Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1996 Missouri v. Jenkins and the De Facto Abandonment of Court-Enforced Desegregation Bradley W. Joondeph Santa Clara University School of Law, [email protected] Follow this and additional works at:http://digitalcommons.law.scu.edu/facpubs Recommended Citation 71 Wash. L. Rev. 597 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. Copyright 0 1996 by Washington Law Review Association MISSOURI V. JENKINS AND THE DE FACTO ABANDONMENT OF COURT-ENFORCED DESEGREGATION Bradley W. Joondeph* Abstract: It has been forty-three years since the Supreme Court decided Brown v. Board of Education. In this Article, the author argues that the Court's recent decision, Missouri v. Jenkins, presages the end of court-enforced school desegregation. In addition, Jenkins shows that the Court is unwilling to confront its doctrinal principles in the area, preferring instead to base its decisions on relatively narrow, case-specific grounds. Jenkins therefore reveals that the Court will end this important era in our constitutional history quietly, gradually and without articulating its justifications. The author also contends that the reasons for curtailing desegregation remedies proffered by Justices Scalia and Thomas in recent concurring opinions, although perhaps more coherent and principled, do not justify the Court's abandonment of court-enforced desegregation. I. INTRODUCTION ..................................................................... 598 II. BROWN, GREEN, AND THE CORRECTIVE APPROACH TO DESEGREGATION REMEDIES ................................ 601 III. A BRIEF HISTORY OF THE JENKINS LITIGATION ........ 617 A. The OriginalF indingo n Liability and Remedial Orders.. ......................................................... 618 B. The KCMSD Litigation, 1987-1994 ............................. 622 C. The Supreme Court's Decision in Jenkins .................... 625 IV. SIGNS IN THE REASONING: THE IMPLICIT MESSAGE OF JENKINS ....................................................................... 627 A. Conceptualizing "InterdistricRt emedy" Expansively .630 B. Stretching to Hold That the District Court's Goal of "DesegregativeA ttractiveness" Was Inappropriate.. .. 636 C. Rejecting the District Court's FactualF inding Regarding White Flightf rom the KCMSD ................... 640 1. The District Court's FindingR egarding White Flighta nd the AppropriateS tandard ofR eview .... 641 2. The Court's QuestionableR easoning. ................... 647 * Teaching Fellow, Stanford Law School. J.D. 1994, Stanford Law School; B.A. 1990, Stanford University. Thanks to Andrew Berke, George Fisher, Ariela Gross, Chris Guthrie, Sri Srinivasan, Srija Srinivasan, and Michael Wald for their extremely helpful comments on earlier drafts of this article. HeinOnline -- 71 Wash. L. Rev. 597 1996 Washington Law Review Vol. 71:597, 1996 D. The ImplicitM essage of Jenkins ...............6.5.3.................. V. PLACING JENKINS IN CONTEXT .................6.5.4..................... VI. SCALIA, THOMAS, AND THE FAILURE TO JUSTIFY THE COURT'S RETREAT .....................66.1.......................... A. Discardingt he Green Presumption of Causation. ...6.63... B. Rejecting Green's CorrectiveA pproach to DesegregationR emedies ....................6.69......................... VII. CONCLUSION ..............................68.1....................................... I. INTRODUCTION On first impression, Missouri v. Jenkins' does not look like a landmark in the Supreme Court's school desegregation jurisprudence. The decision was quite important in Kansas City, of course, as it effectively ended state funding for desegregation remedies; in the city's schools,2 but neither of its two basic holdings substantially altered constitutional doctrine. Nonetheless, Jenkins may be quite significant, not for what the Court said, but for how it got there. Much of the Court's reasoning in Jenkins was ill-conceived, if not disingenuous. The Court misconstrued or ignored several well established doctrinal principles, thereby allowing it to craft an opinion that undermined the district court's justification for a majority of the desegregation remedies in place in Kansas City. The manner in which the Court reached its holdings shows that the Court's central concern was to end the extensive court- ordered remedies. The reasoning of Jenkins therefore signals an important shift in the Court's approach to school desegregation cases. The Court used to presume that, when a formerly segregated school district had failed to eliminate all of the effects of past discrimination, the s -hool district needed to "take whatever steps might be necessary to convert to a unitary 1. 