Sulton v. Schoen Petition for Writ of Certiorari

    Nos. 88-1150,-1194,-1228

I n  T h e

Supreme Court of tfje Hmtctr states
O c t o b e r  T e r m , 1988

STATE OF MISSOURI, et a l,  
ICELEAN CLARK, et al., 

JACKSON COUNTY, MISSOURI, et

v.

al.,
Petitioners,

KALIMA JENKINS, et al.,
Respondents.

On Petitions for Writs of Certiorari 
to the United States Court of Appeals 

for the Eighth Circuit

BRIEF OF RESPONDENTS JENKINS, et al. 
IN OPPOSITION TO CERTIORARI

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
16th floor 
99 Hudson Street 
New York, NY 10013
(212) 219-1900

THEODORE M. SHAW 
8th floor
634 So. Spring Street 
Los Angeles, CA 90014
(213) 624-2405

* ARTHUR A. BENSON II 
100 Walnut Street 
Suite 1125
Kansas City, MO 64106 
(816) 842-7603
JAMES S. LIEBMAN 
Columbia University 

School of Law 
485 West 116th Street 
New York, NY 10027 
(212) 854-3423

*Counsel of Record

Attorneys for Respondents JENKINS et al.

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Counter-Statement of Questions Presented

1. Whether the petitions are all jurisdictionally out of 

time.

2. Whether a federal district court, which has made 

detailed findings (upheld by the Court of Appeals) 

documenting long-maintained racial discrimination and 

segregation in the Kansas City, Missouri School District 

(KCMSD) and the extensive and continuing effects of 

that constitutional violation, should seek to fashion relief 

that will (insofar as possible) achieve the goal of 

providing students in the KCMSD with the same quality 

of integrated educational opportunities that the court 

determines would exist if the violation had not occurred.

3. Whether a federal district court, in such 

circumstances, should withhold relief that is adequate to

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redress the educational harms occasioned by the 

constitutional violation -- in order to avoid the necessity 

of issuing a decree against state or local officials 

requiring them to raise funds (including by increasing tax 

levies) sufficient to implement a complete remedy for 

the violation.

4. Whether a federal district court, in such

circumstances, lacks the power to effectuate a complete 

remedy for violations of the Fourteenth Amendment by 

directing that tax levies be increased in order to provide 

the revenue necessary 'to afford relief to the victims of 

unconstitutional discrimination and school segregation.

5. Whether a federal district court, in such

circumstances, properly denied intervention to individuals 

and governmental entities whose petitions were not

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submitted until after the tax levy measures which they 

sought to challenge had been ordered, despite the court’s

earlier announcement that it was likely to 

which would raise tax levies in order 

implementation of an adequate remedy for

take action 

to assure 

serious and

sustained Fourteenth Amendment violations.



Table of Contents

Page

Counter-Statement of Questions Presented i

Table of Authorities vi

Jurisdiction 1

Counter-Statement of the Case 3

REASONS FOR DENYING THE W RITS-

Introduction 3

I This Case Does Not Merit Review Because 
The Remedy Ordered By The District Court 
Is Appropriately Designed To Redress The 
Proven Constitutional Violations And Their 
Effects, And It Does Not Exceed The Scope 
Of The Trial Court’s Broad Equitable Power 
To Afford Complete Relief To The Victims 
Of Unconstitutional Segregation 11

A. The district court did not require a 
magnet plan "to attract additional non­
minority students" for the purpose of 
transforming the KCMSD into "a district 
. . . with some particular number of 
white and black students" 14

-  IV  -



B. The district court’s goal of achieving 
comparability between KCMSD’s 
facilities and programs with the average 
of those of surrounding systems was a 
reasonable starting point in the 
formulation of a remedy to eliminate 
the effects of the proven constitutional 
violations 24

II The District Court’s Order Directing The 
Collection, For A Limited Period Of Time, Of 
Additional Property Tax Revenues Within The 
KCMSD Adequate To Support The District’s 
Share Of The Remedial Costs Is An 
Appropriate Exercise Of Its Equitable 
Remedial Authority To Effectuate The 
Fourteenth Amendment To The Constitution 41

A. The authority of federal courts in school
desegregation suits to require local tax 
levy and collection in order to effectuate 
relief necessary to vindicate Fourteenth 
Amendment rights was settled in Griffin 
and this case fits squarely under that 
ruling 43

B. Apart from Griffin, the power of federal 
courts, in appropriate circumstances, to 
order state tax levies to be made is not
in doubt 54

Conclusion 62

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Table of Authorities

Cases:

Arthur v. Nyquist, 712 F.2d 809 
(2d Cir. 1983), cert, denied,
466 U.S. 936 (1984) 16n

Berry v. School Dist. of Benton 
Harbor, 698 F.2d 813 (6th Cir.), 
cert, denied, 464 U.S. 892 (1983) 16n

Brittingham v. Commissioner, 451
F.2d 315 (5th Cir. 1971) 59n

Burger v. Kemp, 483 U .S .___, 97 L.
Ed. 2d 638 (1987) 22n

Clay County v. United States ex rel.
McAleer, 115 U.S. 616 (1885) 60n

Columbus Bd. of Educ. v. Penick,
443 U.S. 449 (1979) 16n, 22n

Couch v. City of Villa Rica, 203 F.
Supp. 897 (N.D. Ga. 1962) 57n, 60n

County of Lincoln v. Luning, 133
U.S. 529 (1890) 59n

Page

-  v i  -



Table of Authorities (continued)

Page

Cases (continued):

Davis v. Board of School Commr’s,
402 U.S. 33 (1971) 26

Davis v. East Baton Rouge Parish 
School Bd., 721 F.2d 1425
(5th Cir. 1983) 16n, 20n, 23n

Diaz v. San Jose Unified School 
Dist., 861 F.2d 591 (9th Cir.
1988)

Fitzpatrick v. Bitzer, 427 U.S.
445 (1976)

Goodman v. Lukens Steel Co.,
482 U.S. 96 L. Ed. 2d 
572 (1987)

Graham v. Folsom, 200 U.S. 248 
(1906)

Green v. County School Bd. of New
Kent County, 391 U.S. 430 (1968) 15n

Griffin v. Board of Supervisors 
of Prince Edward County, 339 
F.2d 486 (4th Cir. 1964) 52n

16n

59n

22n

58n

- Vll -



Table of Authorities (continued)

Cases (continued):

Griffin v. County School Bd. of 
Prince Edward County, 377 
U.S. 218 (1964)

Haggard v. Tennessee, 421 F.2d 
1384 (6th Cir. 1970)

Hart v. Community School Bd., 
512 F.2d 37 (2d Cir. 1975)

Heine v. Levee Comm’rs, 86 U.S. 
655 (1874)

Hoots v. Pennsylvania, 539 F. 
Supp. 335 (W.D. Pa. 1982), 
affd, 703 F.2d 722 (3d 
Cir. 1983)

Hunter v. Erickson, 393 U.S.
385 (1969)

Hutto v. Finney, 437 U.S. 678 
(1978)

Imbler v. Pachtman, 424 U.S. 409 
(1976)

43, 45-49, 51-54 

59n 

16n 

59n

35n

41n

12n, 26n, 62

Page

- viii -

55n



Table of Authorities (continued)

Page

Cases (continued):

Jenkins v. Missouri, 855 F.2d
1295 (8th Cir. 1988) 8n, 9n, 21n

Jenkins v. Missouri, 672 F.
Supp. 400 (W. D. Mo. 1987), 
aff d in part and rev’d in part,
855 F.2d 1295 (8th Cir. 1988)

Jenkins v. Missouri, 593 F. Supp.
1485 (W.D. Mo. 1984), 639 F.
Supp. 119 (W.D. Mo. 1985), modified 
in part and affd, 807 F.2d 657 (8th 
Cir. 1986)(en banc), cert, denied,
108 S. Ct. 70 (1987)

Liddell v. Bd. of Educ., 801 F.2d 278 
(8th Cir. 1986)

Liddell v. Missouri, 731 F.2d 1294 
(8th Cir.), cert, denied, 469 U.S.
816 (1984)

Louisiana v. Jumel, 107 U.S. 711 (1883)

Louisiana ex rel. Hubert v. Mayor of New 
Orleans, 215 U.S. 170 (1909)

passim

passim

35n

16n, 50n 

59n

60n

- IX -



Table of Authorities (continued)

Page

Cases (continued):

Louisiana ex rel. Ranger v. New Orleans,
102 U.S. 203 (1880) 60n

Meriwether v. Garrett, 102 U.S. 472 (1880) 57, 58, 59

Milliken v. Bradley, 433 U.S. 267 (1977) 6,lln,16n,59n

Milliken v. Bradley, 418 U.S. 717 (1974) 4-5

Morgan v. Kerrigan, 530 F.2d 401 (1st 
Cir.), cert, denied, 426 U.S. 935 
(1976), subsequent proceeding sub 
nom. Morgan v. McDonough, 689 F.2d 
265 (1st Cir. 1982) 16n

Morgan v. Nucci, 617 F. Supp. 1316
(D. Mass. 1985), appeal dismissed, 831
F.2d 313 (1st Cir. 1987) 35n

New York State Ass’n for Retarded 
Children v. Carey, 631 F.2d 162 
(2d Cir. 1980) 44n

North Carolina State Bd. of Educ. v.
Swann, 402 U.S. 43 (1971) 53n, 60-61

- x -



Table of Authorities (continued)

Page

Cases (continued):

Plaquemines Parish School Bd. v. United 
States, 415 F.2d 817 (5th Cir.
1969) 35n

Reece v. Gragg, 650 F. Supp. 1297
(D. Kan. 1986) 45n

Redman v. Terrebonne Parish School 
Bd., 293 F. Supp. 376 (E.D.
La. 1967) 35n

Rees v. City of Watertown, 86 U.S. 107
(1874) 57, 58, 59n

Reitman v. Mulkey, 387 U.S. 369 (1967) 40n, 41n

Rhem v. Malcolm, 507 F.2d 333 (2d Cir.
1974) 44n

San Antonio Indep. School Dist. v.
Rodriguez, 411 U.S. 1 (1973) 36

Sanchez-Espinoza v. Reagan, 770 F.2d 202
(D.C. Cir. 1985) 57n

Singleton v. Anson County Bd. of 
Educ., 283 F. Supp. 895 (W.D.N.C.
1968) 35n

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Table of Authorities (continued)

