Jenkins v. Missouri Brief of Appellants Kalima Jenkins, et al., Plaintiffs-Appellants
Public Court Documents
January 1, 1985
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In the United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 85-1765WM
No. 85-1949WM
No. 85-1974WM
KALIMA JENKINS, et al.,
Appellants,
vs,
STATE OF MISSOURI, et al.,
Appellees.
A ppeal F r o m the U nited States D istrict C o ur t for the
W estern D istrict of M issouri, W estern D ivision
T he H onorable R ussell G. C lar k, C hief Judge
BRIEF OF APPELLANTS KALIMA JENKINS, et al.,
Plaintiffs-Appellants
A r t h u r A. B ens on II
B ens on & M cK a y
911 Main Street
1430 Commerce Tower
Kansas City, MO 64105
816/842-7603
Julius L eV o n n e C h a m b e r s
Ja m e s M. N abrit III
Ja m e s S. L i e b m a n
T heodore M, Sh a w
99 Hudson Street,
16th Floor
New York, NY 10013
212/219-1900
Attorneys for Kalima Jenkins, et al.
E. L. Mendenhall, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
IN THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 85—1765WM
No. 85-1949WM
No. 85-1974WM
KALIMA JENKINS, et. al.,
Appellants,
vs.
STATE OF MISSOURI, et al.,
Appellees.
Appeal from the United States District- Court
For the Western District, of Missouri, Western Division
The Honorable Russell G. Clark, Chief Judge
BRIEF OF APPELLANTS KALIMA JENKINS, et al.,
Plaintiff-Appellants
ARTHUR A. BENSON II
BENSON & McKAY
911 Main Street
1430 Commerce Tower
Kansas City, MO 64105
816/842-7603
JULIUS LeVONNE CHAMBERS
JAMES M. NEBRITT III
JAMES S. LIEBMAN
THEODORE M. SHAW
99 Hudson Street, 16th Floor
New York, NY 10013
212/219-1900
ATTORNEYS FOR KALIMA JENKINS, et al
SUMMARY AND REQUEST TOR ORAL ARGUMENT
Plaintiff-appellants (hereinafter plaintiffs) are 11 individual black
and white children living in the metropolitan Kansas City, Missouri area and a
class of black and white students in the Kansas City, Missouri School District
(KCM) represented by some of those individuals. Like most school children in
the area, plaintiffs attend segregated schools — blacks in all or predominantly
black schools in KCM, and whites in all or predominantly white schools in the
11 defendant, suburban school districts (SSDs). Prior to 1954, plaintiffs'
schools were segregated by laws providing for white children to be educated in
their home suburban canmunities but for black children to be educated on an
interdistrict-transfer basis in KCM. Plaintiffs' schools remain segregated
today, continuing the effects of the pre-1954 int.erdistrict dual school system,
which none of the culpable parties has ever acted to dismantle, and suffering
the additional effects of further intentionally and effectively segregative
actions with regard to schools and housing by the State, -SSDs, KCM and HUD.
The district, court, ordered some remedial-education relief for the black
plaintiffs living in KCM, but has (tone nothing to alleviate the segregated
enrollment and faculty conditions under which all of the plaintiffs, black and
white, attend school throughout the 12-district area. The court, absolved the
SSDs of any participation in a remedy and denied their school children, like
KCM's, any desegregation relief, based on erroneous legal conclusions that the
SSDs were guilty of no violation, even during the pre-1954 dual school era, and
that, their "autonomous" existence somehow bars the federal courts from
redressing the segregative effects on their children of other governmental
actors' unconstitutional behavior.
Every additional day spent by plaintiffs in their segregated schools
"may affect their hearts and minds in a way unlikely ever to be undone." Brown
v. Board of Education, 347 U.S. 483, 494 (1954). The issues in this case are
important.. Plaintiffs request. 60 minutes for oral argument.
TABLE OF CONTENTS
Summary and Request For Oral Argument..................................... (i)
Table of Contents................................. (ijj
Table of Authorities................................ ...................... (V )
Short For Title of Cases................................................... (x)
Preliminary Statement...................................................... (xii)
Statement of the Issues.................................................. (xiii)
Statement of the Case..................... ................................ 1
STATEMENT OF FACTS.......................................................... 2
A. Missouri's Pre-1954 Interdistrict System of Locating
Dual Schools and Segregating Black Children........................ 2
Effects of Dual School System on Residential Patterns:
1. Depopulation of Blacks in Suburban Areas..................... II
Outside KCM
2. Increase in Population of Blacks in KCM...................... 14
3. All-White Subrogation Outside KCM............................ 15
B. Missouri's Metropolitan-wide Dual Housing System................... 16
1. State-enforced Racially Restrictive Covenants................. 17
2. The State's Inpact on FHA's Refusal to Insure................ 18
Mortgages on Homes by Racially Restrictive
Covenants
3. State-FHA Impact on the Dual Housing Market...... ............ 19
4. The Impact of the State/FHA-Fostered. Dual.................... 20
Housing Market on Persons Displaced by
Urban Renewal and Highway Construction
5. The Impact of the State/FHA-Fostered Dual.. .................. 23
Housing Market on HUD-Insured, -Assisted and
-Subsidized Single and Multiple-Family
Housing Programs
a. FHA After 1960........................................ . 23
(ii)
b. Section 235 Housing..................................... 24
c. Subsidized Housing and State Agencies.................... 26
d. Section 8................................................ 26
C. HAKC'S City-wide System of Segregated Public Housing............... 28
D. States and SSDs Post-1954 Segregative Action and.................... 31
Desegregative Inaction
1. H.B. 171...................................................... 32
2. Spainhower Commission......................................... 33
3. Milwaukee Plan......... ..................................... 33
4. Area Vocational Schools....................................... 33
E. Suburban District Failure to Desegregate............................ 34
F. KCM's Post-1954 Southeast Corridor Destabilization.................. 38
and Segregation
Summary of the Argument.................................................... 42
ARGUMENT
I. The Findings of the Court Below Establish Continuing................ 43
Interlocking Interdistrict Violations, Whose Cross-
District Nature and Metropolitan-wide Scope Require
Relief Encompassing the SSDs
A. Under Controlling Legal Principles, A ......................... 44
Constitutional Violation by or Affecting the
SSDs Requires Their Inclusion in an Interdistrict
Remedy
B. The District Court's Findings Establish Six..... ............... 49
Independent Bases for Interdistrict Relief
II. The District Court Denied Interdistrict Relief Based................ 58
on a Concatenation of Legal Error as to Interdistrict
Liability and Effect
A. Only by Six Times Abandoning the Controlling.................. 58
Legal Principles did the Court Absolve the SSDs
of Liability to Inclusion in an Interdistrict Remedy
(iii)
63B. The Court Below Applied an Improper Burden and..
Standard of Proof of "Significant Effects" in an
Improperly Piecemeal Fashion to an Improperly
Truncated Portion of the Relevant Evidence
III. The Court Erred in Absolving HUD of Constitutional................. 73
Violations Because Its Segregative Policies Were Not
Arbitrary and Capricious
IV. The District Court Erred by Failing to Afford any.................. 78
Desegregative Relief
CONCLUSION................................................................. 80
(IV)
TABLE OF AUTHORITIES
Adams v. United States, 620 F.2d 1277 (8th Cir. 1977)
[Adams].......................... 5, 46, 47, 50, 58, 59, 61, 68, 69, 72
Banks v. Perk, 341 F.Supp. 1175 (N.D.Ohio 1972)...... ...................... 75
Barrow v. Jackson, 346 U.S. 249 (1953)......................................17
Blackshear Residents Org. v. Housing Authority of Austin,........ ..........76
347 F.Supp. 1138 (W.D.Tex. 1971)
Board of Education v. St. Louis, 149 S.W.2d 878 (Mo. 1941)................. 7
Bolling v. Sharpe, 347 U.S. 494 (1954)...................... ...............75
Booker v. Special School Dist., 585 F.2d 347 (8th Cir. 1978)............... 68
Bose Corp. v. Consumers Union, ___ U.S. ____, 80 L.Ed.2a 502 (1984)........ 69
Bradley v. School Bd., 382 U.S. 103 (1965)................................. 69
Brewton v. Board of Educ., 233 S.W.2d 697 (Mo. 1950)....................... 2
Brown v. Board of Educ., 347 U.S. 483 (1954)........................... passim
[Brown I]
Brown v. Board of Educ., 349 U.S. 753 (1955)............................... 38
[Brown II]
Clients' Council v. Pierce, 711 F.2d 1406 (8th Cir. 1983)............ ..75, 76
Columbus Board of Educ. v. Penick, 443 U.S. 449 (1979) 46, 49, 61, 65, 68, 70
Continental Oil Co. v. Union Carbide, 370 U.S. 690 (1962).................. 70
Cooper v. Aaron, 358 U.S. 1 (1958)..........................................60
Dayton Board of Educ. v. Brinkman, 433 U.S. 406 (1977)................. 68, 69
[Dayton I]
Dayton Board of Educ. v. Brinkman, 443 U.S. 528 (1979)
[Dayton II]......................... 49, 53, 60, 66, 68, 69, 73, 75, 78
Avans v. Buchanan, 582 F.2d 750 (3d Cir. 1978)............................. 67
Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir. 1974)................ 75
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971).......................... 73
(v)
Hills v. Gautreaux, 425 U.S. 284 (1977)
[Gautreaux]................. 45, 46, 47, 48, 49, 51, 56, 61, 63, 65, 75
Graves v. Romney, 502 F.2d 1062 (8th Cir. 1974)............................ 77
Green v. County School Board, 391 U.S. 430 (1968)...................... 49, 75
Haney v. County Board of Educ., 410 F.2d 920 (8th Cir. 1969)
[Haney]............................. 46, 47, 49, 53, 60, 61, 62, 66, 69
Hart v. Community School Board, 383 F.Supp. 699 (E.D.N.Y. 1974)
[Hart].................. ............................ 48, 49, 58, 75, 79
Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir. 1982)
[Hoots]................................. 46, 47, 55, 61, 67, 68, 73, 74
United States v. Board of School Carm'rs, 573 F.2d 400 (7th Cir. 1978)
[Indianapolis I].................................................46, 57
United States v. Board of School Camm'rs, 637 F.2d 1101 (7th Cir. 1980)
[Indianapolis II].... ...............57, 58, 62, 67, 68, 69, 72, 74, 78
Jenkins v. State of Missouri, 593 F.Supp. 1485 (W.D.Mo. 1984).......... passim
Jones v. International Paper Co., 720 F.2d 496 (8th Cir. 1983)............. 44
Kelley v. Altheimer Pub. Sch. Dist., 378 F.2d 483 (8th Cir. 1967)...... 50, 61
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)
[Keyes]......................................................69, 70, 75
femp v. Beasley, 389 F.2d 178 (8th Cir. 1968).............................. 69
Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (5th Cir. 1981).............. 53
Lehew v. Brunmall, 15 S.W. 765 (Mo. 1891)................................ 2, 6
Liddell v. Board of Educ., 667 F.2d 645 (8th Cir. 1981)................ 49, 53
[Liddell III]
Liddell v. Board of Educ., 677 F.2d 626 (8th Cir. 1982)............ 47, 49, 54
[Liddell V]
Liddell v. Board of Educ., 731 F.2d 1294 (8th Cir. 1984).5, 47, 48, 52, 59, 68
[Liddell VII]
Newburg Area Council v. Board of Educ., 489 F.2d 925 (6th Cir. 1973)....... 69
[Louisville I]
Cunningham v. Grayson, 541 F.2d 538 (6th Cir. 1976)
[Louisville II
47, 53, 67
McDaniel v. Barresi, 402 U.S. 39 (1971) 54
Milliken v. Bradley, 418 U.S. 717 (1974) 45, 46, 47, 48, 51, 52,
[1Milliken]44,................... 53, 55, 56, 58, 60, 61, 62, 63, 65, 67
United States v. Missouri, 363 F.Supp. 739 (E.D.Mo. 1973).............. 53, 69
[Missouri I]
United States v. Missouri, 388 F.Supp. 1058 (E.D.Mo. 1975)........... ......47
[Missouri II]
United States v. Missouri, 515 F.2d 1365 (8th Cir. 1975)
[Missouri III].................. 46, 47, 49, 53, 59, 60, 61, 62, 66, 69
Morrilton School Dist, No. 32 v. United States, 606 F.2d 222
(8th Circuit 1979) [Morrilton]...44, 46, 47, 53, 58, 60, 61, 62, 67, 69
NAACP v. Harris, 567 F.Supp. 637 (D.C.Mass. 1983).......................... 75
Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782 (6th Cir. 1980)......... 47, 58
United States v. School Dist. of Omaha, 521 F.2d 530 (8th Cir. 1975)
[Omaha]........................................ .....48, 50, 54, 68, 71
Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973)..... 75
Penick v. Columbus Board of Educ., 429 F.Supp. 229 (S.D.Ohio 1977), aff'd,
583 F .2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449 (1979)............ 46
Reed v. Rhodes, 422 F.Supp. 708 (N.D.Ohio 1976), aff'd, 607 F.2d 714 (6th
Cir. 1979)............................... ....................... 47, 58
Richardson v. Belcher, 404 U.S. 78 (1972).................................. 73
Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970)................................ 77
Shelly v. Kraemer, 334 U.S. 1 (1948)....... .................... 17, 20, 71, 73
State ex rel. Herman v. County Court, 277 S.w. 934 (Mo. 1925).............. 6
State ex rel. Hobby v. Dismin, 250 S.W.2d 137 (Mo. 1952).................... 2
State ex rel. Morehead v. Cartwright, 99 S.W. 48 (Mo.App. 1907)............ 8
Swann v. Charlotte-Mecklenburg Bd.of Educ., 306 F.Supp. 1299 (W.D.N.C. 1969)58
Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138 (4th Cir. 1970)...58
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)
[Swann]................................. 10, 44, 45, 58, 65, 66, 67, 75
(vii)
Taylor v. Ouachita Parish School Board, 648 F.2d 959 (5th Cir. 1981)....... 48
Turner v. Warren County Bd. of Educ., 313 F.Supp. 380 (E.D.N.C. 1970)...... 53
United States v. Board of Educ., 306 F.Supp. 912 (N.D.I11. 1983).......... .58
United States v. Scotland Neck, 407 U.S. 484 (1972).................... 52, 61
United States v. Texas, 321 F.Supp. 1043 (E.D.Tex. 1970), aff'd, 447 F.2d...53
441 (5th Cir. 1971)
Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949).*................................ 17
Williams v. Kansas City, 104 F.Supp. 848 (W.D.Mo.), aff'd, 205 F.2d 47..... 3
8th Cir. 1952)
Evans v. Buchanan, 393 F.Supp. 428 (D.Del), aff'd, 423 U.S. 963 (1975)
[Wilmington I].................................. 47, 48, 52, 55, 57, 58
Evans v. Buchanan, 416 F.Supp. 328 (D.Del. 1976)....................... 47, 63
[Wilmington II]
Evans v. Buchanan, 555 F.2d 373 (3d Cir. 1977)............................. 47
[Wilmington III]
Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978)............................. 68
[Wilmington IV]
Wright v. Council of Emporia, 407 U.S. 451 (1972)............. .........49, 61
Ybarra v. City of San Jose, 503 F.2d 1041 (9th Cir. 1974).............. 47', 58
Statutes and Publications
Act of July 6, 1957, 1957 Mo. Laws 454..................................... 32
(H.B. 171, 1957)
Act of July 6, 1965, 1965 Mo. Laws 275..................................... 32
(Sec. 162.571, Mo.Rev.Stat.)
Missouri Housing Act of 1949........................................... 21, 28
(Sec. 99.320, Mo.Rev.Stat.)
42 U.S.C. § 1437 (Public Housing Program).............................. 28, 30
United States Housing Act of 1937
42 U.S.C. § 2000d,......................................................passim
U. S. Civil Rights Act of 1964 [Title VI]
(viii)
.24, 2612 U.3.C. { 1715z (1968)___
(Section 235 Program)
42 U.S.C. { 3601.............................................................
Fair Housing Act of 1968 [Title VIII]
42 U.S.C. { 1437f, The Housing and Community Development Act of 1974___26, 27
(Section 8 Program)
State Department of Education Bulletin...... ............................... 7
U. S. Const., amend. XIV............................................... passim
Note, Housing Discrimination as a Basis for Interdistrict School........... 58
Desegregation Relief, 93 Yale L.J. 340 (1983)
Mrydal, An American Dilemma.................................................12
Savage, The Legal Provisions for Negro Schools in Missouri, 16 Journal of... 6
Negro History 309 (1931)
dx)
[Adams]
[Brcwn I]
[Brcwn II]
[Dayton I]
[Dayton II]
[Gautreaux]
[Haney]
[Hart.]
[Hoots]
[Indianapolis]
[Indianapolis II]
[Keyes]
[Liddell III]
[Liddell V]
[Liddell VII]
[Louisville I]
[Louisville II]
[Milliken]
[Missouri I]
[Missouri II]
[Missouri III]
[Morrilton]
SHORT FORM TITLE OF THE CASE
Adams v. United States, 620 F.2d 1277 (8t.h Cir. 1977)
Brcwn v. Board of Educ., 347 U.S. 483 (1954)
Brcwn v. Board of Educ., 349 U.S. 753 (1955)
Dayton Board of Educ. v. Brinkman, 433 U.S. 406 (1977)
Dayton Board of Educ. v. Brinkman, 443 U.S. 528 (1979)
Hills v. Gautreaux, 425 U.S. 284 (1977)
Haney v. County Board of Educ., 410 F.2d 920 (8th Cir. 1969)
Hart. v. Community School Board, 383 F.Suoo. 699 (E.D.N.v.
1974)
Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir. 1982)
United States v. Board of School Ccmm'rs, 573 F.2d 400 (7t.h
Cir. 1978)
United States v. Board of School Conm'rs, 637 F.2d 1101
(7th Cir. 1980)
Keyes v. School Dist- No. 1, 413 U.S. 189 (1973)
Liddell v. 3oard of Educ., 667 F.2d 645 (8th Cir. 1981)
Liddell v. Board of Educ., 677 F.2d 626 (8t.h Cir. 1982)
Liddell v. Beard of Educ., 731 F.2d 1294 (3th Cir. 1984)
Newburg Area Council v. Board of Educ., 489 F.2d 925 (6th Cir
1973)
Cunningham v. Grayson, 541 F.2d 538 (6th Cir. 1976)
Milliken v. Bradley, 418 U.S. 717 (1974)
United States v. Missouri, 363 F.Supp. 739 (E.D.Mo. 1973)
United States v. Missouri, 388 F.Supp. 1058 (E.D.Mo. 1975)
United States v. Missouri, 515 F.2d 1365 (8t.h Cir. 1975)
Morrilton School Dist. No. 32 v. United States, 606 F.2d 222
8th Cir. 1979)
(x)
[Omaha] United States v. School Dist. of Omaha, 521 F.2d 530 (8th Cir
1975) ------
[Swann] Swann v. Chariotte-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971)
[Wilmington I] Evans v. Buchanan, 393
963 (1975)
[Wilmington II] Evans v. Buchanan, 416
[Wilmington III] Evans v. Buchanan, 555
[Wilmington IV] Evans v. Buchanan, 582
F.Supp. 428 (D.Del), aff'd, 423 U.S.
F.Supp. 328 (D.Del. 1976)
F.2d 373 (3d Cir. 1977)
F.2d 750 (3d Cir. 1978)
PRELIMINARY STATEMENT
1. Chief Judge Russell G. Clark, United States District. Court, for the
Western District, of Missouri, Western Division, rendered the decisions appealed
from on January 24, 1984 (oral order, unreport.ed), April 2, 1984 (oral order,
unreported), June 5, 1984 (unreport.ed); September 17, 1984 (593 F.Supp. 143.5);
January 25, 1985 (unreport.ed); and June 14, 1985 (publication pending).
2. Plaintiffs seek to redress the deprivation, under color of state
law, of rights secured by the Fifth and Fourteenth Amendments to the Constitu
tion of the United States, 42 U.S.C. §1983, Title VI of the Civil Rights Act.
of 1964, 42 U.S.C. §2000d, et seq., and Title VIII of the Civil Rights Act. of
1968, 42 U.S.C. §3601, et seq. Because this action arises under the Constitu
tion and laws of the United States and 28 U.S.C. §1343, jurisdiction of the
District. Court, was based on 28 U.S.C. §1331.
3. Pursuant, to plaintiffs-appellants' timely notice of appeal dated
June 14, 1985, the jurisdiction .of this Court, is invoked under 28 U.S.C. §1291.
(xii)
STATEMENT OF THE ISSUES
!• Whether the District Court erred in absolving the suburban school
districts of responsibility for participating in Missouri's pre-1954
interdistrict system of dual schools and of any duty to take part in remedying
the effects on their children of that violation and of subsequent violations by
the Kansas City District and housing officials.
Milliken v. Bradley,
418 U.S. 717 (1974)
Morrilton School District No. 32 v. United States,
606 F.2d 222 (8th Cir. 1979) (en banc)
United States v. Missouri,
515 F.2d 1365 (8th Cir. 1975)
Evans v. Buchanan,
393 F.Supp. 428 (D. Del. 1975), aff'd, 423 U.S. 963 (1976)
2. Whether the District Court erred in requiring plaintiffs to over
come a "no continuing effects" presumption arising solely because of the passage
of time, and in excluding most, then disaggregating the rest of plaintiffs'
extensive evidence of continuing effects.
Swann v. Charlotte-Mecklenberq Board of Education,
402 U. S. 1 (1971)
Morrilton v. School District No. 32 v. United States,
606 F.2d 222 (8th Cir. 1979) (en banc)
(xiii)
United States v. Board of School Commissioners,
637 F.2d 1101 (7th Cir. 1980)
Penick v. Columbus Board of Education,
583 F.2d 787 (6th Cir. 1970), aff’d, 443 U.S. 449 (1979)
3. Whether the District Court erred in applying an "arbitrary and
capricious" standard to HUD's conduct in explicitly mandating and knowingly
funding segregated housing in the Kansas City area.
Bolling v. Sharpe,
347 U.S. 497 (1954)
Clients Council v. Pierce,
711 F .2d 1406 (8th Cir. 1983)
Gautreaux v. Rcroney, 448 F.2d 731 (7th Cir. 1971)
4. ' Whether the District Court erred in failing to afford the victims
of the segregation it did find any desegregation relief at all and particularly
in failing to adopt plaintiffs' modestly priced, essentially voluntary housing
remedy.
Adams v. United States,
620 F.2d 1277 (8th Cir. 1980) (en banc)
Hart v. Conmunity School Board,
383 F.Supp. 699 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975)
(xiv)
STATEMENT OF THE CASE
The 11 plaintiff black and white school children live in the Kansas
City, Missouri metropolitan area. 1 The City of Kansas City, Missouri lies at
the center of that area and encompasses all or parts of 1.3 school districts
lying in 3 counties (Jackson, Clay and Platte) including 10 of the deferdant
school districts. Like KCM, 5 of the SSDs (CE, GV, HM, NK, RT) are either
entirely within or surrounded on at least 3 sides by the City. 2 School district-
lines in the metropolitan area do not. correspond to irunicipal boundaries or to
other geopolitical and commercial divisions. T10812-5.
The 12 defendant districts enroll 121,287 children, of vdiom 28,381
(24%) are black. Eighty-seven percent of the black students in the area attend
KCM while 89% of the white students attend one of the SSDs. KCM's student body
is 68% black; together, the SSDs are 5% black. 2
Plaintiffs seek to dismantle the segregation of school districts in the
metropolitan area caused toy defendants’ intentionally discriminatory acts.
2Six reside in the defendant Kansas City, Missouri School District. (KCM), 5 in
the defendant, suburban school districts (SSDs) — Blue Springs (BS), Center
(CE), Fort. Osage (FO), Grandview (GV), Hickman Mills (HM), Lee's Summit. (LS),
Independence (IN), Liberty (LI), North Kansas City (NK), Park Hill (PH) and
Raytown (RT). The State of Missouri and the United States Department of Housing
and Urban Development (HUD) are also defendant-appellees.
-X9, 36. Record citations take the following form: trial transcript (T);
exhibits (X); depositions ([ deponent.] D); Addendum (A). The district court.'s
published fact-findings are cited as "593 F.Supp. at." The court.'s other opi
nions are cited by their date and page number. Frequently cited cases are
referred to as indicated in the Table of Authorities.
2X53G. The 12 districts employ 7,071 teachers, 181 counselors and 389 admi
nistrators, of whom 16%, 12% and 24%, respectively are minority. KCM employs
approximately 96% of the area's minority teachers, 100% of the minority coun
selors, and 99.5% of the minority administrators. The teaching staff in KCM is
53% minority; in the SSDs, 1% minority. X721G, 3757 (p. 59-60).
1
STATEMENT OF FACTS
A. Missouri's Pre-1954 Int.erdist.rict. System of Locat-ing Dual Schools
arid Segregating Black Children. —
Prior to 1954, students and teachers in Missouri were segregated by
law. "Each school district, in Missouri participated in this dual system before
it was declared unconstitutional." 593 F.Supp. at 1490; see Adams, 620 F.2d at
1290.4
Missouri superimposed dual schools on one of the roost intensely
fragmented systems of school district, organization in the nation. During most,
of the pre-1954 period, Missouri had the second or third largest, number of
4Bet.ween 1865 and 1976, 4 successive state constitutions provided "separate"
schools. While requiring that educational "funds [be] apportioned...without
regard to color," the 1865 Constitution provided that "[s]eparate schools may be
established for children of African descent.." Mo. Const. 1865, art.. 9, §2; see
also 1865 Mo. Laws 177. See X116, 116A-B, 117 (collecting laws and decisions
re: segregation). When the provisions' permissive language led Missouri's
Public School Superintendent to conclude in 1873 that, there would be "no right
of ejectment." if "two or three dark faces... slipped into" a white school (X208),
the State prorptly revised the constitution, making separate schools mandatory
and deleting the equal-funding provision. Mo. Const. 1875, art.. 11 §3, retained
Mo. Const. 1919, art. 11 §3, revised and retained, Mo. Const. 1945, art.. 9
§l(a), 3(c).
