Public Managers, Judges, and Legislators: Redefining the"newpaitneiship".x ;

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1 Public Administration "Partnerships" Public Managers, Judges, and Legislators: Redefining the"newpaitneiship".x ; Rosemary O'Leary, Syracuse University Charles R. Wise, Indiana University, Bloomington Although the case has immense fiscal implications, the significance of Missouri v. Jenkins for public what are the implications of the Supreme Court's Missouri v. administration extends beyond its consequences for fiscal policy. It has broad implications for the increasingly Jenkins decision for American public administration? In that landmark 1990 decision, tbe Court affirmed a federal district important aspect of American governance embodied in court order imposing local property tax increases for Kansas the relationships between judges and public administra- so-called "new partnership." The thrust of this City, Missouri, residents as a means of raising funds for desegre-tors thgation efforts by tbe local scbool district. In tbis article, article is that Missouri v. Jenkins demonstrates that the Rosemary O'Leary and Cbarles Wise examine tbe significance ofrelationship between judges and public administrators tbat decision for tbe "new partnersbip" tbat bas emerged in has evolved to a new level with profound effects. recent decades between judges and administrators. Based on interuiews with residents and scbool district personnel as well as Oti SeptetTiber 15, 1987, Urtited States District Court Judge Russell Clark ordered a doubling of property taxes in Kansas City, Missouri, in order to aid in the desegregation of the school system. Nine thousand Kansas Citians voiced their disapproval by paying their property taxes under protest, while others responded by staging a series of "tea parties" to complain about "taxation without representation." Two and one-half years later in the landmark decision of Missouri v. Jenkins, a majority of the U.S. Supreme Court surprised many by supporting Judge Clark's actions in part. It upheld the authority of a federal judge to order a local government to levy a tax increase in order to remedy constitutional violations, even though state laws prohibited such a tax increase. The New Partnership arcbival and legal researcb, tbe authors find tbat tbe decision Judge Bazelon (1976), who coined the term "new bas recast tbe role of public administrators operating under partnership," called for judges and administrators to court orders. In tbis case, court decisions empowered and legitimized actions by school administrators, as well as enhanced public policies. The view of harmonious collaboration work collaboratively to assure fair implementation of resources available to tbe scbool system. Equally important were has not gone unchallenged. Melnick (1985), among others, held a little over a decade later that the new part- the decision's impacts on tbe ability of local administrators to set priorities and control implementation. In addition, interorganization relations bave become problematic and new accountabil- of administrative power. The evolution of the new partnership had evolved into a cover for judicial usurpation ity mechanisms pose constant challenges. O'Leary and Wise alsonership has proceeded apace in many areas of public observe tbat by sanctioning court-ordered taxation, Missouri v. administration including schools, prisons and jails, and Jenkins may bave also expanded tbe new partnersbip into a mental health facilities. An examination of Missouri v. Jenkins, however, yields the conclusion that the new "new triumvirate" that includes legislative bodies. Wbateverform partnership involves a more complex set of relationships than connoted by either simple collaboration or tbese new relationsbips take, bowever, it is clear to the authors that the courts are tbe senior partners. usurpation; rather, the case signifies a transformation of the positions of judges, administrators, and also legislators brought about by the evolution of the new partnership. 316 Public Administration Review July/August 1991 Vol. 51, No. 4

2 This article examines what this case implies about the evolution of judicial-administrative relations and their impact on American governance. It focuses on the consequences for the constitutional principles of separation of powers and federalism, as well as the concept of representative democracy. The consequences for management effectiveness and implications for other public organizations beyond the school setting are also examined. Missouri v. Jenkins is a particularly gemiane case to scrutinize in order to delineate the condition of the new partnership. It not only deals with a basic issue of government, taxation and representation, but also exemplifies the types of alternative choices before both public administrators and judges as they cany out their partnership roles. The Possible Impacts of the Judiciary The literature is replete with works by scholars arguing about the appropriateness of judges intervening in policy and administrative disputes. With few exceptions (Monti, 1980; Wasby, 1981; Wood, 1990), the literature suggests that judges are becoming increasingly active in their oversight of administrative agencies (Frug, 1978; Melnick, 1983; Rosenbloom, 1983). Judges in many instances are no longer passive reviewers of agency actions, but are full participants, shaping litigation and its outcomes (Chayes, 1986). Although researchers have examined what happens when judges do intervene in a specific instance or two (Harris and Spiller, 1976; Wood, 1982; O'Leary, 1989), they have generally been less attentive to the impact of such intervention on the responsibilities of public managers. Judicial involvement in the management of public institutions increasingly comes about as a result of suits filed in federal courts on the basis of alleged constitutional violations by state and local officials. These are often broad based attacks alleging systemic violations requiring comprehensive programmatic changes. Once the federal district court judge makes a finding that the condition of the service constitutes a violation of the U.S. Constitution, the judge (with the involvement of the various parties) fashions a series of mandatory program steps to remedy the effects of the violation. As Cooper's analysis (1988) of cases involving various public services shows, the determination of who is liable for what type of constitutional violation as well as the specifications as to how the service is to be altered are much more complex than a judge contemplating and then deciding what would be fair and then imposing that solution on the parties. The remedy phase of the case can involve multiple parties including various interest groups, local administrators and elected officials, state officials, state legislators, the U.S. Justice Department, federal district court judges, and federal appellate judges. The final remedial program to be implemented is a product of a multilevel process of interaction among the participants that typically takes place over a period of years. Such "partnerships" are not short term affairs, but typically go on for years or decades.i The results