1155.Ct.2038(1995). 2. Three weeks after the Court's decision in Jenkins, the plaintiffs, the school district, and the State of Missouri reached a tentative agreement phasing out funding for desegregation remedies over the next three years. See Kevin Q. Murphy et al., State, District Reach Accord: Desegregation Fundingt o End by 1999 in KC School District, K.C. Star, July 8, 1995, at Al. The parties have yet to agree on a final settlement of the litigation. See Donna McGuire et al., Scott, State Goes After School Funds: District Could Lose Tens of Millions in 1996-97 Year, K.C. Star, Oct. 27, 1995, at AI. On October 26, 1995, Missouri Attorney General Jay Nixon filed a motion seeking an end to all desegregation programs in the Kansas City, Missouri, School District (KCMSD) by June 1996, as well as asking the school district to repay the state $78 million for the state's share of previous salary assistance. Id. HeinOnline -- 71 Wash. L. Rev. 598 1996 Missouri v. Jenkins system in which racial discrimination would be eliminated root and branch."3 Now, however, the Court appears reflexively hostile to extensive desegregation remedies and prolonged judicial supervision of public schools. Accordingly, where the school district has implemented its desegregation plan in good faith, the Court implicitly presumes that the district court should return control to local officials as soon as practicable, even if some of the effects of past discrimination remain. Jenkins also demonstrates how the Court intends to bring the era of court-enforced desegregation to a close. The Court has avoided any explicit reexamination of the constitutional principles that underlie remedies for school segregation. Indeed, it has offered no analytically defensible rationale to justify its scaling back of court-ordered desegregation. Instead, as Jenkins exemplifies, the Court has preferred relatively narrow, case-specific reasons for ruling against the extension or continuation of desegregation remedies and in favor of expediting the return of control over public schools to local authorities. To borrow from the Court's own terminology, it has embarked on a de facto, rather than a de jure, dismantling of federal court supervision of formerly segregated school districts.4 Thus, Jenkins signals not only that the end of court- ordered desegregation is near, but that the Court will dispose of it quietly, gradually, and without explicitly stating its justifications. This message is especially clear once one views Jenkins as the last in a trilogy of primary school desegregation cases decided by the Rehnquist Court. In Board of Education v. Dowell,5 Freeman v. Pitts6, and Jenkins, the Court reached consistent outcomes, curtailing desegregation remedies and expediting the return of control over formerly segregated school districts to local officials, even if it chose different analytical routes. For instance, in Freeman the Court emphasized the importance of deferring to district courts' broad equitable powers,7 while in Jenkins it subjected the district court's assertion of remedial authority to exacting scrutiny.8 And although none of the decisions explicitly questioned the principles 3. Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968); see also United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 491 (1972) (stating that formerly segregated school systems must effectuate nothing less than "complete uprooting of the dual public school system"). 4. See Keyes v. School Dist. No. 1,413 U.S. 189,208 (1973) (distinguishing dejure from de facto discrimination). More precisely, the Court has intentionally abandoned court-enforced desegregation, but implicitly and incrementally rather than candidly and definitively. 5. 498 U.S. 237 (1991). 6. 503 U.S. 467 (1992). 7. See id. at 487-89. 