Page

Cases (continued):

Stansbury v. United States, 75 U.S. 33
(1869) 55n

Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1 (1971) 26, 35n

Tasby v. Estes, 412 F. Supp. 1192 (N.D.
Tex. 1976), remanded on other 
grounds, 572 F.2d 1010 (5th Cir.
1978) 35n

United States v. County Court, 99 U.S.
582 (1879) 60n

United States v. County Court, 95 U.S.
769 (1878) 60n

United States v. Jefferson County 
Bd. of Educ., 380 F.2d 385 (5th 
Cir.)(en banc), cert, denied sub 
nom. Caddo Parish School Bd. v.
United States, 389 U.S. 840 (1967) 35n

United States v. Pittman, 808 F.2d
385 (5th Cir. 1987) 20n

United States v. Texas Educ. Agency,
679 F.2d 1104 (5th Cir. 1982) 16n

- xii -



Table of Authorities (continued)

Page

Cases (continued):

United States v. Yonkers Bd. of Educ.,
856 F.2d 7 (2d Cir. 1988) 35n

United States v. Yonkers Bd. of Educ.,
837 F.2d 1181 (2d Cir. 1987), cert.
denied, 108 S. Ct. 2821 (1988) 16n

United States ex rel. Hoffman v.
Quincy, 71 U.S. 535 (1867) 60n

United States ex rel. Ranger v.
New Orleans, 98 U.S. 381 (1879) 54n-55n

United States ex rel. Wolff v.
New Orleans, 103 U.S. 358 (1881) 55n

Washington v. Seattle School Dist.
No. 1, 458 U.S. 457 (1982) 41n

Washington v. Washington State 
Commercial Passenger Fishing 
Vessel Ass’n, 443 U.S. 658, 
modified sub nom. Washington v.
United States, 444 U.S. 816 (1979) 53n, 61

Yost v. Dallas County, 236 U.S. 50 (1915) 59n, 61n



Table of Authorities (continued)

Page

Statutes:

28 U.S.C. § 2101(c) (1982) 2

42 U.S.C. § 1983 (1982) 55n

Education for Economic Security Act,
Pub. L. No. 98-670, 98 Stat. 1267 (1984) 17n

Augustus F. Hawkins-Robert T. Stafford 
Elementary and Secondary School 
Improvement Amendments of 1988,
Pub. L. No. 100-297, 102 Stat. 231 (1988) 17n

Rules:

Fed, R. App. P. 35 2n

Fed. R. App. P. 40 2n

Fed. R. App. P. 41 2n

Fed. R. Civ. P. 81(b) 56n

Sup. Ct. Rule 20.4 2n

- xiv -



Table of Authorities (continued)

Page

Other Authorities:

Remarks on Signing the Augustus F.
Hawkins-Robert T. Stafford Elementary 
and Secondary School Improvement 
Amendments of 1988, 24 Weekly Comp, 
of Pres. Doc. 540 (April 28, 1988) 17n

S. Rep. No. 100-222, 100th Cong., 1st Sess.
(1987), reprinted in 3 1988 U.S. Code Cong.
& Adm. News 149 (June, 1988) 16n-17n

- xv -



In the

SUPREME COURT OF THE UNITED STATES 

October Term, 1988

Nos. 88-1150, -1194, -1228

STATE OF MISSOURI, et al.. 

ICELEAN CLARK, et al.. 

JACKSON COUNTY, MISSOURI, et al..

Petitioners.

v.

KALIMA JENKINS, et al.

On Petitions for Writs of Certiorari 
to the United States Court of Appeals 

for the Eighth Circuit

BRIEF OF RESPONDENTS JENKINS, et al. 
IN OPPOSITION TO CERTIORARI

Jurisdiction

None of the petitions to which this response is 

addressed was filed within 90 days of the issuance of the



final judgment below on August 19, 1988, as required by 

28 U.S.C. § 2101(c) (1984),1 nor was timely application 

for extension sought and granted by this Court or a 

Justice of the Court. Therefore, for the reasons 

articulated in the Brief in Opposition of Respondent 

Kansas City, Missouri School District (KCMSD) in these 

matters, in which the Jenkins respondents join, this 

Court lacks jurisdiction to grant the present petitions.1 2 

This fact alone is a sufficient basis for denying the writs.

1Rule 20.4 of this Court, which tolls the 90-day period for 
filing a petition only if a timely petition for rehearing is filed, is 
consistent with Rules 35, 40 and 41, Fed. R. App. P., which 
establish an automatic stay of the issuance of a Court of Appeals’ 
mandate during the pendency of a timely petition for rehearing but 
state explicitly that the pendency of a suggestion of rehearing in 
banc "shall not affect the finality of the judgment of the court of 
appeals or stay the issuance of the mandate" [Rule 35(c)].

2We have lodged with the Clerk of this Court ten copies of the 
Petitions for Rehearing En Banc filed below. Examination of these 
documents establishes that none of the present Petitioners requested 
rehearing; rather, all sought rehearing in banc. There were thus no 
"petitions for rehearing" subject to being denied as provided in the 
amended mandate of the Court of Appeals issued sua sponte on 
January 10, 1989 (see State Pet. at A-l).

-  2  -



Counter-Statement of the Case

The Jenkins respondents join in the KCMSD 

respondents’ Counter-Statement.

REASONS FOR DENYING THF, WRITS 

Introduction

The instant Petitions concern aspects of orders issued 

by the United States District Court for the Western 

District of Missouri in the final, remedial stages of 

protracted, complex, school desegregation litigation 

involving the Kansas City, Missouri public schools. The 

district judge who issued these orders has presided over 

the action since its initiation in 1977. He has observed 

and heard hundreds of witnesses, including scores with 

educational or other academic, as well as practical, 

expertise. He has considered thousands of documentary

- 3 -



and other exhibits, has personally viewed the KCMSD 

school facilities, and has issued numerous opinions and 

orders containing specific, detailed and particularized 

findings of fact that provide the foundation for his legal 

determinations and orders.

The district court’s major conclusions and actions 

have been severely criticized, at different times, by both 

sides in the litigation but, with only minor exceptions, 

panels of the Court of Appeals and a majority of the 

Court sitting en banc have sustained the trial judge’s 

careful fashioning of a remedy appropriate to the nature 

and scope of the constitutional violations which he 

found.

First, following lengthy trial proceedings, the district 

judge applied this Court’s ruling in Milliken v. Bradley.

- 4 -



418 U.S. 717 (1974)(Milliken__I) and rejected the 

contentions of the Jenkins and KCMSD respondents 

here, that the proof justified an inter-district remedy 

involving pupil reassignments between and/or 

consolidation of the KCMSD and nearby suburban 

school systems. The court also held that the historic 

pre- and post-Brown constitutional violations by the 

KCMSD and the State of Missouri had never been 

redressed but that their effects had been exacerbated by 

delay and neglect of the defendants’ affirmative 

constitutional obligations for decades. It directed that 

the continuing effects of these violations should be 

ameliorated through a remedial plan involving voluntary 

inter-district assignments, creation of integrated magnet 

schools in the KCMSD, improvement of the KCMSD’s 

capital plant and of its educational programs to correct

- 5 -



deficiencies attributable to the long period of segregated 

operation, and implementation of special programs to 

address educational deficiencies created by that

segregation, see Milliken v. Bradley. 433 U.S. 267 

(1977)(MilHken__II). With the exception of some

alterations in the allocation of remedial costs between 

the KCMSD and the State of Missouri, all of these 

determinations were approved by the Court of Appeals, 

and this Court declined to review the denial of 

mandatory inter-district relief. Jenkins v. Missouri. 593 

F. Supp. 1485 (W.D. Mo. 1984), 639 F. Supp. 19 (W.D. 

Mo. 1985), modified in part and affd, 807 F.2d 657 (8th 

Cir. 1986)(en banc), cert, denied. 108 S. Ct. 70 (1987).

Thereafter, the district court continued closely to 

supervise the refinement and implementation of the

- 6 -



remedy3 for the constitutional violations which it found, 

proceeding in step-by-step fashion.4 It approved and 

rejected remedial components suggested by all parties, 

including the State of Missouri and the Jenkins and 

KCMSD respondents.5 It has sought to achieve a fair

3E.g., State Pet. App. [hereinafter Pet. App.] 104a, 106a 
(approving continuation of two programs for 1987-88 to "give the 
KCMSD another year to meet the projected enrollments"); 639 F. 
Supp. at 46, Pet. App. 129a (requiring KCMSD to submit a detailed 
plan for improving public information about its desegregation plan 
in light of inadequate results after prior order allocating funds for 
this purpose); 639 F. Supp. at 50-51, Pet. App. 137a-138a (ordering 
further reports on implementation of educational programs under 
decree).

4See. e.g.. Pet. App. 77a (approving capital program only for 
projects scheduled to be completed by fall of 1990); id. at 79a 
(approving budget for construction project management team for 
three years only); jd. at 191a (approving only initial capital 
improvement plan and postponing consideration of additional 
measures); 639 F. Supp. at 45, Pet. App. 199a (suspension of tax 
rollback for one year only to "provide the KCMSD with an 
opportunity to present a tax levy proposal to its patrons at the next 
regularly scheduled school election”).

5See, e.g.. 639 F. Supp. at 32-33, Pet. App. 173a (ordering 
implementation of State’s Early Childhood program); Pet. App. 65a 
(rejecting KCMSD’s and Jenkins’ suggested regulations for tax 
collection); id. at 95a (declining to order central coordination of 
school-based programs sought by KCMSD); id. at 118a-19a 
(requiring KCMSD to bear cost of renovating building to house 
temporary performing arts magnet); 639 F. Supp. at 49, Pet. App.

(continued...)
- 7 -



and equitable allocation of the costs of constitutional 

compliance between the two joint tortfeasors, the State 

of Missouri and the KCMSD.5 6 The parties have 

vigorously contested the litigation at the remedial stage; 

the judgment of the Court of Appeals of which 

Petitioners seek review resolved consolidated appeals 

from some thirteen separate orders issued by the trial 

court.7 This time, the principal appellants were the 

State of Missouri and state officials. Again, however,

5(...continued)
135a (rejecting KCMSD’s requested expansion of before- and after­
school programs).

