The Brown decision bucked a centuries-old tradition of discrimination in America, but that tradition has not been easily overcome. Professor Shaw discusses Missouri v. Jenkins and questions whether society has really changed in its attitude towards segregated schools

Shaw, Theodore M.

English

Fordham University School of Law

Fordham Law Review Volume 61 Issue 1 Article 9 1992 Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Missouri v. Jenkins: Are We Really a Desgregated Society? Theodore M. Shaw Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Theodore M. Shaw, Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Missouri v. Jenkins: Are We Really a Desgregated Society?, 61 Fordham L. Rev. 57 (1992). Available at: https://ir.lawnet.fordham.edu/flr/vol61/iss1/9 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. MISSOURI v. JENKINS: ARE WE REALLY ADESEGREGATED SOCIETY?THEODORE M. SHAW*The Brown decision bucked a centuries-old tradition of discrimination inAmerica, but that tradition has not been easily overcome. Professor Shaw dis-cusses Missouri v. Jenkins and questions whether society has really changed in itsattitude towards segregated schooLkN considering where the issue of school desegregation stands today, itoccurs to me that when Brown v. Board of Education I was decided in1954, some thirty-seven years ago, the issues, although not simple forthat time, seem relatively very simple.At home I have a reproduction of a lithograph by Norman Rockwell,called "The Problem We All Live With." It shows a young, Black girlbeing escorted by federal marshals into a school. The wall behind themis smeared with tomatoes; the ugly racial epithet "nigger" is written onthe wall. It is a very powerful portrait, but very simple in the picture itpresents. The issues were very simple.In retrospect, I think the issues were much more complex than wethought, even a decade or two ago in the middle of the struggle to imple-ment Brown. The issue of school desegregation is really a story of racerelations in this country. We view schools as a contained environment-a laboratory of sorts-where we have children gathered together as stu-dents. We can inculcate them with norms and values in a way that wecannot with the rest of society; society is not as contained. It is in thepublic schools that we attempt to remake America and to wipe away theugly stain of segregation and racism. I want to talk about two cases here:one that illustrates how difficult it is to clear away racism, and one thatexemplifies where we are today.The first case, Missouri v. Jenkins,2 comes out of Kansas City, Mis-souri. It is a suit that was filed in 1977, but that had its roots in the pre-Brown days of "separate but equal." 3 It was filed after many years ofinvestigation by the Office of Civil Rights and the efforts of communitypeople to implement the Brown mandate.After the Brown decision, the Kansas City School District, which wasprimarily White at the time, took a number of actions to maintain and toreinforce segregation-the same kinds of actions that took place incountless other cities throughout the country. The school district redrewits boundary lines to mirror residential segregation. It ceded a school toa Black community only when the community had become predomi-* Assistant Professor, Michigan Law School; B.A. Wesleyan College, 1976; J.D.Columbia University, 1979.1. 347 U.S. 483 (1954).2. 495 U.S. 33 (1990).3. Plessy v. Ferguson, 163 U.S. 537, 552 (1896).FORDHAM LAW REVIEWnantly Black, thereby tracking the pattern of "White flight." It wouldassign Black children to overcrowded schools rather than to schools withavailable space to avoid any measure of integration.4 In other words,throughout the 1960s, the Kansas City School District, like many otherschool districts, engaged in the tactics of delay and resistance.Finally, as the demographic patterns that had been set in motion de-cades ago continued to operate, and were aggravated by the actions ofthe school district, the school district became predominantly Black inthe 1970s.' What were these demographic-affecting actions that had pre-ceded Brown v. Board of Education 6? The State of Missouri, of course,required segregation in public schools.7 But there were also actionstaken by other state actors-housing officials that encouraged and pro-duced segregation in housing,' and real estate brokers licensed withoutany scrutiny of their discriminatory and segregative practices. 