8. See Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995). HeinOnline -- 71 Wash. L. Rev. 599 1996 Washington Law Review Vol. 71:597, 1996 of the Court's desegregation jurisprudence, each contained rhetoric tacitly encouraging the abandonment of court-enforced desegregation. What may be driving the Court's shift is an implicit reassessment of the doctrinal principles, originally adopted in Green v. County School Board,9 that form the basis of the Court's desegregation jurisprudence. In recent concurring opinions, Justice Scalia and Justice Thomas have questioned these principles, arguing that the Court substantially should reform its approach to desegregation remedies. They have contended that Green's premises have grown obsolete, or that Green's principles do not reflect a faithful interpretation of Brown v. Board of Education0 or the Equal Protection Clause. Perhaps a majority of the Court has been persuaded by one of these arguments but, due to Greesn's symbolic importance, is unwilling to state so explicitly. Even if one of these rationales accounts for the Court's recent desegregation decisions, however, the change in its approach still would be unjustified. Although these arguments are more intellectually coherent than the Court's uncandid, case-by-case approach, neither countenances the Court's retreat from court-ordered desegregation. This article explains how Jenkins reveals an important shift in the Court's approach to school desegregation cases-a shift that presages the end of court-enforced desegregation-and how the Court has failed to articulate any principled rationale to justify this change. Part II briefly describes the evolution of desegregation remedies law. It explains how the Court in Green adopted a corrective (rather than prohibitory) approach to remedies for school segregation, and how this approach's practical implications are in tension with some of the basic tenets of the Rehnquist Court's more recent holdings. Part III surveys the history of the effort to desegregate the Kansas City, Missouri, S zhool District (KCMSD), including the Supreme Court's ruling in Jenkins. Part IV focuses on the Court's reasoning in Jenkins. It demonsixates that the Court's analysis was disingenuous,1 thereby showing that the decision reflected the Court's extrinsic goal of ending desegregation remedies in Kansas City's schools. Part V places Jenkins in the context of the Rehnquist Court's two previous primary school desegregalion decisions. The results and rhetoric of the three cases make evident that the Court's analytical premises have implicitly shifted. Finally, par: VI explores 9. 391 U.S. 430 (1968). 10. 347 U.S. 483 (1954) (Brown 1). 11. See Missouri v. Jenkins, 115 S. Ct. at 2061-73 (Thomas, J., concurring,; Freeman v. Pitts, 503 U.S. 467, 500-07 (1992) (Scalia, J., concurring). HeinOnline -- 71 Wash. L. Rev. 600 1996 Missouri v. Jenkins more intellectually coherent rationales that could explain the Court's implicit decision to scale back the availability and breadth of desegregation remedies. Although these arguments are more analytically defensible than the Court's current approach, they fail to justify the Court's quiet revolution in desegregation law. II. BROWN, GREEN, AND THE CORRECTIVE APPROACH TO DESEGREGATION REMEDIES In Brown, the Court emphatically ruled that de jure school segregation violated the Equal Protection Clause: "[I]n the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."'2 But the rationale for Brown, and therefore the precise characteristic of school segregation that offended the Constitution, was unclear.3 In one passage, the Court emphasized the importance of public education generally, concluding that "[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."'4 At the same time, the Court stressed the detrimental psychological impact of segregation on African-American children, stating that separating children "of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."'5 These alternative rationales obfuscated such issues as whether Brown applied only to de jure segregation or to de facto segregation as well, and whether segregation was unconstitutional only in public schools or in all facets of public life. Thus, while Brown's core message was clear, what it required of school districts was uncertain. 12. Id. at 495. 13. See Geoffrey Stone et aL.C,o nstitutionalL aw 463-67 (2d ed. 1991); J. Harvie Wilkinson III, From Brown to Bakke: The Supreme Court and School Integration: 1954-1978, at 29 (1979); Michael W. McConnell, Originalisma nd the DesegregationD ecisions, 81 Va. L. Rev. 947, 1132-40 (1995); Peter M. Shane, School DesegregationR emedies and the FairG overnance of Schools, 132 U. Pa. L. Rev. 1041, 1049 (1984); David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 946-51 (1989). 14. Brown 1, 347 U.S. at 493. 