Jenkins v. Missouri Brief Amicus Curiae Kansas City NAACP

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Civil No. 85-1765

KALIMA JENKINS, et al. , Plaintiffs-Appellants,

v .

STATE OF MISSOURI, et al., Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE WESTERN 

DISTRICT OF MISSOURI, WESTERN DIVISION

The Kansas City Branch of the National Association for the 

Advancement of Colored People ("NAACP"), a 3,000-member organization, 

hereby appears as amicus curiae with permission of this Court.*

STATEMENT OF INTEREST

This appeal presents important issues of interdistrict liability 

in a de jure school segregation case. As the branch of the NAACP most 

proximate to the injuries complained of, we are vitally interested in 

this appeal, which will determine whether the district court erred in 

finding that school districts, which have since at least 1865 

systematically enforced and maintained the segregation of black and white 

school children, are not liable for violations of the Fifth and Fourteenth 

Amendments to the United States Constitution. Moreover, as friends of 

the Eighth Circuit we are deeply concerned with the district court s 

discounting in this case of the uncontroverted expert and lay testimony 

demonstrating a firmly entrenched and all pervasive system of school 

segregation before 1954, the results of which exist in deplorable fashion

*Our motion to appear as amicus curiae was granted by this Court on 
August 8, 1985.

(i)



today. Finally, the NAACP feels compelled to bring to the court's 

attention a particularly glaring, not to mention "clear" error, in the 

trial court's findings. The district court found that the legally mandated 

interdistrict system of segregation was an "insignificant" factor in 

the present black population in the Kansas City, Missouri school district 

given the influx into that district of blacks from other states. See 

Jenkins v. Missouri, 593 F. Supp. 1485, 1490 (W.D. Mo. 1984); Jenkins v. 

Missouri, No. 77-0420, slip op. at 6, 16 (W.D. Mo. June 5, 1984)

("Jenkins I"). Not only is that finding contrary to all of the lay and 

expert testimony presented in this case, it is a gross distortion of 

the entire history of black education in Missouri, a history with which 

we are intimately familiar.

(ii)



Table of Contents

STATEMENT OF ISSUE PRESENTED
FOR REVIEW...................................................... .

STATEMENT OF FACTS.............................................. !

ARGUMENT........................................................  9

I. THE DISTRICT COURT’S FINDINGS 
REGARDING THE SIGNIFICANCE OF 
THE DUAL SCHOOL SYSTEM ON BLACK 
MIGRATION AND CURRENT SEGREGATION
ARE CLEARLY ERRONEOUS....................................  9

A. The District Court's Findings 
Are Based on an Erroneous View 
of the Relevance of Pre-1954 
Evidence in a School
Desegregation Case...................................  10

1. Pre-1954 Evidence Is 
Significant To Determine 
the Nature and Extent of
a Constitutional Violation....................... 10

2. Pre-1954 Evidence Is 
Significant To Determine 
the Extent of Successor 
School District Liability 
for the Acts of Their
Predecessors.....................................  15

B. The District Court's Findings 
of Fact Are Not Supported by
Substantial Evidence.................................  18

Page

CONCLUSION 20



Table of Authorities

Cases:

Adams v. United States, 620 F.2d 1277
(8th Cir. 1980).................................................. 1

Anderson v. City of Bessemer City, N.C.,
105 S. Ct. 1504 (1985)........................................ 9,19

Arkansas Ed. Ass'n v. Board of Ed., Portland,
Arkansas School District, 446 F.2d 763
(8th Cir. 1971).................................................. 9

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977)......................9

Coble v. Hot Springs School Dist. No. 6,
682 F .2d 721 (8th Cir. 1982).................................... 9

Columbus Board of Education v . Penick,
443 U.S. 449 (1979).......................................... 12,13

Cullers v. Commissioner of Internal Revenue,
237 F . 2d 611 (8th Cir. 1956)...................................  19

Davis v. School Dist. of City of Pontiac, Inc.,
309 F. Supp. 734 (E.D. Mich. 1970), aff'd,
443 F.2d 573 (6th Cir.), cert, denied,
404 U.S. 913 (1971)............................................. 17

Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526 (1979)..............  12

Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978)
(en banc), cert, denied, Delaware State Bd. of Ed. v.
Evans , 446 U.S. 923 (1980)....................................  12,17

Green v. County School Bd,, 391 U.S. 430 (1968)..................12

Harris v. Smith, 372 F.2d 806 (8th Cir. 1967).................... 19

Hart v. Community School Bd. of Ed., New York
School Dist. No. 21, 512 F.2d 37 (2d Cir. 1975)...............  16

Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107
(3d Cir.), cert, denied, 459 U.S. 824 (1982)...................14

Hunter v. Underwood, 105 S. Ct. 1916 (1985)................... 19,20

Page

(iv)



Page

International Travel Arrangers, Inc, v.
Western Airlines, Inc., 623 F.2d 1255 (8th Cir.),
cert, denied, 449 U.S. 1063 (1980).............................. 9

Jenkins v. State of Missouri, 593 F. Supp. 1485
(W.D. Mo. 1984).................................... (ii) ,6,8,10,15

Jenkins v. State of Missouri, No. 77-0420, slip op.
(W.D. Mo. June 5, 1984)...................................... (ii)

Jones v. International Paper Co., 720 F.2d 496
(8th Cir. 1983).................................................. 9

Kelley v. Altheimer, Arkansas Public School
District No. 22, 378 F.2d 483 (8th Cir. 1967).................  19

Keyes v. School Dist. No. 1, Denver, 413 U.S.
189 (1973).....................................................  11

Lee v. Lee County Bd. of Ed., 639 F.2d
1243 (5th Cir. 1981)............. '............................. 14

Lewis County C-I School Dist. v. Normile, 431 S.W.2d
118 (Mo. 1968) (en banc)....................................... 16

Liddell v. State of Missouri, 731 F.2d 1294
(8th Cir. 1984) (en banc)...................................... 2,3

Lynch v. Webb City School District No. 92, 373 S.W.2d
193 (Mo. Ct. App. 1963)........................................  16

