Greenberg Statement on Newark Medical School

    IN THE

®rateti States Court of appeals
FOR THE EIGHTH CIRCUIT

No. 86-1934WM No.87-2299WM
No. 86-2537WM No. 87-2300WM
No. 87-1749WM No. 87-2588WM

KALIMA JENKINS, et al,
Appellees,

vs.
STATE OF MISSOURI, et al.,

Appellants,
and

SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al,
Appellees.

Appeals from the United States District Court for the 
Western District of Missouri, Western Division 

Honorable Russell G. Clark

BRIEF OF APPELLEES KALIMA JENKINS, et al,

*ArthurA.Bensonii 
Cynthia L. Quarterman 
911 Main, Suite 1430 
Kansas City, Mo 64105 
(816)842-7603

J ulius Chambers 
James H .N abritt ii 
99 Hudson Street 
New York, New York 10013

James S .L iebman 
Columbia University School of Law 
435 West 116th Street 
New York, New York 10027

Theodore M. Shaw 
8th Floor
634 S. Spring Street 
Los Angeles, CA 90014

* Counsel of Record



SUMMARY AND REQUEST FOR ORAL ARGUMENT
The United States District Court for the Western District 

of Missouri (Clark, J.) has found that the School District of 
Kansas City, Missouri (KCMSD) and the Missouri Appel­
lants committed constitutional violations which caused 
KCMSD to be racially segregated. Pre-1954 violations 
caused KCMSD to operate dual schools, some for whites and 
some, separate and inferior, for blacks. After 1954 KCMSD 
and the State caused the conversion of KCMSD into a sys­
tem of predominately black and inferior schools.

The district court found that these violations had four 
primary effects in KCMSD: inferior education, segregated 
schools, deteriorated buildings and an underfunded school 
system.

To eliminate the vestiges of these effects the district court 
ordered a remedy closely tailored to the nature and scope of 
the violation. (1) To remedy inferior education, it ordered an 
array of educational improvements. (2) To remedy racial iso­
lation and to improve education, magnet schools were 
ordered. (3) To restore the deteriorated physical plant, and 
to enable the educational improvements and the desegrega- 
tive magnet schools to work, the court ordered essential 
capital improvements. (4) To cure the underfunding effects 
and to enable the district to finance its educational 
improvements, magnet schools, and capital improvements, 
the court adopted a series of funding measures.

The State does not appeal the district court’s findings and 
conclusions in regard to the constitutional violations and 
the effects of those violations. The State here appeals the 
orders providing magnet schools, capital improvements and 
funding measures. Because the State has not challenged as 
clearly erroneous any of the findings of the district court 
and because the district court properly applied applicable 
law, the orders appealed from should be affirmed. The rec­
ord below is extensive and the Jenkins Class Appellees 
request not less than one hour for oral argument.

i



TABLE OF CONTENTS
SUMMARY AND REQUEST FOR
ORAL ARGUMENT ............................................................  i
TABLE OF CONTENTS....................................................... ii
TABLE OF AUTHORITIES................................   iv
STATEMENT OF THE ISSUES .......................................x
STATEMENT OF FACTS

I. INTRODUCTION ................................................... 1
A. Violations .............................................................. 2
B. Effects .....................................................................3
C. R e m e d y ................... 3

II. NATURE AND SCOPE OF THE
VIOLATIONS.............................................................. 6
A. Introduction and Summary ............................ 6
B. Pre-1954 Requirement That Blacks Attend

Segregated and Inferior Schools in  
KCMSD ...................................................................7

C. The State’s and KCMSD’s Continued
Commitment after Brown to Segregated  
and Inferior Schools for Blacks .................  11

D. The Creation and M aintenance of
an Areawide Racially Segregated  
Housing M ark et...............................................  15

III. THE FOUR BASIC EFFECTS OF
THE VIOLATIONS................................................. 17
A. Relegation of an Expanding Black 

Population to an Expanding Plurality  
of Schools Identified by the State as
Black and In ferior ...........................................  17

B. Abandonment of KCMSD by Whites Causing
Conversion of the D istrict to a System 
Identified as Black and Inferior ................. 18

C. Taxpayer Abandonment o f and Refusal
to Fund Inferior Schools ................................ 19

ii



D, D eterio ra tio n  o f th e  Physical P l a n t ......... 20
IV. THE REM EDIES FOUND NECESSARY 

TO ELIMINATE THE FOUR EFFECTS OF 
THE VIOLATIONS ...............................................  21
A. E d u ca tio n a l Im provem ents to  R em edy

In fe rio r E d u ca tio n  ....................................   22
B. M agnet Schools to  E nd  R acia l Iso la tion  . .  23
C. C ap ita l Im provem ents ..................................  31
D. F u n d in g  for th e  R e m e d ie s .............................. 34

SUMMARY OF THE A RG U M EN T................................  41
ARGUMENT

I. THE DISTRICT COURT’S FINDINGS 
DEMONSTRATE THAT THE REM EDIES 
ORDERED FIT  THE NATURE AND SCOPE 
OF THE VIOLATIONS AND TH EIR EFFECTS 
AND ARE NECESSARY TO DESEGREGATE 
THE K C M S D ........................................   43
A. Legal S ta n d a rd s  G overning School

D esegregation  R e m e d ie s ................................ 43
B. The D is tric t C ourt Followed P rec ise ly  The

P ro ce d u ra l A nd S ubstan tive  G uidelines For 
D evising A D esegregation  P l a n .................  51

II. THE DISTRICT COURT
PROPERLY ADOPTED PLANS TO ERADICATE 
THE FOUR MAJOR EFFECTS OF THE 
CONSTITUTIONAL VIOLATION............. .. 55
A. To Rem edy In ferio r E d u ca tion  ...................... 55
B. To R em edy S e g re g a tio n ...................................56
C. To R em edy Physical D e te r io ra t io n ...........59
D. To R em edy U n d e rfu n d in g .............................. 63

CONCLUSION....................................................................... 78

iii



TABLE OF AUTHORITIES
Cases Page
Abelman v. Booth,

62 U.S. (21 How.) 506 (1859)............................................. 69
Action v. Gannon,

450 F.2d 1227 (8th Cir. 1971) ........................................... 75
Adams v. Rankin County Board of Education,

485 F.2d 324 (5th Cir. 1973).............................. ..............  51
Adams v. United States,

620 F.2d 1277 (8th Cir.), cert, denied,
449 U.S. 826 (1980) ......................................  7, 8,10,11, 57

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969)..............................................................  49

Anderson v. City of Bessemer,
470 U.S. 564 (1985).....................................................  47, 48

Arthur v. Nyquist, 712 F.2d 809 (2d Cir. 1983),
cert, denied, 466 U.S. 936 (1984)....................................  57

Banks v. Clairborne Parish School Board,
425 F.2d 1040 (5th Cir. 1970) ........................................... 51

Barrow v. Jackson,
346 U.S. 249 (1953) .........................................................  16

Bell v. Wolfish,
441 U.S. 520 (1979).......................................................  49,50

Berry v. School Dist. of Benton Harbor, 698 F.2d 813
(6th Cir.), cert, denied, 464 U.S. 892 (1983) .................  57

Brewer v. Hoxie School District No. 46,
238 F.2d 91 (8th Cir. 1956)...............................................  75

Brown v. Board of Education,
347 U.S. 483 (1954) (Brown I) ................................  passim

Brown v. Board of Education,
349 U.S. 753 (1955) (Brown II) ..............................  passim

Carter v. West Feliciana School Board,
396 U.S. 290 (1970).....................................................  49, 51

Cato v. Parham,
403 F.2d 12 (8th Cir. 1968)...............................................  50

iv



60
Cisneros v. Corpus Christi Independent School Dist.,

459 F.2d 13 (5th Cir. 1972).................................... ..
Clark v. Board ofEduc., 449 F.2d 493 (8th Cir. 1971),

cert, denied, 405 U.S. 936 (1972)....................................  60
Clark v. Board ofEduc. of Little Rock,

705 F.2d 265 (8th Cir. 1983)................. ............ ..............  57
Columbus Board of Education v. Penick,

443 U.S. 449 (1979)..................................  45, 48, 49, 50, 52
Cooper v. Aaron,

358 U.S. 1 (1958)...................................... ................... 69, 75
Davis v. Board of School Comm’rs,

402 U.S. 33 (1971).......................................................  44, 49
Davis v. East Baton Rouge Parish School Bd.,

721 F.2d 1425 (5th Cir. 1983) ..........................................  56
Dayton Board of Education v. Brinkman,

433 U.S. 406 (1977) (.Dayton I ) ............... ...................45, 52
Dayton Board of Education v. Brinkman,

443 U.S. 526 (1979) (Dayton I I ) ...................  45 ,63,67,73
Edelman v. Jordan,

415 U.S. 651 (1974) ....................... ....................... 60,61,62
Evans v. Buchanan, 555 F.2d 373 (3d Cir.) cert, denied,

434 U.S. 944 (1977) (Evans V ) ................... .....................47
Evans v. Buchanan, 582 F.2d 750 (3rd Cir. 1978), cert.

denied, 446 U.S. 923 (1980) (Evans V I I I ) ...............  47, 71
Faubus v. United States, 254 F.2d 804 (8th Cir. 1958), a ff’d

sub nom. Cooper v. Aaron, 358 U.S. 1 (1958)........... 75, 77
Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) ............................................................  47
Friedman v. Fordyce Concrete, Inc.,

362 F.2d 386 (8th Cir. 1966) .............................................  48
Gilmore v. City of Montgomery,

417 U.S. 556 (1974).............‘.......................................45,47
Green v. County School Bd.,

391 U.S. 430 (1968).....................  44, 46, 48, 49, 51, 60, 66
Griffin v. County School Board of Prince 

Edward County, 337 U.S. 218 (1964).................  69, 70, 71

v



Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983).................  68
Hall v. West,

335 F.2d 481 (5th Cir. 1964) .............................................  50
Haney v. County Board of Education,

429 F.2d 364 (8th Cir. 1970)............................................. 75
Hoots v. Commonwealth of Pennsylvania,

639 F.2d 972 (3rd Cir.) cert, denied,
152 U.S. 963 (1981) (Hoots V ) .................................... 47, 50

Jenkins v. State of Missouri,
593 F.Supp. 1485 (W.D. Mo. 1984) ................... .. passim

Jenkins v. State of Missouri,
639 F.Supp. 19 (W.D. Mo. 1985) ..............................  passim

Jenkins v. State of Missouri, 807 F.2d 657 (8th Cir. 1986), 
cert, denied, 108 S. Ct. 70 (1987) (Jenkins I) -----passim

Jenkins v. State of Missouri,
672 F.Supp. 400 (W.D. Mo. 1987)..................... .. passim

Keyes v. School District No. 1,
413 U.S. 189 (1973).................................... .. 45, 46, 52

Lehew v. Brummell, 15 S.W. 765 (Mo. 1891)........................9
Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.), 

cert, denied, 469 U.S. 816 (1984) (Liddell VII) . . . passim 
Liddell v. State of Missouri,

758 F.2d 290 (8th Cir. 1985) (Liddell V I I I) ................... 73
Liddell v. Missouri,

801 F.2d 278 (8th Cir. 1986) (Liddell I X ) ................. 25, 73
Little Rock School Dist. v. Pulaski County Special 

School Dist. Nos. 87-1404 et al., slip op. at 12
(8th Cir. Feb. 9 ,1988).......................................................  70

Marhury v. Madison,
5 U.S. (1 Cranch) 137 (1803)............................................. 69

Meiner v. Missouri, 673 F.2d 969 (8th Cir.), cert, denied,
459 U.S. 909, 916 (1982)............................................. 62

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

Milliken v. Bradley,
433 U.S. 267 (1977) (Milliken I I ) ............................ passim

vi



Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 
566 S.W.2d 466 (Mo. 1978)...............................................  68

Monroe v. Bd. ofComrs.,
427 F.2d 1005 (6th Cir. 1970) ........................................... 60

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, denied,
426 U.S. 935 (1976) ...................................................  45,50

Morrilton School District No. 32 v. U.S.,
606 F.2d 222 (8th Cir. 1979) cert, denied,
444 U.S. 1071 (1980).......................................................... 22

Nelson v. Grooms,
307 F.2d 76 (5th Cir. 1962) ................................................ 50

North Carolina Bd. ofEduc. v. Swann,
402 U.S. 43 (1971)..............................................................  75

Papasan v. Allain,
478 U.S. - ,  106 S.Ct. 2932 (1986) ............................ 60, 63

Pitts v. Freeman,
755 F.2d 1423 (11th Cir. 1985)...........................................  60

Plaquemines Parish School Board v. United States,
415 F.2d 817 (5th Cir. 1969) ............................................. 70

Reed v. Rhodes,
500 F.Supp. 404 (N.D. Ohio 1 9 8 0 )..................................  68

Riddick v. School Board of City of Norfolk,
784 F.2d 521 (4th Cir.), cert, denied, 107 S.Ct.
420 (1986)........................................................................... 48

Shelly v. Kraemer,
334 U.S. 1 (1948)................................................................  16

State of Missouri ex rel. Fort Osage School District
v. Conley, 485 S.W.2d 469 (Mo. App. 1972) ...................  71

Summers v. Tice,
199 P.2d 1 (Ca. 1943).......................................................... 68

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
402 U.S. 1 (1979).......................................................  passim

Tasby v. Wright,
713 F.2d 90 (5th Cir. 1983)...............................................  57

Taylor v. Board ofEduc.,
294 F.2d 36 (2d Cir. 1961)................................................. 60

vii



United States v. Dist. of Cook County, 404 F.2d 1125
(7th Cir. 1968), cert, denied, 402 U.S. 943 (1971) ......... 60

United States v. Missouri, 515 F.2d 1365 (8th Cir.),
cert, denied, 423 U.S. 951 (1975).................  70,71,72,77

United States v. Pittman,
808 F.2d 385 (5th Cir. 1987)...................................... .. 56

United States v. United States Gypsum Co.,
333 U.S. 364 (1948) ...................................................  47,48

West Virginia State Bd. of Education v. Barnette,
319 U.S. 624 (1943)............................................................  70

Wheeler v. Durham City Bd. ofEduc.,
346 F.2d 768 (4th Cir. 1965)............................................. 60

Wright v. Council of City of Emporia,
407 U.S. 451 (1972)............................................................ 49

Other Authorities
Mo. Const, art. IX, § 1(a) (1945) ...........................................8
1847 Mo.Laws 103 ..................................................................  7
1865 Mo.Laws 170 ..................................................................  8
1889 Mo.Laws 226 .....................................................................8
1909 Mo.Laws 770, 790, 820 .............................   9
Mo. Rev. Stat. § 10632 (1939) .............................................  10
Mo. Rev. Stat. § 175.050 (1949) ........................................... 10
Mo. Rev. Stat. § 165.327 (1959)........................................... 10
Mo. Rev. Stat. § 452.1 (1959)....................................................8
Mo. Rev. Stat. § 563.240 (1959)...............................   10
Mo. Rev. Stat. § 163.087 (1986) ........................................... 64
Mo. Rev. Stat. § 164.013 (1986) ........................................... 64
Levine and Eubanks, Attracting Non-Minority Students 

to Magnet Schools in Minority Neighborhoods,
19 Integrateducation 52 (1981) ......................................  57

Restatement (Second) of Torts § 8 8 6 A .............................. 68

viii



IX



STATEMENT OF THE ISSUES
I. WHETHER THE DISTRICT COURT FINDINGS 

DEMONSTRATE THAT THE REMEDIES ORDERED 
FIT THE NATURE AND SCOPE OF THE VIOLATIONS 
AND THEIR EFFECTS AND ARE NECESSARY TO 
DESEGREGATE KCMSD.

Brown v. Board of Education, 349 U.S. 294 (1955) 
(Brown II)
Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I) 
Milliken v. Bradley, 433 U.S. 267 (1977) (.Milliken II)

II. WHETHER THE DISTRICT COURT PROPERLY 
ADOPTED PLANS TO ERADICATE THE EFFECTS 
OF THE CONSTITUTIONAL VIOLATIONS.
Griffin v. County School Board of Prince Edward 
County, 337 U.S. 218 (1964)
Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II) 
Swann v. Charlotte-Mecklenburg Board o f Education, 

402 U.S. 1 (1971)

x



IN THE

Hm trb States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 86-1934WM 
No. 86-2537WM 
No. 87-1749WM

No. 87-2299WM 
No. 87-2300WM 
No. 87-2588WM

KALIMA JENKINS, et al.,
Appellees,

vs.
STATE OF MISSOURI, etal.,

Appellants,
and

SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al, 
Appellees.

Appeals from the United States District Court for the 
Western District of Missouri, Western Division 

Honorable Russell G. Clark

STATEMENT OF THE FACTS 
I. INTRODUCTION.

The district court’s factfindings in this case1 unfolded in 
three acts — violations, effects and remedies.

1 The history of this case is set out in the 1986 en banc decision of this 
Court, Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (en banc), cert, 
denied, 108 S.Ct. 70 (1987) (Jenkins I). In summary, this Court affirmed 
the dismissal of interdistrict claims, the finding of unconstitutional 
segregation of the KCMSD and the initial phase of the plan to desegre­

1



A. Violations.
In 1984 the district court made extensive findings of fact 

establishing that the State and the KCMSD committed 
three broad constitutional violations: (1) Before 1954, the 
State required black children to attend racially segregated 
schools. The State operated and publicly identified those 
schools not simply as “for blacks only” but also as educa­
tionally inferior institutions. (2) For more than two decades 
after Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Brown I), 
the State authorized and permitted local school districts to 
maintain racially segregated schools, and the KCMSD did 
so, adhering to a conscious policy of segregated neighbor­
hood schools. With the State’s acquiesence, the KCMSD 
continued to identify the schools to which blacks were 
assigned as educationally inferior, and it adopted a series of 
policies successfully designed to encourage white parents to 
withdraw their children from those substandard schools. (3) 
Simultaneously with the other two violations, the State 
created and maintained a dual housing market in the Kan­
sas City metropolitan area that tunneled thousands of 
black families moving to the multi-district area into the 
KCMSD alone.2 As a result, the district court found, the 
number and percentage of black children the district was 
committed to educating in separate and inferior schools 
swelled — as, therefore, did the number and percentage of 
the district’s schools identified as black and inferior.

gate the district. Thereafter, the district court entered orders compelling 
KCMSD to implement, and the State and KCMSD to fund, plans for 
magnet schools and capital improvements in the school district. Jenkins, 
639 F.Supp. at 19, 46-56 (W.D. Mo. 1985), and Order, November 12,1986. 
Those orders, and the orders by which they are funded, Order, July 6, 
1987 and Jenkins, 672 F.Supp. 400 (W.D. Mo. 1987), are the subjects of 
these appeals by the State.

2 The five-county Kansas City metropolitan area is served by thirty- 
two school districts (twenty-two in Missouri, ten in Kansas), of which 
thirteen lie wholly or partly within the City of Kansas City, Missouri.

2



B. Effects.
In a series of opinions in 1984-1987, the district court 

identified the effects of the violations previously found. The 
district court found effects falling into four major 
categories.

1. Inferior education. The district court first found that 
the State and the KCMSD subjected generation after gener­
ation of black children to an inferior education in schools 
that were publicly identified as substandard.

2. Segregation o f individual schools, then the system 
as a whole. The district court next found that the State 
and the KCMSD tunneled black children into and propelled 
white children away from an increasing number and per­
centage of KCMSD schools that were intentionally main­
tained and identified as “for blacks” and inferior. As a 
majority of the district’s schools fell into that category, the 
district itself became identified as black and inferior, and 
whites deserted the system as a whole.

3. Underfunding. Having deserted the racially iden­
tified and educationally substandard school system, the dis­
trict court found, the white majority of taxpayers in Kansas 
City simultaneously withdrew their financial support from 
the schools, refusing without exception, in 14 levy and bond 
elections between 1969 and 1987, to provide needed funding 
to the district.

4. Physical deterioration. As a consequence of the viola­
tion’s other effects, the district court determined, the physi­
cal plant of the underfunded district “literally rotted.”3

C. Remedy.
Finally, in the same series of 1984-1987 orders, the dis­

trict court devised a four-part remedy that tracked the four 
categories of unconstitutional effects of the violations it had 
found.