9 Therewere also discriminatory practices by the federal government in the con-struction and placement of public housing which was segregated at onetime by federal mandate.10 The federal government also segregated fed-erally subsidized housing. Moreover, during the post-World War II"suburbanization" of America, the federal government refused to insuremortgages in racially heterogeneous areas and neighborhoods."There were restrictive covenants.' 2 I bought a house in Ann Arborlast month and looked through the history of all the deeds. I found arestrictive covenant running in the deeds; it had remained in place, or atleast had been recorded, through the 1950s until the 1960s, even thoughthe enforcement of racially restrictive covenants were declared unconsti-tutional in Shelley v. Kraemer"a in 1948.In sum, Kansas City, like many other metropolitan areas where schooldesegregation cases have been litigated, is fairly typical of what happenedin this country. We are a very ahistorical society. Segregation in thiscountry is not fortuitous. It is the result of decades and decades of local,state, federal, and private actions, all of which have interacted to producethe segregative patterns that exist now. We take these patterns forgranted, and we assume them to be the result of choice, or merit, or someother kind of factor that ignores the history of racism and segregation.In Jenkins, we put that evidence before the district court judge in Kan-sas City. He rejected it.' 4 He rejected the arguments regarding inter-4. Jenkins v. Missouri, 593 F. Supp. 1485, 1492-93 (W.D. Mo. 1984).5. Jenkins v. Missouri, 639 F. Supp. 19, 35 (W.D. Mo. 1985).6. 347 U.S. 483 (1954).7. Jenkins, 593 F. Supp. at 1503.8. See id. at 1501-02.9. See id. at 1502-03.10. See id. at 1497-98.11. See id. at 1497.12. See id. at 1491.13. 334 U.S. 1 (1948).14. Jenkins, 593 F. Supp at 1490-91.[Vol. 61MISSOURI v. JENKINSdistrict segregation (similar to those advanced unsuccessfully by theplaintiffs in Milliken v. Bradley 15), and he rejected them in much thesame way that the Supreme Court rejected the evidence in Milliken.' 6 Itwas an adjudication of the merits that was determined by a preordainedoutcome. The judge appeared to know, from day one in my view, that hewas not going to allow inter-district desegregation as a remedy; he wasnot going to get suburban school districts involved. He ignored all kindsof evidence and jumped through all kinds of hoops, did all kinds of con-tortions, to reach the final result.He even, for example, ignored the inextricable link between schoolsand housing 7 that the Supreme Court noted in Swann v. Charlotte-Mecklenburg Board of Education 18 in 1971. The Jenkins plaintiffs triedto introduce evidence demonstrating that, when people buy houses, oneof their primary concerns is the quality and the racial composition of theschool district. The district court judge would not hear or credit thatevidence. 19 It is difficult to avoid the conclusion that the district courtjudge rejected evidence because he was engaged in a preordained adjudi-cation of the merits.The unfortunate and inadequate result is that, as in Milliken, the judgelimited himself to an intra-district remedy, and then began to use theMilliken Il-type2 ° relief. Consequently, in Kansas City we have seen themost extensive and expensive "desegregation" remedy ever ordered byany court-approaching a billion dollars in educational improvements.That may seem like a great deal of money, and indeed it is for a finan-cially strapped school district that has not passed a tax levy or a bondissue since the moment it became a majority Black school district in1977. Finally, the plaintiffs were able to get financial, if not trulydesegregative, relief.As a result of the remedy implemented in Missouri v. Jenkins,"1 thesystem is better off than it was before the suit was filed. However, deseg-regation gains have been modest at best. Whatever accomplishmentsflowed from the court-ordered remedy may only be of passing signifi-cance depending upon when and how the school district and the state arereleased from court supervision.What will happen at that point? The Supreme Court, in Board of Edu-cation v. Dowell,22 has examined the issue of what happens to a schooldistrict that is declared unitary because it has eliminated the vestiges ofsegregation. Can a "unitary" school district abandon its desegregation15. 418 U.S. 717 (1974).16. See Jenkins, 593 F. Supp. at 1488.17. See iL at 1492.18. 402 U.S. 1, 14 (1971).19. See Jenkins, 593 F. Supp. at 1491.20. Milliken v. Bradley, 433 U.S. 267 (1977).21. 495 U.S. 33 (1990).22. 