of the remedy phase are significantly affected by the perspectives of the participants regarding their appropriate roles and responsibilities. The Roles of State and Local Officials State and local public administrators and elected officials in the process are seldom passive recipients of the program remedy that a federal judge imposes on them. Instead, they have significant choices of roles and responsibilities which, along with the decisions of the other parties, have serious implications for the public service outcomes, American governance, and public administration. Public administrators and elected officials do not necessarily play the role of the defendant in the traditional sense, resisting the challenged state of affairs. Nor does either automatically resist the changes that come with the court-imposed remedy. Either can choose to see their responsibilities as defender and/or resister if they feel important values are involved. Administrators may resist if they feel the prospective judicial intervention constitutes an inappropriate interference with their administrative responsibilities. Officials of the executive branch of government have constitutional responsibilities to "take care that the laws are faithfully executed" and to defend executive branch prerogatives against encroachment of the other branches. They also have responsibilities to represent the interests and views of their constituents. These responsibilities, of course, must be balanced with the responsibility to uphold the rights found in the U.S. and state constitutions. How executive branch officials see their role inevitably involves a judgment balancing these factors. Administrators may also resist if they believe judicial involvement will exacerbate their relationships with other important governmental actors. Alternatively, administrators can choose the role of collaborator, either believing they can advance important constitutional values and/or obtain desirable program choices through the federal courts that they can not achieve through other administrative and political processes. Prominent among these latter are additional budgetary resources. As Diver points out: The interests of officials with direct operating responsibility for example, institutional superintendents and their deputies often overlap substantially with those of the plaintiffs. They are most likely to support demands that can be satisfied by expending more funds or hiring more personnel. Translating a grievance into a demand for resources, even when alternative remedial approaches exist, not only deflects responsibility for the institution's defects away from the operating manager but also gives him [or her] a powerful ally in his [or her] unending quest for additional funds (Diver: 1979, pp ). Administrators and officials, however, need to focus on more than the likelihood of obtaining additional resources. As Allerton (1976), Frug (1978), Hale (1979), Horowitz (1983), and Straussman (1986) contend, litigation imports considerable loss of predictability into budgetary decisionmaking. Involvement of the courts makes calculation of the outcomes of strategies more difficult. In addition, officials should consider what the public wants in a possibly altered public ser- Public Managers, Judges, and Legislators: Redefining the "New Partnership" 317

3 vice situation. Courts may order remedies, but public reaction and support, or lack of it, will ultimately influence the effectiveness of such remedies. Additionally, administrators need to give consideration to the effects of the remedy on relationships within the governmental system and constitutional values. For example, state and local administrators often complain about a lack of respect for federalism in national decision making, but actions they take in liability suits can have significant consequences for either supporting or undermining such values. The issue is complicated by the fact that state and local officials are not monolithic. They often represent different constituencies and have different interests. These intrastate intergovernmental differences have important impacts on the strategies taken in the course of litigation, and conflicts in positions among state and local litigants can invite the federal courts to settle the issues with the resulting effect of rearranging intergovernmental relationships. Thus, administrators and elected officials must weigh constitutional, political, and management considerations in choosing a strategy for their participation in both liability phases and remedy-crafting phases of such suits. The Role of Judges The judicial side of the equation is not monolithic either, with judges at both the trial and appellate levels in the federal court system adopting certain roles and responsibilities. It should be understood that the "sides" of the partnership are not equal. Judge Bazelon observed that the advent of the new partnership places the judiciary in the role of "senior partner," and Rosenbloom (1983) observed that this not only enables the judiciary to assert some control over public administration, but to strengthen its own power in the administrative state. As Diver put it, "among the many players in the game of reform litigation...there is one whose capacity to manipulate its political impact exceeds all others: the trial judge." The trial judge's responsibilities are given effect not only in how narrowly or broadly he or she finds the liability and how widely he or she casts the net of those responsible, but also in the extensiveness of the remedy that is crafted. The doctrines of legal equity are broad, and the Supreme Court has emphasized to district court judges the use of the broad discretion afforded. "The scope of the district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies" (Swann v. Charlotte-Mecklenburg Board of Education, 1976, p. 15; Milliken v. Bradley, 1977, p. 281). As Cooper pointed out, the trial judge's remedy-crafting decisions are a function of the doctrinal limits constructed by the appellate courts and how the judge chooses to see and use the resulting judicial policy range. Although the Supreme Court has stated that the doctrinal limits of equitable remedies are quite broad, in the past it has also said this does not mean they are limitless. In Milliken v. Bradley (1974), a leading desegregation case prior to the case Courts may order remedies, hut public reaction and support, or lack of it, will ultimately influence the effectiveness of such remedies. under review here, the Supreme Court, in its first of two decisions, overturned a district court decision that would have consolidated Detroit's school system with those of its suburbs, in part because of a fear that the lower court's actions would "deprive the people of control of the schools through their elected representatives" {Milliken v. Bradley. 1974, p. 717). In its second Milliken decision {1911}, the Supreme Court upheld a modified remedy in part because the district court had not attempted "to mandate a particular method or structure of state or local financing" {Milliken v. Bradley. Wl, p. 267). The majority said the application of "equitable principles" required the trial courts to focus upon three factors: [First,] the nature and scope of the constitutional violation...