Horton v. Orange County Board of Education Brief for Appellants

    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,

v s .

STATE OF MISSOURI, ET AL., 
Appellees.

Appeal From the United States District Court for the 
Western District of Missouri, Western Division 

Honorable Russell G. Clark

Individual Brief of Appellees Liberty 
School District No. 53 and Its 

Superintendent

Timothy H. Bosler 
Thomas C. Capps LAW OFFICES OF TIMOTHY H. 
Suite 800, Westowne VIII 
Liberty, MO 64068 
(816) 781-8171
Attorneys for Liberty 
Appellees

BOSLER



SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

The Liberty School District is one of the eleven SSDs. 
The Liberty District is not now nor has it ever been con­
tiguous with the Kansas City Missouri School District 
(KCMSD). The District Court made specific findings 
of fact regarding Liberty which included the determination 
that there was no evidence that the formation or maintenance 
of Liberty's boundaries was accomplished with the purpose 
or effect of racial segregation. The District Court further 
found that Plaintiffs failed to establish any intentional 
racially discriminatory acts or omissions by the Liberty 
District which have had a substantial segregative impact 
in any other district. Based on the District Court's find­
ings of fact, the Motion of the Liberty School District 
pursuant to F.R.C.P. 41(b) was sustained and the Liberty 
District was dismissed from these proceedings at the close 
of Plaintiffs' evidence.

The Liberty School District and its Superintendent re­
quest 15 minutes for oral argument.

1



TABLE OF CONTENTS

Summary of Case and Request for Oral Argument........  i

Table of Contents.................................... ii

Table of Authorities................................. iii

Statement of Issues.................................. iv

Statement of Facts................................... 1-3

Argument............................................. 4 - 6

Conclusion........................................... 7

n



TABLE OF AUTHORITIES

Lee v. Lee County Board of Education,
639 F. 2d 1243 (5th Cir. 1981).......................... 4

Milliken v. Bradley,
418 U.S. 717 (1974).................................... 7

Morrilton School District No. 32 v. United States,
606 F. 2d 222 (8th Cir. 1979).......................... 6

ill



STATEMENT OF THE ISSUES

1. Whether The District Court erred in its application 
of the law by dismissing the Liberty School District at the 
close of Plaintiffs' evidence after a finding of no consti­
tutional violation by the Liberty School District with an 
effect in another district and no effect upon the Liberty 
School District as a result of any alleged constitutional 
violation by the Liberty School District or any other school 
district.

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

Lee v . Lee County Board of Education,
639 F .2d 1243 (5th Cir. 1981)

Morrilton School District No. 32 v. United States,
606 F .2d 222 (8th Cir. 1979)

2. Neither plaintiffs nor KCMSD raise as an issue whether 
the Findings of Fact of the District Court regarding the Liberty 
School District are clearly erroneous under Federal Rules of 
Civil Procedure 52. It is the position of this appellee that 
Plaintiffs and KCMSD have thereby waived this issue. In sup­
port of this position this appellee refers to and incorporates 
the Consolidated Response Brief of all appellee School Dis­
tricts except KCMSD. As noted in the District Court's Findings 
of Fact and in this Appellee's brief the District Court's

iv



findings regarding the SSD's and specifically the Liberty 
School District are well supported in the record.

v



STATEMENT OF FACTS

The Liberty School District has historically served an 
area in Clay County, Missouri north of the Missouri River 
centered in the community of Liberty, Missouri. The Liberty 
District is not now nor has it ever been contiguous to the 
Kansas City Missouri School District (K.C.M.S.D.) (P.Ex. 1,
1A, 9). There was no evidence that the formation of Liberty's 
boundaries or any annexation thereafter was accomplished with 
the purpose or effect of racial segregation.1

The Garrison School for blacks located in the Liberty 
School District was in operation at least as early as 1907 and 
operated a 10-grade high school as early as 1916 (T. 514-515). 
The Garrison School maintained its 12-year high school for 
blacks continously from 1933 until 1953 (T. 5358).2

The Garrison School in Liberty served not only the area 
that encompassed the Liberty School District but also the sur­
rounding rural areas and attracted black high school students 
from areas north of the river including Lathrop, Excelsior 
Springs, White Oak, and St. Joseph (T. 3523-3525).

