Hostile takeover: the State of Missouri, the St. Louis School District, and the struggle for quality education in the inner-city: Board of Education of the City of St. Louis v. Missouri State Board of Education.

• Author: Smith, Justin D.

1. INTRODUCTION

   Missouri has been home to many of the landmark moments in the struggle for racial equality. (2) The Missouri Compromise saved the Union; almost four decades later, the determination that Missouri slave Dred Scott was mere property split the Union. (3) During the Civil War that followed, more battles and skirmishes took place in Missouri than in any other state outside of Virginia and Tennessee. (4) After the Civil War Amendments abolished slavery and guaranteed every person equal protection of the law, (5) the United States Supreme Court allowed a Jefferson City, Missouri, inn to refuse service to blacks. (6) The Court later relied upon this decision when creating the "separate but equal" doctrine in Plessy v. Ferguson. (7) This Plessy doctrine began to unravel when aspiring law student Lloyd Gaines won his desegregation lawsuit against the University of Missouri School of Law in 1938.8 Subsequent decisions in cases originating in St. Louis struck down the enforceability of racial covenants and upheld the congressional ban on housing discrimination. (9) Because the era of court-ordered desegregation arguably began in Missouri with Lloyd Gaines, it is somewhat fitting that the era also concluded in Missouri when the Supreme Court stopped the Kansas City school desegregation program.

   Against this backdrop came desegregation litigation in St. Louis, (11) which resulted in the first voluntary desegregation settlement in the country. This 1983 agreement desegregated the public schools in St. Louis and the surrounding suburbs during the following sixteen years. (12) Desegregation ended in 1999, (13) at last concluding the saga in St. Louis education that had continued for almost three decades.

   Or at least most thought the saga had concluded. Because student test scores in St. Louis consistently failed to meet state standards, in 2001 the state of Missouri unaccredited the St. Louis school district and transferred control from the St. Louis school board to a "Transitional School District." (14) In Board of Education of the City of St. Louis v. Missouri State Board of Education, the Supreme Court of Missouri upheld the constitutionality of the state's actions. (15) This Note will examine the decision, as well as the history of education in St. Louis and the results of takeovers by Missouri and other states.

2. FACTS AND HOLDING

   Beginning in the early 1980s, the St. Louis school district operated under a court-supervised desegregation plan. (16) Local control finally was restored in 1999. (17) During the subsequent eight years that the St. Louis school board governed, academic performance of the district remained at or below minimally accepted levels, as it had since 1994. (18) The performance was so bad, in fact, that the president of the Missouri Board of Education compared it to receiving a report card with three D's and six F's. (19) In the 2006-2007 evaluation of the St. Louis school district by the Missouri Department of Elementary and Secondary Education (DESE), the district failed to meet the minimum standards in four of the six categories on the state standardized test, as well as the minimum standards for attendance, graduation rates, and performance on the ACT. (20) Adding to the academic difficulties were financial problems. Under the direction of the school board, St. Louis schools spent $93 million more than they took in over a five-year period, turning a $63 million surplus into a $30 million deficit. (21)

   In July 2006, the fifth superintendent of the St. Louis school district in three years resigned. (22) Following this resignation and the overall poor performance of the St. Louis schools, the Missouri commissioner of education appointed an advisory committee to study the district. (23) Six months later the committee issued its final report, finding that the St. Louis school district needed state help and recommending that the "Transitional School District" (TSD) be re-established should the state unaccredit the district. (24) Unaccrediting the district was the recommendation of DESE, which relied upon its published manual of Missouri education statistics, the Understanding Your Annual Performance Report (UYAPR). (25) The Missouri Board of Education reviewed the advisory committee's report in January 2007, along with data, evaluations and recommendations by DESE, and various performance and financial reports. (26) The state board ultimately followed the recommendations of the advisory committee and DESE by reestablishing the TSD in February

   2001 and unaccrediting the district one month later. (27) The unaccreditation decision became effective June 15, 2001. (28)