[must] be related to the condition alleged to offend the Constitution... Second, the decree must indeed be remedial in nature, that is it must be designed as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct...third, the federal courts in devising the remedy must take into account the interests of state and local government authorities in managing their own affairs, consistent with the Constitution {Milliken v. Bradley, 1977, pp ). These factors do not necessarily limit the district courts very much. As one analyst (Nagel: 1978, p. 713) articulated, "the judgment of what is necessary to rectify the condition that offends the Constitution requires an essentially imaginary determination of the state of affairs that would have existed but for the violation. The consequences of the violation are speculative and potentially unlimited." All three factors still preserve considerable policy range that trial judges control. Just how considerable is vividly demonstrated in Missouri v. fenkins. The third factor places a responsibility on state and local officials to assert their interests, as well as those of their constituents. The problem is that all of their interests will not necessarily coincide, and the federal district court judge is in the preeminent position to determine which interests will be recognized. As Diver delineates, "through selective intervention he [or she] can identify and strengthen the position of allies on whom he [or she] can depend to champion the favored remedial objectives in subsequent political games. Litigation presents the politically sensitive judge with almost limitless opportunities for political impact" (Diver: 1979, p- 79). Litigation in federal courts transforms the normal processes and limits of the U.S. federal gov- 318 Public Administration Review July/August 1991, Vol. 51, No. 4

4 mental system and opens up the fundamental decision of who will have what powers among appointed and elected officials and among local, state, and federal officials. The roles of trial judges in terms of more active or more neutral determination of which parties and issues will be assigned priority will not only have effects on the policy dispute at issue, but on the wider political system in the future. If their actions seek to enlarge the judicial policy range, then the appellate courts occupy the crucial position in further definition of doctrinal limits which determines if the expansion will stand, and thus, further defines the new partnership. The Trial Court ^Exercising and Expanding Policy Range It is important to understand the levels as well as the direction of the conflict at the initial stages of the litigation. All public officials do not necessarily see their roles or interests in the same way. In this case, the superintendent and the school board actually initiated the litigation. The case began in 1977, when the Kansas City Missouri School District (KCMSD) a creation of the state of Missouri sued itself. More specifically, in 1977, the KCMSD's board and superintendent, along with several students, filed suit in federal district court against several parties, including the state of Missouri, the state board of education, nineteen suburban school districts, and three federal agencies. The plaintiffs alleged that the state had failed to carry out its duty to eliminate racial segregation after the U.S. Supreme Court decision Brotvn v. Board of Education (1954), and initially sought a judicially mandated desegregation plan. The judge to whom the case was assigned, Russell Clark, realigned the KCMSD as a defendant in the lawsuit and dismissed several other defendants. (This action raises the question of whether there was actually a "case or controversy" under Article III of the Constitution.) KCMSD immediately filed a cross-claim against the state of Missouri. Kalima Jenkins and other KCMSD students stepped into the picture as plaintiffs and reasserted the original complaint. Thus, the school superintendent and the school board collaborated with the plaintiff at the initiation of the lawsuit, through the phase in which liability was found, and into court-imposed efforts to remedy the violation. Throughout the lengthy trial, the defendant KCMSD worked closely with the plaintiffs in developing arguments, writing complaints, and in styling the relief requested. On June 6, 1984, to the delight of the KCMSD, Judge Clark found that the state of Missouri and the KCMSD had violated the Equal Protection Clause of the U.S. Constitution by operating a racially segregated school system. The court also held in favor of the KCMSD on its cross-claim against the state {fenkins v. Missouri, 1984). The district court then issued an order detailing the remedies necessary to desegregate the school district, including the finances required to implement those remedies {fenkins v. Missouri, 1985). In the original remedial order, the judge estimated the costs to be almost $88,000,000 over three years of which he expected the state to pay $67,592,072 and KCMSD to pay $20,140,472. The judge also ordered KCMSD to do something that would prove to have a momentous impact on the case. He directed the KCMSD to prepare a study addressing the usefulness of "magnet schools" to promote desegregation {Jenkins v. Missouri, 1985). (A magnet school is one with reputedly superior teaching, as well as better and more elaborate programs and facilities in a specific area designed to "attract" students with interests in that area.)^ The state of Missouri appealed the judge's state allocation decision to the Eighth Circuit Court of Appeals alleging that the judge had failed to explain adequately why he had imposed most of the cost on the state. The Eighth Circuit ultimately agreed with the state on that point. During the appeal period, however, the district court's proceedings continued. In May 1986, KCMSD proposed to the court that it be ordered to operate new magnet schools. On June l6, 1986, the judge approved KCMSD's proposal to operate six magnet schools during , and authorized $12,972,727 for magnet school operations and $12,877,330 for further capital improvements {Jenkins v. Missouri, 1986). However, perhaps as a harbinger of things to come. Judge Clark stated in his opinion his long term goal "to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City Missouri Metropolitan school district" {Jenkins v. Missouri: 1986, p. 54; emphasis added). Presumably restoring those affected by the segregated school system meant that Kansas City Schools would have been superior to surrounding schools, and the court could order the district to go further than other school districts had gone. In August 1986, KCMSD submitted its long-range magnet school plan and proposed an expansion of the magnet schools program to essentially make the whole school district a magnet schools system. In November 1986, Judge Clark adopted the KCMSD plan and ordered that every high school, every middle school, and half of the elementary schools become magnet schools by the school year. Exceeding original budgetary projections, the judge authorized $142,736,025 for operations and $52,858,301 for additional capital improvements. The judge also found that the state was 75 percent at fault and KCMSD was 25 percent at fault, and ordered them to share the costs of the remedy in that proportion. He also found the state and KCMSD "jointly and severally" liable for the costs of the plan. Under the principles of joint and several liability, each of the two responsible parties pays a prescribed allocation, but each party also is obligated to pay more than its allocation or even all of the costs if the other cannot pay. On September 15, 1987, the judge boosted the amount necessary for capital improvements to $187,450,334 {fenkins v. Missouri, 1987). At this point, it became clear to Judge Clark that the KCMSD would lack the resources to pay for its 25 percent share of the now more expensive plan. The court confronted the fact that the Missouri Constitution (Art. X, Sec. ll[b][c]) limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.26 per $100. The levy may be raised Public Managers, Judges, and Legislators; Redefining the "New Partnership" 319