15. Id. at 494; see also Drew S. Days, Vindicatingt he Promise of Brown-School Desegregation and the Civil Rights Act-Past, Present, and Future, 26 Pac. L.J. 772, 773 (1995) (noting "three faces" of Brown-one declaring separate but equal unconstitutional in principle, one discussing detrimental impact of segregation on black children, and one discussing provision of public education as most important function of state and local government). HeinOnline -- 71 Wash. L. Rev. 601 1996 Washington Law Review Vol. 71:597, 1996 The Court's equivocal opinion in Brown II a year later did little to resolve these questions. In deliberately vague language, the Court ruled that segregated school systems were required to "make a prompt and reasonable start" toward "achiev[ing] a system of determining admission to the public schools on a nonracial basis."'6 Although the Court warned that "the vitality of [Brown I's] constitutional principles cannot be allowed to yield simply because of disagreement with them,"'7 it nevertheless permitted school districts to dismantle their segregated systems "with all deliberate speed."'8 This phrasing further confused the issue of how rapidly school districts needed to desegregate; indeed, the phrase itself was oxymoronic. Hence, after the two Brown decisions, what the Constitution required of segregated school districts in concrete terms remained unclear. Most notably, neither Brown decision definitively answered whether a formerly segregated school system's abandonment of intentional discrimination was sufficient to satisfy its constitutional obligations. This uncertainty continued for the next thirteen years. In many respects, practical considerations prevented the Court from addressing these issues more explicitly during this period. Predictably, southern resistance to desegregation was fieice.' Eight southern states adopted resolutions of interposition declaring Brown illegitimate and denying the Supreme Court's power to outlaw segregation, and enacted legislation designed to thwart any efforts toward integration.2" Nineteen of the twenty-two Senators and eighty-two of the 105 Representatives from the eleven states of the old Confederacy (seventy-seven of eighty-three Representatives excluding Texas) signed the Southern Manifesto in 1956, which declared Brown a "clear abuse of judicial power" and pledged "to use all lawful means to bring about a reversal of this decision 16. Brown v. Board of Educ., 349 U.S. 294,300-01 (1955) (Brown 11). 17. Id. at 300. 18. Id. at30l. 19. See Numan V. Bartley, The Rise of Massive Resistance: Race and Politics i the South During the 1950's 67-81 (1969); Albert P. Blaustein & Clarence Clyde Ferguson, Jr., Desegregation and the Law: The Meaning and Effect of the School Segregation Cases 240-71 (2d ed. 1962); Jack Greenberg, Crusaders in the Courts: How a DedicatedB and of Lawyers Foughtobrt he Civil Rights Revolution 212-24 (1994); Stone et al., supra note 13, at 470-71; Francis M. Wilhoit, The Politicso f Massive Resistance 41-70 (1973); Wilkinson, rupra note 13, at 24, 51-52, 61-127; James S. Liebman, DesegregatingP olitics: "All-Out" School Desegregation Explained, 90 Colum. L. Rev. 1463, 1587 (1990); McConnell, supran ote 13, at 1133-34. 20. Davison M. Douglas, The Rhetoric of Moderation: Desegregating the South During the Decade after Brown, 89 Nw. U. L. Rev. 92, 93, ICO (1994). HeinOnline -- 71 Wash. L. Rev. 602 1996 Missouri v. Jenkins which is contrary to the Constitution."2' In 1959, public schools in Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Florida remained completely segregated;22 as late as 1964, only 0.48 percent of African-American elementary or secondary school students in the South (excluding Texas and Tennessee) attended school with whites.23 In this climate, an announcement from the Court that Brown required no more than the abandonment of state-imposed segregation would have been seen as a capitulation to public pressure. This, in turn, would have undermined significantly the Court's legitimacy and hindered efforts to enforce even a narrow reading of Brown. At the same time, interpreting Brown's mandate more expansively so as to require school districts to remedy the effects of segregation (if that is what Brown required) would have been futile. Congress and the White House essentially did nothing to support the implementation of school desegregation.24 Although President Eisenhower reluctantly sent the Army's 101st Airborne Division to Little Rock, Arkansas, to desegregate Central High School in 1957,25 he refused to endorse the rightness of Brown,26 subtly dignifying southern resistance.27 Members of Congress, 21. 102 Cong. Rec. H4515-16 (daily ed. Mar. 12, 1956); United States Congress, Biographical Directoryo f the United States Congress 1774-1989, at 415-19 (1989) (identifying size of respective congressional delegations). The three southern senators not to sign the Manifesto were Lyndon Johnson of Texas and Estes Kefauver and Albert Gore of Tennessee. Richard Kluger, Simple Justice 752(1977). 