Kansas City, Missouri School District v. State of Missouri Brief for Appellees

    No. 06-3318

In The

© ntteb S t a t e s  Court of A ppeals 
for tfje Ctgfjti) Circuit

KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL..

Appellees,

v.

STATE OF MISSOURI, ET AL..

Appellants.

On Appeal from the United States District Court 
for the Western District of Missouri

BRIEF FOR APPELLEES 
KANSAS CITY, MISSOURI SCHOOL DISTRICT, 

CHINYERE JENKINS, ET AL., AND AFT LOCAL 691

Maurice A. Watson Patricia A. Brannan*
Kirsten Byrd John W. Borkowski
Hayley E. Hanson Joshua I. Civin
Blackwell Sanders Peper Martin L.L.P. Hogan & Hartson L.L.P. 
4801 Main Street, Suite 1000 555 13th Street, N.W.
Kansas City, Missouri 64112 Washington, D.C. 20004
(816) 983-8000 (202) 637-8686
(816) 983-8080 (fax) (202) 637-5910 (fax)

Counsel for Kansas City, Missouri School District 
*Counsel of Record

March 26, 2007
[Additional counsel listed on inside cover]



Additional Counsel:

Arthur A. Benson II 
Jamie Lansford 
Arthur Benson & Associates 
4006 Central
Kansas City, Missouri 64106-2123 
(816) 531-6565 
(816)531-6688 (fax)

Counsel for Chinyere Jenkins, et al.

Fred Wickham 
Brian P. Wood 
Wickham & Wood, L.L.C.
4240 Blue Ridge Boulevard, Suite 301 
Kansas City, Missouri 64133 
(816) 753-8751 
(816) 753-8267 (fax)

Counsel for Intervenor AFT Local 691



SUMMARY OF THE CASE

On February 22, 2006, Chinyere Jenkins et al., the class of plaintiff school 

children (“Plaintiffs” or “Plaintiff School Children”), the Kansas City, Missouri 

School District (“KCMSD” or “the District”), and the American Federation of 

Teachers Local 691 (“AFT Local 691”) (collectively “Joint Movants”) filed a 

“Joint Motion to Enforce Judgments Incorporating Agreement Involving Dismissal 

of State Defendants.” Joint Movants sought to prevent the State of Missouri and 

the other State Defendants (collectively the “State”) from flouting prior orders of 

the district court and this Court. Those orders incorporated an agreement between 

the State and the KCMSD and permitted the State’s dismissal—pursuant to certain 

conditions—from this desegregation case in 1999, approximately four years before 

the KCMSD achieved unitary status.

On June 15, 2006, after full briefing by the parties, the district court granted 

Joint Movants’ enforcement motion and ordered the State to comply with the prior 

orders. The court enjoined the State from requiring the KCMSD to transfer to 

local charter schools certain funds that the State had agreed should—and this Court 

and the district court had required—be used for the repayment of bonds that the 

federal courts had obligated the District to issue to fund part of the capital 

improvements the courts concluded were necessary to remedy unconstitutional 

segregation. These court-ordered bonds will not be fully repaid until 2014.

in



The district court issued an amended order on September 11, 2006, and

again on November 21, 2006.

IV



CORPORATE DISCLOSURE STATEMENT

In accordance with Rules 26.1 of the Federal Rules of Appellate Procedure 

and 26.1(A) of the Eighth Circuit Local Rules, Appellee Kansas City, Missouri 

School District (“KCMSD”), through its undersigned counsel, submits this 

corporate disclosure statement.

The KCMSD is a public, governmental, non-corporate entity. The KCMSD 

has no parent corporation, and no public corporation owns 10% or more of any 

stock in the KCMSD.

Respectfully submitted,

Maurice A. Watson 
Kirsten Byrd 
Hayley E. Hanson
Blackwell Sanders Peper Martin L.L,P. 
4801 Main Street, Suite 1000 
Kansas City, Missouri 64112 
(816)983-8000 
(816) 983-8080 (fax)

John W. Borkowski 
Joshua I. Civin 
Hogan & Hartson L.L.P. 
555 13th Street, N.W. 
Washington, D.C. 20004 
(202)637-8686 
(202) 637-5910 (fax)

Counsel for Kansas City, Missouri School District

v



TABLE OF CONTENTS

SUMMARY OF THE CASE.............................................................................. iii

CORPORATE DISCLOSURE STATEMENT................................................... v

TABLE OF AUTHORITIES............................................................................viii

STATEMENT OF THE ISSUES.........................................................................1

STATEMENT OF THE CASE............................................................................ 3

STATEMENT OF FACTS.................................................................................. 4

A. The Court-Ordered Remedy for Unconstitutional
Segregation................................................................................................ 4

B. The Early Dismissal of the State............................................................... 9

C. The Establishment of Charter Schools and the KCMSD’s
Achievement of Unitary Status................................................................14

D. The Diversion to Local Charter Schools of Funds Dedicated
to Repayment of the KCMSD’s Court-Ordered Bonds...........................18

1. The Board of Fund Commissioners’ Determination......................18

2. The Amendment of the Charter Schools Act................................ 21

E. The Joint Movants’ Enforcement Action in Federal
District Court........................................................................................... 22

SUMMARY OF THE ARGUMENT................................................................ 25

STANDARD OF REVIEW............................................................................... 27

ARGUMENT......................................................................................................30

I. THE DISTRICT COURT HAD ANCILLARY
JURISDICTION TO ENFORCE PRIOR ORDERS IN
THIS CASE..............................................................................................30

Page

vi



TABLE OF CONTENTS—Continued

Page

A. The district court properly exercised ancillary 
jurisdiction to enforce its prior orders and orders of 
this Court that themselves imposed conditions on the 
State’s early dismissal from this school desegregation
case............................................................................................... 30

B. The district court also had ancillary jurisdiction to
enforce provisions of the 1996 Agreement between 
the State and the KCMSD because those terms were 
fully incorporated into the district court’s orders as a 
modification of its earlier remedial decrees..................................35

C. The district court’s determination that the KCMSD 
had achieved unitary status did nothing to alter the 
enforceability of the court-mandated conditions
placed on the State’s early dismissal from this case..................... 42

II. THE DISTRICT COURT CORRECTLY INTERPRETED 
ITS PRIOR ORDERS—AS WELL AS PRIOR ORDERS 
OF THIS COURT—TO PROTECT FROM THE STATE’S 
USE THE FUNDS DEDICATED TO THE REPAYMENT 
OF BONDS THAT THE KCMSD WAS COMPELLED BY 
COURT ORDER TO ISSUE................................................................... 47

CONCLUSION.................................................................................................. 56

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE
32(a) AND EIGHTH CIRCUIT RULE 28A(c)................................................. 58

CERTIFICATE OF COMPLIANCE WITH EIGHTH CIRCUIT
RULE 28A(d)2................................................................................................... 59

CERTIFICATE OF SERVICE.......................................................................... 60

Vll



CASES:

Board of Educ. of Okla. City Pub. Schs. v. Dowell,
498 U.S. 237(1991).....................................................................................43,44

Christina A. ex rel. Jennifer v. Bloomberg, 315 F.3d 990 (8th
Cir. 2003)........................................................................................................... 32

DiMucci v. DiMucci, 91 F.3d 845 (7th Cir. 1996)................................................. 37

First Union Nat’l Bank v. Pictet Overseas Trust Corp.,
477 F.3d 616 (8th Cir. 2007)............................................................................. 34

Freeman v. Pitts, 503 U.S. 467 (1992)..............................................................43-44

Gacv v. Welbom, 994 F.2d 305 (7th Cir. 1993)....................................................34

Gilbert v. Monsanto Co., 216 F.3d 695 (8th Cir. 2000).....................................2, 36

Hayden & Assocs., Inc, v. ATY Bldg. Sys., Inc.,
289 F.3d 530 (8th Cir. 2002)............................................................................. 39

Hester Indus., Inc, v. Tyson Foods, Inc., 160 F.3d 911
(2d Cir. 1998)..................................................................................................... 41

In re Dial Bus. Forms, Inc., 341 F.3d 738
(8th Cir. 2003).................................................................................................... 28

In re Phar-Mor, Inc. Sec. Litig., 172 F.3d 270
(3d Cir. 1999)......................................................................................................39

Jenkins v. Missouri, 216 F.3d 720 (8th Cir. 2000).....................................14, 16, 35

Jenkins y. Missouri, 158 F.3d 984 (8th Cir. 1998)..........................................passim

Jenkins y, Missouri, 122 F.3d 588 (8th Cir. 1997)..........................................passim

Jenkins v. Missouri, 78 F.3d 1270 (8th Cir. 1996)...................................................5

Jenkins y. Missouri, 943 F.2d 840 (8th Cir. 1991)...................................................6

TABLE OF AUTHORITIES
Page

vm



TABLE OF AUTHORITIES—Continued

Page

Jenkins v. Missouri, 931 F.2d 470 (8th Cir. 1991),
cert, denied, 502 U.S. 967 (1991)........................................................................5

Jenkins v. Missouri, 890 F.2d 65 (8th Cir. 1989).................................................  8-9

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988), 
cert, denied in part, 490 U.S. 1034 (1989),
aff d in part, 490 U.S. 33 (1990)........... .'.................................. 5, 6, 7, 45, 48, 51

Jenkins v. Missouri, No. 77-0420-CV-W-l (W.D. Mo. filed
Jan. 28, 1999).......................................................................................................2

Jenkins v. Missouri, 965 F. Supp. 1295 (W.D. Mo. 1997)...............................11, 38

Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997),
aff d as modified, 122 F.3d 588 (8th Cir. 1997)........................................ passim

Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo. 1987), 
aff d in part. 855 F.2d 1295 (8th Cir. 1988), 
cert, denied in part, 490 U.S. 1034 (1989),
aff d in part. 495 U.S. 33 (1990).....................................................5, 6, 7, 48, 51

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985), 
aff d as modified. 807 F.2d 657 (8th Cir. 1986),
cert, denied, 484 U.S. 816 (1987)........................................................................ 5

Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984)....................................... 5

Jenkins v. Sch. Dist. of Kan. City, 73 F. Supp. 2d 1058 
(W.D. Mo. 1999),
rev’d by. 216 F.3d 720 (8th Cir. 2000).........................................................16, 43

JTH Tax, Inc, v. H&R Block E. Tax Servs., Inc.,
359 F.3d 699 (4th Cir. 2004)............................................................................. 28

Knight v. Pulaski County Special Sch. Dist.,
112 F.3d 953 (8th Cir. 1997)............................................................................. 40

IX



Kokkonen v. Guardian Life Ins. Co. of Am..
511 U.S. 375 (1994)....................................................................................passim

Liddell v. Bd. of Educ. of the City of St. Louis,
126 F.3d 1049 (8th Cir. 1997)...........................................................................54

Little Earth of the United Tribes, Inc, v. United States Dep’t of
Hous. & Urban Dev.. 807 F.2d 1433 (8th Cir. 1986)........................................ 34

Little Rock Sch. Dist. v. N. Little Rock Sch. Dist.,
451 F.3d 528 (8th Cir. 2006)................................................................. 29, 48, 54

Little Rock Sch. Dist, v. N. Little Rock Sch. Dist.,
109 F.3d 514 (8th Cir. 1997)............................................................................. 29

Local Loan Co. v. Flunk 292 U.S. 234 (1934)........................................................ 32

Lucille v. City of Chicago. 31 F.3d 546 (7th Cir. 1994)........................................ 40

McAlpin v. Lexington 76 Auto Truck Stop. Inc.. 229 F.3d 491
(6th Cir. 2000).....................................................................................................37

Meiner ex rel, Meiner v. Mo. Dep’t of Mental Health, 62 F.3d
1126 (8th Cir. 1995)....................................................................................  39-40

Michigan v, City of Allen Park. 954 F.2d 1201 (6th Cir. 1992)......................28-29

Missouri v. Jenkins. 495 U.S. 33 (1990)........................................................6, 7, 41

Missouri v. Jenkins. 515 U.S. 70 (1995)................................................9, 17, 44, 48

Myers v. Richland County. 429 F.3d 740 (8th Cir. 2005)......................................27

Nebula Glass Int’l Inc, v. Reichhold, Inc..
454 F.3d 1203 (11th Cir. 2006)..........................................................................28

North Carolina State Bd. of Educ. v. Swann. 402 U.S. 43
(1971)............................................................................................................ 45-46

TABLE OF AUTHORITIES—Continued

Page

x



TABLE OF AUTHORITIES—Continued

Page

Peacock v. Thomas, 516 U.S. 349 (1996)..........................................................2, 31

Riddick ex rel. Riddick v, Sch. Bd. of City of Norfolk, 784 F.2d
521 (4th Cir. 1986)..................................................................................... 43,44

Riggs v. Johnson County, 73 U.S. 166 (1867).......................................................31

Roberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003)................................ ................. 32

Royal Ins. Co. of Am. v. Ouinn-L Capital Corp., 960 F.2d 1286
(5th Cir. 1992)....................................................................................................31

Scelsav. City Univ. ofN. Y.. 76 F.3d 37 (2d Cir. 1996).......................................39

School Dist. of Kan. City, Mo. v. Mo. Bd. of Fund Comm’rs,
No. 05AC-CC00389 (Mo. Cir. Ct. filed Sept. 13, 2005)..................................21

Schaefer Fan Co., Inc, v. J & D Mfg.,
265 F.3d 1282 (Fed. Cir. 2001)...................................................................36, 38

SEC v. Hermih Inc., 838 F.2d 1151 (11th Cir. 1988)............................................55

Smyth ex rel. Smyth y. Rivero, 282 F.3d 268 (4th Cir. 2002)...............................39

Southmark Props, v. Charles House Corp., 742 F.2d 862
(5th Cir. 1984)..............................................................................................  31-32

Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239
(9th Cir. 1979)............................................................................................... 44-45

Steahr v. Apfel, 151 F.3d 1124 (8th Cir. 1998)......................................................28

System Fed’n No. 91 Ry. Employees Dep’t, AFL-CIO v.
Wright. 364 U.S. 642 (1961)............................................................................... 10

United States v. Overton, 834 F.2d 1171 (5th Cir. 1987).......................................44

Young v. United States ex rel. Vuitton et Fils S.A.,
481 U.S. 787(1987)............................................................................................47

xi



TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION;

Mo. Const, art. 10, § 11(g)............................................................................... 13, 33

STATUTES;

Mo. Ann. Stat. § 33.300 (West 2006).................................................................... 19

Mo. Ann. Stat. §33.315 (West 2006).................................................. 19, 20,21,52

Mo. Ann. Stat. §§ 160.400-160.420 (West 2005)...................................................15

Mo. Ann. Stat. § 160.415 (West 2006)................................................................... 22

Mo. Ann. Stat. § 160.415.2 (West 2005).................................................................15

Mo. Ann. Stat. § 160.415.2(5) (West 2005).................................................... passim

LEGISLATIVE MATERIALS;

H.R.J. Res. 9, 89th Gen. Assem. (Mo. 1997)...................................................13, 14

Sen. Bill 287, 93rd Gen. Assem., 2005 Mo. Legis. Serv. S.B.
287 (West)........................................................................................21-22, 46, 50

RULES;

Fed. R. Civ. P. 41 (a)( 1 )(ii)................................................................................ 40, 41

Fed. R. Civ. P. 60(b)(5)......................................................................................14,41

xii



In The

Unite*! States Court of Appeals 
for tfje Cigfttf) Circuit

No. 06-3318

KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL..

