Free at Last in Kansas City

...to feed the cows, in his law office by 6:30, home at 4:00 for nine quick holes of golf and in bed by 8:00...

...Clark had been on the court a few months when the Kansas City school desegregation case—Jenkins v. Missouri—was, he said, "dropped on his plate...

...And well they might have...

...Too many fatherless children, he had begun to feel...

...The [district] is not in any way segregating its students or otherwise discriminating on the basis of race," Whipple ruled...

...Within a year, however, chief justice Fred vinJack Cashill is a writer and TV producer in Kansas City, Missouri...

...Party activists, almost to a person, had come to support a loosely defined "living Constitution...

...BY JACK CASHILL ON NOVEMBER 17, federal district judge Dean Whipple dismissed the Kansas City school desegregation lawsuit that had placed the city's schools under the control of federal judges for two decades...

...I always think Judge Clark tried to do the right things," says former Kansas City School Board president Ed Newsome, "but he was always given pretty bad plans with which to operate...

...Says he matter-of-fact-ly of the era's judicial power grab, "We did not do anything that Congress should not have done...

...They liked praise and responded to it...

...He chafed at the restraints the Supreme Court had imposed, and now doubted whether he could solve the district's problems even without them...

...Chief justice William Rehnquist, writing now for the majority, admonished Clark to forget about test scores and "restore state and local authorities to the control of the school system...

...Yet all these causes had received a friendly hearing from the courts...

...It was an astonishing decision, clearly the toughest of Clark's career...

...But Whipple, a Reagan appointee, has now begun to shed those responsibilities...

...Legendary justice Felix Frankfurter, sensing it had little chance before a Court more interested in constitutional tradition than in good causes, maneuvered for its postponement...

...Clark had worked in various campaigns on behalf of his good friend and fellow Democrat, senator Tom Eagleton...

...He did not seek it out...

...His role and that of his appointed Desegregation Monitoring Committee, he feared, only compounded the problems of school management...

...Not since boxer Roberto Duran held up his gloved hands and whimpered "No más" had the world seen such an abject surrender...

...Democrats controlled the presidency and both houses...

...The timing was crucial...

...Missouri had responded to Brown by "permitting" local districts to integrate...

...Clark proved to be an unapologetic improviser in the take-charge FDR/ Truman mold...

...Their outrage did them little immediate good...

...Buildings were crumbling, test scores were dropping, and white kids were leaving...

...And so, after 20 years on this notorious case, Russell Clark handed his supervisory duties over to Dean Whipple...

...Far more damaging to democracy would have been the experiment's apparent success...

...Judge Clark, as fate would have it, graduated from the segregated law school at University of Missouri in Columbia in 1952, the year Brown v. Board of Education first reached the Supreme Court...

...And by 1977, when Russell Clark became a federal judge, the momentum of the courts was so strong, and its direction so defined, that few in either party cared—or dared—to get in its way...

...Brown, which ruled "separate but equal" schools for blacks and whites unconstitutional, was hailed as a great moral victory, but its effect on schools in states like Missouri, which had mandated segregation, would be slow and ambiguous...

...In his landmark dismissal last week, he lamented that Kansas City's schools suffered from "too many chefs in the kitchen...

...Unlike Truman, whose urge to act could be checked—as it often was—by the two other branches of government, Clark was accountable only to his fellow judges, and they continued to support him, for a time...

...As Arthur Benson, the plaintiff's attorney in the Kansas City desegregation case, tells it, Clark was "up at 5 a.m...

...The landmark case wouldn't be decided until 1954...

...Although the 22 years of federal control proved something of a failure, they were not a tragedy...

...For 25 years, Clark worked hard and well for a small Springfield firm specializing in defense litigation...

...After eight uneventful years on the case, Clark decided in 1985 that Kansas City citizens were clearly not up to the task of funding good enough schools...

...The school district this fall had failed to meet any of the state's 11 performance standards...

...Clark's innovation, one put forward by the plaintiffs' "educational and desegregation experts," was not to bus kids by force in from the suburbs but to attract them by making the city schools more alluring...

...Meanwhile, Russell Clark was back in Missouri living the simple life...

...So ended the most costly and ambitious desegregation project in American history, one that has left Kansas City schools less competitive and more segregated than they were when the federal judiciary took them over 22 years ago...

...son died and was replaced by the Republican governor of California, Earl Warren, who knew a winning issue when he saw one...

...too little motivation at home...

...In 1990, the Supreme Court voted to uphold most of Clark's tax decision, but the margin was only 5-4, and the opposition was growing stronger...

...Ashcroft's words), the magnet schools never really worked...