3 Jenkins, 672 F.Supp. at 411.

3



1. Educational improvements. The court began by 
ordering a series of educational enhancements designed to 
relieve black children of a century of inferior education. The 
State challenged that portion of the remedy in an earlier 
appeal, and this Court en banc unanimously affirmed, 
insisting that the remedy be “fully funded.” Jenkins I, 807 
F.2d at 686.

2. Desegregation o f the district. Next, the district court 
addressed the violations’ segregative effects, ordering a 
comprehensive program of magnet schools designed volun­
tarily to attract non-minority children back to the district 
they previously had abandoned. Recognizing that the 
State’s prior identification of the district as black and 
inferior had directly led to its abandonment by whites, the 
district court concluded that only by insisting upon consis­
tently high quality schools could the segregative effects of 
the State’s racial discrimination be reversed.

3. Capital improvements. The district court turned next 
to the KCMSD’s “depressing” school facilities. Jenkins, 672 
F.Supp. at 403. Finding that the educational enhancement 
and desegregative components of the remedy could not suc­
ceed unless the starkly visible vestiges of decades of segre­
gation were eradicated from the district’s physical plant, the 
district court identified and ordered a series of essential 
repairs and reconstruction projects.

4. Essential funding. The district court turned finally 
to the underfunding effect of the constitutional violations. 
In the wake of four more unsuccessful levy and bond elec­
tions, the court began by requesting the State legislature to 
remove the statutory obstacles to the KCMSD’s ability to 
raise the revenues needed to “fully fund”4 5 the other three 
components of the remedy.6 When the State legislature

4 Jenkins I, 807 F.2d at 686.
5 The State, by its constitution and laws, prevents KCMSD from 

obtaining revenue from any tax source other than the property tax and
allows revenue from the property tax to be increased only by a two-

4



refused, the district court concluded that the en banc man­
date of this Court left it with “no choice”* 6 but to order what 
the State could — but had refused to —■ accomplish volun­
tarily. The district court accordingly ordered an increase of 
the property tax levy for the KCMSD and the collection of 
additional funds through a tax on income in the community 
served by the district’s schools.

In its brief, the State ignores the first two acts in which 
this case has unfolded — the acts revealing the State’s will­
ful role in fostering racial discrimination, racial hostility, 
and stubborn racial separation. Instead the State focuses in 
isolation on the final, remedial, act.7

As this Court is well aware, however, school desegrega­
tion remedies may neither be drawn nor reviewed in isola­
tion from the violations and consequences that compel the 
remedy. Rather, the nature and scope of the violation and 
its effects determine the nature and scope of the remedy. 
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 
16 (1971). Because appellants’ brief leaves out the critical 
first two-thirds of the story, the appellee class of KCMSD 
school children has no choice but to begin at the beginning

thirds vote of its electorate, both to issue bonds and, absent 
reassessment measures, to raise its levy.

6 Jenkins, 672 F.Supp. at 411.
7 One result of the State’s excision of two-thirds of the history of the 

case is an attempt to make the District Judge, not itself, the villain of 
the story. As evidenced by the prior en banc appeal, the district court 
has by no means afforded plaintiffs the full measure of relief they have 
sought. Nonetheless, the plaintiffs consistently have recognized the 
extensive, careful and conscientious efforts the District Judge has 
devoted to a difficult case for so long and register a protest at the outset 
about the State’s caustic remarks about Judge Clark. See, e.g., State’s 
Brief at 47 (lacking expertise the district court “seeks to remake the 
KCMSD according to a dubious and untried theory”), at 19 (“the district 
court has simply lost sight of the proper role of a federal judge”), or at 45 
(alleging the district court failed “to distinguish between a judicial pref­
erence and a constitutional necessity”).

5



and to lay out carefully the facts and consequences of the 
State’s intentional racial discrimination tha t the district 
court found and that the Constitution says must be 
remedied.8

Notwithstanding the State’s assertions, the district court 
no more constructed its remedy determinations out of whole 
cloth than it did its detailed violation and effect findings. 
Rather, the district court heard evidence during 93 days of 
trial on the constitutional violation and its effects and 29 
days of hearings on the remedy, supported by tens of thou­
sands of pages of documents on remedies alone. What fol­
lows, then, is a summary of the district court’s violation, 
effects and remedy findings and the extensive evidence on 
which those findings are based.

II. NATURE AND SCOPE OF THE VIOLATIONS.
A. Introduction and Summary.
In its opinion detailing the constitutional violations, Jen­

kins, 593 F.Supp. 1485 (W.D. Mo. 1984), and in its sub­
sequent orders, the district court found pre- and post-1954 
violations by KCMSD and the State. The pre-1954 violations 
consisted of the concentration of blacks in KCMSD and 
establishment and operation of a dual system of schools 
within KCMSD.9 Some schools were reserved exclusively for 
whites, others for blacks.10 Those schools reserved for blacks 
were inferior and as a result, the district court found, the 
State induced, and placed its “imprimatur” on, the assump­
tion that black schools are by nature inferior.11 The post- 
1954 violations by KCMSD and the State were the conver­

8 Because in neither this appeal nor the last has the State challenged 
either the district court’s violation or effects findings, those findings, 
summarized below, are law of the case.

9 Jenkins, 593 F.Supp. at 1490-91 (all school districts in Missouri par­
ticipated in a system of segregated schools).

10 Id. at 1492.
11 Id. at 1492,1503.

6



sion of the school district from a system of dual schools, a 
minority of which were operated for blacks and were 
inferior, into an entire system of predominantly black and 
inferior schools. This transformation was caused by inten­
tionally segregative school and housing actions that tun­
neled black families into the district and propelled white 
families out of the district12 and by acts and failures to act 
of the State and KCMSD in violation of their affirmative 
duties to dismantle the effects of their pre-1954 discrimina­
tion.13

The following discussion delineates the district court’s 
violations findings and identifies the portions of the record 
that support the findings.

B. Pre-1954 Requirem ent That Blacks Attend 
Segregated and Inferior Schools in KCMSD.

In its violation decision, Jenkins, 593 F.Supp. 1485, the 
district court made the following findings:

The State admitted, and the Court judicially 
noticed tha t Missouri mandated segregated 
schools for black and white children before 1954 ..
. . This historical background is recounted in more 
detail by the court in Adams v. United States, 620 
F.2d 1277,1280-81 (8th Cir.), cert, denied, 449 U.S.
826,101 S.Ct. 88, 66 L.Ed.2d 29 (1 9 8 0 ) .. . .14

Each school district in Missouri participated in 
this dual school system before it was declared

12 Id. at 1494.
13 Id. at 1504-05.
14 In the referenced passage from Adams, this Court found that:

[plrior to the Civil War, a Missouri statute provided: No per­
son shall keep or teach any school for the instruction of 
negroes or mulattoes, in reading or writing, in this State. Act 
of February 16, 1847, § 1, 1847 Mo.Laws 103. Beginning in 
1865, the Missouri General Assembly enacted a series of 
statutes requiring separate public schools for blacks. See,

7



unconstitutional in Brown I. Districts with an 
insufficient number of blacks to maintain the 
state-required separate school made interdistrict 
arrangements to educate those children. Undeni­
ably, some blacks moved to districts, including the 
KCMSD, that provided black schools.

Jenkins, 593 F.Supp. at 1490.
The KCMSD did not mandate separate schools for 
blacks and whites. The people of the State of Mis­
souri through constitutional provision and the 
General Assembly through legislative enactment 
mandated that all schools for blacks and whites in 
the State were to be separate. There is no room for 
doubt but that the State of Missouri intentionally 
created the dual school system.

Id. at 1503-04.

The record below includes extensive evidence supporting 
these findings. As the evidence reveals, Missouri’s history of 
segregating blacks into separate schools by law began as 
the Civil War ended. Id. Missouri’s 1865 constitution per­
mitted separate schools based on race, and its 1875 constitu­
tion required racial separation in provisions tha t remained

e.g., Act of February 17,1865, § 13,1865 Mo.Laws 170; Act of 
June 11, 1889, § 7051a, 1889 Mo.Laws 226. This segregated 
system was incorporated into the Missouri Constitution of 
1945, which specifically provided that separate schools were 
to be maintained for “white and colored children.” See 
Mo.Const, art. IX, § 1(a) (1945). Although a 1954 Attorney 
General opinion declared this provision unenforceable fol­
lowing Brown I, it remained a part of the state constitution 
until repealed in 1976. Statutes implementing the constitu­
tionally mandated segregation provided for separate fund­
ing, separate enumerations, separate consolidated “colored” 
school districts, and the interdistrict transfer of black stu­
dents. Most of these statutes were not repealed until 1957. 
See Act of July 6,1957, § 1,1957 Mo.Laws 452.

Adams v. United States, 620 F.2d 1277,1280 (8th Cir. 1980).

8



in the document until their repeal in 1976. In 1889, the 
State legislature made it a criminal offense for “any colored 
child to attend a white [public] school,” 1889 Mo. Laws 226, 
and in 1909 broadened the offense to include private 
schools. 1909 Mo. Laws 770, 790, 820. Before 1954, Missouri 
strictly enforced its laws mandating school segregation. See 
Lehew v. Brummell, 103 Mo. 546,15 S.W. 765 (1891). In 1910, 
the Attorney General threatened to prosecute school offi­
cials operating integrated schools. P.Ex. 178; Tr. 4,225, 
14,813. In 1948 the State Board of Education invoked its “in­
herent authority” to withdraw funding from a school dis­
trict violating Missouri’s segregation provisions. P.Exs. 
2222-25.15

Local officials followed the lead of the State. In 1914, the 
Kansas City Council made it illegal to establish any “school 
. . . for . . . persons of African descent” within one-half mile 
of a school for “persons not of African descent” in order to 
avoid attracting black residents to white neighborhoods. 
P.Ex. 124-A. The Kansas City planning department for 35 
years before 1955 divided the city into “white” and “colored 
districts” defined by their proximity to racially identified 
schools. P.Exs. 282-B, 288-89, 306-07.

Whereas the Kansas City School District maintained a 
comprehensive system of white schools (70 in 1954) and 
black schools (16 in 1954),16 the districts surrounding the 
KCMSD operated a haphazard system for blacks of “no 
schools, poor schools, a system where [tuition and] trans­
portation was not provided quite often.” Tr. 4,328. The 
uneven availability of segregated schools in the area before 
1954, the district court explicitly found, was among the rea­

15 Undated transcript and exhibit citations are to the record of the vio­
lation trial and were before this Court in the 1985 appeals, Nos. 85- 
1765WM, 1949WM and 1974WM. Citations to the record of the remedy 
proceedings include the date of the hearing to distinguish overlapping 
page and exhibit numbers.

16 KCMSD Ex. K-2.

9



sons “some blacks chose to move into the KCMSD.” Jenkins, 
593 F.Supp. at 1490. In particular, the district court found 
that, as tens of thousands of blacks migrated to the Greater 
Kansas City area from the Deep South in the decades 
before Brown I, the “availability of schools would influence, 
more specifically, what housing choice would be made 
within the city.” Id.

The district court noted, as has this Court on previous 
occasions,17 that the State combined school segregation with 
numerous other discriminatory actions against blacks.18 
The district court explicitly found that such actions by the 
State not only separated the races, but in addition iden­
tified the institutions and neighborhoods to which blacks 
were relegated — indeed, they identified blacks themselves 
— as “inferior.” The district court specifically found that the 
“inferior education indigenous of the state-compelled dual 
system has lingering effects in the Kansas City, Missouri 
School District,” including a “general attitude of inferiority 
among blacks [which] produces low achievement [and] 
which ultimately limits employment opportunities and 
causes poverty.” Id. at 1492.

Not only blacks were affected by their enforced separation 
from the rest of society and by the substandard nature of 
the schools and neighborhoods to which they were confined. 
In addition, the court found, the State’s segregative actions 
“had the effect of placing the State’s imprimatur on racial

17 See Adams v. United States, 620 F.2d 1277,1280 (8th Cir. 1980).
18 The State “mandated separate schools for blacks and whites; it 

established separate institutions for teaching black school teachers, 
§ 10632 R.S.Mo. (1939); it established and maintained a separate institu­
tion for higher education for blacks at Lincoln University, § 175.050 
R.S.Mo. (1949); it provided that school boards in any town, city or con­
solidated school district could establish separate libraries, public parks 
and playgrounds for blacks and whites, § 165.327, R.S.Mo. (1959); it 
made it a crime for a person of Vs Negro blood to marry a white person, 
§ 563.240 R.S.Mo. (1959); and its courts enforced racially restrictive 
covenants.” Jenkins, 593 F.Supp. at 1503.

10



discrimination,” and “created an atmosphere in which the 
private white individuals could justify their bias and 
prejudice against blacks” and their institutions. Id. at 1503. 
As a result, “[a] large percentage of whites do not want 
blacks to reside in their neighborhood” or to attend their 
schools, and “a large percentage of blacks do not want to 
reside . . .  [where] they are not wanted.” Id.
C. The State’s and KCMSD’s Continued Commitment 

after Brown to Segregated and Inferior 
Schools for Blacks.

In its various decisions, the district court found, inter 
alia, that:

[Missouri’s segregation] provisions were not 
immediately and formally abrogated after the 
Brown decision was announced . . . .  This histori­
cal background is recounted in more detail by the 
courts in Adams v. United States, 620 F.2d 1277, 
1280-81 (8th Cir.), cert denied, 449 U.S. 826, 101 
S.Ct. 88, 66 L.Ed.2d 29 (1 9 8 0 ) .. . .19

Jenkins, 593 F.Supp. at 1490.
[After Brown], the District [KCMSD] chose to 
operate some completely segregated schools . . . .
The Court finds the District did not and has not 
entirely dismantled the dual school system. Ves­
tiges of that dual system still remain.

Id. at 1492-93.

19 In the referenced passage from Adams, this Court found that prac­
tices in St. Louis almost identical to those adopted by KCMSD, and obvi­
ously without objection from the State, caused “pre-Brown white schools 
located in the black neighborhoods [to] turn[] virtually all black 
immediately after the [neighborhood school] plan was implemented.” 
Adams v. United States, 620 F.2d 1277, 1281 (8th Cir. 1980). See also id. 
at 1288 (“The Board’s steadfast adherence to a student assignment pol­
icy which did not desegregate the schools and its use of intact busing, 
school site selection, block busing, permissive transfers, and faculty 
assignments have preserved segregation in the school system.”)

11



[T]he Court finds the use of [KCMSD’s post- 
Brown policies] did not aid to integrate the Dis­
trict; to the contrary [they] allowed attendance 
patterns to continue on a segregated basis . ..

The Court finds the District’s [post-1954] use of 
intact busing had a segregative intent and effect.

Id. at 1494.
[T]he State as a collective entity cannot defend its 
failure to affirmatively act to eliminate the struc­
ture and effects of its past dual system on the 
basis of restrictive state law. The State executive 
and its agencies as well as the State’s General 
Assembly had and continue to have the constitu­
tional obligation to affirmatively dismantle any 
system of de jure segregation, root and branch.
This obligation is parallel with the obligation of 
the KCMSD. This case is before this Court simply 
because the KCMSD and the State have defaulted 
in their obligation . ..

Id. at 1505.

These parallel findings are supported by extensive sub­
sidiary findings and record evidence. At the time of Brown 
I, KCMSD operated a fully segregated system of schools 
with a small minority of substandard schools reserved for 
blacks and the rest reserved for whites. Notwithstanding 
the mandate of Brown I  and Brown II, the district court 
found, the State did not set about eliminating segregation 
and its effects. Instead the State invited local school dis­
tricts to maintain racial segregation, and the KCMSD did 
just that, committing itself until the mid-1970’s to a policy 
under which some schools were predominantly black, the 
rest were nearly all white, and white students in predomi­
nantly black zones were invited to transfer out to white 
schools.

Until 1954, Missouri had assiduously enforced segrega­

12



tion through its civil, criminal and administrative laws, 
even invoking its “inherent authority” to cut off state funds 
for education to assure continued segregation. P.Exs. 2222- 
25. Immediately after Brown I, however, Missouri washed 
its hands of the entire m atter of segregation and its effects. 
On June 30, 1954 the Attorney General of Missouri issued 
an opinion stating that local school districts “may . . . per­
mit ‘white and colored’ children to attend the same schools,” 
but leaving districts free to decide “whether [they] must 
integrate.” P.Ex. 2322 (emphasis added). Thereafter, Mis­
souri consistently has insisted tha t school desegregation is 
a m atter exclusively for local control. P.Ex. 465.20 As the dis­
trict court stated, it has “not been informed of one affirma­
tive act voluntarily taken by the Executive Department of 
the State of Missouri or the Missouri General Assembly to 
aid a school district tha t is involved in a desegregation pro­
gram.” Order, November 12, 1986 at 7. Missouri left to 
KCMSD the entire responsibility for eliminating the effects 
of segregation Missouri had compelled KCMSD to imple­
ment.21

After Brown v. Board of Education, 349 U.S. 753 (1955) 
(Brown II), KCMSD intentionally operated its schools on a 
neighborhood school basis with attendance boundaries 
drawn to conform to racially segregated neighborhoods. 
Jenkins, 593 F.Supp. at 1493.22 The district court found that

20 Compare P.Ex. 2463 (December 12,1973 letter from State Education 
Commissioner Mallory to State Board of Education contrasting public 
position that the State “really cannot do anything about” segregation in 
the Kinloch case with his “true” opinion that “the General Assembly 
could do something about this entire matter of having segregated 
schools in Missouri. . . ”).

21 “The KCMSD did not mandate separate schools for blacks and 
whites . . . .  [T]he State of Missouri intentionally created the dual school 
system.” Jenkins, 593 F.Supp. at 1503-04.

22 In 1956, after fully implementing its neighborhood plan, the 
KCMSD enumerated 9,193 black and only 150 white students in schools 
more than 90% black and only 343 black and 40,779 white students in 
schools less than 10% black. KCMSD Ex. 2.

13



“adoption of the neighborhood school concept did not sub­
stantially change the segregated school system.” Id. at 1493. 
Rather, the effect of the district’s attendance zone policies 
was to maintain two separate school systems within 
KCMSD, segregated by race. Most particularly, until 1976, 
school attendance boundaries in KCMSD did not cross 
Troost Street for its entire 80 block pathway through the 
district. Tr. 3,311-12, 9,362-66, 10,385-86. Two sets of high 
schools were located on either side of Troost, each segre­
gated by race — blacks to the east, whites to the west — 
and each with its own feeder junior high and elementary 
schools. KCMSD Ex. 1.

Likewise, for nearly 15 years after Brown I, KCMSD 
adopted hundreds of small attendance boundary changes 
which, in almost all cases, kept whites and blacks separate 
as the black population grew. Stipulation of Fact, February 
21, 1984. The district court found that these “attendance 
zone changes did not achieve system-wide integration.” Jen­
kins, 593 F.Supp. at 1494.

Segregation and the identification of blacks and the 
schools they attended as inferior were explicitly continued 
until 1965 through the district policy of intact busing — 
busing “entire classrooms of black students to predomi­
nantly white schools but” keeping “them as an insular 
group, not allowing them to be mixed with the receiving 
population.” Id. The district court found that this intact 
busing had “segregative intent and effect.” Id.

The district court found that “inferior education” lingered 
in the predominantly black schools in KCMSD after 1954. 
Id. at 1492. See also Tr. 3,013-16. The record demonstrates 
precisely how the district’s educational policies fostered the 
continuing reality and perception of black schools as 
inferior. For example, when HEW forced KCMSD to inte­
grate its teaching staff, the district transferred its best and 
most experienced black teachers to white schools, leaving 
less capable teachers in black and racially changing

14



schools. Tr. 3,298-99, 3,304-06. Likewise, as schools became 
identified as black, college preparatory classes, especially 
in the sciences, were discontinued and replaced by voca­
tional courses such as “janitorial services.” Tr. 7,018-21, 
7,306-20, 7,344, 7,338-41, 8,624-25, 8,969-70, 9,419-20,15,147, 
15,149-50; Stipulation, February 21, 1984 at 75. Once again, 
governmental actions “had the effect of placing the State’s 
imprimatur on racial discrimination” against blacks and 
the schools in which they predominated and “created an 
atmosphere in which private white individuals could justify 
their bias and prejudice against blacks” and their institu­
tions. Jenkins, 593 F.Supp. at 1503.