5 above $3.26 only if two-thirds of the voters agree. Complicating the situation was another provision of the Missouri Constitution (Art. X, Sec. 22[a]) which states that no revenue increase may be obtained through increases in the assessed valuation of real property. Further exacerbating the case was Missouri's "Proposition C" (Missouri Rev. Stat. Sec [1986]) which allocates one cent of every dollar raised by the state sales tax to schools, but had the effect of diverting nearly one-half of the sales tax collected in the KCMSD to other parts of the state. In a series of actions aimed at raising the needed funds to cany out the school desegregation (which included the building of new state-of-the-art schools), the court ordered the KCMSD to submit to the voters a proposal for an increase in taxes {Jenkins v. Missouri, 1985, p. 45). The voters responded by defeating the proposal as they had done five times previously in 1971, 1974, 1983, 1986, and Further efforts to obtain funds from the city council and the state legislature failed. Voters interviewed by the local paper indicated that they did not support the proposal because the KCMSD already was spending more per pupil than all but one other district on the Missouri side of the metropolitan area. Yet the KCMSD was the only one in the metropolitan area without the state's highest rating, AAA, and ranked last in scores on the state's minimum competency test {Kansas City Star, June 2, 1986). The Kansas City newspaper portrayed the KCMSD as "wasteful, top-heavy, and insensitive to the needs of children." Convinced that the KCMSD had exhausted all avenues of raising revenue and chastised by an appeals court that a lack of money could not be allowed to impede the desegregation plan. Judge Clark took the unusual action of ordering the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation. Outraged residents and the state of Missouri appealed the decision to the Eighth Circuit Court of Appeals. The state argued to the appeals court that the facility improvements were more than was necessary to carry out the educational components of the desegregation plan and that the capital improvements plan was extravagant. The Eighth Circuit dismissed these arguments summarily noting only that "the district court found that the overall condition of the school buildings adversely affects the learning environment and continues to discourage parents who might otherwise enroll their children in the KCMSD" {Jenkins v. Missouri, 1988, p. 1306). The appeals court was quite ready to allow the lower court judge vast policy range, dismissing for example, the state's objection that a twenty-five acre farm and a twenty-five acre wildlife area were excessive by noting that one suburban school district had a twenty-three acre museum and laboratory {fenkins v. Missouri, 1988, p. 1306). What expenditures were necessary to remedy the constitutional violation were to be determined very much by the trial judge, the court said. officials in the executive. legislative, and judicial branches also have to decide which of the competing constitutional principles shall have priority and how far the dominant constitutional principle should extend over the others. The appeals court also upheld the tax increase, but strongly cautioned Judge Clark in the future not to set the property tax rate himself. The two-judge majority cautioned that the "least intrusive" strategy would entail authorizing the KCMSD to set a "reasonable" levy increase and then to enjoin the operation of state laws preventing such a remedy. Acknowledging that the levy would have to be subject to some limitation, the majority concluded "...it is best to leave the appropriate limitation to the district court's discretion" {fenkins v. Missouri, 1988, p. 1314). Thus, the district court would, in effect, act as a continuing appropriations and revenue committee, as well as a legislature for the school district. Judge Lay, in dissent against allowing the district court to order the district to levy a tax increase, stated that the court had another alternative. Noting that the trial court had found the school district and the state jointly and severally liable, he observed that the court could have held the state liable for that portion of the costs that the district could not pay under state laws {fenkins v. Missouri, 1988, pp ). This would then have left it up to the state legislature to decide whether it wanted to change the laws to allow higher school district taxes, raise state taxes, or to shift resources from other programs. The two-judge majority rejected that alternative on the grounds it "would simply prolong the controversy." Notions of separation of powers and federalism would have to give way to issues of rapidity. The Eighth Circuit's decision was further appealed by the state of Missouri to the Supreme Court. The Court denied the state's petition for review of the scope of the remedy (the budget) and agreed to only a limited review of that part of the case dealing with the tax increase, even though the Eighth Circuit concluded that the remedies ordered by the district court went far beyond anything previously ordered by a court.3 On April 18, 1990, the Supreme Court issued its opinion. The Court first held unanimously that the district court itself could not impose the tax directly. The opinion then went on to uphold, in a five to four vote, the authority of a federal judge to direct a local government body to levy taxes, despite state law limitations, in order to remedy a constitutional violation. Three months later. Judge Clark ordered 320 Public Administration Review July/August 1991, Vol. 51, No. 4

