The Case Against the Confirmation of John Ashcroft As Attorney General of the United States: Part II

Ashcroft continues to battle desegregation as governor.

Shortly after he was elected Governor, Ashcroft received yet another stinging rebuke for his handling of the St. Louis case - this time, from the federal court. Ashcroft’s office had vigorously opposed a request for civil rights attorneys’ fees to be paid by the state to the attorneys who had successfully litigated against him. (In fact, he had previously asked President Reagan to support legislation to limit state liability for civil rights attorneys’ fees, using St. Louis as an example. St. Louis Post-Dispatch Nov. 20, 1983. Ashcroft argued that the size of the bill, over $3 million, was excessive and that much of the plaintiffs’ attorneys’ efforts were not necessary. Although the judge did substantially reduce the size of the award, he unequivocally rejected Ashcroft’s claim and found that the work was "unquestionably necessary" because of the conduct of the state and its attorney general. The judge explained that the state had contributed significantly to the size of the award by its "opposition and repeated appeals." Ashcroft and the state had continued to "litigate what the other parties sought to settle, thereby increasing litigation costs for which it now seeks to avoid responsibility. "In fact, the judge stated, ‘[i]f it were not for the state of Missouri and its feckless appeals, perhaps none of us would be here today.’" St. Louis Post-Dispatch, Dec. 30, 1984, Jan. 3, 1985.

Ashcroft also argued that the attorneys for the original plaintiffs had ridden the "coattails" of other parties to seek unwarranted attorneys’ fees. The court rejected this argument as well, with words aimed clearly at Ashcroft. "With equal validity," he explained, "one might argue that counsel for the state voluntarily rode Liddell’s bus to political prominence." Id. Although the size of the award was reduced on appeal because the court determined that the plaintiffs were only 75% successful, the appellate court otherwise affirmed the trial court’s decision. Liddell, supra , No. 85-1179 (8th Cir. July 9, 1985).

After he assumed the governor’s office, of course, Ashcroft’s direct involvement in the St. Louis case diminished. Nonetheless, he continued to urge vigorous opposition to the plan and to criticize the federal court rulings, particularly in election year 1988. Ironically, at a 1989 education conference in Washington, Ashcroft publicly supported the idea of public school choice in Missouri. The director of the St. Louis voluntary interdistrict desegregation choice program, whom Ashcroft had attempted to remove years earlier, responded in a way that aptly summarizes Ashcroft’s record and the accomplishment that he tried to thwart:

    For nine years, Gov. John Ashcroft has been fighting the voluntary choice plan in St. Louis and St. Louis County. But now the light suddenly dawns. At the president’s education summit, Ashcroft announces he wants to offer Missouri school children the right to school choice.

    Where have you been, governor? Without your help - indeed over your vehement opposition - St. Louis has had school choice. In fact, St. Louis has the largest and most successful school choice program in the country. To date, more than 22,000 students are making school choices, both within the city system with its magnet schools and among 16 suburban districts.

    Ashcroft now says school choice could lead to more motivated students and higher achievement. He is right! We are finding the longer school choice students are in the program, the better they perform. All area schools can attest to improved curricula as a result of our voluntary school choice program.

    But school choice does not just happen. It requires equitable access that will not upset racial balance. It requires available transportation so that all students will have the right to choice. It requires funds to improve urban districts.

    St. Louis Post-Dispatch Oct. 8, 1989).

Gov. Ashcroft opposed all of these and other features of the St. Louis plan, a situation that changed under his successor. Governor Mel Carnahan spent part of his first day in office discussing how to settle or end both the St. Louis and the Kansas City desgregation lawsuits. The settlement reached by the State and all other parties in early 1999 won widespread acclaim. St. Louis Post-Dispatch, Jan. 7, 1999.

Ashcroft’s direct involvement in the Kansas City case was less significant than in St. Louis because most of the key court proceedings and the resulting controversial remedies in that case occurred at the end of or after his term as Attorney General. Ashcroft opposed any state liability in that case as well, a position rejected by the district court in September of 1984. As governor, Ashcroft continued to direct the attorney general to appeal orders calling for significant expenditures by the state, and he received much more political and legal support for his position, up to and including a 1995 Supreme Court decision in the case that he praised as a Senator.

Nevertheless, Ashcroft came under significant criticism, even from supporters and fellow Republicans, for his "continual harping against" desegregation in Kansas City and his failure to provide effective leadership and offer alternatives to remedy problems the state had helped cause. Kansas City Times, Oct. 25, 1988). The president of the Kansas City board lamented in 1987 Ashcroft’s earlier failure to "offer viable alternatives when he had a chance to do so." Kansas City Star, Nov. 10, 1987). A Republican state legislator from the area explained that she was "very disturbed that once the judge handed down his findings, the state was not more pro-active in finding a solution. " She stated that contacts with Ashcroft’s office on the subject were "not productive" because he did not appear to have a "philosophy that allows for different points of view." St. Louis Post-Dispatch, Jan. 10, 1993. A former St. Louis school board member suggested that Ashcroft was partly to blame for increasing expenditures, noting that "you can’t help but wonder how soon this would’ve ended if (the governor) hadn’t been so concerned with fighting this and more concerned with finding a resolution." St. Louis Post-Dispatch, Jan. 3, 1993. In short, the qualities displayed by Ashcroft in school desgregation controversies in Missouri, particularly in St. Louis, are not the qualities America has a right to expect from its Attorney General.

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