Martin v. Evansville-Vandenburgh School Corp.,
347 F. Supp. 816 (S.D. 111. 1972)..............................  16

McClure v. Princeton Re-organized School
Dist. R-5, 307 S.W.2d 726 (Mo. Ct. App. 1957).................. 16

Mil liken v. Bradley, 418 U.S. 717 (1974)...................... 13,16

Skar v. City of Lincoln, Nebraska, 599 F.2d 253
(8th Cir. 1979)................................................. 19

Smith v. Anchor Building Corp., 536 F.2d 231
(8th Cir. 1976).................................................. 9

Swann v. Charlotte Mecklenburg Bd. of Education,
402 U.S. 1 (1971)....................................... 8,13,14,16

Taenzler v. Burlington Northern, 608 F.2d 796
(8th Cir. 1976)................................................. 19

(v)



Page

United States v. Bd. of School Comm'rs, of City 
of Indianapolis, Indiana, 474 F.2d 81 (7th Cir.), 
cert. denied, 413 U.S. 920 (1973)..............................  17

United States v. Halifax County Board of Ed., 314
F. Supp. 65 (E.D.N.C. 1970).....................................  17

United States v. Osidach, 513 F. Supp. 51
(E.D. Pa. 1981)................................................. 19

United States v. Scotland Neck City Bd. of Ed., 407
U.S. 484 (1972)................................................. 17

Wright v. Council of City of Emporia, 407 U.S.
451 (1972)......................................................  17

Statutes:

Fed. R. Civ. P. 52(a).............................................. 9
Mo. Ann. Stat. § 162.251

(Vernon Supp. 1985)............................................. 15
Act of April 16, 1945, 1945 Mo.

Laws 1699 (repealed 1957)......................................... 1
Act of June 1, 1929, 1929 Mo. Laws 382,

§ 11145 (repealed 1957).......................................... 1
Act of March 28, 1893, 1893 Mo. Laws 247,

§ 1 (repealed 1957).............................................. 1
Act of March 31, 1887, 1887 Mo. Laws. 264,

§ 1 (repealed 1957).............................................. 1
Act of March 25, 1868, 1868 Mo. Laws 170,

§ 24 (repealed 1957)............................................. 1
Act of March 15, 1866, 1866 Mo. Laws 177,

§ 20 (repealed 1957)............................................. 1
Act of February 17, 1865, 1865 Mo. Laws 170,

§ 130 (repealed 1957)............................................ 1

Other Authorities:

Benson, The Liability of Missouri Suburban School 
Districts for the Unconstitutional Segregation 
of Neighboring Urban School Districts, 53 UMKC
L. Rev. 349, 354 (1985)......................................... 15



IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

)
)
)
)
)
) No. 85-1765 
)
)
)
)
)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF MISSOURI, 

WESTERN DIVISION

STATEMENT OF ISSUE PRESENTED FOR REVIEW

Whether the district court's findings of fact, which led it to 

dismiss the Kansas City suburban school districts from this case, were 

clearly erroneous as a result of its failure to give sufficient weight 

to pre-1954 evidence.

KALIMA JENKINS, et al.,

Plaintiffs-Appellants, 

v.

STATE OF MISSOURI, et al.,

Defendants-Appellees.

(vii)



STATEMENT OF FACTS

From 1865 to 1976, Missouri Constitutions mandated school 

segregation. See Adams v. United States, 620 F.2d 1277, 1280 (8th Cir. 

1980) (en banc). Moreover, "statutes implementing the constitutionally 

mandated segregation provided for separate funding, separate enumerations, 

separate consolidated 'colored' school districts, and the interdistrict 

transfer of black students. Most of these statutes were not repealed 

until 1957. See Act of July 6, 1957, § 1, 1957 Mo. Laws 452." Adams v. 

United States, 620 F.2d at 1280.

Pursuant to Missouri law, Kansas City area suburban school districts 

("SSDs") collaborated with each other and with the Kansas City Missouri 

School District ("KCMSD") to maintain segregated schools on an 

interdistrict basis.1 In addition to enforcing segregated schools, the 

suburban districts failed to offer adequate instruction or, in some cases, 

any instruction at all, to blacks within their districts and compounded 

their failure to provide adequate education by eventually assigning and 

transferring blacks into the KCMSD. See Adams v. United States, 620 

F .2d at 1294 n.27.

Missouri recognized that with its many small school districts 

and its scattered black population, it would be impossible to operate 

two sets of schools, one black and one white, in any but a few urban 

districts. Accordingly, Missouri statutes required school districts 

that did not maintain some minimum average daily attendance to provide

1 See Act of April 16, 1945, Mo. Laws 1945, p. 1699; Act of June 1,
1929, Mo. Laws 1929, p. 382, § 11145; Act of March 28, .1893, Mo. Laws, 
p. 247, § 1; Act of March 31, 1887, p. 264, § 1; Act of March 25, 1868,
Mo. Laws 1868, p. 170, § 24; Act of March 15, 1866, Mo. Laws 1866, p. 177,
§ 20; Act of February 17, 1865, § 13, 1865, Mo. Laws 170.



2

for their schooling in some other "district in the county or, later,

in any district," even outside the county. Eventually, Missouri statutes

permitted school districts with fewer than some minimum enumeration of

blacks to forego operating black schools or to transfer blacks to other

school districts. After 1929, Missouri permitted all districts in the

state regardless of the size of their black school-age population to

transfer their black students into other districts.

Local school districts and the state, as this Court has already

found in Liddell v. State of Missouri, 731 F.2d 1294, 1298 (8th Cir.