Appellees,

v.

STATE OF MISSOURI, ET AL.,

Appellants.

On Appeal from the United States District Court 
for the Western District of Missouri

BRIEF FOR APPELLEES 
KANSAS CITY, MISSOURI SCHOOL DISTRICT, 

CHINYERE JENKINS, ET AL., AND AFT LOCAL 691

STATEMENT OF THE ISSUES

Whether the district court has jurisdiction to enforce prior orders

incorporating an agreement between the defendants in this school



desegregation case and setting forth conditions on the State’s early dismissal 

prior to the KCMSD’s achievement of unitary status?

Apposite Cases:

Peacock v. Thomas, 516 U.S. 349 (1996);

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994); and 

Gilbert v. Monsanto Co., 216 F.3d 695 (8th Cir. 2000).

2. Whether the district court correctly interpreted its own prior orders—

as well as prior orders of this Court—to protect from the State’s use those funds 

dedicated to the repayment of bonds that the KCMSD was compelled by court 

order to issue?

Apposite Cases:

Jenkins v. Missouri, 158 F.3d 984 (8th Cir. 1998);

Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997);

Jenkins v. Missouri, No. 77-0420-CV-W-l (W.D. Mo. filed Jan. 28, 1999); and 

Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997).

2



STATEMENT OF THE CASE

This appeal challenges the ability of the district court to enforce prior orders 

that modified, over objections from the Plaintiff School Children, the remedial 

decrees in this long-running desegregation case. These modifications permitted the 

State’s dismissal, prior to the KCMSD achieving unitary status. The State’s early 

dismissal was subject to conditions set forth by the district court and this Court, 

including the terms of a 1996 Agreement between the State and the KCMSD, and 

additional requirements established by the courts. In particular, this Court and the 

district court repeatedly cautioned the State against impeding the KCMSD from 

meeting its remaining court-ordered desegregation obligations.

The State, however, failed to heed the courts’ warnings and violated both the 

prior court orders and the Agreement with the KCMSD. Through a series of 

legislative and administrative actions in 2005, the State required the KCMSD to 

transfer to local charter schools certain funds that the State knew were dedicated to 

the repayment of bonds that the district court and this Court had required the 

District to issue to fund its share of capital improvements ordered as part of the 

desegregation remedy in this case. Despite the fact that the State was dismissed in 

1999 and the District declared unitary in 2003, the KCMSD’s obligation to repay 

the court-ordered bonds will not be discharged until 2014.

3



To prevent the State from taking further actions that intentionally flouted its 

prior orders as well as those of this Court, the district court granted Joint Movants’ 

enforcement motion. The district court did not impose any new obligations on the 

State; rather, it simply and properly exercised its ancillary jurisdiction to “vindicate 

its authority” and the authority of this Court. Kokkonen v. Guardian Life Ins. Co. 

of Am., 511 U.S. 375, 380 (1994).

STATEMENT OF FACTS

While the State’s Statement of Facts discusses much of the background of 

this case, which will not be repeated here, it is also selective and fails to describe 

essential elements of the complex history that are vital to an understanding of the 

district court’s decision. In addition to omitting many key facts and prior rulings, 

the State also devotes excessive attention to a few prior orders that are of little or 

no relevance to the issues presented by this appeal. See, e.g., infra at 11 n.3, 16 n.4.

A. The Court-Ordered Remedy for Unconstitutional Segregation

In its opening brief, the State neglects to describe the impetus for this 

enforcement action: To this day, the KCMSD remains under obligation to repay 

debts it incurred as a result of the funding mechanisms ordered by the district 

court—with subsequent modifications and approval from this Court and the 

Supreme Court—to remedy unconstitutional racial segregation by the KCMSD and 

the State.

4



After a lengthy trial, the KCMSD and the State were found jointly and 

severally liable for intentionally creating a system of racially segregated public 

schools and then failing to eliminate its discriminatory vestiges. See Jenkins v. 

Missouri, 593 F. Supp. 1485, 1488, 1504-06 (W.D. Mo. 1984); see also Jenkins v. 

Missouri, 931 F.2d 470, 477 (8th Cir. 1991) (rejecting State’s attempt to relitigate 

“joint and several liability” finding) (Jenkins IV). 1 To undo this unconstitutional 

discrimination, the district court approved one of the Nation’s most comprehensive 

desegregation remedies. Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985), 

affd as modified, 807 F.2d 657 (8th Cir. 1986) (en banc) (Jenkins I), cert, denied, 

484 U.S. 816 (1987).

Substantial capital improvements to school buildings were a key remedial 

component because the district court found that, as a result of the unconstitutional 

actions of the State and the District, many of the KCMSD’s facilities were so 

deteriorated that they presented health and safety hazards, undermined educational 

improvement efforts, discouraged non-minority enrollment, and left intact an 

inferior education for minority students. Jenkins, 639 F. Supp. at 39-41; see also 

Jenkins v. Missouri, 672 F. Supp. 400, 411 (W.D. Mo. 1987), affd in relevant part, 

855 F.2d 1295 (8th Cir. 1988) (Jenkins II) (“[KCMSD’s] physical facilities have 

literally rotted”). This Court affirmed the scope of the capital improvements

U Joint Movants adopt this Court’s numbering system for referring to its prior 
orders. See, e.g„ Jenkins v. Missouri, 78 F.3d 1270, 1273 n.3 (1996).

5



remedy and emphasized that it was “made necessary in large part by the State’s 

past actions . . . Jenkins II, 855 F.2d at 1307, cert, denied in relevant part, 490 

U.S. 1034 (1989).

The district court also determined that the KCMSD was unable to raise 

sufficient revenue to fund its share of the desegregation remedy without a 

“diminution in the quality of its regular academic program.” Jenkins, 672 F. Supp. 

at 410-11, aff d in relevant part, 855 F.2d at 1309. This was because state law “so 

narrowly circumscribe[d] KCMSD’s ability to raise money that, if forced to 

operate within these limits, the district court would lack power to implement a 

remedy.” Jenkins II, 855 F.2d at 1313. Thus, the district court—with approval 

from this Court—determined that the only appropriate way to fund the 

desegregation remedy was to enjoin the operation of state laws that prevented the 

KCMSD from increasing its property tax levy to finance the District’s share of the 

remedy. See id. at 1309-15; Jenkins, 672 F. Supp. at 410-13. This unusual 

exercise of the far reaches of federal remedial powers was upheld by the Supreme 

Court. See Missouri v. Jenkins, 495 U.S. 33, 52-58 (1990). Pursuant to these 

court orders, the KCMSD increased its levy to $4.96 per $100 of assessed 

valuation. See Jenkins v. Missouri, 943 F.2d 840, 841-42 (8th Cir. 1991) (Jenkins 

Y I ) .

6



The State fails to explain that, in addition to this levy increase, the district 

court also “directed” the KCMSD to issue bonds totaling $150 million to defray its 

share of the costs of rehabilitating or replacing facilities that had fallen into 

disrepair because of the unconstitutional conduct of the State and the KCMSD. 

Jenkins, 672 F. Supp. at 413. Otherwise, as a jointly and severally liable co­

defendant, the State would have borne nearly the entire cost of the extensive 

capital improvements made necessary by the constitutional violations.

As this Court subsequently explained, the district court “earmarked the 

proceeds of the property tax increase for retirement of capital improvement bonds, 

with any excess to be used to fund other desegregation costs,” and further provided 

that the “portion of the increase necessary to maintain payments on the bonds was 

to remain in effect until either the bonds were retired or other provisions were 

adopted to insure retirement.” Jenkins II, 855 F.2d at 1309; see also Jenkins, 495 

U.S. at 42 (noting that district court “directed that the revenues generated by the 

property tax increase be used to retire the capital improvement bonds”). Indeed, 

because of the District’s limited ability to raise revenues under state law, the 

KCMSD would have found no market to sell the bonds without the court- 

authorized levy increase. See Jenkins v. Missouri, 158 F.3d 984, 986 (8th Cir. 

1998) (Jenkins XV) (recognizing that documents authorizing capital improvement 

bonds expressly declared they would be satisfied from the levy increase).

7



Over the course of the litigation, the KCMSD continued, with court 

approval, to issue additional desegregation bonds (backed by the court-authorized 

levy increase) to fund its share of the additional capital improvements subsequently 

ordered by the district court. For example, in 1993, the district court approved $61 

million in leasehold revenue bonds. See Joint Movants’ Addendum at 6-9 (Aug.

18, 1993 Order at 6-9). Again, the district court ordered “debt service on the bonds 

to be paid . . . from local desegregation revenues,” including the court-authorized 

increase in the tax levy. Id at 7. The State never mentions this order.

Likewise, later that same year, at the urging of the district court through its 

Desegregation Monitoring Committee (“DMC”), the KCMSD developed a long- 

range financial plan to ensure its ability to meet its remaining desegregation 

obligations. This plan included approximately $99 million in additional leasehold 

revenue bonds to meet the KCMSD’s share of the remaining court-ordered capital 

improvement requirements. See App. 298. No party, including the State, objected 

to this proposal, and the DMC approved it. (Indeed, it was powerfully in the 

State’s financial interest for the KCMSD to issue these bonds so the State would 

not have to pay the whole cost of the remaining capital improvements.) Pursuant 

to the district court’s procedures, when no party appealed the decision of the DMC, 

the action took on the force of a court order. See Jenkins v. Missouri. 890 F.2d 65,

8



66-68 (8th Cir. 1989) (Jenkins III) (rejecting State’s challenge to district court’s 

DMC procedures).

B. The Early Dismissal of the State

In 1995, the Supreme Court noted and in some respects limited the scope of 

the remedy ordered by the district court and approved by this Court. See Missouri 

v. Jenkins, 515 U.S. 70, 90-103 (1995). The Supreme Court also clarified the 

standards for evaluating whether the KCMSD and the State had “eliminated” the 

“vestiges” of unconstitutional segregation “to the extent practicable”—a necessary 

precondition to achieving “unitary status.” Id. at 89, 101.

After a remand from the Supreme Court, the KCMSD and the State reached 

an “Agreement” for “phasing out court supervision.” App. 56-57 (May 21, 1996 

Agreement at 1-2). The State agreed to pay the KCMSD approximately $320 

million over a three-year period and to “support existing court-ordered financing,” 

including the “tax levy rate . . . currently set at $4.96.” Id at 61.2 In exchange, the 

KCMSD agreed that the State should be released from further desegregation 

funding obligations and that it would support the State’s dismissal from the suit 

prior to the full remediation of the constitutional violation. Id. at 59-60, 64-65.

The District hoped during this three-year period to achieve unitary status but also

2/ The Agreement specified $314 million in State payments. See App. 57. The 
State subsequently acknowledged, however, that $320 million was required due to 
court-ordered funding increases. See Jenkins. 959 F. Supp. 1152, 1152, 1169 
(W.D. Mo. 1997).

9



realized that, because of the unique remedial orders involved, some of its court- 

ordered obligations such as repayment of the capital improvement bonds would 

likely extend beyond such a declaration. The Agreement, thus, explicitly 

contemplated that the KCMSD would invest a portion of those payments to fulfill 

its desegregation obligations and other educational needs in future years. Id. at 60 

(“The parties agree that the purpose of the . . .  payments by the State to the 

KCMSD is to provide the KCMSD with a source of funds not only for the next 

three years, but for future years.”).