6 the Kansas City school board to bypass taxpayers and raise taxes another 24 percent to $4.96 per $100 of assessed value. Implications for Constitutional Principles Many cases involving remedies based on the Constitution involve competing constitutional principles, and Missouri v. Jenkins is no exception. An argument persuasively has been made by Rosenbloom and Carroll (1990) that competent public officials need to be aware of constitutional imperatives and conduct their affairs accordingly. However, the officials in the executive, legislative, and judicial branches also have to decide which of the competing constitutional principles shall have priority and how far the dominant constitutional principle should extend over the others. How the courts see the relative importance of the principles and the latitude such principles create for district court judges profoundly affects public service outcomes and our system of governance. Missouri V. Jenkins involves four competing constitutional principles: (1) equal protection (guaranteed by the Fourteenth Amendment); (2) separation of powers (implicated by Article III covering the powers of the judiciary); (3) federalism (provided for by the Tenth Amendment) and principles of state and local comity; and (4) the guarantee of a republican form of government. The primary basis for justifying the remedy is equal protection guaranteed by the Fourteenth Amendment. At this point, there can be little dispute that the children of Kansas City are guaranteed equal protection of laws in education. The guarantee of equal protection for our nation's children is no less important today than it was when Brown v. Board of Education was decided in Further, the judges themselves did not file suit in this case, nor did they create the discriminatory conditions in the KCMSD. (Indeed, the government could have avoided the entire case by not violating the Fourteenth Amendment.) Yet, there are different ways to respond to such discriminatory practices. The decision as to how to meet the command of the Fourteenth Amendment leaves enormous discretion to district court judges. Their decisions regarding what constitutes "equal" and how to achieve such equality are subject to debate. For example, how broad in scope in terms of programmatic, budgetary, and revenue decisions is it necessary to make the remedy? How much realignment of governmental authority at state and local levels is necessary to assure the remedy? The Supreme Court majority did not delve deeply into these issues except to say that the Fourteenth Amendment was sufficient justification. Instead Tliere is no other power more central to the legislativefunction than the power to impose taxes. the Court seemed intent on erring on the side of preserving great policy range for district court judges in making all kinds of decisions pursuant to the broad mandate of the Fourteenth Amendment. As the dissent in Missouri v. Jenkins stated, the act of the Court's majority "seems motivated by the fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation" {Missouri V. Jenkins, 1990, p. 1675). This fear seems baseless, however, given the fact that there was never a finding by any court that without the imposition of the tax, the constitutional violations would not be remedied. Nor was there a finding that the district court's plan was the only possible means for correcting the constitutional violation. If the judge or the appeals court had assigned costs that the school district could not pay under existing Missouri law to the state itself, then the issue of extending the judicial power over taxation might never have arisen. In addition, as die Supreme Court dissent pointed out, "there is no showing in the record that, faced with the revenue shortfall, the district court gave due consideration to the possibility that another remedy among the 'wide range of possibilities' would have addressed the constitutional violations without giving rise to the funding crisis" {Missouri v. Jenkins, 1990, pp. l677-l678). The unprecedented court-mandated budget increases were not even reviewed by the Supreme Court. The dissenters took the majority to task for not considering the scope of the budgetary remedy (which the district court judge said gave him no choice but to impose a tax), and stated "...attention to the extraordinary remedy here is the Court's duty" {Missouri V. Jenkins: 1990, p. 1678). There is substantial room for debate concerning whether the Fourteenth Amendment requires magnet school facilities having classrooms with: air conditioning, an alarm system and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums, a 25-acre farm with an air-conditioned meeting room for 104 people; a model United Nations wired for language translation; broadcast capable radio and television studios with an edition and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school; animal rooms for use in a Zoo Project; swimming pools; and numerous other facilities {Missouriv. Jenkins, 1990, p. 1677). The Supreme Court majority extended the judicial power over taxes without examining the issue of what type of programmatic and budgetary remedy would justify that step, and whether the one fashioned for Kansas City met or vastly exceeded the requirements of the Fourteenth Amendment. As the dissent put it, "if the Court takes upon itself the power to tax, respect for its own integrity demands that the power be exercised in support of true constitutional principles, not 'suburban comparability' and 'visual attractiveness'" {Missouri w. Jenkins: 1990, p. 1678). Public Managers, Judges, and Legislators: Redefining the "New Partnership" 321

7 There is no other power more central to the legislative function than the power to impose taxes. Nowhere in the constitutional description of judicial power in Article III is the word tax included. In addition, Alexander Hamilton (Federalist No. 78) seeking to assure that legislators had nothing to fear from the proposed Supreme Court in terms of threatening their basic prerogatives, wrote: "The judiciary...has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.'"* The Supreme Court has said many times in other cases that federal courts may not assess or levy taxes {Moses v. Grant County, 1961; Davis v. Michigan, 1989). Although a federal court, under certain circumstances, can order a public entity to levy a tax which the law authorizes {Griffin v. Prince Edward County, 1964), the Supreme Court has never before permitted the ordering of a tax which the state law explicitly does not authorize (if the state law was not found to be unconstitutional). Nowhere in Missouri v. Jenkins was the state law held to be unconstitutional. The majority did not significantly examine the separation of powers question, but simply stated "... a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court" {Missouri v. Jenkins, 1990, p. 1665). As long as the district court judge had "reason based in the Constitution," the majority saw no separation of powers problem in his ordering a tax increase {Missouri v. Jenkins, 1990, p. 1666). With this decision, a majority of the Supreme Court left no doubt that it considers that the separation of powers principle does not apply to the federal courts' relationship to the states, and provided no limitation at all to the "new partnership. "5 The related principle of representative democracy is likewise affected by the majority's decision. The act of the Court binds individuals, the taxpayers of Kansas City, who were not directly represented in the suit. There was no notice and therefore no opportunity to be heard, as is the case in more traditional local government taxation efforts. There was no forum for the public to discuss the balancing of demands for resources with the. availability of resources. From this perspective, there was no due process.'