1984), quoting Adams, supra, were "jointly responsible for maintaining"

the pre-1954 interdistrict system of segregated schools. As the SSDs

candidly conceded at trial, it was they (as the state's agents for this

purpose) who actually administered Missouri's segregation laws and chose,

in many instances, to send black children to other districts rather than

educate them within their own districts. Thus, in their March 14, 1984

brief to the district court, the suburban school districts admitted:

"whether a district educated black students within the 
district or transferred them . . . was a decision made 
solely by that district (except, of course, if the average 
daily attendance at a black school was at a level which, 
under state law required closure of the school) . . . .
School districts receiving transfers . . . set their own 
policies regarding admittance of such students, and could 
elect to not accept such students. Transportation 
arrangements were a . . . local arrangement [albeit, they 
were authorized and, after the early 1930's, made partially 
reimburseable from state monies by state statute and 
Department of Education regulations]. Also, each sending 
district . . . paid for transportation as well as tuition 
[when, that is, they chose to pay for any part of their 
black residents' education -- and, in that event, their 
payments were partially reimbursed by the state]." SSD 
Brief at 15-16.



3

Despite the SSD's admission of responsibility for the current 

segregative conditions and the Eighth Circuit's clear conclusion in Liddell 

that the state and local districts "were jointly responsible for 

maintaining" the pre-1954 interdistrict system of segregated schools, 

the district court completely ignored the Liddell conclusion, absolved 

the SSDs from any liability, and dismissed them from this case.

During the trial, plaintiffs presented extensive testimony -- 

both lay and expert -- concerning the results of Missouri's interdistrict 

dual school system on its black population. The court, however, discounted 

that testimony, including the uncontroverted expert testimony of Dr. James 

Douglas Anderson. Dr. Anderson, an expert in the field of the History 

of American Education,2 testified that in his opinion, "education was 

a major fundamental priority in the lives of black Americans 

historically; . . . they have committed a great deal of energies and 

resources and have made great sacrifices to achieve adequate and decent 

educational opportunities." Dr. Anderson concluded in uncontroverted 

testimony that the segregated interdistrict dual school system which 

existed in Missouri was a primary cause of black migration out of rural 

areas and into Kansas City. (Tr. 4408, 4410, 4417, 4445.)

The vast majority of Missouri's many districts throughout this 

period had fewer than fifty children, black or white, spread over 

12 grades. In addition, Dr. Anderson testified that Missouri's black 

population in 1865 was very widely dispersed among the many school

2 Dr. Anderson's qualifications are too numerous to list herein. He 
has done an extensive amount of work, however, on education in the South, 
including Missouri. The district court acknowledged that Dr. Anderson 
is "probably one of the leading experts in [his] field." (Tr. 4358.)



4

districts. The large number of school districts and the dispersal of 

the black population made Missouri's interdistrict dual school system 

particularly harsh on black families because there were not enough students 

for most districts to maintain two sets of comparable schools, one for 

each race. Accordingly, many SSDs took advantage of Missouri's minimum 

enumeration and enrollment laws, which permitted them to avoid providing 

schools for black children.3 In addition, there was a "very common 

practice of under-enumerating black kids" (Tr. 4255), so that even those 

districts which had a sufficiently large number of black children to 

provide separate schools often did not in fact provide them. Dr. Anderson 

concluded that:

"The significance of this is that school districts 
chose to operate a[n] intradistrict system for white kids 
and sent the black kids out of the district." (Tr. 4205,
4248, 4251.)

The unavailability of black high schools was particularly extreme. 

Prior to 1930, aside from KCMSD, there were no black high schools in 

Jackson, Platte or Clay Counties. Between 1930-1953 or 1954, there were 

three "part-time" black high schools. By 1954, however, the SSDs had 

decided to shut them down rather than succumb to pressure from parents 

to make the black high schools equal to the white high schools.

(Tr. 4309.) Accordingly, "[b]y 1953 or '54, blacks were pretty much 

in the same situation . . .  as they were in 1930. [Ojutside of Kansas

3 Missouri not only failed to require black schools when the minimum 
number of black students was not enumerated, but it failed to take 
significant advantage of outside sources which could have created more 
schools. The Rosenwald fund, for example, provided funds for the 
construction of rural schools for black children. (Tr. 4186.) Out of 
more than 5,000 rural schools which were built nationwide using the 
Rosenwald fund, Missouri built only three. (Tr. 4194.)



5

City there were no high schools available." (Tr. 4223. Anderson.)

As a result, many black families moved out of the SSDs into KCMSD where 

Lincoln High School was located. Dr. Anderson concluded that a "major 

cause of residential relocation of families moving into the city 

[was] . . .  to have access to a good high school education." (Tr. 4311.) 

See also Tr. 4291 et seq., Exhs. 39B, 39C, 1870. Many lay witnesses 

confirmed this conclusion. (See, e.g. , Tr. 387, 392, 1688-90, 1713-14. )** 

Since many SSDs did not maintain schools for black children, these 

children were forced to go to school outside of their local district 

in order to receive an education. The state did not require local 

districts to make interdistrict arrangements or pay tuition or 

transportation for the interdistrict transfer of students until 1929 

for elementary students, and 1931 for high school students. Even then, 

the reimbursement provisions were inadequate or simply not followed.

(Tr. 4299.)

"it is my conclusion that generally the parents paid for 
the tuition of their children and that school districts 
seldom reimbursed them for tuition for the cost of 
transporting their kids across district lines to receive 
an education." (Tr. 4303. Anderson.)

While plaintiffs proffered specific examples of interdistrict 

transfers, Dr. Anderson testified that many of the transfers went 

unrecorded. (Tr. 4312-14.) In fact, "one of the major incentives in 

the whole process was not to become a record, that is for families with 

school children to establish residency or to move in and live with

** In addition to the general unavailability of schools outside of KCMSD, 
it is not seriously disputed that the quality of black schools was 
extremely poor. (Tr. 4317, 4319-21.)



6

relatives or friends because of the high cost of tuition and . . . 

transportation that were not reimbursed." (Tr. 5856. Anderson.)5

Despite this testimony, and the SSDs' concession that at least 

605 recorded interdistrict transfers into KCMSD occurred before 1954 

(Tr. 4557), the district court held that interdistrict transfers, at 

most, had a de minimis effect on KCMSD, finding that "[p]laintiffs' 

evidence of transfers from the [SSDs] to KCMSD from 1900 to 1954 resulted 

in a total of only 251 students." Jenkins I at 16. This finding not 

only ignores Dr. Anderson's unrefuted conclusion that many interdistrict 

transfers were unrecorded, but fails to include the 605 interdistrict 

transfers which defendants concede that they and their predecessors did 

record.