The AFT Local 691, which had intervened as a plaintiff in the case, 

endorsed the Agreement between the defendants, but the Plaintiff School Children 

did not. The Plaintiffs believed that the Agreement did not provide enough 

financial support for the KCMSD to be able to meet the educational needs of the 

school children and satisfy its remaining desegregation obligations. Because all of 

the parties did not agree to this “settlement,” the district court could approve it only 

by invoking its authority to amend “ ‘the terms of an injunctive decree if the 

circumstances, whether of law or fact, obtaining at the time of its issuance have 

changed, or new ones have since arisen.’ ” Jenkins v. Missouri, 959 F. Supp.

1151, 1172 (W.D. Mo. 1997) (quoting System Fed’n No. 91 Ry, Employees Dep’t, 

AFL-CIO v. Wright. 364 U.S. 642, 647 (1961)). The district court carefully 

scrutinized the Agreement’s terms, understanding that “it releases the State from

10



further financial obligation but leaves in place the $4.96 court-ordered levy.” Id. at 

1154. Believing that the Agreement would facilitate an orderly transition from 

judicial supervision, the district court concluded that “[ejquity requires a 

modification of the earlier remedy prescribed by this Court.” Id. at 1172. Upon 

filing this order, Judge Russell Clark, the district judge who had overseen this case 

since its inception, handed over judicial supervision to Judge Dean Whipple, who 

has continued to preside to this day.3

On appeal, this Court agreed with the Plaintiff School Children that certain 

aspects of the Agreement were “greatly troubling.” Jenkins v. Missouri, 122

F.3d 588, 601 (8th Cir. 1997) (Jenkins XIV). Nevertheless, the Court concluded 

that the district court had not “abused its discretion” in modifying its prior 

remedial orders to permit “the phase-out of the State’s funding obligation.” Id. 

at 603. This Court indicated, however, that its decision was predicated upon its

3/ The State places far too much emphasis upon certain statements in the 
district court’s order approving the Agreement as well as in a subsequent order 
denying Plaintiffs’ request for a stay pending appeal. See State Br. at 20-28 
(discussing Jenkins, 959 F. Supp. at 1168-79, and Jenkins v. Missouri, 965 F. 
Supp. 1295 (W.D. Mo. 1997)). The district court’s hypothetical speculation that 
the KCMSD property tax levy rate might not remain at $4.96 after the District 
achieved full unitary status carries no precedential weight in light of the concerns 
that this Court subsequently expressed and the conditions that the district court 
specifically placed upon the dismissal of the State. As explained further below, 
this Court made clear that maintenance of the court-authorized levy was a 
necessary precondition for its approval of the Agreement due to the KCMSD’s 
continuing obligations to repay the court-ordered desegregation bonds. See 
Jenkins v. Missouri, 122 F.3d 588, 601-03 (8th Cir. 1997) (Jenkins XIV); Jenkins 
v. Missouri, 158 F.3d 984, 986 (8th Cir. 1998) (Jenkins XV).

11



understanding that the court-authorized levy would remain in place. Id. Because

of the unique circumstances presented by the extreme violation and the broad

court-ordered remedy in this case, “maintaining] the levy at its present level”

was necessary, in this Court’s view, not only until the District became unitary,

but also as “a means for continued financial support of the KCMSD independent

of court order after the KCMSD is no longer under court supervision.” Id.

(emphasis added). Critically, this Court held that a reduction in the levy rate

might provide grounds for revisiting the Agreement:

Sufficient funding is absolutely essential to the school district’s continued 
viability. All parties agree that the loss of the level of funding under the 
current levy would be catastrophic and would reduce the district’s funding 
to less than half the amount that has been available to the KCMSD for a 
number of years. Should this loss of funding occur, it would present a 
changed circumstance that could call for reconsideration of the agreement.

Id. (emphasis added).

In a subsequent proceeding in which the district court was adjudicating a 

dispute over the State’s obligations pursuant to the orders approving the 

Agreement, it recognized that this Court had provided substantial “clarification of 

the legal effect of the Agreement,” and therefore interpreted the “court-approved 

Agreement as a judicial decree, not a contract.” App. 188, 196 (Oct. 2, 1997 Order 

at 7, 15).

This Court subsequently dismissed an appeal by the KCMSD challenging

other aspects of the district court’s analysis of the District’s funding obligations in
12



the wake of the Agreement. See Jenkins XV, 158 F.3d 984. In so doing, this 

Court felt it necessary to “make some response” to the KCMSD’s concern that “it 

[was] on the brink of a funding crisis because it [was] uncertain whether it will 

have sufficient funds to retire the bonds issued to fund the school construction 

projects ordered in this case.” at 985, 986. The Court noted a constitutional 

amendment recently adopted by Missouri voters that permitted the KCMSD to set 

a levy of “up to $4.95 for $100 assessed valuation,” one cent below the court- 

authorized rate. Id. at 986; see also H.R.J. Res. 9, 89th Gen. Assem. (Mo. 1997) 

(approved by voters Apr. 7, 1998) (amending Mo. Const, art. 10, § 11(g)). In this 

Court’s view, the amendment provided assurance that, even after the State’s 

dismissal, the tax levy increase would remain in place and that a portion of it 

would be—as it had been in the past—dedicated to satisfaction of the court- 

ordered desegregation bonds. See Jenkins XV, 158 F.3d at 986 (recognizing that 

the amendment provided the KCMSD with the “authority to maintain that part of 

the levy which has heretofore been devoted to retire its indebtedness”).

Nevertheless, this Court warned: “Should the KCMSD fail to provide 

sufficient funding to cover retirement of the bonds or other obligations, the 

aggrieved parties can seek appropriate relief.” Id. This Court thus dismissed 

the appeal “with the clear proviso that if some of the contingencies argued by the

13



parties come to pass the issues may be raised when they are ripe and require a 

decision.” Id.

After the State transferred the required $320 million to the KCMSD, it 

petitioned the district court for an order granting relief from judgment under Fed. 

R. Civ. P. 60(b)(5) and dismissing it from the case. App. 204 (Jan. 28, 1999 Order 

at 5 (Whipple, J.)). The Plaintiff School Children moved for a stay pending the 

outcome of a ballot proposal to increase the State sales tax to provide 

“desegregation replacement funds.” Id. at 208. The district court denied the 

Plaintiffs’ motion on the grounds that it was bound by this Court’s conclusion that 

concerns relating to the “future funding” of the KCMSD “have been addressed and 

eliminated by passage of H.J.R. 9, which ensures that the levy would remain at 

$4.95 per $100 . . .  .” Id The district court, however, cautioned the State that it 

“must continue to comply with obligations, if any, that it undertook during the 

course of this lawsuit. . . Id, at 209. The court also expressly warned the State 

not to take “any actions which might prevent the KCMSD from ultimately 

fulfilling its court-ordered” obligations. Id; see also Jenkins v. Missouri, 216 F.3d 

720, 722 (8th Cir. 2000) (en banc) (acknowledging these conditions placed upon 

the State’s dismissal).

C. The Establishment of Charter Schools and the KCMSD’s 
Achievement of Unitary Status

14



In 1998, prior to its dismissal, the State adopted legislation establishing 

charter schools solely in Kansas City and St. Louis, the only jurisdictions then 

implementing court-ordered desegregation remedies for which the State had 

shared responsibility as a co-defendant. Mo. Ann. Stat. §§ 160.400-160.420 

(West 2005). The State chose to fund these charter schools exclusively through 

the diversion of federal, state, and local funding, including revenue from local 

tax levies, from those two school districts. Mo. Ann. Stat. § 160.415.2 (West 

2005). The statute required districts to calculate the amount of funding to be 

diverted on a per-pupil basis depending on the number of students who enroll in 

charter schools established within their boundaries. Id.

The State acknowledged, however, that its choice to fund charter schools 

in this way could not disrupt the KCMSD’s ability to fulfill its court-ordered 

funding obligations. A 1999 amendment to the Charter Schools Act expressly 

recognized that a portion of the KCMSD’s per-pupil funding was dedicated to 

repaying the desegregation bonds and that the continued availability of that 

revenue to the District was a condition of the court orders approving the 

Agreement between the KCMSD and the State. See Mo. Ann. Stat. § 

160.415.2(5) (West 2005). Even if public school students transferring to charter 

schools might reduce the District’s expenditures to some extent, the reductions 

would not alter the fixed costs to the KCMSD of bond repayments on capital

15



improvements undertaken pursuant to the desegregation orders. Therefore, the 

Act provided:

The per-pupil amount paid by a school district to a charter school shall be 
reduced by the amount per pupil determined by the state board of education 
to be needed by the district in the current year for repayment of leasehold 
revenue bonds obligated pursuant to a federal court desegregation action.

Id. 4

Pursuant to a methodology developed and approved by the State Department 

of Elementary and Secondary Education (“DESE”), the per-pupil amount KCMSD 

was authorized to withhold under Mo. Ann. Stat. § 160.415.2(5) (West 2005) in a 

particular year was determined by dividing the amount of debt service required in 

that year by the total number of students enrolled in the KCMSD and local charter 

schools. The KCMSD otherwise consistently provided full per-pupil funding to

4/ Notwithstanding this amendment, the KCMSD expressed concern about the 
impact of the Charter Schools Act on its desegregation obligations in papers that it 
filed challenging another controversial State action: the Missouri State Board of 
Education’s revocation of the District’s accreditation several months after the 
State’s dismissal from the case. See Jenkins v. Sch. Dist. of Kan. City, Mo., 73 F. 
Supp. 2d 1058, 1065-66 (W.D. Mo. 1999). The KCMSD argued that the State’s 
revocation determination should be voided because it prevented the District from 
fulfilling its desegregation obligations. The district court rejected this claim. Id. at 
1073-77. Its order does not merit the attention the State devotes to it, however.
See State Br. at 35-39, 61. To the extent that the district court commented on 
charter school funding, its views were confined to the portion of its opinion in 
which it sua sponte declared that the KCMSD had achieved unitary status. On 
appeal, this Court, sitting en banc, reversed and remanded, holding that the district 
court should have permitted the KCMSD and the Plaintiffs to present evidence on 
these issues. See Jenkins v. Missouri, 216 F.3d 720, 727 (8th Cir. 2000) (en banc). 
The principal en banc opinion did not address the accreditation or charter schools 
issues.

16



the charter schools in compliance with its obligations under the Charter Schools 

Act.

For several years, the State continued to recognize the District’s right and 

need to withhold from the local charter schools’ per-pupil allocation the revenue 

derived from the increased tax levy that it needed to service the remaining un­

retired debt on the court-ordered bonds. As a result, the KCMSD was able to retire 

much—but not all—of the original debt (totaling about $310 million in principal 

alone) created by the issuance of these bonds. App. 299.

In 2003, the District moved the district court for a final declaration of 

unitary status. The Plaintiff School Children opposed the KCMSD’s motion, but 

after extensive proceedings, Judge Whipple found that the District had remedied 

the remaining vestiges of segregation to the extent practicable. Thus, the district 

court declared the KCMSD unitary and released it from further court supervision. 

See App. 255-84 (Aug. 13, 2003 Order).

Because the last of the court-ordered bonds do not mature until 2014, 

however, the KCMSD retains substantial desegregation-related obligations even 

though it has achieved unitary status. The District had sought unitary status 

nonetheless, given the strong teachings of the federal courts, including the 

Supreme Court, that it should do so at the earliest practicable date. See, e.g., 

Jenkins, 515 U.S. at 88-89. The KCMSD had significantly reduced its educational

17



expenditures since the Supreme Court’s ruling in 1995, see id., had prudently 

managed the settlement funds received from the State, and had available through 

the State constitutional amendment permitting the maintenance of the court- 

authorized levy increase what it perceived to be a secure source of funds for the 

repayment of the court-ordered bonds.

For almost two years after the unitary status determination, the State 

protected, pursuant to Mo. Ann. Stat. § 160.415.2(5) (West 2005), the property tax 

revenues that the KCMSD needed for debt service from being transferred to 

charter schools. From FY 2000 to FY 2005, the per annum amount of such 

revenues varied from slightly less than $4 million to nearly $6 million depending 

upon the number of charter school students and the KCMSD’s debt service 

schedule on the capital improvement bonds. See App. 303. At the beginning of 

FY 2006 (July 1,2005), the total remaining debt service amounted to 

$160,431,743. App. 299.

D. The Diversion to Local Charter Schools of Funds Dedicated to 
Repayment of the KCMSD’s Court-Ordered Bonds

In 2005, through a series of state legislative and administrative actions, the 

State diverted to charter schools the per-pupil funding that had been dedicated to 

repayment of the KCMSD’s outstanding court-ordered desegregation bonds.

1. The Board of Fund Commissioners’ Determination

18



In April 2005, the State stripped DESE of its authority over the 

determinations under Mo. Ann. Stat. § 160.415.2(5) (West 2005). A newly 

enacted statutory provision authorized the State Board of Fund Commissioners 

(“Fund Commissioners”), an agency which previously had no responsibilities with 

respect to education, to determine “whether any governmental entity has sufficient 

fund balances to redeem leasehold revenue bonds obligated under a federal 

desegregation action.” Mo. Ann. Stat. § 33.315 (West 2006).5 If the Fund 

Commissioners make such a finding, the State Board of Education (“State Board”) 

“shall certify,. . .,  that no amount is needed by such governmental entity to repay 

such bonds.” Id. As a result of such a certification, the KCMSD, the only school 

district in the State with such bonds, risked losing its ability to make any 

reductions in its per-pupil payments allocated to charter schools pursuant to Mo. 

Ann. Stat. § 160.415.2(5) (West 2005).

