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In 1984 a federal court held the public schools of the Kansas City, Missouri, School District to be in systematic violation of the Fourteenth Amendment. Both the district (KCD) and the State of Missouri had consciously worked to maintain racial segregation in the district's schools. The pupil population of KCD is roughly 35,000; at the time of the decision, 30 percent of the pupils were white and nearly all the remainder black.

KCD lies roughly in the middle of the city of Kansas City; it is geographically compact and is ringed on the east, north, and south by school districts that are mostly white. Some of these districts lie within, and some overlap or lie just outside, the town of Kansas City. All of these other districts were also defendants in the case but only the schools of KCD were found to be deliberately segregated. The western boundary of the district is the Kansas State line; nearly everyone on the Kansas side is white.

In his written opinion, Judge Russell Clark conceded the futility of trying to spread the few remaining whites proportionately among KCD schools; enough had already emigrated to the other districts and to private schools. Instead he ordered massive infusions of money—mostly from the state—to create integrated “magnet” schools that would attract whites back to KCD. Judge Clark set a 60/40 black-white ratio for the magnets; blacks could enroll only as whites enrolled in these proportions.

At the same time, Judge Clark ordered the district and the state to pay for the voluntary transfer of black KCD students to the neighboring Missouri districts. By reducing black concentration in KCD, such self-chosen emigration might help reverse the tide of white flight while providing racial integration for those children who transferred. The districts that received these transfers would have all their costs covered, mostly by the state. Transportation was also to be added at state expense. All these aspects of Judge Clark's order were upheld on appeal.

Unhappily, the plan has backfired. In 1990 there are fewer white children than ever in KCD. The magnets have attracted mainly black applicants, and these have been turned away whenever their presence would offend the 60/40 formula—which is very often the case. For the most part these children are forced to return to their virtually all-black schools. Frustrated parents have brought a separate action alleging that such exclusion from magnet schools violates a Fourteenth Amendment right to neutral treatment.

Here and there successful desegregation has occurred. By busing a limited number of black children to the remaining white neighborhoods, some schools within KCD are balanced at the required ratio. But, with an overall district white population of 25 percent, these schools are very few. KCD cannot solve the problem itself, and most of its black children remain stuck in heavily segregated schools.

What happened to the voluntary transfers of black children to the neighboring white districts? Thousands of black families signed up to transfer their children; unfortunately these other public schools will not have them either. Those districts were found not guilty in the original suit, and Judge Clark cannot order them to do anything. Currently the original plaintiffs are asking him instead to bribe these reluctant districts with a $l,000 bonus per transfer.

This sad tale is not unique among American urban schools. Metropolitan Detroit represents the same problem of a guilty state, a guilty Detroit district that is heavily minority—and no place else for the inner-city children to go. And, apart from the judicial orders that are peculiar to Detroit and Kansas City, much the same condition holds for many another urban area. The District of Columbia is the most familiar example.

Beginning in the late 1970s a partial solution to this problem was proposed to the civil rights legal fraternity. The federal court could break the impasse by using the one desegregated institution that was open to black children—private schools. Thousands of such schools operate in the cities within reasonable travel distance of segregated public schools. Most are relatively small religious institutions. In and about Kansas City the greater number are operated by Catholic and Lutheran parishes. Some are mostly black, some mostly white, and some racially balanced. Many of their pupils, especially the black children, attend Baptist or other churches—or none—but are content to take the religious curriculum of the school.

Two other important features shared by the Kansas City private schools should also be noted. First, they typify the environment now recognized as the most effective in educating disadvantaged children; as James Coleman and others have shown, the way to teach those who are worst off is within communities of shared belief. Second, these private schools spend roughly $2,000 per pupil per year; the public schools spend roughly $6,000. This also is typical of the national pattern.

In January, 1988, the Lawyers' Committee for Equal Rights in Education (CERIE) began to look for local lawyers in Kansas City to represent black children as plaintiffs. Their legal theory was utterly simple. The children would demand that their right to a desegregated education be vindicated by ordering the defendants to provide scholarships that could pay for tuition in integrated private schools chosen by parents. The idea has passed inspection by a battery of lawyers who are national authorities on issues of desegregation and church-state relations. All agreed that the enterprise was sound from a constitutional point of view.

Finding the right theory, however, was less trouble than finding the right lawyer. The recruiting process was itself a revelation of the conflicting attitudes among those who claim devotion to civil rights. The search took a full year during which lawyers from the ACLU as well as the original plaintiffs in the desegregation case declined to help the children. In each instance those who were approached agreed that such a judicial order would be good for the transferring students and good for the integration of the system. Their problem was the involvement of private religious schools. Just why this was an impediment for them was not specified. Given the current interpretation of church-state doctrine, the objection appears more personal than legal. To accept church schools as a refuge of civil rights would seem to represent too costly a shift in the self-image of these men and women.

The lawyers who finally took the case are a pair of high-energy business litigators, Richard and Stephen Miller—father and son. The Millers have long been leaders in practical reform projects in the Kansas City ghetto. Richard has systematically provided college tuition for a number of black high-school graduates. This is the Millers' first “civil rights” case. Their childlike enthusiasm for the task is a vivid contrast to the irritation of the defendants and of the Washington firms they have hired to assure that nobody departs the establishment.

The complaint was filed in federal court on July 13, 1989, on behalf of named black children and all others who, like them, wished to vindicate their Fourteenth Amendment right in the private sector. It listed nearly fifty Catholic, Lutheran, and secular schools that have specifically offered to take the plaintiff children without imposing academic barriers. These schools are scattered throughout KCD, the city, the suburbs, and nearby Kansas. They have offered 4,100 racially integrated places at an average cost of about |2,200. The case is styled Rivarde v. Kansas City Missouri School District. Little Quintin Rivarde is now nine years old; litigation is always unpredictable, but Quintin stands a fair chance of being famous before he gets to high school.

In the plainest way, the Rivarde case restates an old question: Just what are the justifications for government monopoly over the education of the poor? Those who cling to the old ways at such fearful cost to the children and in defiance of their parents' hopes would do well to offer society some neutral explanation. It is painful to suppose that Kansas City is another metaphor for the cold war over religion in the public square.

John E. Coons is a professor in Boalt Hall, the School of Law at the University of California at Berkeley.