Dr. Anderson concluded, based upon extensive research, that 

Missouri's interdistrict dual school system and its resulting lack of 

educational opportunities for black children was a primary cause of the 

decline of the black school-age population in the SSDs and of the migration 

to KCMSD. (Tr. 4222, 4232, 4408, 4410, 4417, 4444.) He based this 

conclusion on several factors. First, the black rural population had 

"characteristics of a population that was not susceptible to migration." 

(Tr. 4393.) Blacks in the three-county area outside Kansas City had

5 Lincoln High School, the single high school for blacks in the KCMSD, 
was generally overcrowded between 1900 and 1954. (Tr. 4421.) As a result, 
"there was a tendency not to accept students from outside" (Tr. 4422), 
unless they paid tuition. Thus, there was "a great incentive for families 
with high school age children to establish residency in the city."
(Tr. 4423.) Accordingly, while the total number of recorded interdistrict 
transfers is not that high, the actual number is much higher and the 
overall impact of the interdistrict dual school system on where blacks 
chose to live was tremendous. (Tr. 5856.)



7

a higher degree of home ownership than those in Kansas City. (Tr. 4402.)

In addition, the SSD blacks were largely Missouri-born, indicating that 

they had been in the State for some time and were not transient but were 

"well established." (Tr. 4389.)®

Second, while Dr. Anderson acknowledged that economic factors 

motivated blacks to move, he concluded that in Missouri, the unavailability 

and low quality of schools were the primary factors for black migration.

The majority of black workers in the SSDs were nonfarm laborers. For 

example, they held such nonfarm jobs as washerwomen, servants and cooks.

Dr. Anderson explained that they were "very distinct from a black rural 

farm population." (Tr. 4386.) Blacks in the SSDs held the same types 

of jobs as blacks in KCMSD. (Tr. 4401-02.) Therefore, Dr. Anderson 

concluded that economic forces were not the major cause of migration.

Id.

In addition, he noted that "There was no reason to expect that 

the population within [the SSDs would] decrease." While rural farm 

populations were generally decreasing, the trend for rural nonfarm 

populations was to increase. (Tr. 4390.) Since the blacks in the three- 

county area outside of Kansas City held primarily nonfarm jobs the decrease 

in the population was uncharacteristic.

In light of the stable character of the black population and its 

disincentive to move to the city, Dr. Anderson concluded that its migration 6

6 Despite the district court's "finding" that the migration of blacks 
into Kansas City was "insignificant" when compared to the influx of blacks 
from the southern states, very little of the early migration into Kansas 
City in fact came from such southern states. (Tr. 4409.) In 1913,
80 percent of the Kansas City school population was Missouri-born.
(Tr. 4479.)



8

to Kansas City could only have been caused by a fundamental, non-economic

and important stimulus. (Tr. 4399.):

"in looking at the social characteristics of the population 
there were important reasons from an economic standpoint 
or from the point of social characteristics to hold the 
population, but, in fact, it did migrate. The migration 
from those areas was very much influenced by noneconomic 
forces and one of the primary sources of the migration 
was the unavailability . . . and poor quality of education."
(Tr. 4400, emphasis added.)

In addition to concluding that the unavailability and poor quality 

of education were primary reasons for black migration from the SSDs into 

Kansas City (Tr. 4408, 4410, 4417, 4445), Dr. Anderson testified that 

blacks moving into the Kansas City area from outside of the state "would 

not move into areas where schools were unavailable to their children."

(Tr. 4420.) Thus, the effect of SSDs' discrimination on the current 

composition of KCMSD is measured not only by how many blacks moved out 

of the SSDs into KCMSD, but also by how many blacks from outside Missouri 

might have moved into the SSDs rather than KCMSD if schools had been 

available for their children. (Tr. 4420, 4432.) As the district court 

conceded in its September 17, 1984 opinion, "[r]egardless of their 

motivation for coming, once here, blacks settled in the inner city . . . . 

The Court finds there is an inextricable connection between schools and 

housing. 'People gravitate toward school facilities.'" 593 F. Supp. 

at 1491, quoting Swann v. Charlotte Mecklenburg Bd. of Education, 402 

U.S. 1, 20-21 (1971). Incomprehensibly, however, the district court 

failed to find this "inextricable connection" in its June 5, 1984



9

opinion.7

ARGUMENT

I. THE DISTRICT COURT'S FINDING THAT THE 
PRE-1954 INTERDISTRICT DUAL SCHOOL 
SYSTEM HAD AN INSIGNIFICANT EFFECT ON 
BLACK MIGRATION AND CURRENT SEGREGATION 
IS CLEARLY ERRONEOUS___________________

A district court's findings of fact will not be overturned by 

an appellate court unless "clearly erroneous."8 This Court has held 

that a finding is clearly erroneous (A) "if it evolves from an erroneous 

conception of the applicable law," (B) if there "is not substantial 

evidence to support it," or (C) "if the reviewing court on the entire 

record is left with the definite and firm conviction that a mistake has 

been made." International Travel Arrangers, Inc, v. Western Airlines, 

Inc., 623 F.2d 1255, 1270 (8th Cir.), cert, denied, 449 U.S. 1063

7 In that opinion, the district court "observe[d] that the absence of 
black schools in any of the [SSDs] did not discourage black families 
from outside (or from within) Missouri from moving to and living in those 
districts." Jenkins I at 18. The district court's failure to view the 
effect of Missouri's interdistrict dual school system on the residential 
choices of blacks who moved to Kansas City both from within and from 
outside of Missouri led it to erroneously conclude, in its June 5, 1984 
opinion that the effect of the dual school system was de minimis.