   In response to this decision, the St. Louis Board of Education ("city board"), five board members, and children of those board members sued the Missouri Board of Education ("state board"), the Missouri commissioner of education, and DESE. (29) The city board filed a motion for a temporary restraining order, which would have prevented the accreditation decision from becoming effective and would have extended provisional accreditation to the St. Louis school district. (30) The Cole County Circuit Court denied the motion after finding the city board could not prove any of the three elements necessary to grant such an order: that irreparable harm would occur without the issuance of the order, that the public interest favored issuing the order, or that the city board was likely to prevail on the merits. (31) Because the temporary restraining order was denied, the TSD took control of the St. Louis school district after the district lost accreditation on June 15. (32)

   Along with the motion for a temporary restraining order, the city board filed a declaratory judgment suit. (33) The amended suit contained twenty-nine claims, which the trial court classified as "separate, but overlapping," all seeking to void the decision to unaccredit the district, to declare the transfer of control to the TSD unconstitutional, or to find that not all powers transferred from the district to the TSD. (34) The Cole County Circuit Court ruled for the state board on all counts. (35) The court found that the state board decision to unaccredit was not void because it was based on a wealth of information independent of the UYAPR published by DESE; (36) the decision was not arbitrary or capricious because the state board treated the St. Louis district like any other district; (37) the governor's appointment could take office immediately like any other appointment; (38) all constitutional claims were without merit; (39) and Section 162.1100 vested the TSD with full power, not just those powers existing on or before August 28, 1998. (40)

   After the circuit court's decision, the city board raised six points of error on appeal to the Supreme Court of Missouri. (41) The city board argued that (1) the reestablishment of the TSD violated the federal and state constitutional rights of voters, (2) Section 162.1100 violated the federal and state due process rights of the city board, (3) Section 162.1100 was an unconstitutional violation of the prohibition against special laws, (4) the state board decision to unaccredit the district was arbitrary and capricious, (5) the state failed to properly promulgate a rule, and (6) the city board retained all the powers it had prior to Section 162.1100's enactment on August 28, 1998. (42) The Supreme Court of Missouri affirmed the circuit court's ruling and held that Section 162.1100 constitutionally allowed the state board to take control of the St. Louis school district. (43)

3. LEGAL BACKGROUND

   1. History of Education in St. Louis

      Missouri has a dark and shameful past when it comes to race and education. Teaching black children was outlawed by the Missouri legislature in 1841, (44) and violators of this law faced a $500 fine or six months in jail. (45)

      This despicable law was replaced in 1865 by a series of equally despicable segregation statutes that were in effect for almost 100 years. (46) one such statute required separate schools for "white and colored children," a requirement that was part of the Missouri Constitution from 1865 until 1976. (47) According to another one of the 1865 statutes, local districts did not have to establish a new school if fewer than twenty students would attend, which exempted many districts with low black populations from building schools for black students. (48) Many blacks thus were forced to move to urban areas if they wanted an education for their children. (49)

      St. Louis was no stranger to the practice of racial discrimination and segregation in Missouri. In accordance with the state constitution, St. Louis schools were segregated before the Brown v. Board of Education decision. (50) Perhaps in anticipation of such a decision, the St. Louis school district hired a desegregation consultant in 1947. (51) The consultant's desegregation plan was ready when Brown was decided, and one week after Brown the St. Louis school board unanimously approved the plan. (52) According to the plan, all schools in the district were to be desegregated by September 1955. (53)

      But the St. Louis desegregation plan simply disguised the change from de jure to de facto segregation. Instead of enforcing racial segregation in schools by law, the new school plan continued racial segregation by exploiting residential segregation developed over decades. In 1916, almost forty years before Brown, St. Louis citizens voted by a 3-1 margin to become the first city in the country to enact mandatory residential segregation. (54) After the United States Supreme Court struck down a similar policy in Louisville, (55) the St. Louis planning commission began segregating neighborhoods through zoning boundaries. (56) The racial covenants enforced until Shelley v. Kraemer (57) and the policies of the St. Louis Real Estate Exchange, which allowed only property in certain areas to be sold to blacks, also combined to perpetuate...