Lest, there be doubt: in 1889, the Missouri Legislature made .it. a criminal
offense for "any colored child to attend a white [public] school" (1889 Mo. Laws
226), extending the bar to private schools in 1909 (1909 Mo. Laws 770, 790,
820); in 1891, the Missouri Supreme Court, upheld the constitutionality of these
provisions, Lehew v. Brummell, 15 S.W. 765 (Mo. 1891); in 1910, the Attorney
General threatened to prosecute school officials operating integrated schools
(X178, T4225, 14813); in 1948, the State Board of Education invoked its
"inherent, authority" t.o withdraw funding frcm a school district, violating the
State's segregation provisions (X2222-5); and between 1944 and 1955, Missouri's
citizens and officials reaffirmed their canmitment to statewide segregation 5
times, rejecting proposals to mandate integration or allow it at. local option.
T5838; X2234; State ex rel. Hobby v. Dismin, 250 S.W.2d 137, 141 (Mo. 1952);
State ex rsl. Brewton v. Board of Education, 233 S.W.2d 697 (Mo. 1950). As
lat.e as 1965 (see 1965 Mo. Laws 306, amending, 1921 Mo. Laws 86), Missouri law
also required separate teacher-training (1901 Mo. Laws 249), higher education
(1929 Mo. Laws 1961), industrial and agricultural schools (1891 Mo. Laws 22,
33; 1929 Laws 386), school inspectors (1921 Mo. laws 611-5), juvenile homes
(1923 Mo. Laws 128), mental institutions (Mo.Rev.Stat.. §202.620 (1949)), and
censuses of "white and colored" children (Mo.Rev.Stat.. §164-030 (1949)).
Outside the area of education, Missouri lav/ until 1959 mandated separate
- 2 -
school districts in the nation5 — the vast majority of them with fewer than 50
children, black or white, spread over 12 grades.*5 The 3—county area surrounding
Kansas City was typical in this regard.5”
lavatories in certain industries (1915 Mo. Laws 332, repealed, 1959 Mo.
Laws, S.B. No. 188, §A); until 1969, "all marriages of white persons with
negroes" and, subsequently, "mongolians" were void and illegal (Mo.Rev.Stat.
§563.240 (1959), repealed 1969 Mo. Laws 545); and Missouri law still includes a
provision prohibiting interracial adoption (Mo.Rev.Stat. §453.130 (1969)). These
laws were augmented by Kansas City ordinances requiring separate hospitals (1941
Admin. Code, art.. VII, §36) and vital statistics collection (1946 R.O. §23-42),
and by local "custom and usage" dictating that public parks and swimming pools
be segregated. Williams.v. Kansas City, 104 F.Supp. 848 (W.D.Mo.), aff'd, 205
F.2d 47 (8th Cir. 1952); X120. In 1914, the Kansas City Council made it ille
gal to establish any "school. .. for... persons of African descent." within l/j mile
of a school for "persons not. of African descent." in order to avoid attracting
black residents to white neighborhoods. X124-A. And throughout, the 1920-55
period, the City Planning Department divided the city into "white" and "colored
districts" for purposes of zoning and locating schools, parks, recreation areas,
streets and highways. By consistently zoning black residential and surrounding
areas except immediately to the south and east of the core area industrial, city
planners assured that black neighborhoods would remain unattractive to whites
and would expand only south and east.. X282-B, 288-9, 306-7; T10870-901, 11043-6,
11247-8.
Law enforcement or lack of it. also operated in a segregating fashion in the
area: (1) At the turn of the century, vhit.es burned several black homes and
businesses in BS, causing its black population to leave the town. Local police
officers subsequently escorted blacks out. of BS whenever they ventured in, and
no blacks moved back to BS until the 1970s. T2267, X53G. See also T5071
(police in NK and RT followed like practices until the 1950s). (2) The Clay
County Prosecutor's refusal to investigate a 1925 lynching because "justice has
been done" caused "many...negroes who lived in and near Excelsior Springs volun
tarily to flee to Kansas City, believing they would be safe there." X99A, T499.
(3) Pre-Brcwn, Kansas City police failed to assist, blacks whose homes were
bombed when they moved into all-white neighborhoods (T14833), and the department,
segregated its force until 1959 (T5068-9). (4) Until the mid-1960s, the Jackson
County Court, and KCM jointly ran 4 explicitly segregated juvenile homes located
in FO, IN and LS, all of which received children cn a countywide basis. (6/5/85
Opn at. 21-2; X84, 222A).
-*T4132-4, X2322. Missouri had well over 10,000 school districts in 1900, 8326
as late as 1948. X212.
®In 1924, 86% of Missouri's 9000 districts had fewer than 60 children, 71%
fewer than 40, and 41% fewer than 25. In 1928, 30% of Missouri's school
teachers taught, in 1-rocm school districts (compared to 10% in Texas, 8% in
North Carolina and 7% in Georgia); and in 1945, over 5300 districts in the state
(about 65%) had fewer than 15 students. X210, 212, 507, 2322.
7'Throughout the 1900-50 period, there were over 60 school districts in Plat.t.e
- 3 -
Missouri imposed it.s segregation and fragmented-organization systems
on a widely dispersed black population. Between 1382 and 1923, over half of
Missouri's school-aged children lived in 93 counties with fewer than 1000 black
children distributed among anywhere from 60 to 100 school districts, and in sub
sequent years state documents reported tens of thousands of black school
children "scattered" throughout Missouri's "smaller cities...villages" and
"rural areas." X208, 210, 184 (1929), 184A (1943). Here, too, the 3-county area
was typical.^ Indeed, as of 1900, blacks made up about the same proportion of
school children enumerated in suburban Clay, Platte and Jackson Counties (7%) as
in KCM itself (9%) and accounted for 20% of the black children in the area. X51,
53E.
The consequence of mandating dual schools in thousands of 15-, 25-,
and 50-children districts among which half of Missouri's black children were
distributed was that those districts reserved the single schoolroom they could
afford for whites. As the 1924 Annual State School Report (Rep.) acknowledged,
"the isolation of colored children.. wonder the dual .system of education
[creates] one of the most perplexing problems in school administration" — how
to provide for black children "without taking a larger amount" of available
County (today there are 5),70 in Clay County and just under 100 in Jackson
County, many with fewer than 20 and even 10 students. X49-50C, 55B-E, 140,
150-3; T4203. Missouri officials repeatedly acknowledged that consolidated
districts would equalize and increase the educational opportunities of chil
dren and insure better learning (X207, 210, 212, 213, 507), but took no action
to require reorganization measures until just before Brown. See 1948 Mo. Laws
(S.B. 307). When legislatively mandated consolidation procedures took effect in
the decade surrounding Brown, however, the number of school districts in the
state dropped by over 5000 (compared to a reduction of 96 between 1930 and 1940)
and decreased by 30 and 92%, respectively, in Jackson and Platte Counties. X507,
(p.38) Herndon D90-1.
®As of 1900, all 25 townships in the area reported black populations, and in
1910, nearly all of the scores of "enumeration districts" into which the Census
Bureau divided Clay and Jackson County outside Kansas City enumerated blacks.
X37B-C, 43A-C; T3403-20. Approximately 60 distinct black settlements in the
3-county area outside KCM before Brown were situated in 55 different school
- 4 -
funds "than would be right." from "the larger group. "9
Rejecting proposals to solve its "perplexing problem" through integra
tion (supra n.4), Missouri chose instead to allow districts to forego black
schools and educate their black children on an interdistrict basis.^ Between
1866 and 1929, state law exempted school districts from providing schools for
districts” (current school district, in parentheses): Arley, Burlington (NK),
Carrol (LI), Excelsior Springs, Excelsior Springs Junctin, Faubion (NK), Harlem,
Holt, Kearney, Lawson, Liberty (LI), Martin, Mecca, Missouri City, Mos’cy (LI),
Moscow, Nashua (NK), Nebo, North Kansas City (NK), Prather Hill (NK), Randolph
(NK), Rocky Point., Smithville, White Oak (NK) in Clay County; Atherton (FO),
Blue Springs (BS), Buckner (FO), Courtney (FO), Elm Grove (FO), Fairviaw (BS),
Grandview (GVj, Greenwood (LS), Hazel Grove (LS), Hickman Mills (HM),
Independence (IN), Lee's Summit (LS), Lobb (FO/BS), Longview Farm (LS), Mason
(LS), Oakland (LS), Oldham (IN), Owen (FO), Peacedale (FO), Pitcher (KCM),
Pleasant- Valley (KCM), Prairie Dale (FO), Raytcwn (RT), Reber (FO), Rock Creek
(KCM), Sibley (FO), Spring Branch (IN), Staple (IN), Sunnyvale (BS), Union (FO),
Williams (BS), and Wright (LS) in Jackson County outside Kansas City; and
Parkville (PH), Plat.t.e City, Rocky Point, Valley Forest, Waldron and Weston in
Platte County. T485-6, 899-900, 919, 949, 955, 1326, 2265-7; X37A, 38, 49,
136-8, 226, 1784 (HM), 1830, 1834-40 (RT); Fickle D39.
Fragmentary school records establish that predecessors of all but 1 of the
SSDs had black resident children prior to Brown, a number (e.g., Liberty and
Mosby (LI), Owen and Union (FO), Staple (IN), Big Shoal (NK) and Platte City)
having black proportions as high as 15 to over 43% in given years. X49, 49B,
1784. CE is the only SSD in which the meager school records available do not.
unequivocally reveal black children prior to 1954. But cf. X43C, 50B, 54A;
T5888-92 (1900-40 census data revealing anywhere from scores t.o hundreds of
blacks living in enumeration districts and townships which overlap CE) . In view
of X49 and 1784, the court's findings with regard to GV and HM (6/4/84 Opn at.
51, 55) — adopted verbatim from findings preposed by those districts (infra
n.86) — are plainly wrong.
9x210 (p.195). "Although the percentage of negro children in the state is
rather small (about 5V2%)/ the problem of providing an effective education
program for them [is] difficult [because] the state Constitution provides that
separate schools be established. In states in which the proportion of negro
children is large, the maintenance of separate schools for the two races pre
sents no great practical difficulties. But in a...state such as Missouri this
provision.. .ccsrplicat.es the problem of providing adequate school facilities at a
reasonable cost." X210 (1929 Rep. at. 123). Accord, e.g., X180 (1867 Rep. at
191), 208 (1873 Rep. at. 44-5) (1384 Rep. at. 9); 210 (1922 Rep. at. 31), 211
(1931-2 Rep.), 183 (p. 21), 184A (1945).
-̂ 9593 F.Supp. at. 1490; see Liddell VII, 731 F.2d at 1305-6; Adams, 620 F.2d at.
1280-1, 1294 n. 27. Missouri thus added another aspect, of "dualism" t.o its
system, "operat.[ing] an intradistrict system for white kids [while] send[ing]
the black kids out of the district.." T4204-5. When black parents complained
- 5 -
black children whose enumeration fell below 15 and required then to
"discontinue" black schools whenever black "average daily attendance" fell below
8 ;1 1 and in 1929, the legislature gave "any school district" in the state, no
matter what its black enumeration, the qption to forego schools for blacks.
1929 Mo. Laws 382.
From the late 19th Century on Missouri law permitted districts not
required to provide schools for blacks to educate their black children on an
interdistrict- las is; but it was not until 9 years before Brown that state law
actually required districts to do so and to reimburse black children for the
full cost of their tuition and transportation elsewhere: (1) Missouri law did
not. give black children denied schools in their own districts even the
"privilege" of attending elsewhere until 1883 (corrpare e.g., 1874 Mo. Laws
163-4, with 1883 Mo. Laws 187), and when it did, it limited their attendance to
elementary schools (if there was cne; often there was not.) in the same
"township" or "county" until, respectively, 1887 and 1945 (compare 1945 Mo.
Laws 1700, with 1887 Mo. Laws 270, 1883 Mo. Laws 87); (2) it did not actually
require local boards to make interdistrict arrangements for elementary students
and to pay their tuition and part- of their transportation until 19 2 9 ,12 dig not.
extend those requirements to black high school students nor provide for state
about the hardships their children bore in transferring out of their hame
districts away frcm the local schools for white children, the Missouri Supreme
Court- conceded the inconvenience but found no "substantial" inequality. Lehew
v. Brumroell, 15 S.W. 765 (Mo. 1891).
Hl865 Mo. Laws 177; 1869 Mo. Laws 86-7; 1870 Mo. Laws, 149; 1887 Mo. Laws 264;
1893 Mo. Laws 247; 1909 Mo. Laws 790-91; Savage, The Legal Provisions for
Negro Schools in Missouri, 16 J. Negro Hist.. 309, 318 (1931) (school closure
"law keeps...five or six thousand Negroes out. of school each year").
■^Compare, e.g,, 1883 Mo. Laws 187 with 1929 Mo. Laws 382-33. See State ex rel.
Herman v. County Court., 277 S.W. 934 (Mo. 1925) (black children to have no stand
ing to sue to require their home district, to pay tuition in another district.).
- 6 —
reimbursement, of any portion of the local dist.rict.s' costs until 1931, and its
chief state school officer exempted local boards from conplying with the 1929
and 1931 provisions until late 1933 (1931 Mo. Laws 241, as interpreted in X135
(p. 21)); and (3) it did not withdraw either the 1929 Act's $3/month limit on
transportation costs the local districts were required to reimburse or the 1929
and 1931 Acts' limitation cn tuition/transportation payments to intraccunt.y
transfers until 194 5.13
Analyzing these laws in 1923, State Negro School Inspector Young noted
that Missouri was adequately providing for cnly the "50% of her Negro popula
tion" residing "in cities and a few other dist.rict.s" and concluded that so few
black children were in school because State law did not. "mak[e] it mandatory
upon school officials to provide schools, or instruction, for their Negro
children or pay transportation charges for these children to attend other
schools:"
In some districts there are not enough Negro children of
school age to have a free public school under the law. .. .
Hundreds, if not. thousands, of Negro children are denied free
public education through the operation of this law, which
literally "pockets" them educationally.... In other school
districts there are not enough Negro children to justify the
expense of organizing a high school, even if the officials
were willing, [so] they are marocned as regards public high
school education. The number thus denied free secondary
training is even greater than the number denied any public
education at. all.14
Even after 1933, 'hen the State first required educational arrange
ments for blacks not. provided for at. home, many blacks outside Missouri's cities
-^compare, e.g., 1929 Mo. Laws 382, with 1945 Mo. Laws 1700. See X2325 (1936 St.
Dept.. Ed. Bull, noting school district.'s right to require "pupils to pay. ..the
cost, of.. .transport.at.ion [which] exceeds" the statutory maximum); 3d. of Educ.
v * Louis, 149 S.W.2d 878 (Mo. 1941) (school districts not. required to pay
for int.er-count.y trans fers).
14x210 (1928 Rep. at 137); 1858B. Accord, e.g., id. (46% of black children in
state denied free 12-grade education); N185 (1932 St. Dept.. Ed. Bull. at. 24) ("No
doubt, many districts having colored pupils enumerated made no plans last, year
- 7 -
remained without, free public education. In 1937, for example, for every rural
school district, providing school for its black children there was another pro
viding no arrangements at all; and as late as 1946, the State Supt. reported
that, the liberalization that year of the ceiling on reimbursible int.erdistrict.
transportation costs for the first time "provid[ed]n an "approach to equality of
educational opportunity. "15
Conditions in the 3-county area outside KCM followed the statewide
pattern. Frcm World War I to 1954, local school officials in only 6 of the 61
black settlements in the area (supra n.S) ever provided elementary schools for
their black children; 3 of the SSDs and their rryriad predecessor districts pro
vided absolutely no schools for blacks. T14799. At. the secondary level, access
to schools in the area was even more limited, especially as compared to access
for pupils to attend schools"). Under- and non-enumeration of blacks by
districts with numbers sufficient to require black schools was also conrron.
S.g., X210 (1921 Rep. at 161) ("There are not. as many colored schools as there
should be [because] some school boards... feel that these people should not. be
given a school if it can possibly be avoided"); X182 (p.ll); X1858B, 187;
T4255-72, 5323-5, 5782-92; see State ex rel. Morehead v. Cartwright, 99 S.W. 48
(Mo. App. 1907). See especially X54B (1910 U.S. Census shows blacks aged 6-20 in
area covered by FO predecessor districts; those districts enumerate no blacks
that, year); 54A (1940 census shows 334 blacks in township wholly encorrpassed by
CE, GV, HM and RT; those districts enumerate no black children that year).
Between 1868 and 1883, whenever any local district "refuse[d] or neglect!ed] to
provide for a [black] school as contemplated" by law, it was "the duty of the
State Superintendent, to provide for such school." 1868 Mo. Laws 170, repealed,
1883 Mo. Laws 187. During that short, period, the State Supt. established as many
as 60 schools a year. X208 (1873 Rep. at. 41; 1874 Rep. at 36). 15 *
15X114 (fig. 4), 187 (p.22), 184A (p.218), 212 (p.39), 189 (p.3). Throughout
the 20th century, moreover, those schools that, were provided blacks outside
Kansas City and St. Louis were inadequate: "In these schools, if they may be so
called, educational opportunities are practically non-existent. The typical
school is in operation for about six months a year. The teacher, usually...
young and immature..., has had little if any training above high school and fre
quently not. so much. The building is usually a miserable shack totally unfit,
for human habitation. Textbooks and reference books are scarce and usually
dilapidated. They are unsanitary, totally unattractive and generally
unsuitable." X210 (1929 Rep. at 122-3); accord, id. (1922 Rep. at 33, 1927 Rep.
at 147), 1858, 212 (1945 Rep. at 37), 189.
- 3 -
to white high schools. Concluded Dr. Anderson, "as a whole, from the
establishment, of Lincoln High in 1887...to 1954,...this 'was a one high school
area." T4334-5, A3.
Where 3-county area officials failed to provide black schools, they
also often failed to make alternate arrangements. Even the fragmentary
pre-Brown records available show scores of school districts in the area enu
merating blacks bat not. making any provision for their education. X37A, 37B,
39, 49. Of the 55 school—less communities noted above, for example, none pro
vided reimbursement, for their black children's tuition or transportation
elsewhere until LS became the first, to do so in 1931, and no district, joined LS
until IN in 1945, followed by PH and IK in the late 1940s, and LI in 1953.17
Moreover, while KCM elementary, junior high/vocational, and high
schools were the best in the state for blacks, (e.g., T1792-3, 1905, 3535), the
few black schools outside KCM were "quite inferior," whether compared to those
l^In 1925, there were 11 first class high schools for whites in the 11-SSD area,
none of any sort for blacks; in 1935, there were 12 high schools for whites,
.100% of them rated "first, class, " and 2 for blacks, rated "second" or "third"
class; and in the year before Brown there were again 11 first class white high
schools but no black high schools at. all. X39S-C, T4291-4, 4310-8. Both of the
black high schools intermittently operated by the SSDs for a decade or two after
1930 closed immediately upon black parents' insistence that the facilities and
programs be equalized with one available to whites. T317, 1354-6, 3748-50, X107
(p.54), 1830-4 (LI).
17 (a) (Letters in parentheses keyed to citations Ice low.) At a time when KCM's
tuition represented V4 of the average black family's income (T4313-4, 5355-3),
3-county area black parents were forced by their local districts' refusal (b) t.o
make provisions either to forego educating their children (c), or to bear the
expense of alternate arrangements, for example: attempting to enroll their
children in white schools (d) (efforts which succeeded only once, in the Owens
(FO) district, until 1910, when the Attorney General threatened prosecution for
integrating schools (e)); collecting private subscriptions to operate intermit
tent private schools (f); conveying their children t.o school at their own
expense (often via 2-hour trips each way (g)) by car, public bus, train, horse
and buggy taxi, or hired hearse (h), or simply by walking with their children
the 5 or more miles to school along the same road traveled by white school buses
(i); boarding the children with strangers (j), or with friends or relatives in
the city (often requiring the children t.o move 3 or 4 times before finishing
school) (k); breaking the family into 2 households — mother and children
- 9 -
in I<CM or to the white schools in their cwn districts. 18 Overall, education for
blacks in the 3-count.y area cutside KCM was "a system of no schools, poor
schools, a system where tuition [and] transportation was not, provided quite
often." T4328 (Dr. Anderson).
* * * *
The district, court, found "an inextricable connection between schools
and housing in the Kansas City area." Because [p]eople gravitate[d] toward
school facilities,'" the "'location of schools influence[d] the patterns of
residential development, of [the] metropolitan area and ha[d] important impact, on
composition of inner city neighborhoods.’" 593 F.Supp. at. 1491 and 6/5/84 Opn at
101, quoting Swann, 402 U.S. at 20-21. Missouri's peculiarly interdistrict,
system of locating separate schools affected 3 residential patterns: the depo
pulation of blacks in suburban areas outside KCM; the increase in KCM's black
population; and the all-white suburbanization of the 3-county area outside KCM:
establishing residency in town where schools were available; father staying at
home to earn a living or giving child up for adoption to parents in the city
(l); or simply foresaking jobs and moving the entire family to the city (m).
Citations: (a) E.g., X185 (p.21), 206, 224A, 1807, 1831, 2392, 3595, (b)
E.g., T124, 429, 527, 543, 1125, 1254, 1678, 2843, 3142, 4327. (c) E.g., X52B,
T317, 530, 590, 1009, 1100, 1235, 1329, 2687, 3206. (d) E.g., T527, 533 (MK);
946 (BS/FO); 1687 (LS); 3142 (PH). (e) E.g., X49, 6 6. (fTE.g., T369, X39, 49
(NK); T4286, X39, 49 (Ed). (g) E.g., T1623, 1747, 2133. (hTELg., T1470, 3243,
1363, 3178, 948, 146, 421, 1255. (i) E.g., T423, 1009. (j) E.g., T890 (BS/KC),
3532 (PH/KC). (k) E.g., T890 (BS/lN/KCM/Kansas (KN); 2726 (PH/tfebraska/KN/KCM);
1134 (LS/IN, LS/KN), 3183 (PH/KCM/KN/Jeff. City); 1115, 1329 (.Platt.sburg/KCM);
1146 (LS/kCM); 1830, 2497, 3268 (Ll/Ex.Sp./KCM); 923, 26G3.
(NK/Plattsburg/Ex.Sp./Ll); 828, 1356, 1713 (IN/KCM); 127, 323 (NK/KCM), 890,
951, 1806 (BS/KCM), 1516, (Harrisonville/KCM). (1) E.g., T791 (BS/lN/KC); 890
(BS/IN); 708, 1203 (LS/KC); 1642, 1688. (m) E.g., T324, 434 (NK/KCM); 952,
(BS/IN); 922 (BS/LI); 1199 (LS/KCM), Cans D21 (Ll/KCM); 1053, 1064
(Plattsburg/KCM); X40.
18E.q ,, T16835; 818-24, 1743-6, 3748-50; X200, 2400 (IN); 2275 (PH); T482-3,
928, 1829, 2029, 2379, .3517 (LI); See X39-A, 73-8.
10 -
1. Between 1900 and 1950, both the number and ratio of black school-
aged children in the 3-county area dropped substantially, led by families with
school children, vhose proportion declined from 36 to 21% over the period.
X49A, 51, 54; T10825-30.
Total and Black Enumeration, 1900-54 (X53E)
Missouri's segregated school system,19 and local witnesses belcw repeatedly con
firmed their conclusions.20 Overall, the interdistrict, system of segregated edu
cation in the 3-county area "meant that blacks were penalized for being
dispersed" among whites; by law they "had to live in concentrations in the
city...to have any reasonable hope for any kind of education." T4335 (Dr.
Anderson).
"Undeniably," the court below concluded, "some blacks moved" out of
districts which did not. "’maintain the state-required separate schools [for
Instate Education Commissioner Baker, for example, found that. "[o]n account of
the lack of school facilities in many small towns and rural districts there is a
desire on the part of negroes to move to the larger cities...and congested
centers," and "inclination...increasCing] from decade to decade." X210
(1922 Rep. at. 31). His successor, Lee agreed, e.g., X210 (1924 Rep. at. 197), as
did the school surveyers Lee hired to look at Missouri schools as the Depression
began, X184, and the statutorily created Negro Industrial and Educational
Commission, X182 (p.ll). Accord, XK30, A91
2°Eppie Shields, for example — a lifetime NK-predecessor-dist.rict. resident,
whose parents had t.o pay for him to be educated in LI (only months before
hearing of Brown) and who had to walk miles to get. to school — moved his own
family t.o KCM in 1954 because "[t.]here wasn't, any black schools out there, and I
- 11 -
blacks].•.to districts, including the KCMSD, that provided black schools." 593
F.Supp. at 1490. "Before 1954 access to schools [along with]... economics and
job opportunities were...major factors in black migration" and in 'blacks
cho[osing] to move into the KCMSD," id., "prorrpt[ing] the depletion of black
people from the surrounding towns...in the metropolitan...Kansas City area,"
T16693, cited in id.