8 Fed. R. Civ. P. 52(a) provides that "[f]indings of fact shall not 
be set aside unless clearly erroneous and due regard shall be given to 
the opportunity of the trial court to judge the credibility of the 
witnesses." In its June 5, 1984 opinion, the Court below adopted almost 
all of defendant's proposed facts verbatim. While the clearly erroneous 
standard nevertheless applies to these findings, they should be given 
close scrutiny. In Anderson v. Bessemer City, 105 S. Ct. 1504 (1985), 
the Court held that the trial court had uncritically accepted the findings 
prepared by counsel. 105 S. Ct. at 1511. The Court particularly 
emphasized that the "crucial findings" varied considerably from those 
submitted by winning counsel. Id. See Jones v. International Paper
Co■, 720 F.2d 496, 499 (8th Cir. 1983) (This court expressed strong 
disapproval of verbatim adoption of facts.).



10

(1980).9 In this case, each of these circumstances is present and the 

judgment of the district court must be reversed.

A. The District Court's Findings Are Based on
an Erroneous View of the Relevance of Pre-1954 
Evidence in a School Desegregation Case_______

1. Pre-1954 Evidence Is Significant
To Determine the Nature and Extent 
of a Constitutional Violation_____

The district court received, but effectively ignored certain pre- 

1954 evidence, because it considered such evidence completely irrelevant 

given the admission in this case of de jure segregation. For example, 

the court indicated throughout Dr. Anderson's testimony, concerning the 

effect of Missouri's interdistrict dual school system on black families, 

that it was irrelevant. (Tr. 4271, 4277, 4296, 4303, 4304, 4305, 4317, 

4318, 4340, 4342-43, 4344, 4353, 4357-58, 4363, 4388, 4437, 4465.) The 

court stated, "we're trying . . . three weeks of evidence and testimony 

here that has no relevance whatever to this lawsuit." (Tr. 4343.) It 

refused to admit a 1929 report stating that "[t]his is a report made 

in 1929. We're wasting our time." (Tr. 4340.) Moreover, the district

9 In several cases involving a lower court's denial of civil rights 
claims, this Court has reversed findings of fact on clearly erroneous 
grounds. See, e.g., Coble v. Hot Springs School Dist, No. 6, 682 F.2d 
721 (8th Cir. 1982) (Lower court decision clearly erroneous for not holding 
school district liable for discriminating against two women in job 
appointments); Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977) (Lower court 
decision clearly erroneous for finding school's dismissal of certain 
named plaintiffs was not racially motivated); Smith v. Anchor Building 
Corp., 536 F.2d 231 (8th Cir. 1976) (Lower court decision clearly erroneous 
for not finding racially discriminatory renting practices); Arkansas 
Ed. Ass'n v. Board of Ed., Portland, Arkansas School District, 446 F.2d 
763 (8th Cir. 1971) (Lower court decision clearly erroneous because 
evidence led to the conclusion that school district had systematically 
paid black teachers less than white teachers). Thus this Court has not 
hes.itated in the past to look carefully at the record and reverse a 
district court's findings of fact.



11

court, in its June 5, 1984 opinion actually admitted that it "negat[ed] 

the importance of" pre-1954 evidence. Jenkins I at 98. As a result 

of this negation, the court found that the effect of the SSDs' active 

participation in Missouri's interdistrict dual school system on KCMSD 

was insignificant. This finding is simply not supported by the evidence.

The belief that any evidence of the nature and extent of state 

and suburban responsibility for the pre-1954 segregation was legally 

insignificant, and the findings of fact which resulted therefrom are 

plain error. In fact, under the district court’s own reasoning, negating 

the importance of evidence regarding the nature and extent of pre-1954 

segregation was clear error. In its June 5, 1984 opinion, the court 

declared that plaintiffs needed to prove that "segregated schools existing 

before 1954 were the direct and substantial cause of blacks leaving each 

defendant district." Jenkins I at 12. In order to meet that burden 

of proof, plaintiffs had to introduce the very evidence which the district 

court considered legally insignificant.

In negating plaintiffs' pre-1954 evidence, the district court 

also misinterpreted Supreme Court doctrine. The district court stated: 

"Regarding physical segregation in schools during the early decades of 

this century, the Supreme Court stated '[b]oth by reason of the substantial 

time that [had] elapsed and because these practices have ceased, . . . 

the foregoing will not necessarily be deemed evidence of a continuing 

segregative policy.' Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 411 

(1977) (Dayton I)." Id. This passage, on which the district court relied, 

is merely a reference to the district court's findings and not part of



12

the Supreme Court's holding. To the contrary, the Supreme Court has 

repeatedly stressed the importance of pre-1954 evidence.

In Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 200 (1973), 

the Supreme Court held that all school districts segregated by law in 

1954 assumed an affirmative duty to dismantle the dual school system.

A school system that once compelled de jure segregation is under an 

affirmative duty "to convert to a unitary system in which racial 

discrimination would be eliminated root and branch." Green v. County 

School Bd., 391 U.S. 430, 438 (1968). In Dayton Bd. of Ed. v. Brinkman, 

443 U.S. 526, 538 (1979) (Dayton II), the Supreme Court explained that 

"the measure of the . . . duty . . .  is the effectiveness" in eliminating 

segregation, "not the purpose." (Emphasis added.)

The Court echoed in Columbus, that "[t]he Board's continuing 

'affirmative duty to disestablish the dual school system' is . . . beyond 

question." 443 U.S. at 460. Each instance of a failure or refusal to 

fulfill this affirmative duty continues the violation of the Fourteenth 

Amendment." Id. at 459. The court in Evans v. Buchanan, 582 F.2d 750,

766 (3d Cir. 1978) (en banc), cert. denied, 446 U.S. 923 (1980), explained 

that the mere passage of time does not limit the scope of the duty or 

the remedy:

"[A party] cannot, consistent with the guidance of Keyes, 
argue on the one hand that the remedy approved by the 
district court covered conditions which are not effects 
of de jure segregation and on the other hand contend that 
it is not feasible to determine precisely what "today's 
situation would be . . . 'but for' the alleged 
constitutional violations." Not only does this avoid 
their established burden, but the logical extension of 
the argument is untenable -- that no possible remedy can 
be formulated in this case. Desegregation remedies being 
drawn from the heart of equity, no court could be so callous



13

as to accept the contention that although vestiges of 
de jure discrimination pervade to this day, it is helpless 
to fashion a remedy to root them out."