...It has not done so for years...

...Despite the expenditure of vast sums . . . and the passage of 40 years since the end of official, de jure, segregation," Whip-ple wrote, the district "still struggles to provide an adequate education to its pupils...

...Never lost a wink of sleep over the case," he now says dispassionately...

...Indeed, he insisted that the courts would oversee the schools until the city's students reached the national norm on academic achievement, even if it took a generation...

...Missourians who cared about their history—and about their taxes—were outraged by Clark's decision...

...More troubling still, the locals had lost the will to protest...

...After Carter's election, Eagleton secured for Clark the first judgeship to come open in the Western District Federal Court...

...Hamilton and his fellow Founders had gone to war over a comparable affront by the British...

...In theory at least, this remedy seemed less divisive than forced busing...

...Still and all, and despite legendary spending levels ("a gold-plated Taj Mahal . . . planetariums, pools and pay increases," in Sen...

...Then Democrat Jimmy Carter was elected president...

...By early 1997, Clark dreaded the daily drive to Kansas City and the interminable hearings...

...And to build the schools, the state and the district would have to bust their bank accounts and foot a huge bill—$2 billion, in the end...

...By the 1970s, almost every controversial liberal issue—from the effort to abolish the death penalty to the abolition of school prayer, from due process rights for criminals to the free expression rights of pornographers—would likely have been rejected by Congress and most state legislatures...

...So he made the boldest move of his or any judge's career: He unilaterally doubled taxes on Kansas City property owners and raised the payroll taxes on its workforce...

...But hey, if Harry Truman could drop the A-bomb without hesitation or regret, Judge Russell Clark wasn't going to brood over a school tax...

...Many things ailed urban schools like Kansas City's, but it turned out those ills were not cured by the presence of white students or a lavish physical plant...

...No taxation without representation," they protested, a rallying cry that echoed down the centuries until it fell on deaf ears in a Kansas City courthouse...

...Inexorably, dramatically even, the political culture shifted...

...He brought to the task an activist's faith in the moral power of the courts and a residual guilt over the nation's racial history...

...But he did not shy away from it either...

...And voters rejected one initiative after another to fix the schools...

...No más...

...Now, suddenly responsible for their schools for the first time in a generation, the people of Kansas City have a chance to do better...

...In 1971, the Court gave its blessing to forced busing as a remedy for persistent segregation...

...Probably no American since general Douglas MacArthur in occupied Japan had exercised such unlimited suzerainty over so many people as Judge Whip-ple did in Kansas City...

...As it happens, Whipple, thanks to consent decrees in other federal lawsuits, was already running the Kansas City Housing Authority, Jackson County jails, and Jackson County foster care...

...The weightiest issues—race, criminal justice, abortion—were increasingly the province of courts, and not elected officials...

...How this sober, God-fearing gentleman and yellow dog Democrat came to sacrifice common sense and the rule of law in a case that Missouri senator John Ashcroft once called a "testament to tyranny" deserves retelling...

...Even Clark's critics acknowledge that the case looked ripe for intervention...

...Perhaps without fully realizing it, Clark had crossed a constitutional Rubicon...

...Activists came to see that their causes could be advanced more surely in a sympathetic court than in the democratic hurly-burly of a hostile legislature...

...Probably not...

...Two minor technicalities: New magnet schools would have to be created in Kansas City that truly were attractive...

...By 1969, black students had become a majority in the district, but the voting majority remained white...

...Like his home state hero Harry Truman, Judge Clark was well into his 50s before he made his own reluctant debut in "the bigs...

...For the first 20 of those years, the case was managed by judge Russell Gentry Clark...

...I don't know," he mused, "if the disparity [between Kansas City's black and white students] can ever be eliminated...

...Clark, despite protest, would not relent...

...Brown's effect on judges and their ambitions was more immediate...

...Significantly for Kansas City, the Supreme Court had made its fateful shift from prohibiting racial segregation in the schools to insisting on "racial balance...

...The Kansas City school district had taken the hint, and its own sweet time, redrawing boundaries throughout the 1950s and '60s partly to keep black students in black schools...

...The guidance of a federal judge was not about to change that, and he knew it...

...In the Federalist Papers, Alexander Hamilton had defended judicial independence precisely because judges would not control the purse...

...The judicial momentum for court-supervised integration as the answer to bad schools stalled, and in June 1995 the Supreme Court rapped Clark's knuckles...

...He also levied a huge assessment against the state of Missouri and launched the biggest one-man building project since Ramses II raised his pyramid: 17 new schools and the rehabilitation of 55 old ones...