Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, May 8, 1990 TAG: 9005080517
SECTION: EDITORIAL PAGE: A9 EDITION: METRO
SOURCE: PERRY MORGAN
DATELINE: LENGTH: Medium
If the decision preserves the judiciary's power to right wrongs, it also vacates rooms of respect for the Supreme Court. The court, all too accurately, is seen as usurping legislative power to lay taxes, and as pursuing a phantom racial mix in inner-city classrooms from which many whites have fled.
The case, roughly, began with three determinations:
(1) A school system that is 75 percent black does not constitute an integrated system.
(2) White students needed to change the mix cannot be bused back from suburban school systems because intentional segregation never was demonstrated in those systems.
(3) Whites, therefore, have to be bribed to return by creation of magnet schools of extreme elegance in plant and programs.
The scheme, estimated to cost between $500 million and $700 million, was agreeable to the School Board and to the supervising federal judge. When voters refused to fund it, the judge issued an order to raise the money from increased property and income taxes - overriding, in the process, a provision of the Missouri Constitution.
When the Supreme Court acted on appeals of the case last month, it ruled that the judge could not himself raise taxes but could compel the School Board to do so. That distinction is no more worth noting than the fact that the court did not review the gold-plated school-improvement program. By authorizing its funding, the court has taken responsibility for results or, what's more likely, the lack of them.
Any success of magnet schools, however lavish, in causing whites to attend predominantly black schools is not well-known. Even if the reverse were true, would it matter? Tax funds are finite. Who should judge how best to divide them between education and other uses?
The answer has to be elected representatives, not life-tenured judges, even if the latter too often have been the only effective defenders of fundamental constitutional rights.
Separate schools, for example, were never equal. Had elected representatives made them so, the protracted struggle over school integration surely would have run a smoother, more productive course.
The Kansas City case shows the court in its worst posture - that of trying to run things, decreeing what elected bodies must do rather than what they may not do. As Jethro K. Lieberman remarked in The Enduring Constitution:
"To impose duties on the government is far more difficult than merely to prohibit its actions. The remedy for a discriminatory law is to nullify it. But the remedy for an ongoing course of unconstitutional conduct (like cruel and unusual conditions in a prison) is not self-evident.
"Courts may know how to construe constitutions, but they are not adepts [sic] at social policy. Judges may have the legal power to direct hospitals, police stations, prisons or schools deemed to have renounced the Constitution, but they do not thereby have the knowledge, resources, or time to do so intelligently."
The danger in the Supreme Court's decision in the Kansas City schools case is primarily to its own standing and respect. The court doesn't really seek to usurp the taxing power but, rather, to avoid saying it may never use that power to correct a constitutional wrong. The deciding vote in the decision was cast by Justice White, who in general may be as conservative as some of the four dissenters.
The appearance, however - which is, in Kansas City, the reality - is quite different. It is one of courts sticking their hands into the pockets of citizens to pay for an extravagant experiment in racial arithmetic. Fascination with quotas prevents blacks from taking seats in magnet schools being held for whites who do not, in the main, wish to use them.
by CNB