Thus, the pre-1954 evidence, according to well-established Supreme 

Court doctrine, is not only relevant, but is vital to establishing the 

extent of the affirmative duty to desegregate. The Supreme Court has 

frequently admonished in school desegregation cases that, where there 

is a failure to satisfy this duty, "the scope of the remedy is determined 

by the nature and extent of the constitutional violation." Milliken 

v. Bradley, 418 U.S. 717, 744 (1974). See also Columbus Bd. of Ed. v. 

Penick, 443 U.S. 449, 477 (1979); Dayton I, 433 U.S. at 420; Swann, 402 

U.S. at 16. Before the system of racial discrimination can be eliminated 

"root and branch," evidence exploring the depth of the roots and the 

reach of the branches must be considered.

In this case, plaintiffs introduced evidence that the SSDs' not 

only adhered to state mandated segregation-, but often chose not to provide 

education for black children when they were permitted to do so. This 

was the primary cause of black migration out of the SSDs into KCMSD. 

Moreover, plaintiffs established that blacks moving into Missouri from 

other states would not locate in the SSDs because of the unavailability 

of schools. Instead, they moved into KCMSD. Thus, the total effect 

of the SSDs violation was not only interdistrict but was extremely far- 

reaching. The scope of the remedy must be coterminous. Milliken, 418 

U.S. at 744. The district court's failure to lend significance to the 

migration of blacks into KCMSD from the SSDs and to the migration of 

southern and border state blacks into KCMSD instead of the SSDs was clear

error.



14

Independent of findings of past de jure, interdistrict segregation, 

the SSDs continue to violate the Fourteenth Amendment today since they 

have failed to fulfill the obligation created by the extent of their 

pre-1954 conduct.1 Any finding by the district court that the SSDs have 

discharged that obligation is clearly erroneous. The 12 defendant school 

districts enroll 118,188 children, 27% of whom are minorities, most of 

them black. 82% of the minority students in the area attend KCMSD while 

89% of the white students attend one of the SSDs. KCMSD's student body 

is 73% minority while 7% of the SSDs' student body is minority. Thus, 

while the SSDs were active participants in Missouri's interdistrict dual 

school system, they have made no effort to satisfy their duty "to eliminate 

. . . all vestiges of State-imposed segregation." Swann, 402 U.S. at 

15. Accordingly, interdistrict relief is appropriate.

1 Once an interdistrict violation has been established, segregation 
in the area schools is presumed to be the result of past, interdistrict 
de jure segregation.

"The district court having found a constitutional violation 
and having properly determined that an interdistrict remedy 
was appropriate because the violations was [sic] committed 
in the process of drawing school district lines, we believe 
that the burden of proof shifted to each defendant school 
district to establish that that district in particular 
was not involved in the violation." Hoots v. Commonwealth 
of Pennsylvania, 672 F.2d 1107, 1121 (3d Cir.), cert, 
denied, 459 U.S. 824 (1982). But see Lee v. Lee County 
Bd. of Ed., 639 F.2d 1243 (5th Cir. 1981).



15

2. Pre-1954 Evidence Is
Significant To Determine the 
Extent of Successor School 
District Liability for the 
Acts of Their Predecessors

The district court rests a portion of its conclusions on the 

proposition that the current SSDs should not be held liable for the 

segregative activity of their predecessor districts. The court stated 

that "plaintiffs needed to prove . . . that the SSDs were the original 

segregative actors." Jenkins I at 98. The court also wrote,

"[p]laintiffs' evidence of transfers from suburban school districts to 

the KCMSD from 1900 to 1954 resulted in only 251 students." Id. at 16.

This figure necessarily excludes transfers from the SSDs' predecessor 

districts. If predecessor districts were included, the district court 

would have found the number of transfers from 1900 to 1954 to be at least 

the 605 students which defendants conceded were shown. (Tr. 4557-58.)2

In ignoring the segregative conduct of the predecessor school 

districts, the district court created a novel theory of absolution based 

upon the passage of time. "No court anywhere in this nation has ever 

held that the constitutional duty to desegregate schools is discharged 

by mere passage of time, change in personnel or school boards, or the 

reorganization of school districts or state agencies responsible for 

the educational functions of the state." Benson, The Liability of Missouri 

Suburban School Districts for the Unconstitutional Segregation of 

Neighboring Urban School Districts, 53 UMKC L. Rev. 349, 354 (1985).

2 Even this higher figure does not account for all of the unrecorded 
interdistrict transfers.



16

Reorganized school districts are clearly liable for all the

obligations of their predecessor districts. Under Missouri law, a

reorganized school district succeeds to all of the legal obligations

of its predecessor districts: 'The new district shall faithfully perform

all existing contracts and assume all legal obligations of the component

districts." Mo. Ann. Stat. § 162.251 (Vernon Supp. 1985).

"It is the general statutory plan that when a consolidation 
of school districts is approved the component district 
shall immediately cease to exist and the newly formed 
district shall be . . . liable for all of the debts and 
legal obligations of said former districts.

Lewis County C-I School Dist. v. Normile, 431 S.W.2d 118, 121 (Mo. 1968)

(en banc).

Even absent statutory direction, Missouri law requires a 

consolidating school district to succeed to the liabilities of the absorbed 

districts. See Lynch v. Webb City School District No. 92, 373 S.W.2d 

193, 200 (Mo. Ct. App. 1963); McClure v. Princeton Re-organized School 

Dist. R-5, 307 S .W .2d 726, 728 (Mo. Ct. App. 1957). The predecessor 

districts were under a legal obligation to eliminate all vestiges of 

state-imposed segregation." See Swann, 402 U.S. at 15. This affirmative 

duty, under Missouri law, is retained by the successor districts.

