77

93-1823-dissent

2 MISSOURI v. JENKINS

and argument informed by an appreciation of the
potential breadth of the ruling. The deficiencies from
which we suffer have led the Court effectively to
overrule a unanimous constitutional precedent of 20
years standing, which was not even addressed in
argument, was mentioned merely in passing by one of
the parties, and discussed by another of them only in a
misleading way.

The Court's departures from the practices that produce
informed adjudication would call for dissent even in a
simple case. but in this one, with a trial history of
more than 10 years of litigation, the Court's failure to
provide adequate notice of the issue to be decided (or to
limit the decision to issues on which certiorari was
clearly granted) rules out any confidence that today's
result is sound, either in fact or in law.

I

In 1984, 30 years after our decision in Brown v. Board
of Education, 347 U. S. 438 (1954), the District Court
found that the State of Missouri and the Kansas City,
Missouri School District (KCMSD) had failed to reform
the segregated scheme of public school education in the
KCMSD, previously mandated by the State, which had
required black and white children to be taught separately
according to race. Jenkins v. Missouri, 593 F. Supp.
1485, 1490-1494, 1503-1505 (WD Mo. 1984). 1 After

[Footnotes]
1 In related litigation about the schools of St. Louis, the Eighth
Circuit has noted that "(b)efore the Civil War, Missouri prohibited
the creation of schools to teach reading and writing to blacks. Act
of Feb. 16, 1847, [?]1, 1847 Mo. Laws 103. State-mandated segrega-
tion was first imposed in the 1865 Constitution, Article IX [?]2. It
was reincorporated in the Missouri Constitution of 1945: Article IX
specifically provided that separate schools were to be maintained for
'white and colored children.' In 1952, the Missouri Supreme Court
upheld the constitutionality of Article IX under the United States
Constitution. Article IX was not repeealed until 1976." Liddell v.