^ With respect to federalism, the majority quickly dismissed the state's contention that the Tenth Amendment applied, proclaiming only that the Fourteenth Amendment underlying the judge's decision overcame it {Missouriv. Jenkins, 1990, p. 1665). The majority did recognize the principle of federal/state comity, but in an ironic way. The majority claimed that the appeals court's act of striking down the district court's direct imposition of the tax and substituting an order that the local government levy the tax itself preserved federal/state comity.^ In other words, if the district court judge does not pull the local tax lever with his or her own hand, but grasps the wrist of the local official and makes him or her pull it, federal/state comity is preserved. In sum, the Supreme Court majority in Missouri v. Jenkins appeared to see its role as preserving as much policy range as possible for the trial courts in fashioning a remedy, and not in placing any significant limits based on other constitutional principles. As a result, the reach of district court judges under the broad prescriptions of the Fourteenth Amendment has been extended even further into other core constitutional principles. Implications for Management Effectiveness Administrators and elected officials can discern several lessons from the outcome of this litigation to date. Both programmatic gains and unanticipated consequences^ result from managing under federal court supervision. As noted previously, a district court judge can determine what interests will be recognized and which officials will be affected. In this case, local school officials have been empowered, some charge, at the expense of the state and local taxpayers. The district itself, even though a defendant in the case, has been active behind the scenes from the very beginning, shaping the litigation and its outcomes. Superintendent Garcia, for example, has been described by the plaintiffs attorney as the "lead witness" to convince the court of the appropriateness of plans. Hence, the court decision has given power and legitimacy to the ideas of the superintendent, as well as others, that might never have been implemented. School district officials have been enabled to create new and innovative programs which many consider "cutting edge reforms." The largest enterprise has been the creation of magnet schools that specialize in areas such as computer science, the performing arts, and languages. Another program created prepares 3- and 4-year-old "at risk" children for school. Other examples include a "Parents as Teachers" program and an extended day-care program for the children of working parents. As discussed, those officials choosing the collaborator role may be motivated by the prospect of additional resources. Additional resources are a most visible result in Kansas City. The court decision has dramatically increased the budget of the school district. The budget grew from $115 million in 1986 to $300 million in 1988 nearly a threefold increase. Moreover, the bill just for new school buildings and renovations of older buildings is expected to reach $350 million or more. Finally, the total monetary cost of implementing the desegregation plan is estimated to be $1 billion, a significant infusion of funds into the KCMSD. The resources have allowed the rebuilding of the aging, asbestos-laden, mice and roach-infested infrastructure of thirty-nine schools. They have also yielded a $68 million salary increase for district teachers and support staff. This averages to at least a 20 percent raise for every district employee. Moreover, smaller classes have been possible through the hiring of additional teachers. This has yielded a reduction in the pupil to teacher ratio. Unanticipated consequences resulting from the court order include impacts on priorities, implementation, interorganizational relations, and accountability mechanisms. First there has been a loss of control over priority-setting by school officials. From a "macro" or school district-wide perspective. 322 Public Administration Review July/August 1991, Vol. 51, No. 4

8 compliance with the courts' orders has become the KCMSD's top priority, at times overshadowing its educational mandate. The courts have dictated which issues get attention in the school district. The court orders are the sole components of the district's strategic plan. Second, the court decision has been an implementation nightmare, yielding "overwhelming" budgeting, planning, and staffing problems. Simply put, the changes have been too much too soon. Deadlines have been devised and missed as the district has struggled with issues such as land acquisition, school design, and lack of staff. New deadlines have been formulated and ignored. Moreover, while the budget grew, the staffing of the business office initially did not. Hundreds of financial transactions flooded the antiquated business office, overwhelming the staff. For example, millions of dollars of purchases budgeted for the newly renovated schools in the 1989 fiscal year were not processed before the end of the year. The court held that KCMSD could not obtain reimbursement for these purchases even though similar purchases in the future might be acceptable (Court Order, January 25, 1990). Under court guidelines, money budgeted but not spent in a fiscal year may not be recovered. Teachers have complained that the purchasing department has lost their records, and schools have opened without needed supplies. Further, the human resources division, unequipped for its new responsibilities, has fumbled the recruiting of many new teachers. Reports of applications withdrawn because of lengthy waits, misplaced files, and letters of appointment sent two weeks after the opening of schools, were rampant. In some instances, the teachers needed to fill specialty slots have not been located. Exacerbating the situation, the human resources division has been without a permanent director for one and one-half years. The court decisions also put pressure on and magnified deficiencies in district planning processes. For example, the scheduled opening of the Metropolitan Advanced Technical High School was delayed because officials had not anticipated vacating the school for renovations and installation of specialized equipment. While granting the delay, the court called the move a "tragic result" of "KCMSD's poor planning process." Further, the court warned that "if the proper planning does not occur, desegregation funds will not be approved" for the school (Court Order, July 5, 1989, p. l6). In another project, the officials did not plan for asbestos removal; and unanticipated costs exceeded $910,000. Additionally, the opening of a magnet program at the King middle school was delayed by a year because KCMSD expected less than one-third of the 125 student slots to be filled. The court again criticized the district's poor planning and threatened to withhold funds, but also threatened to hold key district administrators in contempt of court "if the planning process for King...