Furthermore, as a matter of constitutional law, in school 

desegregation cases, reorganized districts are liable for the 

discriminatory acts of their predecessor districts.3 The court held

3 Milliken v. Bradley, 418 U.S. 717, 748-49 (1974), which the^district 
court referred to as "the touchstone of an interdistrict case, Jenkins I 
at 95, specifically indicates that the predecessors of the outlying school 
districts never "maintained or operated anything but unitary school 
systems."



17

in Martin v. Evansville-Vandenburgh School Corp., 347 F. Supp. 816, 819-20 

(S.D. 111. 1972), that due to the de jure segregation of its predecessor 

school district, the Evansville-Vandenburgh County public school system 

was under a continuing affirmative duty to eliminate the effects of prior 

segregation "since the day it came into existence."'*

This rule comports well with the principle that de jure segregation 

mandated by past members of a school board places current board members 

under an affirmative duty to eliminate the vestiges of discrimination 

left by the previous board. See United States v. Bd. of School Comm'rs. 

474 F.2d 81, 85 (7th Cir. 1973), cert, denied, 413 U.S. 920 (1973); Davis 

v. School Dist., 309 F. Supp. 734, 744 (E.D. Mich. 1970), aff'd, 443 

F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 (1971). Thus, a 

constitutional duty to desegregate may be inherited from a board's 

predecessors.

Furthermore, holding reorganized districts liable for their 

predecessors constitutional violations comports with common sense.

If school districts were not liable for constitutional obligations of

In general, courts will consider the segregative activity of predecessor 
districts. We conclude that enough has been shown of intentional state 
action through the community school board and its predecessor local school 
board to support a finding of segregative intent. . . . "  Hart v. Community 
School Bd. of Ed., New York School Dist. No. 21. 512 F.2d 37, 51 (2d 
Cir. 1975) (emphasis added). See also Evans v. Buchanan, 393 F. Supp.
428, 433^n.6 (D. Del.) (three judge), aff'd per curiam, 423 U.S. 963 
(1975) ("[A]lmost every present suburban school district has been involved 
in district consolidation or sharing of facilities with neighboring 
districts."); United States v. Halifax County Bd. of Ed., 314 F. Supp.
65, 77 (E.D.N.C. 1970) ("The district court [in Wright v. County School 
-d.~ » N°. 4263 (E.D. Va. , August 8, 1969)] found as a matter of law that 
the City School Board, as successor to the Greensville County Board, 
was required to disestablish racial segregation in the school system 
in accordance with the plan approved by the court.").



18

their predecessors, they could easily escape the affirmative duty to 

eliminate all vestiges of prior, de jure segregation by simply 

reorganizing. Clearly, the Supreme Court does not intend this obligation 

to be so easily evaded. Both Wright v. Council of City of Emporia, 407 

U.S. 451 (1972) and United States v. Scotland Neck Cityt Bd. of Ed., 407 

U.S. 484 (1972), stand for the principle that a school system may not 

avoid its affirmative duty to achieve unitariness by creating new school 

districts. The current SSDs, therefore, must be held liable for the 

acts of de jure segregation of their predecessor districts. Any other 

conclusion would be at odds with Missouri law, Supreme Court doctrine 

and common sense. Hence, the district court erred in failing to consider 

the historical evidence of de jure segregation by the predecessor 

districts.

B. The District Court's Findings 
of Fact Are Not Supported by 
Substantial Evidence_________

The "substantial" pre-1954 evidence which the district court

admittedly "negatfed] the importance of" led to factual findings not

supported by substantial evidence. Integral to the substantial evidence

negated by the district court as unimportant, was the uncontroverted

expert testimony of Dr. Anderson. The court repeatedly stated that

Dr. Anderson's testimony was irrelevant. See, e.g., Tr. 4343, 4437,

4465. While permitting Dr. Anderson to testify, the court questioned

the ability of an historian to be of any use in this case:

"I recognize [Dr. Anderson] as an expert. He's probably 
one of the leading experts in the field. The question 
is, is this type of expertise the type that you should 
be receiving in a court of law to prove specific facts?
And I question it." (Tr. 4358.)



19

Not only was Dr. Anderson's testimony uncontradicted, his conclusions 

were based largely on public records. Accordingly, this is not simply 

an issue of the district court making a credibility determination or 

weighing a "battle of the experts."5 Rather, the district court's 

rejection of Dr. Anderson's testimony was wholly arbitrary.

While the weight to be given expert testimony is generally within 

the discretion of the trial court, Skar v. City of Lincoln, Nebraska,

599 F.2d 253, 259 (8th Cir. 1979); Taenzler v. Burlington Northern, 608 

F .2d 796 (8th Cir. 1976); Harris v. Smith, 372 F.2d 806 (8th Cir. 1967), 

uncontradicted expert testimony should be followed or at least given 

more weight. Kelly v. Altheimer, Arkansas Public School District No. 22, 

378 F.2d 483, 495 (8th Cir. 1967). This court has held that an expert 

opinion "cannot be arbitrarily disregarded." Cullers v. Commissioner 

of Internal Revenue, 237 F.2d 611 (8th Cir. 1956). This is particularly 

true in cases such as this one where historical experts such as 

Dr. Anderson testify about an era from which few lay witnesses remain. 

Hunter v. Underwood, 105 S. Ct.. 1916 (1985). See also United States 

v. Qsidach,-513 F. Supp. 51 (E.D. Pa. 1981).

Here, the district court arbitrarily disregarded the uncontroverted 

testimony of Dr. Anderson, which provided the overall historical 

perspective as to why Missouri's pre-1954 interdistrict dual system and

5 The Supreme Court has acknowledged the difficulty of satisfying the 
clearly erroneous standard, particularly where issues of credibility 
are involved. It stated that "this is not to suggest that the trial 
judge may insulate his findings from review by denominating them 
credibility determinations. For factors other than demeanor and inflection 
go into the decision whether or not to believe a witness." Anderson 
v. Bessemer City, supra at 1512.