As the black population within previously white atten­
dance zones grew,23 and as the education provided by the 
schools there deteriorated, KCMSD adopted the use of 
optional attendance zones which permitted white students 
and their parents to choose between two schools — invari­
ably the one in their neighborhood which was predomin­
antly black and another somewhere else that was predo­
minantly white. Stipulation, February 21, 1984; KCMSD 
Ex. 2. Together with a liberal transfer policy, used most fre­
quently by whites, the district’s assignment policies invited 
and encouraged white children living in racially transi­
tional neighborhoods to “transfer within the district to whi­
ter schools.” Jenkins, 593 F.Supp. at 1493. The district court 
found that “the use of these optional zones, coupled with the 
liberal transfer policy, did not aid to integrate the district; 
to the contrary, it allowed attendance patterns to continue 
on a segregated basis.” Id. at 1494.

D. The Creation and M aintenance of an Areawide 
Racially Segregated H ousing Market.

The State’s and KCMSD’s pre- and post-1954 school 
segregation violations coincided with a third, housing, vio­

23 The State’s school and housing violations, as detailed in the follow­
ing section, caused the black population to expand in this segregated 
manner.

15



lation which “caused the [KCMSD’s] public schools to swell 
in black enrollment,” at the same time as it made “whites 
move[] out” of the increasingly minority district to the sub­
urbs. Id. at 1491,1494.

The district court found and the record demonstrates that 
the State’s segregated dual housing market and its 
statewide system of segregated schools, id. at 1491, meant 
that blacks would “move into the KCMSD,” id. at 1490, 
choose housing based on the “then availability of schools,” 
id., and reside in neighborhoods characterized by an “inten­
sity of segregation,” id. at 1491, which had long-lasting and 
virulent demographic effects. Among the “positive actions” 
of the State “which were discriminatory against blacks,” the 
state enforced racially restrictive covenants and “created an 
atmosphere in which . . . private white individuals could 
justify their bias and prejudice against blacks 
. . . .  [with a continuing] significant effect. . .  in the Kansas 
City area.” Id. at 1503.

“Racially restrictive covenants were intended to cause 
housing segregation” and “were enforced by the courts of 
Missouri until after the case of Shelly v. Kraemer, 334 U.S. 
1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948),” i.e., until the Missouri 
case of Barrow v. Jackson, 346 U.S. 249 (1953). Jenkins, 593 
F.Supp. at 1497. Recorded on “a large proportion of the resi­
dential land uses in 1947,” Tr. 13,024, these covenants, like 
segregated schools, tunneled in-migrating blacks into the 
black-concentrated areas near KCMSD’s segregated 
schools. Tr. 14,878-79. Their widespread adoption of racially 
restrictive covenants “limited black housing supply, . . . con­
fined [blacks] to older areas .. . [and] resulted in overcrowd­
ing, high density, [and] deteriorated conditions” in the area 
around KCMSD’s all-black schools, contributing to white 
flight from and avoidance of those areas, and, ultimately, 
out of the KCMSD itself. Tr. 13,033-35, cited in Jenkins, 593 
F.Supp. at 1491.

The district court found that the State “encouraged racial

16



discrimination by private individuals in the real estate, 
banking and insurance industries.” Id. at 1503. This dis­
crimination consisted in large part of blockbusting, steering 
and red-lining, by which blacks “were steered or channeled” 
into areas surrounding or immediately to the south and 
east of KCMSD’s all-black schools. Tr. 12,339, cited in Jen­
kins, 593 F.Supp. at 1491. Together with the liberal transfer 
and optional school zone policies, the attendance boundary 
and curriculum changes and the teacher assignment prac­
tices, supra at Section II.C., these state housing violations 
caused a “large number” of whites to flee changing neigh­
borhoods in the KCMSD for the surrounding school dis­
tricts and private schools. Order, August 25,1986 at 1.

III. THE FOUR BASIC EFFECTS OF THE 
VIOLATIONS.

The district court found tha t the State’s and KCMSD’s 
violations had four systemwide effects, discussed below.

A. Relegation of an Expanding Black Population to 
an Expanding Plurality of Schools Identified by 
the State as Black and Inferior.

The district court found that “the state-compelled dual 
school system” in KCMSD caused “inferior education” with 
“lingering effects.” Jenkins, 593 F.Supp. at 1492. Prior to 
1954, the State’s provision of inferior schools for blacks in 
the Kansas City area consisted of denying blacks outside 
KCMSD a high school education and providing, intermit­
tently, only a few elementary schools, all of which were 
inadequate. P.Exs. 114, 210. While the schools KCMSD pro­
vided for its black students were better than those in sur­
rounding areas, e.g., Tr. 1,792-93, 1,905-06, 3,534-38, they 
nonetheless were generally “quite inferior” to white schools. 
Tr. 16,835, 818-24,1,743-46.

KCMSD’s identification of black schools as inferior con­
tinued after 1954. Downgraded curriculum, assignment of 
inexperienced teachers, the district’s failure to take positive

17



steps to desegregate previously black schools, and stig­
matizing attendance policies that designated increasing 
numbers of schools with blacks as places from which white 
children should escape, denigrated the quality of the 
schools to which blacks were assigned and perpetuated 
their labeling as inferior. See supra at Section II.C. As the 
district court found, education in KCMSD was “bogged 
down” by segregation. Jenkins, 639 F.Supp. at 28 (quoting 
the State’s publication, Reaching for Excellence, KCMSD 
Ex. K-75.

Simultaneously, the court found, the State’s enforcement 
of restrictive covenants before 1954 and its encouragement 
of redlining, blockbusting and steering after 1954 caused 
KCMSD’s schools to swell in black population. As the black 
“community expanded in a southeast direction so did the 
black schools.” Jenkins, 593 F.Supp. at 1492. For example, 
Central High School, all-white in 1954, became 97% black in 
1961; Southeast, all-white in 1954 and 92% white in 1963, 
became 98% black in 1973. KCMSD Ex. 2. During the same 
period, KCMSD schools not designated for blacks remained 
all-white. As late as 1974, 80% of all blacks in the districts 
attended schools that were 90% or more black. Id. at 1493. 
As a result, the number and percentage of KCMSD schools 
identified as black and inferior burgeoned in the decades 
after Brown. Thus, while in 1956, only 16 (18%) of KCMSD’s 
schools were majority black, by trial that number had risen 
to 45, and the proportion of such schools was 63%. KCMSD 
Ex. K-2.

B. Abandonment of KCMSD by Whites Causing 
Conversion of the District to a System Identified  
as Black and Inferior.

The district court found that “inferior education” was a 
direct result of segregating students in KCMSD, Jenkins, 
593 F.Supp. at 1492, quoting Brown I, and affected the 
“hearts and minds [of school children] in a way unlikely 
ever to be undone.” Brown /, 347 U.S. at 494. The district

18



court found segregated schools to cause an “attitude of 
inferiority among blacks [which] produced low achievement 
[and] which ultimately limits employment opportunities 
and causes poverty.” Jenkins, 593 F.Supp. at 1492.

The district court also found tha t the combined effects of 
operating KCMSD’s black schools for a century as educa­
tionally inferior and of causing the number and percentage 
of such schools to expand after 1954 were demographically 
devastating to the district. In the first place, the State’s and 
KCMSD’s violations “created an atmosphere in which the 
private white individuals could justify their bias and 
prejudice against blacks” and inferior black schools. Id. at 
1503. “A large percentage of whites do not want blacks to 
reside in their neighborhood” or to attend their schools. Id. 
As a direct result, the district court repeatedly found, the 
invidiously motivated operation of an increasingly large 
number and percentage of KCMSD’s schools as black and 
inferior “led to white flight from the KCMSD to suburban 
districts, a large number of students leaving the schools of 
Kansas City and attending private schools.”24

C. Taxpayer Abandonment o f and Refusal to Fund 
Inferior Schools.

The district court next pointed to “the detrimental effects 
that segregation has had on this school district’s ability to

24 Order, August 25, 1986 at 1. See also Jenkins, 672 F.Supp. at 412 
(“abundance of evidence” of white flight to the suburbs); 593 F.Supp. at 
1494 (as schools in an area became black “whites moved out” to the sub­
urbs). The extent to which the KCMSD had become a system of schools 
for blacks is indicated by comparing the district to those surrounding it. 
At the time of trial, 87% of the black students in the Kansas City met­
ropolitan area attended KCMSD schools, while 89% of the white stu­
dents were in the SSDs. KCMSD was 68% black and the SSDs were 
about 5% black at the time of trial. P.Ex. 53-G. The racial concentration 
within KCMSD is further exemplified by teacher data. At the time of 
trial, 96% of the area’s minority teachers worked in KCMSD as did 100% 
of the minority counselors and 99.5% of the minority school adminis­
trators. See also P.Ex. 721-G.

19



raise adequate resources.” Jenkins, 639 F.Supp. at 41. 
Uncontroverted evidence before the district court estab­
lished that, as a result of the constitutional violations, 
KCMSD since 1970 has been a majority white school district 
measured by its resident or voting population, but a two- 
thirds to three-fourths black school district measured by its 
student body. White parents with children (in most areas, a 
mainstay of tax support for the public schools) were driven 
from the district to the suburbs and to private schools to 
avoid what the State and KCMSD had transformed into 
segregated schools publicly identified as inferior. The result 
was a systematic refusal by taxpayers — dating from pre­
cisely the moment when the school district became majority 
black — to give their approval, as required by state law, to 
any levy increases or bond issues.25 This and other evidence 
convinced the district court that the constitutional viola­
tions “contributed to an atmosphere which prevented the 
KCMSD from raising the necessary funds to maintain its 
schools.” Jenkins, 672 F.Supp. at 403.26

D. D e terio ra tio n  of th e  Physical P lan t.
Chief among the “detrimental effects tha t segregation 

has had on this school district’s ability to raise adequate 
resources,” the district court determined, was the deteriora­
tion on a massive scale of KCMSD’s physical plant. Jenkins,

25 See, e.g., Tr. 22,983 (black wards tended to give highest voter per­
centages in favor of revenue measures); Tr. August 6,1987 at 567-91, 599 
(segregation polarized voting on racial lines; school board unable to pass 
revenue measures because of segregation and its aftermath; district in 
desperate financial condition, furloughed 450 teachers, stopped repair­
ing buildings; quality of education declined; white enrollment declined); 
Hamann Affidavit, Exhibits B and C of Attachment 2, KCMSD Motion 
for Court Order Enjoining Proposition C Levy Rollback (ten of twenty- 
four wards in KCMSD are predominantly black and in February, 1986 
levy election accounted for 23% of the votes cast, predominantly white 
wards accounted for 62% and four wards with substantial populations of 
both blacks and whites accounted for 15%).

26 See also Order, November 12,1986 at 4.

20



639 F.Supp. at 39-41. Those deteriorated conditions, the 
court found, consist of safety and health hazards, impair­
ments of the educational environment and functional 
impairments which cause problems including “extremes of 
heat and cold due to faulty heating systems, peeling paint, 
broken windows, odors resulting from inadequate and 
deteriorating ventilation systems, improper lighting,” as 
well as inadequate space for classrooms, libraries, resource 
rooms, and storage rooms. Id. at 39-40.

As the district court also found, the four effects of the vio­
lations replicate themselves: the physical deterioration of 
the schools further diminishes educational quality, which, 
in turn, causes additional white flight, additional erosion in 
taxpayer support, and additional deterioration of the 
schools.27

IV. THE REMEDIES FOUND NECESSARY TO
ELIMINATE THE EFFECTS OF THE VIOLATIONS.

As it began the process of issuing orders to remedy the 
violations it had found, the district court carefully laid out 
the legal standards it would follow in devising a remedy. 
The district court noted that in school desegregation cases 
“the scope of the remedy is determined by the nature and 
extent of the constitutional violation.”28 The district court 
further held tha t the goal of a remedy is to prohibit new 
violations and eliminate the continuing effects of prior vio­
lations and tha t in fashioning remedies the court must be 
guided by equitable principles.29 The district court set as its 
goal the “elimination of all vestiges of state imposed segre-

27 Underfunding and the resulting deteriorated school facilities “ad­
versely affect[] the learning environment and . . . discourage parents 
who might otherwise enroll their children”. See Jenkins, 639 F.Supp. at 
39.

28 Id. at 23 (citing Milliken v. Bradley, 418 U.S. 717, 744 (1974) (.Milli- 
ken I)).

29 Id

21



gation” using its broad equitable powers limited by:
the nature and scope of the constitutional viola­
tion, the interests of state and local authorities in 
managing their own affairs consistent with the 
constitution, and ensuring 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.

Id. (citing Morrilton School District No. 32 v. United 
States, 606 F.2d 222, 229 (8th Cir. 1979), cert, denied, 444 
U.S. 1071 (1980)).

Guided by these principles, the district court ordered a 
remedy for the pervasive effects of intentional segregation 
in four stages: To remedy inferior education, a program of 
educational improvements was ordered. To end racial isola­
tion and attract white students back to KCMSD’s schools, 
the court ordered the district to convert to a system of mag­
net schools supplemented by a voluntary interdistrict trans­
fer program for students in any surrounding district that 
will cooperate. To repair the deteriorated physical plant, the 
district court ordered a capital improvement program. And 
to reverse twenty years of financial neglect and assure the 
viability of the rest of the remedy, the court ordered funding 
measures to enable KCMSD to finance its share of the 
remedial obligations.

A. Educational Improvements to Remedy Inferior
Education

The district court designed its first remedial order to 
eliminate the first of the major effects of the constitutional 
violations — inferior schools — and to help eliminate the 
second — racial isolation and white abandonment of the 
KCMSD. That order, which this Court affirmed and ordered 
fully funded, Jenkins I, 807 F.2d at 686, encompassed a 
comprehensive program of educational improvements that 
the district court concluded were necessary to eliminate the

22



“inferior education indigenous of the state-compelled dual 
school system” in KCMSD, Jenkins, 593 F.Supp. at 1492; to 
remedy the “system wide reduction in student achievement 
in the schools of the KCMSD,” Jenkins, 639 F.Supp. at 24; 
and to “restore the victims of discriminatory conduct to the 
position they would have occupied in the absence of such 
conduct [violating the constitution].” Id. at 23 (citation 
omitted). The district court also found tha t regaining and 
maintaining a “quality education program . . .  could serve to 
assist in attracting and maintaining non-minority student 
enrollment.” Id. at 27.30

B. Magnet Schools to End Racial Isolation.
The district court next turned to the segregation and 

white abandonment effects of the violations. Finding that 
magnet schools could assist in “expanding desegregative 
educational experiences” for KCMSD students, id. at 34, 
the court ordered the preparation of a magnet school plan 
and budget. Plaintiffs, of course, had long advocated a man­
datory interdistrict remedy, in part because such a remedy 
easily and inexpensively could have achieved a system of 
desegregated, 25% minority schools throughout the met­
ropolitan community. Because interdistrict relief was ruled 
out by the district court and this Court, plaintiffs assisted 
the KCMSD in the preparation of a long range magnet

30 For instance, with respect to the reduced class sizes, the district 
court found that “achieving reduced class size is an essential part of any 
plan to remedy the vestiges of segregation in the KCMSD” by assisting 
“the KCMSD in implementing the quality education components” in the 
desegregation plan and by increasing “the likelihood that the KCMSD 
could maintain and attract nonminority enrollment in the future.” Jen­
kins, 639 F.Supp. at 29. Similarly, the district court found that the full 
day kindergarten program would both:

provide remediation to those who are victims of past segre­
gation, [and] will also assist the school district in maintain­
ing and attracting desegregated enrollment and providing 
integrative experiences at an early age.

Id. at 31.

23



school plan believing it to be the best remaining alternative 
for integrating KCMSD. Tr. September 15,1986 at 19-26, 43. 
The State failed either to contribute to the KCMSD’s plan­
ning process or to submit a magnet plan of its own.

Based on an extensive record the district court ordered 
the “implementation of the [KCMSD’s] proposed magnet 
school plan as a fundamental component of its overall 
desegregation remedy,” Order, November 12, 1986 at 4, and 
later found the “magnet school plan is crucial to the success 
of the Court’s total desegregation plan.” Jenkins, 672 
F.Supp. at 406. In two 1986 orders,31 the district court 
required conversion of KCMSD by 1992 to a district in 
which all students in grades 6 through 12, and about half 
the students in grades K through 5, attend magnet schools. 
The district court found that this systemwide conversion to 
magnet schools would “serve the objectives of its overall 
desegregation program,” Order, November 12,1986 at 2, and 
that it was necessary to “expand[] desegregative educa­
tional experiences for . . . students.” Jenkins, 639 F.Supp. at 
34. In particular, the district court found tha t the plan is 
desegregative,32 equitable to minorities,33 educationally 
sound,34 administratively feasible,35 and economically pru­
dent.36

1. Evidence Supporting F inding That The Magnet 
School P lan Is Desegregative. The district court found

31 Orders, June 16,1986, and November 12,1986.
32 Order, November 12, 1986 at 3 (plan is “so attractive” it will draw 

non-minority students from suburban and private schools).
33 Id. (inequity to minorities “avoided by KCMSD magnet school 

plan”).
34 Id. at 4 (long-term benefit of “greater educational opportunity” 

from the plan).
35 Id. at 3 (“comprehensive” plan over six years will be successful in 

achieving greater desegregation).
36 Id. at 4 (costs are reasonable, benefits “worthy of such an invest­

ment”).

24



that: (1) magnet schools expand desegregative educational 
experiences, Jenkins, 639 F.Supp. at 34; (2) KCMSD’s plan 
is “so attractive tha t it [will] draw non-minority students 
from . . . private schools . . . and . . . the suburbs;” Order, 
November 12, 1986 at 3; and (3) the “plan is crucial to the 
success of the . . . desegregation plan” for KCMSD, Jenkins, 
672 F.Supp. at 406. The court also found that the long range 
magnet school plan included themes which “rated high in 
the Court ordered surveys and themes that have been suc­
cessful in other cities.” Order, November 12,1986 at 3. These 
findings were amply supported by the evidence. Numerous 
experts testified that the plan adopted by the court is 
designed to desegregate the district as a whole and to elimi­
nate racial segregation throughout the district. Tr. Sep­
tember 15, 1986 at 95-96 (Phale D. Hale); September 16, 
1986 at 222, 246-249 (Dr. Daniel M. Levine); September 17, 
1986 at 598-99 (Dr. Robert A. Dentler).

As the evidence here established and this Court has 
expressly recognized,37 magnet schools often do not succeed 
in attracting non-minority students to inner city schools. To 
maximize desegregative attractiveness, themes were chosen 
carefully, then designed to assure desegregative success in 
the long term through the use of sensitively crafted feeder 
patterns. Tr. September 15, 1986 at 49-50; September 16, 
1986 at 250-57. For instance, Southeast High School is 
located in the heart of the black corridor of the district east 
of Troost Street and is virtually all black. Under the long 
range plan, Southeast is the last high school to be converted 
fully to a magnet. The theme in this case is international 
studies and foreign languages. KCMSD Ex. 2, September 
15,1986, at 15. Instead of an early conversion to its theme, a 
series of elementary foreign language magnets are estab­
lished to attract students to foreign languages at an early

37 Liddell v. Bd. ofEduc., 801 F.2d 278, 283 (8th Cir. 1986) (.Liddell IX) 
(“The plain fact is that recruitment of suburban students [to magnet 
schools] will be difficult. . .  ”).

25



age in schools situated in areas where they likely will draw 
significant numbers of non-minority students. The plan 
presumes that as those students progress through the 
grades a significant proportion of them will thrive in the 
foreign language theme and follow it: first to a middle 
school located in the black corridor east of Troost and then, 
ultimately, to Southeast High School. Tr. September 15, 
1986 at 70-71.

