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Volume 4, Numbers 5 and 6
SUPREME COURT CASES ADDRESS IMPORTANT CIVIL RIGHTS ISSUES SUPREME COURT UPHOLDS JUDGE'S ORDER RE TAXES IN SCHOOL DESEGREGATION CASE
On April 19, 1990 the Supreme Court ruled 5-4 that federal judges may set aside laws that prohibit a school district from increasing its property tax rate in order to cover the cost of remedying constitutional violations, (Missouri v. Jenkins, 58 USLW 4480).
Background
On September 17, 1984 District Court Judge Russell G. Clark found the State and the Kansas City, Missouri School District (KCMSD)liable for discrimination against black children attending the KCMSD schools, both by operating the schools on a segregated basis and by providing a substandard educational program. The judge later approved specific programs and costs he found necessary to eliminate the substandard conditions present in the schools, and to provide the victims of unlawful segregation with the educational facilities that they had been unconstitutionally denied. The costs were apportioned between the State and the school dis trict.
After finding that the school district had exhausted all available means to meet its share of the cost of the remedial plan, including numerous bond issues and property tax increases that the district voters had failed to approve (under state law which requires a two-thirds vote), the district judge ordered local authorities to im pose tax measures sufficient to meet their constitutional obligation to remedy the school segregation. The Eighth Circuit affirmed the district court order but modified it to make clear that the court simply set aside State levy limitations on KCMSD's taxing authority, thereby relieving Judge Clark from any responsibility todetermine the particular property tax that should be imposed or to order imposition of that tax. (For further discussion, see the Winter 1990, Civil Rights Monitor.)
The question before the Court was "whether federal courts may set aside laws that prohibit a school district from increasing its property tax, where the school district would otherwise be unable to meet its constitutional obligation to remedy its past racial discrimination and had exhausted all other alternatives for meeting that obligation."
The Opinion
The decision, written by Justice White, and joined by Justices Brennan, Marshall, Blackmun and Stevens, rules that while federal judges do not have authority to raise local property tax, the modifications made by the appeals court - setting aside the State levy limitations so that the school district could levy its own tax - was "a judicial act within the power of a Federal court."
"It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation .... Here the KCMSD may be or dered to levy taxes despite the statutory limitations on its authority in order to compel the discharge of an obligation imposed on KCMSD by the Fourteenth Amend ment .... However wide the discretion of local authorities in fashioning desegregation remedies may be, if a state imposed limitation on a school authority's discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.".
The Dissent
Major portions of the dissent, written by Justice Kennedy and joined by Chief Justice Rehnquist and Justices O'Connor and Scalia, were read by Justice Kennedy from the bench, a practice Justices sometimes use to indi cate particularly strong views about a case. The dissent states: "Today's casual embrace of taxation imposed by the unelected, life-tenured federal judiciary disregards fundamental precepts for the democratic control of public institutions." Justice Kennedy continues:
"I do not acknowledge the troubling departures in today's majority opinion as either necessary or appropriate to ensure full compliance with the Equal Protection Clause and its mandate to eliminate the cause and effects of racial discrimination in the schools. Indeed, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no ob vious limit to today's discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality .... This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies."
Response by Senators Danforth and Bond
On April 20, in response to the decision, Missouri Senators Jack Danforth (R) and Christopher Bond (R) in troduced a Joint Resolution (S.J. Res. 295) "proposing an amendment to the Constitution to prohibit the Supreme Court or any inferior court of the United States from ordering the laying or increasing of taxes." Senator Danforth stated:
"The power to tax is the fundamental power of government. Until April 18, the people had to consent to be taxed. The power of taxation was held close to the people and under their control. No taxation without representation is basic civics. Our proposal addresses a core issue of constitutional government: Do federal judges who are elected by no one, and who serve for life, have the power of taxation? The Supreme Court ruling, in my view, basically gives the courts a green light to get into the area of taxa tion. I welcome the support and interest that is being shown in the principle of repre sentative taxation, and look forward to hearings and to a great debate in Congress on a matter of profound importance."
A hearing on the amendment is set for June 19 in the Senate Judiciary Subcommittee on the Constitution.
  
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