20

the discrimination practiced by the SSDs, shaped the discriminatory 

imbalance which remains to this day. Because the evidence in this case 

dates back to 1865, many of those originally affected by Missouri's 

segregated dual school system are no longer alive. The Supreme Court 

has recognized the value of historical experts when few eyewitnesses 

remain. See Hunter v. Underwood, supra. The Anderson analysis serves 

as a means of amplifying those unrepresented voices by demonstrating 

that the primary rationale for blacks moving to the KCMSD was to provide 

basic schooling for their children.

Anderson's testimony further represents an expert analysis on 

the general patterns of black migration into the KCMSD. Those patterns 

demonstrated clearly and without contradiction that black migration into 

KCMSD was substantially and primarily caused by the pre-1954 interdistrict 

dual school system, a system in which the SSDs admittedly took an active 

role. The district court's failure to give significance to that clear, 

uncontradicted, and substantial testimony resulted in erroneous factual 

findings.

CONCLUSION

The district court's findings of fact, which resulted in the 

dismissal of the SSDs, can only leave the reviewing court with the definite 

and firm conviction that a mistake has been made. Accordingly, the court's 

findings should be vacated and the dismissal of the SSDs should be 

reversed. Those who practiced discrimination should be obliged to cure

its consequences.



21

Of Counsel:
Richard J. Wertheimer 
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036 
(202) 872-6824

Michael J. Kd«^fman [) k J
SACHNOFF WEAVER &

RUBENSTEIN, LTD.
30 South Wacker Drive 
Chicago, Illinois 60606 
(312) 207-6458

Attorneys for Amicus 
Curiae The Kansas City 
Branch of the National 
Association for the 
Advancement of Colored 
People

Respectfully submitted,

Barbara L. Atwell 
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W. 
Washington, D.C. 20036 
(202) 728-6314

August 16, 1985



CERTIFICATE OF SERVICE

I hereby certify that two (2) copies of the foregoing Brief of 

Amicus Curiae The Kansas City Branch of the National Association for 

the Advancement of Colored People was served by first-class mail this 

date upon counsel for the parties, as follows:

Bruce Farmer 
Asst. Atty. General 
P.0. Box 899
Jefferson City, MO 65102

Mr. James Borthwick 
and Shirley Keeler 

600 Five Crown Center 
2480 Pershing Road 
Kansas City, M0 64106

Lawrence M. Maher 
James H. McLarney 
1500 Commerce Bank Bldg. 
922 Walnut
Kansas City, MO 64106

Mr. Hollis H. Hanover 
13th Floor Commerce 
Bank Bldg.
922 Walnut
Kansas City, M0 64106

Norman Humphrey, Jr. 
HUMPHREY & FARRINGTON 
123 West Kansas 
Independence, MO 64050

Basil L. North 
NORTH, WATSON & BRYANT 
Suite 1201
Kansas City, MO 64106

Donald C. Earnshaw 
EARNSHAW & EARNSHAW 
23 East 3rd Street 
Lee's Summit, MO 64063

Mr. H. Bartow Farr, III 
ONEK, KLEIN & FARR 
2550 M Street, N.W. 
Suite 250
Washington, D.C. 20037

Mr. John C. Hoyle &
Mr. John F. Cordes 
Civil Div., Room 3623 
U.S. Dept, of Justice 
Washington, D.C. 20530

Mr. Gene Voights 
1101 Walnut St.
20th Floor
Kansas City, MO 64106

Mr; Jeffrey L. Lucas 
500 Commerce Bank Bldg. 
922 Walnut
Kansas City, M0 64106

Mr. Conn Withers 
17 East Kansas Street 
Liberty, MO 64068

Mr. Julius Levonne Chambers 
James M. Nabrit, II 
James S. Liebman, et al.
99 Hudson St., 16th Floor 
New York, NY 10013

Curt T. Schneider,
Atty. Gen.
Attn: John R. Martin 

State Capitol Bldg. 
Topeka, KS 66612



2

John L. Vratil 
Lytle, Wetzler, Winn 

& Martin 
P.0. Box 8030
Shawnee Mission, KS 66208

Mr. Michael Gordon 
1125 Grand Ave.
Suite 1300
Kansas City, MO 64106

Mr. Eugene Harrison 
Asst. U.S. Atty.
811 Grand Ave.
Kansas City, MO 64106

Robert B. McDonald 
COCHRAN, TYREE, OSWALD 

MILLER & BARTON 
P.0. BOX 550 
Blue Springs, MO 64015

Mr. Timothy H. Bosler 
and Thomas Capps 

Suite 800 
Westowne VIII 
Liberty, MO 64068

Mr. George Feldmiller 
STINSON, MAG &
FIZZELL

P. 0. Box 19251 
Kansas City, MO 64141

Earl W. Francis 
Francis & Francis 
700 Kansas Ave. 
Topeka, KS 66603

Jack W.R. Headley 
2345 Grand 
26th Floor
Kansas City, MO 64108

P. John Owen 
1700 Bryant Bldg.
1102 Grand Ave.
Kansas City, MO 64106

Hugh H. Kreamer 
Court Square Bldg. 
110 South Cherry 
Olathe, KS 66061

Steven D. Stratton 
Chief Regional Attorney 
U.S. Dept, of Education 
324 East 11th St., 24th FI. 
Kansas City, MO 64106

Messrs. David S. Tatel 
Allen R. Snyder, et al. 
HOGAN & HARTSON 
815 Connecticut 
Ave., N.W.

Washington, D.C. 20530

Williard L. Phillips 
P.0. Box 1387 
Kansas City, KS 66101

Joe James 
Dept, of HUD 
Room 1204 
1103 Grand Ave.
Kansas City, MO 64106

Robert F. Connor, Clerk 
United States District 

Court
201 U.S. Courthouse 
811 Grand Avenue 
Kansas City, MO 64106

James P. Lugar 
Alpine East Bldg.
7735 Washington Ave. 
Kansas City, MO 66112



3

Helen Montford 
Dept, of Transportation 
P.0. Box 19715 
Kansas City, MO 64141

aJTV CttfaeQ £
Barbara L. Atwell

August 16, 1985