Recent reports to the court-appointed Desegregation 
Monitoring Committee38 confirm the expectations of the district 
court that the magnet schools will cause substantial integration of 
the classrooms of KCMSD.39

38 In its initial remedy order the district court created a Desegregation 
Monitoring Committee (DMC) “to oversee the implementation of [the 
desegregation] plan.” Jenkins, 639 F.Supp. at 42. The ten (later 
expanded to thirteen) members consisted of three members selected 
from among nine nominees each by the State, KCMSD, and the AFT 
intervenor. The tenth member and chairman was appointed by the dis­
trict court from among three nominees of the plaintiffs. The DMC is 
charged with the “responsibility for conducting evaluations and collect­
ing information and making recommendations for any modifications 
concerning the implementation” of the desegregation plan. Id. Since its 
establishment in 1985 the DMC has reviewed and evaluated all propos­
als for magnet schools, capital improvements and modifications of the 
educational improvement components of the KCMSD desegregation 
plan. The DMC unanimously approved the magnet school plan and 
KCMSD’s capital improvement plan, Jenkins, 672 F.Supp. at 403, 
approval that, of course, included the State’s representatives on the 
DMC.

39 The district court found that the “magnet plan is working as evi­
denced by the large number of applications for the magnet programs 
from students new to the KCMSD.” Id. at 404. See also id. at 405 (“very 
likely that enrollment in the KCMSD will increase” due to the magnet 
schools and other desegregation programs) and Tr, August 4,1987 at 267 
(testimony that only 300 of 700 applicants from outside KCMSD could 
be placed in the magnet schools to which they applied for the 1987-88 
school year). Based on placements through 1987-88, all but one magnet 
school met their desegregation goals, some dramatically, e.g., Central 
Middle Magnet School went from 99.8% black to 86% black. A By-School 
Comparison of Student Enrollment By Race and Grade for the Years

26



2. Evidence Supporting F inding That The M agnet 
School P lan Is Equitable to Minorities. After prelimi­
nary hearings, the district court settled upon an approach 
to magnets advocated by an expert for the State who tes­
tified at the preliminary remedial hearings — Dr. Dennis 
Doyle. Adopting Dr. Doyle’s analysis, the district court 
noted that, in some instances, magnet schools desegregate a 
portion of a single district which, to integrate its classes, 
seek voluntarily to move students into a few desegregated 
schools. To accomplish this goal, extra resources are pro­
vided to the few schools chosen to be magnets to enable the 
implementation of attractive educational themes at those 
schools. Half or more of the usually all black student enroll­
ment is displaced to provide room for non-minority students 
and, more often than not, the displaced blacks are enrolled 
in segregated schools, schools tha t likely will become segre­
gated, or in schools perceived to be inadequate because they 
have less resources than magnets and therefore become 
segregated schools. The result of such limited magnet 
schools is the creation of a two-tiered system of “have” and 
“have not” schools. These substantial difficulties can be 
avoided only in districts with a relatively small minority 
enrollment.

The district court specifically found that any such limited 
approach to magnet schools in the KCMSD would be unre­
sponsive to the constitutional violations found and their 
particular effects:

The philosophy of a magnet school is to attract 
non-minority students into a school which is pre­

1986-87 and 1987-88, A Report to the Desegregation Monitoring Com­
mittee, October, 1987. The 1988-89 applications to date assure additional 
progress, e.g., Faxon Elementary was 100% black in 1987-88 but will be 
60% black and 40% non-minority when it opens as a Montessori 
Elementary Magnet School this Fall and the one elementary school 
which failed to meet its goal last year, Longan French Elementary Mag­
net School, will exceed both its 1987-88 and 1988-89 goals when it opens 
in the Fall.

27



dominantly minority. It does so by offering a 
higher quality of education than  the schools which 
are being attended by the non-minority students.
In each school there is a limitation as to the num­
ber of students who may be enrolled. Thus, for 
each nonminority student who enrolls in the mag­
net school a minority student, who has been the 
victim of past discrimination, is denied admit­
tance. 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 en­
rolled in the few magnet schools. This results in a 
school system of two-tiers as it relates to the qual­
ity of education. This inequity is avoided by the 
KCMSD magnet school plan.

Order, November 12, 1986 at 3. In order to avoid any two- 
tiered inequity, the plan ordered by the district court con­
verts all nine high schools, all middle schools, and half of 
the elementary schools to magnets. As a result, minority 
students are given the same range of choices as are whites, 
since virtually every student in the district will be allowed 
to choose where to attend school. Racial equity is thus 
woven into the desegregative purpose of the plan.

3. Evidence Supporting Finding That The Magnet 
School Plan Is Educationally Sound. The district court 
found that the magnet school plan will provide a “greater 
educational opportunity in an integrated environment,” 
Order, November 12, 1986 at 4; that the plan provides to 
area students “many” educational incentives to enroll in the 
plan’s “distinctive themes,” id. at 3; and that KCMSD’s mag­
nets are intended to be “an integral part of district-wide 
improved student achievement.” Jenkins, 639 F.Supp. at 54.

The evidence on the educational benefits of the plan was 
uncontroverted. The plan provides that the basic core cur­
riculum meeting state requirements will remain intact at

28



every school in the district. KCMSD Ex. 2 at 1. The 
emphasis of each school, however, varies in accordance with 
the magnet theme of tha t school. Tr. September 16, 1986 at 
257-61. The themes are developed by a variety of methods. 
KCMSD Ex. 2 at 3-6. For example, in the language magnet 
schools at the elementary level instruction in the foreign 
language consists, at the option of the parent, of full immer­
sion, partial immersion, or exposure to the language several 
hours per week. The theme is developed by harmonizing 
other courses to the theme. KCMSD Ex. 2 at 72-78. In addi­
tion, the before and after school activities which are a part 
of the extended day program, usually from 7:00 a.m. until 
school begins and from after school until 5:30 p.m., are 
designed to emphasize the theme; such activities may 
include extra language, reading or art instruction utilizing 
material about France or in French. Tr. September 16,1986 
at 235-37; September 16,1986 at 261-63.

In middle and high school magnets, the basic core cur­
riculum is supplemented by extra courses, both required 
and elective, in the theme of the school. As in elementary 
schools, the themes are woven into the normal curriculum. 
KCMSD Ex. 2 at 4-5. For instance, in the science schools, 
the history courses include specific material on the history 
of science and technology, and literature courses examine 
ideas and literary developments of the Enlightenment. 
KCMSD Ex. 2 at 82-88. Courses are offered at varying 
degrees of difficulty so that all students will participate. Id. 
at 4. In Southwest Science/Math School, for instance, 
courses in geology and astronomy meet the needs of some 
students while other students have the option of studying 
advanced chemistry or microbiology. Id. at 87. The basic 
educational concept for the magnet school plan ordered by 
the court is that, rather than developing a district-wide cur­
riculum smoothed to the common denominator of interest of 
36,000 children, the magnets provide diverse educational 
themes responsive to the diverse interests of many students 
without sacrificing the integrity of the basic core cur­

29



riculum. Id. at 4. By using the diversity of interests among 
students, interest in education can be stimulated and 
achievement enhanced. Tr. September 16, 1986 at 231-35. 
Further, permitting students to choose their educational 
settings effects a psychological commitment to the school of 
their choice which alone tends to enhance achievement. Tr. 
September 15, 1986 at 97-98. All of the educators and 
experts who testified agreed to the educational soundness 
of the long range magnet school plan, including even the 
witnesses for the State. Tr. September 17,1986 at 599.

4. Evidence Supporting Finding That The Magnet 
School Plan Is Adm inistratively Feasible. In approving 
the long range magnet plan and in ordering the facilities 
improvements necessary to house the magnet themes, the 
district court included resources in the plans’ budgets to 
enable adequate administration of the plan. See Attach­
ment A to Order, November 12, 1986 at 4-5 which the court 
found, after “careful consideration,” to be reasonable. Jen­
kins, 672 F.Supp. at 408 (approving Project Management 
Team as “necessary to effectively implement the plan.”).

The magnet plan was designed to be implemented as 
rapidly as possible without over-taxing the administrative 
capabilities of the district and without sacrificing the edu­
cational and desegregative integrity of the plan. KCMSD 
Ex. 2 at 15-17, 21. At public hearings in the spring and early 
summer of 1986, many parents desired significant accelera­
tion of various components of the plan so that their children 
might take advantage of the educational and desegregative 
promises of the plan. Tr. September 15, 1986 at 44-45, 77. 
The six years provided for the implementation of the long 
range magnet school plan balances the need for swift vindi­
cation of constitutional rights with the requirement that 
the plan be established successfully. Tr. September 15, 1986 
at 75-77.

5. Evidence Supporting Finding That The Magnet 
School Plan Is Economically Prudent. The experts

30



agreed and the district court found that the essential costs 
of undoing the segregation, white abandonment and educa­
tional and physical deterioration effects of the State’s and 
KCMSD’s constitutional violations in an educationally 
sound and equitable manner were reasonable. See Order, 
November 12, 1986 at 4 (“while the resources requested [for 
the long range magnet school plan] are substantial, the con­
stitutional violations committed were also substantial” and 
“the estimated costs are reasonable.”) See also Tr. Sep­
tember 15,1986 at 90-92; September 16,1986 at 242-43. The 
costs ordered by the district court are only for the incremen­
tal costs at each magnet school attributable to the conver­
sion of the school to its magnet theme. KCMSD Ex. 3. 
KCMSD continues to be solely responsible for all the cus­
tomary costs of operating each school. These add-on magnet 
costs are the only amounts ordered by the district court. Tr. 
September 16,1986 at 269-70.

None of the expert witnesses who testified, including wit­
nesses for the State, objected to the costs associated with 
the long range magnet school plan. The State’s expert wit­
ness, Dennis Doyle, testified that his only concern was not 
with the cost of the plan but rather with whether a reliable 
source of funds could be found. Tr. September 18, 1986 at 
819-20.

C. Capital Improvements.
As noted, the district court identified as the third and 

fourth effects of the violations that the State had “certainly 
contributed to an atmosphere which prevented the KCMSD 
from raising the funds to maintain its schools,” Jenkins, 
672 F.Supp. at 403, and that the inability of KCMSD to fund 
capital improvements and the consequent deferred mainte­
nance led to deplorable physical conditions in KCMSD 
schools.

The district court thereupon entered a series of orders 
compelling capital improvements within KCMSD, the ear­
liest of which this Court unanimously affirmed en banc. In

31



so doing, the district court concluded that this aspect (capi­
tal improvements) of its remedy was necessary to eradicate 
the physical deterioration vestiges of the violations. Id. The 
court also concluded that capital improvements are essen­
tial to assure tha t the first two components of the remedy 
(educational improvements and magnet schools) succeed in 
alleviating the first two major effects of the violation (sub­
standard education and segregative white flight). Id. at 
405-06.

In particular, the court found tha t the “capital facilities 
program requested by the KCMSD is a proper remedy . . .  to 
remove the vestiges of racial segregation,” Order, November 
12, 1986 at 4; that a “school facility which presents safety 
and health hazards to its students and faculty serves . . .  as 
an obstacle to education,” and tha t “conditions which 
impede the creation of a good learning climate . . . reduce 
the effectiveness of the quality education components con­
tained in [the] plan,” Jenkins, 639 F.Supp. at 40. It also 
found that buildings with safety and health hazards are 
obstacles to “maintaining and attracting nonminority 
enrollment,” Jenkins, 639 F.Supp. at 40, that improvements 
are “needed to attract non-minority students back to the 
KCMSD,” Order, November 12,1986 at 4; that KCMSD “can­
not effectively implement the magnet programs without 
[the] special facilities” in the capital improvement plan, 
Jenkins, 672 F.Supp. at 406; that present facilities of 
KCMSD serve “to discourage parents who might otherwise 
enroll their children in the KCMSD,” Jenkins, 639 F.Supp. 
at 39; and tha t additional school capacity is necessary 
because “enrollment in the KCMSD will increase” due to 
the educational improvements, the magnet school plan and 
the building improvements. The district court concluded, 
therefore, that “improvement of school facilities is an impor­
tan t factor in the overall success of this desegregation 
plan.” Jenkins, 639 F.Supp. at 53.

32



The conditions which currently impair teaching and, as 
the court found,40 undermine desegregation include, inter 
alia, a pattern of dimly lit classrooms and hallways;41 dingy, 
dank and dark restrooms with facilities which often do not 
work but reek of foul odors;42 classrooms far below state 
minimum standards;43 fire and safety hazards in many 
buildings;44 cafeterias so small lunch shifts start at 10:30
а. m. and are not completed until nearly 2:00 p.m., such 
skewed eating times interfering with learning;45 libraries so 
small or inaccessible they cannot be adequately used;46 elec­
trical wiring so hazardous as to endanger children and so 
inadequate as to prevent the use of standard classroom 
equipment and prevent the installation of computers;47

40 Jenkins, 672 F.Supp. at 403.
41 Lighting levels were described as “below . . . acceptable,” Tr. August 

4, 1987 at 336, “not sufficient to read when it is cloudy.” Tr. August 6, 
1987 at 671.

42 Restrooms were described as “like a dungeon,” Tr. August 6,1987 at 
715, with “ingrained” odors, Tr. August 6, 1987 at 698, “reek[ing] of 
urine,” Tr. August 13, 1987 at 419, “that would even gag you.” Tr. August
б , 1987 at 751.

43 Classrooms were described as “pretty small . . . overcrowded” 
spaces, Tr. August 6, 1987 at 719, that were “fairly constrictive,” Tr. 
August 6,1987 at 675.

44 See Tr. August 6,1987 at 688-90, 715, 725-26, 740, 748.
45 Four overcrowded, widely spread lunch periods at Greenwood 

Elementary were said to “impair . . . learning effectiveness,” because 
hungry children cannot “focus” on learning activities. Tr. August 6,1987 
at 674.

46 Libraries were described as so “small,” Tr. August 6, 1987 at 749, 
that they were “restricted” for use by no more than one class at a time, 
Tr. August 6,1987 at 674, and so inaccessible that teachers had to “hand 
carry [audio and visual equipment] up the steps” for use. Tr. August 6, 
1987 at 694.

47 Electrical wiring is so inadequate that “most rooms [have] just one 
or two outlet[s],” Tr. August 6,1987 at 672, sometimes causing “sparks,” 
Tr. August 6, 1987 at 706, or making it impossible to use necessary 
equipment like “computers,” Tr. August 6, 1987 at 672, and “re- 
frigeratorfs],” Tr. August 6,1987 at 691.

33



playgrounds and sidewalks hazardous and unattractive;48 
dilapidated and unappealing interiors;49 elementary classes 
with no access except through another classroom;50 and 
other physical conditions that the district court found 
impeded learning and precluded voluntary desegregative 
enrollment irrespective of the quality of the educational 
programs the buildings contain.51

D. Funding for the Remedies.
In various orders between June 14,1985 and November 16, 

1987, the district court allocated funding responsibility for 
its remedy orders between KCMSD and the State and 
implemented a plan to enable the district to overcome the 
fourth — underfunding — effect of the violation and to pay 
its share of the remedies for the other three major effects.

1. Allocation o f the fund ing  responsibility. In its ini­
tial remedy order, Jenkins, 639 F.Supp. 19, the district court 
required KCMSD and the State to divide evenly the costs of 
some of the ordered educational improvements; it placed 
full responsibility for funding other educational programs 
upon the State; and, it required KCMSD to pay about 27% 
and the State about 73% of the initial capital improvements. 
On appeal this Court found that the district court had made 
insufficient findings to w arrant an allocation of costs 
between the parties at a ratio other than an equal division 
of those costs. With respect to class size reduction this

48 Tr. August 3,1987 at 47-49, 53-54; see also KCMSD Ex. 7 (slides).
49 Buildings were described as “depressing, dark, dank, smelly,” Tr. 

August 3,1987 at 42, “gross,” Tr. August 6,1987 at 718, and “very drab.” 
Tr. August 6,1987 at 748.

60 Tr. August 4,1987 at 208-09.
51 For example, floors are “warped,” Tr. August 6, 1987 at 715; 

auditorium curtains are “just rags,” Tr. August 6,1987 at 687, carpeting 
is “raggedy [and] dusty,” Tr. August 6,1987 at 688; a cafeteria is “like a 
prison mess hall,” Tr. August 6, 1987 at 739; and ceilings are “falling 
down.” Tr. August 6,1987 at 725.

34



Court stated:
[tjhe order contains no findings specifically 
directed to the issue of the liability of the State for 
this cost as opposed to that of KCMSD.

Jenkins I, 807 F.2d at 684. With respect to allocation of 
responsibility for the effective schools component this Court 
held:

we see no findings in the district court order that 
in any way substantiates placing the entire bur­
den of this program on the State.

Id. at 685.
While the appeal in Jenkins I was pending before this 

Court, the district court entered its long-range magnet 
school order. Order, November 12, 1986. On March 4, 1987 
this Court, upon request of the district court, remanded 
appeals of the magnet school orders so that the district 
court might make additional findings of fact on the issue of 
cost allocation in light of Jenkins I.52

Pursuant to this Court’s remand, the district court made 
extensive findings on the cost allocation issue. Most funda­
mentally, the district court found that the State had sole 
responsibility for creating separate schools for black and 
white children in Missouri, that the State left KCMSD no 
choice but to operate a dual system until 1954, and, con­
sequently, that the State equitably should “be required to 
shoulder more of the costs for the removal of the vestiges of 
its unconstitutional mandates than the KCMSD, which was 
required by Missouri law to follow the State’s mandates.” 
Order, July 6,1987 at 13.

62 The district court had entered its magnet school orders, on June 16, 
1986 and November 12, 1986, prior to this Court’s opinion in Jenkins I 
that, absent specific findings to the contrary, the defendants should bear 
evenly the costs of desegregation. Jenkins 1, 807 F.2d at 685. Thereafter, 
this Court remanded appeals of the magnet school orders for additional 
findings on the cost allocation issue in light of Jenkins I.

35



In addition, the district court found that because the indi­
vidual victims of segregation resided for the most part 
within KCMSD, placing too great a portion of the costs for 
remedying desegregation upon KCMSD would fall inequita­
bly upon the victims of segregation who were intended to be 
the beneficiaries of desegregation. Id. Further, the district 
court found tha t it would be more equitable to place a 
larger share of the burden upon the State because of its 
greater ability to pay based upon size and population. Id. at 
13-14. It also found that KCMSD residents and taxpayers 
would contribute toward the State’s share of the cost of the 
remedy. Id. at 14. Finally, the court found tha t “it would be 
very difficult” for KCMSD to fund more than 25% of the 
costs of the desegregation plan. Id.

Based on these findings and on the more than a hundred 
thousand pages of trial testimony and documents heard and 
read by the court, it found as a m atter of historical fact that 
“the relative fault of the State of Missouri in this action was 
75% and the KCMSD 25%.” Id. The court thereupon 
ordered the allocation of funding responsibility for the two 
parties and further ordered joint and several liability to 
“ensure that the remedial plan will be fully funded and 
guarantee to the plaintiffs the programs to which they are 
entitled.” Id. at 15.

Although various orders have allocated funding responsi­
bility for specific projects or programs in a different ratio 
than 3:1, when all programs are summed the division of 
responsibility closely approximates the 75%-25% ratio. Id. 
at 15. The only exception to this division of responsibility is 
in the long-range capital improvement plan ordered Sep­
tember 15, 1987. The district court divided the burden of 
those capital costs evenly because:

[t]hese capital improvements will have a service 
life of at least 30 to 50 years and the KCMSD will 
continue to benefit from them long after the hope­
ful success of the desegregation plan has been

36



realized. For this reason the Court departs from 
the 3 to 1 apportionment generally set forth in 
previous remedial orders.