[was] not improved" (Court Order, July 3, 1989, p. 21). Decisionmaking under court order has often been delayed, because all major actions have had to be approved by the judge. A May 3, 1990, memo from the court decision has been an implementation nightmare, yielding "overwhelming" budgeting, planning and staffing problems. Simply put, the changes have heen too much too soon. KCMSD superintendent to the school board, for example, indicates that the standard operating procedure has been to seek "prior approval...from the court." This has often been a slow process because of the court's busy docket. Administrators have also lost control over numerous details of administration. When the plaintiffs and defendants filed a joint motion to request an independent study to determine the extent to which KCMSD was able to meet certain financial obligations under the desegregation plan. Judge Clark ordered that the study must include a complete analysis of organizational structure and an assessment of the "leadership performance of key personnel involved in organization development within the KCMSD" (Court Order, April 13, 1990, pp. 2-3). Judge Clark has also reduced architect's fees from 8 percent to 6 percent, and denied a district request for furniture because he was not supplied with information he wanted concerning its quantity and quality. All of these implementation problems have created an immense amount of stress in the workplace, and have not led to confidence in the management capacity of the district administration or the school board. A governor's task force survey (1990) found that in terms of how it functions in eleven areas, the KCMSD board was rated below average by the administration in nine areas, very low by the faculty in nine areas, very low by the parents/residents in eight areas, and low or very low by members of the board itself in nine categories. The superintendent was seen functioning as average by the board as well as by the administration, and very low by parent/resident respondents. Several assistant superintendents, the deputy superintendent, and finally the superintendent himself, have resigned. Third, the court decision has complicated the management of interorganizational relations leading to increased conflict. The largest source of interorganizational conflict for the KCMSD superintendent has come from the thirteen person desegregation monitoring committee (DMC), appointed by the judge to oversee all desegregation efforts and to report to the judge. The existence of this committee, which has no statutory limits, has yielded a loss of administrative power for the district's chief administrator, with the committee dissecting or "micromanaging" virtually everything the district does. For example, in the summer of 1990, the DMC had a onehour discussion on the width of a creek on a proposed ele- Public Managers, Judges, and Legislators: Redefining the "New Partnership" 323

9 mentary school campus. The DMC has also intervened in appointments for key personnel responsible for desegregation plan implementation. A May 1990, memo from the superintendent to the school board called this particularly "problematic because...[the DMC members] question district actions in an area in which the administration traditionally has had wide discretion. It is unclear how the tension over personnel appointments will be resolved." The committee has also involved itself in choosing sites for the new schools, recruiting students for the magnet schools, and advertising for new teachers. The DMC repeatedly has questioned the superintendent's leadership skills, scolding him in public for not being "charismatic enough." A report issued in the fall of 1990 by the DMC concluded that the superintendent did not have the "administrative expertise to implement so ambitious a desegregation plan." When the DMC threatened to take over the administration of the school district or have the court take it over, the superintendent replied, "if they think they can do a better job, they should go ahead and do it" {Kansas City Star, ]u\y 10, 1990). Fourth, the administration has been beset by numerous demands to install new accountability mechanisms. One source of challenge has been the result of the rapid influx of money which has yielded a public demanding enhanced scrutiny and accountability. Such demands have been intensified by allegations of corruption. One cab company, for example, recently admitted overcharging the district by $137,000 for transporting students, while another cab company admitted overcharging by $84,800. In October 1988, more than 6,100 Kansas City voters signed a petition calling on the state auditor to examine district records for wasteful spending or misuse of funds. The audit, which found inadequate recordkeeping, lax control systems, the existence of employee fraud, accounting irregularities, poor management practices, and no competitive bidding in certain instances, was released two years late, after most of the problems had been detected and addressed. The DMC has also demanded accountability to it and told the superintendent that its support was contingent upon his solving the accounting and financial reporting problems in ways dictated by the DMC. The state also has demanded strict separation of desegregation costs.9 New data systems have had to be established to aid in the internal control of spending, student record keeping, purchasing, insurance tracking, and security. The Impact on Public Administration While Missouri v. Jenkins has had a great impact on the ability of the KCMSD superintendent to manage and lead the school district, it potentially could have an even more significant impact on public administration as a whole. The principles discussed in the case are not limited to its discreet factual situation, or to school desegregation cases. The majority cited 42 U.S.C Sec (a broad-based civil rights liability statute applicable to all state and local officials and local governments see Wise [1989]) as providing the authority for the plaintiffs claim and the district court's exercise of its equitable powers. Justice Kennedy wrote: of our nation's local government entities with taxing authority may be ordered to levy taxes in access of the limit set by state statute where there is reason based in the Constitution for not observing the statutory Imitation. There is no obvious 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 under 42 U.S.C. Sec This assertion of judicial power in one of the most sensitive policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies {Missouri V.Jenkins, 1990, pp ). Any of our nation's local government entities 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. In 1987, there were 3,042 county, 19,200 municipal, l6,691 township, and 14,721 school district governments legally authorized to levy property taxes. In addition, 41 percent of special district governments, or 12,108 more public entities were legally authorized to levy property taxes (U.S. Dept. of Commerce, 1988). Not all of these 65,762 local governments were subject to state imposed limits, however. Nine states and the District of Columbia have no limits,'" while the other forty-one states vary considerably in the type of local government entity limited by statute as well as the type of tax power limited (Advisory Commission on Intergovernmental Relations, 1986). Examples of potentially vulnerable functions include hospitals, airports, sewerage, water supply, fire protection, housing, and highways. As the budgetary effects of a national policy which has shifted responsibility for programs mandated by the federal government to state and local governments becomes clearer, judicial taxation could come into play in many different instances. Groups unsuccessful in the legislature may increasingly tum to the judiciary for help. In the earlier years of public service litigation when federal grants were more plentiful, courts reduced the impact on state treasuries by directing institutional defendants into the frequently open embrace of federal grant administrators (Cavanagh and Sarat, 1980). This softened the blow to the public and diffused federalism concems in that the federal govemment would help pay for what the federal courts ordered. 324 I'ublic Administration Review * July/August 1991, Vol. 51, No, 4