It is "inpossible to get a count of all" children residentially
affected by these segregation-induced forces (T4312-4 (historian Anderson)): the
pre-Brcwn records the SSDs kept regarding the fact, and number of black children
living there are fragmentary at. best.? 21 the districts kept, no records showing ’new
and where their black children were actually educated over most, of the period;22
and the district, court, ruled the long and tedious process of "recreating" the
missing documents through testimony 30 to 120 years after the fact, unnecessary, * 21 22
didn't plan to go through the frustration and problems that, my folks did to
get...my children in school. T434; accord, e.g., T182, 324, 474, 539, 548, 708,
761, 855, 920, 933, 951, 1021, 1053, 1143, 1292, 1339, 1400, 1656, 1689, 3167,
3598. Dr. Orfield generalized: "If you are a member of a racial minority who
lives in an area...in which all public offices and all the educational offices
are controlled by the other racial group, where there is a history of complete
segregation and where your [children] are not permitted to attend any of the
schools that, are offered to children in that, district., all you have to do is
imagine yourself in that situation to realize that it would have an inpact, on
whether you chose to live there or not." T14797. The learned literature reaches
the same conclusion (see T4349-50, 16846-71, 18796-822, 21117-24), typified by
Gunnar Myrdal's An American Dilemma that, "[l]ike many other oppressed people,
Negroes place[d] a high premium on education," and were "stimulateed]" to
migrate by a desire for "access to more and better schools." T18803.
21T4255. Inaccurate at worst., supra n.14. Testimony established the presence
of black school-aged children in numerous SSDs or predecessor districts in years
in which no official records are available. Compare, e.g., X49, with 1785 (HM);
1826-28; T317, 531, 566 (NK); 726, 756 (BS), 1437-8, 897-3, 2265 (FO); 3138-43.
Compare also Campbell D146-51 (LS records show no black students there in
1911-30) with X49 (LS records at. Jackson County Historical Society show blacks
in nearly all those years).
22virtually no records were kept, during the period when the system's effects
were most pernicious. (1) No district, in the area took responsibility for
paying for its black students' education elsewhere until 1931 in one instance
and the 1940's in all others, so no records were kept, of where they attended
- 12 -
cutting off further presentation of such evidence. See infra n.126. The
available evidence shews:
• Although 21% of the black students in the 3-county area as of
1900 lived in suburban areas outside KCM, their number shrank
75% (1077 students) by 1954, and their proportion in the
3-count.y black enumeration dwindled to 3%. X53E.
« While fragmentary school records show that 10 of the 11 SSDs
or their predecessor districts had black students prior to
1954 (supra n.8 ), 8 of those districts (BS, CE, DO, GV, HM,
LS, NK, RT) had no black students left to enroll by 1954 —
and did not. enroll any until the 1960s or 1970s — and 2 of
the remaining 3 have yet to enroll as many blacks in the
post.-Brcwn period as they did at their pre-1954 black
enrollment peak. X53, 53G; compare id. with X49.
• In 1929, the State reported that, while only 46% of the sta
te's black elementary school students attended schools in KCM
and St. Louis, 84% of the high school students in the state
were attending there, a 38% disparity suggesting that 2090 of
the 4620 black high school students there were interdistrict.
transfers. X210 (1929 Rep. at 122).
• The "oral history" evidence plaintiffs were permitted to pre
sent. in lieu of accurate recordkeeping by the SSDs allowed
just, under 800 examples of interdistrict. transfers fretn the
3-count.y area, representing in Dr. Anderson's uncontradicted
expert, opinion only a small "fraction" of the number of
children actually affected. X40, 1775, T4312-4.
• In the decade before Brawn, there were sufficient, nonresident
students in Lincoln High to cause the Urban League to demand
that, transfers be barred as a solution to overcrowding, and
to cause KCM a few months before Brown to prepose denying
nonresident blacks admission. *
school. T4312-4. (2) "One of the major incentives in the whole process was not.
t.o become a record, that is, for families with school children to establish
residency or to move in and live with relatives or friends because of the high
cost, of tuition and. . .transportation that were not reimbursed, so you don't.have
the records available." T5856 (Anderson). Thus, while KCM's Beard strictly for
bade black nonresident students to attend without paying tuition (T4428,
X226-27A), black teachers and principals ignored known nonresidents who moved in
with relatives and registered as residents; and it was "general knowledge" among
them that, many children did so. T2110-1; see T1686, 1713-4, 1806-7, 3531-2.
Overall, "[tjhere's no way to quantify or establish anything close to the
complete record of people involved in the interdistrict. system." T5856
(Anderson). See X1770; T138-9 (stipulation regarding unavailability of inter
district- transfer records).
13
• The only official, though non—racially coded, compilation of
inter-district, transfer data available in all the defendant
districts1 files shews that in the 6-year period preceding
Brcwn, over 2200 of the total enrolling high school children
in the KCM were "non-resident high school pupils," of whan
anywhere from 240 to 600 or more may have been black. 23
• The testimony at trial revealed dozens of people who, along
with their children — and their children’s children and
grandchildren — never returned to the suburbs and remained
in KCM after commuting or moving there for school. 24
• The dual interdistrict. system resident.iallv "affected
everyone that, was trying to get [an] education. ... [F] ami lies
and schoolchildren that, wanted to receive a high school edu
cation in this area were sent, to central Kansas City, which
was about the oily place to get a high school education. .. .We
also knew that there were areas like NIC that did not. maintain
elementary schools for children. They had to cone into
Kansas City. LS closed the elementary school down in 1910.
They. ..first went, to Kansas City and then to IN. IN closed
Young High School. They came into the city.... In all the
areas that did not maintain schools for blacks, it had an
effect, because [blacks] could not. live there and have any
access to education." T4334-5 (Dr. Anderson).
2. The district, court, found the effects of Missouri1 s interdistrict,
segregated school system on blacks migrating to the area from outside the state
23X1770, discussed, 6/5/84 Opn at 45. The "251" SSD-KCM transfer figure cited by
the court, from T4557 (6/5/84 Opn at 16, adopted verbatim from p.36 of tine SSDs'
preposed fact-findings) is wrong. The figure comes from the question of a
defense attorney; was not verified toy the witness (who "didn't check" it.
because it would "distort" the "qualitative" value of the data to quantify it,
T4313-4, 4557, 5857); and was admittedly only .an "approximation" of X40 by
defense counsel who conceded his "math may be off" — as indeed, it was toy quite
a bit. More inport.ant.ly, defense counsel expressly stated in asking the
question that the 251 figure represented transfers "from current defendants.
I'm not. talking about any predecessor districts." T4557-8. Most, of the SSDs
did not. exist, until the late 1940s or early 1950s (T6078-86, X960), and a
good many of the transfers in X40 are from SSD predecessor districts. E.g., X49
(70% of NK's pre-1954 blacks and 100% of BS's and FO's were in predecessor
districts). Accordingly, even were defense counsel's "math" correct, as to
transfers from the current, "suburban school districts to the KCMSD" (6/5/34 Opn
at. 16), it emits many of the transfers for which the SSDs are now legally
responsible. See nn.124 & 125.
24E.g., T324 , 434, 1037, 1059, 1143, 1207, 1688 , 2133 , 2698 , 2769 , 2779 , 3228,
9438, 9511, Edwards D39-58; see T2839 (of the 44 transfers PH witness could
name, 57% later lived in KCM).
14 -
even greater: "[S]chools" would "often...influence.. .what housing choice would
be made within the city" by the "influx of blacks... frcm southern and border
states." 593 F.Supp. at 1490. "Regardless of their motivation for coming, once
here, blacks settled in the inner city, or the 'principal black contiguous
area'" where KCM's "segregated facilities [for blacks] with, segregated
staffs.. .were located." Id. at 1491, 1492. "This in-migration coupled with a
high birth rate resulted in the Kansas City black population doubling" from 1940
to 1960. Id. at 1490.25
3. "The availability of schooling in the city, the unavailability out
side, the quality inside versus the low quality outside" were also "deterrents
to blacks participating in the suburbanization process" that began among whites
in the 3-county area in the 1920s and took off in the decade and a half before
Brcwn. T5853 (Anderson) A4-5; X49A, 51A. As the State's expert, geographer
testified, the SSDs' boundaries over time became "barriers" to black subur
banization by taking on "symbolic meanings" — in part., he testified because of
•^Expert, and lay testimony bears out the court's conclusions. (Jimmie Marie
Thomas, World War II migrant to the area from Texas, did not consider living in
SSDs because "I planned to have children and I knew in the suburbs that, the
black children after they get. out. of elementary school came into Kansas City for
high school, and I certainly didn't want to buy a heme that would take us pro
bably 15 to 25 years to pay for and have to transport, riy kids into Kansas City
when they got out of elementary school" T3598). E .g ., T21120 (Dr. Amos Hawley,
president of the American Sociological Ass'n: "there's an abundance of litera
ture in all...areas, historic, demographic, survey, that indicate that schools
are of paramount, concern for blacks, in [short, and] long distance moves. The
job. . .may be the first, statement of objective but. once they arrive, schools
become extremely important."); T3598.
Lincoln High School in particular acted as a "magnet." not. only for black stu
dents but. for black residential settlement, in its immediate vicinity and black
commercial development nearby. T14782-99 (Orfield)? accord, 16846-9 (Weinberg).
See T325, 434, 922 (blacks moving from SSDs to KCM typically bought, homes in KCM
as close to a school building as possible). On the other hand, while war and
related industries opened up numerous jobs to blacks in or near the SSDs from
the early 1940s on (e.g., X138A; T5826, .18977, Jones D23, Orfield D6 ; plants in
or near BS, CE, PO, GV, HM, NK, PH, RT), the affected SSDs either enumerated no
black (children at. the time or experienced black enumeration declines. X49,
T4615. See also T922, 951, 1292, 1400, 1682, 2192, 3168 (black families roving
- 15 -
blacks' "unpleasant experiences [there] in the past. . " * 26
Dr. Orfield described the overall residential impact, of Missouri's
int.erdistrict system of segregation as a tragically lost opportunity for the
high degree of residential integration cnce characterizing the 3-county area to
translate to metropolitan-wide school integration when segregation was barred.
T14805-6, 15286-7. See also T19259 (testimony of State's geographer that "the
existence of a core of blacks caused by [governmental segregation] in the Kansas
City area would have long lasting effects because.. .blacks tend to move short
distances from the core. ..and in-migration [of blacks] tends to focus on that
black core as a result, of... informational networks" ) . 27 * * As the district, court,
found, "[t.]he intensity" of the resulting "segregation is demonstrated by the
fact that, the average black family [in the city] lives in a census tract, that is
85% black while the average white family [in the suburbs] lives in a census
tract, that is 99% white." _Id. at 1491, citing T14745.
B. Missouri's Metropolitan-wide Dual Housing System.
"In the past, the State has taken positive actions which were discrimi-
away frcm job location in order to alleviate effect of segregated schools).
26T22076, 22091 (citing NK as example); compare T182 (former NK resident who
transferred, then moved to KCM for school and decided not to return thereafter
because "I wouldn't, want, to subject, my children to. ..the things I went through").
The same forces in reverse shaped white suburbanization. Thus, cne fallout of
the state's dual system was to "create an atmosphere in which...white individuals
[developed] prejudice against blacks" and black schools. 593 F.Supp. at 1503.
By identifying the SSDs as "white districts...intended for white families" and
KCM as the "one" district, in the area for black students and teachers, then
attaching perceptions of superiority to the "white districts" and of "undesir
ability]" to KCM and its black schools, the int.erdistrict. dual system
encouraged white families to move from, or steer clear of, the city and move to
the suburbs. Orfield D67, T4334, 14807, 16704. "As blacks moved or were busied
to the schools in the area, iAhit.es moved out.." 593 F.Supp. at 1494.
27Accord, T4444, 14782, 16707, 18968. See X3003A (l/3 to 2/3 of households
now living in all-black tracts in KCM core area have lived in the same house
since 1959, the earliest, date for which data are available. In addition to
residential effects, the district, court, "confirmed. .. .the conclusion [in]
Brcwn I," that "forced segregation...ruined attitudes...'in a way unlikely ever
- 16 -
natory against, blacks," chief among them, "enforcing racially restrictive
covenants." 593 F.Supp. at 1503. "These actions had the effect, of placing the
State's imprimatur on racial discrimination..., and ha[d] and cont.inueE ] to
have a significant effect, on the dual housing market- in the Kansas City area."28
Id. By affecting where thousands of black and white families come to live,
moreover, these actions were "inextricably interwined" with "school
composition." 6/5/84 Opn at. 101; see T12974-6 (A21-26), cited, 593 F.Supp. at
1491.
1. State-enforced racially restrictive covenants. "Racially restrictive
covenants were intended to cause housing segregation" and "were enforced by the
courts of Missouri until [5 years] after Shelly v. Kraemer, 334 U.S. 1 (1948)."
593 F.Supp. at 1497.28 As urban planner Gary Tobin testified, such covenants
were recorded on "a large proportion of the residential land uses in 1947, "30 and
created both (1) a "minefield effect...by their widespread location throughout,
the area" outside the black community surrounding Lincoln High School, which
"serv[ed] as an effective barrier to black movement" outside the ghetto and into
to be undone1" and created a "general attitude of inferiority among blacks
[which] produces lew achievement [and] ultimately limited employment, oppor
tunities and causes poverty." Id. at 1492 quoting Brcwn I, 347 U.S. at 494.
28By "dual housing market., " the court, referred t.o the "system. ..whereby blacks
were served by...a different, real estate community than whites" and in which
"blacks were steered only. ..to southeast. Kansas City or the ghetto...and were
unable to buy outside that, area," while "whites were steered elsewhere," causing
"that neighborhood to turn over [from white to black] block by block." T12008-9,
cited 593 F.Supp. at. 1491.
28Compare Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949), with Barrow v. Jackson, 346
U.S. 249 (1953). 30 *
30See 13023; X22 (restrictive covenant, location nap overlaid by map of school
district, boundaries showing that, all SSDs but. FO had racial covenants, that all
areas residentially developed as of 1947 outside KCM's black core area — either
had or were near other .areas which had racial restrictions, as were numerous
areas not. yet developed, and that, a nuirtoer of small black communities in the
3-count.y area outside the central black area were ringed by restrictive cove
nants so that, they could not. expand); T13030, 14838 (extensive 3-count.y area
- 17 -
the SSDs,31 and (2) a "bursting dam phenomenon, " characterized fey "a very rapid
migration of blacks to an area and. ..rapid outmigration of whites" "where
restrictions were broken."32
2. The State's impact on FHA's refusal to insure mortgages on homes
by racially restrictive covenants. Since 1934, "FHA [has] guaranteed or insured
payment, of residential mortgage loans for.. .qualified [homebuyers] making it.
possible for [them] to purchase homes with very low down payments and interest
rates below the national average." 593 F.Supp. at 1496. Between 1936 and 1947,
FHA. appraisal manuals provided that racial covenants and concern for racial com-
patability "would tend to insure a stable community [and] erihanc[e] the value of
property" and cautioned agency personnel against insuring mortgages on hemes
unless they were (a) covered by racially restrictive covenants, (b) located in
"racially homogenous" neighborhoods, and (c) geographically removed from black
or integrated schools. X1304 (A98); T13047-8. "[Tjhereafter," as lat.e as 1959,
FHA's manuals continued to place "emphasis...on such considerations as
[avoiding] a change in occupancy...from one user group to another" and on a pre
ference for "social homogeneity" and "compatibility among the neighborhood
occupants." 593 F.Supp. at. 1497; X1305. Consequently, as the board chairman of
one of Kansas City's largest mortgage conpanies testified below, local home
press coverage of racially restrictive covenants before Shelly); T1316, 1897,
2985, 3356, 3808, 3853, 5063, 9927, 13671, James D59-60; O'Flaherty D15;
Thurman D54 (difficulties encountered toy witnesses in finding housing due to
racial covenants).
31T13037 (A23). Like segregated schools, restrictive covenants funneled in-
migrants into the black-concentrated areas near where KCM's segregated schools
were located, insuring that, "when the schools were opened [after Brown], they
would be segregated." T14878-79. See also 593 F.Supp. at 1492-3. 32 *
32T13024, 13034-35. In addition, the "widespread adoption of restrictive
covenants...limited black housing supply...confined [blacks] t.o older
areas...[and] resulted in overcrowding, high density, and deteriorated
conditions" in the area surrounding KCM's all-black schools, contributing to
white flight out of the area. T13033-5, cited 593 F.Supp. at. 1491. Accord,
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finance institutions could not. get. FHA insurance in areas Where racial restric
tions were not in force ' until 1962, when President. Kennedy issued Executive
Order 11063.33
The court, expressly tied FHA's adoption of these policies to Missouri's
restrictive covenant enforcement: "without a doubt....[covenants] did have an
effect, on the market value of residential property," and other actors in that
market, including FHA, "faced with this reality could not. ignore it in iraking a
determination [of] the maximum risk" they were willing to incur. Id.34
3- State—FHA impact, on the dual housing market.. The State's "positive
act-ions.. .discriminatory against blacks... created an atmosphere in which, private
white individuals could justify their bias...against blacks" and "encouraged
racial discrimination by private individuals in the real estate, banking and
insurance industries," who, "[t.]here is no doubt-..., did engage in discrimina-
T14848-9 (Orfield). As State's expert. Clark noted, the most longlasting effect,
of restrictive covenants may be the retarding effect, they had on black acquisi
tion of equity in a period of tremendous equity formation by whites. T19157-8;
accord T14867, 15416. ("In the 1925 to '40 period, .. .only 15 new homes were
available to blacks throughout this entire city").
33Thompson D74 , 84 (A61-62) ('until 1962, "FHA and VA wouldn't, insure and guaran
tee loans [in the Kansas City area] unless there was a [racial] restriction
involved, and most lenders on residential property were relying heavily upon the
FHA and VA for their protection. So that as long as that, remained their posi
tion, the lendor really had no choice but. to observe the restriction."); James
D59, 82 (HUD appraiser stating utilization of restrictive covenants was not pro
hibited by FHA insurance procedures until early 1960s); X1239A (new racial cove
nants recorded in 3-county area as late as 1960); T1316, 3853 (blacks
encountered difficulty buying covenanted property in early 1960s); Bridges D90,
X1627 (owner refused to sell HAKC property in RT for public housing, citing
racial covenant). See also X2854, T98S9-92 (between 1950 and 1969, expressly
pursuant, to FHA regulations, major Kansas City area title company recited all
pre-2/5/50 racial covenants in title insurance policies: practice not changed to
forbid references to all racial covenants imt.il FHA "reduced the hazard" of
doing so by ”revok[ing] its [1950] regulation which [only] made loans ineligible
for insurance ...if racial rest.rict.ions were imposed after 2/15/50"). 34
34As a result., the "15,000 homes in the KCMSD" insured by HIA prior to 1950, the
tens of thousands more insured by FHA in the reminder of the metropolitan area
during the pre-1962 "racial and social compatibility" regime, and the even
greater numbers included in subdivisions whose developers, of necessity, con-
- 19 -
t.ory practices such as redlining, steering and blockbusting." Id. at. 1503.35 As
a result., "[a] large percentage of Whites do not want blacks to reside in their
neighborhood" and "move[d] out." of KCM's southeast corridor to the suburbs when
blacks came to reside there. 593 F.Supp. at 1503, 1497; see 6/5/34 Opn at 41.
The Court, concluded that, by establishing some "areas in which minori
ties were not-...able to obtain housing" and other areas — most, particularly,
the areas surrounding and immediately to the south and east, of KCM's all-black
schools — into which minorities "were steered or channelled" (T12339, cited,
593 F.Supp. at. 1491), the state-enforced "dual housing market., which still
exists to a large degree today, impacted blacks in the KCM and consequently
caused the public schools to swell in black enrollment." Id. See 6/5/84 Opn at
40. Indeed, the court, considered it. a close question whether "[l]iability on
the part, of the state might be...hinged solely" on its part.icipat.ion in and
encouragement of the dual housing market.. Id. at. 1503.
• 4 ’ The impact, of the State/FHA-fostered dual housing market on persons
displaced by urban renewal and highway construction. In 1953, the state legis
lature established the Land Clearance for Redevelopment. Agency (LCRA), giving it
formed all their homes to FHA specifications even though only a fraction sub
sequently sold with FHA-insured mortgages (T14845), were racially segregated by
force of governmental edict. 593 F.Supp. at. 1494; 1497; see XFD373, (FHA
insured rmrt.gages on 75,000 homes in the Kansas City metropolitan area between
1934 and 1962); 2959, 2960 (1950s FHA publications stating that. 3 out. of 5 homes
sold in the 1950s were FHA underwritten and that FHA was "the outstanding single
influence on American horsing in this century."); T14850, 14864 (Orfield) ("FHA
•. .prior to [Shelly] set. up a system of post-war suburban development for whites
only,...contributed to the development, of segregated suburban attendance areas
and "made national policy on the premise that black areas were inferior and that
they weren't, worth investing in; that integrated areas could not. be stable and
that, they were inferior too and were doomed; and that segregated white suburban
development was the optimal way").
In the 1940s, for example, the defendant. Missouri Real Estate Commission
augmented state judicial enforcement of racial covenants by endorsing the
racially restrictive realtor Code of Ethics ("a realtor should not be instru-
raental in introducing into a neighborhood...members of any race...detrimental to
property values") and suspending the license of a PH realtor for "introducing
- 20 -
citywide jurisdiction to administer urban renewal programs under the Housing Act.
of 1949. Mo.Rev.Stat. §§ 99.320(1), 99.330. HUD provided federal funds to
assist in urban renewal. 593 F.Supp. at 1497. Between 1953 and 1973, LCRA
cleared residents from 13 major KCM project, areas. X353F. During that same
period, the Missouri Department of Highway and Transportation (MDHT) cleared
rights of way through KCM residential areas for 4 major highways. 593 F.Supp at
1501; T11161-2; Hunter 018-21; X367A. Between them, LCRA and MDHT displaced
nearly 14,000 households in the KCM alone prior to 1974, over 5,000 of them
black, nearly 9,000 of them white, many with school children.36
Three-fourths of the relocation in KCM took place before passage of the
Uniform Relocation Act. of 1970, 42 U.S.C. § 4601, at a time when LCRA and MDHT
limited their "relocation assistance" to racially steered referrals to private
realtors, all of whan at. the time were active in cnlv one or the other side of
the "dual housing market" (T12008-9, cited 593 F.Supp. at 1491), many of whan
blacks into white neighborhoods." T13042, cited, 593 F.Supp. at. 1491; X316,
1386; see T13040, cited 593 F.Supp. at 1491 (such "regulatory practices,
clearly sent, the message to realtors in Kansas City that.. . .separation of the
races through racially restrictive covenants was to be followed"). In this and
other ways, Dr. Tobin testified, the State and (following the State's lead) FHA
"st.andariz[ed]" racially rest.rict.ive practices in the "housing industry." T13062,
cited 593 F.Supp. at 1491. See T14971, X1075-7 ("[pjublications [supporting]
racial segregation...by the FHA in the 1930s continued to be cited...in the
training manuals and documents of the major private appraisal institutions and
savings and loan institutions well into the 1970s as sources justifying the
downgrading of mortgage appraisal in black or integrated areas"). X2959 (1957
FHA publication noting that the agency has "play[ed] an influential part, in the
revision of mortgage lending practices," provided "standardized mortgage
procedures," and "contributed materially to inproving housing standards through
the establishment of nhnimum property requirements"). See also Kushner D45-8,
O'Flaherty D45 (1968-75 State Highway Dept- residential acquisition appraisals
routinely included paragraphs discussing racial make-up of Kansas City neigh
borhoods and downgrading appraisals on property located in black and tran
sitional areas). 36 *
36X353I; T9695, 9701, 9716, 9894, 10314, 11229, 14039. In 1953-59, 11% of the
Kansas City black households reflected in the previous census were displaced.
X353I; T10961-2. In the 5 years immediately following KCM's first experiment
with integrated schooling, when substantial numbers of white children projected
during the summer to attend integrated schools did not show up in the fall (593
- 21 -
as late as 1959 advertised "colored" housing (T14032-4), and some of whom told
relocat.ees .as late as 1971 that, they "could not. show us houses no further than
75th [street.]" (the southern border of KCM).37 as housing expert. Charles Planner
concluded (see 593 F.Supp. at 1491, citing 12008), '/hen a highway or urban
renewal project, cleared predominantly black or integrated neighborhoods, reloca
t.ees "were just, dropped... into the local housing market, and blew whichever way
that housing market took them ... — Vvhit.es... to white housing markets and
blacks...to black housing markets in the black community or...southeast. Kansas
City." T12027-30.
After the 1970 Act. required State and local officials to help displaced
persons find replacement housing, Kansas City area relocation became mere segre
gative. As HUD concluded after a 1971-73 Title VI investigation, LCRA committed
"blatant, and flagrant." violations of Title VI through "racial discrimination
practiced in [its]...relocation programs" during at. least the first three years
following passage of the Act..38 as a result, "blacks were. ..located primarily in
F.Supp. at 1493), the State and HUD's predecessor, through the LCRA gave 5717
KCM displaced white households "replacement, cost." payments to find housing
elsewhere. X353I, T11246-7, 11058. Impact, on schools was great. Between 1955
and 1965, MDHT's construction of 1-70 and 1-35 and LCRA's clearance of a number
of previously integrated residential areas, caused dramatic declines in the
enrollment of the entire northern tier of KCM's all-black and (after 1954)
integrated schools separating the central black area to the south and east, and a
series of white neighborhoods to the north and northwest. E.g., T1991 (Franklin
School), 2651 (Yates School), 9651 (Garrison School); 9661 (Booker T. Washington
School).
3?T9703; accord, e.g., T9695, 9716, 9894, 10314, 14029 (relocat.ees); 9465, 9606
(realtors); 11517, 11158 (city planning expert.) 11672, 12027 (local housing
experts); XS54 (pp.9-13), 1506, 1509 (FHA 1960s Kansas City market analyses
recognizing that relocated blacks were served exclusively by "realtors for
Negroes" who consistently placed them in residential areas "for negroes"); X2914
(p. 369) (HUD fair housing officer). See Hunter D35 (prior to 1970 Act., MDHT
relied exclusively on private-market, relocation); X368 (p. 28) (MDHT relocation
plan recognizing impact, of "unethical real estate practices" on the "southeast
[corridor's] increasing segregation"). 38
38X2659 (pp. 2, 27), 2913, 2914 (p. 106), 2917; Cade D20; 5(267 (LCRA's Director
of Relocation stated that his staff "would not cooperate in referrals outside of
- 22 -
the southeast, part, of Kansas City while vhit.es were relocated throughout, the
Kansas City area." 593 F.Supp. at 1497.39
After charting and mapping the destinations of the 13000-plus black and
white KCM households displaced by LCRA and MHTD between 1953 and 1973, urban
planner Yale Rabin found that "the vast majority of.. .blacks [ended up] within
the KCM and the vast majority of...whites [ended up] outside the KCM...in each
of the 3 counties, in every direction." "Clearly the pattern of relocations...
had the direct, effect, of.. .reenforc[ing] the segregation of KCM and... the
overwhelmingly white characteristics of...school districts outside the KCM."