Almost immediately after this statutory amendment was enacted, the Fund 

Commissioners met, at the request of charter school advocates, to consider whether 

the KCMSD had sufficient funds to repay its desegregation bonds. App. 304. The 

State entirely omits discussion of the questionable procedures used by the Fund 

Commissioners. Cf State Br. at 41. Although the Fund Commissioners had

5/ The Fund Commissioners include the State’s Governor, Lieutenant 
Governor, Attorney General, Auditor, Treasurer, and Commissioner of 
Administration. See Mo. Ann. Stat. § 33.300 (West 2006).

19



provided no prior written public notice to the KCMSD, they refused to schedule an 

opportunity for the District to present evidence about its fund balances and the 

relationship between the determination called for by Mo. Ann. Stat. § 33.315 

(West 2006) and the State’s obligations under the court orders in this case. App. 

304. The Fund Commissioners did, however, receive a report from the DESE 

correctly concluding that the KCMSD did not have sufficient fund balances to 

satisfy its court-ordered desegregation bond obligations. App. 304-05.

Over the dissent of Attorney General Nixon, the Fund Commissioners voted 

to “determine” that the KCMSD had sufficient fund balances. Id. at 305. Relying 

on this “determination” and ignoring the KCMSD’s protest regarding the 

implications for its ongoing desegregation obligations, the State Board certified the 

Fund Commissioners’ action. Id. The State Board then directed the KCMSD to 

discontinue its withholdings pursuant to Mo. Ann. Stat. § 160.415.2(5) (West 

2005) and to begin transferring to the charter schools those per-pupil funds 

previously dedicated to the repayment of the court-ordered desegregation bonds. 

See App. 305.

On May 10, 2005, the KCMSD brought suit in the Circuit Court of Cole 

County, contending that the proceedings before the Fund Commissioners and the 

State Board had not complied with the Missouri Administrative Procedure Act.

The District also claimed that the result of the State’s flawed process contravened

20



the federal court orders approving the 1996 Agreement and setting conditions on 

the State’s early dismissal. App. 305-06.

At a July 14, 2005 hearing, Circuit Court Judge Thomas B. Brown III stated 

that he did not have jurisdiction over any claims about the impact of the court- 

approved Agreement between the State and the KCMSD or any related federal 

court orders. Accordingly, on July 22, 2005, Judge Brown dismissed, without 

written opinion, the KCMSD’s claim against the State for violation of the federal 

court orders approving the Agreement. See App. 306.

In a subsequent order, Judge Brown denied summary judgment in part on 

counterclaims against the KCMSD raised by charter schools that had intervened in 

the action seeking reimbursement for approximately $23 million previously 

withheld by the KCMSD pursuant to Mo. Ann. Stat. § 160.415.2(5) (West 2005). 

School Dist. of Kan. City, Mo. v. Mo. Bd. of Fund Comm’rs, No. 05AC-CC00389 

(Mo. Cir. Ct. filed Sept. 13, 2005). See App. 306. At present, this state case is 

administratively closed.

2. The Amendment of the Charter Schools Act

In its opening brief, the State entirely fails to mention that, on June 29, 2005, 

shortly after the KCMSD commenced the state-court action and just months after 

the State enacted Mo. Ann. Stat. § 33.315, setting up the Fund Commissioner 

process, the state legislature revised the Charter Schools Act itself. See Sen. Bill

21



287, 93rd Gen. Assem., 2005 Mo. Legis. Serv. S.B. 287 (West). Effective July 1, 

2006, this legislation directly repealed Mo. Ann. Stat. § 160.415.2(5) (West 2005) 

and its authorization for the KCMSD to withhold from payment to charter schools 

those funds dedicated to the satisfaction of court-ordered desegregation bonds. See 

Mo. Ann. Stat. § 160.415 (West 2006). The statutory modifications effectively 

compel the transfer to the charter schools of the portion of the KCMSD local tax 

levy devoted to repaying the desegregation bonds, regardless of the outcome of the 

Cole County Circuit Court action challenging the Fund Commissioners’ 

determination and the State Board’s certification. Id; see also App. 331.

E. The Joint Movants’ Enforcement Action in Federal District Court

On February 22, 2006, Joint Movants filed an enforcement motion in federal 

district court contending that the State, through the series of actions described 

above, had flouted prior court orders approving its early dismissal from this case 

by “requiring KCMSD to use levy proceeds that are devoted to the repayment of 

the desegregation bonds to fund charter schools . . . .” App. 289. Joint Movants 

requested that the district court exercise its ancillary jurisdiction for the limited 

purpose of enjoining the State from “using any portion of the per-pupil amount 

needed for the repayment of leasehold revenue bonds obligated pursuant to this 

case for the funding of charter schools or any other purpose.” Id

22



On June 15, 2006, the motion to enforce was granted by Judge Dean 

Whipple, who had presided over the desegregation case from 1997 through the 

unitary status proceedings in 2003. See App. 329. The district court first 

recognized its jurisdiction to enforce prior orders in this case. Noting this Court’s 

“view that the State was dismissed pursuant to an order of the Court modifying an 

earlier remedy and not pursuant to an unincorporated settlement agreement,” id, at 

331-32 (citing Jenkins XIV, 122 F.3d at 605), the court concluded that “the 

dismissal of the State was granted subject to assurances of the existence of 

adequate funding for the KCMSD’s operations and the repayment of court-ordered 

desegregation bonds,” including “the $320 million in transition payments made by 

the State to KCMSD under the terms of the 1996 settlement agreement. . . and the 

availability of the entire property tax levy.” Id, at 329. Accordingly, the district 

court held that it had ancillary jurisdiction to enforce its prior orders—as well as 

prior orders of this Court—placing conditions on the early dismissal of the State. 

Id, at 331-32.

Proceeding to the merits of the claim, the court expressed “concernf] that 

requiring KCMSD to transfer these funds to the charter schools will impede its 

ability to fund its ongoing operations and continue to meet its debt service 

obligations.” Id, at 334. The district court thus held that “consistent with the 

Eighth Circuit’s opinion approving the dismissal of the State, the State must not

23



alter the financial status quo until the KCMSD has fully repaid its court-ordered 

bonds.” Id. at 335.

In reaching this conclusion, the district court recognized that this Court 

“anticipated addressing any financial issues at the time KCMSD was declared 

unitary, but that KCMSD failed to raise this issue [during the unitary status 

proceedings] in 2003.” Id. at 335. Nevertheless, the district court concluded that 

there was no need to raise this issue in 2003 because “the State had made no 

attempt to require KCMSD to transfer property tax levy funds to the charter 

schools. The Court is confident that if the State had either repealed § 160.415.2(5) 

or administratively determined levy funds should be transferred to the charter 

schools prior to the final unitary status determination, such issue[s] would have 

been raised at that time.” Id. (emphasis in original).

The State moved for reconsideration. See App. 337. In a September 11, 

2006 order, the district court granted the State’s motion in part, primarily to clarify 

that its original order did not authorize the KCMSD to withhold from the charter 

schools ah funds generated by the local property tax levy: “[T]he Court hereby 

clarifies that the scope of the remedy at issue is limited to those funds traditionally 

withheld by KCMSD under Mo. Rev. Stat. § 160.415.2(5)”; that is the amount of 

per-pupil funding still needed for the repayment of the outstanding desegregation 

bonds. App. 373. In addition, the district court reaffirmed its core ruling enjoining

24



the State from diverting the funds dedicated to the repayment of the KCMSD’s 

desegregation bonds: “Under the Settlement Agreement and previous orders of 

this Court, the Court finds that the leasehold revenue bond obligations are ‘court- 

ordered financing’ and the State has a continuing obligation to support KCMSD’s 

efforts to retire them . . . Id. at 375.

On November 21, 2006, the district court issued a second amended order 

correcting a factual error identified by Joint Movants. It clarified that the State 

must permit the KCMSD to withhold the portion of the tax levy dedicated to bond 

repayment through 2014, the current maturity date of the last of the court-ordered 

desegregation bonds. App. 377-78. The State filed a timely appeal. App. 379.

SUMMARY OF THE ARGUMENT

This enforcement action was necessary because the unusual remedial orders 

in this case resulted in bond repayment obligations on the District extending until 

2014 and because the State in 2005 began to interfere aggressively with the 

KCMSD’s performance of those court-imposed duties. In a series of orders 

approving the 1996 Agreement between the co-defendants and allowing the early 

dismissal of the State, the district court and this Court prohibited the State from 

taking any actions to interfere with the KCMSD’s ability to repay those bonds.

The State has now flouted these orders to the detriment of the Plaintiff School 

Children, Intervenor AFT Local 691, and the KCMSD. The court below,

25



therefore, properly exercised its ancillary jurisdiction to protect those orders and to 

enforce the Agreement that was fully incorporated by those orders.

This Court was prescient in expressing reservations about the early 

dismissal, over the objections of the Plaintiff School Children, of the State from 

this long-running desegregation suit prior to the KCMSD achieving unitary status. 

To protect the interests of the school children and the integrity of the previously 

ordered desegregation remedies, this Court conditioned its approval of the phase­

out of the State’s funding obligations on the continuation of the court-authorized 

tax levy increase. With the levy in place, the State’s dismissal would not have a 

detrimental impact upon the KCMSD’s ability to repay the bonds that the courts 

had required the District to issue to help finance its share of the desegregation 

remedy. In its 1999 dismissal order, the district court subsequently reiterated this 

Court’s conditions, by warning the State against taking any action that might 

prevent the KCMSD from fulfilling its remaining court-ordered obligations.

After having consistently complied with these orders for six years, the State, 

through a series of legislative and administrative actions in 2005, plainly violated 

them. The State’s actions diverted revenues dedicated to the repayment of the 

bonds to fund charter schools. The State, the district court, and this Court, 

however, all had long recognized that the primary purpose of the local property tax

26



increase in the KCMSD was to provide funding for repayment of the court-ordered 

bonds.

The doctrine of ancillary jurisdiction empowers a federal court to prevent its 

mandates from being blatantly violated in this manner. The fact that the State’s 

early dismissal was precipitated by its Agreement with the KCMSD in no way bars 

the federal courts from exercising ancillary jurisdiction to enforce the terms of 

their own orders. Moreover, that Agreement itself was fully incorporated in the 

orders of the district court as a modification of its prior remedial orders and it was 

approved by this Court as such.

Nor is federal-court jurisdiction to enforce those conditions limited in any 

way by the district court’s determination in 2003 that the KCMSD had achieved 

unitary status. It was well-understood in the unitary status proceedings that the 

KCMSD’s court-ordered bond obligations would persist through 2014. Hence, the 

unitary status determination did nothing to alter the State’s obligation not to 

impede the District’s repayment of those bonds.

STANDARD OF REVIEW

The State is correct that that this Court reviews de novo a district court’s 

ruling that it has ancillary jurisdiction to enforce its prior orders. See State Br. at 

48; Myers v. Richland County, 429 F.3d 740, 745 (8th Cir. 2005).

27



The State is wrong, however, that the district court’s decision to grant Joint 

Movants’ enforcement motion is subject to de novo review. Cf State Br. at 48. 

While it is true that this Court reviews de novo a district court’s interpretation of a 

settlement agreement, the Agreement between the co-defendants should not be 

viewed as a “settlement” because the Plaintiff School Children never entered into 

or approved it. Instead, the Agreement was adopted and the State was dismissed 

pursuant to a series of orders modifying earlier remedial decrees over the 

Plaintiffs’ strenuous objections, not pursuant to a settlement to which all the parties 

consented. The district court’s decision to enforce those orders is under review 

here. See App. 331-32, 376-78.

Where, as here, an appellate court reviews a district court’s interpretation of 

its own prior orders, an abuse-of-discretion standard is applied. See, e.g., In re 

Dial Bus. Forms, Inc., 341 F.3d 738, 743 (8th Cir. 2003); Steahr v. Apfel, 151 F.3d 

1124, 1126 (8th Cir. 1998); see also Nebula Glass Int’l Inc, v. Reichhold, Inc., 454

F.3d 1203, 1211 (11th Cir. 2006) (“When a district court interprets its own order, 

we are obliged to review that interpretation for abuse of discretion and accord its 

interpretation deference so long as its reasonable.”); JTH Tax, Inc, v. H&R Block 

E. Tax Servs., Inc.. 359 F.3d 699, 706 (4th Cir. 2004) (“[T]o sustain appellate 

review, district courts need only adopt a reasonable construction of the terms 

contained in their orders.”); Michigan v. City of Allen Park. 954 F.2d 1201, 1213

28



(6th Cir. 1992) (“[A]n appellate court should accord deference to a district court’s 

construction of its own earlier orders, if that construction is reasonable.”).

Notwithstanding the State’s contention to the contrary, the standard of 

review for modifications to settlement agreements is completely inapplicable here. 

Cf. State Br. at 48. First, the district court did not modify anything; rather, it 

simply interpreted its prior orders—and orders of this Court—and found the State’s 

actions to be in violation of those orders. Second, to the extent that this Court 

views the district court’s order as effectuating any sort of modification, that 

modification was to prior court orders—not the 1996 Agreement; thus, it is subject 

to review under an abuse-of-discretion standard. See Jenkins XIV, 122 F.3d at 

600-01 (abuse-of-discretion standard applies when reviewing district court’s 

decision to incorporate 1996 Agreement as a modification of its earlier orders); see 

also Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 451 F.3d 528, 531 (8th Cir. 

2006) (reviewing consent decree modification for abuse of discretion).

Finally, the district court’s conclusion that the State’s recent actions 

amounted to violations of its prior orders relies, in part, on its factual findings. 