22. Douglas, supran ote 20, at 94. 23. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 50 (1991). 24. Id. at 46. 25. Taylor Branch, Partingt he Waters 222-24 (1988). Eisenhower's reluctance to use federal executive power to enforce Brown was deeply ingrained. At a press conference two months before the Little Rock crisis, he stated: ."Ic an't imagine any set of circumstances that would ever induce me to send federal troops into ... any area to enforce the orders of a federal court .... I would never believe that it would be a wise thing to do in this country."' 2 Stephen E. Ambrose, Eisenhower: The President 410 (1984). A year earlier, Eisenhower had refused to intervene after mob violence erupted in Clinton, Tennessee, and in Mansfield, Texas, in response to court-ordered desegregation. Id. at 336. 26. In 1956, Eisenhower stated, "'I think it makes no difference whether or not I endorse [Brown]. The Constitution is as the Supreme Court interprets it; and I must conform to that and do my very best to see that it is carried out in this country."' Ambrose, supra note 25, at 338; see also Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 131 (1994) (noting that, in addition to his public equivocation, "[p]rivately, Eisenhower criticized the Brown decision in strong terms on numerous occasions"). In fact, the Eisenhower Administration successfully fought against legislation that would have given the Justice Department the authority to bring suits on behalf of desegregation plaintiffs in 1957. Rosenberg, supran ote 23, at 46. 27. Ambrose, supra note 25, at 409 ("The President's moderation, the southerners felt, gave them license to defy the Court."); Alexander M. Bickel, The Least DangerousB ranch 266 (2d ed. 1986); Greenberg, supra note 19, at 213 (stating that Eisenhower's equivocal statements about Brown, HeinOnline -- 71 Wash. L. Rev. 603 1996 Washington Law Review Vol. 71:597, 1996 through the Southern Manifesto and other means, openly encouraged school districts' recalcitrance.28 For instance, in a typical speech in 1956, Senator James Eastland told constituents in Mississippi t.aat "[o]n May 17, 1954, the Constitution of the United States was destroyed because the Supreme Court disregarded the law and decided integration was ight.... You are not required to obey any court which passes out such a ruling. In fact, you are obligated to defy it."29 Many judges in the South refused to enforce the law, upholding statues clearly designed to evade Brown, sanctioning delay by school officials, and expressly approving the continuation of segregation.30 The Supreme Court clearly was aware of the lack of support for school desegregation.3 Thus it knew that even ' if Brown required school districts to do more than simply refrain from intentional discrimination, there was no hope of enforcing such a holding. The political climate surrounding civil rights began to change, however, in the middle 1960s.32 Events in the modern civil rights movement made continuing prejadice against African-Americans a national political issue. In particular, the violent resistance to the desegregation of the University of Mississippi by James Meredith,33 the "which could be read as a rejection of the wisdom in the Court's decision, surely encouraged some to express themselves in more extreme fashion"); Kfuger, supra note 21, at 753 ("Eisenhower, either by design or by obtuseness, comforted and dignified those who were ranged against the Court."). 28. Greenberg, supra note 19, at 213 (contending that "if the executive branch was derelict [in supporting Brown], Congress was downright antagonistic"); Kluger, supran ote 21, at 752-53. 29. Wilkinson, supra note 13, at 69. In introducing the Southern Manifesto on the House floor, Representative Smith of Virginia stated that the Supreme Court in Brown had "threaten[ed] the liberties of the people and the destruction of the reserved powers of the respective States, in contravention of the principles of that Constitution which all officials of all the tl-ree departments are sworn to uphold." 102 Cong. Rec. H4515 (daily ed. Mar. 12, 1956) (statement of Rep. Smith). And on a separate occasion, Senator Strom Thurmond of South Carolina called for the impeachment of justices and called the Court "a great menace to this country." Greenberg, supra note 19, at 213. In the wake of Brown, several senators, including Thurmond, Eastland, and Hcrman Talmadge of Georgia, joined groups such as the White Citizens Council, whose sole purpose was to preserve segregation. Id. at 216. 