T11267-8.
5. The impact of the State/FHA-fostered dual housing market on HUD-
insured, -assisted and -subsidized single and multiple-family housing programs.
From the 1960s HUD has operated programs to assist low- and moderate-income
families to purchase homes or rent, apartments. These programs have all relied
almost exclusively on the segregative dual housing market to determine which
families obtained housing where — thereby funneling black families into KCM and
subsidizing the movement of lew- and moderate-income white families to the
SSDs.
a. FHA Single-Family Mortgage Insurance. Although EHA ended its
explicit "social homogeneity" policy in the 1960s, it. t.ock no affirmative steps
traditional black areas"); X2914 (p. 106) (conclusion of HUD's Fair Housing
Director that. LCRA's relocation steering was "bad, very bad, and continually
bad, and seemingly with no apparent, relief or change... from 1971 up until 1973).
T12292 (testimony of city official in charge of relocation operations through
December 1974 that racially steered relocations "continued to persist" for a
year .and a half after HUD forced LCRA to cede its relocation activities to the
city in mid-1973).
3^As late as 1973, HUD found that. "95% of the black relocatees were [being]
relocated into black or traditional areas, [while] [m]any whites were relocated
to Eastern Jackson County [the direction of BS, PO, IN, LS and RT] and north of
the river [the direction of LI and NK]" (X2671), leading HUD's Fair Housing
Director to conclude that. "LCRA[s] urban renewal program has contributed to the
- 23 -
to encourage families benefitting from its highly favorable lending conditions
to make integrative choices (T14843-5, Tobin); made no significant effort, in the
3-county area to monitor the practices and policies of mortgage lenders it
insured to assure they were not engaging in the widespread "redlining" the court,
below found was denying loans to blacks (593 F.Supp. at 1503; X1133, T14860-4,
Tobin); utilized prior to 1966 private managing agents to assist in resale of
FHA-foreclosed suburban properties who, contrary to federal requirements,
"presold" hemes to white families without publicly advertising their availabi
lity and allowing black realtors to bid on them (593 F.Supp. at 1500); -and
allowed foreclosed homes in the southeast corridor area of KCM "to deteriorate
and fall into disrepair" (id. at. 1501), causing white departure (T6844). As a
whole, FHA encouraged and federally financed the movement of white families out.
of KCM to the SSDs, leaving the new-hortes market — and thus the schools — in
the suburbs almost totally segregated white.40
b. Section 235. Between 1969 and 1974, HUD administered its §235
program (12 U.S.C. §1715 (1968)) in the Kansas City area, combining single
family mortgage insurance and deep-subsidy mortgage payments to lenders, to
development and perpetuation of housing patterns [and] has and will concentrate
large segments of the population by racial — characteristics." X2817.
Similarly, between 1968 and mid 1973, the first period when data are available,-
MHTD's South Midt.own Freeway program displaced hundreds of black and white
households from 3 "acquisition zones" located in southeast. KCM: 90% of the
blacks frern that area were relocated back into it, while 70% of the vhit.es used
their relocation payments to escape the integrated areas, and fully a third of
the vhit.es (compared to 3% of the blacks) went to zones located in the SSDs.
X314, T3258, 1082-94 (GV, HM, IN, NK, RT). From the mid-1960s on, KCM officials
and citizens repeatedly informed MHTD that its relocations were: (i) occurring
along racial lines, with "Negroes [staying] within the established community"
and whites moving "away;" (ii) disrupting 26 KCM elementary and secondary
schools; and (iii) "greatly impacting upon integration patterns in our
district,." X312, 321 (pp.34-65).
4°ti4Q45_3, 14860-4, 15203, 15217-21. Between 1975 and 1982 nearly 90% of the
3400 3-count.y area FHA-insured loans went to white families (X26A), of whom 91%
used their subsidy to purchase homes in virtually all-white (90% or more) census
tracts (X26B). Two-thirds of the black families insured by FHA., by contrast,
- 24 -
enable several thousand very lcw-income families in the area to purchase homes.
593 F.Supp. at. 1496. See X1281B. Sections 235's 2 component programs involved
"existing" (usually FHA-foreclosed) hones and "nar" hones built by
HUD-subsidized developers and sold with subsidies. T12274. Section 235 homes
in the 3-count.y area were marketed by private realtors active in the area's per
vasive "dual housing market.." 593 F.Supp. at 1491; see T12974. Ninety-five per
cent of the part.icipat.ing white families (typically ycung couple "with children)
bought, "new" homes, almost all located in the SSDs, a large number in BS; X1281,
1281A; Bartow D34-40. By contrast, most participating blacks (typically single-
females with children) purchased "existing" homes, 94% of which were located in
KCM, almost, all in transitional southeast corridor neighborhoods . X128.1;
T15235.
Many §235 "existing" participants were unprepared for home cwnersliip,
and many of the older homes they moved into in the southeast corridor needed
substantial repairs not covered by the subsidy and not within their means,
causing numerous abandonments and eventual foreclosures by HUD. (X1281;
T12059-60). HUD thereupon allowed the foreclosed homes to deteriorate and fall
into disrepair. 593 F.Supp. at. 1501. As §235 funneled hundreds of black families
into XCM's racially transitional neighborhoods, the abandoned §235 homes caused
whites to flee, with dramatic effects on the schools in the area.41 Although
residents of southeast KCM warned HUD officials of the destabilizing racial
ended up in census tracts 60% or more black. X26E. Overall only 4% of the
FHA-insured loans went into the 90% or more black ghetto areas where by far the
greatest, proportion of the area's black population lives. X26C; see 593 F.Supp.
at. 1491. See also X26H (although no mortgagor racial data is available,
addresses show that nearly three-fourths of the 20,000 3-count.y area FHA-insured
loans in the 1964-74 period were for homes in virtually all white tracts).
41T12378. See 593 F.Supp. at 1494; XK2 (Marlborough School turned from 30 to 54%
black during 1971-2 school year at. height, of §235 program; adjacent Troost
School changed from 32 to 87% the same year).
25 -
impact, of the "existing" program, HOD officials ignored the complaints, attri
buting the concentration of black residents in the affected neighborhoods to
"natural and economic forces at work" and refusing to manit.or any of the
realtors involved or review the program's effects.42
As Dr. Orfield testified, although capable of enabling hundreds of
blacks to move to the suburbs, §235 in fact, "became an important vehicle for
neighborhood ghet.toizat.ion and undermining integrated neighborhoods and their
schools" in southeast KOI, subsidizing the movement, in of blacks while prompting
and subsidizing the movement out of many white families who went, into §235 "new"
homes in the SSDs. T15230-52, accord, Tobin 13241(A26), Shecht.er 12371.
c . Subsidized Housing and State Agencies. Although HUD- and state-
subsidized and insured housing is distributed in significant numbers in the
3-count.y area (approximately 4800 units in KOI, 9900 in the SSDs), the units in
KOI are predominantly black while those in the SSDs are overwhelmingly white.
X27B. T15271. Indeed, the map of those units introduced below (X19B, 9B),
shows an almost perfect, correlation between majority-black projects and KOI
locations and between majority-white projects and 3SD locations.
Notwithstanding the availability of marketing techniques which elsewhere have
succeeded in locating thousands of low-income black families in HUD-subsidized
housing in suburban neighborhoods and school districts (T12,239-40, 15,372-73,
15,274-5), HQD's efforts in the 3-count.y area, which are largely dependent on
private actors in the housing market., "did not result, in integration." 593
F.Supp. at. 1500.
d. Section 8. Since 1974, a major HUD device for helping low-income
4?t12260, (Cleaver); X1281. See T12264-6 (president, of the Marlborough Heights
Neighborhood Association representing a southeast KCM community near Marlborough
School requested HUD to avoid undue concentration of "existing" units in areas
undergoing racial transition, provide counseling for first-time home buyers, and
underwrite hone maintenance carefully. HUD responded that. it. had and would
- 26 -
families find housing has been its §8 program, 42 U.S.C. §1437f. Local housing
authorities (LHAs) funded by HUD issue certificates to law-income renters to
give landlords in the privat.e market who then receive payments from HUD toward
the rent. 593 F.Supp. at 1496. Because neither HUD nor the administering LHAs
in the 3-county area have made any "attempt to direct. §8 certificate holders" to
integrative locations, renters have been left to their own devices — typically
dependent, on the dual housing market — to find housing. 593 F.Supp. at 1498;
see T20455. Separate LHAs administer the §8 program in Kansas City,
Independence, Liberty and Lee's Summit, issuing certificates' honored solely
within each city. Although state law authorizes cooperative agreements among
LHAs (infra n.44) through which certificate holders could gain metropolitan-wide
access to housing, the LHAs in the area have never made cross-referral or cer
tificate sharing agreements and HUD has not required or suggested they do so.
Orfield D41-45, T15280.
As the district, court found, the results of providing the §8 program in
a dual housing market have been segregative in fact.. 593 F.Supp. at. 1498. As
of trial 88% of HAKC's 1458 certificate holders were black, as were about. 85% of
the 2000 persons on HAKC's §8 waiting list. X1481B; Bridges D40. Three-fourths
of HAKC's black certificate holders used their subsidies to rent, housing in
adopt no site-location standards for "existing" housing and did not have resour
ces for counseling or maintenance problems); X1281C, T14290-6 (HUD 1977 report,
on operation of §235 program in several cities, including Kansas City, finding a
"lack of preparedness toy §235 mortgages to... maintain their homes.. .direct.ly
relating to the problem of the condition of 'existing' 235 homes," and that
"very few ghetto residents are actually moving to the suburban [i.e., "new"] 235
developments;" and recommending that "efforts [be made] to end the isolation
[under §235] of ghetto residents which makes it. extremely difficult for than to
participate in the enployment. cpport.uniies.. .concentrated in suburban areas");
T12255-72 (HUD's failure t.o adopt, its cwn or others' recommendations).
27 -
nearly all-black census tracts typically in southeast KOI, while 82% of HAKC's
white certificate holders found housing in tracts less than 20% black, including
in portions of the SSDs within the City of Kansas City. XI4813; Bridges D64.
Many black §8 certificate holders ’nave informed local housing counselors they
desire housing outside traditionally black neighborhoods (T12486-88). But HAKC
officials have concluded that the dual housing market forecloses such oppor
tunities because companies and individuals are reluctant, to rent to black fami
lies outside traditional black areas and, frequently, turn down HDD's guaranteed
rental payments because of the race of the certificate holder.43 Particularly,
absent cooperative agreements and cross referrals among the all-black and all-
white LHAs administering the program, §8 has increased racial segregation and
impaction in the southeast corridor (T13262, Orfield, Tobin) and lias never
achieved tine program's integrative potential demonstrated in other metropolitan
areas where HUD has substituted its own affirmative placement strategy fox-
exclusive reliance on the private market,. T12363-4.
C. HAKC'S City-wide System of Segregated Public Housing.
The United States Housing Act of 1937, 42 U.S.C. §1437, authorizes HUD
to make loans and annual contributions to LHAs to provide for low income fami
lies. 42 U.S.C. §§1437b-1437c. 593 F.Supp. at 1496. The HUD funded Housing
Authority of Kansas City (HAKC), '*hose jurisdiction extends throughout the
13-school-dist.rict City of Kansas City, was created by state statute44 and con-
4-̂ Tl2486-8; Bridges D48, 64-6. According to HAKC's former director, a §8
forerunner demonstration study in Kansas City showed that the biggest factor in
determining where blacks used their subsidy was the owners' willingness to rent
t.o blacks. Only owners in the southeast part, of the city, it. 'was found, were
willing to do so. Bridges D73.
44The Missouri Housing Act. of 1949 creates local housing agencies in all 75,000-
plus cities in Missouri (§99.040) and authorizes cooperative rental and tenant
selection efforts with other authorities (§99.110).
28
siders itself an "instrumentality of the State." X1640 (p.4). HAKC operates 7
family occupancy projects and 2 scatter-site projects containing 2270 units.
XI609, 2917, 593 F.Supp. at 1498. All projects are concentrated in an all-black
14-square block area in KCM. Bridges D22.
Pursuant to longstanding federal policy,45 HAKC's public housing units
were explicitly segregated by race until 1964 — T. B. Watkins and Wayne Miner
built, in 1953 and 1960 "for Negro families," Riverview and Guinott.e built in
1952 and 1954 "for whites." X1597 (at 29-31); T14834-6, 15194-8. Prospective
black tenants'who applied to a "white" project, were referred to another project.
Bridges DIO; X1597 (p.33). Under HAKC's 1964 "freedom of choice" tenant, selec
tion policy, vhit.es were permitted in all-black projects but. blacks were not.
permitted in all-white ones; they remained 100% white as late as 1968. Bridges
Dll; X1597 (p. 34),46
After Title VIII rendered "freedom of choice" plans unacceptable in
1968, HAKC purported to operate under a HUD-approved tenant assignment, policy,
Plan B, which assigned applicants from a unified waiting list, to the project,
with the most vacancies. However, as found below, HAKC for years continued to
4^E.g., X159, A98 (objection to exhibit, sustained because no probative value,
T4922-4) (1939 site-selection criteria of HUD predecessor agency, (USHA) pro
viding that. "[t.]he development of public housing projects for white occupancy in
areas now occupied by Negroes is undesirable"; X282B (1941 City planning report-
showing USHA preliminary plans for location of "white and colored" public
housing); X1596XX (p.l) (HUD predecessor Housing and Home Finance Agency (HHFA)
memorandum dated August. 18, 1954 stating that "[f]rom its inception, the federal
government's public housing program accepted the 'separate tut equal'
doctrine"); X1641 (1955 HHFA memorandum separately certifying HAKC's need for
federal funding of projects for "whites and nonwhit.es"); X1641F (1962 HHFA
memorandum noting that. HAKC projects are either "all Negro" or "exclusively
[for] whites"); X1596XX (p.2), 1595 (p.52) (1963 HHFA Low Rent. Housing Manual
for the first, time, following issuance of Executive Order 11063 on November 20,
1962, explicitly adopting a non-discriminatory housing policy).
^Although this practice directly contravened Executive Order 11063 and HUD's
1963 regulations X1596XX (p. 8) and the all-white character of Riverview and
Guinott.e was known to HUD (X1641F), HUD neither investigated nor withdrew funds.
- 29 -
make assignments by an explicit freedom-of-choice policy, maintaining a separate
waiting list for each project — as indeed, HAKC notified HUD, advising that it
would continue doing so unless HUD directed otherwise. 593 F.Supp. at 1495-9;
Bridges D140; X1597 (p. 140). Although aware for years of HAKC's illegal
assignment procedure,47 h jD did not direct. HAKC to use Plan B until 1976 when it
determined that HAKC had violated Title VI for at least the preceading 0 years.
593 F.Supp. at 1499; X1596FFF, 1597(p. 34-5), Bridges D53-54. Apart from even
tually enforcing the 1963 agreement, HUD has never required HAKC to take affir
mative steps to undo segregation in its projects Which, as HUD's cwn reviews
have concluded, remain "racially identifiable," and HAKC has taken no such
steps. X1611(p. 9), 332, 1597 (p. 35, 146).
The dense KCM-only location of public housing projects has affected the
racial composition of schools and neighborhoods in KCM, in seme instances drama
tically. By concentrating all its now 90% minority units in only a small part,
of KCM (notwithstanding HAKC's jurisdiction over all or part, of 13 school
districts, including all of CE and substantial areas in GV, HM, IN, LS, PH, and
NK), HUD-financed public housing contributed to racial change in schools and
neighborhoods as new projects "for Negro families" were built, in the 1950s and
early 1960s.48
Although HAKC adopted a strategy in 1972 of seeking to build new
housing outside the inner city, expressly to avoid minority impaction, and pre
sented HUD with proposals for 9 such projects at widely dispersed sites,
47X1597 (p .140); X1596JJJ (HAKC report, filed with HUD shewing clearly segregated
racial-occupancy and new-admissions data regarding the Guinotte, Riverview,
Miner and Watkins projects).
48T12504, 13231-3, 14697-3, 15631-2. Several all-black schools in KCM currently
draw a substantial proportion of their population from public housing.
T15631-2.
- 30 -
including in CE, GV, HM, NK and RT, HUD reject.ed all 9 sites based on asserted
deficiencies, after residents and school officials (CE, HM) in the areas
targeted for the lew income housing units voiced opposition to them, including
based on race and racially restrictive covenants.49 f ud proposed no alternative
sites to preserve HAKC's dispersal policy and instead ultimately "recaptured"
all of its hundreds of units of authorized public housing. from HAKC, leaving the
authority incapable of building any new projects. X1596SS, 1597 (pp. 69,111);
Bridges D24-31. Since 1963, HAKC has built at no new sites. 593 F.Supp. at
1498. According to Dr. Orfield, siting and tenanting of public housing in
Kansas City has increased residential segregation, undemined neighborhood sta
bility and racially impacted public schools. T15194-8.
Aside from HUD's single-family programs, the overall impact of
HUD-funded public, subsidized and §8 housing on black enrollment, in the SSDs is
substantial. One out of every 7 black students in the KCM (over 4000 children)
lives in HUD-funded multi-family housing, while over 10% of all the students .in
the entire 12-district, area is so housed. X27F, 3003B; T21376-95. At present,
only about 5% of the 10,534 HUD-funded multi-family units in the SSDs (compared
to 45% of those in KCM) are occupied by blacks. X27F. If, instead, 20% of
those units were occupied by blacks (still less than blacks' proportion in the
overall population of the area), the number of blacks attending school in the
SSDs would increase by 400 more than the current combined black enrollment of
the BS, CE, ED, IN, LS, LI, NK and PH districts. X27E, 53G, 3003B.
D. State and SSD Post-1954 Segregative Action And Desegregat.ivg *
Inaction.
After vigorously enforcing its segregation mandate for 90 years against-
repeated requests for a "local option" (supra n.4), the State took only 6 weeks
7J9X1596SS, 1597 (p. 47); 1626-7; T12169-92; Bridges D29-34, & X3, supra n.33.
31 -
after Brcwn t.o relinquish all control over hew and where local districts edu
cated their black children.50 * Since 1954, the State has never required a local
school district, to desegregate; never collected racial enrollment, or faculty
data, even when making such race-sensitive decisions as hew to arrange its new
area vocational districts in racially imbalanced metropolitan regions
(T17429-32); and never enforced Title VI with respect, to race.5l Although in
1979 it. adopted a statement, on equal rights which promised state leadership in
remedying racially isolated schools, it has done nothing since, beyond spending
$20,000 a year in federal ironies cn "technical assistance," to effectuate that
promise. 593 F.Supp. at 1495; see X465, T17827; 14906.
When Missouri did act., it consistently contributed to racial isolation
in KCM. For example;
1. In 1957, the State passed H.B. 171 and later repealed the statute
it. amended. - without, such legislation KCM would have automatically expanded
its boundaries t.o become coterminous with the City in 1970 when the City reached
500,000 population,50 and its current. 68%-black student population would instead
50X2322. (June 30, 1954 Opinion of Missouri Attorney General — in effect, until
1967 — stating that local districts "may...permit 'white and colored.' children
to attend the same schools," but leaving those districts free to decide "whether
[they] must integrate"). Accord, Bolen D109; X465. See also Mallory D173-4;
T17820-1 (1983 and 1984 reiterations of state's policy that desegregation is
exclusively a matter for local control).
^Although the State routinely conducts investigations of sex and handicap
discrimination matters (T17132-47; 17215-19), as to race, it. relies on pro forma
"assurance of compliance" forms signed by local officials and never investigates
to determine compliance in fact.. T17410-7, 17582-9.
^Act of July 6, 1957, 1957 Mo. Laws 454; Act of July 6, 1965, 1965 Mo. Laws
275, 276-77 (1965)(codified at Mo. Rev. Stat. § 162.571)(redefining
"metropolitan school district.," which automatically expands as city does, t.o
apply only to the City of St. Louis where school district lines were already
coterminous with the city boundaries). Compare T1964-5, 4636-40, 6145-7
(uncontradicted testimony of former Kansas City mayor and KCM officials that
H.B. 171 was passed in part with intent to concentrate blacks within KCM), with
5/5/84 Opn at 29 (finding no invidious intent).
50From 1887 t.o 1950, KCM consistently and repeatedly expanded its territory by
- 32 -
far more closely mirror the City's 27%-black population.
2. In 1969 the legislatively created Spairihower Commission recommended
statewide school-district, reorganization using enhanced racial diversity among
metropolitan-area districts as a criterion and proposing locally to combine
majority-black attendance areas in KCM with portions of the SSDs to create more
racially balanced districts.54 The.Spairihower legislation was strongly opposed
in the Kansas City area, including by many of the SSDs, and in part., James
Spainhower testified, because of race.55 it. was defeated.
3. In the 1970' s the Missouri legislature defeated "Milwaukee Plan"
bills to enact, fiscal incentives to encourage voluntary interdistrict, transfers
of students to achieve desegregation. T4187-91; 15017-9. DESE opposed the
bills on economic grounds but. never proposed alternatives,56 thereby denying
opportunities to thousands of black students to transfer to all-white SSDs and
for whites to transfer into KCM. T14915.
4. Missouri established a statewide system of regional Area Vocational
annexation socn after the City expanded its boundaries. X35 A-H. Since Brown,
however, the City's size has quadrupled, vhile KCM has remained essentially sta
tic. T15121-4.
54X504 (pp. 4, 94) (under proposal KCM black students would have been distri
buted in 4 new districts created by combining portions of KCM with adjacent
SSDs; new district. Jackson No. 4, e.g., combined KCM's Paseo (88% black, XK2)
and Southwest (.5% black) areas with CE (.1% black, X53G) to form a new district.
14% black). See also, T6100-09, 6139, 15011-17.
55Spainhower D32-33; see 6/5/84 Opn at 30 (legislators privately expressed
opposition to Spairihower proposal based on race); X496, T6096-104, 17511,
Mallory D153-9 (State's 1974 district-reorganization guidelines adopted every
criterion from Spairihower Report, except racial diversity); X463, A100, T6168-9
(Commissioner of Education's recognition of existence of segregated schools and
of State's authority to "do something about, this entire matter...by requiring
reorganization").
566/5/84 Opn at 31; T17453-60, 17493-96, 17514-24. See T6162-9, 17393-401,
17454-5, 17506-11, Hurst D49-51 (although State education officials knew that,
racial isolation "continued" to exist, and on other topics "lobbied very hard"
t.o get legislation passed, it. failed to make alternative legislative recommen
dations when it opposed the Milwaukee Plan); see T7191—2 (SSD opposition to
- 33 -
Technical (AVT) schools without, considering their impact, on racial isolation.57
In the 3-count.y area, the result of this process is KCM's 84% black AVTS
surrounded by a ring of virtually all-white state-designated and funded inter-
district. AVT schools, including to the south and east, KT's 96%-white Herndon
AVTS serving itself and CE, GV, HM, IN and LS. XK2, 453. As Ray Nystrand, Dean
of Louisville's School of Educational Administration, testified, the
"designation of area vocational schools" had the "effect, of exacerbating or con
tinuing separation of the races among school districts."58
In 1954, 7 of the 11 SSDs had no blacks at all and their overall black
proportion was 1% compared to 16% in KCM. By 1970, the SSDs' total enrollment
had increased sixfold; over the same period, their black proportion dropped
below half of cne percent., .and 9 of the 11 districts had less than 1% black
enrollments. As of trial, the black proportion in the SSDs was 5% compared to
68% in KCM, 6 of the SSDs still having less than 2% black enrollments. X53,
53G.
E. Suburban District. Failure to Desegregate.
None of the SSDs have used the unqualified discretion over integration
which the state promptly ceded them after Brown to conduct, any program or take
ary step to alleviate their essentially all-white character as of 1954 and 57 58
Milwaukee Plan).
57T14959-62. Missouri has designated 58 regional AVT schools, all but. 2 of
which are "area" schools operated by host districts for their own students and
those of one or more sending districts. See T17917, Lynch D43. The oily excep
tions to this state-wide patterns are the City of St.. Louis and KCM, the oily
majority-black districts in the state. See T16456 (UMKC education professor's
advance warning, ignored by Missouri, that, its AVT plans for the Kansas City
area would result in segregation).
58T6145-6. Accord, T15022-23 (Orfield). A substantial population of KCM blacks
near Southeast High School is closer to the 96%-vddte and underutilized (Sheets
D40-43, 58-64) Herndon AVT school in RT, which they may not. attend, than they
are to the 84%-black KCM AVT school which they must, attend. XI, 9, 34.