6E.g.. Pet. App. 79a (requiring KCMSD to pay 50%, rather 
than 25% of capital construction costs because "the KCMSD will 
continue to benefit from the[ new facilities construction] long after 
the hopeful success of the desegregation plan has been realized"); 
id. at 107a (adjusting budget to account for savings in expenditures 
at other schools as new magnets open); kL at 109a (requiring 
KCMSD to bear ongoing maintenance costs for facilities constructed 
or improved under decree).

7Jenkins v. Missouri. 855 F.2d 1295, 1299 n.2 (8th Cir. 1988), 
Pet. App. 4a n.2.

-  8  -



with minor modifications and reversal only with respect 

to one separable aspect concerning funding,8 the Court 

of Appeals approved the trial judge’s careful supervision 

of this action.

It is against this background of painstaking attention 

by a district court with intimate familiarity with the 

particularities of the case, and whose actions have been 

almost wholly sustained on two occasions by the Court of 

Appeals, that this Court must assess the necessity and 

desirability of reviewing the judgment below.

8The Court of Appeals sustained the district court’s order 
raising the property tax millage in the KCMSD because "the 
property tax is the established source of revenue for Missouri school 
districts" and the order was the functional equivalent of "setfting] 
aside restrictions or limitations imposed by state law that impede 
the disestablishment of a dual school system" (855 F.2d at 1315, Pet. 
App. 39a-40a). It reversed that portion of the court’s orders that 
imposed an income tax surcharge on individuals working within the 
KCMSD because "the income tax surcharge restructures the State’s 
scheme of school financing and creates an entirely new form of 
taxing authority" (855 F.2d at 1315, Pet. App. 40a).

- 9 -



Petitioners raise only a few issues.9 Despite the 

provocative language of their filings, none of the 

questions they seek to present warrants the plenary 

attention of this Court because, as we show below, the 

lower courts have faithfully and unexceptionably applied 

well established legal principles and followed the 

decisions of this Court.

Petitioners in Nos. 88-1194 and 88-1228 sought intervention in 
this litigation in the district court, which was denied on the grounds 
that their requests were untimely; that denial was affirmed by the 
court below. The only question properly presented by these arties, 
therefore, is the correctness of the ruling affirming the denial of 
intervention.

Petitioners in No. 88-1150 do not contest either their own 
liability or the general remedial approach of the district court 
(improvements of KCMSD’s capital facilities and educational 
programs together with the creation of magnet schools to bring 
about desegregation through voluntary means), an approach that 
they supported in the trial court, see infra note 12. Instead, they 
charge, first, that the district court has shaped the particulars of this 
remedial approach to achieve goals other than the effective 
dismantling of the long-maintained dual system of schools in the 
KCMSD. Second, they assert that the district court was without 
power to require the KCMSD to provide a portion of the resources 
necessary to implement the remedy through an increase in its 
property tax levy (a requirement which the court imposed only after 
both the KCMSD electorate and the State legislature had refused or 
failed to create a reliable funding mechanism for this purpose).

- 10 -



I

This Case Does Not Merit Review Because The 
Remedy Ordered By The District Court Is 
Appropriately Designed To Redress The Proven 
Constitutional Violations And Their Effects, And 
It Does Not Exceed The Scope Of The Trial 
Court’s Broad Equitable Power To Afford 
Complete Relief To The Victims of 

Unconstitutional Segregation

This is a case in which the extensive and continuing 

harmful effects of the long-sustained constitutional 

violations committed by the State of Missouri and the 

KCMSD were identified with precision and detail in 

exhaustive proceedings before the district court. On that 

record, the trial court was charged, in fashioning a 

remedy, with the obligation of "restor[ing] the victims of 

discriminatory conduct to the position they would have 

occupied in the absence of such conduct."10 In the

10Milliken II. 433 U.S. at 280.

- 11 -



orders affirmed below, in those previously reviewed by 

the Court of Appeals, and through its exercise of 

continuing jurisdiction during the transition from a dual 

school system, the district court has sought to provide a 

complete remedy that will be practicable, workable, and 

successful.11

Petitioners contest neither liability nor the broad 

outlines of the relief ordered by the trial court.12

11 The trial court described its responsibility and authority as 
follows:

. . . [T]he goal of a desegregation decree is clear. The goal 
is the elimination of all vestiges of state imposed 
segregation. In achieving this goal, the district court may 
use its broad equitable powers, recognizing that these 
powers do have limits. Those limits include the nature and 
scope of the constitutional violation, the interests of state 
and local authorities in managing their own affairs 
consistent with the constitution, and insuring that the 
remedy is designed to restore the victims of discriminatory 
conduct to the position they would have occupied in the 
absence of such conduct.

(639 F. Supp. at 23, Pet. App. 153a.) See Hutto v. Finney, 437 
U.S. 678, 688 & n.12 (1978).

12See, e.g., 593 F. Supp. at 24, Pet. App. 155a ("No party to
(continued...)

- 12 -



Implicitly recognizing the difficulties inherent in asking 

this Court to entertain questions that are fact-bound and 

unique to the circumstances of an individual case, 

Petitioners have wrenched language in the district court’s 

opinions out of context in an effort to describe legal 

questions more susceptible of being characterized as 

worthy of this Court’s discretionary review. A fair 

reading of the district court’s orders demonstrates, 12

12(...continued)
this case has suggested that this plan should not contain 
components designed to improve educational achievement. In fact, 
it is ’appropriate to include a number of properly targeted 
educational programs in a desegregation plan’ (State Plan at 5)"); 
593 F. Supp. at 26, Pet. App. 158a ("both the State of Missouri and 
the KCMSD endorse achieving AAA status, reducing class size at 
the elementary and secondary level, summer school, full day 
kindergarten, before and after school tutoring and early childhood 
development programs"); 593 F. Supp. at 40, Pet. App. 189a ("The 
State (State Plan p. I l l )  proposes a $20,000,000 facilities 
improvement program with the state making a one time 
contribution not to exceed $10,000,000. . . . The State does not 
dispute that there are serious structural and environmental problems 
throughout the facilities utilized by the KCMSD"); 855 F.2d at 1299, 
Pet. App. 5a ("In this case the district court dealt with undisputed 
constitutional violations and its series of orders were necessary to 
remedy the lingering results of these violations, since local and state 
authorities had defaulted in their duty to correct them.").

- 13 -



however, that the legal issues relating to the goals of the 

remedy that are posited by Petitioners simply do not 

arise in this matter.

A. The district court did not require a magnet plan "to 
attract additional non-minority students" for the 
purpose of transforming the KCMSD into "a district 
. . . with some particular number of white and black 
students"

The State’s Petition attacks the scope of the magnet

school program to be established in the KCMSD under

the district court’s orders:

No other court has required a district to turn 
most of its schools into magnet schools, and no 
other court has imposed a duty to attract more 
students of a designated race. . . . [Tjhe right at 
issue . . .  is not [a right] to be enrolled in a 
district or school with some particular number of 
white and black students.

(Pet. at 15.) The State simply ignores the trial court’s

- 14 -



lucid elaboration of the basis for its magnet school 

requirements.

In its initial remedial order the court recognized its

obligation "to further explore any reasonable potential

for achieving further desegregation" of the KCMSD

schools (639 F. Supp. at 38, Pet. App. 184a). It declined

to order mandatory reassignments within the KCMSD

[u]nless and until th[e study suggested by the 
State of Missouri] or other studies show that 
further mandatory student reassignment can 
achieve additional desegregation without 
destabilizing the desegregation which presently 
exists.

(Id.)13 On the other hand, the district court had heard 

evidence from a number of expert witnesses that 

"[m]agnet schools can be utilized to assist the State of

13Cf. Green v. County School Bd. of New Kent County. 391 
U.S. 430, 441 (1968)(voluntary enrollment option may have a place 
in a desegregation plan in the absence of alternatives "promising 
speedier and more effective conversion to a unitary, nonracial 
school system").

- 15 -



Missouri and the KCMSD in expanding desegregative 

educational experiences for its students" (639 F. Supp. at 

34, Pet. App. 176a), and it required submission of a plan 

to utilize this voluntary desegregation tool (639 F. Supp. 

at 34-35, Pet. App. 177a).14

14The concept of a magnet school is to offer a different, 
improved or unique curriculum or service (such as before- or after­
school day care) that will attract voluntary attendance by students of 
all races. This Court has approved of magnet schools as a 
desegregation tool on a number of occasions. See, e.g., Milliken II. 
433 U.S. at 272; Columbus Bd. of Educ. v. Penick. 443 U.S. 449, 
488 (1979), and the courts of appeals and district courts have 
consistently approved desegregation plans incorporating magnet 
schools as an laltemative to mandatory and involuntary 
reassignments of students. See Diaz v. San Jose Unified School 
Dist„ 861 F.2d 591, 596 (9th Cir. 1988); United States v. Yonkers 
Bd. of Educ,. 837 F.2d 1181, 1238 (2d Cir. 1987), cert, denied. 108 
S. Ct. 2821 (1988); Liddell v. Missouri. 731 F.2d 1294, 1310 (8th 
Cir.), cert, denied. 469 U.S. 816 (1984); Davis v. East Baton Rouge 
Parish School Bd.. 721 F.2d 1425, 1440 (5th Cir. 1983); Arthur v. 
Nvquist. 712 F.2d 809, 811-13 (2d Cir. 1983), cert, denied. 464 U.S. 
892 (1983); Berry v. School Dist. of Benton Harbor, 698 F.2d 813 
(6th Cir.), cert, denied. 464 U.S. 892 (1983); United States v. Texas 
Educ. Agency. 679 F.2d 1104 (5th Cir. 1982); Morgan v. Kerrigan, 
530 F.2d 401, 428 (1st Cir.), cert, denied. 426 U.S. 935 (1976), 
subsequent proceeding sub nom. Morgan v. McDonough. 689 F.2d 
265, 276 n.18 (1st Cir. 1982); Hart v. Community School Bd.. 512 
F.2d 37, 54-55 (2d Cir. 1975).