Those findings should be reviewed for clear error. See Little Rock Sch. Dist. v. N. 

Little Rock Sch. Dist.. 109F.3d514, 516 (8th Cir. 1997).

29



ARGUMENT

I. THE DISTRICT COURT HAD ANCILLARY JURISDICTION TO
ENFORCE PRIOR ORDERS IN THIS CASE.

The district court had ancillary jurisdiction to prevent the State from 

deliberately flouting prior orders in this case approving the Agreement between the 

defendants and setting forth additional conditions upon the State’s early dismissal. 

See Kokkonen v. Guardian Life Ins. Co. of Am.. 511 U.S. 375 (1994). Among 

those conditions contained in the Agreement and imposed by the courts—none of 

which were ever contested by the State prior to 2005—were the following: (1) the 

State’s obligation to support the levy increase would persist, not only through the 

unitary status hearing but so long as the court-ordered bonds remained outstanding; 

(2) the KCMSD would be free to manage as it saw fit the $320 million in transition 

funds that it received from the State pursuant to the 1996 Agreement; and (3) the 

State would not interfere with the KCMSD’s performance of its remaining 

desegregation obligations, including repayment of the bonds. See Jenkins XIV,

122 F.3d at 601-05; Jenkins XV. 158 F.3d at 985-86; App. 208-10 (Jan. 28, 1999 

Order at 5-7); Jenkins, 959 F. Supp. at 1172; App. 56-66 (1996 Agreement).

A. The district court properly exercised ancillary jurisdiction to
enforce its prior orders and orders of this Court that themselves 
imposed conditions on the State’s early dismissal from this school 
desegregation case.

30



In granting Joint Movants’ enforcement motion, the district court properly 

invoked its ancillary jurisdiction to “vindicate its authority, and effectuate its 

decrees.” Kokkonen, 511 U.S. at 379-80 (emphasis added). The district court was 

enforcing both the terms of the Agreement, as fully incorporated in its orders, and 

also the other court-mandated conditions upon the State’s dismissal. See App. 378 

(“Under the Settlement Agreement and previous orders of this Court, the Court 

finds that the leasehold revenue bond obligations are ‘court-ordered financing’ and 

the State has a continuing obligation to support KCMSD’s efforts to retire them 

within their respective initial maturation dates.”) (emphasis added).

As the Supreme Court has explained, such use of ancillary jurisdiction to 

enforce prior court orders is critical to the proper functioning of the federal 

judiciary: “Without jurisdiction to enforce a judgment entered by a federal court, 

‘the judicial power would be incomplete and entirely inadequate to the purposes 

for which it is conferred by the Constitution.’ ” Peacock v. Thomas, 516 U.S. 349, 

356 (1996) (quoting Riggs v. Johnson County. 73 U.S. 166, 187 (1867)). Thus, 

“[i]t is well settled that a federal district court can exercise ancillary jurisdiction 

over a second action in order ‘to secure or preserve the fruits and advantages of a 

judgment or decree rendered’ by that court in a prior action.” Royal Ins. Co. of 

Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1292 (5th Cir. 1992) (quoting 

Southmark Props, v. Charles House Core., 742 F.2d 862, 868 (5th Cir. 1984)

31



(quoting Local Loan Co. v. Hunt. 292 U.S. 234, 239 (1934)); cf Christina A. ex 

rel. Jennifer v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) (consent decree is 

“enforceable through the supervising court’s exercise of its contempt powers” 

rather than “through a new action for breach of contract”) (internal quotation 

marks and citation omitted); Roberson v. Giuliani. 346 F.3d 75, 80 (2d Cir. 2003) 

(“courts have inherent power to enforce the terms” of a consent decree).

By exercising ancillary jurisdiction here to grant Joint Movants’ 

enforcement motion, the district court sought to preserve and defend not only its 

own judicial authority but that of this Court as well. See App. 331-32. When this 

Court considered whether to uphold the district court’s order approving the State’s 

early dismissal subject to the terms of the 1996 Agreement, its key concern was to 

clarify that the State’s early dismissal would not undermine the long-term financial 

viability of the KCMSD. See Jenkins XIV, 122 F.3d at 603 (“Sufficient funding is 

absolutely essential to the school district’s continued viability.”). This Court 

recognized that the District’s unusual and substantial court-imposed financial 

obligations would certainly persist after the State’s dismissal and could extend 

even beyond a declaration of unitary status for the KCMSD itself. See id. at 601-

03.

For this reason, as the district court here properly recognized in granting 

Joint Movants’ enforcement motion, “[dismissal of the State was ultimately

32



approved only after the Court of Appeals was confident that the financial 

conditions in place at the time of the dismissal would provide adequate funding for 

KCMSD after the State was dismissed from the case.” App. 333. In this Court’s 

view, a state constitutional amendment, permitting the KCMSD to set a levy one 

cent below the court-authorized rate, effectively ensured that the District would 

have “authority to maintain that part of the levy which has heretofore been devoted 

to retire its indebtedness.” Jenkins XV, 158 F.3d at 986 (citing amendment to Mo. 

Const, art. 10, § 11(g)). Nevertheless, this Court also explicitly warned that the 

State’s early dismissal would not preclude “aggrieved parties” from “seeking] 

appropriate relief’ if circumstances arose that deprived the KCMSD of its ability to 

use its local property tax levy to raise “sufficient funding to cover retirement of the 

bonds or other obligations.” Id.; see also Jenkins XIV, 122 F.3d at 603 (“loss of 

the level of funding under the current levy would be catastrophic” for the KCMSD 

and “would present a changed circumstance that could call for reconsideration of 

the agreement”). After reviewing these orders, the district court here properly 

recognized that this Court’s approval of the State’s dismissal was “conditional 

upon the existence and maintenance of the property tax levy.” App. 332; see also 

App. 377.

The State boldly attempts to dismiss as dicta all statements—including those 

of this Court—regarding its dismissal unless those statements were included in the

33



district court’s initial order approving the Agreement, see Jenkins, 959 F. Supp. at 

1172, or the district court’s subsequent order granting the State’s early dismissal, 

see App. 208 (Jan. 28, 1999 Order at 5). See State Br. at 58. Yet, it is a 

fundamental premise of a tiered judicial system that where, as here, an appellate 

court clarifies or modifies a district court’s determination in the course of affirming 

it, the appellate court’s decision, not the district court’s, controls. Cfi Gacv v. 

Welbom, 994 F.2d 305, 310 (7th Cir. 1993). Moreover, as the conditions set forth 

in these orders were reiterated by this Court and relied upon by Joint Movants, they 

have been enshrined as law of this case. See Little Earth of the United Tribes, Inc, 

v. United States Dep’t of Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir.

1986) (law of case doctrine “protects] the settled expectations of parties, ensur[es] 

uniformity of decisions, and promotes] judicial efficiency”); accord First Union 

Nat’l Bank v. Pictet Overseas Trust Corp., 477 F.3d 616 (8th Cir. 2007).

In any event, the entire premise of the State’s dicta argument is flawed, see 

State Br. at 58, because the district court’s 1999 dismissal order reiterated the very 

same conditions that this Court had placed upon the State in its earlier orders, see 

App. 208-09. In rejecting the Plaintiff School Children’s anxieties about “future 

funding,” the district court reiterated this Court’s understanding that concerns 

about the KCMSD’s financial viability had been “addressed and eliminated” by the 

Missouri voters’ approval of a constitutional amendment securing all but one cent

34



of the levy rate. Id. at 208. Nevertheless, the district court, like this Court, also 

expressly cautioned the State that “it should be warned by its twenty-one year 

involvement in this case against taking any actions which might prevent the 

KCMSD from ultimately fulfilling its court-ordered remedial goals.” Id. at 209; 

see also Jenkins. 216 F.3d at 722 (acknowledging conditions set forth in the district 

court’s dismissal order).

In sum, the district court was well within its authority under the doctrine of 

ancillary jurisdiction to enforce the terms of the State’s early dismissal set forth in 

the text of its prior orders, as well as the prior orders of this Court.

B. The district court also had ancillary jurisdiction to enforce 
provisions of the 1996 Agreement between the State and the 
KCMSD because those terms were fully incorporated into the 
district court’s orders as a modification of its earlier remedial 
decrees.

The State assumes that the district court here was solely enforcing the terms 

of the 1996 Agreement between the co-defendants. See State Br. at 46, 52. As 

discussed in the preceding section, this contention is not true. Even if this 

mistaken assumption were correct, however, it would be of no moment: The 

district court also had jurisdiction to enforce the provisions of the 1996 Agreement 

(in addition to the other conditions directly established by its prior orders and 

orders of this Court) because it expressly adopted the Agreement as a modification

35



of its prior remedial orders. See Jenkins, 959 F. Supp. at 1172; see also Jenkins 

XIV, 122 F.3d at 604-05.

In granting Joint Movants’ enforcement motion, the district court correctly 

concluded that the State was dismissed “pursuant to an order of the Court 

modifying an earlier remedy and not pursuant to an unincorporated settlement 

agreement.” App. 331-32 (citing Jenkins XIV, 122 F.3d at 605). This is precisely 

the type of remedial order over which ancillary jurisdiction exists under Kokkonen, 

511 U.S. 375, and its progeny. While the Supreme Court concluded that ancillary 

jurisdiction was lacking under the circumstances at issue in Kokkonen, it went out 

of its way to explain:

The situation would be quite different if the parties’ obligation to comply 
with the terms of the settlement agreement had been made part of the order 
of dismissal—either by separate provision (such as a provision “retaining 
jurisdiction” over the settlement agreement) or by incorporating the terms of 
the settlement in the order. In that event, a breach of the agreement would 
be a violation of the order, and ancillary jurisdiction to enforce the 
agreement would therefore exist.

Id. at 381. Relying on Kokkonen, this Court and other Courts of Appeal have held 

that a district court has ancillary jurisdiction to enforce the terms of a settlement 

agreement that were incorporated in a dismissal order. See Gilbert v. Monsanto 

Co., 216 F.3d 695, 699-700 (8th Cir. 2000) (upholding ancillary jurisdiction 

because settlement agreement was incorporated in dismissal order); see also 

Schaefer Fan Co. v. J & D Mfg„ 265 F.3d 1282, 1286-87 (Fed. Cir. 2001) (same);

36



McAlpin v. Lexington 76 Auto Truck Stop, Inc.. 229 F.3d 491,501-02 (6th Cir. 

2000) (same); DiMucci v. DiMucci, 91 F.3d 845, 847 (7th Cir. 1996) (same).

Thus, even if the district court had been enforcing only the terms of the 1996 

Agreement, its exercise of ancillary jurisdiction would have been entirely proper 

because the Agreement unquestionably was incorporated in the court’s orders. 

Indeed, the Agreement would have been utterly ineffective if it had not been 

incorporated by the district court—with approval from this Court—as a 

modification of earlier remedial decrees. Because the Plaintiffs objected to the 

Agreement, the State could not have been dismissed from this case without both 

the district court and this Court adopting the Agreement and ordering compliance 

with its terms. See Jenkins XIV, 122 F.3d at 604. At the time they executed the 

Agreement, the State and the KCMSD recognized that, if the Plaintiffs and/or 

Intervenor AFT Local 691 objected, they would have to persuade the district court 

to use its equitable powers to modify its earlier remedial decrees to incorporate the 

Agreement’s terms. See App. 61 (1996 Agreement at 6).

That is exactly what the district court did in approving the Agreement as a 

modification of its orders. See Jenkins, 959 F. Supp. at 1172. After probing 

deeply into the implications of the Agreement in terms of the long, contentious 

history of the case and the impact it might have upon the parties once active court 

supervision ended, the district court concluded that “[ejquity requires a

37



modification of the earlier remedy prescribed by this Court.” Id.; see also Jenkins 

XIV, 122 F.3d at 600 (noting district court’s “broad equitable authority . . .  to 

modify the remedy [in a desegregation case] as it deems necessary”).

The district court’s “modification of the earlier remedy,” Jenkins, 959 F. 

Supp. at 1172, entered after considering and rejecting the Plaintiffs’ objections to 

it, establishes that the Agreement was incorporated into the court’s orders. Cf. 

Schaefer Fan, 265 F.3d at 1287 (“district court need not use explicit language or 

any magic form of words to effect a valid incorporation”) (internal quotation marks 

and citation omitted).

This Court’s order affirming the district court’s approval of the Agreement

removed any doubt that the district court incorporated its terms. In rejecting the

Plaintiffs’ objections, this Court stated:

The Class analogizes the agreement to a contract and contends that it cannot 
be bound by a contract to which it is not a party. Regardless of the 
agreement, the district court’s order is not akin to a contract. The Class 
presented objections to the district court, those objections were overruled, 
and the Class is now bound by that order to the same extent as any other 
court order in this case.

Jenkins XIV, 122 F.3d at 604 n. 11; see also Jenkins, 965 F. Supp. at 1302 n. 11

(“Calling this agreement a ‘settlement agreement’ is somewhat misleading . . . .

Properly understood, the approval of the agreement was a court-determination to

release the State from liability over the objections of the Plaintiffs—it was not a

consensual settlement agreement.”). Thus, this Court, as well as the district court,
38



certainly provided, as required under Kokkonen and its progeny, a “clear indication 

that [the Agreement] must be complied with pursuant to the order itself, as 

opposed to the principles of contractual obligation.” Smyth ex rel. Smyth v. 