111 S. Ct. 630 (1991).1992]FORDHAM LAW REVIEWplan, usually a busing plan, and return to neighborhood, thereby segre-gated schools?School desegregation remedies have not eliminated the vestiges of seg-regation; at best, they may have neutralized or circumvented the effectsof segregative actions. While a desegregation plan that utilizes "busing"may allow students to escape segregated neighborhood schools, it doesnot desegregate neighborhoods. Once a court releases a school districtfrom jurisdiction, the vestiges of segregation once again become opera-tive, and students may not be able to escape them. What has the nearlyfour-decade effort to desegregate public schools accomplished? Does itamount to an effort to break the link, the causal connection, betweenpresent segregated conditions and de jure segregation, that is, intentionalstate segregation? If that is all it amounts to, then perhaps we have en-gaged in a worthwhile struggle, albeit one that has only fleeting results.That seems to be where the Court is heading, in fact. There are twocases presently in the Supreme Court, one coming out of De KalbCounty, Georgia, Pitts v. Freeman, 3 and, of course, the Court is going tohave the opportunity to look at the Topeka case24 again.I maintain that many courts, as Judge Jones and Drew Days indicatedin their discussions, failed in terms of their duty or responsibility to lookat the violation and then provide a remedy simply because the task wastoo much for them. Some judges did it with a great deal of courage, andwe applaud them. But many of the courts failed because they knew theywould have to remake society. So they treated, in effect, these issues as ifthey were nonjusticiable. We are left with a legacy of separate and une-qual schools as we enter the twenty-first century. That is tragic.School districts like Kansas City, Little Rock, and numerous others,once involved in segregating their own students internally, helped to setin motion demographic forces that overwhelmed those school districtsand their communities. Belatedly, they have become advocates of deseg-regation, or even integration. But demographic patterns dictate thattheir advocacy be on the inter-district level. These late desegregationconverts have become plaintiffs in school desegregation cases, seekingMilliken 11 relief against the state in an attempt to circumvent the limita-tions imposed by the Supreme Court in San Antonio Independent SchoolDistrict v. Rodriguez 5 and other cases. These attempts have met withlimited success, but in the apparent twilight of desegregation, school dis-tricts and their patrons cannot be sanguine about the financial and segre-gation perils they face. Absent a change in judicial direction or nationalpolicy, the future is not bright.This is a tribute to Thurgood Marshall. I was born in 1954, about six23. 887 F.2d 1438 (1Ith Cir. 1989), rev'd and remanded, Freeman v. Pitts, 112 S. Ct.1430 (1992).24. Brown v. Board of Educ., 892 F.2d 851 (10th Cir. 1989), vacated and cert.granted, 112 S. Ct. 1657 (1992).25. 411 U.S. 1 (1973).[Vol. 611992] MISSOURI v. JENKINS 61months after the Brown26 decision. Certainly the Brown decisionchanged the world that I was born into, and the world for all of us. Igrew up in the shadow of the civil rights movement, and Thurgood Mar-shall was one of my heroes. I read about him; I read about ConstanceBaker Motley; I read about the other great lawyers of the Legal DefenseFund. The effort that they were engaged in, that Judge Jones was en-gaged in with the NAACP, has been a noble and a great effort.The problem is not that anything was inherently wrong with that ef-fort; the problem is that it was not taken far enough. I think that per-haps that was America at its best moment-certainly the Supreme Courtat its best moment, in my view. So they remain heroes to me. I want toclose by acknowledging their efforts and the work they have done. Toborrow a phrase from Frederick Douglass, in another battle in this war,this discussion about race will go on in spite of those who want to wish itaway. We need to replenish the ranks of those engaged in this struggle. Ihope that some of you do that.26. Brown v. Board of Educ., 347 U.S. 483 (1954).

Symposium:  Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Missouri v. Jenkins:  Are We Really a Desgregated Society?

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Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Missouri v. Jenkins: Are We Really a Desgregated Society?

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