Jenkins, 672 F.Supp. at 408.
2. Assuring KCMSD’s ability to pay its share. The dis­

trict court turned last to the final remaining effect of the 
violations, the withdrawal of taxpayer support from the 
KCMSD and the district’s consequent underfunding. In a 
series of orders, the district court earlier had found both 
that (1) the violations in the past had underfunded the basic 
educational programs of the district53 and that (2) the 
underfunding effect of the violations was now making it 
impossible for the district to pay for the remedies necessary 
to overcome the other three major effects of the State’s con­
stitutional violations — poor schooling, segregation and 
crumbling buildings.54 Except for one interim measure 
affirmed by this Court in 1986,55 the district court left this 
aspect of the remedy to last, however, in order to give local 
and state officials and taxpayers the ability voluntarily, and

63 The State’s violations “certainly contributed to an atmosphere 
which prevented the KCMSD from raising the funds to maintain its 
schools.” Jenkins, 672 F.Supp. at 403. (citations omitted).

54 The district court found that “it would be very difficult” for KCMSD 
to fund more than 25% of the costs of the desegregation plan. Order, 
July 6,1987 at 13-14. Accord findings quoted infra note 97.

55 In its initial remedy order the district court enjoined the imminent 
tax reduction which would have occurred by the statutory operation of 
Proposition C. Relying upon Liddell v. State of Missouri, 731 F.2d 1294, 
1322 (8th Cir.) (en banc), cert, denied, 469 U.S. 816 (1984) (Liddell VII), 
the district court found it impossible for KCMSD to “appropriate funds 
necessary to implement the school desegregation order of this Court.” 
Jenkins, 639 F.Supp. at 45. The district court also found that it would be 
virtually impossible for KCMSD to obtain a two-thirds majority vote in 
favor of a tax levy increase, id., and therefore enjoined the Proposition C 
rollback thereby enabling KCMSD to raise an additional $4 million for 
the 1985-86 school year. On appeal, this Court affirmed without com­
ment this court ordered tax increase.

In 1986 KCMSD sought, and the State did not oppose, a second

37



through methods of their own choosing, to remedy the 
underfunding effects of the constitutional violations. To 
facilitate voluntary compliance, the district court made 
three broad suggestions to the responsible funding 
authorities — all three of which were rejected.

First, the district court suggested that the KCMSD pur­
sue all available measures to increase its own revenues. As 
ordered, the KCMSD Board of Education between 1985 and 
1987 pursued all reasonably available means to raise locally 
its share of court ordered desegregation expenses. Efforts 
to obtain charitable or foundation grants were pursued 
unsuccessfully; Midwest Research Institute conducted a 
study of alternative revenue sources but found none within 
the authority of the district; and district board members 
and officials worked closely with state legislators from the 
KCMSD area but were unsuccessful in obtaining passage of 
funding bills introduced in the Missouri General Assembly. 
Jenkins, 672 F.Supp. at 411.

The only remaining option was to seek voter approval for 
tax increases or the issuance of bonds. Three levy elections 
accordingly were conducted between February and August, 
1986, with substantial funds raised privately to campaign 
for the propositions. All three elections failed. See KCMSD 
Motion for Court Order Enjoining Proposition C Levy Roll­
back, August 9, 1986. The district court thereupon con­
cluded that KCMSD had “made a diligent effort, though

injunction of the Proposition C rollback. The district court found that 
KCMSD’s budget was insufficient by more than $6 million needed to 
meet its share of desegregation expenses, that KCMSD had unsuccess­
fully sought to raise the needed funds and that it was necessary to 
enjoin the tax rollback in the amount of $6.5 million. Order, August 25, 
1986. Recognizing that it had ordered a remedy to correct constitutional 
violations, the district court noted that a majority of voters, having 
defeated school levy proposals, “has no right to deny others the constitu­
tional guarantees to which they are entitled.” Id. at 4. The district court 
concluded that it was not “helpless to enforce a remedy to correct past 
violations,” id., and therefore enjoined the rollback.

38



unsuccessful, to obtain funding for its share of the desegre­
gation budget,” Order, August 25, 1986 at 4, and that it is 
“unable with its present resources to raise revenues to fund 
its share of the costs assessed under the desegregation 
orders . . . [and] has exhausted all available means of rais­
ing additional revenue . . . ” Jenkins, 672 F.Supp. at 411.

In making its second suggestion, the district court, in 
ordering the long range magnet school plan, stated:

[b]y making approximately $105,000,000 of the 
judgments joint and several, the General Assem­
bly may be encouraged to explore the possibility of 
enacting legislation that would permit a district 
involved in a desegregation plan more versatility 
than it presently has to raise funds with which to 
support the program.

Order, November 12,1986 at 7. Following the court’s sugges­
tion, a legislator from the Kansas City area offered legisla­
tion during the 1987 session of the Missouri legislature, 
that would have permitted KCMSD to impose sales, earn­
ings or income taxes. Both houses of the legislature 
defeated all such legislation.66 Even after being apprised of 
KCMSD’s subsequent failures to obtain voter approval for a 
bond issue and levy increases in KCMSD on March 31,1987, 
the Missouri General Assembly adjourned on June 15,1987 
without having enacted any legislative proposals to assist 
KCMSD in raising desegregation funds.

Third, the district court repeatedly called upon the execu­
tive agencies of the State tha t are named defendants in the 
case — “the Governor’s office, the Attorney General’s office, 
[and] the [State] Board of Education” — to make a “recom­
mendation . . . which would aid” the KCMSD in “trying to 
desegregate” its schools.56 57 All such suggestions having been

56 “Such legislation was introduced but was received unfavorably and 
ultimately failed.” Jenkins, 672 F.Supp. at 411.

57 Tr. September 19, 1986 at 986-87. Accord Order, November 12, 1986 
at 7 (calling upon “the Executive Department of the State of Missouri. .

39



met with silence by the Executive Department defendants, 
the district court, on July 6,1987, warned of its intention to 
order an income or earnings tax increase* 58 and again 
invited the State Governor, Attorney General and Treasurer 
to submit alternative funding proposals. Although the 
plaintiffs and KCMSD at that time submitted detailed 
information on various alternative measures to raise funds 
to assist the KCMSD in meeting the share of desegregation 
costs allocated to it, the State Executive Branch neither 
offered nor suggested any measures by which KCMSD 
might raise locally its share of the costs.

Because of the absence of private and charitable sources, 
the refusal of KCMSD’s taxpayers to authorize additional 
funding through increased taxes or bonds, the state legisla­
ture’s rejection of all funding proposals before it, and the 
state executive branch’s continued silence, the district court 
concluded that it had no alternative but to order tax 
increases. In concluding that it had “no choice” in the m at­
ter,59 the district court cited this Court’s unanimous en banc 
directive in its December, 1986 decision tha t the district 
court “fully fund” the remedies as well as this Court’s refer­
ence to a court ordered tax increase.60

The two taxes that the district court ordered increased 
have long been collected in the Kansas City area. The prop­
erty tax has historically been the primary source of local 
funding for schools in Missouri.61 Because KCMSD had not

. to explore [steps]. . . that would permit a district involved in a desegre­
gation plan . . .  to raise funds with which to support the program”).

58 “It is the Court’s intention to generate KCMSD’s portion of the 
desegregation funding through imposition of either an earnings tax or a 
state income tax surcharge.” Order, July 6,1987 at 16.

59 Jenkins, 672 F.Supp. at 411.
60 Jenkins, 672 F.Supp. at 411 (citing this Court’s reference, Jenkins I, 

807 F.2d at 686, to Liddell VII procedures for imposing a tax increase).
61 See KCMSD Exs 27, 31 to Attachment 3, KCMSD Motion for Court 

Order Enjoining Proposition C Levy Rollback, August 9,1986.

40



succeeded in raising its property tax rate since 1968, its 
rate, at $2.05 per $100 of assessed valuation, has become 
the lowest among school districts in the metropolitan area.62 
Two injunctions preventing the Proposition C rollback have 
kept the rate at $2.37, see infra n.91 at 64, and the Sep­
tember 15, 1987 order increased the rate to $4.00. At that 
rate KCMSD still will not have the highest school levy in 
the area; currently the rate in Lee’s Summit is $4.7763 and 
tha t district is seeking a $1.07 increase in its school taxes 
on April 5,1988.

The State presently collects a personal income tax in 
Kansas City and elsewhere at a rate of 6% for most levels of 
income. The district court ordered that tax increased by a 
25% surtax to 7.5% on all income earned within the 
KCMSD. Jenkins, 672 F.Supp. at 412. A similar earnings 
tax is collected by the City of Kansas City on all income 
earned within its boundaries irrespective of whether the 
income earner resides within the City.64 The intradistrict 
income surtax is one of the sources of tax revenue the Gen­
eral Assembly would have authorized KCMSD to utilize if 
the legislature had passed the bill it considered in 1987.65

SUMMARY OF THE ARGUMENT
Having found major constitutional violations by the State 

and KCMSD that caused KCMSD to suffer the systemwide 
effects of inferior education, segregated schools, buildings 
which “literally rotted” and chronic underfunding, findings 
not challenged by the State in this or its prior appeal, the

62 See, Exhibit O to Attachment 1, KCMSD Motion for Further Fund­
ing Relief, May 8,1987.

6SId.
64 See KCMSD Memorandum Concerning Potential Revenue Sources, 

April 1,1987 at 3.
65 Jenkins, 672 F.Supp. at 411. See Deposition of Robert E. Bartman, 

Commissioner of Education, July 22,1987 at 64-71, in evidence as admis­
sions, Tr. August 6,1987 at 566.

41



district court entered a series of orders designed to eradi­
cate those effects, the existence of which “offend the Con­
stitution.” Guided by the constitutional imperative of acting 
promptly and effectively, and essentially unaided by the 
State which defaulted in its affirmative duty to cure its vio­
lations by presenting no remedial plans or only ineffective 
plans, the district court ordered a remedy consisting of four 
components to eradicate the four effects of the violations. To 
remedy the inferior education caused by state-mandated 
segregation it ordered educational improvements which this 
Court affirmed. To remedy the segregation of KCMSD’s 
schools which resulted when the violations drove whites 
from the district, the court ordered magnet schools to 
attract them back. Capital improvements were ordered to 
eradicate the deterioration of district buildings which the 
court found to have been caused by the State’s and 
KCMSD’s violations. And, to remedy the chronic underfund­
ing resulting from the violations, the court ordered local 
taxes increased in accord with this Court’s admonition in 
Jenkins I  to fund fully the desegregation remedies, by fol­
lowing the Liddell VII procedures for ordering tax 
increases if ultimately necessary.

These components of the remedy were aptly tailored to 
match the nature and scope of the remedy to the nature and 
the scope of the violations and their effects. The educational 
effects of the violation were systemwide and the remedies 
ordered and affirmed are similarly systemwide. Where 
whites were driven from KCMSD by the violations, the 
remedy is designed to attract them back. Facilities improve­
ments were ordered for “all 68 schools” because the viola­
tions affected buildings district-wide. The tax increases 
ordered were tailored to respect the State’s discretion to 
manage its own affairs by interfering least with its gov­
ernmental autonomy and by requiring local taxpayers to 
bear a significant share of the burden of the remedies so the 
State would not have to bear it all.

42



This remedy, the last component of which was entered 
after more than ten years of complex litigation, is supported 
by a massive evidentiary record, detailed fact findings and 
the compelling constitutional need to act now to end effec­
tively decades of continuing constitutional violations. The 
district court correctly followed applicable constitutional 
principles and did not abuse its discretion in ordering this 
desegregation remedy for KCMSD. Its orders, therefore, 
should be affirmed.

ARGUMENT
I. THE DISTRICT COURT’S FINDINGS DEMON­

STRATE THAT THE REMEDIES ORDERED FIT THE 
NATURE AND SCOPE OF THE VIOLATIONS AND 
THEIR EFFECTS AND ARE NECESSARY TO 
DESEGREGATE THE KCMSD.

A. Legal Standards Governing School 
D esegregation Remedies.

The Supreme Court first addressed “the manner in which 
relief is to be accorded” victims of public school segregation 
in Brown v. Board of Educ., 349 U.S. 294, 298 (1955) 
[Brown II). Brown II  and its progeny established both sub­
stantive and procedural guidelines for school desegregation 
remedies. Inexplicably, the State’s brief omits both sets of 
guidelines. Accordingly, they are summarized below.

1. Substantive Guidelines. In Brown I, the Supreme 
Court recognized that racial segregation of school children 
has a number of socially and personally devastating effects 
ranging from racial separation itself to psychological and 
economic harms:

To separate [blacks] from others of similar age 
and qualifications solely because of their race gen­
erates a feeling of inferiority as to their status in 
the community that may affect their hearts and 
minds in a way unlikely ever to be undone.

Brown I, 347 U.S. 483, 494 (1954). Thereafter, in Brown II

43



and subsequent cases, the Court held that, first and 
foremost, the district court’s remedial task in school 
desegregation cases is to remove “all vestiges of state- 
imposed segregation from the public schools” “root and 
branch.”66 Most particularly, “the district judge or school 
authorities should make every effort to achieve the greatest 
possible degree of actual desegregation,” Davis v. Board of 
School Comm’rs., 402 U.S. 33, 37 (1971), while keeping in 
mind “the central educational function of the schools.” Mil- 
liken v. Bradley, 433 U.S. 267, 280 n.15 (1977) (Milliken II) 
(quoting Milliken I, 418 U.S. 717, 763 (1974) (White, J., dis­
senting)). The district court “need not, and cannot, close 
[its] eyes to” any “inequalities shown by the record,” Milli­
ken II, 433 U.S. at 283, including ones characterizing “edu­
cational” programs, id. at 274, “the physical condition of the 
school plant,” “the school transportation system,” “person­
nel revision,” “attendance areas,” and the “local laws and 
regulations.” Brown II, 349 U.S. at 300-01. Once effective­
ness has been achieved — but only then —must the court 
“take into account the interests of state and local 
authorities in managing their own affairs, consistent with 
the Constitution.” Milliken II, 433 U.S. at 281-82. See 
Swann, 402 U.S. at 13, Green, 391 U.S. at 437, and Brown II, 
349 U.S. at 300 (effectiveness is the measure).

To measure and assure the remedial effectiveness of the 
plan devised by the district court, the Supreme Court has 
promulgated two subsidiary standards: First, the district 
court must adhere to equitable principles in designing the 
remedy. Second, having assured itself tha t the district court 
adhered to proper equitable standards, the reviewing court 
must respect the product of the district court’s labors and

66 Swann, 402 U.S. 1, 15 (1971) (quoting Green v. County School Bd., 
391 U.S. 430, 437-38 (1968)) (emphasis added). See also Milliken v. 
Bradley, 418 U.S. 717, 746 (1974) (Milliken I) (“restore the victims of dis­
criminatory conduct to the position they would have occupied in the 
absence of such conduct”).

44



review the plan ordered for only abuse of discretion. E.g., 
Gilmore v. City of Montgomery, 417 U.S. 556, 577 (1974) 
(Marshall, J., concurring).

a. Turning first to the “equitable principles” requirement 
for assessing remedial effectiveness, see, e.g., Brown II, 349 
U.S. at 300, the Court has held that the remedy must cure 
“the condition that offends the Constitution.” Milliken I, 
418 U.S. at 738. Accordingly, the nature and scope of the vio­
lation and its effects determine the nature and scope of the 
remedy. Swann, 402 U.S. at 16. In ascertaining the nature 
and scope of the violation and its effects — i.e., the condi­
tion that offends the Constitution — the district court not 
only must carefully identify the various constitutional 
infractions and the consequences those infractions wrought, 
but also must determine whether those violations and 
effects are, on the one hand, “incremental” or, on the other 
hand, “systemwide.”67 If the effects are incremental, then 
the remedy is confined to curing the so-called “incremental 
segregative effect” of the violations.68 If, on the other hand, 
the violation is systemwide, then the measure of effective­
ness is the degree to which the remedy eradicates from 
the system as a whole each of the ill-effects “that flow[s] 
directly from [the] constitutional violationO”:

[W]here, as here, a constitutional violation has 
been found, the remedy does not ‘exceed’ the viola­
tion if the remedy is tailored to cure the “ ‘condi­
tion that offends the Constitution.’ ”

Milliken II, 433 U.S. at 282 (quoting Milliken I, 418 U.S. at 
738).69

67See e.g., Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 541 (1979) 
(.Dayton ID, Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 455 (1979), 
Keyes v. School Dist. No. 1, 413 U.S. 189, 200-01 (1973).

68 Dayton Board of Education u. Brinkman, 433 U.S. 406 (1977) (Day- 
ton I). See infra n.76 (inapplicability of Dayton I  to this case).

69See e.g., Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, denied, 
426 U.S. 935 (1976). In Morgan the First Circuit disclaimed the appel­

45



There are two means of identifying a systemwide viola­
tion. The first instance is where, as here:

[plaintiffs prove that a current condition of segre­
gated schooling exists within a school district 
where a dual system was compelled or authorized 
by statute at the time of . . . Brown I, the State 
automatically assumes an affirmative duty ‘to 
effectuate a transition to a racially nondis- 
criminatory school system,’ that is, to eliminate 
from the public schools within their school system 
‘all vestiges of state-imposed segregation.’

Keyes, 413 U.S. at 200 (citations omitted). Illustrations of 
this class of systemwide violation are pervasive in the 
Southern and Border States, including Missouri, where the 
district courts made findings that the violations took place 
at the system or district level. See e.g., Brown I, 347 U.S. 
483; Green, 391 U.S. 430, et al. The second instance is 
where a statutory dual system never existed, but where 
plaintiffs prove the existence of “intentionally segregative 
school board actions in a meaningful portion of a school sys­
tem” that “creates a presumption that other segregated 
schooling within the system is not adventitious.” Keyes, 413 
U.S. at 208.70

b. Assuming the district court has adhered to these equit­
able principles in adopting a remedial plan, an appellate 
court may review that plan for abuse of discretion only. In 
school desegregation cases, that is,

[formulating a realistic, practical, and effective 
remedy is a job peculiarly within the province of

lants’ argument that “the district court was obliged to determine the 
extent to which the segregation in the Boston schools was attributable 
to official action and to limit the remedy to eliminating only that segre­
gation. Id. at 415. The Court similarly rejected as impractical the 
request to sever schools from the remedy that would have been segre­
gated absent their unconstitutional acts. Id. at 418.

70 See infra n.76 (inapplicability of Keyes presumption to this case).

46



the trial court, whose position gives it quantum 
advantage over an appellate court in weighing the 
“practicalities of the situation.”

Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir.) (en banc), 
cert, denied, 434 U.S. 944 (1977) (Evans V). Accordingly, 
“[i]n litigation as long and complex as this, the fashioning of 
relief should normally ‘be entrusted in large measure to the 
sound discretion of the District Court Judge who has lived 
with [it] for so many years.’ ” Hoots v. Commonwealth of 
Pennsylvania, 639 F.2d 972, 979 (3rd Cir.) cert, denied, 452 
U.S. 963 (1981) (Hoots V) (quoting Gilmore, 417 U.S. at 577 
(Marshall, J., concurring)). Moreover, the “district court’s 
equitable power to remedy past wrongs is broad, for breadth 
and flexibility are inherent in equitable remedies,” Swann, 
402 U.S. at 15, and because breadth is necessary “ ‘to allow 
the most complete achievement of the [remedial] objectives 
. . . attainable under the facts and circumstances of the spe­
cific case.’ ” Evans v. Buchanan, 582 F.2d 750, 760 (3d Cir. 
1978) (en banc), cert, denied, 446 U.S. 923 (1980) (Evans 
VIII) (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 
770-71 (1976)). Consequently, “a reviewing court. . .  [is] not em­
powered to consider the m atter de novo,” and may overturn 
the district court’s exercise of discretion “only when the jud­
icial action is arbitrary, fanciful or unreasonable, or when 
improper standards, criteria, or procedures are used.” Evans 
VIII, 582 F.2d at 760 (quoting Evans V, 555 F.2d at 378).

Likewise, in reviewing the fact findings of the district 
court that support its view of the nature and scope of the 
violation and of the effects to be cured, this Court must 
apply the “clearly erroneous” standard of Fed. R. Civ. P. 
52(a). See Anderson v. City of Bessemer, 470 U.S. 564, 573 
(1985) (quoting United States v. United States Gypsum Co., 
333 U.S. 364, 395 (1948)). Without a finding that they are 
“clearly erroneous,” fact findings are deemed “presump­
tively correct” and the burden is on the complaining party

47



to demonstrate error.71 A fact finding is “clearly erroneous” 
only when the reviewing court has a “definite and firm con­
viction that a mistake has been committed.” United States 
Gypsum, 333 U.S. at 395. It is not enough “that it would 
have decided the case differently.” Anderson, 470 U.S. at 573.