1Findings of the District Court Applicable to Individual 
Districts (Liberty) Joint Addendum B of Plaintiffs and 
KCMSD B110.

This reference is from the testimony of Plaintiffs' 
expert witness Dr. James Anderson.

1



or lack of certain grades at Garrison caused an outmigration
3of blacks from Liberty to the KCMSD.

During a part of the 1946-1947 school year approximately 
three black students from Liberty attended the tenth grade 
at Lincoln High School in KCMSD. (T. 3520). During the 1953- 
1954 school year approximately 13 black high school students 
from Liberty attended high school at Lincoln in KCMSD. (T. 6251, 
1930). The evidence showed that all of the transferees iden-

4tified now live outside the KCMSD.
The Liberty High School was integrated in the Fall of 1954 

while Garrison continued as a black elementary school through 
the 1957-1958 school year. Thereafter and continuing to the 
present, the Liberty School District has been completely inte­
grated and unitary. (T. 1858, 2799). 3 4

There is no evidence that either the quality of education

3Ida Mae Tucker who attended Garrison School and Lincoln 
High School in KCMSD pre-Brown opined that the education dif­
fered very little and in fact she as well as other blacks at 
the time preferred attending school in Liberty. (T. 628). Miss 
Tucker presently resides in Independence, another of the SSDs. 
(T. 621).

4Diantha Houston Baker, Mayview, Missouri; James Houston, 
Liberty, Missouri (T. 2791, 2803); Rosa Mae Weston Patterson, 
Liberty, Missouri, Chris Weston, Liberty, Missouri (T. 1827); 
Edmond Stone, Liberty, Missouri (T. 565); Mary Lee, Liberty, 
Missouri (T. 35808) . Rosa Mae Weston Patterson was born in the 
KCMSD and when school age moved with her family, which included 
other school age children, to Liberty and attended school in 
Liberty through 1954. (T. 1851).

2



areas of the 1/2% sales tax, extracurricular activities, special
education or AVTS, had any racially segregative effect on KCMSD
or any other district, or compromised Liberty's status as an

5autonomous entity.
There is no evidence that the Liberty District was in­

volved in proposing or opposing reorganization or zoning 
matters such as H.B. 171 and the Spainhower Commission and 
there is no evidence that Liberty's failure to take a posi­
tion in any way effected the racial composition of any dis-
. . . 6 trict.

There is no evidence of any policy or practice of the 
Liberty School District intending to discourage the attendance 
of any students residing in its district, minority or other­
wise at the Liberty schools.

Blacks have served on the City Council of Liberty, the 
Liberty Board of Education, the Liberty Police Force and as 
teachers within the Liberty School District. (T. 2791, 2803, 
deposition of Homer Stockwell designated at page 59, lines 
13-22). 5 6

There is no evidence that Liberty's participation in the

5Joint Addendum B of Plaintiffs and KCMSD B112.
6Joint Addendum B of Plaintiffs and KCMSD B113.

3



ARGUMENT

THE DISTRICT COURT DID NOT ERR IN ITS APPLICATION OF 
THE LEGAL STANDARD TO THE FACTS.

An interdistrict remedy including Liberty would be appro­
priate only if there were a finding that a racially discrimina­
tory act by Liberty caused racial segregation in an adjacent 
district, or the Liberty district lines had been deliberately 
drawn on the basis of race.^

That the Liberty School District operated the Garrison 
School prior to 1954 has not been shown to have a substantial,

gdirect and current segregative effect. In fact, if the 
Garrison School had any effect at all upon where blacks chose 
to live pre-1954 it had an effect opposite of the claimed 
segregative impaction of blacks in KCMSD. Regardless of what 
Plaintiffs' experts opine 30 years after the fact, those 
blacks who attended Garrison School believed that it provided 
a good education comparable to and preferred by many over the 
educational opportunities at the Lincoln High School in 
KCMSD pre-1954. (T. 564, 628, 1852).