Similarly, a substantial population of v^hites around Chrisman High School in IN
- 34 -
thereafter, or, despite numerous proposals, to assist KCM in overcoming the
post-Brown isolation of its black students: For years, nearly all SSDs sent
their orthcpedically and emotionally handicapped students to KCM's Delano and
Troost. schools;59 when KCM asked them in 1969 to take black transfer students to
assist simultaneously with overcrowding and segregation, the SSDs refused.50 in
1974, the SSDs cooperated to achieve voter approval for a 1/2$ sales tax levied
by the City of Kansas City to be proportionately shared among all 13 districts
within the City; PH then refused the money out of concern that acceptance would
obligate it to participate in the desegregation of KCM, and relented only after
being assured that the City would not enforce its affirmative action ordinances
against school districts.51 The SSDs part.icipat.ed in numerous voluntary inter-
district. programs ranging from cooperative buying, joint data processing, shared
is closer to the black KCM AVT school they may not attend than they are to the
white Herndon school they must, attend. No administrative, educational or finan
cial reasons require this segregative arrangement. T6149-55, 17986-37. See
X1563 (U.S. Office of Civil Rights "Guideline for Eliminating Discrimination,"
44 Fed. Reg. 17162 (1979), declaring the conditions described above
"presumptively discriminatory"). Unlike the KCM AVT school's racially balanced
staff (XK3), all 21 administrators and teachers in RT's Herndon AVT school, many
of whom were hired away frcm KCM, are white. (See supra nn.63-72 and acconpanv-
ing text..) Foster D61-4, 71-2; Herndon D139-43; Sheets D31-32.
59Lehman D61-3 (CE); Meinershagen D33-4(FO); Harrison D83(GV); Wall D12(HM);
Goodrich D146(IN); Cqpeland E42-3(LS); X3607(LI); Waire D124(NK); X1947(PH);
Herndon D76-8, 114-5(RT). After KCM's special schools became majority black,
the SSDs organized their own int.erdistrict special education programs (e.g., in
BS and HM) and have ceased sending their children to the interracial schools in
KCM. E.g., Wall D15.
60Corrroare X626 (1969 memorandum from KCM superintendent to CE, GV, HM, LS, NK
and RT~superintendents, to which no SSD even responded, proposing shared facili
ties to relieve overcrowding and to provide "opportunities for integrated
experiences for some children now segregated"), '.with Wall D39—45 (after tornado
destroyed HM high school, CE, GV, LS and RT offered t.o take 100 students each to
alleviate overcrowding in HM’s schools).
51x1766 (1974 letter from PH superintendent, stating that. PH is "not.. . .inter
ested in accepting the money even if it. becomes available to us so long as,
there is any "indication from Kansas City that if we accept the money, we would
be obligated to take students from Kansas City, Missouri schools in order t.o
effect integration"); X1763, 1766 (subsequent, resolution of City Council not
- 35 -
facilities, athletics and cooperative driver education programs to vocational
and special education and myriad other int.erdistrict transfers of students;^2
presented with interdistrict-desegregat.ion proposals ranging from voluntary stu
dent exchange and district-reorganization recommendations^^ to public, subsidized
and multi-family housing proposals for their districts^ to the contemplated
dissolution of KCM in 1975,65 the SSDs vehemently and consistently objected.
Indeed, the only proposals affecting racial imbalance in the metropoli
tan area which the SSDs supported were H.B. 171*56 and anti-annexation legisla
te involve itself in matters of internal school board policy and letter from
City's finance director to PH superintendent enclosing resolution which
"responds to...the integration question"); 1748, 1767, 2177.
62E.g., Peters D92-94(IN), Jones D79-80, 110-1 (PH, NK); Coolin D34(NK); Riggs
D21-22(LI); Ccpeland D2TCLS), Harrison D83(GV), Goodrich D67-78(IN, PD),
DeMasters D40-2(LI), Nesbitt. D71-3(CE, HM); supra n.59.
^2E.g., 2603 X414, 414A (1969 formal proposal by KCM superintendent for volun
tary city-SSD int.erdistrict exchanges); X435 (1977 U.S. Civil Rights Commission
recommendation that, "voluntary city-suburban programs be established...
includ[ing] int.erdistrict pupil transfers [and] regional magnet, schools"); X1437
(1981 Civil Rights Commission proposal of "metropolitan int.erdistrict. options");
supra n.54 (Spairihower Plan). See 6/5/84 Opn at. 31; X2135(BS); 2172(CE);
3423/10); 3240(GV); 3393-4(HM); 3224, 3454(NK); 1728(PH); and 2192(ST).
®4E.g., T12169-92* (the day after a meeting at which heated public opposition
to building public housing in CE, including based on race, was expressed, CE
superintendent withdrew prior statement, of "no opposition" to the housing and
informed HAKC that. CE was opposed); X1627 (HM opposition to proposed public
housing); Nesbitt D115-6, 190-2, 242, Wall DS7-3 (HM opposed all construction of
multi-family housing in district., including apartments and FHA-subsidized
units); Ewing D56-8, Stairs D50-1, Harrison D99-101, X627-8* (GV and UK refused
request by civil rights organization t.o support local fair housing ordinance).
65x2125, 2150(BS); 2157(CE); 3402(HM); 1729(LS); 2194(RT) (resolutions opposing
1975 proposal by KCM board member. that KCM dissolve itself so that. Missouri
could desegregatively reconstitute the district by rearranging school districts'
boundaries). 66
66E.g., X2168(CE); 1752, 3214-7(NK); 3274(RT).
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t.ion67 which together made it virtually certain that desegregative expansion of
KCM's boundaries would never occur. T6158 (Dr. Nystrand).
Frcm 1954 to the present, the SSDs provided blacks almost iio employment
opport.unit.ies in their schools, less than 1% of their conjoined teaching corps
being b l a c k . I n the years following Brown, for example, the few districts with
black teachers either dismissed or demoted them.69 Moreover, during the decade
after 1962, although the SSDs grew so quickly that most could not. keep up with
the need to hire new teachers each year, they hired almost no blacks;70 relied on
informal hiring criteria based on subjective impressions of white school offi
cials (e.g., Harris D14-36(HT); Atkins D39-40(NK)); travelled to universities
and teacher colleges throughout Missouri and Kansas, but. never (e.g., Harris
D25-6(RT)) or only rarely (e.g., Atkin 016-30) to Missouri's Lincoln University
or any other predominantly black institutions; and never contacted KCM about
qualified blacks known by KCM to be available. Wendel D99-101. Even though
numerous conmunity groups urged the SSDs to hire black teachers, (T8434, 9089;
67Nesbit.t D91-7(HM); Bondurant. D15-21, 67-70(CE, HM).
68X721G (summarizing enployment. data by race for SSDs through the 1982-33
school year; e.g., LS; no black employees at any time (396 white teachers in
1982-33); PD; no black teachers, counsellors or administrators at any time (279
white teachers in 1982-33); BS: no black counsellors or administrators at any
time, no black teachers until 1976-77, and cnly 2 blacks out of 441 teachers in
1982-33); NK: no black teachers until 1972-73 (then 1 out of 1,005), no black
counsellors ever, no black administrators until 1982-33 (then 1 out of 63)).
Overall in 1982-83 the 11 SSDs employed 42 full-time and 4 part-time black
teachers (.9% of 4991 teachers), no black counsellors and only 2 black admi
nistrators (.9% of 226 administrators). X721G. See T6423-48 (statistician's
testimony that chance could not explain this pattern within reasonable degrees
of probability).
69See e.g., Thurman D75-79; X1792; T1837, 2285-6, 2375-6, 2381-2, 2855-9, 9976
(IN, LI, PH).
70Herndon D52, 57-8. In 1967 alone NK hired 225 new teachers (Ewing D41), in
part, by keeping its salaries cortpetitive with others in the region (id. at 35).
See Atkin D17-18. RT, also with a competitive salary schedule, often was unable
to fill vacancies and hired any "one that, was warm," and even hired large num
bers of teachers after the sdhoolyear began. Herndon D57, 189; J. Harris D39.
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Atkins D65-9), even though blacks were graduating from colleges in increasing
numbers (Dot.t-S D174), even though Missouri made funds available to districts to
recruit, minorities,7! and even though KCM was referring qualified black teachers
to the SSDs (Wendel D76-77), the SSDs hired virtually none. According to every
expert, witness who addressed the question at. trial, the refusal of the SSDs t.o
employ blacks has had lasting residential consequences fcy identifying those
districts as "white districts" and discouraging black attendance and settlement.
there. "̂2
F. KCM1s Post-1954 Southeast Corridor Destabilization And Segregation.
In 1954, KCM operated a stat.e-conpelled segregated school district.; of
its 90 schools, 14 elementary, one junior high/vocat.ional school and Lincoln
High school were for blacks. 593 F.Supp. at. 1492. In 1977, 25 one-race schools
under the pre-1954 system remained 90% or more of the same race, id., and 80% of
all blacks in KCM attended schools that, were 90% or more black. Id. at 1493.
As of trial, 24 schools were still racially isolated with 90% or more black
enrollments. Id. KCM admitted and the court below found that, the district, has
not. removed the vestiges of its state-required dual school system. Id.
Between 1958 and 1984, the number of white students in KCM declined
from 52,491 to 10,022. Id. at. 1495. As the district, court, concluded (id. at.
1494), policies of KCM directly contributed t.o that, decline.
In 1955, in response to Brown II, KCM eliminated racial zones,
replacing them with racially imbalanced neighborhood attendance zones. While
_71T17835, 17864-6S (no SSD ever applied for such funds).
72T12397-9 (Shechter); 14793-805, 15266-7 (Orfield); 16873-5 (Weinberg); see
T19730-6.
38 -
freeing by far the majority of white students in the district- to attend all-
white schools, the neighborhood plan assigned snail proportions of White stu
dents living just south and east, of the all-black area to the district' s
previously all-black schools. Those schools were then predicted to cpen from
75% to 90% black, but in fact., virtually none of the whites assigned there
enrolled, id. at 1493. Indeed, at the height, of the "baby boom" era, the
district's white population actually dropped. XK2.
As KCM's black community expanded southeasterly, _id. at 1492, KCM
"chose to operate some complately segregated schools and some integrated ones."
Id.73 Within a few years intact, busing,74 liberal transfers,75 * * * * shifting and
73KCM's attendance zone choices largely centered on Troost, a north/south
street in Kansas City which for decades has divided white from black neigh
borhoods. XI, 6-9. Two sets of high schools are located on either side of
Troost: to the west are Westport, and Southwest., to the east are Lincoln,
Central, Paseo and Southeast, each with its cwn feeder junior high and elemen
tary schools. XK1. In the 1950s blacks lived almost entirely east of Troost,
X8, and as the population of blacks expanded the schools east of Troost becarte
black: Lincoln started and remained black, 99.7% in 1955; Central, all-white in
1954 became 97% black by 1961; Paseo, all-white in 1954 and 10% black in 1960
became 98% black by 1969; Southeast, all-white in 1954, 8% black in 1963, became
98% black in 1973. XK2. During the same period, the schools west of Troost.
stayed white: Southwest, e.g., had .01% blacks in 1955 and only .8% in 1970;
XK2. Until 1976, attendance zones did not. cross Troost. (T3311-2, 9358-66,
10,384-6), notwithstanding overcrowding in black schools east of Troost and
underutilization of white schools west of Troost. T7022-4. KCM's insistence
upon preserving the all-white character of its west-of-Troost. schools made it
impossible to keep its east-of-Troost schools stably integrated, causing
east.-of-Troost 'Ahit.es to move out. 593 F.Supp. at 1494, T15140—2.
74Unt.il 1965 KCM responded to overcrowding in black schools by busing "entire
classrooms of black students to predominantly chite schools" where each was kept,
"as an insular group," not. "mixed with the receiving population." 593 F.Supp.
at 1494.
75KCM "allowed whites living in racially transitional neighborhoods to transfer
within the District, to whiter schools." 593 F.Supp. at 1493. As whites trans
ferred to all-white Southwest High School, for exarple, the proportion of blacks
in its Central, Paseo and Southeast High Schools and their feeder schools
increased far mere rapidly than their proportion in the neighborhood, inducing
racial-change fears anong white parents chose children remained in those schools
(students unable to afford or arrange transportation could not. transfer); these
actions in turn accelerated white departure from the area. T8619-32, 9360-63.
By the mid-1960s the transfer of whites turned into an exodus from KCM's Paseo
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optional attendance zones,7^ school sitings,77 faculty assignments,78 curriculum
changes,79 and piecemeal desegregation80 policies of KCM, contributed to the vir
tually complete replacement by blacks of the white population living east of
Troost Street and as far south as the KCM's southern border along 85th Street.
Concluding its discussion of the above actions of KCM, the trial court, found
that: "as the black population expanded from the central city in a southeast,
direction, neighborhoods and schools experienced a racial transition. As blacks
and Southeast areas. The liberal transfer policy remained in effect until the
early 1970s. T7222-3.
76As the population within KCM changed following Brown, KCM "made frequent-
shifts in the attendance areas" of its schools, typically removing white areas
frcrn the western-most portions of its racially transitional zones .and attaching
them t.o all-white zones further west. 593 F.Supp. at 1493; see 2/21/84 St ip.
12, 39, 42, 43, 48. These shifting zones "did not. achieve system-wide integra
tion, " but rather "allowed attendance patterns to continue cn a segregated
basis", and continued to pressure "whites [to] move out." as the east.-of-Troost.
schools affected by the removal of white neighborhoods from their zones
experienced heightened racial transition. Id. at. 1494. See also T2009-14.
77Virtually every school KCM built, after Brown, opened either all-white or all
black, the district refusing, for exanple, to construct, an integrated middle
school preposed by its desegregation consultants as a means of stabilizing
remaining integrated neighborhoods east of Troost.. 593 F.Supp. at. 1494; see
T3017-20, 5083-7.
78As KCMSD began to integrate some schools it. transferred its best and most,
experienced black teachers to white schools, T3298—9, 3304-6, leaving less
capable teachers in black and racially changing schools, accelerating their
transition to all black schools as whites moved out. Moreover, as racially
changing schools became all black, so also did their teaching staffs.
T15299-300, XK3, K2; 2/21/84 Stip. 76 & 77.
79As chit.es moved or transferred out. of schools east, of Troost, college pre
paratory classes, especially in the sciences, were discontinued because of
decreased demand and were replaced by vocational courses such as "janitorial
services." T7018—21, 7338—41, 8624—5, 8969—71, 9419—20, Stip. 75. Transitional
schools were thus further identified as inferior, causing additional white
departure and, in Dr. Orfield's opinion, perpetuating the pre-1954 legacy of
public identification of black schools as inferior. T7305-20, 7344, 14785-6,
15144-50.
80In spite of requests in the 1960s by many neighborhood and citizen groups
that. KCM adopt a district-wide desegregation plan (T9369-72), extend attendance
zones across" Troost (T9358-66, 9421-3), cooperate with groups trying to stabi
lize racially transitional neighborhoods (T6868-33), or otherwise deal compre-
- 40 -
moved, or were bused to the schools, in the area, whites moved cut. (T8715-6,
8721-30, 9228-32, 9235)." 593 F.Supp. at 1494. The court's record citations
here demonstrate the direction of the white flight— i.e., to the SSDs.8 ̂ For
example, 44% of the 1600 students transferring their records from KCM's
Southeast. High School to another school prior to graduation in the 1958-73
period moved with their families to one of the 11 SSDs, over 500 families moving
to CE, GV HM and RT alone.82 indeed, census data shew that just under 50,000
people living in the 3-count.y area outside KCM as of 1960 (over 20% of the
total) had lived in the central city of Kansas City 5 years earlier. X336A.
The extent of demographic change in the areas affected by KCM's poli
cies was massive. Tracking the rapid change in the racial composition of the
schools east of Troost., there was a sharp change in the racial conposit.ion of
the residential areas served toy those schools, all of which one toy one, moving
in a southeasterly direction, became all-black. 593 F.Supp. at 1492.83 At. a
hensively with the issue of race, KCM failed to adept a oonprehensive plan.
Even when KCM's superintendent, preposed such a plan in 1968 (X414, Stip. 69),
the district refused to implement it, and no overall plan was implemented until
1977-78 (plan 6C), at the insistence of HEW. 593 F.Supp. at. 1494.
81593 F.Supp. at. 1494, citing T8715-6, 8721-30, 9228-32, 9235 (KCM-provoked
white flight, to CE, GV, HM, IN, NK). On at least one occasion a KCM board
member told dissatisfied whites to move to the suburbs if they were unsatisfied
with its actions in the southeast, portion of the district.. T6907-8.
S2X1775C. Accord, e.g., T1934-5, 3027, 4845-51 (entire white congregations and
their churches moved from KCM t.o SSDs in 1960s), 5117—8, 5865—7 (NK, GV, 3S, RT,
HM), 6989-90 (RT, CE, GV, NK, IN), 7104-8, 7221-2, 7284-5, 7301-3, 7390-1,
8969-71, 9098-101, 9224-37 (GV, HM, RT, CE), 9383, 9388, 9426-31 (PH, RT, CE),
11707-10; T17314-6 (State's opening statement admitting that. KCM in the
1960s-70s faced rapid transformation as whites fled the district.). See
generally X1775B-E, T15151-3, 15165-9, 15289-93, 15419-23 (fragmentary available
records shewing hundreds of high school students transferring records from KOI
t.o SSDs in 1960s, which, Dr. Orfield testified are illustrative of the direction
of white flight, but by no means exclusive of the families taking part, in the
exodus). 33 * *
33See T12985-13000; X9, 15A, 20, 1653. Dr. Orfield testified that change in
the racial make-up of schools is a leading indicator of future racial change in
a neighborhood because of the particular rapidity with which young families with
- 41 -
time when the baby boom growth in student population made it almost impossible
for the virtually all-white SSDs to keep up with their increasing enrollment
(X15A), KOI lost nearly 15,000 white students.84 As Dr. Orfield concluded, the
9̂50-70 period of KOI segregation of its southeast, corridor schools was a time
of substantial "white suburbanization and black ghettoization" led by the
schools, the effects of which on the entire metropolitan area remain today,
accounting for the racial isolation of the schools in the area. T14889-93,
15163-4; X9A, 12A, 53G.85
SUMMARY OF THE ARGUMENT
The SSDs each invidiously participated in Missouri's de jure inter-
district system of dual schools before Brown, denying their black children ade
quate, and for the riost part, any, schools in their own districts and requiring
them t.o be educated, if at all, in KCM. Those actions and others by the State
almost perfectly segregated the SSDs as of Brown; and that, segregation has teen
maintained and enhanced ever since, by the SSDs own segregative action and deseg
regation inaction and by that, of the State, by the segregation of teasing
throughout, the metropolitan area caused toy constitutional violations of local,
state and federal housing officials, and by KQM's officially sanctioning and
unconstitutionally prompting the flight of its southeast, corridor white families
children respond to perceived changes in the schools cy changing residences.
T15163-4, 14723-7. Accord, T12989-90 (Tobin).
84T12993-4, X53G, K2 (in 1955-70 period, KCM's white population dropped nearly
15000; virtually all-white enrollments of SSDs increased from 17000 to over
100,000 in same period). See 593 F. Supp. at 1495 (KCM white enrollment dropped
from 52491 t.o 10022 between 1958 and 1984).
85Plaint.iffs adopt the Procedural History of the Litigation in the Brief of
Appellant. KCM.
- 42 -
into near-at-hand suburban refuges. Having participated in these violations
and been affected by them, the SSDs must join in their remedy. By absolving
those districts of any responsibility for their cwn pre-1954 interdistrict
segregation and by interposing that erroneous conclusion as an absolute bar to
relieving the segregative effects on suburban children of the other governmental
actors’ violations, the district, court, erred.
The district court, compounded its error by placing on the victims of
the violation the burden of overcoming a presumption of "no continuing effects"
assert.edly arising frcm the passage of time, then excluding most of plaintiffs'
evidence of continuing effects cn erroneous legal grounds and analyzing what,
little was left, piecemeal.
The district court, further erred by adjudicating constitutional
challenges to HUD's metropolitan-wide explicitly and knowingly segregative con
duct from 1936 to the present under an "arbitrary and capricious" standard.
Finally, the court, below erred by denying plaintiffs any desegregation
relief, and particularly the modestly priced, essentially voluntary housing
remedy they proposed.
ARGUMENT
Under established legal principles, the facts found by the district
court entitle plaintiffs to int.erdistrict. relief encompassing the SSDs.86 The
district, court denied relief because of a series of legal errors each of which
requires reversal.
I. THE FINDINGS OF THE COURT BELOW ESTABLISH CONTINUING INTERLOCKING
INTERDISTRICT VIOLATIONS, WHOSE CROSS-DISTRICT NATURE AND METROPOLITAN-WIDE
SCOPE REQUIRE RELIEF ENCOMPASSING THE SSDs.
86Although plaintiffs generally confine their argument. t.o the district, court.'s
legal errors they request that, the Court, examine the district, court.'s adverse
factfindings in light, of their genesis in the legal errors discussed infra and
- 43 -
A. Under Controlling Legal Principles, A Constitutional Violat.ion By Or Af
fecting The SSDs Requires Their Inclusion In An Int.erdistrict Remedy.
"Ever since Brown..., judicial consideration of school desegregation
cases has begun with the standard [that] 'in the field of public education the
doctrine of “separate but equal" has no place. Separate educational facilities
are inherently unequal.'" Milliken, 418 U.S. at 737, quoting Brown I, 347 U.S.
at. 495. "The objective today remains" to "eliminate all vestiges" of
"state-mandated...systems with certain schools for Negro pupils and others for
white pupils." Milliken, 418 U.S. at. 737; Swann, 402 U.S. at. 15. "If school
authorities fail in their affirmative obligation, judicial authority may be
invoked...and...the scope of [the] court's equitable power to remedy past, wrongs
is broad, for breadth and flexibility are inherent, in equitable remedies---As
with any equity case," therefore, nothing but "the nature of the violation" may
limit, "the scope of the remedy." Id. at 15, 17. Accord, e.g., Morrilt.on, 606
F.2d at 229.
Milliken and Gautreaux do not. deviate from these principles; rather,
they enforce them. In Milliken, the district, court, had found a violat.ion which
in light, of the fact that, these were adopted verbatim from findings proposed by
the SSDs, via a procedure denying plaintiffs the opportunity to file coun
terproposals. Thus having admonished the defendants to limit, their Rule 41(b)
filings to 25 pages each of legal memoranda due on 3/14/84, and having afforded
plaintiffs only 10 days to respond following which trial reconvened (T16383,
17043), the court, nonetheless permitted defendants in addition to submit, nearly
600 pages of unsolicited factfindings beginning on 3/21/84, i.e., 2 days before
plaintiffs' submissions were due. Plaintiffs' 3/22/84 alternative motions to
strike or to extend the time to respond were denied, and the court, thereupon
adopted verbatim from defendants' submissions over 80% of the factfindings in
its 6/5/84 Opn. This Court. — in cases in which both parties had an opportunity
to file proposed factfindings — has repeatedly expressed "strong disapproval" of
verbatim adoption of one party's findings. E.g., Jones v. International Paper
Co., 720 F.2d 496, 499 (8th Cir. 1983). Even greater skepticism regarding the
court.'s 6/5/84 findings is due here, given the unilateral filing procedure
below.
- 44 -
both in it.s commission and effects was uni-dist.rict. in nature. Because the
"condit.ion of segregation was limited to Detroit," so too, the Supreme Court,
held, must the remedy be that limited. 418 U.S. at. 739. But "no state lav/ is
above the Constitution," nor are "[s]chool district, lines and...laws with
respect, to local control___ [l]f they conflict, with the Fourteenth Amendment.,
federal courts have a duty" t.o abrogate them. Id. at 744. Accordingly, where
"the nature and extent of the constitutional violation" is "cross-district." —
where either (1) "the racially discriminatory acts of the state or local school
districts, or of a single school district." have "contributed to the separation
of the races;” or an int.erdistrict. basis; or (2) "the racially discriminatory
acts of one or more school districts caused racial segregation in an adjacent,
district.;" or, indeed, (3) wherever there was "any int.erdistrict. violation" — an
"interdistrict, remedy would be appropriate to eliminate the interdistxict.
segregation." Id. at 744-5 (enphasis added). Accord, Gautxeaux, 425 U.S. at 298,
306.
Like their equitable antecedents, the principles in Milliken and
Gautxeaux, have '"breadth and flexibility'" (Gautxeaux, 425 U.S. at 297, quoting
Swann, 402 U.S. at 15) and the Court, has consistently refused to apply them to
"foreclose relief" if doing so "would transform Milliken...into an arbitrary and
mechanical shield for those found to have engaged in unconstitutional conduct.."
Gautreaux, 425 U.S. at. 300. In particular, these remedial principles provide
relief commensurate with the full geographic extent, of a violation s effects on
school children, no matter who conmit.ted the violation and no matter 'where and
hew it. was committed:
1. As recognized in Gautxeaux, official wrongdoers ray exercise
- 45
authority to conduct seme system of governmental activity in more than m e poli
tical jurisdiction. Where they do so in a racially discriminatory manner which
segregates school children cn a multi-district, basis — be it by drawing new
boundary lines between the races,37 or by moving the races to different sides of
oreexist.ing lines33 — then the remedy must, similarly be interdist.rict. in nature,
its scope coterminous with the scope of the segregating system.33 All school
districts whose children, black or white,33 have been victims of such a system
must participate in its dismantling — including districts passively affected by
other officials' discriminatory acts3l as well as ones which promoted the viola-
»7E.g. f.Milliken, 418 U.S. at 744, citing, Haney, 410 F.2d at. 924-26;
Morrilton, 606 F.2d at. 226-7; Missouri III, 515 F.2d at 1370.
s8E.g, Gautreaux, 425 U.S. at 297-8 (violation to steer whites to "white [public
housing"! projects located in white neighborhoods, " and blacks to black projects
in black neighborhoods); Milliken, 418 U.S. at 750 (interdistrict, violation
for "suburban district, [to] contract to have Negro high school students sent to
a predominantly Negro school in [a city district.]"); Adams, 620 F.2d at. 1294 n.
27"; Wilmington I, 393 F.Supp. 428 , 434 (D.Del.) aff'd, 423 U.S. 963 (1975)
(interdistrict violation where "outmigration of white population and increase of
city black population...result[ed] from...governmental policies").