Only the district court is adequately able to draw infer­
ences,72 determine the credibility of witnesses and decipher 
the myriad of other factors of relevance on the evidence pre­
sented through discovery and at trial. In school desegrega­
tion cases “appellate courts should accept even more readily 
than in most cases the factual findings of the court of first 
instance,” Columbus, 443 U.S. at 471 (Stewart, J., concur­
ring), “especially where the presiding judicial officer has 
lived with the case for many years.” Riddick v. School Bd. 
of Norfolk, 784 F.2d 521, 533 (4th Cir.), cert, denied, 107 S. 
Ct. 420 (1986).

2. Procedural Guidelines. Brown II  and its progeny 
impose procedural as well as substantive requirements on 
both the constitutional violators and the district court. Most 
particularly, once a constitutional violation has been found, 
the constitutional violators are charged with the “affirma­
tive duty” “to come forward with a plan that promises 
realistically to work, . . . now” “to convert to a unitary sys­
tem.” Green, 391 U.S. at 437-439. The constitutional vio­
lators are charged with the responsibility of designing and 
proposing a plan because of their familiarity with the com­
plex problems of the local school conditions. Any “failure or

71 See Jenkins I, 807 F.2d at 666-68; Jenkins v. Missouri, No. 87-2075, 
slip op. at 10 (8th Cir. Jan. 29, 1988) (as fact finder circuit court might 
reach different result but if findings are not clearly erroneous it “may 
not substitute [its] own findings for those of the district court”); See also 
Friedman v. Fordyce Concrete, Inc., 362 F.2d 386, 387 (8th Cir. 1966).

72 State Appellants here do not challenge the district court’s findings 
of fact, yet they dispute many of the factual inferences drawn. But see 
Columbus, 443 U.S. at 464 (Supreme Court does not disturb factual 
findings and conclusions of district court where petitioners dispute fac­
tual inferences without challenging findings of fact).

48



refusal to fulfill this affirmative duty continues the viola­
tion.” Columbus, 443 U.S. at 459.

The responsibility of evaluating and choosing a plan falls 
to the district court. The most important measure of a plan 
to desegregate is its “effectiveness.” Davis, 402 U.S. at 37. In 
addition, the plan must promise to eradicate segregation 
“now,” Green, 391 U.S. at 439, “forthwith,” Swann, 402 U.S. 
at 14, “immediately,” Carter v. West Feliciana School Board, 
396 U.S. 290, 292 (1970) (per curiam) (Harlan, J., concur­
ring), and “at once.” Alexander v. Holmes County Board of 
Education, 396 U.S. 19, 20 (1969) (per curiam). In light of 
these considerations, “any plan is ‘unacceptable’ where it 
‘fails to provide meaningful assurance of prompt and effec­
tive disestablishment of a dual system,’ ” Wright v. Council 
of City of Emporia, 407 U.S. 451, 460 (1972) (quoting Green, 
391 U.S. at 438), or “if there are reasonably available other 
ways . . . promising speedier and more effective conversion 
to a unitary, nonracial school system.” Green, 391 U.S. at 
441.

If any or all the constitutional violators fail or refuse to 
fulfill their affirmative duty to come forward with a plan 
that promises promptly and effectively to alleviate the seg­
regative conditions in the school system, it is incumbent 
upon the district court to devise a plan of its own.73 
Although the primary responsibility for remedying past dis­
crimination rests with the school authorities, “in default by 
the school authorities of their obligation to proffer accept­

73 Here, however, the district court did not have to devise its own plan. 
As the State conveniently omits, the district court’s remedy was largely 
based on the KCMSD’s proposed plan, prepared by the KCMSD with 
assistance from the plaintiffs. The State was invited — indeed 
beseeched — by the district court to submit its own plans, yet refused. 
Even so, the district court must devise a plan that is effective to eradi­
cate the effects of constitutional violations in school desegregation cases. 
The State’s reliance on Bell v. Wolfish, 441 U.S. 520 (1979), State’s Brief 
at 24-25, 45, is misplaced. First, the minority children here have been 
adjudicated to have suffered constitutional violations and to require the

49



able remedies, a district court has broad power to fashion a 
remedy that will assure a unitary school system.” Hoots V, 
639 F.2d at 980 (quoting Swann, 402 U.S. at 16. See Cato v. 
Parham, 403 F.2d 12, 16 (8th Cir. 1968); Hall v. West, 335 
F.2d 481, 484 (5th Cir. 1964) (“ ‘a plan of desegregation must 
be offered [by the constitutional violators] or the district 
court must fashion its own plan’ ”) (quoting Nelson v. 
Grooms, 307 F.2d 76, 79 (5th Cir. 1962) (Brown, J., concur­
ring)).

Default by the constitutional violators calls into play the 
full panoply of broad and flexible remedies available to the 
district court pursuant to its equitable powers. Swann, 402 
U.S. at 15. As a result of the prescribed procedures, the 
defaulting constitutional violators are hard pressed to 
argue that the district court’s remedy is unfair to them, 
because they have forfeited in the district court their oppor­
tunity to come forward with a plan and, in the process, have 
“continue[d] the violation.” Columbus, 443 U.S. at 459. Nor 
may they relitigate issues during the remedial phase that 
have been settled during the liability phase of the litigation 
dealing with the scope of the violation.74

If, on the other hand, a plan is presented that fulfills the 
substantive requirements of desegregation in a prompt and 
effective manner the district court must order implementa­

protection of effective remedies. By contrast, the Supreme Court in Bell 
found that the inmate plaintiffs there had suffered no constitutional 
wrong. Id. at 543, 550, 555, 557, 560, 561. Second, the district court in 
Bell devised a set of remedies (to a nonexistent violation) based entirely 
on the plaintiffs’ complaint and without input from the prison adminis­
trators. Here, by contrast, the remedial plan was largely developed by 
KCMSD.

74 The First Circuit in Morgan v. Kerrigan refused to make a “more 
particularized inquiry into the causes of the segregation at the indi­
vidual schools” calling such an inquiry a “second battle” on “effects” 
issues that had been settled at the liability stage. Morgan, 530 F.2d at 
416. See Columbus, 443 U.S. at 468. See generally, Liddell VII, 731 F.2d 
at 1305-06.

50



tion of tha t plan. In Banks v. Clairborne Parish School 
Board, 425 F.2d 1040 (5th Cir. 1970), for example, the Fifth 
Circuit held that it “must” order implementation of a 
Department of Health, Education and Welfare (HEW) plan 
since it was “the only one currently available that [gave] any 
promise of presently ending the dual system . . . despite its 
defects.” Id. at 1043; accord, Adams v. Rankin County 
Board of Education, 485 F.2d 324, 326 (5th Cir. 1973). 
Where two or more otherwise similar plans are available, 
the court must order the one “promising speedier and more 
effective” desegregation. Green, 391 U.S. at 441. See e.g., 
Carter v. West Feliciana School Bd., 396 U.S. 290, 291 
(1970) (reversing the Fifth Circuit for permitting a seven 
month delay in desegregation in order to allow time to pre­
pare a more satisfactory plan, because an effective, if imper­
fect HEW prepared plan already was before the lower 
courts).

B. The District Court Followed Precisely The 
Procedural And Substantive Guidelines For 
D evising A D esegregation Plan.

As noted above, “the nature of the desegregation remedy 
is to be determined by the nature and scope of the constitu­
tional violation” and of the unconstitutional “conditions” 
wrought by that violation. Milliken II, 433 U.S. at 280. By 
carefully omitting any discussion of either the constitu­
tional violations found by the district court or the four types 
of effects tha t the district court directly linked to those vio­
lations, the State has submitted a brief to this Court that — 
plainly and simply — is beside the point. Once the requisite 
analysis of the nature and scope of the violations and 
effects found by the district court is made, however, it is 
clear that the district court in devising the remedy followed 
the Supreme Court’s substantive and procedural guidelines 
set out above to the letter.

First, as required by the Supreme Court, the district 
court identified the four basic unconstitutional conditions

51



created by the violation. The unconstitutional conditions, 
found by the court, described in detail above,75 76 are: inferior 
education, segregation and white abandonment of the dis­
trict, underfunding, and a deteriorated physical plant. To 
comply with Milliken II, the district court’s remedy must be 
tailored to the scope of those “condition[s]” that offend the 
Constitution. Milliken II, 433 U.S. at 282.

Second, the district court found tha t the violations and 
their effects were systemwide. Jenkins, 593 F.Supp. at 1503-
04. The court based this finding on the first method of 
determining systemwideness: It simply determined, based 
on the evidence, that the violations and the conditions they 
caused occurred at the level of the KCMSD system as a 
whole.16

1. Before 1954 the State required tha t KCMSD as a whole 
be segregated by race, Jenkins, 593 F.Supp. at 1490, and 
that it operate schools for blacks tha t were, and tha t the 
State publicly identified as, educationally inferior.77

2. After 1954, KCMSD, with the State’s explicit blessing, 
maintained and implemented a district-wide policy of segre­

75 See Statement of Facts, Section III, supra at 17.
76 Dayton I  requires a determination of how much “incremental seg­

regative effect” each violation had on the unconstitutional condition and 
a remedy designed to redress that effect. Dayton I, 433 U.S. at 420. This 
theory, however, has no place where a systemwide violation has been 
found. Id.; Columbus, 443 U.S. at 464-466. Because the district court 
directly found the constitutional violation and their effects to be system- 
wide, it had no occasion to resort to the Keyes presumption and that 
question has never been at issue in this case. Also, because the district 
court found that all the violations and all their effects were systemwide, 
the “incremental segregative effects” test of Dayton I  has no part to 
play in this case. See Columbus, 443 U.S. at 464-66; Jenkins, 593 
F.Supp. at 1504 (quoting Keyes that where school district was segregated 
by law in 1954 “the State automatically assumes an affirmative duty ‘to 
effectuate a transition to a racially nondiscriminatory school system’ ”); 
State’s Brief for Appellee at 45 n.52, Jenkins I.

77 See Statement of Facts, Section III.A., supra at 17.

52



gated schools by superimposing attendance zones on segre­
gated neighborhoods, by identifying predominantly black 
schools as inferior, and by permitting whites to utilize 
optional attendance zones and liberal transfers to attend 
white schools. Jenkins, 593 F.Supp. at 1493-94.7 * * 78

3. By the late 1960’s the effect of the housing and school 
violations was to identify schools more and more within the 
boundaries of KCMSD, then the system as a whole, as for 
blacks and inferior. Id. at 1492-93. As a result governmen- 
tally induced white flight from inferior black schools 
required white families to abandon the district as a whole. 
In the decades after Brown I, tha t is, intentionally segrega­
tive State and local governmental policies transformed 
KCMSD from a system of schools some of which were iden­
tified as black and inferior to a system that was itself iden­
tified as black and below par.

4. The underfunding effect of the violation applied to the 
school district as a whole. Jenkins, 639 F.Supp. at 41. Aban­
donment of the district by a large constituency tha t other­
wise could be expected to support funding for public schools 
commensurate with their needs led directly to a shortfall in 
tax revenues available, again, to the district as a whole. 
This condition, in turn, further diminished the educational 
quality and necessitated deferred capital maintenance at 
each and every school within the financially malnourished 
district.

Notably, the State nowhere challenges the district court’s 
succession of findings that the violations and all four of the 
unconstitutional conditions it caused are “systemwide.”

Third, as is discussed in the remainder of the brief, the 
district court ordered the constitutional violators to propose

7S As evidenced by the success of the district’s transfer policies in strip­
ping majority black zones of nearly all of their white students, the dis­
trict’s policies maintained both the reality and the public perception
that its predominately black schools were educationally inferior. See 
Statement of Facts, Section II.B., supra at 7.

53



plans tha t would effectively eradicate the four basic uncon­
stitutional conditions on a systemwide basis. In two 
instances (segregation and underfunding), the district court 
found that the State had defaulted in its obligation to come 
forward with any plan at all, and in the other two cases (in­
ferior education and physical deterioration), the court found 
as fact that the State defaulted in its obligation to come for­
ward with a minimally effective plan. The district court 
thereupon proceeded either to order implementation of the 
only effective plan before it (usually with modifications to 
enhance effectiveness, equity and efficiency) or, in default 
by both constitutional violators,79 to devise its own remedy. 
In each case, the plan ordered by the court conformed in 
both nature and scope to the precise unconstitutional condi­
tion found: systemwide educational improvements were 
arrayed against the State’s systemwide degradation of the 
KCMSD’s educational product, and this Court affirmed; the 
violation’s systemwide and broadscale propulsion of white 
children out of the vast majority of KCMSD schools was met 
with a systemwide magnet school plan to bring the white 
children back to those schools; “crumbling” buildings were 
carefully identified and slated for capital improvements; 
and the violation-driven refusal of the majority white elec­
torate of the KCMSD to provide adequate operating funds, 
as well as the State legislature’s refusal to authorize alter­
native taxing sources necessary to fund the remedy, were 
reversed.

Having scrupulously adhered to the substantive and pro­
cedural guidelines governing the development of school 
desegregation remedies and having based its plan on viola­
tion and effect findings tha t the State does not challenge, 
the plan ordered by the district court accordingly must be 
upheld by this Court unless it amounts to an abuse of dis­
cretion. Given the weeks of hearings, months of delibera­
tions, and years’ worth of findings and conclusions tha t the

79 Statement of Facts, Section IVD.2., supra at 37.

54



district court has devoted to the remedial process80 — and 
given the State’s consistent and repeated default in its duty 
to assist the district court in devising a remedy — the State 
simply cannot be heard now to, and apparently does not, 
contend that taken as a whole, the effective remedy ordered 
is an abuse of discretion.

II. THE DISTRICT COURT PROPERLY ADOPTED 
PLANS TO ERADICATE THE FOUR MAJOR 
EFFECTS OF THE CONSTITUTIONAL 
VIOLATIONS.

Having found the constitutional violations of the State 
and KCMSD to have four continuing effects (inferior educa­
tion, segregation, underfunding and capital deterioration), 
and having found all those effects to be systemwide, the dis­
trict court in a series of orders required the implementation 
of a comprehensive desegregation plan designed to eradi­
cate effectively those continuing effects. As is plain from the 
simple comparison tha t follows of each component of the 
plan and the portion of the violation and effects which that 
component remedies, the equitable commensurate principle 
of Swann, Milliken I, and Milliken II  not only justifies, but 
for the most part commands, the remedy ordered by the dis­
trict court.

A. To Remedy Inferior Education.
To remedy inferior education, the court found the plan of 

the State for educational enhancements to fall short of the 
minimum effectiveness required to improve education in 
KCMSD. Although it found some components of the State’s 
plan worthy of inclusion in the educational enhancement 
component of the remedy, it adopted substantially the plan

80See Jenkins, 593 F.Supp. 1485; Jenkins, 639 F.Supp. 19 (reporting 
remedy orders of June 14, 1985 and June 16, 1986); Order, November 12, 
1986; Order, April 29, 1987; Order, July 6, 1987; Order, August 19, 1987; 
Order, August 24,1987; and Jenkins, 672 F.Supp. 400.

55



submitted by KCMSD and ordered it implemented. This 
Court affirmed. Jenkins I, 807 F.2d 657.

B. To Remedy Segregation.
Having found that the violation caused white students to 

abandon the district for private and suburban schools, with 
resulting systemwide segregative effects on KCMSD, the 
district court solicited plans to eradicate those effects. The 
State proposed no plan, and to date still offers none, to 
effect desegregation and attraction of non-minority stu­
dents back to KCMSD. The district court found that 
KCMSD’s plan for magnet schools, the only plan before it, 
was necessary to cure, and was capable of curing, the viola­
tion. Jenkins, 639 F.Supp. at 34. It found that KCMSD’s 
magnet school plan “can attract non-minority enrollment,” 
that the “individual benefit for each of those students [par­
ticipating in the plan] will be very large,” id. at 54, that it 
“is so attractive that it [will] 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.” Order, November 12, 1986 at 3. The dis­
trict court found the long range magnet school plan to be 
equitable because its systemwide implementation avoids 
the creation of a two-tiered system of schools, an inequity 
“avoided by the KCMSD magnet school plan.” Id. at 3.81 The 
district court found the plan to be efficient noting that 
while “the resources requested are substantial,” the budget 
and “estimated costs are reasonable,” and that the long­
term benefit of a “greater educational opportunity in an

81 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) and Davis v. East 
Baton Rouge Parish School Bd., 721 F.2d 1425, 1437 n.10 (5th Cir. 1983) 
(magnets could create new dual system of white magnets and black reg­
ular schools) with the systemwide plan ordered by the district court 
here, Order, November 12, 1986 at 3, KCMSD Ex. 2, September 15,1986 
which promises to desegregate KCMSD equitably.

56



integrated environment is worthy of such an investment.” 
Id. at 4.82

The State makes two complaints about the magnet school 
plan, neither of which is well-founded. First, the State com­
plains that the remedy is systemwide and it attempts on a 
systemwide basis to attract back to the district the non­
minority children caused to abandon the district by the vio­
lation. The State, however, has not challenged the district 
court’s findings that its violations: (1) caused whites in sub­
stantial numbers to abandon what the State led those 
whites to conclude were inferior black schools, then an 
inferior black district, and (2) tha t the state-impelled white 
desertion segregated the system as a whole. The State 
accordingly has no basis on which to object to a remedy 
designed to eradicate the segregative condition which was 
caused by the State’s violation — especially where the 
remedy almost precisely reverses the process through 
which the State’s violation caused that offending condition. 
By making the now predominantly black KCMSD system 
educationally superior to its former inferior state and 
thereby attracting whites back to the system, the magnet 
school plan ordered by the district court will eradicate the 
systemwide effects of the State’s violation which continue to 
offend the constitution.

82 The use of magnet schools to effect desegregation has a long history. 
In this Circuit magnet schools have been approved in Adams v. United 
States, 620 F.2d at 1296-97, Liddell III, 667 F.2d at 658, Clark v. Board 
of Educ. of Little Rock, 705 F.2d 265, 269, 272 (8th Cir. 1983) and Lid­
dell VII, 731 F.2d at 1309-11 (citing one of the authors of KCMSD’s plan 
(Levine) and the Chairman of the Desegregation Monitoring Committee 
(Eubanks) here on the desegregative potential of magnet schools, Levine 
and Eubanks, Attracting Non-minority Students to Magnet Schools in 
Minority Neighborhoods, 19 Integrateducation 52 (1981)). Other circuits 
approving magnet schools include Arthur v. Nyquist, 712 F.2d 809, 811- 
13 (2d Cir. 1983), cert, denied, 466 U.S. 936 (1984); Tasby v. Wright, 713 
F.2d 90 (5th Cir. 1983); Berry v. School Dist. o f Benton Harbor, 698 F.2d 
813, 819 (6th Cir.), cert, denied, 464 U.S. 892 (1983).