The Congress and the President have also expressed 
unambiguous support for magnet programs as an effective and 
unintrusive remedy for school segregation. See S. Rep. No. 100-

(continued...)
- 16 -



The Court subsequently approved implementation of

three magnet schools or clusters in the 1986-87 school

year to "expan[d] the desegregative educational

experience for KCMSD students" and to assess the

potential success of this desegregation device:

The magnet plan must be geared toward both 
remedial and desegregative goals and should 
maximize achievement of desegregation with a 
minimum amount of resources. The magnet 
program should provide long term stability in 
terms of future financing as well as incorporate a 
carefully designed marketing program based upon 
a careful analysis of the plans’ impact upon other 
components of the desegregation plan. Thus, 
future development of a magnet school program 14

14(...continued)
222, 100th Cong., 1st Sess. 48 (1987)("Research has shown that 
magnet schools are the most successful means for promoting racial 
desegregation"), reprinted in 3 1988 U.S. Code Cong. & Adm. News 
149 (June, 1988); Remarks on Signing the Augustus F. Hawkins- 
Robert T. Stafford Elementary and Secondary School Improvement 
Amendments of 1988, 24 Weekly Comp, of Pres. Doc. 540 (Apr. 28, 
1988) (President Reagan "pleased to note that the bill reauthorizes 
the magnet school program and expands parental choice"); Hawkins- 
Stafford Amendments of 1988, Pub. L. No. 100-297, § 3993, 102 
Stat. 231 (1988)(to be codified at 20 U.S.C. § 3023); Education for 
Economic Security Act, Pub. L. No. 98-670, § 703, 98 Stat. 1267, 
1299 (1984).

- 17 -



need not duplicate this initial phase of the 
magnet school effort.

(639 F. Supp. at 53, 55, Pet. App. 145a, 149a.) Based 

upon initial experience with these magnets and upon 

evidence adduced at additional hearings, the court 

ultimately determined to approve KCMSD’s plan to 

establish a substantial number of magnet schools.

However, the court’s Order makes it clear that the

fundamental basis for "turn[ing] most of [KCMSD’s]

schools into magnet schools," as the State puts it, is to

avoid the inequity which would occur if black students

-  the victims of the State’s and KCMSD’s protracted

unconstitutional conduct — were restricted in their

opportunities to benefit from the improved or unique

educational experiences to be offered in magnet schools:

The plan magnetizes such a large number of 
schools that every high school and middle school 
student will attend a magnet school. At the

- 18 -



elementary level, there would be a sufficient 
number of magnets to permit every student 
desiring to attend a magnet school to do so. The 
Court is opposed to magnetizing only a limited 
number of schools in a district . . . .  In each 
[magnet] school there is a limitation as to the 
number of students who may be enrolled. Thus, 
for each non-minority student who enrolls in the 
magnet school a minority student, who has been 
the victim of past discrimination, is denied 
admittance. While these plans may achieve a 
better racial mix in those few schools, the victims 
of racial segregation are denied the educational 
opportunity available to only those students 
enrolled in the few magnet schools. This results 
in a school system of two-tiers as it relates to the 
quality of education. This inequity is avoided by 
the KCMSD magnet school plan.

(Pet. App. 122a.)15

15As the Court of Appeals noted:

The State in its filings with the district court cautioned 
about creation of a two-tiered system of schools in which 
"existing schools are, or are perceived to be, markedly 
inferior." Response of State to KCMSD motion for 
approval of 1986-87 magnet programs, p. 12. The State’s 
expert witness, Dr. Doyle, echoed this concern and 
suggested that one way to avoid the problem was to 
convert an entire school system to magnet schools. Tr.
376, 381-82, June 5, 1986. Another State’s witness, Dr. 
Cooper, also agreed on cross-examination that the 
comprehensiveness of the plan was a step in the right

(continued...)
- 19 -



In the following paragraph of its Order, the district

court did comment, as the State emphasizes, that

Most importantly, the Court believes that the 
proposed magnet plan is so attractive that it 
would draw non-minority students from the 
private schools who have abandoned or avoided 
the KCMSD, and draw in additional non-minority 
students from the suburbs.

(Pet. App. 123a). However, that comment is quoted 

entirely out of context by the State.15 16 It does not refer

15(...continued)
direction. Tr. 890, Sept. 18, 1986. The district court’s 
finding regarding the need for the number of magnet 
schools authorized by the plan is amply supported by the 
State’s own evidence.

(855 F.2d at 1304, Pet. App. 15a.) Compare United States v. 
Pittman. 808 F.2d 385, 393 (5th Cir. 1987)(Higginbotham, J., 
concurring) (warning that selective magnet schools exclude a large 
number of "average’’ black students); Davis v. East Baton Rouge 
Parish School Bd., 721 F.2d at 1437 n.10 (magnet plan could create 
new dual system of white magnets and black regular schools).

16The complex analyses which undergird the district court’s 
remedial orders in this case cannot be reduced to the two or three 
phrases that are taken out of context and repeatedly intoned 
throughout the Petition without seriously distorting the trial court’s 
reasoning and actions. Unfortunately, the Petition contains 
numerous erroneous and misleading characterizations of the 
holdings below.

- 20 -
(continued...)



to the reasons for the district court’s approval of the 

number of magnet schools provided by the plan. 

Instead, it is the concluding sentence of an entirely new 

paragraph of the Order in which the district court found 

that the particular magnet themes and emphases 

suggested in the KCMSD plan were likely to succeed in 

attracting a desegregated enrollment.16 17 Thus, the State’s

16(...continued)
For one example, the State charges that "the court [of appeals] 

means to . . . apply a far-reaching theory of ’but-for’ causation-one 
that would make the State liable for an effect of desegregation. 
rather than for effects of segregation itself" (Pet. at 17-18). In fact, 
in the portion of its opinion to which the Petition makes reference, 
the Court of Appeals sustained the district court’s orders on the 
basis of the trial judge’s conclusion that the discriminatory and 
segregative practices of the KCMSD had caused whites to leave or 
avoid the system’s public schools. See 855 F.2d at 1302, Pet. App. 
lla-12a. It was the State of Missouri itself which raised the 
question of so-called "white flight from desegregation," and what the 
State now terms a "far-reaching theory of ’but-for’ causation" is 
merely the Court of Appeals’ rejection of the State’s contention 
that there was an intervening, independent cause of white 
enrollment loss in the KCMSD that excused the joint tortfeasors of 
all responsibility to correct the effects of their prior constitutional 
violations. See 855 F.2d at 1303, Pet. App. 13a.

17The entire paragraph is as follows:

- 21 -
(continued...)



tendentious argument that a majority-black school system 

is not unconstitutional (Pet. 15-19) is simply beside the 

point.17 18 The basis for the trial court’s approval of

17(...continued)
The Court also finds that the proposed magnet plan would 
generate voluntary student transfers resulting in greater 
desegregation in the district schools. The suggested magnet 
themes include those which rated high in the Court 
ordered surveys and themes that have been successful in 
other cities. Therefore, the plan would provide both 
minority and non-minority district students with many 
incentives to leave their neighborhoods and enroll in the 
magnet schools offering the distinctive themes of interest to 
them. Most importantly, the Court believes that the 
proposed magnet plan is so attractive that it would draw 
non-minority students from the private schools who have 
abandoned or avoided the KCMSD, and draw in additional 
non-minority students from the suburbs.

18In addition to mischaracterizing the lower courts’ 
determinations, the State also attacks a number of the trial court’s 
factual findings. Both the "two-Court rule,” see, e.g.. Burger v.
Kemp. 483 U .S .___, ___, 97 L. Ed. 2d 638, 651 (1987); Goodman
v. Lukens Steel Co.. 482 U.S. ___, ___, 96 L. Ed. 2d 572, 584
(1987), and this Court’s traditional reliance upon the district courts 
in school desegregation cases, see Columbus Bd. of Educ. v. Penick. 
443 U.S. at 457 n.6, 464, id. at 468 (Burger, C.J., concurring in the 
judgment); id. at 469-71, 475-76 (Stewart, J. & Burger, C.J., 
concurring in the result), counsel against disturbing these findings.

In any event, the State’s contentions are not convincing. The 
State charges the district court with making inconsistent findings in 
its August 25, 1986 and June 5, 1984 Orders (see Pet. at 17 n.21). 
In its earlier (1984) Order, while adjudicating the liability — not the

(continued...)
- 22 -



KCMSD’s magnet school submission was its conclusion

18(...continued)
remedy -  portion of the case (see 593 F. Supp. at 1505, Pet. App. 
240a), the district court had discussed "[p]art of plaintiffs’ evidence 
of white flight to the suburbs consisting] of charts displaying the 
transfer of student records from various KCMSD high schools to 
surrounding districts over a 15-year period from 1958 to 1973." The 
court rejected plaintiffs’ contentions that the evidence supported 
imposition of inter-district liability because "there is no evidence 
that the [suburban districts] enticed these families to move" and "the 
numbers involved are too insignificant to have had a segregative 
impact on the KCMSD or the [suburban districts]. White flight is 
simply not a constitutional violation by any [suburban district]." 
(June 5, 1984 Order, at 38-39.)

Then, in 1986 the trial court observed that it had

found that segregated schools, a constitutional violation, 
has led to white flight from the KCMSD to suburban 
districts, large number of students leaving the schools of 
Kansas City and attending private schools and that it has 
caused a systemwide reduction in student achievement in 
the schools of KCMSD.

(August 25, 1986 Order, at 1-2.) These findings are not 
inconsistent, as the State suggests. In the 1984 Order, the district 
court did not find that there was no "white flight." Rather, it 
refused to impose inter-district liability on the basis of "white flight" 
because the suburban districts were overwhelmingly white in racial 
composition irrespective of the movement of white pupils who left 
the KCMSD (see, e.g.. June 5, 1984 Order at 45, 49, 51, 55, 62, 67- 
70, 74-75, 79, 84-86, 91), and because the KCMSD schools remained 
highly segregated by virtue of that district’s discriminatory practices 
during the 1958-73 time period, irrespective of its racial 
composition (see, e,g„ Pet. App. 211a-215a; Pet. App. 209a-210a 
[discussing Davis v. East Baton Rouge Parish School Bd.. 721 F.2d 
1425 (5th Cir. 1983) (rejecting similar argument that demographic 
change was responsible for school segregation)]).

- 23 -



that this magnet plan was both most likely to be 

successful in achieving actual desegregation and also 

most equitable for black students in the district, not any 

sort of desire to attain a specific racial balance in the 

district’s schools.19

B. The district court’s goal of achieving comparability 
between KCMSD’s facilities and programs with the 
average of those of surrounding systems was a 
reasonable starting point in the formulation of a 
remedy to eliminate the effects of the proven 
constitutional violations.