89E.g., Milliken, 418 U.S. at 744-5, citing Haney, 429 F.2d at 369; Hoots,
672 F.2d at 1119; Mams, 620 F.2d at 1294 n.27; Morrilton, 606 F.2d at 228-9;
Indianapolis I, 573 F.2d at 408. * 91 *
30"'Actions and emissions by public officials which tend t.o make black schools
blacker necessarily have the reciprocal effect, of making white schools whiter.'"
Hoots v. Pennsylvania, 672 F.2d 1107, 1121 (3d Cir. 1982), quoting Penick v.__
Columbus Board of Education, 429 F.Supp. 229, 266 (S.D. Ohio 1977), aff'd, 583
F.2d 787 (6th Cir. 1978)7~aff'd, 443 U.S. 449 (1979).
91E.g., Gautreaux, 425 U.S. at 291, 294 n.ll, 306 (t.hou^i "wrongs were committed
solely within the limits of Chicago" without, any "suburban discrimination,"
"metropolitan area remedy" upheld); Milliken, 418 U.S. at. 745 (int.erdistrict.
remedy...in order where the racially discriminatory acts of one...school
district!] caused racial segregation in an adjacent, district."); Hoots, 672 F.2d
at 1121 n.13 ("despite their...lack of involvement, in the process," 5 school
districts, including one whose predecessors vehemently opposed the state's
action, could be judicially consolidated into single new district, upon finding
of a constitutional violation by State in organizing the districts); Morrilton,
606 F.2d at. 228-9 & n.5, quoting Indianapolis I, 573 F.2d at 410 & n. 23 (though
"innocent, of...any constitutional violations," "suburban school [districts] may
not....be excluded from an interdistrict, remedy. . .because they [are] not. respon
sible for the acts of state legislators or [of] a local housing authority or
- 46 -
t.ion themselves or participated in it. with others,92 and regardless of Whether
the wrongdoers were local, state, 93 Dr federal9^ — Qr school or housing93 — offi
cials. Once an interdistrict, constitutional violation is proved, the scqoe of
both the violation and its remedy is determined by the breadth of the injuries
it causes school children, not. by the residence, title or job description of the
wrongdoing officials. See infra nn.117-18 & 127.
2. Even where the authority of the constitutional violator is confined
to a single jurisdiction, the Fourteenth Amendment's broad and flexible remedial
power is rot., and reaches Wherever the effects of the violation are felt —
including in other jurisdictions. For "nothing in Milliken 'suggests a per se
rule that federal courts lack authority to order parties found to have violated
zoning board....[l]f state discriminatory housing practices have a substantial
int.erdistrict effect., it is appropriate to require school authorities to remedy
the effects even though they did not themselves cause [them]"); Wilmington III,
555 F.2d at 376, aff*g, Wilmington II, 416 F.Supp. at. 339-40; Missouri III, 515
F.2d at 1369-70, aff'g, Missouri II, 388 F.Supp. at. 1059-60; Haney, 410 F.2d at
924-6.
92E.g., Milliken I, 418 U.S. at 749-50; Adams, 620 F.2d at 1294 n. 27
(interdistrict, violation where "suburban school districts...collaborated with
each other and with the City...to ensure the maintenance of segregated schools"
through "assignment,.. .of black[s]. . .in the suburbs to black schools in the
City"); Louisville II, 541 F.2d at 544 ("sending blacks to neighboring school
systems or receivingwhites from blacker neighboring school systems").
93E.g., Hoots, 672 F.2d at. 1120; Morrilton, 606 F.2d at 225, 228; Haney,
410 F.2d at 923; Liddell V , 677 F.2d at 632 ("state committed an int.erdistrict.
constitutional violation by failing to merge the segregated city-ccunt.y voca
tional programs"); see Liddell VII, 731 F.2d at 1306 ("Under the segregated
system, the State bused suburban black students...into the city's black schools
to maintain the dual system").
94E.g., Gautreaux, 425 U.S. at 288-89 (HUD and local housing authority); Wilming-
tdnTT 393 F.Supp. at 434-51, aff'd 123 U.S. 963 (1975) (FHA, State Real Estate
Commission and local housing authority); see Adams, 620 F.2d at. 1291 & n.21,
1294 & n.27 ("highway land acquisition policies of the federal government.");
Hart., 383 F.Supp. at 747-51 (HUD, FHA, state and local housing agencies).
93See, e.g., Oliver v. Kalamazoo Bd. Of Educ., 640 F.2d 782, 785 (6t.h Cir. 1980)
(racially restrictive covenants); Ybarra v. City of San Jose, 503 F.2d 1041
(9th Cir. 1974) (zoning and building permit policies); Reed v. Rhodes, 422
F.Supo. 708, 789 (N.D. Ohio 1976), aff'd, 607 F.2d 714 (6th Cir. 1979) (public
- 47 -
file Const-it.ut-i.on to undertake remedial efforts beyond the municipal boundaries
of the city where the violation occurred. '" Liddell VII, 731 F.2d at. 1308,
quoting Gautreaux, 425 IJ.S. at 298. Rather, "the boundaries of separate and
autonomous school districts may be set. aside...for remedial purposes" upon proof
of "a constitutional violation within cne district, that produces a significant,
segregative effect in another." Milliken, 418 U.S. at. 744-5.96 Further the
Constitution brooks no "arbitrary and mechanical" distinctions among cognizable
kinds of interdistrict inpact, based, for example, on the race of the students
affected or the direction of the invidiously impelled effects. Gautreaux, 425
U.S. at. 300. Rather, a multi-district remedy is appropriate whenever
"discriminatory school policies...have affected the relative racial balance in
housing and schools [between the city] and the suburbs" (emphasis added)97 — be
it by "unconstitutional actions of suburban school officials" causing black
migration to the city (Gautreaux, 425 U.S. at. 294) or "violations committed in
the operation of the [city] school system" (id.) causing "officially sanctioned
white...flight." to the suburbs.98
Once "an interdistrict, violation or effect." is shewn, all "governmental
housing); Oliver v. Kalamazoo Bd. of Educ., 363 F.Supp. 143, (W.D. Mich. 1973),
aff'd, 508 F.2d178 (6th Cir. 1974) (state-enforced segregative realtor
"ethics"); Hart., 383 F.Supp. at 747-51 (public and subsidized housing, FHA,
urban renewalTF interdistrict, cases cited in supra n.91.
96"There is no explicit statement" in Milliken "that, the requisite segregative
intent be...to cause segregative effects within the neighboring district.;"
rather it. is enough that "a school system has intentionally segregated its [own]
students by race." Taylor v. Ouachita Parish School Board, 648 F.2d 959, 969 (5th
Cir. 1981) (emphasis added). By inadvertently emitting the italicized "no," the
court, below quoted Taylor for a proposition precisely opposite to the one it
establishes. See 6/5/84 Opn at 97.
9^Wilmington I, 393 F.Supp. at 436, aff'd, 423 U.S. 963 (1975)
980maha, 521 F.2d at 540 n. 20; see, e.g., Wilmington I, 393 F.Supp. at 435-6 &
n. 15, aff'd, 423 U.S. 963 (1973) ("policies of the Wilmington School Board"
which caused schools in certain neighborhoods to become disproportionately black
justified interdistrict relief because they "encouraged white families to move
- 43 -
entities... implicated in [it.]" (Gautreaux, 425 U.S. at 296) "are charged with
the affirmative duty fully and effectively to integrate [the affected] schools,
faculties and transportation facilities," Haney, 410 F.2d at. 926, and "'to take
whatever steps might, be necessary to convert, t.o a unitary system in which racial
discrimination would be eliminated root, and branch.1" Missouri III, 515 F.2d at
1371, quoting Green, 391 U.S. at 437-8.9 9 "Each instance of a failure or refusal
to fulfill this affirmative duty continues the violation." Columbus, 443 U.S. at
459. Moreover, because "the treasure of the post-3rcwn conduct of [officials]
under an unsatisfied duty to liquidate a dual system is the effectiveness, not
the purpose, of the actions in decreasing or increasing the segregation caused
by the dual system," every "post-Brown action [with] the effect, of increasing or
perpetuating segregation" is itself a fresh constitutional violation, calling
forth additional remedial action by the defendants and, failing them, the
courts.190
B. The District. Court-'s Findings Establish Six Independent. Bases For
Interdistrict Relief.
1. The Pre-1954 Interdistrict System of Locating Dual Schools. As the
court, below found, Missouri mandated segregated schools for black and white
children before 1954." 593 F.Supp. at 1490. Although the state was the "primary
constitutional wrongdoer" (Liddell V , 677 F.2d at 630), "[e]ach school district"
out" of those neighborhoods to "near-at-hand [suburban school] systems in which
black students were barely present" and "discouraged white families from moving
in"); see id. at 434 (cognizable interdistrict. effects include "outmigration of
white population" as well as "increase of city black population").
9* * * * * * * 9E.g., Hart., 383 F.Supp. at 752-54 (extending affirmative duty to local, state
and federal housing officials to renedy school segregation their actions helped
create).
^°°Dayt.on II, 443 U.S. at. 538, citing Wright, v. Council of Emporia, 407 U.S.
451, 460-2 0.972); accord, Liddell III, 667 F.2d at. 551, Liddell V, 677 F.2d at
532, 636 ("State of Missouri's establishment, and maintenance of [segregated, in
fact.] vocational districts in 3t.. Louis area was 'part, and parcel of its failure
to take affirmative steps to eradicate...the dual system" which, regardless of
- 49 -
in the 3-count.y area actively "participated in the dual school system." 593 F.
Supp. at 1490. "The manner in which blacks in any defendant district, were edu
cated was solely a matter. . .within the discretion of the local school district."
(6/5/84 Opn at 15) — a few of the SSDs choosing to "establish and maintain
segregated facilities with segregated staffs" for some of their black students
and to transfer the rest., the majority choosing instead to rely cn
"interdistrict. arrangements to educate" all of them elsewhere. 593 F.Supp. at
1490, 1492. "[I]n its discretion," (6/5/85 Cpn at 12), therefore, each of the
SSDs — not. a single one of which locally provided more than an 8-grade educa
tion for their resident black children either at the time of Brown or for any
period longer than a decade (IN) or two (LI) preceding it — either chose to
deny hundreds of black children an education (the rule by state law prior to
1933, the practice in the 3-count.y area until the 1940s), or "pursuant to state
law prior to Brcwn collaborated with each ether and with the [KCM] to ensure the
maintenance of segregated schools" through "the assignment, and transportation of
black students living in the suburbs to black schools in the City." Adams, 620
F.2d at 1294 n.27, citing Milliken I, 418 U.S. at. 744-45.
Through this "intradistrict system for white kids [which] sent the
black kids out of the district." (T4204-5), the SSDs "just, as certainly as if the
words were printed across [their borders] 'in six-inch letters'" 1 0 1 identified
themselves as "white districts for white children" and white faculty and the KCM
as the only district, in the area providing a permanent, adequate 12-grade educa-
its intent, constituted a fresh "interdistrict. constitutional violation"
requiring additional remedial action).
lOlQmaha, 521 F.2d at 546, quoting Kelley v. Altheimer Pub. School Dist., 378
F.2d 483, 491 (3th Cir. 1967).
- 50 -
tion for black children and stable well-paying jobs for black teachers.
"Undeniably," the court- below found this "interdistrict-" system had
residential effects: (1) "some blacks moved" out of the SSDs "to districts,
including the KCM, that provided schools," (2) -the "availability of
schools.. .influence[d], more specifically, what housing choice, would be made"
by the tens of thousands more blacks who migrated to the area to work at the war
plants sprouting up throughout the SSDs in the early 1940s (supra n .25); and (3)
"[a]s blacks moved, or were bused to the schools in the area, whites moved exit,"
impelled by State act.ions "placing [its] imprimatur on racial discrimination."
593 F.Supp. at 1491, 1494, 1503. Over the course of the pre-Brcwn period, these
forces racially transformed the metropolitan area from one in which at the
beginning of the century over 20% of its black school children lived in scores
of residential areas "scattered" throughout the SSDs (nn.4, 8, 14 & 17), to one
in which at the time of Brown and since, the "intensity of segregation is
demonstrated by the fact, that the average black family lives in a[n]. . .85% black
[census tract.] while the average white family lives in a. . .99% white [census
tract.]." 593 F.Supp. at 1491.
These findings clearly establish "an interdistrict violation and inter
district. effect... .calling for an int.erdistrict remedy." Mil liken, 418 U.S. at
745. They establish a metrqpolitan-wide violation cn the part, of the State —
which mandated dual schools, then exempted area districts from providing them
locally, instead encouraging and eventually paying for their provision cn a
joint, suburb-t.o-city basis; they "implicate" 102 in that violation "[e]ach school
district" in the area (including every SSD) which chose to participate in it and
1̂ 2(3aut.reaux, 425 U.S. at 296.
- 51 -
not. permanently to provide adequate 12-grade schools for blacks.
2. The State's and SSDs' Continuing Interdistrict. Violations. Based
on its factfindings, therefore, the district court, should have ordered inter-
district. relief, as, for example, the district court, Third Circuit and Supreme
Court did in Wilmington when faced with identical facts. 103 As Milliken itself
states, where interdistrict, suburb-city transfers of black children occur, their
"segregative effect, on the school populations of the...districts involved"
justify the affect.ed districts' inclusion in a multidistrict remedy.104
In 1954, virtually all black students in the 3-county area attended
black schools in KOI and the SSDs were all-white; at present, most of the area's
black students remain severely segregated. See supra p.34. The State and the
SSDs thus remain "under an unsatisfied duty to liquidate" the vestiges of the
dual system, and the measure of their conduct, "is the effectiveness, not. the
purpose, of [their] actions in decreasing or increasing the segregation caused
by the dual system." Dayton II, 443 U.S. at 533. By this measure, and by the
measure of facts found by the trial court, below, those defendants's post-1954
behavior fails constitutional muster.
Although Missouri used its constitution, laws and inherent, authority to
maintain state-mandated segregation before Brcwn, after Brown, as the court,
below found, it. absolutely refused "to take any action to dismantle" the dual
school system, instead delegating the entire matter to local school authorities.
103v7iinu.ngt.on I, 393 F.Supp. at. 437, aff'd, 423 U.S. 961 (.interdistrict, relief
appropriate because "before Brcwn, the black high school and, to a significant
extent., the black elementary schools in [the City district.] served black
children from the entire" metropolitan area and segregation was accordingly "a
cooperative venture involving both the city and suburbs").
104mi i i ikon, 418 U.S. at 749 (while insufficient, to justify a 52-district,
remedy, suburban district.'s albeit only 3- or 4-year "contract.] ] to have Negro
high school students sent t.o a predominantly Negro school in Detroit" may justify
remedy including "the two districts involved"); accord, e.g., Scotland Neck, 407
U.S. 484, 487 (1972); Liddell VII, 731 F.2d at. 1306 ("State bused suburban black
- 52 -
593 F.Supp. at. 1504. See A100. As this Court has recognized before in cases
involving Missouri, such steadfast inaction^ ̂ amounts to constitutional wrong
which "continues the violation of the Fourteenth Amendment." (Dayton II, 443 U.S.
at 459). See Liddell III, 667 F.'2d at. 655, Missouri III, 515 F.2d. at 1370.
Moreover, ignoring its affirmative duty to measure each of its acts by their
segregative or desegregative effects (Dayton II, 443 U.S. at. 538), each time the
State has acted since t o m , the results have been decidedly segregative cn an
int.erdistrict. bas is. 106
Moreover, by consistently matching the State's desegregative inaction,
while encouraging the State's and engaging in their cwn segregative actions, the
SSDs have also continued to the present the interdistrict. violation originally
worked by their "participateion]" in the "interdistrict." dual system (593
students...into the city's black schools to maintain the dual system");
Morrilton, 607 F.2d at 226-8 & nn. 4-5; Louisville II, 541 F.2d at 544; Missouri
III, 515 F.2d at. 1367, aff'g, Missouri I, 363 F.Supp. 739, 743, (E.D. Mo. 1973);
Haney, 410 F.2d at 922, 924 n. 2; United States v. Texas, 321 .F.Supp. 1043,
1049-50 (E. D. Tex. 1970), aff'd, 447 F.2d 441 (5th Cir. 1971); approvingly
cited in Milliken, 418 U.S. at. 744; Turner v. Warren County Bd. of Educ., 313
F.Supp. 380 (E.D.N.C. 1970), approvingly cited in Milliken, 418 U.S. at. 755
(Stewart., J., concurring). The district, court's finding here, based on
"literally weeks" of testimony below (593 F.Supp. at 1491, that this int.er-
district system "[undoubtedly" affected "what housing choices would be made"
(593 F.Supp. at 1490) distinguishes Lee v. Lee County Bd. of Educ., 639 F.2d
1243, 1260 (5th Cir. 1981), in which ("no detrographic evidence" was presented
"that...transfer policies influenced housing policies").
105Missouri continued its violation by, for example, failing — following
expressions of "racially motivated opposition" by private individuals and
legislators, 6/5/84 Opn at. 30 — to use its vast, reorganization authority to
eliminate segregation in the Kansas City area when the Spairihower Commission in
1969 proposed that it do so, and by failing to: enact, proposed legislation to
encourage voluntary interdistrict transfers; consider desegregative recommen
dations of the U. S. Civil Rights Commission and other public and private
groups and even its own Urban Education Division (XI150); enforce Title VI as
to race; and generally to take a single substantive step not. ordered by a court
to cause desegregation anywhere in Missouri.
106por example: (1 ) despite warnings that, doing so would be segregative, the
State designated an interdistrict. system of segregated area vocational technical
(AVT) schools in the 3-count.y area and thereby "committed an interdistrict.
violation by failing to disjmantle the racially segregated separate vocational
- 53 -
F.Supp. at. 1490).10^ Because these fresh constitutional violations are inter-
district- in nature and their effect is to maintain and increase the racial iso
lation of school children in adjacent, districts, they provide a second
independent- basis for interdistrict. relief. See Liddell V , 677 F.2d at. 638.
3. KCM's Officially Sanctioned Suburban Flight. Violation. Like the
State and the SSDs, KCM "defaulted in [its] obligation to uphold the
Constitution" and "to eliminate the structure and effects of its past, dual
system." 593 F.Supp. at. 1505. By "choosing" through such means as neighborhood
school policies, shifting and optional attendance zones, intact, busing, school
site selections, curriculum changes, differential distribution of resources and
segregated faculty assignments t.o preserve the all-white character of its
west-of-Troost. schools at the expense of "integration and stabalizat.ion" in its
east-of-Trocst school (id. at 1492, 1494), KCM "officially sanctioned white
flight.108 as "blacks moved or were bused to schools" in the southeast area and
programs" (Liddell V , 677 F.2d at 638); (2) by amending (1957) then repealing
(1965) legislation in place as of Brcwn that would have required KCM (new 68%
black) automatically to expand to the Kansas City limits (27% black) when the
City’s population reached 500,000 in 1970, the State acted unconstitutionally to
"freeze the status quo that, is the very target, of all desegregation processes."
(McDaniel v. Barresi, 402 U.S. 39, 41 (1971).
107por example: in the years imrrediately post.-Brown, the SSDs continued trans
ferring blacks to KCM (6/5/84 Opn at. 86 (PH)), continued operating segregated
black schools, (id. at. 75 (LI)), and released or demoted the few black teachers
they had previously employed (supra p.38-39 & n.69); and since Brcwn have failed
to integrate their staffs. In addition, the SSDs have selectively confoined and
cooperated for myriad educational purposes including interdistrict. transfers to
"area" vocational schools which omit. KCM and sharing local sales tax revenues
but. only so long as they could do so and be assured of not. having to assist, in
desegregating KCM (or their cwn teaching staffs), but. have religiously .opposed
all proposals for desegregative cooperation, , instead supporting H.B. 171 and
annexation legislation which raised barriers to desegregation, supra pp.32-33.
-*-'"®0maha, 521 F.2d at 540 n. 20.
54 -
"whites moved out." (id. at 1494). Because rtuch of that flight went to the
neighboring SSDs (id., citing e.g., T8715), and because by miking its southeast
area schools "blacker," KCM reciprocally rrade the recipient SSD schools
"whiter, " 109 "the racially discriminatory acts of [KCM] caused racial segregation
in. . .adjacent, districts," thereby effecting a third int.erdistrict violation
requiring interdistrict, relief. Mil liken I, 418 U.S. at 7 4 5 . The findings
below thus establish a fourth independent basis for relief involving each of the
SSDs affected in this manner.
4. The State's Housing-Market-Wide Dual Housing Systems. Simultaneously
with its "dual school" violation and precisely supportive of it, Missouri also
committed a "dual housing" violation, the effects of 'which "still exist, to a
large degree today." 593 F.Supp. at. 1491. As the district court, found, the
state fueled the dual housing market in the 3-count.y area by enforcing racially
restrictive covenants and by officially adopting and enforcing realtor "ethics"
forbidding brokers cn pain of suspension to sell blacks homes In white neigh
borhoods (T12974-6, cited id. at 1491). The effects of this dual housing system
have been felt, in virtually every other housing program In the 3-county area:
they compelled FHA t.o adopt mortgage insurance practices which until the 1960s
denied tens of thousands of moderately priced federally insured hones to blacks
in white neighborhoods, whites in black neighborhoods, and both in integrated
neighborhoods (id. at. 1497); established and encouraged lending, appraisal and
sales practices affecting every buyer and renter in the metropolitan market,
characterized by "red lining, steering and blockbusting," which function to this 10
10%oots, 672 F.2d aF 1121.
■'■^Accord, Wilmington I, 393 F.Supp. at. 435—6 and n.15, aff'd, 423 U.S. 963
(1975) (interdistrict, relief justified by proof that, city district, 's liberal-
transfer and other policies in violation of its duty to dismantle caused "white
families to move out,...discouraged white families from moving in" and led both
t.o "escape" t.o the "near-at-hand. ...suburbs").
- 55 -
day (id. at 1503); fostered (and, in the case of MHTD, funded and operated)
"black to black, white to white" (Kilbride D59) highway and urban renewal relo
cations affecting more than 13000 entire households in the 2 decades following
Brown (see supra pp. 21-23); and, throughout the 1960s and 1970s, they effec
tively separated the procession of black and white low-income families taking
part in each new federal housing program — be it single-family mortgage
insurance, or the §235, subsidized/assisted multi-family or §8 programs — into
its respective racial half of the dual housing market, leading blacks into black
and transitional neighborhoods in the KCM and causing whites to leave or shun
those neighborhoods and instead take their subsidies to the suburbs. See supra
pp. 23-28.
Here, too, the violation and its effects were interdistrict.. For "the
relevant geographic area for purposes of...housing options is the [metropolitan]
housing market, not the...city limits," an area which in metropolitan regions
"'may extend into several adjoining counties'" coterminously with "the standard
Metropolitan Statistical Area" (which here encompasses the entire 3-county area
XI, 9, T3412). Gautreaux, 425 U.S. at 299.111
Having established not. only that "racially discriminatory use of state
housing. . .laws or practices" have "contributed to the separation of the races"
(Milliken, 418 U.S. at 755 (Stewart., J., concurring)), but. also that "housing
patterns and school composition" in the 3-count.y area "are inextricably
intertwined" (6/5/85 Cpn at. 101; AS), the district, court.'s findings thus
establish a fourth independent, basis for interdistrict, relief encompassing any
and all school districts affected by the violation. For where, as here,
lllQuoting HUD, FHA Techniques of Market. Analysis 12 (Jan. 1970). Accord,
T12961-63, 15499-503, 20068-69. For example, highway and urban renewal reloca
tions carried whites into BS, CE, BV, HM, IN, LI, LS, NK, FT; the state
suspended a PH realtor's license for selling a "white" home to a black family;
racially restrictive covenants reached into all the SSDs but. one (FO); FHA's
- 56 -
"discriminatory practices" are found to "have caused segregative residential
patterns and population shifts" and where, as here, "state action, at whatever
level, toy either direct, or indirect, act.ion, is found to have "initiated, sup
ported or contributed to these practices and the resulting housing patterns and
.shifts," an "int.erdistrict. remedy is appropriate" and may reach as far and as
wide as the violation's metropolitan effects. 112
5. LCRA's and HAKC's Kansas Cit.y-wide Racial -Steering and Siting Vio-
lations. Although part, and parcel of the State' s dual housing market, viola
tions, the constitutional violations found below (593 F.Supp. at. 1498, 1499) by
LCRA and HAKC also provide a fifth and sixth independent basis for int.erdistrict
relief. Both agencies had jurisdiction throughout, the City of Kansas City,
reaching into all or parts of 10 of the 12 defendant districts here. Each,
however, invidiously chose to divert, blacks subject, to its authority exclusively
into KCM — LCRA by "blatantly and flagrantly" practicing "black to black, white
to white" relocations, HAKC by explicitly building projects "for Negroes" in
black areas in KCM — notwithstanding its jurisdiction integratively to locate
them or housing for them elsewhere. Here, as in Indianapolis II, therefore, the
2 agencies' "discriminatory policies have caused residential housing patterns
and population shifts" that affected thousands of households over the 1953-1976
period of those violations, and accordingly had significant segregative effects
on the student body of the KCM to which they unconstitutionally diverted blacks,
single-family and §235 practices had effects wherever new homes were built and
old ones sold, including throughout, the SSDs (X53G), and caused BS, toy way of
illustration, to fill up almost, an entire new elementary school with children
from a §235 subdivision (Bartow D16-17), and state and federally .subsidized
multi-family units house children in each of the SSDs (X27F). 112
112Indianapolis II, 637 F.2d at. 1109, quoting Indianapolis I, 573 F.2d at. 409-10.
Here again, the findings below conform precisely to the int.erdistrict. violation
found in Wilmington I: "The net. out.-migrat.ion of white population and increase
of black population in the last, two decades resulted...from...Federal Housing
Admininstration mortgage underwriting [procedures]..., racial discrimination in
- 57 -
and of the SSDs from which they diverted them. Indianapolis II, 637 F.2d at
1109-11. See id. at 1114 (finding construction of projects with 1600 units —
j.e., fewer than the 2300 (X1609, 593 F.Supp. at 1498) units HAKC operates —
significant).