30. Rosenberg, supra note 23, at 88-91. For instance, in one Georgia case, a lederal district court judge refused to enforce Brown and instead "held extensive hearings ... to uFhold the thesis that Negroes were of a lower standard of 'educability' than white students." Stell v. Board of Pub. Educ., 387 F.2d 486, 490 (5th Cir. 1967). 31. See Kluger, supra note 21, at 753 (explaining that "the Justices were deep y resentful over the White House's failure to lend its great persuasive powers to supporting the rightness of the Brown decision"); Earl Warren, The Memoirs of Earl Warren 291-92 (1977) (revealing Chief Justice Warren's disillusionment with Eisenhower's unwillingness to support Brown). 32. See Rosenberg, supra note 23, at 94-97. 33. See Branch, supra note 25, at 656-72. Riots at Oxford, Mississippi, in September 1962- provoked largely by Governor Ross Barnett's refusal to permit the desegrega:ion of Ole Miss- HeinOnline -- 71 Wash. L. Rev. 604 1996 Missouri v. Jenkins Southern Christian Leadership Conference's (SCLC) campaign to desegregate lunch counters in Birmingham, Alabama,34 and voter registration efforts in Mississippi" exposed the intensity and virulence of southern racism. No longer was the question of segregation a regional matter that the rest of the country could ignore. The year after the March on Washington, at which Martin Luther King delivered his "I Have a Dream" speech, President Johnson signed into law the Civil Rights Act of 1964,36 which, among other things, allowed the Justice Department to bring suits against school districts on behalf of desegregation plaintiffs.37 A year later, Congress passed the Elementary and Secondary Education Act of 1965 (ESEA),35 which made billions of dollars available to public school districts. Because Title VI of the Civil Rights Act forbid racial discrimination by entities receiving federal funds,39 the Department of Health, Education, and Welfare (HEW) could make the disbursement of these funds contingent on school districts' abandonment of segregation.4° Gradually, this financial incentive to desegregate provided by the ESEA, resulted in two deaths and hundreds of injuries, and caused President Kennedy to send 10,000 federal troops to quell the disturbance. Id. at 662-70. 34. See id. at 756-78. In the course of the anti-segregation demonstrations, Commissioner of Public Safety Bull Conner turned the city's high-powered fire hoses and police K-9 units on defenseless African-American children, injuring hundreds. Id. Also significant in raising national consciousness was the bombing of Birmingham's Sixteenth Street Baptist Church in September 1963, which occurred just after the SCLC and city leaders had reached an agreement to desegregate the city's public accommodations. Id. at 888--92. The bomb killed four young girls who were attending Sunday school. Id. 35. Most notoriously, a rural deputy sheriff, Cecil Price, and a group of accomplices murdered three civil rights volunteers in June 1964 near Philadelphia, Mississippi. See Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, at 229-49 (1987). The three volunteers disappeared on June 21, 1964, just as the Student Nonviolent Coordinating Committee (SNCC) was launching its 1964 Summer Project to register blacks to vote. Id. at 230. Instrumental to attracting national attention was that two of the volunteers-Andrew Goodman and Michael Schwemer-were whites from New York City. Id. The third volunteer was James Chaney, an African-American native of Mississippi. Id. at 231. Their disappearance attracted such notoriety that, while the search for the men continued, President Johnson met with the parents of Goodman and Schwemer at the White House. Id. Finally, on August 4, 1964, FBI agents discovered the bodies of the three men buried in an earthen dam. Id. at 234. They had each been shot to death, and Chaney had been savagely beaten before being killed. Id. at 235. Murder charges against Price and his accomplices, brought in state court, were ultimately dropped, but they were later were convicted of violating the volunteers' federal civil rights. Id. 36. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (1989 & Supp. 1994)). 37. Id. § 407, 78 Stat. 248. On the connection between these events in the civil rights movement and the passage of federal civil rights legislation, see Klarman, supra note 26, at 129-49. 38. Pub. L. No. 89-10, 79 Stat. 27-58. 39. Pub. L. No. 88-352, § 601, 78 Stat. 252-53 (1964). 40. See Rosenberg, supra note 23, at 47-50; Klarman, supran ote 26, at 43 & n. 160. HeinOnline -- 71 Wash. L. Rev. 605 1996