The State attacks the remedial orders in this action 

that require capital improvements within the KCMSD,

19Indeed, as the State itself points out (Pet. at 18 n.22), neither 
the district court nor the Court of Appeals has imposed any 
requirement that some minimum number of white students from 
outside the KCMSD boundaries enroll in the magnet schools. The 
lower courts’ failure to do so fatally undercuts the State’s 
contention that the magnet school plan was approved for the 
purpose of satisfying some judicially created "duty to attract 
additional non-minority students to a school district" so as to 
change the KCMSD into a district "with some particular number of 
white and black students" (Pet. at 15).

- 24 -



contending that the district court has read into the 

"equal protection clause [a] require[ment] that a school 

district . . . once-segregated [must be made] comparable 

to neighboring districts" (Pet. at 13).20 This contention is

2<>The State has failed to raise this issue in a timely fashion 
before this Court. On June 14, 1985, the district court directed that 
KCMSD make capital improvements more extensive than those 
which the State of Missouri had argued were appropriate in light of 
the violation, specifically indicating that

[a]fter the submission of the $37,000,000 improvement plan, 
KCMSD shall then review other capital improvements 
needed in order to bring its facilities to a point comparable 
with the facilities in neighboring suburban school districts.

(639 F. Supp. at 41, Pet. App. 191a.) The State appealed from this 
capital improvements order, making the same arguments it now 
raises in its Petition (compare, e.g.. 807 F.2d at 685 with Pet. at 7 
and 639 F. Supp. at 40-41, Pet. App. 189a-190a). The Eighth 
Circuit, en banc, affirmed the scope of the plan while modifying the 
allocation of financial responsibility between the KCMSD and the 
State, 807 F.2d at 685-86. The State chose not to seek review of 
that ruling by this Court.

Since that time, additional renovations, improvements and 
construction have been ordered, undertaken and/or completed, 
subject to the equal allocation of costs directed by the Court of 
Appeals in 1986. The additional, avoidable and wholly unexpected 
financial burden which would be shifted from the State to some 
other party -  in all likelihood to the KCMSD and its taxpayers, 
including the black parents and children who are the victims of the 
long-continued constitutional violations in this case -  if the capital 
improvements orders were now overturned, provides a compelling

(continued...)
- 25 -



similar to the argument advanced by the defendants in 

Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 1, 23-25 (1971), that because the student 

assignment plan there was drawn with an awareness of 

the overall proportion of minority pupils in the system, it 

embodied a substantive right to a particular racial 

balance. In Swann, this Court rejected the argument, 

because the system-wide proportion had been employed 

as a starting point to help determine whether the plan 

would "achieve the greatest possible degree of 

desegregation, taking into account the practicalities of 

the situation," Davis v. Board of School Commissioners. 

402 U.S. 33, 37 (1971).20 21 Here, it is similarly clear that

20(...continued)
reason why the State’s contentions that could have been raised in 
1986 became the law of the case at that time and ought not be 
entertained by this Court now.

21See also, e.g.. Hutto v. Finney, 437 U.S. at 685-86 & n.8.

- 26 -



the standard of comparability to suburban facilities was 

employed by the district court as an operational guide, 

not a substantive goal.

When the district court concluded the liability phase 

of this case and turned its attention to the formulation 

of an adequate remedy, it was confronted with a school 

system in which the adverse effects of racial 

discrimination and segregation were still very much in 

evidence: "a system wide reduction in student

achievement" (639 F. Supp. at 24, Pet. App. 155a); a 

school district which, alone among systems in the Kansas 

City metropolitan area, lacked the state "AAA rating 

[that] is a designation which communicates to the public 

that a school system quantitatively and qualitatively has 

the resources necessary to provide minimum basic 

education to its students" (639 F. Supp. at 26, Pet. App.

- 27 -



159a); an "educational process [that] has been further 

’bogged down’ in the KCMSD by a history of segregated 

education" (639 F. Supp. at 28, Pet. App. 164a);22 and 

school facilities whose "current condition . . . adversely 

affects the learning environment . . . [because of] safety 

and health hazards, educational environment 

impairments, functional impairments, and appearance 

impairments" (639 F. Supp. at 39, Pet. App. 187a).23 

Accordingly, the court sought to devise a remedy that 

would eliminate the continuing impact of the 

violation.

22The court commented that while "[a] 11, regardless of race or 
class or economic status, are entitled to a fair chance and to the 
tools for developing their individual powers of mind and spirit to 
the utmost, . . . [segregation in the KCMSD has resulted in this 
promise going unkept" (639 F. Supp. at 24; Pet. App. 154a).

^In a later order, the district court characterized the KCMSD 
school plant as having "literally rotted," 672 F.2d at 211, Pet. App. 
86a.

- 28 -



For example, the court was persuaded by ”[t]he 

testimony of all the educational experts [for all parties 

that] . . . the schools in KCMSD, when provided with 

adequate resources, sufficient staff development, and 

proper teaching methods, can attain educational 

achievement results more in keeping with the national 

norms" (639 F. Supp. at 24, Pet. App. 156a). With 

substantial agreement from the State of Missouri,24 the 

court therefore required implementation of a wide 

variety of innovative, supportive, and training programs 

to restore the educational climate within the KCMSD. 

To effectuate these aspects of the remedy, the court

^See, e ĵ., 639 F. Supp. at 25, Pet. App. 156a ("both the State 
of Missouri and the KCMSD have proposed program components 
designed to increase student achievement at the elementary and 
secondary levels"); 639 F. Supp. at 26, Pet. App. 158a ("both the 
State of Missouri and the KCMSD endorse achieving AAA status, 
reducing class size at the elementary and secondary level, summer 
school, full day kindergarten, before and after school tutoring and 
early childhood development programs").

- 29 -



determined, on the basis of overwhelming evidence

placed before it, that substantial improvement of

KCMSD’s school buildings would be necessary:

The improvement of school facilities is an 
important factor in the overall success of this 
desegregation plan. Specifically, a school facility 
which presents safety and health hazards to its 
students and faculty serves both as an obstacle to 
education as well as to maintaining and attracting 
non-minority enrollment. Further, conditions 
which impede the creation of a good learning 
climate, such as heating deficiencies and leaking 
roofs, reduce the effectiveness of the quality 
education components contained in this plan.

(639 F. Supp. at 40, Pet. App. 188a.)25 The district

court has continued, throughout the subsequent course

of this litigation, to focus on capital needs that are

directly related to eliminating the continuing effects of

the violations and to the educational components of the

plan (e.g., 672 F. Supp. at 404, Pet. App. 70a-71a).

25Sce also 639 F. Supp. at 41, Pet. App. 190a.

- 30 -



As we have previously noted, the trial court 

determined to institute magnet school options and to 

solicit the participation of suburban school districts in a 

voluntary inter-district transfer program to expand the 

possibilities for achieving further desegregation of the 

KCMSD (639 F. Supp. at 34-35, 38-39, Pet. App. 176a- 

177a, 185a-187a). The court found that the successful 

implementation of integrated magnet schools demanded 

adequate plant, facilities and equipment.26 Thus, in its 

initial remedial decree, the district court ordered 

KCMSD to submit a first-year budget for its existing 

magnet schools, to include "budget items which are 

directly related to enhancing the full desegregative 

drawing power of these schools" (639 F. Supp. at 34,

26As the district court stated, ”[t]he magnet school plan is 
crucial to the success of the Court’s total desegregation plan and 
the KCMSD cannot effectively implement the magnet programs 
without special facilities" (672 F. Supp. at 406, Pet. App. 75a).

- 31 -



Pet. App. 177a), and the court thereafter approved both 

operating and capital expenditures for the magnets (639 

F. Supp. at 53, 54-55, Pet. App. 144a, 146a-148a). In 

the 1987 Order on which the State focuses, the trial 

court rejected the State’s capital program submissions in 

part because "the State failed to estimate the cost 

necessary to provide magnet facilities needed to 

implement the long-range magnet school plan approved 

by the Court on November 12, 1986" (672 F. Supp. at 

404, Pet. App. 71a).

Because the capital improvements are tied to 

effective implementation of the magnet schools and the 

educational components of the desegregation plan, the 

Petition is misleading in intimating that everything which 

the district court ordered in September, 1987 "was

- 32 -



expressly designed to make KCMSD schools comparable 

to suburban schools" (Pet. at 7-8).

In many of the areas given remedial attention, 

performance standards that would assure that the effects 

of the violation would be eliminated were readily 

ascertainable. For instance, the Missouri State 

Department of Elementary and Secondary Education 

awards ratings (such as the AAA rating) to school 

districts on the basis of annual evaluations and had 

established and documented KCMSD’s deficiencies and 

needs (see 639 F. Supp. at 26-28, Pet. App. 158a-163a). 

With respect to reductions in class size, the court 

accepted goals suggested by the KCMSD that were less 

stringent and less costly than the recommendations made

- 33 -



by the Missouri State Board of Education (see 639 F. 

Supp. at 28-30, Pet. App. 163a-168a).

As to capital improvements, the district court 

articulated a set of standards that were closely related 

both to the violations it had found and the other 

remedial components it was ordering. First, the court 

required "eliminating safety and health hazards" and 

"correcting those conditions existing in the KCMSD 

school facilities which impede the level of comfort, 

needed for the creation of a good learning climate" (639 

F. Supp. at 41, Pet. App. 191a). These goals were 

directly responsive to the discrimination in the KCMSD 

under the dual system.27 Second, the court recognized

27The State does not dispute the historically inferior quality of 
black schools under the dual system in the KCMSD, which is in any 
event established on this record. See, e.g.. Tr. 818-24, 1,743-46, 
16,835. Nor did the State demonstrate — and the district court did 
not make any finding -  that the inadequacies attributable to the 
dual system had been redressed prior to the time that a deferred

(continued...)
- 34 -



that the voluntary enrollment of white students in 

KCMSD magnet schools would not be possible if those 

schools continued to be perceived as inferior to 27

27(...continued)
maintenance program at all schools was made necessary by voter 
refusal to approve bond issues for capital improvements, 639 F. 
Supp. at 39, Pet. App. 187a. Thus, the capital improvements 
ordered by the trial court in part correct pre-Brown inequalities that 
were perpetuated and exacerbated within the KCMSD by the 
district’s and the State’s failure to meet their affirmative obligations 
to eliminate the vestiges of enforced segregation. See Swann v. 
Charlotte-Mecklenburg Bd. of Educ.. 402 U.S. at 18 ("the first 
remedial responsibility of school authorities is to eliminate invidious 
racial distinctions. . . . Similar corrective action must be taken with 
regard to the maintenance of buildings and the distribution of 
equipment").

