of negroes or mulattoes, in
reading or writing, in this State."
School Integration - Kansas City &
Detroit 13
Racial discrimination in Missouri
 * Beginning in 1865, Missouri passed a
series of laws requiring separate public
schools for blacks. Its Constitution first
permitted, then required, separate
schools.
 * The statutes were repealed in 1957 and
the constitutional provision was rescinded
in 1976
School Integration - Kansas City &
Detroit 14
Racial discrimination in Missouri
 * 1984 the District Court found that "the
State . . . cannot defend its failure to
affirmatively act to eliminate the structure
and effects of its past dual system on the
basis of restrictive state law."
School Integration - Kansas City &
Detroit 15
Ginsburg, dissenting – Jenkins (1995)
 Today, the Court declares illegitimate the
goal of attracting nonminority students to
the Kansas City, Missouri, School District
and thus stops the District Court's efforts
to integrate a school district that was, in
the 1984/1985 school year, sorely in need
and 68.3% black.
 Given the deep, inglorious history of
segregation in Missouri, to curtail
desegregation at this time and in this
manner is an action at once too swift and
too soon.
School Integration - Kansas City &
Detroit 16
Missouri Constitution, Article IX, Education
 Section 1(a). A general diffusion of
knowledge and intelligence being essential
to the preservation of the rights and
liberties of the people, the general
assembly shall establish and maintain free
public schools for the gratuitous
instruction of all persons in this state
within ages not in excess of twenty-one
years as prescribed by law.
 Source: Const. of 1875, Art. XI, §§ 1, 3.(Amended
August 3, 1976)

School Integration - Kansas City &
Detroit 17
KCMSD
 Demographics (2011 Statistics)
 African-American - 62.6 percent
Hispanic - 25.3 percent
Asian/Pacific Islander - 3 percent
American Indian/Alaskan Native - 0.2
percent
White -8.9 percent
Free/reduced lunch - 84.2
percent (Missouri - 47.8 percent)
School Integration - Kansas City &
Detroit 18
Creating a “magnet district”
Kansas City
School Integration - Kansas City &
Detroit 19
Magnet schools
 Public schools of voluntary
enrollment designed to promote
integration by drawing students
away from their neighborhoods and
private schools through distinctive
curricula and high quality.
School Integration - Kansas City &
Detroit 20
District Court’s goal
 to integrate the Kansas City,
Missouri, School District to the
maximum degree possible
School Integration - Kansas City &
Detroit 21
Missouri v. Jenkins (1990)
 The District Court found the State and
KCMSB jointly liable for maintaining a dual
school system
 § 1983 is authority enough to require each
tortfeasor to pay its share of the cost of a
remedy if it can, and apportionment of the
cost is part of the District Court's equitable
powers.
School Integration - Kansas City &
Detroit 22
C.J. Rehnquist Jenkins (1995)
 An equitable remedy must be tied to the
constitutional violation
 That violation is in the Kansas City district
 The magnet district is an interdistrict
remedy imposed without an interdistrict
wrong
 White flight was caused by desegregation,
not by segregation
School Integration - Kansas City &
Detroit 23
Missouri v. Jenkins (U.S. 1990) –
Kennedy, concurring
 It is discrimination, not the ineptitude of
educators or the indifference of the public,
that is the evil to be remedied.
 An initial finding of discrimination cannot
be used as the basis for a wholesale shift
of authority over day-to-day school
operations from parents, teachers, and
elected officials to an unaccountable
district judge whose province is law, not
education.
School Integration - Kansas City &
Detroit 24
Missouri v. Jenkins (U.S. 1990) –
Kennedy, concurring
 Article III of the Constitution states that
 [t]he judicial Power of the United States,
shall be vested in one supreme Court, and
in such inferior Courts as the Congress
may from time to time ordain and
establish.
 The description of the judicial power
nowhere includes the word "tax," or
anything that resembles it.
School Integration - Kansas City &
Detroit 25
District Court ordered a magnet district
 To "provide a greater educational
opportunity to all KCMSD students
 To “draw non-minority students from the
private schools who have abandoned or
avoided the KCMSD, and draw in
additional non-minority students from the
suburbs.”
School Integration - Kansas City &
Detroit 26
Capital improvements ordered
 Renovation of approximately 55 schools,
the closure of 18 facilities, and the
construction of 17 new schools.
 Achieve suburban comparability and visual
attractiveness
 http://www.publicschoolreview.com/comp
are_schools.php#cmp
School Integration - Kansas City &
Detroit 27
Salary assistance ordered
 Initially only to teachers but later to
all but three of the approximately
5,000 KCMSD employees.
School Integration - Kansas City &
Detroit 28
Souter, dissenting
 We have most recently summed up the
obligation to correct the condition of de
jure segregation by saying that "the duty
of a former de jure district is to 'take
whatever steps might be necessary to
convert to a unitary system in which racial
discrimination would be eliminated root
and branch.'
School Integration - Kansas City &
Detroit 29
Souter, dissenting - Jenkins (1995)
 In Milliken we barred the
consolidation of 54 districts.
 That is what we meant by an “inter-
district remedy”
School Integration - Kansas City &
Detroit 30
Souter, dissenting – Jenkins (1995) –
citing Milliken
 By emphasizing that remedies in school
desegregation cases are grounded in
traditional equitable principles, we left
open the possibility that a district court
might subject a proven constitutional
wrongdoer to a remedy with intended
effects going beyond the district of the
wrongdoer's violation, when such a
remedy is necessary to redress the harms
flowing from the constitutional violation.
School Integration - Kansas City &
Detroit 31
Souter, dissenting in Jenkins (1995)
 The Court, nonetheless, reads Milliken I
quite differently. It reads the case as
categorically forbidding imposition of a
remedy on a guilty district with intended
consequences in a neighboring innocent
district, unless the constitutional violation
yielded segregative effects in that
innocent district.
School Integration - Kansas City &
Detroit 32

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