57



Second, the State complains about miniscule components 
of the plan ordered by the district court. State’s Brief at 55- 
57. However, having failed to provide the district court with 
any plan of its own choosing, with any assistance in devis­
ing a plan or with any suggestions for eradicating segrega­
tion, the State is simply in no position now to try to unravel 
a comprehensive plan by attempting to focus in isolation on 
details that it finds inappropriate. In any event, the State is 
asking this Court to second-guess the district court on pre­
cisely the kinds of contextualized details that lie firmly 
within the remedial discretion of the district court.83

83 See, e.g., State’s Brief at 55-57 (criticizing planetarium, log cabins, 
model United Nations lab, etc.). Each such detail of the remedy orders, 
which together form a comprehensive desegregation plan for KCMSD, 
was the subject of proof before the district court as to its desegregative 
importance, educational appropriateness and financial reasonableness. 
Distinctive educational themes, and the facilities that enable their 
execution, are at the heart of the plan to desegregate KCMSD schools by 
attracting non-minority, voluntary enrollment. Tr. September 15,1986 at 
96; Tr. August 4, 1987 at 626-29. The district court found the magnet 
plan to be “crucial to the success” of the desegregation plan and the 
facilities improvements “necessary to carry out” the program. Jenkins, 
672 F.Supp. at 406. Without challenging those specific findings the 
State, nonetheless, targets for criticism a few isolated components. Log 
cabins are classrooms with four or more doors, work/study benches and 
teaching equipment to enable a teacher, for example, to demonstrate soil 
testing or elementary taxonomy, have the elementary students step out­
side to collect soil samples or plant specimens and return to the class­
room to conduct their own tests or taxonomical comparisons, repeating 
the exercises as the lessons progress. Tr. August 6, 1987 at 626-29. By 
offering education in the midst of the outdoors environment, this 
elementary magnet theme offers distinctive opportunities unlike those 
available in surrounding districts, opportunities designed to be attrac­
tive to some students. The magnet themes were chosen to appeal to stu­
dents and parents with special interests, interests in astronomy, the 
environment, international studies and other subjects. Each is designed 
to attract enough students to desegregate the schools where the theme 
is offered and together to attract enough to desegregate the district. The 
district court found these themes to be “carefully chosen,” Order, 
November 12, 1986 at 2, and likely to succeed. Jenkins, 672 F.Supp. at 
405. Without a planetarium at a science school, a log cabin at an

58



C. To Remedy Physical Deterioration.
As to capital improvements, the district court found that 

the State’s plan fell far short of minimal effectiveness, pro­
posing a “wait and see,” “patch and repair” approach that 
“would seriously damage the prospects of true desegrega­
tion in the KCMSD.”84 These findings are based on evi­
dence, Tr. August 12, 1987 at 461-64, 482-84, showing that 
the State’s plan would, in fact, have been counterproductive 
to its intended purposes. It would not have adequately 
repaired KCMSD buildings and restored the educational 
environment; it would not have eliminated all the health 
and safety hazards; it could not have been accomplished for 
its projected budget; and it would have impeded the attrac­
tion of non-minority students to the district and thus per­
petuated the offending conditions it should have been 
designed to eradicate. Jenkins, 672 F.Supp. at 403-05. The 
State does not challenge the district court’s finding that the 
State plan was not minimally adequate.

The district court next found that the KCMSD plan was 
essential to cure the violation for a variety of reasons: it 
includes special facilities “crucial” to the successful desegre­
gation of the district in accordance with the magnet school 
plan; it provides for expansions of present facilities “neces­
sary to provide a good learning environment”; it renovates 
facilities to eliminate health and safety hazards and 
improve the attractiveness and comfort level to restore the 
KCMSD to an environment where “children can learn”; and 
it constructs new buildings when renovation is not economi­

environmental science school, or a miniature United Nations lab at the 
international studies high school, those themes will be less distinctive, 
thus less attractive, than surrounding school districts. The district court 
specifically found that “KCMSD cannot effectively implement the mag­
net programs without [the] special facilities” it approved. Id. at 406. 
Even though the State is critical of a few of those facilities it does not 
challenge the fact finding that they are a necessary part of the desegre­
gation remedy.

84 Jenkins, 672 ESupp. at 404.

59



cally advisable.85 On this basis the district court ordered 
implementation of the KCMSD plan for capital improve­
ments.86

As with the magnet school plan, the post-Brown II  case 
law required the district court to implement the KCMSD 
plan. By failing to challenge the district court’s basic find­
ing that the State’s violations “contributed to an atmos­
phere which prevented the KCMSD from raising the funds 
to maintain its schools,” Jenkins, 672 F.Supp. at 403, with 
the result that KCMSD’s “physical facilities have literally 
rotted,” id. at 411, the State has no basis on which to chal­
lenge the remedy ordered by the district court to eradicate 
those systemwide effects.

Relying principally upon Edelman v. Jordan, 415 U.S. 651 
(1974) and Papasan v. Allain, 408 U.S. — , 106 S.Ct. 2932 
(1986), the State argues that the district court violated the 
limitations imposed by the Eleventh Amendment upon the 
exercise of federal judicial power. State’s Brief at 27-33.

85Id. at 405-08.
86 As early as 1968 the Supreme Court had recognized the necessity of 

addressing deteriorated school facilities in desegregation cases. In 
Green, 391 U.S. at 436, district courts were required to consider prob­
lems arising from the physical condition of school buildings. In Swann 
the Court noted that in eliminating the effects of segregation “corrective 
action must be taken with regard to the maintenance of buildings.” 
Swann, 402 U.S. at 18. In this case capital improvements have previously 
been affirmed, Jenkins I, 807 F.2d at 685; and this Court has required 
capital improvements in other cases, including Liddell VII, 731 F.2d at 
1319 (“restore the city facilities to a constitutionally acceptable level”) 
and Clark v. Board of Educ., 449 F.2d 493 (8th Cir. 1971), cert, denied, 
405 U.S. 936 (1972). Capital improvements have also been ordered in 
desegregation cases in other circuits. See, e.g., Taylor v. Board of Educ., 
294 F.2d 36 (2d Cir. 1961); Wheeler v. Durham City Bd. of Educ., 346 
F.2d 768 (4th Cir. 1965); Cisneros v. Corpus Christi Independent School 
Dist., 459 F.2d 13 (5th Cir. 1972); Monroe u. Board of Comm’rs., 427 F.2d 
1005 (6th Cir. 1970); United States v. School Dist. o f Cook County, 404 
F.2d 1125 (7th Cir. 1968), cert, denied, 402 U.S. 943 (1971); Pitts v. 
Freeman, 755 F.2d 1423 (11th Cir. 1985).

60



(See, e.g., “federal courts . . .  are sharply limited in their 
power to impose ‘make whole’ remedies on state officials,” 
id. at 29, and the district court’s orders here “show no . . . 
respect for the limits of judicial power,” id. at 32). The iden­
tical arguments were disposed of in Milliken II. There the 
State of Michigan argued, as Missouri does here, that a dis­
trict court order requiring it to contribute to the cost of edu­
cational components in a desegregation remedy was indis­
tinguishable from an award of money damages barred by 
the Eleventh Amendment. Milliken II, 433 U.S. at 288-90. 
The Supreme Court, distinguishing Edelman v. Jordan, 
disposed of tha t argument by finding that the Eleventh 
Amendment prohibits judgments against state officials for 
accrued liability representing retroactive payments, Milli­
ken II, 433 U.S. at 289, but that suits are not barred by the 
Eleventh Amendment if they seek funds “ ‘as a necessary 
consequence of compliance in the future with a substantive 
federal-question determination.’ ” Id. at 289 (quoting Edel­
man v. Jordan, 415 U.S. at 668).

The Supreme Court found that educational components of 
a desegregation plan fit “squarely within the prospective- 
compliance exception” of the Eleventh Amendment. Id. at 
289. Even though the educational components were com­
pensatory in nature,87 the Supreme Court held, that “does 
not change the fact that they are part of a plan that oper­
ates prospectively to bring about the delayed benefits of a 
unitary school system” and therefore “such prospective

87 The Court noted that Swann requires public officials to take all 
steps necessary “to eliminate from the public schools all vestiges of 
state-imposed segregation,” Swann, 402 U.S. at 15, and concluded that 
since the “victims o f. . . de jure segregated schools will continue to expe­
rience the effects of segregation until such future time as the remedial 
programs can help dissipate the continuing effects of past misconduct,” 
Milliken II  433 U.S. at 290, such a compensatory plan “looks to the 
future” rather than to payment to victims for “conduct and consequences 
completed in the past.” Id. at n.21.

61



relief is not barred by the Eleventh Amendment.” Id. at 
290.88

The orders entered here by the district court meet pre­
cisely the requirements of Milliken II. Each remedies in the 
future the constitutional violations of the defendants; each 
compensates not the victims who suffered in the past from 
those violations, but seeks instead to avoid that suffering 
for present and future generations. By eradicating the con­
tinuing effects of the violations, each is tailored to end pros­
pectively a condition tha t offends the constitution, Milliken 
/, 418 U.S. at 738; and each requires defendants tha t have

88 The State relies on Meiner v. Missouri, 673 F.2d 969 (8th Cir.), cert, 
denied, 459 U.S. 909, 916 (1982) to support its proposition that the 
Eleventh Amendment prohibits state payment for capital improvements 
during a period of time in which it had no obligation to maintain the dis­
trict’s buildings. The basis of the State’s argument is the Eighth Circuit’s 
finding in Meiner that compensatory educational services measured in 
terms of monetary loss resulting from a past breach of duty are barred 
by the Eleventh Amendment. The facts in Meiner are analogous to those 
in Edelman v. Jordan, 415 U.S. 651, which was held inapplicable to 
desegregation remedies in Milliken II. The plaintiff in Meiner was a 
young handicapped girl who sought money to pay for her education 
beyond age twenty-one in order to be “restore[d] to the developmental 
level [she] would have achieved” by age twenty-one but for the allegedly 
inadequate education provided by the state defendants. 498 F.Supp. 449, 
450 (E.D. Mo. 1980).

Similarly, in Edelman the plaintiffs were requesting “all [disability] 
benefits wrongfully withheld.” Edelman, 415 U.S. at 656. The plaintiffs 
in Jenkins, on the other hand, are not requesting a retroactive reward of 
money to individual plaintiffs to match the monies diverted from use in 
the KCMSD’s facilities because of the State’s segregative acts. Instead, 
the Jenkins class is requesting capital improvement funds necessary for 
the constitutional violators to comply in a prompt and effective manner 
in the future with their affirmative duty to desegregate the KCMSD. 
The State’s reliance on Meiner is particularly unpersuasive in light of 
this Court’s review of its earlier decision on the denial of compensatory 
educational services based on the Eleventh Amendment. On review, this 
Court upheld imposing liability for compensatory educational services 
on the state defendants despite the Eleventh Amendment. 800 F.2d 749, 
753 (8th Cir. 1986).

62



not yet satisfied their affirmative obligations to remove all 
vestiges of de jure segregation, Dayton II, 443 U.S. at 537, 
and to do so “forthwith .” Swann, 402 U.S. at 14. The district 
court devised the educational improvements to remedy 
inferior education, not in the past but in years to come, just 
as magnet schools are required to integrate segregated 
schools in the future. Improved facilities, and the revenue to 
achieve them, are “necessary to carry out” in the future, 
Jenkins, 672 F.Supp. at 406, the desegregation plan ordered 
by the district court. This remedy “simply does not involve 
individual citizens’ conducting a raid on the state treasury 
for an accrued monetary liability.” Milliken II, 443 U.S. at 
290 n.22. As in Milliken II, this remedy “is wholly prospec­
tive,” id., and the Eleventh Amendment, quite simply, is not 
implicated.89

D. To Remedy Underfunding.
1. The Court Ordered Funding Plan. During the three- 

year period when it was devising remedies for the first 
three major effects of the State’s and KCMSD’s violation, 
the district court repeatedly received evidence establishing 
that the fourth — underfunding — effect of the violation 
persisted and questioning the ability of KCMSD to finance 
its share of the desegregation costs.90 In two interim orders,

89 This Court has agreed under similar circumstances. See Liddell 
VII, 731 F.2d at 1308 n.13 (cost of St. Louis desegregation remedy “poses 
no eleventh amendment problems”). Papasan v. Attain, 478 U.S. , 106 
S.Ct. 2932 (1986), does not aid the State’s argument. There the plaintiffs 
sought a restoration of the lost corpus of a land trust in an amount 
measured by that past loss. The Court found this to be an “accrued 
monetary liability,” id. at 2941, prohibited by the Eleventh Amendment. 
Here, as in St. Louis and Detroit, there is no “accrued monetary liabil­
ity,” only a prospective and unsatisfied affirmative duty.

"See, e.g., affidavits and declarations accompanying KCMSD Motion 
for Court Order Enjoining Proposition C Levy Rollback, August 8,1986; 
KCMSD Motion for Court Order Enjoining the Missouri State Depart­
ment of Elementary and Secondary Education from Withholding 
KCMSD State Aid, October 10,1986; KCMSD Memorandum Concerning

63



June 16, 1985 and August 25, 1986, the district court tem­
porarily addressed the violations’ underfunding effects by 
enjoining for two successive years the statutory Proposition 
C rollback.91 In the meantime, the district court encouraged 
both the State and the KCMSD to come up with and to 
implement alternative funding procedures designed to over­
come the underfunding effect of the violation.92

By the start of the 1987-88 school year, however, the 
KCMSD had a desegregation budget deficit too large to be 
funded by an extension of the rollback injunction. In addi­
tion, the district court at tha t point faced a default by each 
of the constitutional violators of their obligation to take 
affirmative steps to overcome the underfunding vestige of 
the violation. Thus, despite “diligent” efforts of its current 
leadership, Order, August 25, 1986 at 4, the KCMSD was 
found “unable with its present resources to raise revenues 
to fund its share” of ordered desegregation expenses 
because its electorate continued to refuse — as the majority 
white electorate had refused during the nineteen years 
since the district’s schools became majority black — on four 
occasions during 1986-87 to raise the district’s operating 
levy or to increase the district’s bonding capacity. Jenkins, 
672 F.Supp. at 411. Likewise, the State legislature refused

Potential Revenue Sources, April 1, 1987; KCMSD Motion For Flirther 
Funding Relief, May 8, 1987; Supplemental Memorandum in Support of 
the KCMSD Motion for Further Funding Relief, August 25, 1987 and 
KCMSD Motion for Order Requiring the State to Comply with Funding 
Orders, August 27,1987. The State did not contest any of this extensive 
evidence nor any factual issues as to KCMSD’s ability to pay.

91 The rollback, Mo. Rev. Stat. 163.087, 164.013 (1986), provides that 
school districts must reduce their property tax levies by an amount 
equal to their revenue from the one-half of the Proposition C sales tax 
distributed to districts for general education purposes.

92 See Order, November 12,1986 at 7 (recommendation by district court 
to Missouri Legislature of various kinds of legislation to give KCMSD 
“more versatility” to raise funds for desegregation).

64



to adopt legislation suggested by the district court93 and 
others to help KCMSD fund its share despite a recalcitrant 
electorate, id., including through sales, earnings or income 
taxes. Finally, the State executive officials who are defen­
dants in the case — the Governor, Attorney General, State 
Board of Education and Department of Elementary and 
Secondary Education — simply ignored the district court’s 
repeated requests for proposals to cure the underfunding 
effects of the violations.94

By late 1987, therefore, the district court was faced with 
(1) a default by all the defendants, (2) the consequently 
unmitigated underfunding effect of the violations, (3) the 
likelihood tha t the other three portions of the remedy (im­
proved education, desegregation, and capital improvements) 
would fail for lack of funding, and not the least, (4) the

93 Jenkins, 672 F.Supp. at 411 (such legislation was introduced but 
failed to pass).

94 In August, 1986 in response to KCMSD’s motion to extend the Prop­
osition C rollback for 1986-87 the State argued that KCMSD should have 
to pay its share, did not oppose the rollback injunction continuing the 
court ordered tax increase and offered no proposals to enable KCMSD to 
raise its share. Suggestions of the State Defendants Regarding the 
KCMSD Motion to Enjoin the Proposition C Rollback, August 19, 1986 
(admitting “that there is precedent for such action [raising taxes by 
court order] in very limited circumstances,” id. at 2.). In the Spring of 
1987, in response to requests from the district court, the parties submit­
ted information on local taxes; the State provided data on revenue from 
within KCMSD generated by various state taxes but no proposals for 
assisting KCMSD. State’s Response to Request for Advice on Revenue 
Results for Increases in Local Taxation, June 8,1987. In September, 1987 
the State responded to plaintiffs’ motion to raise taxes for KCMSD’s 
share of desegregation expenses but it neither opposed the requested 
tax increase nor suggested any alternative proposals to help KCMSD. 
State’s Supplemental Memorandum Concerning KCMSD Motion for 
Funding Relief, September 14, 1987. Remarkably, when the school dis­
trict could not meet its own obligations, the State offered no alternative 
proposals even in response to KCMSD’s motion that the State itself be 
required to pay KCMSD’s share.

65



unfulfilled mandate of this Court en banc to fund all neces­
sary remedies fully, including through tax increases, if nec­
essary.95 Faced with these exigencies, the district court 
devised a funding plan responsive to the Constitution and 
this Court.

In devising its funding plan, the district court made spe­
cific findings on the relative fault of the parties, their rela­
tive ability to pay, and the possible effects of alternatives on 
the intended beneficiaries of the plan.96 It then allocated 
the costs of the remedy to the two violators, requiring the 
State to pay approximately 75% and KCMSD 25% of the 
desegregation costs.97 To enable KCMSD to pay its share of 
the remedial expenses the district court ordered two tax 
increases. First, it ordered the property tax increase the 
district had long proposed but tha t the white majority elec­
torate of the district, as a direct result of the violations, the 
district court found,98 had long refused to approve. Second, 
it ordered collection of an income tax surcharge on income 
earned within the KCMSD, a tax the state legislature had 
earlier tha t year considered but ultimately rejected along 
with all other funding proposals before it. These latest 
rejections violated the State’s affirmative duty99 to take

95 Jenkins I, 807 F.2d at 686
96 See Order, July 6,1987 at 12-15.
97Id. at 14; except that the State and KCMSD are to each pay 50% of 

the costs of the long range capital improvement plan. Jenkins, 672 
F.Supp. at 408.

98 Jenkins, 672 F.Supp. at 403 (State’s violations contributed to pre­
venting KCMSD from raising funds). See also attachments to KCMSD 
Motion for Court Order Enjoining Proposition C Levy Rollback, August 
8,1986.

99Swann, 402 U.S. at 13 (quoting Green, 391 U.S. at 439) (Defendant 
must “come forward with a plan that promises realistically to work . . . 
now”).

66



effective measures within its power to eradicate the effects 
of the violations.100

2. The Efficacy of the Court Ordered Funding Plan.
a. Apportioning Fault between the State and 

KCMSD.
On July 6,1987, on remand from this Court under Fed. R. 

Civ. P. 60, the district court explicitly found as fact, after 
long and careful hearings and deliberations, that the State 
bears three times more responsibility for the violations and 
their effects than the KCMSD. The court thereupon allo­
cated remedial costs on precisely the same 3 to 1 basis. The 
district court’s fault-apportioning findings are amply jus­
tified by the record and are not challenged here by the 
State.

Contrary to the State’s assertions, State’s Brief at 58-78, 
the actions of the district court in apportioning remedial 
costs according to its apportionment of fault were valid, 
indeed constitutionally required. First, allocation of reme­
dial costs between parties based on comparative fault is 
required by the overriding remedial imperative in school 
desegregation cases tha t the nature and scope of the viola­
tion determine the nature and scope of the remedy. Swann, 
402 U.S. at 16; Milliken I, 418 U.S. 738; Milliken II, 433 U.S. 
at 281-282. Where, as here, a party has been found to have 
contributed vastly more than another party to cause a con­
stitutional violation and effects, Milliken IPs equitable 
requirement of commensurating between violation and 
remedy demands that the more blameworthy party bear 
more of the remedial burden. See Argument I.A.l.a., supra 
at 45.

The district court’s allocation also is consistent with gen­

100Dayton II, 443 U.S. at 538 (the measure of conduct of a defendant 
with an “unsatisfied duty to liquidate a dual system is the effectiveness, 
not the purpose,” of its actions).

67



eral tort law principles as they apply to joint and several 
tortfeasors such as the district court found here.101 Restate­
ment (Second) of Torts 886A appendix at 197 (1977). See, 
e.g., Jenkins, 672 F.Supp. at 408. By contrast, those same 
constitutional principles of comparative fault forbid the 
equal division of costs between two constitutional 
tortfeasors tha t the State advocates here. State’s Brief at 
78-87. Under all of the controlling principles of law, a 50-50 
division is appropriate only in those cases, not applicable 
here, when the district court either equally apportions fault 
or has failed or is unable to apportion fault.102 See Summers 
v. Tice, 199 P.2d 1, 4 (Ca. 1943); see Statement o f Facts 
IVD.l., supra at 35 n.52.

b. The Property Tax Increase.
The Milliken II  principle also supports the property tax 

increase ordered by the district court. The “condition that 
[here] offends the Constitution”103 includes the failure of 
KCMSD’s majority white electorate for nearly twenty years

“ Ninety percent of the states “now utilize some form of comparative 
fault or negligence.” Gustafson v. Benda, 661 S.W2d 11,13 (Mo. 1983) (en 
banc). Missouri has judicially adopted the doctrine of comparative fault 
among joint tortfeasors in compliance with the Uniform Comparative 
Fault Act §§ 1-11, 12 U.L.A. 38-49 (Supp. 1987). Id. at 15. The Uniform 
Comparative Fault Act requires an apportioning of damages among the 
claimants and defendants according to their percentage of fault based 
on the nature of their conduct and the extent of resulting damages as 
determined by the finder of fact. See also, Missouri Pacific Railroad Co. 
v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. 1978) (en banc).