Capital improvements have been routinely ordered as 
appropriate components of remedial decrees in desegregation cases. 
See, e.g.. United States v. Yonkers Bd. of Educ., 856 F.2d 7 (2d Cir. 
1988); Liddell v. Board of Educ.. 801 F.2d 278 (8th Cir. 1986); 
Plaquemines Parish School Bd. v. United States. 415 F.2d 817, 831 
(5th Cir. 1969); United States v. Jefferson County Bd. of Educ.. 380 
F.2d 385, 393-94 (5th Cir.)(en banc'), cert, denied sub nom. Caddo 
Parish School Bd. v. United States. 389 U.S. 840 (1967); Morgan v. 
Nucci. 617 F. Supp. 1316, 1318 (D. Mass. 1985), appeal dismissed. 
831 F.2d 313 (1st Cir. 1988); Hoots v. Pennsylvania. 539 F. Supp. 
335, 338 (W.D. Pa. 1982), affd, 703 F.2d 722 (3d Cir. 1983); Tasbv 
v. Estes. 412 F. Supp. 1192, 1219 (N.D. Tex. 1976), remanded on 
other grounds. 572 F.2d 1010 (5th Cir. 1978); Singleton v. Anson 
County Bd. of Educ.. 283 F. Supp. 895, 903 (W.D.N.C. 1968); 
Redman v. Terrebone Parish School Bd.. 293 F. Supp. 376, 379 
(E.D. La. 1967).

- 35 -



alternative educational opportunities available to these 

students.28 For this reason, the court required that 

renovation and construction plans also take into account 

"improving [KCMSD’s] facilities to make them visually 

attractive" and "comparable with the facilities in 

neighboring suburban school districts" (639 F. Supp. at 

41, Pet. App. 191a). This goal was not, however, 

devised by the trial court to obliterate "[differences in 

local school funding" or to transform "a ’system of school 

financing [which] results in unequal expenditures between 

children who happen to reside in different districts . . 

(Pet. at 19-20, quoting San Antonio Indep. School Dist. 

v. Rodriguez. 411 U.S. 1, 54-55 (1973)). Rather, it 

represents the starting point in designing a remedy for

^Cf. 639 F. Supp. at 26, Pet. App. 159a (KCMSD only district 
in metropolitan area not rated "AAA").

- 36 -



the constitutional violations that is adequate and 

workable:

The long term goal of this Court’s remedial order 
is to make available to all KCMSD students 
educational opportunities equal to or greater than 
those presently available in the average Kansas 
City, Missouri metropolitan suburban school 
district. In achieving this goal the victims of 
unconstitutional segregation will be restored to 
the position they would have occupied absent 
such conduct, while establishing an environment 
designed to maintain and attract non-minority 
enrollment.

(639 F. Supp. at 54, Pet. App. 145a-146a [emphasis in 

original deleted and emphasis added].) Simply put, the 

.Standard of general comparability to the average school 

system in the geographic area was utilized as a practical 

mechanism for identifying the educational opportunities 

and facilities that were denied to KCMSD’s black 

students as a result of the practices of racial segregation 

and discrimination,29 and for assuring the likely success

29"[T]he Court has the responsibility of providing the victims of
(continued...)

- 37 -



of the magnet options.30

Petitioners strain to fashion some legal issue worthy 

of review by claiming that there was no "state action" 

which justifies the capital improvements orders because, 

as the State argued unsuccessfully to the trial court, "’the 

present condition of the district school facilities is not 

traceable to unlawful segregation but is due to a lack of 

maintenance by the KCMSD’" (Pet. at 7) and, it asserts, 

"[tjhere is no conceivable way that a KCMSD resident, 

entering a voting booth to support or oppose a tax

(...continued)
unlawful segregation with the educational facilities that they have 
been unconstitutionally denied. Therefore, a long-range capital 
improvement plan aimed at eliminating the substandard conditions 
present in KCMSD schools is properly a desegregation expense and 
is crucial to the overall success of the desegregation plan” (672 F. 
Supp. at 403, Pet. App. 69a).

^"In conclusion, if the KCMSD schools underwent the limited 
renovation proposed by the State, the schools would continue to be 
unattractive and substandard, and would certainly serve as a 
deterrent to parents considering enrolling their children in KCMSD 
schools" (672 F. Supp. at 405, Pet. App. 72a).

- 38 -



increase, can ’fairly be said to be a state actor’" (Pet. at

20).

These contentions do not justify granting the writ. In

the first place, as the Court of Appeals held,

this argument advanced by the State attacks an 
aspect of the court’s findings that was merely an 
alternative basis for its conclusion. . . . Even 
absent the findings that the State contributed to 
causing the decay, the capital improvements 
would still be required both to improve the 
education available to the victims of segregation 
as well as to attract whites to the schools.

(855 F.2d at 1305, Pet. App. 18a.) The issue fashioned

by the State thus will not be reached even if review

were granted.31 Moreover, the trial court found that the

31Similariy, the Petition refers to

the court of appeals’ attempt to match voting patterns with 
the existence of "segregation"-by pointing out that voting 
support fell off when the district enrollment became 
majority black (Pet. App. 18a n.7) . . . .

(Pet. at 20). But the Court of Appeals, in the footnote cited by 
Petitioners, explicitly noted that while ”[t]he record tends to support 
these arguments . . .  the district court did not base its findings of

(continued...)
- 39 -



racially discriminatory policies carried out in the KCMSD 

after Brown "contributed to, if not precipitated, an 

atmosphere which prevented the KCMSD from raising 

the necessary funds to maintain its schools" (Pet. App. 

124a),31 32 and the Court of Appeals affirmed (855 F.2d at 

1305, Pet. App. 17a-18a). Review of findings concurred 

in by both courts below is inappropriate under the "two- 

court" rule, see supra note 18.33

31(...continued)
fact and conclusions of liability on this theory, [and] we need say no 
more." The judgments below therefore do not rest, in any part, 
upon the facts described in the footnote cited by Petitioners.

32Cf., e.g.. Reitman v. Mulkev. 387 U.S. 369, 373, 376 
(1967)(examination of voter initiative "in terms of its ’immediate 
objective,’ its ’ultimate effect’ and its ’historical context and the 
conditions existing prior to its enactment’" revealed that "intent . . . 
was to authorize private racial discriminations in the housing 
market . . . and to create a constitutional right to discriminate on 
racial grounds").

33If the State’s arguments were to be considered on their 
merits, they are clearly lacking in substance. KCMSD’s electorate is 
simply not a mass of individual private citizens when it exercises the 
power conferred upon it by Missouri school law to determine the 
level of capital expenditure in a district; its decisions in such 
matters are as much state action as the electoral initiatives involved

(continued...)
- 40 -



II

The District Court’s Order Directing The 
Collection, For A Limited Period Of Time, Of 
Additional Property Tax Revenues Within The 
KCMSD Adequate To Support The District’s 
Share Of The Remedial Costs Is An Appropriate 
Exercise Of Its Equitable Remedial Authority To 
Effectuate The Fourteenth Amendment To The 

Constitution

The discussion in the preceding section demonstrates 

that the measures ordered by the district court are 

necessary and appropriate to provide a complete remedy 

for the unconstitutional and discriminatory actions of 

KCMSD and Missouri officials, and that no issue 

justifying review by this Court with respect to the goals 

of those remedies is raised by Petitioners. There remain 33

33(...continued)
in Washington v. Seattle School District No. 1. 458 U.S. 457 (1982), 
Hunter v. Erickson. 393 U.S. 385 (1969), and Reitman v. Mulkev. 
The district court’s orders were not directed to persons who acted 
as private parties, such as the "charitable and civic groups" which 
declined or were unable to assist KCMSD in raising funds for 
capital improvements (see August 25, 1986 Order at 3).

- 41 -



for consideration Petitioners’ contentions that the trial

judge so far departed from the appropriate exercise of 

his equitable authority in directing the collection of 

additional property taxes within the KCMSD as to 

warrant scrutiny by this Court. Contrary to Petitioners’ 

plaintive assertions, we believe that the power of a 

federal district court -  in fashioning relief adequate to 

redress Fourteenth Amendment violations — to require 

local officials to increase tax collection when all other 

means of assuring implementation of the remedy have 

been exhausted, is unquestionable; and that the 

appropriateness of its exercise in this instance is 

established by the decisions of this Court.

- 42 -



A. The authority of federal courts in school 
desegregation suits to require local tax levy and 
collection in order to effectuate relief necessary to 
vindicate Fourteenth Amendment rights was settled 
in Griffin and this case fits squarely under that 
ruling.

Preliminarily, we emphasize that this question is 

presented in the context of admitted, protracted, 

substantial violations of the Equal Protection Clause of 

the Fourteenth Amendment which the district court 

found to have caused substantial, continuing harm to the 

education of black children in the KCMSD; and in the 

context of that court’s having determined what is the 

necessary and appropriate remedy to eliminate the 

continuing effects of the violations. It is totally wrong to 

say, as the State of Missouri does (Pet. at 27), that 

neither of the courts below "made any serious inquiry 

into whether the KCMSD might become unitary without 

a mandatory tax increase." The district court carefully

- 43 -



shaped the remedy to be responsive to the nature and 

scope of the violation and rejected the parties’ 

submissions that it viewed as going beyond this 

parameter.34 Its conclusion, which was affirmed by the 

court below, was that the remedies it was ordering were 

necessary to accomplish the operation of the KCMSD 

schools free from racial discrimination and its effects.35

34See supra note 5 and accompanying text; Pet. App. 96a-97a 
(disapproving requested funding increase for test updates that would 
be required even in absence of desegregation plan).

35In contrast, the State of Missouri appears to argue that the 
district court should have curtailed the remedy -  in other words, 
rendered it less than fully adequate ~  to avoid the possibility that 
if state law inhibitions on KCMSD’s ability to raise funds were not 
modified by the state legislature (as they were not), the court might 
be required to order an increase in the tax levy. (See State Pet. at 
27.) The suggestion carries deference to the point of submission 
and would inevitably reward recalcitrance.