II. THE DISTRICT COURT DENIED INTERDISTRICT RELIEF BASED CN A
CONCATENATION OF LEGAL ERROR AS TO INTERDISTRICT LIABILITY AND EFFECT.
A. Only By Six Times Abandoning The Controlling Legal Principles Did
The Court Absolve The SSDs Of Liability To Inclusion in An Inter-
District. Remedy.
The district, court absolved the SSDs of any participation in a remedy
in this case based on six independently reversible errors of law.
1. The district, court inexplicably concluded that there is "no evi
dence that any of the SSDs acted to cause segregation," 6/5/84 Opn at 34 , 113 In
the face of uncont.rovert.ed evidence that, each SSD barred its white schools1 s
doors to black children throughout the pre-1954 period and either made no provi
sions at all for their education, operated intermittent and "makeshift" dual
the sale or rental of private housing...sanctioned by state officials,...
[rjacially restrictive covenants..., [t.]he Delaware Real Estate Coramission[ ' s
enforcement of racially exclusionary]... realtor ethics, [and] [p]ublic housing
policies... [which placed governmental] 'pcwer, property and prestige' behind
the white exodus from [the city district.] and the widespread housing discrimina
tion patterns in [the metropolitan area]--- This conduct, const.itues segregative
action with int.erdistrict effects under Mil liken." Wilmington I, 393 F.Supp. at.
434-3, aff'd, 423 U.S. 963 (1975). Accord, Adams, 620 F.2d at. 1291 & n.21,
1294 n. 27; Morrilt.on, 606 F.2d at 228-9; Ybarra v. City of San Jose, 503 F.2d
1041 (9t.h Cir. 1974); e.g., Oliver v. Kalamazoo Bd. of Educ., 368 F.Supp. 143,
183 (W.D. Mich. 1973), aff'd, 508 F.2d 178 (6th Cir. 1974);United States v.
Bd. of Educ., 554 F.Supp. 912, 913 n.2 (N.D. 111. 1983); Reed v. Rhodes, 422
F.Supp. 708, 739 (N. D. Ohio 1976); Hart., 383 F.Supp. at. 699; Swann v. Charlot.t.e-
Mecklenburg Bd. of Educ., 306 F.Supp. 1299, 1304 W.D.N.C. 1969), aff'd in part.,
431 F.2d 138 (4th Cir. 1970), aff'd in part., 402 U.S. 1 (1971); Note, Housing
Discrimination as a Basis for Int.erdistrict. School Desegregation Relief, 93 Yale
L.J. 340 (1983).
113See id. at 3, 34, 46, 98; 1/25/85 Opn at 2. See also 6/5/84 Opn at 87 (post-
Brown decisions of PH to continue sending black students to KCM while educating
its white students at hone "do not reflect.. . .any racial animus").
58 -
black schools, or transferred them to KCM, and given the court.'s cwn conclusions
that "[e]ach school district, participated in th[e] dual school system before
Brown" (593 F.Supp. at. 1490), the district, court1 s "no constitutional violation"
conclusion is wrong. E.g., Adams, 620 F.2d at. 1289; Missouri III, 515 F.2d at
1370 (because Missouri districts, along with the State, were at. fault for segre
gating their schools pursuant, to state law prior t.o Brown, they may be required
to take action, including imlti-district. consolidation, to remedy the
violation).
2. The district court, erred as a matter of law by allowing the SSDs to
escape liability for their participation in the State's admitted constitutional
violation because each is an assert.edly "locally autonomous and independent,
entity." 6/5/84 Opn at. 12. So far as the State's pre-1954 segregation mandate
is concerned, the SSDs and their officials were not. autonomous; rather, they
were consistently denied "local option" by the State and threatened with
withdrawal of all funds and criminal prosecution whenever they took it. on them
selves to violate the State's mandate (supra n.4) . 114 Moreover, to the extent.
that they were autonomous for purposes of deciding hew (if not. whether) they
would segregate their children, their degree of culpability for the inter-
district violation is enhanced. For it was precisely their discretionary deci
sions not. "to educate their black students within the district" and instead "t.o
transfer them to schools in another district." (6/5/84 Opn at 11) which so
thoroughly "influenced the patterns of residential development [in the] metropo
litan area" and had such an "important impact, cn composition of inner city
neighborhoods." 593 F. Supp. at. 1491 quoting Swann, 402 U.S. at. 20-1. In
114See 593 p.supp. at. 1503 ( "KCM did not. mandate separate schools... .The people
of the State of Missouri through constitutional provision and the General
Assembly through legislative enactments" did). Indeed, even after Brcwn,
Missouri's role in public education has remained "immense" and "preeminent.."
Liddell VII, 731 F.2d at. 1306, 1308. Accordingly, the district, court.'s
’ - 59 -
short., to the extent, it exists, local autonomy only brings to bear the require
ment in Millikan of proof that, each local district, included in a remedy either
Dart.icipat.ed in the constitutional violation or was affected by it. Mil liken,
418 U.S. at 744-5. Both conditions being satisfied here, the districts' auto-
ncny is no longer relevant. Accord, Morrilton, 606 F.2d at 227; Missouri III,
515 F.2d at 1369-70; Haney, 410 F.2d at 924-6.115
3. Improperly absolving the SSDs of any pre-1954 violation led the
district court erroneously to ignore their train of post-1954 segregative-in
fact act.ions and omissions (supra n.50) and to require plaintiffs to establish
that, each SSD committed some fresh post-1954 "intentional racially discrimina
tory act.." E.g., 6/5/84 Opn at 45. Because the "measure" of the post-Brown
conduct, of districts such as the SSDs which have yet to "liquidate" the effects
of their prior interdistrict violations "is the effectiveness, not the purpose"
of their actions (Dayton II, 433 U.S. at 538), the district, court's exclusive
analysis of their post-Brown conduct, for its "purpose, not effect." stands
Dayton II on its head. See 6/5/84 Opn at 19-34, 43-95. Analyzed under the
proper "effectiveness" standard, the SSDs consistent post-1954 pattern of inter-
"autonomy" conclusion rests primarily on the local districts' unquestionable
aut.onary with regard to desegregation, given the State's complete post-Brown
cession of authority on that, issue. That oession of authority, however, was
itself a constitutional violation, since it abrogated the State's affirmative
duty to take whatever action is necessary to remove the vestiges of its prior
segregation root, and branch. As such, it decidedly cannot serve to shield local
districts affected by and participating in that segregation from assisting in
its eradication. Cooper v. Aaron, 358 U.S. 1, 15-7 (1958). This factor alone
distinguishes Milliken, given that. Michigan, unlike Missouri, had never
qualified its grant, of aut.onary to local school districts by forbidding them to
educate their black and white children together, and given that its cession of
authority was neutral and continuous, unlike Missouri's 180 degree turnabout, on
the issue in the weeks immediately following Brown. See supra n.50.
l^The district court also erred in holding that, the SSDs fully discharged any
responsibility under Brown by "ceasing all black transfers and admitting stu
dents to...schools on a racially neutral basis" and thereby, assertedly,
becoming "unitary." 6/5/34 Opn at. 70, 99; see id. at. 63, 30, 87. In the first.
Diace, the courts have consistently held that "unitary" status on an intra-
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district, cooperation for all purposes save, explicitly, integration, and their
vehement and successful opposition to all potentially desegregative inter-
district. proposals, clearly "continues" their prior violations. Coluntous, 443
U.S. at 459.
4. Even were the SSDs not at fault, for their participation in the
interdistrict, dual system and for failing to redress its effects, they would
still be liable here to take part, in eliminating the effects on children in
their districts of the State's metropolitan-wide dual school and housing viola
tions. As discussed in Part. I.A.l, supra and as Milliken itself provides,
"racially discriminatory acts of the state or local school districts" with
int.erdistrict. effects may be the basis for district-consolidation or other
interdistrict, relief. Milliken, 418 U.S. at 744-5 (emphasis added). Accord,
Gautreaux, 425 U.S. at 296 n.12; cases cited in supra nn.91 & 93. The district, * III,
court, therefore erred by concluding that, absent "a violation...by each defen
dant district, as well as int.erdistrict effect," the State's interdistrict, segre-
district. basis is no bar to inclusion in an int.erdistrict remedy where, as here,
the metropolitan-wide effects of a prior interdistrict violation persists.
E.g., Wright, 407 U.S. at 463, quoted in Scotland Neck, 407 U.S. at. 490
"^desegregation is not. achieved by.. .two. . .systems, each operating unitary
schools within its borders, where one of the two systems is, in fact., 'white, '
and the other is, in fact, 'Negro'"). Accord, Hoots, 672 U.S. at 1126; Missouri
III, 515 F.2d at 1368; Haney, 410 F.2d at 923 n.l; Wilmington II, 416 F.Supp. at.
339. In any event, this Court, has repeatedly held that "a Board of Education
does not. satisfy its constitutional obligation. . .by simply opening the doors of
a formerly all-white school to Negroes" (Kelley v. Altheinner Pub. School Dist.,
378 F.2d 483, 488 (8th Cir. 1967); accord, Adams, 620 F.2d at 1286), but rather
that, it must in addition take "affirmative" steps to dismantle one-race (either
race) schools with one-race faculties. E.g., Kelley, supra, 378 F.2d at 488-9,
492 & nn.9, 16. Accordingly, if for no other reason than the overwhelmingly
white character of their faculties today, as in 1954 and at all times since, the
SSDs manifestly have not. met their unit.ariness duty, any more than had the
districts found liable on this basis and consolidated in Morrilton, 606 F.2d at
227.
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gat.ion of school children in those districts falls beyond the Constitution's
reach. Compare 6/5/84 Opn at 14, 34, 95, 102 with, e.g., Morrilton, 606 F.2d at
228; Missouri III, 515 F.2d at 1368; Haney, 410 F.2d at 923.
5. Although the district, court, found extensive violations by KCM,
which caused southeast, corridor whites to flee the district, for the suburbs
leaving all-black schools in their wake (593 F.Supp. at. 1491), it concluded that
the effects of those violations in the SSDs were irremediable because the SSDs
did not. invidiously "enticed these families to move to their districts." 6/5/84
Opn at. 38-39. As discussed in Part. I.A.l, supra, however, unconstitutional
actions within cne district., making it "blacker," which reciprocally affect
adjacent districts by making them "whiter," provide an independent basis for
interdistrict relief. In failing to recognize this established principle, the
district, court, erred.
6 . To like effect, is the district, court's ruling that, absent,
"intentional segregative act.s by each school board sought, to be included," a
"finding of liability against. . .actors in the housing market, is irrelevant, to
the...SSDs." 6/5/34 Opn at. 101-2. Because invidious "state action at. Whatever
level" of government, has "contributed to the separation of the races,...a decree
calling for transfers of pupils across district lines" is "appropriate.”
Min iken, 418 U.S. at. 755 (Stewart., J., concurring); Indianapolis II, 637 F.2d
at 1109.
Each of these errors alone, requires reversal. Together they account
not. only for the improper dismissal of the SSDs but. also for the erroneous
exclusion of much of the evidence offered at trial, for the erroneous findings
nt^The district, court.'s attempt to limit the principles of Morrilton, Missouri,
and Haney t.o cases in which state officials invidiously drew new boundary lines
around pre-existing black and white neighborhoods and to deny its applicability
to cases in which state officials invidiously moved blacks and whites to oppo
site sides of pre-ext.ing lines, is error. Compare 6/5/84 Cpn at. 5, 104 with
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the court, made, and for its failure to. recognize the extensive interdistrict,
violations with pervasive effects that its cwn findings establish.
B. The Court Below Applied An Inproper Burden And Standard Of Proof Of
"Significant. Effects" In An Inprcperly Piecemeal Fashlcn To An Iith"
properly Truncated Portion Of The Relevant Evidenced
Below, plaintiffs clearly satisfied Milliken's "significant- segregative
effects" standard. Milliken, 418 U.S. at 745. Only by dint, of clear legal
error in the SSD-drafted 6/5/84 opinion dismissing those defendants (see supra
n.86) did the district, court, conclude that, the substantial, suffusive and con
tinuing effects it found were insufficient. — error largely abandoned in the
court-composed September 1984 opinion finding liability against the State.
The district, court, found 6 distinct, net.ropolitan-wide constitutional
violations through which government officials — by force of constitutional .and
statutory law, regulatory edict., judicial decree, criminal prosecution, admi
nistrative withdrawal of funds and suspension of licenses, and "blatant" and
flagranti ly]" discriminatory governmental policies and practices — effected
"inext.ricab[ly] connect!ed]" school and housing segregation "which still exists
t.o a large degree today." 593 F.Supp. at. 1491.117 As of the official demise of
each of those distinct but mutually reenforcing int.erdistrict. violations in 1954
(dual school system), 1962 (restrictive covenant/FHA racial-social hamogenity
regime), .1973 (racially steered LCRA relocations), 1976 (segregated public
housing), 1977 (KCM's segregatively "chosen" neighborhood school policy), and
not. yet. today ("dual housing market." and defendants' failure "to disestablish"),
Gautreaux, 425 U.S. at. 284; cases cited at supra n.88. See Wilmington II, 416
F.Supp. at. 340, aff'd, 555 F.2d 373 (3rd Cir. 1977) (Milliken's "specification
of deliberate drawing of lines to achieve segregation was by way of example, not.
limitation").
H 7 1 . But. for the "intentionally created...dual school system" (593 F.2d at
1504), virtually every school child in the metropolitan area before Brown —
given the wide dispersal of blacks once characterizing the area — at. seme time
in their school careers might, have attended racially integrated schools; every
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one of the black families for whom "access to schools" was the "reason [they]
chose to move into the KOI" (id. at. 1490) would instead have stayed in the SSDs;
every one of the blacks from the South whom "availability of schools... influ-
ence[d]" to "locate[] in the black-concentrated areas" near KCM's black schools
(id. at 1490, 1492) would instead have chosen among neighborhoods throughout the
3̂ county area, including ones near their jobs in the SSDs (supra n.25); every
one of the blacks already in the KCM for whom "location of schools" was a "major
factor" influencing "migration" could then have moved with their children to the
suburbs, as so many KCM whites at the time did (id. at 1490, 1491; and, overall,
absent the "important impact" the dual system of locating schools had, the very
"patterns of residential development, [in the] metropolitan area" and the
"composition of [its] inner city neighborhoods" would have differed. Id. at.
1491.
2. But for the State's racially dividing its real estate market in two
through its courts' and real estate commissioner's enforcement, of racially
restrictive covenants (which, "without a doubt." did "[a]ffeet...the market," 593
F.Supp. at 1497) and but for that dual system's various progeny, including FHA's
1930s-1960s "racial" and "social compatability" regime (id.), "redlining,
steering, and blockbusting" (id. at 1503), LCRA's and MHlD's racially steered
urban renewal and highway relocations, and HUD's segregated in-fact, single
family, §235, multiple-family, and §8 programs, all of which "continue[] to have
a significant effect, on. ..the Kansas City area" today (id. at. 1503), blacks
would not be "impacted...in the KCM" and its whites compelled to "move out" to
the suburbs. Id. at 1491.
3. But for the I1AKC's intentional construction and tenanting of public
housing project.'s "for Negroes" in a 14-square-block area in the KCM, causing
its nearby "public schools to swell in black enrollment," an additional incre
ment. of black impaction would be gone. Id.
4. But for the "failure" of the State — in most cases, at the instance of
the SSDs — "affirmatively...to eliminate the structure and effects of its past
dual" school and housing systems (593 F.Supp. at 1505), legislation in place as
of Brown but. repealed soon thereafter by the State would have permitted KCM to
expand to the boundaries of the City of Kansas City as of 1970, and every white
child in CE, GV, HM, IN, LI, LS, NK, PH, and RT residing within those boundaries
would today be attending KCM’s in-that-event. far less racially isolated schools.
KCM's majority-black 1-district "area" vocational school would not. exist separa
tely from and largely surrounded by the all-white 6-district. Herndon area school
in RT, and vocational students in all 7 defendant districts could be attending
integrated vocational classes together; the "Milwaukee Plan" or similar legisla
tion could have offered every white child in the metropolitan area the option of
attending school with blacks either in KCM or in their own schools beside blacks
transferring there from KCM; and, for another example, MHDC's subsidized housing
would be a vehicle for subsidizing families contributing to the integration of
school districts by contrast to its currently opposite effect,. 5
5. But for KCM's default of its obligation t.o "dismantle [the] system of de
jure segregation root and branch" (593 F.Supp. at 1505) and its "chosen path"
(id. at. 1492) of preserving the all-white character of its west-of-Troost
schools at the expense of "integration and stabilization" in its east-of-Troost
schools, thousands of whites who departed its racially "impacted" schools and,
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they had explicitly sought, and effectively served to segregate innumerable stu
dents on a multi-district, basis. Moreover, the district, court found, that,
these violations "continued to have a significant effect." today and that
schools and neighborhoods in the "city" and "suburbs" are beset by an "intensity
of segregation." 593 F.Supp. at 1503, 1491, citing T14745. Under Long-
established school desegregation principles, these findings go well beyond what
is necessary to establish a constitutional violation requiring a remedy fully
commensurate with "the nature and extent of the constitutional violation" — as,
indeed, the district, court, concluded in its September 1984 published opinion
finding then sufficient to require relief against the State. See Gautreaux, 425
U.S. at 294, quoting Milliken, 418 U.S. at 744, quoting Swann, 402 U.S. at 16.
Under Swann, proof of "a system with a history of segregation. . .war
rants a presumption against, schools that, [remain as of trial] disproportionate
in their racial composition. .., and the burden upon school authorities will be
to satisfy the court that, their racial composition is not the result of present
er past discriminatory action." Swann, 402 U.S. at 26. "Independent, of student,
assignments, where it is possible to identify a 'white school' or a 'Negro
school' by reference to the racial composition of teachers and staff. . .a prima
facie...violation under the Equal Protection Clause is [also shewn]" Id. at 18,
reaffirmed, Columbus, 443 U.S. at. 458 n.7; Payton II, 443 U.S. at 537.
This Court has thrice applied this same principle in interdistrict
cases, concluding that, segregation of school children by law before Brcwn which
in the process, the district, itself ("1200 between 1954-55 and 1955-56" alone)
would have had a stably integrated educational alternative to suburbanward
flight, in contrast to the "often rapid" schools-before-neighborhood
"transition" which hi fact, confronted them.
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resulted in racial disparities between districts as of Brown, is sufficiently
abhorrent and pervasive governmental conduct, to justify concluding, absent
rebuttal by defendants, that interdistrict student and faculty disparities
remaining at. trial constitute "[p]resent day evidence of continuing racial
segregation” sufficient, to require interdistrict relief. Morrilt.on, 606 F.2d at.
227.118
Here plaintiffs manifestly met their "prima facie" burden, and the
district, court, explicitly "rejected" the State's attempted rebuttal. As
required by Swann, plaintiffs established that 'the State and defendant, districts
have "a long history of maintaining two sets of schools in a single [here, by
law, interdistrict.] system deliberately designed to... separate pupils... on the
basis of race." Swann, 402 U.S. at. 6-7. They next, established segregation as
of 1954 (i.e., that the 20% proportion of 3-count.y area black children in the
suburbs as of 1900 had shrunk below 3%, leaving the 11 SSDs all or virtually all
white (X53, 53E)) and that segregation remained in 1968 (overall, 1/2% black
enrollment, 7 black teachers out. of 4300) and remains today (5%-blacx
enrollment, less than 1%-black teaching staffs, no black counselors). The
district. court. thereupon "rejected" the State's rebuttal, which had
"discounted. . .the dual school system as having any effect.," concluding that.
"Missouri's legacy" of dual schools and housing "'influence[d] the patterns of
residential development of [the] metropolitan area,'" "impact.[ing] blacks in the
KCM and consequently caus[ing] schools t.o swell in black enrollment.
F.Supp. at. 1491, quoting Swann, 402 U.S. at. 20-1.
In any event, plaintiffs went, well beyond the "segregation by law
l18Haney, 410 F.2d at 924 (proof that, school district, lines were drawn decades
before trial "under the color of state law.•.requir[ing] segregated schools is
sufficient- t.o require interdistrict. relief upon further proof that, as of trial
those "district, lines" continue to "reflect, a discriminatory pattern");
Missouri III, 515 F.2d at. 1370, aff'g 363 F.Supp. at. 743, 745 (segregative
— 66 -
then"/"segregat.ion in fact, now" presumption in Swann and Morrilt.on; instead they
painstakingly delineated precisely how "Missouri's legacy" influenced metropoli
tan patterns of residential development so that — year by year, decade ’ey
decade — "blacks settled in the inner city" and "whites moved out." to the
suburbs. 593 F.Supp. at. 1491, 1494. Although treating this shewing as suf
ficient against the State and KCM, the court, ruled it insufficient, as to the
SSDs — expressly because it. erroneously applied a far higher, essentially
unreachable standard t.o those latter defendants.
The court, acknowledged below that, under Swann, plaintiffs' proof of
prior de jure segregation on an area-wide basis, coupled with patently con
tinuing "racial imbalance" among the defendant districts' student and faculty
composition, established the liability of the SSDs. See 6/5/84 Opn at. 6, 31.
It. dismissed the SSDs, however, because it "refuse[d] t.o apply" Swann's so-
called "int.radistrict factor[s], such as "faculty imbalance," "reject.[ed] all
"intradistrict, presumptions" and, indeed, ruled all "int.radistrict. cases" but
ene "inapplicable" per se. Id. at 5-6 (emphasis added). See id. at. 97-8 (exemp-
ting Dayton I alone from "no intradistrict, cases" rule). Rather, to "negat.[e]
plaintiffs' voluminous pre-1954 evidence," the court, applied a rule precisely
opposite t.o Swann's, which presumes as a matter of law that due to society's
reorganization behavior ending in 1949 justified int.erdistrict relief under
Milliken, based on assumption, absent, contrary proof, that, the interdistrict-
segregation largely remaining at. trial was a product, of those segregative
actions 25 years earlier); Morrilton, 606 F.2d at 225, 227 (Arkansas pre-1954
segregation by law and segregative reorganizations pursuant, thereto in the
1920s—40s held sufficient under Swann and Milliken, absent contrary proof, to
justify treating the segregated—in—fact, "pattern" of int.erdistrict- racial
disparities among students and faculty as of trial as continuing effects of the
violation). Accord, e.g., Indianapolis II, 637 F.2d at 1113; Hoots, 672 F.2d at
1121; Evans v~ Buchanan/ 582 F.2d 750, 765 (3d Cir. 1978), quoting Swann, 402
U.S. at 26; Louisville II, 541 F.2d at 541-2, citing id.
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"fluid nature..., acts new 30 years past have negligible effects. Such is the
fate of the discriminatory practices plaintiffs... develop[ed]." 6/5/84 Opn at.
9S-9 (emphasis added), citing Dayton I, 433 U.S. at. 411.119
By forcing the victims of de jure "int.erdistrict." (593 F.Supp. at 1490)
segregation "scarring every student." in the 3-count.y area "over five
generations "120 t.o bear a presumptive burden because a sixth generation has
passed, the Court erred. For — be it in intra- or inter-district, situations —
"it is new clear, if it was ever in doubt, that. [Dayton I's] incremental effects
test applies only to casfes where discrete isolated examples of discrimination
are established," Indianapolis II, 637 F.2d at. 1113 (int.erdistrict case), and
is wholly "inapposite t.o ...findings of de jure segregation," Liddell VII, 731
F.2d at 1306 & n.10, 12 . 121 Rather, "where there is an historical pattern of
significant de jure segregation with pervasive inter-district effects" as of
1954, and "where the defendant, itself is in the best, position to ascertain what,
the pattern of segregation would have been 'but. for' the constitutional
violations...then the burden shifts to the defendant" t.o explain the continuing
segregation (Wilmington IV, 582 F.2d at 763, 765 (int.erdistrict. case)), and
plaintiffs need not. "prove 'with respect, to each individual act. of discrimina-
119Accord, 6/5/84 Opn at. 98," 105 (acknowledging "the violations proved" taut,
ruling their effect.s presumptively "de minimus and. .. legally insufficient."
because they are "far removed in time"). The court, held that plaintiffs could
overcome the "lapse of time" presumption only by shewing that, segregation was
not. simply, as it. found, one of .several "major factors. ..influenceing]...
housing choice" (593 F.Supp. at. 1490) but that. it. was the "primary motivation, "
which wholly "prevented any" black settlement, in areas without schools, and that,
each 3-count.y-area household's current, residence can be shown t.o be the
"incremental" result of prior segregation (6/5/84 Opn at. 18, 47-8, 91, 98,
citing Dayton I, 433 U.S. at. 411).
12QLiddell VII, 731 F.2d at. 1308. 12
12-'-Accord, e.g., Columbus, 433 U.S. at. 458 n. 7 ("systemwide institutional
purpose" t.o segregate renders Dayton I inapplicable); Dayton II, 443 U.S. at 540
-2; Hoots, 672 F.2d at 1121 (int.erdistrict. case); Adams, 620 F.2d at 1290-91;
Booker v. Special School Dist., 585 F.2d 347, 353 (Sth Cir. 1978); Omaha, 565
- - 68 -
t.ion precisely what effect, it has had on current patterns of segregation.
Indianapolis II, 637 F.2d at 1113, quoting Dayton II, 443 U.S. at 540.122
The district, court, exacerbated its erroneous reliance on Dayton I
through an equally improper process of disaggregation and exclusion of the
myriad cognizable effects shewn below:
Disaggregation: The district, court, analyzed each unconstitutional act.
of each defendant, separately, throwing out each that, was not. by itself the
"primary" cause of metropolitan racial patterns and never considering the viola-
F.2d at. 128• Louisville lT~489 F.2d at 930 (interdistrict, case).