Nor does the fact that Garrison operated as an elementary 
school for blacks until 1958 produce the "effect" necessary 7 8

7Milliken at p. 744, 745.
8This being a requirement for inclusion in an inter­

district remedial order. Lee v. Lee County Board of Education, 
639 F .2d 1243, 1260 (5th Cir7 1981).

4



to include Liberty in an interdistrict remedy.
The transfers of black high school students during one 

year and part of another had no effect upon the racial 
composition of any district. Even if all of the less then 
30 students involved had moved to KCMSD this total would 
have been too insignificant to have had a substantial 
segregative effect on either KCMSD or Liberty.^

Plaintiffs contend that an innocent district (such as 
Liberty) may be included in an interdistrict remedy if the 
innocent district is effected by the constitutional viola­
tions of others. Plaintiffs attempted to prove white flight 
from KCMSD to Liberty caused by alleged constitutional viola­
tions of KCMSD. Even this incorrect intepretation of 
Milliken is not supported by the facts. Plaintiffs' evidence 
was that between 1958 and 1973 nine students had their records 
transferred from KCMSD to Liberty.* 10 11 There was no evidence as 
to why these students came to Liberty or even the race of the 
nine.

QDr. Gary Orfield, Plaintiffs expert, opined that the 
operation of Garrison until 1958 had a small effect, if any, 
on the residential patterns of blacks in the metropolitan 
area. (T. 14,926).

10This was the District Court's finding at Bill of the 
Joint Addendum B of Plaintiffs and KCMSD. In fact the Plain­
tiffs presented no evidence that any of the black transferees 
from Liberty moved to KCMSD. Plaintiffs' evidence did show 
that of the transferees identified they all either live in 
Liberty or elsewhere outside the KCMSD.

11Plaintiffs' Exhibits 1755-B, C, D, and E.

9

5



However, it would appear that if Plaintiffs were able to
prove that "district lines have been deliberately drawn on the 

12basis of race" or where an otherwise innocent school dis­
trict was the "product of the violation" of another that

14district might be included in a remedial order.
As found by the District Court, there was not one shred 

of evidence that the Liberty District was created with segre­
gative intent14 15 nor was there any proof presented to the 
District Court that any boundary line change or annexation 
by Liberty had the purpose or effect of separating the races.

The Liberty School District is innocent of any constitu­
tional violation which has a current segregative effect on 
any district. Further, the racial composition of the Liberty 
School District has not been effected by any alleged consti­
tutional violations of other entities nor was the Liberty 
District created or its boundaries changed in any way with the 
purpose or effect of racial segregation. After nearly four 
months of Plaintiffs evidence the District Court made well- 
reasoned findings to this effect which are well supported in 
the voluminous record.

14Morrilton School District No. 32 v. United States,
606 F .2d 222, 228 (8th Cir. 1979).

15Both the town of Liberty and its local schools have 
historical roots in the early 19th Century. Plaintiffs' own 
evidence was that Liberty and its school system were separate 
and autonomous from KCMSD some 50 years prior to Brown.
(T. 5358-5360, T. 514-515).

6



CONCLUSION

For the above stated reasons the prior Orders of the 
District Court (4/2/84 and 6/5/84) dismissing the Liberty 
School District should be affirmed.

Respectfully submitted.

LAW OFFICES OF TIMOTHY H. BOSLER

Thbmas C. Capnd /l #26259
Suite 800, Westowne VIII
Liberty, MO 64063
Ph: 781-8171
ATTORNEYS FOR DEFENDANT
LIBERTY SCHOOL DISTRICT and
ITS SUPERINTENDENT
RONALD L. ANDERSON

7