10 Given the federal fiscal situation, however, such grants are largely extinct. This brings those seeking institutional change face to face with legislatures. Public institutions could join forces with interest groups to enlist the backing of a federal court in financing policy initiatives that do not have public support. Such litigation may have less to do with constitutional rights than with intergovernmental warfare over resources. As Justice Powell stated in his concurring opinion in Milliken V. Bradley, the plaintiffs and the defendant "have now joined forces apparently for the purpose of extracting funds from the state treasury." Credence for this motivation in Kansas City is provided by the school superintendent who stated in an interview I think one thing that's been missed by a lot of Kansas City residents is yes the property tax has been doubled, but there is no other district ^well a couple of districts in the country ^where the state, all the taxpayers in the whole state, are rebuilding our capital facilities in Kansas City. It is unique. So the city is getting new school facilities and paying only about 30 percent of the cost (Rodgers, 1990)." Local governments may be facing a dramatic change in the way that priorities are determined and funded. Local control and long established service priorities may be jeopardized as judges who deal with only one of hundreds of competing issues facing local governments order taxes to support a single purpose. In such situations, no one person or entity will be responsible for a total budget, yet the public will continue to demand accountability. Conclusion: Reassessing the "New Partnership" If, as the foregoing discussion suggests, Missouri v. Jenkins yields a redefinition of the role of public managers in our local governments, then it also must bring with it a redefinition of the term "new partnership." Judges are not making changes in public services on their own. The on-going interaction among multiple parties under federal court supervision of a public service requires public managers to consider their roles and responsibilities within the litigation context. The decisions they make not only will affect the priorities for public programs, but also can bring new players into the management of public organizations, accompanied by numerous unanticipated consequences for management effectiveness. It is difficult for public managers to control or adjust these consequences because so much decisionmaking becomes susceptible to forces within the judicial decisionmaking arena. In addition, the decisions by public managers in litigation can have profound consequences for the arrangement of governmental power, priorities among constitutional principles, and relationships with other officials and the public. The school administrators' quest for resources, quality schooling, and equal protection in Kansas City has significant implications for federalism, the separation of powers, and representative democracy. Public managers are by no means the primary agents in determining the outcomes noted above. The senior judicial partner is in the position to arrange decisionmaking power over the public service among the various parties. Local officials are very much in a junior partner position, along with state executive officials, and other administrators of other related jurisdictions. The choice to play the collaborative role, however, may bring a rearrangement of power and priorities within state and local governments favorable to the local jurisdiction if it fits within the goals of the judicial partner. Nonetheless, local public managers need to consider the implications of how their choices can reverberate throughout the judicial system not only to affect their future management effectiveness, but the governing and management effectiveness of other state and local jurisdictions as well. For example, it is inconsistent to call for respect for the principles of federalism from the federal government for regulations considered oppressive, and then to ask the federal courts to set aside state laws and the wishes of local voters to attain programmatic goals considered desirable. Missouri V. Jenkins also demonstrates the capacity of federal judges to choose their responsibilities and play their rcrfes to determine who will have administrative, and even legislative power, at the state and local level. Once litigation begins, federal district court judges are clearly in the preeminent powerbroker position. If the judge chooses to play the role expansively, there are no hard and fast limits. Rather, the regulators of judicial policy range have demonstrated that if they are likely to err in setting limits, they are disposed to err on the side of preserving an extensive range for judicial choice. The judicial policy range for the federal courts may not be without limits, but Missouri v. Jenkins demonstrates that those limits are certainly fiexible enough to permit further expansion by the district courts. Tied in with this, state legislatures have been welcomed to the new partnership with notice being served that even the core legislative power of taxation is not outside the purview of judicial decision. With the Supreme Court's decision in Missouri v. Jenkins, a redefinition of the term new partnership to include the judicial usurpation of legislative functions is needed. Perhaps the term "new triumvirate" is appropriate. But it must be acknowledged that in this ruling body of three, all players are not created equal, and the formerly "least dangerous" player is now holding most of the cards. Clearly the "new triumvirate" will affect the administration of our governments for years to come. Rosemary O'Leary is assistant professor of public administration at the Maxwell School, Syracuse University. Her research, which focuses on public administration and law, as well as environmental policy, has appeared in several public administration, social science, and law journals. Charles R. Wise is former managing editor for Public Administration Review and a recipient of the William E. Mosher Award for best article by an academician in PAR. Public Managers, Judges, and Legislators: Redefining the "New Partnership" 325