The cases on which the State seeks to rely are inapposite. For 
example, in New York State Association for Retarded Children v. 
Carey. 631 F.2d 162, 165 (2d Cir. 1980), cited in State Pet. at 27 
n.34, an alternative to requiring increased state funding -- "closfing] 
the institution" -- was available because that remedy would have 
relieved the plaintiffs from suffering the unconstitutional conditions 
of confinement, see icL at 166 n.l (Kearse, J., concurring). See also 
Rhem v. Malcolm. 507 F.2d 333, 341 & n.19 (2d Cir. 1974)(closing

(continued...)
- 44 -



Under these circumstances, the court’s authority to 

impose additional property tax obligations within the 

KCMSD in order to secure effectuation of the remedy 

is, we suggest, unquestionable. In Griffin v. County 

School Board of Prince Edward County. 377 U.S. 218 

(1964), the public schools of one county within a state 

had been closed to avoid the requirements of the 35

35(...continued)
institution had "crucial practical advantage . . .  of not putting the 
judge in the difficult position of trying to enforce a direct order to 
the City to raise and allocate large sums of money" but in "a 
situation where the uncofistitutionally-administered governmental 
function must be kept operating in any event . . . , a court might 
have no choice but to order an expensive, burdensome or 
administratively inconvenient remedy"); Reece v. Gragg. 650 F. 
Supp. 1297, 1307-11 (D. Kan. 1986)(setting jail population ceilings 
as condition for staying injunction against continued operation of 
facility pending submission and implementation of plan to correct 
unconstitutional conditions), cited in Clark Pet. at 22 n.6.

Such an approach is not feasible in a school desegregation 
action. Enjoining the operation of the KCMSD schools until the 
remedy were implemented would cause further harm to the victims 
of the constitutional violations. Enjoining all public schooling in 
the KCMSD suburbs, or throughout Missouri, until the plan were 
funded, would similarly penalize the victims of segregation as well 
as be a gross departure from equitable principles.

- 45 -



Fourteenth Amendment as interpreted by this Court in 

Brown, cutting off the opportunity for black pupils within 

the county to be educated. White pupils were assisted 

by county authorities to continue their schooling through 

a program of tuition grants for private school attendance 

and tax exemptions and credits. This Court held that 

the scheme violated the Fourteenth Amendment.

In its opinion, this Court explicitly outlined "the kind 

of decree necessary and appropriate to put an end to 

the racial discrimination practiced against the[ black 

children] under authority of the Virginia laws." Id. at 

232. The district court had enjoined payment of the 

tuition grants or allowance of the tax exemptions so long 

as the public schools remained shut, and this Court had 

"no doubt of the power of the court to give this relief to 

enforce the discontinuance of the county’s racially

- 46 -



discriminatory practices," Jd. at 232-33. But this Court

went further to describe the broad affirmative, remedial

authority of the trial courts in desegregation cases:

The injunction against paying tuition grants and 
giving tax credits while public schools remain 
closed is appropriate and necessary since those 
grants and tax credits have been essential parts of 
the county’s program, successful thus far, to 
deprive petitioners of the same advantages of a 
public school education enjoyed by children in 
every other part of Virginia. For the same 
reasons the District Court may, if necessary to 
prevent further racial discrimination, require the 
Supervisors to exercise the power that is theirs to 
lew  taxes to raise funds adequate to reopen, 
operate. and maintain without racial 
discrimination a public school system in Prince 
Edward County like that operated in other 
counties in Virginia.

(Id. at 233 [footnote omitted and emphasis added].) 

The district court had stated it would consider (but had 

not yet issued) an order to accomplish the reopening of 

the schools. This Court remanded with instructions to 

enter the sort of decree it had described:

- 47 -



An order of this kind is within the court’s power 
if required to assure these petitioners that their 
constitutional rights will no longer be denied 
them. The time for mere "deliberate speed" has 
run out, and that phrase can no longer justify 
denying these Prince Edward County school 
children their constitutional rights to an education 
equal to that afforded by the public schools in 
other parts of Virginia.

. . . [T]he cause is remanded to the District 
Court with directions to enter a decree which will 
guarantee that these petitioners will get the kind 
of education that is given in the State’s public 
schools. And, if it becomes necessary to add new 
parties to accomplish this end, the District Court 
is free to do so.

(Id. at 233-34 [emphasis added].)36

^Because the Court remanded with instructions to enter such 
a decree, Petitioners err fundamentally in trying to discount the 
importance of the Court’s opinion because "the Court did not itself 
order a tax levy increase" (Clark Pet. at 18; see Jackson County Pet. 
at 10) or "no tax was actually before the Court in Griffin" (State 
Pet. at 24). The direction to add parties, if required, 
unquestionably refers to the County Board of Supervisors, and the 
necessity of joining them as parties quite evidently refers to the task 
of assuring funding adequate to "guarantee" that black students in 
the county would receive "the kind of education that is given in the 
state’s public schools" "without racial discrimination."

- 48 -
(continued...)



The trial court here has faithfully applied the 

precepts of Griffin. It first considered and approved a 

remedy adequate to assure the operation of the KCMSD 

schools without racial discrimination. It carefully 

determined what resources would be required to 

implement that remedy and allocated the costs between 

the joint tortfeasors, the State of Missouri and KCMSD. 

It required the KCMSD to attempt through every means 

at its disposal to raise its share of the necessary funding, 

including by seeking voter approval for additional tax 

levies on four occasions in 1986 and 1987.* 37 To meet 

KCMSD’s fiscal obligations in the early stages of plan

^(...continued)
As is evident from the passages quoted in the text, Missouri 

also is wrong in suggesting that the Court’s discussion in Griffin 
"was limited to a single conclusory statement" (id.).

37See 672 F. Supp. at 411, Pet. App. 85a-86a (summarizing 
attempts by KCMSD to raise funds as well as failure of Missouri 
legislature to provide new mechanism for this purpose); Pet. App. 
127a (suggesting General Assembly of Missouri take such action).

- 49 -



implementation, the court suspended the operation of a 

state-law property tax rollback provision on two 

occasions, effectively raising property tax levies within 

the KCMSD higher than they would have been except 

for its order.38 Only after all of these avenues were 

exhausted and it was clear that absent additional relief 

from the court the plan could not be fully effectuated, 

did the district court determine to order an increase in 

KCMSD’s property tax levy. The court’s orders require 

a total levy rate less than the highest rate that had been

■^Significantly, the State of Missouri did not appeal the first 
order, see 807 F.2d at 682-86 (addressing State’s arguments on 
appeal), or seek review in this Court, even after the Court of 
Appeals in 1986 suggested that the district court could raise the tax 
levy if necessary to fund the increased share of desegregation costs 
which it was placing on the KCMSD, see id. at 686, citing Liddell 
v. Missouri. 731 F.2d at 1319-23. When the rollback was enjoined 
for the second time, ”[t]he State urge[d] that KCMSD be required 
to pay its share of desegregation costs; it t[ook] no position as to 
the method through which KCMSD obtains the funds to meet its 
burden," August 25, 1986 Order at 1.

Neither of the other Petitioners sought intervention on a timely 
basis following these tax rollback suspensions.

- 50 -



in effect in the KCMSD in the period from 1974 to 

198239 and provided that the additional levy shall 

continue only until 1991-92, or until bonds to finance 

necessary capital improvements have been retired.40

It is suggested that Griffin does not support this 

action because this Court’s opinion did not explicitly 

refer to an increased tax rate (Clark Pet. at 18; Jackson 

County Pet. at 10). Griffin will not bear such a crabbed 

reading. This Court could not have intended to deny 

the district court authority to require the Board of 

Supervisors to levy and collect a tax "adequate to 

reopen, operate, and maintain without racial

39See 855 F.2d at 1312, Pet. App. 32a.

40672 F. Supp. at 413, Pet. App. 89a; Pet. App. 63a. In view of 
its reversal of the income tax surcharge, the Court of Appeals 
directed that the district court reevaluate the need for continuation 
of the increased property tax levy at the end of the 1991-92 school 
year, 855 F.2d at 1315, Pet. App. 38a.

- 51 -



discrimination a public school system in Prince Edward 

County like that operated in other counties in Virginia," 

377 U.S. at 233 (emphasis added). The remand 

directions necessarily meant not only that the district 

court could require the Board of Supervisors to levy 

some tax, however small, but that the district court could 

order it to levy a tax adequate to provide "a public 

school system in Prince Edward County like that 

operated in other counties in Virginia."41 Similarly, if 

the county’s school facilities had fallen into disrepair 

during the period of their closure and needed to be

41Indeed, on remand, the Board of Supervisors initially declined 
to appropriate any funds, and the district court ordered it to make 
available "such ’County funds as are reasonably necessary for the 
opening and maintenance of the public schools * * * on a non- 
discriminatory basis.’" Plaintiffs then challenged the adequacy of the 
appropriation; the court entertained this inquiry but "postponed 
action until subsequent experience should reveal its adequacy or 
inadequacy." See Griffin v. Board of Supervisors of Prince Edward 
County, 339 F.2d 486, 489, 490 (4th Cir. 1964)(describing lower 
court proceedings).

- 52 -



rehabilitated in order to be "reopen[ed]'! and made "like 

[other school facilities] operated in other counties in 

Virginia," we are confident that the Griffin remand 

directions encompassed the district court’s authority to 

require adequate funding to accomplish these ends.

The actions of the trial court in the instant matter 

fall squarely within the ruling in Griffin and Petitioners 

have advanced no compelling reason why Griffin should 

be reconsidered; thus, denial of the writ is appropriate.42

42We also agree with the Court of Appeals (855 F.2d at 1311- 
13, Pet. App. 31a-36a) that the district court’s actions may be 
characterized and sustained as directing the disregard of the state 
law limitation on KCMSD’s tax levy rate in order to accomplish 
vindication of Fourteenth Amendment rights, North Carolina State 
Bd. of Educ. v. Swann. 402 U.S. 43 (1971); see Washington State 
Commercial Passenger Fishing Vessel Ass’n. 443 U.S. 658, 694-96, 
modified on other grounds sub nom. Washington v. United States. 
444 U.S. 816 (1979).

- 53 -



B. Apart from Griffin, the power of federal courts, in 
appropriate circumstances, to order state tax levies to 
be made is not in doubt.