Rivero, 282 F.3d 268, 284 (4th Cir. 2002).6

The circumstances here, therefore, are easily distinguishable from those in 

Kokkonen and the other cases cited by the State in which a court’s entry of a 

stipulated dismissal order after merely reviewing, acknowledging, and approving 

of a settlement agreement was deemed insufficient to confer ancillary jurisdiction. 

See 511 U.S. at 381 (“The judge’s mere awareness and approval of the terms of the 

settlement agreement do not suffice to make them part of his order.”); see also 

State Br. at 53-55 (citing Hayden & Assocs., Inc, v. ATY Bldg. Sys., Inc., 289 

F.3d 530, 532-33 (8th Cir. 2002); In re Phar-Mor, Inc. Sec. Litig., 172 F.3d 270, 

274-75 (3d Cir. 1999); Scelsa v. City Univ. of N.Y.. 76 F.3d 37, 41 (2d Cir. 1996); 

Meiner ex rel. Meiner v. Mo. Dep’t of Mental Health, 62 F.3d 1126, 1127-28 (8th

6 Moreover, in affirming the district court, this Court went far beyond “mere 
awareness and approval of the terms” of the Agreement. Kokkonen, 511 U.S. at 
381. It devoted as much, if not more, scrutiny to these terms than the district court 
did, because it found them “greatly troubling,” Jenkins XIV, 122 F.3d at 601, 
especially in light of its “question” regarding “whether the State has demonstrated 
a good-faith commitment to the whole of the court’s decree,” id. at 597 (internal 
quotation marks and citation omitted); see also Jenkins, 965 F. Supp. at 1305 
(noting this Court’s suggestions “that the State’s over-litigious record may have 
been in bad faith and may have causally contributed, to the remaining disparities in 
the school district”).

39



Cir. 1995); Lucille v. City of Chicago, 31 F.3d 546, 548 (7th Cir. 1994)). The 

Plaintiffs’ objections to the Agreement also render irrelevant the State’s discussion 

of desegregation suits and other cases involving the ramifications of fully 

consensual contractual settlements among all of the parties. Cf State Br. at 53 

n.14 & 57 (citing, e.g., Knight v. Pulaski County Special Sch. Dist., 112 F.3d 953 

(8th Cir. 1997)).

It is thus the State, not the district court, that engages in an overly 

“expansive reading,” State Br. at 52, of the Supreme Court’s teachings in 

Kokkonen, 511 U.S. at 379-81, regarding the enforcement of dismissal-producing 

settlement agreements. In Kokkonen, an insurance company removed to federal 

court, on the basis of diversity jurisdiction, a suit solely involving state-law claims 

and counter-claims. IcL at 376. After closing argument, but before the district 

court instructed the jury, the parties settled and, pursuant to Fed. R. Civ. P.

41 (a)( 1 )(ii), executed a stipulation and order dismissing all claims with prejudice. 

Neither referred to the settlement or reserved jurisdiction to enforce the settlement. 

Kokkonen, 511 U.S. at 376-77. Without further comment, the judge signed the 

stipulation and dismissal order. Id at 377. A month later, the parties disagreed 

over their obligations under the settlement, and the insurance company filed an 

enforcement motion. Id Concluding that ancillary jurisdiction was lacking, the 

Supreme Court reasoned: “the only order here was that the suit be dismissed, a

40



disposition that is in no way flouted or imperiled by the alleged breach of the 

settlement agreement.” Id. at 380. The facts surrounding the extensive review and 

reluctant incorporation of the unusual Agreement in this case as part of the courts’ 

remedial orders could hardly be more different.7

That Agreement, as properly construed by the district court here, itself 

required the State to support “court-ordered financing,” including, in particular, the 

property tax levy increase used to repay the bonds. See App. 61, 377-78. The 

Agreement also prohibited the State from infringing upon the KCMSD’s ability to 

use the $320 million in transfer payments as it saw fit. See App. 60, 334-35. The 

district court thus had ancillary jurisdiction to enforce all of the conditions set forth 

in prior court orders, including these fully incorporated terms of the 1996 

Agreement.

7 The distinction between this case and Kokkonen also is reflected in the 
different provisions of the Federal Rules that formed the basis for the respective 
dismissal orders. Kokkonen dealt with a stipulated dismissal pursuant to Fed. R. 
Civ. P. 41 (a)( 1 )(ii) before a judgment had been reached. See 511 U.S. at 381 -82; 
see also Hester Indus., Inc, v. Tyson Foods, Inc., 160 F.3d 911, 913 (2d Cir. 1998) 
(discussing operation of Rule 41). In this case, the State requested—and the 
district court granted—dismissal pursuant to Fed. R. Civ. P. 60(b)(5). See App. 
204, 208. This rule permits a court to provide relief from judgment by modifying 
or vacating a prior order. Use of this rule was required because, unlike in 
Kokkonen, the KCMSD and the State did not reach an agreement until after the 
district court found them jointly and severally liable and subjected them to a 
comprehensive remedial decree. See Jenkins, 959 F. Supp. at 1172. This 
distinction is significant because Rule 60(b)(5) relief requires substantially more 
intense judicial scrutiny than a Rule 41(a)(1)(h) dismissal.

41



C. The district court’s determination that the KCMSD had achieved 
unitary status did nothing to alter the enforceability of the court- 
mandated conditions placed on the State’s early dismissal from 
this case.

The 2003 declaration that the KCMSD had achieved unitary status had no 

effect on prior orders of the district court and this Court imposing conditions on the 

State’s early dismissal. Those orders obligated the State, even after its dismissal, 

not to “tak[e] any actions which might prevent the KCMSD from ultimately 

fulfilling its court-ordered” responsibilities. App. 209 (Jan. 28, 1999 Order at 6). 

The fulfillment of those obligations was contingent upon the repayment of the 

KCMSD’s desegregation bonds, which will not occur until 2014. See App. 377. 

Because those prior orders were the basis for the district court’s decision here to 

grant Joint Movants’ enforcement motion, there is no merit to the State’s claim that 

the KCMSD’s achievement of unitary status deprived the court of ancillary 

jurisdiction.

First, the State’s principal argument—that the 2003 unitary status 

determination deprived the district court of jurisdiction to impose additional 

remedial obligations on the State—is simply a red herring. See State Br. at 10, 46, 

49-51. Joint Movants never asked the district court to impose any new 

responsibilities on the State. Rather, they asked the court to enforce its prior orders 

and those of this Court. See App. 326. The KCMSD originally was, and still is,

42



satisfied with all of the terms of the “deal” by which the State obtained early 

dismissal from this case.

Thus, the State cannot rely on cases rejecting attempts to impose new 

obligations after a school district has been declared unitary and final judgment has 

been entered. Cf Riddick ex rel. Riddick v. Sch. Bd. of City of Norfolk, 784 F.2d 

521, 538-39 (4th Cir. 1986); State Br. at 50. They simply do not apply. As even 

the State acknowledges, Judge Whipple had previously denied a request in 1999 to 

impose additional remedies, cf State Br. at 35-39 (citing Jenkins, 73 F. Supp. 2d at 

1060-79), and he disavowed any intention to do so here. App. 332. Indeed, in the 

order under review, Judge Whipple expressly distinguished the 1999 proceedings 

on the ground that “the moving parties sought to expose the State to additional 

claims or liabilities rather than enforce existing obligations created by prior 

orders.” Id.

Second, there is nothing talismanic about the “unitary status” procedures 

through which courts effectuate a return to local control in a desegregation case 

once the “ ‘vestiges of past discrimination ha[ve] been eliminated to the extent 

practicable.’ ” Freeman v. Pitts, 503 U.S. 467, 492 (1992) (quoting Board of Educ. 

of Okla. City Pub. Schs. v. Dowell, 498 U.S. 237, 250 (1991)). Indeed, as the 

Supreme Court has emphasized, “[t]he term ‘unitary’ does not confine the

43



discretion and authority of the District Court in a way that departs from traditional 

equitable principles.” See id. at 487.

Fundamentally, unitary status proceedings are geared towards delineating 

“ ‘a rather precise statement of [adjudicated constitutional violators’] obligations 

under a desegregation decree.’ ” Jenkins, 515 U.S. at 101 (quoting Dowell, 498 

U.S. at 246). Here, the State requested and received a rather precise statement of 

its post-dismissal obligations in 1999. By orders of this Court and the district 

court, those obligations were tied to the final repayment of the desegregation 

bonds, not to the KCMSD’s declaration of unitary status. See Jenkins XV, 158 

F.3d at 986; Jenkins XIV, 122 F.3d at 601-05; App. 208-210.

While the district court did relinquish its jurisdiction to impose additional 

obligations on the District in 2003 (and the State in 1999), it did not eliminate the 

conditions placed on the State at the time of its dismissal. These obligations 

persisted for a simple reason: The district court’s unitary status determination 

preceded the KCMSD’s complete repayment of its court-ordered bonds. In this 

respect, the unitary status proceedings in Kansas City were unique. In the typical 

desegregation case, unitary status conclusively resolves all remaining 

desegregation obligations. Cf. State Br. at 50 (citing United States v. Overton, 834 

F.2d 1171, 1174 (5th Cir. 1987); Riddick ex rel. Riddick v. Sch. Bd. of City of 

Norfolk, 784 F.2d 521, 535 (4th Cir. 1986); Spangler v. Pasadena City Bd. of

44



Educ., 611 F.2d 1239, 1241-42 (9th Cir. 1979)). Here, by contrast, the district 

court, this Court, and all of the parties recognized that the last of the court-ordered 

bonds would not mature until well after the unitary status determination. This 

unusual situation was the result of the extensive scope of the violation in this case, 

the systemic capital improvements ordered by the district court and this Court, and 

the courts’ insistence that the State not bear the entire financial burden for these 

remedial measures. See supra at 32-35.

It would be a bizarre result if the law required a school district such as 

KCMSD to remain under active court supervision after the vestiges of 

unconstitutional discrimination had been fully remedied simply to ensure that its 

co-defendant State would not be able to willfully disregard prior agreements and 

court orders. It would be equally bizarre for the State’s legal obligations to be 

eliminated by KCMSD’s unitary status declaration in 2003, in which the State 

played no role as a party. Just as the District could not renege on its obligations to 

repay the court-ordered bonds after the unitary status determination, the State did 

not gain license to seize for another purpose those revenues that all parties, the 

district court, and this Court recognized were dedicated to the repayment of the 

bonds. See Jenkins, 158 F.3d at 986; Jenkins XIV, 122 F.3d at 603; Jenkins II, 855 

F.2d at 1309; App. 208-09; cf, North Carolina State Bd. of Educ. v. Swann, 402 

U.S. 43, 45 (1971) (“[I]f a state-imposed limitation on a school authority’s

45



discretion operates to inhibit or obstruct the operation of a unitary school system or 

impede the disestablishing of a dual school system, it must fall; state policy must 

give way when it operates to hinder vindication of federal constitutional 

guarantees.”).

Moreover, as the district court recognized in the order under review, the 

Joint Movants’ failure to anticipate the State’s future violation of court orders in 

this case and address that issue at the unitary status hearing should not bar 

consideration of this enforcement action. See App. 335, 377-78; cf, State Br. at 

43-45. Prior to the district court’s determination that the KCMSD was unitary in 

2003, the State had made no efforts to divert to the charter schools the per-pupil 

amounts of the KCMSD’s funding necessary to repay the bonds, including the 

$4.95 levy. To the contrary, the State had embedded in state law its recognition of 

its court-ordered obligation not to interfere with the repayment of the KCMSD’s 

desegregation bonds. See Mo. Ann. Stat. § 160.415.2(5) (West 2005). It was not 

until 2005 that the ad hoc determination of the Board of Fund Commissioners and 

the certification of the State Board improperly overrode § 160.415.2(5) and the 

State subsequently repealed that provision. See App. 303-05; Sen. Bill 287, 93rd 

Gen. Assem., 2005 Mo. Legis. Serv. S.B. 287 (West). Only then was the KCMSD 

deprived of funds necessary for debt service on the desegregation bonds.

46



The State now effectively asks this Court to endorse a violation of its prior

orders simply because the State waited until after the KCMSD also was dismissed

from the case to violate the terms of its early dismissal and the Agreement

incorporated in the orders of the district court and this Court. The federal courts’

ancillary jurisdiction exists, however, precisely to defeat the efforts of those who

wait until the courts are supposedly off the scene before reneging on judicially

mandated obligations. C f Young v. United States ex rel. Vuitton et Fils S.A., 481

U.S. 787, 796 (1987) (“If a party can make himself a judge of the validity of orders

which have been issued, and by his own act of disobedience set them aside, then

are the courts impotent, and what the Constitution fittingly calls the judicial power

of the United States would be a mere mockery.”) (internal quotation marks and

citation omitted). The court below thus properly exercised such jurisdiction.

II. THE DISTRICT COURT CORRECTLY INTERPRETED ITS PRIOR 
ORDERS—AS WELL AS PRIOR ORDERS OF THIS COURT—TO 
PROTECT FROM THE STATE’S USE THE FUNDS DEDICATED 
TO THE REPAYMENT OF BONDS THAT THE KCMSD WAS 
COMPELLED BY COURT ORDER TO ISSUE.

The district court correctly concluded that the State, through a series of

legislative and administrative actions in 2005, violated prior orders in this case by

impeding the KCMSD’s ability to fulfill its remaining debt-service obligations on

court-ordered desegregation bonds without a diminution in its educational

program. See App. 333-36, 378-78. As the district judge who has overseen this

47



case since 1997, approved the early dismissal of the State in 1999, and presided 

over unitary status hearings through 2003, Judge Whipple has significant 

familiarity with this long-running desegregation suit. Hence, his interpretation of 

prior orders—especially those that he issued—deserves substantial deference. See 

Jenkins XIV, 122 F.3d at 600-01; Little Rock Sch. Dist., 451 F.3d at 531; see also 

supra at 27-29.