In short, the district court’s 75-25 division of costs is in accord with 
the nationally accepted principle of comparative fault as well as the 
remedial guidelines of desegregation law which require that “the State 
defendants must, except where statutes, legislation, or normal practice 
provide for a greater reimbursement, share jointly and severally in the 
cost.” Reed v. Rhodes, 500 F.Supp. 404, 425-6 (N.D. Ohio 1980).

102 This Court’s 1986 decision is-an example of a 50-50 split made in the 
absence of findings apportioning fault.

103Milliken II, 433 U.S. at 282.

68



to authorize the collection of property tax revenues neces­
sary to enable the KCMSD to function at a level minimally 
adequate to meet state educational standards for school dis­
tricts104 or to maintain its physical plant in a safe and 
healthy condition. Where the violations caused the electo­
rate to withhold property tax revenues from the district, the 
remedy most closely tailored in nature and scope to those 
violations is to enjoin the offending condition — i.e., to 
make available to the district the property tax revenues 
that the violation has withheld.

The situation in KCMSD accordingly parallels that in 
Griffin v. County School Board of Prince Edward County, 
377 U.S. 218 (1964).105 There local school officials refused to 
operate and fund a public school system subject to a 
desegregation order. The Supreme Court affirmed an order 
that enjoined tha t refusal and required the school district 
(1) to operate a system of desegregated schools and (2) to 
collect the taxes necessary to fund fully such non-dis­

104 Jenkins, 639 F.Supp. at 26 (“AAA . . . communicates to the public 
that a school system . . .  has the resources necessary to provide mini­
mum basic education”).

105 The State attempts to diminish the significance of Griffin by argu­
ing that no authority was cited by the Supreme Court for the premise 
that federal courts may order tax increases in furtherance of constitu­
tional principles in desegregation remedies. State’s Brief at 66. See also 
Brief of Amici Curiae Washington Legal Foundation at 6. This assertion, 
however, is contrary to the endurance of the Constitution as “the funda­
mental and paramount law of the nation,” Marbury v. Madison, 5 U.S. (1 
Cranch) 137,177 (1803), and the federal judiciary-most particularly the 
Supreme Court—as supreme authority “in the exposition of the law of 
the Constitution” serving to “guard against resistance to or evasion of 
its authority, on the part of a State.” Cooper v. Aaron, 358 U.S. 1, 18 
(1958) (quoting Abelman v. Booth, 62 U.S. (21 How.) 506, 524 (1859)). The 
United States Supreme Court, as foremost interpreter of constitutional 
law, needs cite no other authority than the Constitution and the princi­
ples it embodies.

69



criminatory schools.106 The property tax ordered here is well 
within the discretionary authority of the district court 
because it simply restores KCMSD to the position it would 
have been in but for the constitutional violation.107

This Court first interpreted Griffin108 in United States v. 
Missouri, 515 F.2d 1365 (8th Cir.) (en banc), cert, denied,

106 The fact that the school district of Prince Edward County was 
statutorily entitled to raise taxes for the education of its students with­
out approval by its electorate should not distinguish it from the KCMSD. 
The constitutional principles and violations in question in the two cases 
are substantially similar; therefore, the available remedy should be as 
close. Contrary to assertions of the State and amici, federal court power 
to increase taxes to remedy unconstitutional segregation cannot be 
based on whether state law authorizes school boards to levy taxes as 
“the power that is theirs,” Griffin, 377 U.S. at 233, nor on whether it 
allows voters to establish tax levies for education.

Cf., Little Rock School Dist. v. Pulaski County Special School Dist., 
Nos. 87-1404, et al., slip op. at 12 (8th Cir. Feb. 9,1988) (quoting West Vir­
ginia State Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943)) (“the 
right to a public education free of racial discrimination . . . .  like the 
right ‘to life, liberty, and property, to free speech, a free press, freedom 
of worship and assembly, and other fundamental rights!,] may not be 
submitted to vote; [it] depend[s] on the outcome of no elections’ ”).

107 See Milliken II, 433 U.S. at 280.
108 The Fifth Circuit interpreted Griffin to hold “that district courts 

have the power to require the persons or agencies operating a public 
school system to levy taxes in order to raise funds adequate for the oper­
ation and maintenance of a public school system without racial discrimi­
nation.” Plaquemines Parish School Board v. United States, 415 F.2d 
817, 833 (5th Cir. 1969). The Fifth Circuit, however, found Griffin 
inapplicable to the facts before it and reversed the district court’s 
requirement that the school board apply for federal financial aid in 
funding its desegregation plan. Contrary to the assertions of the State, 
Plaquemines is not relevant here because the issue of court ordered tax 
increases was not before that court. That court’s statement of the limita­
tions cited by the State, State’s Brief at 68 n.56, of federal court taxing 
power is dictum and directly contrary to Griffin which limits court- 
ordered tax increases only by the requirement that such taxes be neces­
sary to effect the “discontinuance of . . . racially discriminatory prac­
tices.” Griffin, 377 U.S. at 233.

70



423 U.S. 951 (1975). In United States v. Missouri this Court 
upheld a tax increase to $5.38 per $100 of assessed property 
valuation109 for the merged Berkeley, Kinloch and Ferguson 
School Districts. Before court-ordered consolidation, two of 
the three former school districts had lower tax rates than 
the resulting merged district. Notwithstanding the Mis­
souri constitutional requirement tha t the tax levy rate not 
be raised above $3.75 without a two-thirds vote, Mo. Const, 
a rt X, 11(c), and the Missouri decisional law requirement 
that tax levels in annexed districts remain in force until 
altered by a two-thirds vote, State of Missouri ex rel. Fort 
Osage School District v. Conley, 485 S.W.2d 469, 472 (Mo. 
App. 1972), this Court upheld a tax increase in the former 
Berkeley and Kinloch districts without voter approval.

Finally, in Liddell VII this Court interpreted Griffin to 
hold that “the district court may order an increase in taxes 
to fund schools where the State has defaulted on its obliga­
tion to provide an equal educational opportunity to all stu­
dents.”110 Liddell VII, 731 F.2d at 1320. Liddell VII further 
sets out the procedural guidelines to be followed before a

109 The fact that this Court reduced the levy from $6.03, as found by 
the district court, to $5.38, the levy of the former Ferguson district, is no 
basis of distinction from the tax increase in KCMSD as the amici argue. 
See, Brief for the United States As Amicus Curiae at 19; Brief of Amici 
Curiae Washington Legal Foundation at 11; Brief for Appellants Jackson 
County, Missouri at 17; Brief of Amicus Curiae State of Kansas at 4. 
This Court only reduced the levy because the State argued that other 
funds would be available to the merged district through acts of the Mis­
souri legislature so that $5.38 would be adequate to fund the desegrega­
tion plan. United States u. Missouri, 515 F.2d at 1372.

110 Liddell VII also finds that, contrary to the assertions of the State, 
Evans VIII, 582 F.2d 750, is in accord with its interpretation of Griffin. 
See State’s Brief at 68. The exception in Evans which allows court 
ordered tax increases exists in this case. That is, the State by its inac­
tion in failing to help KCMSD devise alternate funding proposals for its 
share of the remedy has caused the allocation of “substantially insuffi­
cient funds, to operate the remainder of the school system.” Id. at 780.

71



district court orders a tax increase.111 Once these procedural 
guidelines have been met, as they were here, it would be 
“anomalous to suggest that the district court has the power 
to disestablish a dual system but does not have the power to 
fashion an appropriate remedy [including a tax increase].” 
Id. at 1321 (quoting U.S. v. Missouri, 515 F.2d at 1372). On 
numerous occasions since Liddell VII this Court has reiter­
ated the appropriateness of court ordered tax increases in 
circumstances like those that presently exist in KCMSD.

111 The district court here followed precisely the funding guidelines this 
Court delineated in Liddell VII. Liddell VII provides:

[T]he district court should, first, promptly determine the 
amount of money that will be required . . .  to fund the 
desegregation order . . . .  Second, the district court should 
determine whether the City Board is able, with its own 
resources to fund its share of the costs . . . .  Third, if the dis­
trict court determines that the City Board lacks resources 
sufficient to fund its share of the desegregation order, it 
shall consider alternative sources of revenue. These alterna­
tives include, but are not limited to: submission of a referen­
dum to the voters for an increased operating levy; or authori­
zation of the City Board by the State legislature to impose 
non-real estate taxes within the city. Fourth, if the voters 
refuse to approve a higher tax levy, or if the legislature fails 
to authorize the City Board to raise taxes from nonproperty 
tax sources, or if the City Board and the State, as joint 
tortfeasors, are unable to agree on an alternate method of 
raising the City Board’s share of the cost, the district court 
shall conduct an evidentiary hearing and thereafter enter a 
judgment sufficient to cure the constitutional violations . . . .

Liddell VII, 731 F.2d at 1323. Many of the amici briefs argue that 
these guidelines were not met because the district court did not hold an 
evidentiary hearing. See e.g., Brief for Appellant Jackson County, Mis­
souri at 19-25; Brief of Amicus Curiae State of Kansas ex rel. Hayden & 
Stephan at 8. These arguments, however, must fail because they disre­
gard the fact that all the parties — the only proper participants in any 
such evidentiary hearing — waived the necessity of such a hearing. A 
hearing under such circumstances would have been an empty formality 
since all the parties introduced into the record their evidence by docu­
ments and affidavits. See Jenkins, 672 F.Supp. at 411.

72



See e.g., Liddell v. Missouri, 758 F.2d 290, 302 (8th Cir. 
1985) (Liddell VIII), Liddell v. Missouri, 801 F.2d 278, 284 
(8th Cir. 1986) (Liddell IX), and Jenkins I, 807 F.2d at 686.

c. The Income Tax Increase.
The income surtax is also an appropriate remedy. A major 

aspect of the State’s constitutional violation has been a 
default of its affirmative duty to take effective steps to 
eradicate the effects of its violation. Dayton II, 443 U.S. at 
537. Among the most recent violative actions of the State 
has been the State Legislature’s steadfast refusal to pass 
any legislation — including, especially, a 1987 bill112 that 
would have authorized KCMSD to collect an income tax on 
earnings within the district—to enable the KCMSD to meet 
its financial desegregation obligations. See Statement of 
Facts ' IVD.2., supra at 39-40. The State Legislature’s 
refusal occurred even though the district court encouraged 
it to take some effective action and even though the State’s 
joint and several liability with KCMSD made it in the 
State’s own best interest to pass such legislation.

In short, the State’s prior actions caused the majority 
black KCMSD to be underfunded and its recent inaction in 
response to legislation tha t would have increased the dis­
trict’s revenue generating capacity perpetuated that offend­
ing condition. Once again, the nature and scope of the viola­
tion justify the nature and scope of the remedy. The district 
court simply ordered the collection of one of the taxes that, 
but for the State’s continuing violation, would have been 
voluntarily collected.

The income surtax was also well within the discretionary 
authority of the court. It is an intradistrict tax imposed only 
on intradistrict income in much the same manner as the

112 The state legislature need not pass any or every bill introduced but 
it must discharge its affirmative duty to eradicate the underfunding 
effect of its violation by doing something effective. Here it has taken no 
action, thus continuing its violation.

73



extant earnings tax of the City of Kansas City is imposed 
on earnings irrespective of the place of residence of the 
income earner. Accordingly, the income tax surcharge 
imposes a burden only on those businesses and employees 
located within KCMSD who derive benefits from the public 
service provided by KCMSD and who stand most to gain 
economically from an educationally sound public school sys­
tem operated free of the damaging effects of past constitu­
tional violations and capable of graduating adequately 
trained and educated young adults into the city’s workforce.

d. The Funding Order is Equitable to the State 
and Does Not Encroach Upon Principles of 
Federalism or Comity.

The State’s opposition to the tax orders is inappropriate 
since it is the State that most benefits from them. It was the 
State’s invidious racial discrimination that precipitated 
KCMSD’s financial crisis and necessitated the expenditure of 
millions of remedial dollars in the first place. Then, out of an 
effort to treat the State fairly notwithstanding its blatantly 
unfair treatment of its black citizens, this Court and the dis­
trict court moderated the financial burden on the State by 
placing a substantial portion of the remedial burden on the 
much less financially able KCMSD and on the black victims of 
the constitutional violation who form a sizeable portion of the 
patrons of that district.

So too, the tax orders utilize funding mechanisms inten­
tionally chosen to cause the least interference with the pow­
ers of the State. For instance, the district court could have 
ordered the State to advance to KCMSD the money that the 
school district was unable to raise itse lf13 and to continue 
paying KCMSD’s share until the State enacted legislation 
that enables KCMSD to raise locally its own share. Or, the 113

113 Indeed, KCMSD sought precisely that alternative, see KCMSD 
Motion for Further Funding Relief, May 8, 1987, but the district court 
rejected it.

74



district court could have ordered the State to amend its con­
stitution to enable KCMSD to raise taxes. Or, finally, the 
court could have ordered the State to alter its foundation 
formula for education to divert monies from other school 
districts in the State and to direct those funds to districts 
undergoing desegregation.114 Each of these alternatives 
would have increased the financial burden on the State. For 
that reason, the district court chose not to accept them but 
instead to impose the burden on the direct beneficiary of 
the educational services provided by the KCMSD. Nonethe­
less, having unconstitutionally caused the underfunding, 
having been protected from an adverse allocation of funding 
responsibility despite its superior ability to pay, and having 
been spared the full burden of paying the costs of the

114 The district court could have taken such actions despite their inva­
sive effects upon State prerogatives. After the Supreme Court’s decision 
in Brown I, a number of states enacted laws opposing the decision under 
the guise of protecting the sovereignty of the state from encroachment 
by the federal government. The culmination of such laws resulted in 
Cooper v. Aaron, 358 U.S. 1 (1958). Cooper evaluated the proper relation­
ship between state and federal powers in school desegregation cases and 
reiterated the Court’s holding in Brown I. The power of the federal 
judiciary to interpret the equal protection clause in matters of race dis­
crimination in education is derived from federal constitutional authority 
despite the recognition that education (as taxation) is ordinarily the 
province of the states. Id. at 19. This Court agrees. “It was proper for the 
court to do all that reasonably and lawfully could be done to protect and 
effectuate its orders and judgments and to prevent them from being 
thwarted by force or otherwise.” Faubus v. United States, 254 F.2d 797, 
804-805 (8th Cir. 1958), affirmed sub nom. Cooper v. Aaron. “[I]f a state- 
imposed limitation on a school authority’s discretion operates to inhibit 
or obstruct the operation of a unitary school system or impede the dises­
tablishing of a dual school system, it must fall; state policy must give 
way when it operates to hinder vindication of federal constitutional 
guarantees.” North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 45 
(1971). See also, Action v. Gannon, 450 F.2d 1227, 1238 (8th Cir. 1971); 
Haney v. County Board of Education, 429 F.2d 364, 368 (8th Cir. 1970) 
(“[t]e remedial power of the federal courts under the Fourteenth Amend­
ment is not limited by state law”); Brewer v. Hoxie School District No. 
46, 238 F.2d 91, 98-99 (8th Cir. 1956).

75



desegregation plan its violations necessitated, the State 
attacks the funding remedy that most favors its interests.

Notwithstanding the fairness with which the State has 
been treated by this Court and the court below and not­
withstanding the numerous requests and orders to the 
State encouraging it to assist in devising solutions to the 
underfunding crisis of KCMSD, the State legislature has 
voted down all funding proposals that have come before it. 
Likewise, the Governor, Attorney General and the State 
Department of Elementary and Secondary Education, as 
recently as their brief to this Court, have assiduously 
ignored the district court’s request for alternative propos­
als.

As the record makes obvious, the court below, as well as 
the plaintiffs and KCMSD, have been and continue to be 
open to the “different possible ways” for fully funding the 
remedies that the State vaguely mentions in its brief.115 If 
such alternatives exist, and if this Court should conclude 
that the district court abused its discretion in not devising 
and ordering those alternatives, the proper relief would be 
to remand to the district court for evidentiary considera­
tion. Nonetheless, in the a bsence of any indication from the 
State of what those alternatives may be,116 the district 
court’s careful and successful efforts to comply with this 
Court’s and the Constitution’s mandate that the remedies 
be fully funded must be affirmed.

116 State’s Brief at 76.
116 The State’s position that the district court’s best alternative was to 

decrease the desegregation remedy given KCMSD’s inability to pay, 
however, is constitutionally untenable. State’s Brief at 74-78. As Justice 
Powell recognized in Milliken II, the State of Michigan’s -a n d  the State 
of Missouri’s—“basic complaint concerns money, not desegregation.” 
Milliken II, 433 U.S. at 293 (Powell, J., concurring). But “[t]he State’s 
interest in protecting its own budget . . .  is not an interest that is 
related, except fortuitously, to a claim that the desegregation remedy 
may have exceeded the extent of the violations.” Id. at 296. With the

76



The State’s brief sounds as if this school desegregation 
case is the first one in which federalism notions, such as 
those implicated by a remedy order directed at the power to 
tax, have arisen. Recall, however, that the principal argu­
ment of Kansas, South Carolina and Virginia in the cases 
known collectively as Brown v. Board of Education was 
that those same federalism notions protected the states’ 
equally fundamental power to choose how and where to 
educate their children. In Brown, as in Griffin, and as in 
this Court’s decisions in Faubus v. United States, 254 F.2d 
at 806-07, United States v. Missouri, 515 F.2d at 1372, and 
Liddell VII, 731 F.2d at 1308-09, however, the law has been 
firmly established that federalism notions — whether 
derived from the states’ control over taxation, or its control 
over education —do not trump the Equal Protection 
Clause.117 Rather, it is the reverse. The right to a public edu­
cation free of racial discrimination may not be subjugated 
to the notion of state’s rights implicit in the federalism that 
the State here seeks to recall from its discredited past.

exception of the amici from Kansas, the other amici appellants suggest 
“alternative” plans that are either not available or have already failed to 
work. See e.g., Brief for Amici Curiae Icelean Clark, et al. at 9 (suggest­
ing that the political process determine how the desegregation plan is 
funded); Brief for Appellant Jackson County, Missouri at 12 (suggesting 
taxes other than property taxes be increased by KCMSD). But see Brief 
of Amicus Curiae State of Kansas ex rel. Hayden & Stephan at 9 
(suggesting district court remove Missouri voter approval requirement 
for passing levies to fund education).

117 Even such sacrosanct matters as the boundaries between school dis­
tricts must yield to the Equal Protection Clause. Milliken I, 418 U.S. at 
741 (“[bjoundary lines may be bridged where there has been a constitu­
tional violation”).

77



CONCLUSION
For the reasons stated above, this Court should affirm all 

orders from which appeals have been taken in these consoli­
dated cases. If this Court believes that alternative means to 
“fully fund” the remedies ordered by the district court 
should be examined, the State appellants should be 
required to pay all the costs of the desegregation plan for 
KCMSD during a review of such alternatives by the district 
court on remand.

ARTHUR A. BENSON II 
CYNTHIA L. QUARTERMAN 
911 Main, Suite 1430 
Kansas City, Mo 64105 
(816)842-7603

JULIUS CHAMBERS 
JAMES H. NABRITTII 
99 Hudson Street 
New York, New York 10013

JAMES S. LIEBMAN 
Columbia University 

School of Law 
435 West 116th Street 
New York, New York 10027

THEODORE M. SHAW 
8th Floor
634 S. Spring Street 
Los Angeles, CA 90014

78