Petitioners, in reliance upon a congeries of decisions 

from this Court, vehemently contend that federal courts 

may never direct state or local officials to levy or collect 

a tax,43 or may do so only if there is explicit state 

legislative authorization.44 This argument rests upon a

43E.g.. State Pet. at 22 ("There are serious grounds for doubting 
that federal courts have any power to order specific taxes"); Clark 
Pet. at 22 (opinion below "is devoid of any . . . support [for] the 
premise that the federal judiciary is expressly empowered under 
Article III to impose taxes to generate revenues to fund court- 
ordered remedies"); Jackson County Pet. at 11-12 ("A court has 
many powers, up to but not including the power to order increases 
in taxation, which may be used to remedy segregation").

44E.g., State Pet. at 24 n.31 ("cases allo[w] the use of 
mandamus to order collection of authorized taxes"). The State’s 
argument on this score appears to rest upon language which it 
attributes to this Court in United States ex rel. Ranger v. New 
Orleans. 98 U.S. 381 (1879). Id. However, the language quoted in 
the Petition is taken from the argument of counsel in that case, 
which was rejected by this Court; the decision in fact announces the 
contrary proposition.

In that case the City of New Orleans argued that because the 
1854 statute authorizing the city to issue bonds included no explicit 
provision for a tax levy to pay the principal amounts, judgments in

(continued...)
- 54 -



fundamental misreading of the jurisprudence in 

municipal bond default cases decided by this Court 

during the last century,45 and is based upon language in 

the opinions in some of those cases that is uprooted

^(...continued)
favor of the bondholders for those amounts could not be enforced 
by issuance of a mandamus to levy a tax in order to pay the 
judgments. 98 U.S. at 390-91. This Court held that authorization 
of the borrowing "implies and carries with it the power to adopt the 
ordinary means employed by such bodies to raise funds for their 
execution, unless such funds are otherwise provided. And the 
ordinary means in such cases is taxation." Id. at 393. The Court 
reversed "with directions to issue the writ [of mandamus] as prayed 
in the petition of the relator," id. at 397.

In United States ex rel. Wolff v. New Orleans. 103 U.S. 358 
(1881), this Court applied the same principle, directing the issuance 
of a writ to levy taxes without regard to a state statute limiting the 
total annual levy which could be made.

45Some of Petitioners’ citations are flatly wrong. See supra 
note 44. Others have nothing to do with the questions at issue 
here. For instance, Stansburv v. United States, 75 U.S. 33 (1869), 
cited in State Pet. at 25 n.31, holds that the Secretary of the 
Interior could not create an obligation binding upon the United 
States in the absence of legislative authorization. Imbler v. 
Pachtman. 424 U.S. 409 (1976), cited in State Pet. at 23, recognized 
an immunity from suit under 42 U.S.C. § 1983 as a matter of 
statutory construction, not judicial power.

- 55 -



from its context and consequently given an incorrect 

interpretation.

In the case at bar, the district court on September 

15, 1987 entered an order increasing the property tax 

levy for the KCMSD to $4.00 per $100 of assessed 

valuation (672 F. Supp. at 413, Pet. App. 90a). 

Subsequently, the court granted injunctive relief requiring 

Jackson County officials to collect the additional tax.46 

This was the modern-day equivalent of issuing a writ of 

mandamus to the local officials requiring them to levy 

and collect the additional tax.47 The authority of federal

46On September 29, 1987, the district court issued a Temporary 
Restraining Order to this effect. Following a hearing, the court 
continued the order in the form of a preliminary injunction issued 
October 17, 1987 and made it permanent on January 7, 1988 
(Jackson County Pet. App. I ll;  see 855 F.2d at 1315, State Pet. 
App. 39a).

47The writ of mandamus in the district courts was abolished in 
1937 when law and equity jurisdiction was merged and the Federal 
Rules of Civil Procedure adopted. Fed. R. Civ. P. 81(b). Relief in 
the nature of mandamus, however, continues to be available and

(continued...)
- 56 -



courts to grant this relief has never been doubted.

In Rees v. City of Watertown. 86 U.S. 107 (1874) 

and Meriwether v. Garrett. 102 U.S. 472 (1880), upon 

which Petitioners rely so heavily, this Court reiterated its 

view that writs of mandamus could be issued against 

state officers requiring them to levy and collect taxes in 

order to satisfy federal court judgments against them. 

See Rees. 86 U.S. at 117 ("The appropriate remedy of 

the plaintiff was, and is, a writ of mandamus'!: 

Meriwether. 102 U.S. at 520 ("The taxes levied pursuant 

to writs of mandamus issued by the circuit court are still 

to be collected, the agency only for their collection being 47

47(...continued)
”[t]he principles that governed the former writ now govern attempts 
to secure similar relief," Sanchez-Espinoza v. Reagan. 770 F.2d 202, 
207 n.7 (D.C. Cir. 1985)(Scalia, J.). See, ej*., Couch v. City of Villa 
Rica. 203 F. supp. 897 (N.D. Ga. 1962)(ordering city to increase 
rates charged by municipally owned utility to satisfy federal court 
negligence judgment).

- 57 -



changed. The Receiver appointed by the Governor has 

taken the place of the collecting officers of the city. . . . 

The Receiver, and any other agent of the State for the 

collection, can be compelled by the court, equally as the 

former collecting officers of the city, to proceed with the 

collection of such taxes").48

What this Court refused to approve in Rees and 

Meriwether, and what it described as being beyond the 

power of the federal judiciary, was not an order 

requiring state officials to levy and collect a tax, but 

rather the designation of the United States Marshal to 

seize taxable property of private citizens and sell it to 

satisfy a judgment, see Rees. 86 U.S. at 119, or the

48Graham v. Folsom. 200 U.S. 248, 249 (1906) followed 
Meriwether in upholding "the judgment of the circuit court in 
mandamus, requiring [successor public officials following a 
governmental restructuring] to assess and collect taxes to pay a 
judgment."

- 58 -



direct appointment of a federal receiver to collect all

state taxes and pay the judgment, see Meriwether. 102 

U.S. at 508.49 That is not what was ordered below.

The other decisions to which Petitioners advert are 

equally distinguishable.50 It is true that in suits founded

49With characteristic brevity, Justice Holmes in Yost v. Dallas 
County, 236 U.S. 50, 57 (1915) summarized the operative principle 
as follows: "Of course it does not follow from the fact that a court 
has authority to issue a writ of mandamus to compel officers to 
perform their duty that it can perform that duty in their place."

50In Louisiana v. Jumel. 107 U.S. 711 (1883) the Court held 
that the Eleventh Amendment barred issuance of mandamus against 
the State -  not a municipality, cf County of Lincoln v. Luning. 133 
U.S. 529 (1890) -- in a suit that was not grounded upon the 
Fourteenth Amendment, see Milliken II. 433 U.S. at 288-90; cf. 
Fitzpatrick v. Bitzer. 427 U.S. 445 (1976).

In Heine v. Levee Commissioners. 86 U.S. 655, 659-61 (1874), 
in addition to following Rees, the Court held that mandamus relief 
was unavailable until a federal court judgment had been obtained, 
to which relief the writ would be ancillary. This principle continues 
to govern the federal court award of relief in the nature of 
mandamus today. E.g.. Brittingham v. Commissioner. 451 F.2d 315, 
317 (5th Cir. 1971); Haggard v. Tennessee. 421 F.2d 1384, 1386 (6th 
Cir. 1970).

See also supra note 45.

- 59 -



solely upon state law claims, the availability of 

mandamus relief is subject to pre-existing state law 

limitations upon officials’ taxing authority.51 However, 

even in such state-law cases, federal courts will issue 

mandamus without regard to limitations on remedies 

adopted after a contract is formed, since these impair 

the obligation of contract in violation of the federal 

Constitution.52 And where federal rights are at stake, as 

here, of course state-law limitations on remedy must give 

way. North Carolina State Bd, of Educ. v. Swann. 402

S1E.g„ Clay County v. United States ex rel. McAleer, 115 U.S. 
616 (1885)(contract claim); Louisiana ex rel. Ranger v. New 
Orleans, 102 U.S. 203 (18S0)(contract claim; requirement that 
judgment be registered); United States v. County Court. 99 U.S. 582 
(1879)(contract claim); United States v. County Court. 95 U.S. 769 
(1878)(same); Couch v. City of Villa Rica. 203 F. Supp. at 901 (tort 
suit).

52E.g.. Louisiana ex rel. Hubert v. Mayor of New Orleans. 215 
U.S. 170 (1909); United States ex rel. Hoffman v. Quincy. 71 U.S. 
535 (1867). Compare Louisiana ex rel. Ranger v. New Orleans. 
supra note 51 (subsequent requirement that judgment be registered 
held not to impair obligation of contract).

- 60 -



U.S. 43 (1971); Washington v. Washington State 

Commercial Passenger Fishing Vessel Ass’n. 443 U.S. at 

694-96.53

We do not quarrel with the proposition advanced by 

Petitioners that federal courts should make every effort 

to avoid the necessity of ordering a tax increase. The 

district court in this action stayed its hand for as long as 

possible, until there was no other alternative to assure 

actual implementation of the remedy. See supra, text at 

nn. 37-38. When that unfortunate circumstance occurred 

as a result of the defendants’ refusals to act, the court 

was fully justified in fashioning an appropriate decree.

53See Yost v. Dallas County. 236 U.S. at 56, where Justice 
Holmes characterized the municipal bond cases as involving 
"obligation [s] under, not paramount to, the authority of the state," 
the United States Constitution in those suits "only requiring that 
the obligation of the contract should not be impaired by subsequent 
state law."

- 61 -



E.g., Hutto v. Finney, 437 U.S. at 687-88 & n.9. The

writ should be denied.54

Conclusion

For the foregoing reasons, the writs should be 

denied.

Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
16th floor 
99 Hudson Street 
New York, NY 10013
(212) 219-1900

THEODORE M. SHAW 
8th floor
634 So. Spring Street 
Los Angeles, CA 90014
(213) 624-2405

* ARTHUR A  BENSON II 
100 Walnut Street,

Suite 1125
Kansas City, MO 64106 
(816) 842-7603

JAMES S. LIEBMAN 
Columbia University 

School of Law 
435 West 116th Street 
New York, NY 10027 
(212) 854-3423

^Counsel of Record

Attorneys for Respondents JENKINS et al.

54We join with and adopt KCMSD Respondents’ views as to 
the undesirability of granting review of the intervention questions 
raised in Nos. 88-1194 and -1228.

- 62 -