The Joint Movants recognize that the scope of the desegregation remedies 

that the district court originally ordered and that this Court approved were 

subsequently criticized, see, e.g., Jenkins, 515 U.S. at 78-79, and scaled back, see, 

e.g., Jenkins XIV, 122 F.3d at 596-600. Nevertheless, the KCMSD remains 

obligated, as this Court has recognized, see Jenkins XV, 158 F.3d at 986, to repay 

the bonds that it was “directed” to issue in order to fund capital improvements that 

were long ago completed, Jenkins, 672 F. Supp. at 413. Moreover, it became clear 

to the district court, this Court, and even the Supreme Court, that the only way for 

the KCMSD to come up with the financing to pay the debt service on those bonds 

without undermining the quality of its educational services was through a property 

tax levy increase. See Jenkins II, 855 F.2d at 1309, 1313-15; see also Jenkins XV, 

158 F.3d at 986 (“The documents authorizing the issuance of the bonds have 

declared the intention to satisfy the obligation to make payments out of the . . . 

additional property taxes that were made possible through the procedure suggested

48



by this court and approved by the Supreme Court, namely that the school board 

was authorized to set a levy necessary to fund the operation of the school district, 

including desegregation funding . . .

When the State’s early dismissal was under consideration, the parties well 

understood that the KCMSD’s continuing ability to fund its desegregation 

obligations was dependent upon the lump-sum payments pursuant to the 

Agreement as well as the KCMSD’s ability to set the local property tax levy 

sufficiently high to permit payments on the debt service and maintenance of an 

adequate level of educational services. See Jenkins, 959 F. Supp. at 1154. And 

notwithstanding the district court’s hypothetical speculations about the District’s 

finances after it achieved unitary status, see id. at 1168-79; State Br. at 47, 60, this 

Court clarified that “maintaining] the levy at its present level” would be critical 

even “after the KCMSD is no longer under court supervision.” Jenkins XIV, 122 

F.3d at 603. Thus, as the district court recognized in granting Joint Movants’ 

enforcement motion, the “the dismissal of the State was granted subject to 

assurances of the existence of adequate funding for KCMSD’s operations and the 

repayment of court-ordered desegregation bonds,” including “the $320 million in 

transition payments made by the State to KCMSD under the terms of the 1996 

settlement agreement. . . and the availability of the entire property tax levy.” App. 

329; see also Jenkins XIV, 122 F.3d at 603; Jenkins XV, 158 F.3d at 986.

49



While the State now claims to the contrary, see State Br. at 59-61, it has long 

been well aware that its early dismissal, as approved by the district court and this 

Court, was subject to these conditions, particularly its duty not to interfere with the 

KCMSD’s ability to repay its Court-ordered bonds. The State expressly 

acknowledged that revenues devoted to the repayment of desegregation bonds 

were off-limits to the charter schools even after it chose to fund them through the 

diversion of federal, state, and local education funding, including revenue from 

local tax levies. See Mo. Ann. Stat. § 160.415.2(5) (West 2005).

The State’s contrary actions in 2005 “flouted” the district court’s and this 

Court’s mandates and violated its Agreement with the District. Kokkonen, 511 

U.S. at 380. The Fund Commissioners’ determination in 2005 was opposed by the 

State actors with the most familiarity with this case: the Attorney General, whose 

office had represented all of the State parties in this case for over 25 years, and the 

DESE, which is headed by the Commissioner of Education, a named defendant.

See App. 304-05. The State legislature’s subsequent enactment of Senate Bill 287 

demonstrated both the State’s concern that the unusual proceedings before the 

Fund Commissioners might not withstand judicial scrutiny and the intensity of its 

desire to deprive the KCMSD of this revenue. See Sen. Bill 287, 93rd Gen.

Assem., 2005 Mo. Legis. Serv. S.B. 287 (West).

50



The State’s actions were particularly flagrant considering that the express 

purpose of the orders directing the KCMSD to issue the bonds was to reduce the 

State’s financial burden for the desegregation remedy. See Jenkins, 672 F. Supp. 

at 411. This Court insisted that the desegregation remedy must be “fully funded.” 

See, e.g., Jenkins II, 855 F.2d at 1316. In light of that requirement, as well as this 

Court’s affirmance of the district court’s finding that the State and the KCSMD 

were “jointly and severally liable,” kb at 1301 n.4, it was clear to all parties— 

especially the State—that any monetary obligations that the KCSMD was unable to 

meet would have fallen solely upon the jointly and severally liable State. See, e.g., 

Jenkins, 495 U.S. at 53-54. The increase in the local property tax rate and the 

issuance of revenue bonds backed by that levy increase were ordered to enable the 

KCMSD to pay its share of funding for the capital improvements, rather than 

having the District shift the full payment obligation to the State. See Jenkins II,

855 F.2d at 1309. Moreover, the KCMSD subsequently ensured economies in the 

cost of the repayment for the remedy by periodically refinancing the bonds to 

obtain more favorable rates. This refinancing permitted the KCMSD to operate in 

a fiscally responsible manner and pay a larger portion of the remedial costs than 

would otherwise have been possible. See App. 299.

If the State is permitted to require the KCMSD to divert these moneys to the 

charter schools, the District would be left with a substantial shortfall in the revenue

51



stream that it previously used to fulfill its debt service obligations. To cover this 

shortfall, the KCMSD would be left with little choice but to deplete its reserves. 

Indeed, the State fully acknowledges that its recent actions will have this effect— 

under Mo. Ann. Stat. § 33.315, the very test for whether the KCMSD must pay 

part of its debt service money to the charter schools hinges upon whether it has 

sufficient reserve funds.

These reserves exist, however, only because the KCMSD invested a portion 

of the $320 million in transfer payments that it received from the State pursuant to 

the court-approved Agreement. The 1996 Agreement between the State and the 

KCMSD specifically contemplated that the District would “set aside a portion of 

the funds being provided by the State for use in years subsequent to fiscal year 

1999.” App. 60. That is precisely what the KCMSD did. Thus, the State is 

attempting to reclaim indirectly substantial portions of the funds that it transferred 

to the KCMSD in order to secure its early dismissal from the case.

The District certainly would not have agreed to the dismissal of the State 

based on its payment of $320 million if the State had retained the right to divert 

millions of dollars in the KCMSD’s own local property tax levy revenues from 

repayment of the desegregation bonds to the support of charter schools (or any 

other State designated purpose). More importantly, neither this Court nor the 

district court would have approved such a preposterous agreement over the

52



objections of the Plaintiff School Children. Thus, as the district court here 

recognized, implicit in the 1996 Agreement itself was the parties’ expectation that 

the State would not take the funds back to use for purposes other than the 

education of KCMSD students. See App. 334 (“Clearly, the State may not require 

KCMSD to transfer funds to the charter schools that were part of the payments 

made pursuant to the 1996 Settlement Agreement.”); c f State Br. at 60-61, 66.

It is crucial that this Court understand that charter schools have no obligation 

to pay the debt service on the bonds, nor have they done so. The amount of debt 

service that the KCMSD must pay each year does not fluctuate as the enrollment 

changes in District schools. Thus, the KCMSD’s court-ordered obligations will 

not be reduced by even so much as a nickel because a child who lives in the 

District goes to a charter school. Cf State Br. at 37-38. Simply put, the charter 

schools are not entitled to receive levy funds for debt repayment because they are 

not under any obligation to make payments towards the debt service on the bonds. 

The State is free, of course, to provide additional funding for charter schools itself 

through any means it chooses. It is not free, however, to raid the KCMSD’s levy 

proceeds dedicated to the desegregation bonds, or the settlement funds provided in 

this case.

To be clear, since the payment of the $320 million pursuant to the court- 

approved Agreement, the District has not received any desegregation or special

53



funding from the State. Cf, State Br. at 60. To the contrary, the KCMSD, along 

with St. Louis, was singled out by the State for the creation of charter schools, 

which have siphoned substantial local funding. The District, nevertheless, 

managed effectively under these circumstances, until 2005 when the State began 

diverting the per-pupil amounts dedicated to repayment of the bonds. At that 

point, two years after having achieved unitary status, the KCMSD was forced by 

the State’s actions to join the other parties in reluctantly returning to court, not to 

seek additional remedies or funding, but to preserve the “financial status quo” 

agreed to by the State and ordered by the federal courts. App. 335.

The State is thus incorrect in claiming that this case is controlled by this 

Court’s precedents barring a district court from expanding the terms of a settlement 

beyond what was contemplated by the parties. Cf State Br. at 51, 62-63 (citing 

Little Rock Sch. Dist., 451 F.3d at 536-37; Liddell ex rel. Liddell v. Bd. of Educ. 

of the City of St. Louis, 126 F.3d 1049, 1056 (8th Cir. 1997)). As discussed above, 

the 1996 Agreement was not a “settlement” among all the parties, and since it was 

adopted as a modification of the court’s remedial orders, both this Court and the 

district court were free to clarify its terms or to impose additional obligations on 

the defendants in the course of approving it as a modification of the prior remedial 

orders in this case. See supra at 37-40.

54



Moreover, the district court’s determination to grant Joint Movants’ 

enforcement action did not modify its own prior orders—much less expand the 

terms of the 1996 Agreement. Cf. State Br. at 66. The district court’s order 

merely enforced prior orders in this case. See App. 332, 377-78. The need for 

interpretation of those orders in these unique circumstances—like the need for 

ancillary jurisdiction—arose only from the State’s creative efforts to evade its 

court-ordered obligations. See SEC v. Hermif Inc., 838 F.2d 1151, 1153 (11th 

Cir. 1988) (“Included in a district court’s power to administer its decrees is the 

power to construe and interpret the language of the original order.”). For this 

reason, even though, as the State points out at length, Judge Whipple was both well 

aware of the District’s financial situation and, at times, critical of the KCMSD’s 

performance, see State Br. at 24-28, he found that the District was not seeking new 

remedies or additional relief, but that the State was flouting prior court orders. See 

App, 332-36, 376-78.

55



CONCLUSION

This Court should uphold the district court’s order prohibiting the State from 

requiring the KCMSD to transfer to the charter schools—or use for any other 

purpose—the per-pupil funding that the District needs to satisfy its duty to repay 

the desegregation bonds obligated in this case.

Respectfully submitted,

Maurice A. Watson 
Kirsten Byrd 
Hayley E. Hanson
Blackwell Sanders Peper Martin LLP 
4801 Main Street, Suite 1000 
Kansas City, Missouri 64112 
(816)983-8000 
(816) 983-8080 (fax)

March 26, 2007

Patricia A. Brannan 
John W. Borkowski 
Joshua I. Civin 
Hogan & Hartson L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004 
(202) 637-8686 
(202) 637-5910 (fax)

Counsel for KCMSD

Arthur A. Benson II 
Jamie Lansford 
Arthur Benson & Associates 
4006 Central
Kansas City, Missouri 64106-2123 
(816) 531-6565 
(816) 531-6688 (fax)

Counsel for Chinyere Jenkins, et al.

56



Fred Wickham 
Brian P. Wood 
Wickham & Wood, L.L.C. 
4240 Blue Ridge Boulevard 
Kansas City, Missouri 64133 
(816)753-8751 
(816) 753-8267 (fax)

Counsel for Intervenor 
AFT Local 691

57



Pursuant to Fed. R. App. P. 32(a)(7)(C) and Eighth Circuit Rule 28A(c), 1

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE 32(a)
AND EIGHTH CIRCUIT RULE 28A(c)

hereby certify that the foregoing brief was produced using the Times New Roman

font and contains 13,938 words, excluding the parts of the brief exempted under 

Fed. R. App. P. 32 (a)(7)(B)(iii). The brief was prepared using Microsoft Word 

2003.

/Joshua I. Civin

58



CERTIFICATE OF COMPLIANCE WITH
EIGHTH CIRCUIT RULE 28A(d)2

Pursuant to Eighth Circuit Rule 28A(d)2,1 hereby certify that the file copied 

to the enclosed diskette has been scanned for viruses and is virus free.

59



CERTIFICATE OF SERVICE

I hereby certify that on March 26, 2007 two copies of the foregoing Brief of 

Appellees were served by first-class mail on:

Attorney General Jay Nixon 
James R. McAdams 
Alana Maria Barragan-Scott 
Maureen C. Beekley 
Daniel Y. Hall 
Attorney General’s Office 
P.O. Box 899 
221 W. High Street 
Jefferson City, MO 65102

Counsel for the State of Missouri

Fred Lee Slough 
Slough & Connealy 
1627 Main Street 
Suite 900
Kansas City, MO 64111

Counsel for Chinyere Jenkins, et al.