122rphe district, court's treatment of faculty segregation in the 12-district area
illustrates its error. Compare 6/5/84 Opn at 31, 102 (recognizing that "courts
often consider faculty composition" as indicator of continuing segregation
(citing Swann), but refusing to apply this assertedly intradistrict. ract.or in
an int.erdistrict. case because "there is...no law to support." it.), with
Morrilt.on, 606 F.2d at 227 ("present, day evidence of continuing segregation"
among 6 districts segregated toy law 30 years earlier "is manifest in the
[disparate] racial composition" of the various districts' staffs as of
trial) and^Missouri III, 515 F.2d at 1367, aff'g, Missouri I, 363 F.Supp. at
745, and Haney, 410 F.2d at. 922-3 & n.l. The court, (once again adopting its
holding verbatim from the SSDs' proposed fact-findings, supra n.8 6) extended this
error by ruling "speculative" the very "racial identification" premise that the
Supreme Court and this court, have relied on for 2 decades to require faculty
desegregation. Compare 6/5/84 Opn at. 34 ("speculative t.o conclude there would
be more black students in the defendant districts if those districts had more
black teachers"), with, e.g., Keyes, 413 U.S. at 202 ("the assignment, of faculty
and staff cn racially identifiable bases have the clear effect, of earmarking
schools according to their racial composition... [with] a profound reciprocal
effect, on the racial composition of residential neighborhoods within a met.ropo-
ITtan-area, thereby causing further racial concentration within the schools");
3radley v. School Bd., 382 U.S. 103, 105 (1965) (emphasis added) ("There is no
merit t.o the suggestion that the relation between faculty allocation on an
alleged-racial basis" and student, choice "is entirely speculative" )';' A d a m s 620
F.2d at 1291 (emphasis added) ("public perception of the racial identity of a
school can be maintained...effectively toy a one-race faculty...and...often is a
powerful factor in shaping the residential patterns of — neighborhood^]); Kemp
IT Beasley, 389 F.2d 178, 190 (3th Cir. 1968) (emphasis added) (a
"predominantly [one-race] faculty" has "a pervasive influence on the student's
choice of schools"). The district court's rejection of this long-established
and uncontrovert.ed principle of constitutional fact., supported by unanimous
expert testimony belcw (supra n.72), is patently erroneous. See Bose Corp. v.
Consumers Union, U.S. T 80 L.Ed.2d 502, 517, 523 (1984) ("Rule_52(_a) does
not. inhibit, an appellate court.'s pewer to correct, errors of...mixed finding of
law and fact., or a finding of fact.... predicated on a misunderstanding of the
governing rule of law;" and in "cases in which there is a claim of denial of
- 69 -
t.ion's aggregate effect..123 yhe aourf- erred. "Plaintiffs should be given the full
benefit of their proof without tightly conpartment.alizing the various factual
components and wiping the slate clean after scrutiny of each." Continental Oil
Co. v. Union Carbide, 370 U.S. 690, 699 (1962). In desegregation cases, this
means that the effects of all segregated governmental "policies and practices"
must be "considered together" (Keyes, 413 U.S. at. 213), the effects of "[e]ach"
being "added [as] an increment" to derive "the sum total" segregative effect.
Penick v. Columbus 3d. of Educ., 583 F.2d 787, 814-5 (1978), aff *d, Columbus,
443’U.S. at 468 n.7.
Exclusion: Having resolved to analyze the effects evidence piecemeal,
the district, court then threw out. most, of the pieces as irrelevant, based on a
self-reenforcing spiral of legal error. First, as discussed in Part 11.A,
supra, it ruled as a matter of law, that it. could not consider the effects on
the SSDs of the great majority of the violations its findings revealed because
they "are matters [over] which no SSD had any influence, input or control."
6/5/84 Opn at 30. In so ruling, the court also improperly rendered irrelevant,
the effects in the SSDs of the various "continuing violations" worked by defen
dants' failure to undo their prior segregation.
The court further erroneously abridged the dual school and housing
violations' effects by: (a) considering only the "effect, in the KCM" of the
rights under the Federal Constitution, this Court, is not. bound by the conclu
sions of lcwer courts, but. will re-examine the evidentiary basis on which those
conclusions are founded").
1233ee/ e.g, q/s/QA Opn at 16* ("*" indicates findings adopted verbatim from
SSDs) 6/5/84 Opn at 16* (2000-person "decrease" in black population of 3-county
area outside KCM "accounted for...by people...going t.o KCM because of the dual
school system;" "insignificant."); id. at. 45-6 (360 black CE-KCM transfers in
6-year pre-Brown period; "insufficient"); id. at. 62* (100 black post-World War
II IN—KCM transfers; "insufficient."); id. at 17* (44 of 100 IN-KCM transfers who
later lived in KCM; "insignificant."); id. at 69* (219 blacks enumerated in LS
pre-1954; "too insignificant."); id. at. 75 (30 black LI-KCM transfers the year of
Brown; "too insignificant"); id. at. 79* (262 NK black students pre-1954,
- 70 -
various violations and ignoring those on the SSDs;12^ (£,) excluding from its
effects assessment the diverting and tunneling "influence" its own findings
reveal the dual systems had on virtually all of the tens of thousands of blacks
roving to the area during and after World (593 F.Supp. at. 1490-1); (c) ignoring
the "high birthrate" effects it found (593 F.Supp. at 1490, citing T16509),
which, the State's denographer testified, magnify the residential effects over
time of governmental action concentrating even relatively .small numbers of
blacks in central cities (T18968-9); (d) treating as exclusive and quantitative
plaintiffs' illustrative and qualitative evidence regarding black SSD-KC4 trans
fers before 1954 and white KOl-SSD transfers thereafter and ignoring uncontra
dicted expert, testimony that these exemplary transfers represented only the tip
of an iceberg, the base of which was permanently obscured by defendants' failure
comprising 40% of total student enrollment of one of NIC's predecessor districts
years (X49,2397, 3590, 3598); "de minimis"); 85* (25-30 black elementary stu
dents in PH annually 1903-1959; "minimal"); id. at 49* (black children
accounting for 10-15% of total number in various FO predecessor districts in
various years; "de minimus"); id. at. 38-9* (1400 white post-1954 KCM-SSD trans
fers from a couple of high schools, "too insignificant"); id. at 37* (7300
1975-82 FHA.-insured loans to white households, virtually all in all-white areas
and 1000 loans to black households in same period, virtually all in black areas
(X26A-H); no "significant, effect."); id.* (20000 families in public and
HUD-subsidized housing — blacks in black areas, whites in white areas (X27F);
no "significant effect."); id. * (13000 racially steered households relocated by
public officials (X353I); "no significant, effect."); 593 F.Supp. at. 1497 (15000
IHA-insured and "racially homogenCized]" homes in K04 alone prior to Shelly; "de
minimus"). Even apart, frcm its disaggregation error, the court's determinations
of lfhow many is enough" are improper. See, e.g., Omaha, 521 F.2d at. 540 (effect
of 92 white junior high school transfers frcm transitional to white schools
deemed "profound"). 124
1246/5/84 Opn at 12, 15-17, 19, 43; 593 F.Supp. at. 1490 (100%-whit.e segregation
of the SSDs over the course of the 1900-50 period resulting "entire[ly]" frcm
the pre-1954 dual school system irrelevant because the hundreds of blacks
thereby forced out. of the SSDs are "insignificant- when compared to the total
black enrollment, of KCM"). The court, erred. The effects on white children of
segregating them in 100% white school districts are no less cognizable than the
effects on blacks of intentionally confining them to predominantly black school
districts. Hoots, 672 F.2d at 1120-21. It hardly absolves the SSDs of assi
duously forcing 100% of their black students to leave, that, in doing so they
directed those children to another district, where blacks were already so con
centrated that, the new arrivals' proportion was small.
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to keep records; 125 and (e) most importantly, adopting "insignificant effect"
conclusions verbatim from the SSDs proposed findings (6/5/84 Opn at 16-8, 38) on
precisely the issues (pre-1954 SSD-KCM black transfers and post-1954 KCM-SSD
white transfers) on which the court, at trial absolutely forbade plaintiffs to
present additional, quantitatively oriented evidence.126 overall, having erro
neously cut. off plaintiffs' quantitative presentation at trial and erroneously
ruled the vast, majority of their effects evidence irrelevant., the court, then
proceeded erroneously to examine what, was left, piecemeal, finding each piece
quantitatively short of the "primary cause" standard it. erroneously insisted
plaintiffs meet.. The product of this concatenation of error cannot survive
appellate scrutiny. E.g., Adams, 620 F.2d at 1285 (overt-uming "no segregative
effect." conclusions of district, court., given their genesis in legal error).
Because the district court.'s findings establish interdistrict, viola
tions requiring interdistrict. relief, and because those matters were fully aired
at .a trial in which all parties had the opportunity t.o participate, it remains
for this Court to remand with instructions to: (1) afford each SSD the oppor
tunity to prove that it does not fall within the scope or geographic area
covered by the various violations, and (2) having resolved that, question, afford
12% . gt, 6/5/34 Opn at 16 (discussing X40, see supra nn. 17 & 24); id. at. 38
(court treats X1775B-E chart exemplifying a few years' worth of white out-
transfers to the SSDs from only the high schools in only 2 of KCM's 8 tran
sitional feeder areas (XK2) as if they represented the entire exodus of whites
in all years from all grades in all areas); see Indianapolis II, 637 F.2d at.
1113-14 (error for trial court. t.o require plaintiffs "to determine a precise
number of children who would have received a desegregated education 'but for'"
governmental misconduct.).
12% . g., T3218, 3753-4, 9642, 13735-6 (all additional evidence of pre-1954 black
SSD-KCM transfers refused); T7317-8, 13643, 13695-6, 14446 (all additional evi
dence of post-1954 white KCM-SSD transfers refused); see also T12783-6 (all
additional evidence of number and direction of urban renewal relocations
refused), T389-90, 14364-7. Having refused additional evidence of pre-1954
SSD-KCM and post-1954 KCM-SSD transfers, even on proffer (e.g. T2681, .2743,
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all remaining parties the opportunity to be heard on remedy. 127
III. THE COURT ERRED IN ABSOLVING HUD OF CONSTITUTIONAL VIOLATIONS
BECAUSE ITS SEGREGATIVE POLICIES WERE NOT ARBITRARY AND CAPRICIOUS.
Prior to Shelly, FHA explicitly forbade its single-family home sub
sidies to be used in racially integrated neighborhoods, and until 1962 applied
that policy to socially integrated neighborhoods, leaving local martgage bankers
and title companies dependent upon FHA to honor racially restrictive covenants
in all their transactions into the 1960s. See supra n.33. FHA's stated racial
classification violates the Fifth Amendment's equal protection corrponent. E.g.,
Richardson v. Belcher, 404 U.S. 73, 81 (1972); Young v. Pierce, 544 F.Supp.
1010 (E.D.Tex. 1982). The violation inheres no matter what FHA's motive for
engaging in it, including the professed desire to maintain the values of insured
hones. "[A] deliberate policy to segregate the races cannot, be justified by the
good intention with which laudable goals are pursued. ... Courts have held that,
alleged good faith is no more of a defense to segregation of public housing than
it. is to segregation in schools." Gautreaux v. Romney, 448 F.2d 731, 738 (7th
Cir. 1971).
The district, court, exculpated HUD's discriminatory FHA policies and
practices on the ground that, they were not. arbitrary and capricious because they
conformed to state law. But. in this respect. FHA/HUD is in no different, a posi
tion than a school board which implemented the state's de jure education statute
9642, 14825), the court' s~verbatim-adopted findings that the evidence presented
on those matters was insufficient, (e.g., 6/5/84 Opn at 16-7, 38-9) are erroneous
as a matter of law. Dayton II, 443 U.S. at. 535-6 (where trial court, "ignored
the legal significance” of evidence of unconstitutional actions before it.,
appellate court, properly reviewed the evidence de novo). See also supra n. 117.
127Hoots, 672 F.2d at 1112-3, 1119-20 & n.ll (interdistrict, violation found
against, the State affecting 5 school districts which were invited to hut. did not
participate at. liability trial; court, held that, all process due the 5 districts
on the "existence of a violation" question had been afforded and that the next,
appropriate steps were to afford the districts a chance to shew that, they lie
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and its act-ions are no less unconstitutional. In fact-, FHA was more than an
innocent bystander in the creation of Kansas City's dual housing market. Until
1962 mortgage lenders "relied very heavily" on FHA and VA and "had no choice lout,
to observe the restrict.ions." Thorrpson D74. * 128 MIA e^licit.ly and effectively
forbade the use of its single-family subsidies in integrated neighborhoods.
FHA's underwriting manual was explicitly aimed at segregating schools
and fostered that, result. (Addendum 24). Its policies were applicable on a
national level, regardless of state or local mandate, edict, or practice with
respect to racial separation in schools. HUD/USHA knowingly funded HAKC's
discriminatory tenanting selection practices and explicit, segregation of public
housing from the date of its inception in KCM through 1976. Since 1963, it. has
failed to provide funding for any new public housing sites which would mitigate
the effects of its segregative siting policies. Similarly, it funded LCRA's
discriminatory and segregative relocation practices. Supra pp.21-23.129 These
beyond the sccpe of the violation and, failing in that, to be heard on remedy).
Immediately following the court's grant, of the SSDs' Rule 41(b) notions, plain
tiffs informed the SSDs that, under Hoots, they absented themselves at their own
peril should plaintiffs prevail against, the State. T17294-5. Although counsel
for the SSDs frequently attended court, thereafter, ceded their announced expert,
witnesses to the State (which relied exclusively for its rebuttal on analyses
those experts had originally performed for the SSDs), and met with State's
counsel and those experts during their pre-testimony preparation periods T17472,
17708, 18279, 18647, 19072-4, 19096, 19122, 19741, 22018. The SSDs, like
those in Hoots, voluntarily waived any right to further participation on the
question of the State's liability.
128The district court, found any lingering effects of FHA's past discrimination to
be de minimis. This conclusion is erroneous, as it. is based on a comparison of
15,000 apples (i.e. individual FHA-insured homes within KCM alone, and those
only pre-1950, and 5,000,000 oranges (a total housing turnover since 1950). For
example, if only 1/10 of those 15,000 hones had been sold to a 1-child black
family in the suburbs as of 1950, the number of black children in the SSDs would
have sext.ripled, and would have been larger than the total number of blacks in
the SSDs as late as 1974. Compare Indianapolis II, 637 F.2d at. 1101, 1114 (1600
public housing units metrcpolitan-wide had "significant, interdistrict effect..")
129The district, court, further found that. HUD's continued funding of LCRA in spite
of its segregative relocation practices did not. violate the Fifth Amendment.,
noting that, a fund cutoff "would have penalized those most, in need of housing."
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actions, separately and jointly, violated the Fifth Amendment's due process
clause incorporation of equal protection guarantees. Bolling v. Sharpe, 347
U.s. 494, 500 (1954) ("In view of our decision [in Brcwn] that the Constitution
prohibits the states from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a lesser duty on
the Federal Government.") Kncwing an intentional HUD entanglement, with and
funding of discriminatory housing agencies is itself a violation of the Fifth
Amendment. Clients' Council v. Pierce, 711 F.2d 1406 (8th Cir. 1983);
Gautreaux, 448 F.2d at 739; Garrett v. City of Hamtramck, 503 F.2d 1236, 1247
(6th Cir. 1974). HUD has thus been under a constitutionally-imposed continuing
affirmative duty to dismantle the segregative school/housing effects of its
discriminatory action. Green, 391 U.S. at 437—8; Swann, 402 U.S. at 15; ■teyes,
413 U.S. at 203; Dayton II, 443 U.S. 528; Columbus, 443 U.S. 459; Hart., 383
F.Supp. 699, aff'd, 512 F.2d 37 (2nd Cir. 1975).130
HUD's constitutionally-imposed (under the facts of this case) affir
mative duty to desegregate housing was supplemented and expanded by Title VIII
of the Fair Housing Act. of 1968, 42 U.S.C. §§3601, 3608(d)(5).131 Clients' Coun-
cii, supra, 711 F.2d at 1425; Otero v. New York City Housing Authority, 484 F.2d
1122, 1133 (2d Cir. 1973); Shannon v. HUD, 436 F.2d 809, 816 (3rd Cir. 1970);
,gAACP v. Harris, 567 F.Supp. 637, 644 (D.C. Mass. 1983); Banks v. Perk, 341
But. "HUD1 s approval and funding of [segregative housing practices] cannot, be
excused as att.enpted accomodation of an admitted urgent need for housing with
[racial discrimination]." Gautreaux, 498 F.2d at 737. HUD s duty was to eitner
force LCRA into compliance or to withdraw funding.
130The district, court.'s failure to recognize this affirmative duty led it to
erroneously adopt the "arbitrary arid capricious standard of review.
lSliphQ district, court, incorrectly ruled that, plaintiffs did not. meet, the statu
tory prerequisite of Titles VI and VIII. 593 F.Supp. at. 1496. Responses to SSD
and HUD contention interrogatories filed 10/29/83, alleged violation of Title^
yin, and plaintiffs moved to amend their complaint to conform to the contention
interrogatory answers. 593 F.Supp. 1485. "The [§§3610 and 3612 prerequisites
Ohio 1972); Blackshear Residents Org. v.F.Supp. 1175 (N.D.
Housing Authority of Austin, 347 F.Supp. 1138 (W.D. Tex. 1971), Young v.
Pierce, 544 F.Supp. 1010 (E.D. Tex. 1982). These cases reaffirm that when HUD
knowingly funds or ignores continued housing violations it falls afoul of the
Fifth Amendment's due process clause.
The record below demonstrates that HUD has done nothing to meet its
affirmative duty to dismantle the effects of its past intentional discrimination
or its Title VIII duty to affirmatively further housing integration.-32 Rather
through its subsidy programs operated in the Kansas City area HUD has further
aggravated and reinforced the dual housing market. The level HUD's post
explicit segregation era dereliction in its public housing related respon
sibilities rise to the level of an independent violation, virtually duplicating
that found to abridge the Fifth Amendment in Clients' Council, 711 F.2d 1406.133
HUD's operation of its §8 program, which imposed and relied upon the discrimina
tory dual housing market it helped to create, predictably perpetuated the dual
housing market in violation of its affirmative duties. HUD's §235 program
destabilized neighborhoods and accelerated racial transition in southeast Kansas
City. The existng §235 program, lacking affirmative marketing and adequate
counseling, furthered racial impaction in KCM while the §235 new housing program
of Title VIII] do not pertain to the secretary's affirmative duties under
§808(d)(5)...or under [Title VI of] the 1964 Civil Rights Act,...." Shannon,
supra, at. 820; accord Hart., supra, at. 754.
132gee Remarks of Senator Mondale - Purpose of Title VIII is to provide for
"truly integrative living patterns." 114 Cong. Rec. 3402, cited in Otero,
supra, at. 1133-34, n.14. See also remarks of Senator Brooks in support, of Title
VIII, accusing HUD of having an attitude of "amicable apartheid." 114 Cong.
Record 2281 (Feb. 6 , 1968), cited in Resident. Advisory Bd. v. Rizzo, 425 F.Supp.
987, 1014 (D.Pa. 1976).
133mhese violations include discriminatory tenanting assignment practices, entire
projects segregated by race, maintenance of separate waiting lists, repeatedly
ineffective Title VI compliance reviews, and unabated segregation. Clients'
Council v. Pierce, 711 F.2d at 1410. Under that, circumstance, this Court.
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facilitated white suburbanization. HUD was forewarned of these effects, supra
n-42, but failed to take less segregative corrective measures. Similarly, the
§203 single-family mortgage insurance program made loans available to whites in
white areas, blacks in black areas (in far fewer numbers) and perpetuated the
dual housing market. Moreover, HDD's subsidized housing programs placed blacks
in KCM and whites in the suburbs. * 134 135 The district, court noted only that the units
were dispersed - on observation that is not. dispositive of plaintiffs' claims.
Ah least under [Title VIII] and probably under [Title VI] as
well, more is required of HUD than a determination that sane
rent, supplement, housing is located outside ghetto areas.
Even though previously located rent supplemental projects
v/ere located in non-ghetto areas the choice of location of a
given project, could have the 'effect, of subjecting persons to
discrimination because of their race...or have the effect, of
defeating or substantially inpairing acconplishment. of the
objectives of the program or activity or respect, persons of
a particular race....'
Shannon v. HUD, 436 F.2d 809, 820 (3d Cir. 1970). HUD did not. implement effec
tive affirmative marketing which would have translated dispersal of its sub
sidized units into desegregation and thus its programs perpetuated and
reinforced the dual housing market.133
reached the inescapable conclusion that. HUD officials "held the view that segre
gation and discrimination were acceptable." Id. at 1423.
134The district court, ruled that, even if HUD's subsidized housing programs were
segregative, its effects cn KCM were de minimis, citing the East Hills project
as an example. East. Hills was before this Court, in Graves v. Romney, 502 F.2d
1062 (8th Cir. 1974). In 1971 black and white residents 'sued t.o block federal
subsidization of that, project, because it would result in racial concentration,
alleging that, even the threat of inpact.ion would cause white flight. This
Court., noting that, the project was conplet.ed, occupied and over 86% black,
decided the injunciton but. characterized the project, as "ill advised." Id. at
1064, n.l.
XK2 shows that, in the years in which East. Hills was presumably being planned,
debated and constructed the white population of the Knotts School decreased dra
matically. (34% blacks in 1968-9, 54% in 1969-70 and 72.6% in 1970-71).
135The district, court, devoted considerable attention to affirmative marketing in
the Kansas City area, using Parvin Estates as an example. However, the 12%
minority residents in that, development, is higher than those for mast, others in
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HUD acted through its public housing siting, tenanting practices, its
FHA relocation and subsidized housing policies to create a densely segregated
inner city ghetto which had profound inpact, upon KCM schools. Its acts and
omissions facilitated, encouraged, and forced the movement of whites fran KCM to
the SSDs, expanding and reinforcing the dual int.erdistrict. school system which
the State created prior to 1954. Where governmental discriminatory practices
have caused segregative residential housing patterns and population shifts with
metropolitan-wide segregative effects on schools an int.erdistrict. remedy is
appropriate. Indianapolis II, 637 F.2d 1101.
IV. THE DISTRICT COURT ERRED BY FAILING ID AFFORD ANY DESEGREGATIVE
RELIEF.
The district, court ordered no desegregation relief. Agreeing that
int.erdistrict. consolidation relief "would be very beneficial in the event, the
Eighth Circuit Court, of Appeals were to reverse this Court's dismissal of the
SSDs," the court, nonetheless rejected KCM's "comprehensive" proposal (X3757) in
that, regard based on the legal rulings discussed above. 1/25/85 Opn at 1-2.136
Absent further relief, KCM's black population attending all-black schools will
remain in Wholly segregated conditions. It. was for those students, and the
reciprocally affected white plaintiffs and other students attending the all-
white surburban schools, that this case was brought. — and this appeal filed.
In addition to int.erdistrict. school relief, plaintiffs seek a cornpre-
the SSDs. (X27F). Ineffective affirmative marketing does not absolve HUD of
its duty t.o desegregate, for the measure of the conduct, of a constitutional
violator under an unsatisfied duty to liquidate the vestiges of its discrimina
tory conduct, is its effectiveness, not. its intent.. Dayton II, 443 U.S. at. 538.
in addition to plaintiffs, the plan was endorsed by the Bishop of the local
Catholic Diocese, the local chapter of the NAACP (amicus curiae brief filed
3/26/85), and other local civil rights groups and conditionally by the Civic
Council of Greater Kansas City (consisting of 100 presidents or CEOs of large
companies doing business in the Kansas City area), Amicus Curiae Brief of Civic
Council, 3/22/85, at. 4-5.
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hensive, but essentially voluntary and modestly priced housing order to remedy137
what the district, court, found to be State "enforced" housing discrimination in
the past. Notwithstanding having so clearly identified the "nature" and "scope"
of the violation as including area-wide housing segregation "inextricably
connected" to school segregation, the district, court, refused to conform the
nature and scope of the remedy to that violation. The district, court, erred. 138
137Plaintiffs' proposed housing plan, detailed in their 5/23/85 proposed Findings
of Fact., Conclusions of Law and Order on Housing, would require only that the
State fund at. lew cost. ($250,000 for the initial year, less than $800,000
annually thereafter) a purely voluntary housing assistance program and submit, a
plan to encourage housing related agencies and other entities to design and
coordinate policies with the purpose of achieving housing desegregation within
this dual housing market.
138E.g., Hart, v. Comxiunity Sch. Bd. of Brooklyn, 383 F.Supp. 699 (E.D.N.Y. 1974)
(requiring housing remedy in school desegregation case) and Adams, 620 F.2d at.
1296 (duty of district, court, to use "other techniques to facilitate desegrega
tion where blacks concentrated by discriminatory school and housing policies are
not easily afforded desegregation by school remedies alone).
79 -
CONCLUSION
For the reasons stated above this Court should reverse the findings and
conclusions of the district, court, insofar as it 1) failed to find an inter-
district. violation, 2) dismissed the defendant, suburban school districts from
the case, and 3) found HUD not. liable and dismissed it from the case. Further,
this Court, should order the iitplementation of a metropolitan-wide desegregation
plan.
Respectfully submitted,
ARTHUR A. BENSON II
BENSON S= MC KAY
911 Main Street-
1430 Commerce Tcwer
Kansas City, MD 64105
JULIUS LeVONNE CHAMBERS
JAMES M. NABRIT III
JAMES S. LIEBMAN
THEODORE M. SHAW
99 Hudson Street, 16th Floor
New York, NY 10013
212/219-1900
Attorneys for Kalima Jenkins, et al.
P laintif f-Appel lant.s
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