Mark A. Thornhill
Michael F. Delaney
Michael Leitch
Spencer & Fane
1000 Walnut Street
1400 Commerce Bank Building
Kansas City, MO 64106

Counsel for the Kansas City, Missouri School District

60



Taylor Fields 
Charles R. Brown 
Fields & Brown 
1100 Main Street 
Suite 1600
Kansas City, MO 64105

Counsel for Kansas City, Missouri School District

Walter R. Roher
1300 NW Jefferson Court
Blue Springs, MO 64105

Counsel for Intervenor AFT Local 691

61



A D D E N D U M



IN THE UNITED STATES DISTRICT COURT FOR 
WESTERN DISTRICT OF MISSOURI 

WESTERN DIVISION

KALIMA JENKINS, et al., )
)

Plaintiffs, )

STATE OF MISSOURI, et ai.,

vs.
)
)
)
)
)

No. 77-0420-CV-W-4

Defendants. )

ORDER

This matter comes before the Court on the Kansas City Missouri School District’s appeal 

of the Desegregation Monitoring Committee’s actions of July 15, 1993 concerning the District’s

resolution. The parties have each filed briefs on these issues and a de novo evidentiary hearing 

was held on August 5, 1993. Also before the Court is the KCMSD’s motion to increase the 

reasonable maximum limitation on the District’s property tax levy from $4.96 to $5.07 and for 

other funding modifications. Lastly, the Court has before it the property taxpayers’ motion for 

leave to intervene for the purpose of opposing the property tax increase. For the following 

reasons, the Court will approve the administrative reorganization and middle school proposal in 

part; will deny the motion to increase the maximum limitation on the District’s property tax 

levy; and will deny the motion to intervene.

The Court will first consider the KCMSD’s appeal of the DMC action of July 15, 1993. 

The DMC, on July 15, 1993, took exception to the KCMSD’s administrative reorganization plan

administrative reorganization, middle school proposal, and the DMC’s ’bottom-up’ planning



and the District’s middle school proposal. Further, the DMC passed a resolution stating

"The DMC takes exception to KCMSD’s ’top-down’ approach to working with 
task forces and other stakeholders on a district-wide basis in the development of 
initiatives and implementation of programs intended to improve academic 
performance and enhance desegregation. Further, the DMC, in no uncertain 
terms informs the KCMSD that it will request that the Court withdraw funding 
for offices and personnel who do not, in a meaningful way, act to ensure the 
bottom-up thrust of the court order as programs and initiatives are developed and 
forwarded to the DMC and Court"

Minutes of July 15, 1993 meeting.

The District’s appeal expressed several concerns with the DMC’s actions. The primary 

concern was with the jurisdiction of the DMC to review the areas at issue herein and to take 

exception to the District’s actions in these areas. Secondly, the District objects to the DMC’s 

’bottom-up’ resolution as outside the scope of DMC authority arguing that in making such a 

resolution the DMC is not reviewing a desegregation program nor is it interpreting a Court 

order. The plaintiffs concurred in the District’s appeal also arguing for limitation of the power 

and scope of review with respect to the DMC. The State, while in no way supporting the 

substance of the appeal, did offer argument that the District was procedurally barred from 

bringing some of these issues before the Court.

The Court will begin by addressing the jurisdictional questions raised by the parties. 

There is little question that the main issue before the Court is not whether the program changes 

or administrative reorganization proposed are in the best interest of the school district. Rather, 

these issues are merely the vehicle chosen by the District and plaintiffs to challenge the authority 

of the DMC. The Court has previously announced that the DMC’s review of a matter 

concerning the expenditure of $700 was not excessive use of the monitoring power. Surely, the 

parties cannot believe that a reorganization of the senior administration would have no impact

2



on the desegregation programs of the District. It is the responsibility of the DMC to monitor 

the District. A third reorganization by the Superintendent in as many years most assuredly will 

have some impact on the desegregation program and will definitely make it much more difficult 

for the parties to make any sort of useful evaluation of the effectiveness of the persons in these 

positions.

The Court expressly reaffirms the power and authority of the DMC to monitor the 

District at all levels. The District seems to have disregarded the most important factor of the 

relationship of the different entities in this litigation: the DMC is an arm of the Court. The 

argument that the Superintendent is compelled to answer to two masters is not persuasive. The 

Superintendent is responsible to the Board of Education and it alone. The Board must answer 

to the Court. The DMC is responsible for providing the Court with updated information on 

every aspect of the desegregation program in the district. As the arm of Court the DMC must 

do substantial amounts of investigation and make recommendations to the Court. The process 

is set and works quite well. If the DMC finds the programs being implemented and actions 

taken by the district to benefit the desegregation program, the DMC approves them. However, 

where the DMC finds that the district’s actions are contrary to the effective implementation of 

the remedy it is the responsibility of the DMC to take exception to them. The Court fully 

supports the efforts of the DMC in this regard and finds that its actions have been wholly 

appropriate. The parties have available to them a vehicle which satisfies any Due Process 

concerns with respect to DMC actions: a de novo evidentiary hearing. That is the mechanism 

by which the District raised this very appeal. The Court finds, again, that the process is 

working properly and the DMC has not usurped power or over stepped its jurisdiction.

3



The DMC properly used its monitoring power in addressing each of the issues raised by 

this appeal. The Court fully expects that the DMC will continue to perform its unenviable tasks 

in such an exemplary manner. The Court is concerned with the factors at work behind the 

scenes in this matter and intends to address it presently. The Court is aware that there have 

been instances where the DMC has been provided repeatedly with conflicting information. This 

may or may not have been intentional on the part of the senior administration. However, it is 

the intention of the Court to provide a process by which the DMC may sort cut such 

information. The Court finds that it is appropriate for the DMC to require the presence of a 

member of the Board of Education at any meeting of the DMC. The person representing the 

Board must have authority to speak for the Board and the statements made by this person will 

be binding on the Board upon further consideration of this Court. This should allow for the 

DMC, and thusly the Court, to have its questions answered in a satisfactory and expeditious 

manner.

Now that the Court has recognized the actions of the DMC as well within its jurisdiction, 

the Court will consider the substantive matters excepted by the DMC. First, the administrative 

reorganization offered by the District was disapproved by resolution of the DMC. The Court 

has heard the testimony of Superintendent Marks concerning the reasons for the reorganization. 

Also, the Court heard the testimony of experts commenting on the appropriateness of the 

reorganization. The experts repeatedly testified that they may not have reconfigured the 

administration in the manner chosen by Dr. Marks but the reorganization was not harmful to the 

district. The Court agrees with the experts. It, too, would not have necessarily reorganized in 

the manner chosen by Dr. Marks. However, the Court finds that the structure of the

4



administration is the province of the chief executive officer of the district. The DMC expressed 

very valid concerns with respect to the ability to evaluate effectiveness of personnel and the 

shifting of some persons to different positions without respect to performance. The Court will 

not disapprove the reorganization at this point. However, the Court finds that the central 

administration is very directly linked to the desegregation program and the Court clearly has the 

authority to act should it find that the chief executive officer has made an error in his judgment 

in this area. The Court suspects that the Board of Education will have a much more direct 

influence in the ongoing evaluation of this change and the Court will not ever be called upon to 

determine this issue. The Court will approve the administrative reorganization as submitted by 

the District with the provisos as discussed above.

Next, the Court will consider the middle school proposal submitted by the district. 

Again, this is an area to be properly reviewed by the DMC because of the direct relationship 

to the desegregation program. The Court finds that the DMC acted appropriately in reviewing 

these matters and making recommendation to the Court. The Court heard evidence concerning 

the middle school proposal and has reviewed the documentation submitted by the District on this 

issue. The Court finds that the middle school program, in principle, is sound. However, the 

Court finds that the DMC raised very valid concerns, rhe District’s argument allowing 

implementation without DMC review is not well taken. The Court will approve the 

implementation of the middle school proposal for the Spring semester provided the District 

addresses each and every one of the concerns raised by the DMC. The Court instructs the 

District to comply fully with the requests of the DMC on this issue.

The last issue raised by the District in its appeal of the July 15, 1993 DMC action was

5



with respect to "bottom-up" planning. The resolution appears in its entirety, infra. The Court 

has no basis to disagree with any statement concerned in the resolution. The resolution 

appropriately states the intention of the Court with respect to all of its orders. The DMC is 

responsible for monitoring the implementation of the entire desegregation program and not just 

interpreting certain orders. The Court expects that the District will use "bottom-up" planning 

in all of its development of desegregation related programs. There is no reason why the District 

should not use such a development method in all of its programs, however, the Court is 

specifically concerned with desegregation programs. The success of the remedy is inextricably 

related to the ability of the district to encourage the participation of its patrons. This is the 

fundamental principle of the magnet school program. The Court finds it difficult to believe that 

the District would ever set out to implement this type of remedy without complete devotion to 

a "bottom-up" planning style. However, the evidence has been to the contrary and the Court 

is concerned with this approach of the District. The Court finds that the resolution of the DMC 

with respect to "bottom-up" planning to be wholly appropriate and instructs the District to 

comply with said resolution. The District, in its argument against the resolution, suggests that 

there will be an undue hardship. Neither the Court nor the DMC expect the District to submit 

every minor decision to the scrutiny of every individual in the KCMSD. However, the Court 

does expect the District to use the "bottom-up" planning process in the implementation of the 

desegregation remedy.

The Court has before it the KCMSD’s motion to increase the reasonable maximum 

limitation on the District’s property tax levy from $4.96 to $5.07; to allocate the new $5.07 levy 

rate on the basis of $2.75 to operating revenue and $2.32 to desegregation revenue; and to

6



approve the issuance by KCMSD’s Building Corporation of $61 million in leasehold revenue 

bonds to fund the District’s presumptive one-half share of the capital improvements that have 

been ordered by the Court but not yet funded, with the debt service on the bonds to be paid, in 

the form of lease payments from local desegregation revenues. The Court has repeatedly found 

that both the State and the District are constitutional violators. The judgments in this case have 

been with joint and several liability. The Court has also repeatedly held that the State, as a 

constitutional violator, may not withhold foundation formula monies to offset desegregation 

expenses incurred in the KCMSD. The Court, again, expressly finds that it is inappropriate for 

the State to withhold such monies.

The KCMSD argues that it should raise the property tax levy in order to be better able 

to fund its share of the desegregation expenses. The Court finds that it would be in the best 

interest of all concerned if the District were better able to fund its share of the expenses incurred 

as a result of the remedy ordered by this Court. However, an increase in the property tax levy 

imposes a burden mainly on those who are supposed to be benefiting from this desegregation 

remedy. The State has the power to give the KCMSD the authority to fund its presumptive 

share of the desegregation expenses. The failure of the Missouri Legislature to act should not 

be a reason to penalize those persons situated in the KCMSD. Therefore, the Court will deny 

without prejudice the District’s request to raise the reasonable maximum limitation on the 

District’s property tax levy from $4.96 to $5.07. The $4.96 levy is one of the highest levy rates 

in the state of Missouri. An increase to $5.07 would not allow for the District to better fund 

its share in any meaningful way. The Court will not consider adjusting this rate until the 

District provides a better plan for funding its share.

7



The Court next addresses the allocation of $2.75 to the operating budget to be in 

compliance with S.B. 380. The Court finds that the school levy in the KCMSD is $4.96. It is 

irrelevant that some may consider only the voted portion of the levy. The Court is not 

persuaded by this argument. It appears that some would have the foundation formula monies 

withheld because the District has not voted a levy of $2.75. The District need not vote a levy 

of $2.75 when it is already paying one of $4.96. The Court finds that any other interpretation 

is simply attempting to penalize the KCMSD and is in direct violation of previous Court 

pronouncements on this issue. The Court will, therefore, deny the KCMSD’s request to allocate 

$2.75 to the operating budget and order that the allocation be continued in the current amounts.

Next, the Court is asked to consider the issuance of $61 million in leasehold revenue 

bonds by the KCMSD’s Building Corporation to fund capital improvements. The Court 

approves of the District taking the lead in finding ways to fund its share of the desegregation 

remedy. Again, the Court notes that the District has been severely limited in its ability to act 

in this area and suggests that issue be addressed. However, the Court has fully considered the 

issuance of the leasehold revenue bonds and finds that this is an appropriate method for the 

District to use in financing its desegregation obligations. Therefore, the Court will approve the 

request of the District to issue $61 million in leasehold revenue bonds through the KCMSD’s 

Building Corporation.

The last issue before the Court is the motion of Bobby Anderson, et al. to intervene in 

opposition to the KCMSD’s motion to increase the property tax levy. The Court has previously 

denied the KCMSD’s motion to increase the property tax rate. Therefore, the Court will deny 

the motion for leave to intervene as moot. At this point, the Court finds that the request to

8



intervene for the purpose of commenting on the financial plan is inappropriate. The plan, at this 

point, puts at issue no tax increase or any other grounds which would give the proposed 

intervenors standing. Therefore, the Court will deny the motion for leave to intervene in its 

entirety.

Accordingly, it is hereby

ORDERED that the KCMSD’s appeal of the DMC actions of July 15, 1993 is granted 

with respect to the administrative reorganization as set out herein; and it is further

ORDERED that the KCMSD’s appeal of the DMC actions of July 15, 1993 is granted 

with respect to the middle school proposal except that the District is directed to address the 

concerns raised by the DMC in its July 15, 1993 action; and it is further

ORDERED that the KCMSD’s appeal of the DMC actions of July 15, 1993 is denied 

with respect to the "bottom-up" planning resolution; and it is further

ORDERED that the KCMSD’s motion to increase the reasonable maximum limitation on
/

the District’s property tax levy from $4.96 to $5.07 is denied without prejudice; and it is further 

ORDERED that the KCMSD’s motion to allocate $2.75 of the levy to the operating 

budget is denied; and it is further

ORDERED that the KCMSD’s modon to issue $61 million in leasehold revenue bonds 

through the KCMSD’s Building Corporation is granted; and it is further

ORDERED that the motion of Bobby Anderson, et al. for leave to intervene is denied.

I ____________DGE
UNITED STATES DISTRICT COURT

Date: August_ _, 1993

9