Jenkins v. Missouri Brief of Appellee/Intervenor Kansas City Missouri Federation of Teachers Local 691
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January 1, 1985

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Brief Collection, LDF Court Filings. Jenkins v. Missouri Brief of Appellee/Intervenor Kansas City Missouri Federation of Teachers Local 691, 1985. 64c5a2d1-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/16a6e79c-c96d-4702-ad35-aada0385ba87/jenkins-v-missouri-brief-of-appelleeintervenor-kansas-city-missouri-federation-of-teachers-local-691. Accessed July 16, 2025.
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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 85-1765WM No. 85—1949WM No. 85-1974WM KALIMA JENKINS, et al.. Appellants, vs. STATE OF MISSOURI, et al., Appellees. Appeal from the United States District Court for the Western District of Missouri, Western Division, Honorable Russell G. Clark BRIEF OF APPELLEE/INTEHVEWOR KANSAS CITY MISSOURI FEDERATION OF TEACHERS LOCAL 691 Michael D. Gordon, P.C. JOLLEY, MORAN, WALSH, HAGER & GORDON 1125 Grand Avenue, Suite 1300 Kansas City, Missouri 64106 Tel: (816) 474-1240 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 85-1765WM No. 85-1949WM No. 85-1974WM KALIMA JENKINS, et al.. Appellants, vs. STATE OF MISSOURI, et al.. Appellees. Appeal from the United States District Court for the Western District of Missouri, Western Division, Honorable Russell G. Clark BRIEF OF APPELLEE/INTERVENOR KANSAS CITY MISSOURI FEDERATION OF TEACHERS LOCAL 691 Michael D. Gordon, P.C. JOLLEY, MORAN, WALSH, HAGER & GORDON 1125 Grand Avenue, Suite 1300 Kansas City, Missouri 64106 Tel: (816) 474-1240 SUMMARY AND REQUEST FOR ORAL ARGUMENT We are intervenors at the remedy stage. We leave the merits of the liability issues to other parties to the litigation except insofar as they concern certain remedy issues. Inherent in the remedy question is whether the defendant SSDs should be included in any remedial plan. We argue that (1) the trial court's factual findings are entitled to great weight; (2) the trial court properly held that the SSDs committed no violation and should not be part of any remedy; and (3) in no event is Appellants' proposed consolidated superdistrict appropriate as a remedy. We request fifteen minutes for oral argument. -i- TABLE OF CONTENTS PAGE Summary and Request for Oral Argument .................. i Table of Contents ....................................... ii Table of Authorities .................................... iii, iv Preliminary Statement ................................... v Argument ................................................. ^ I. Initial Statement ..... 1 II. The Trial Court's Factual Findings Are Entitled to Great Weight ....................... 2 III. The Trial Court Properly Held That the SSDs Committed No Violation and Should Not Be Part of Any Remedy ................................. 3 IV. In No Event Is Appellants' Proposed Consolidated Superdistrict Appropriate As A Remedy .................................... 9 CONCLUSION .............................................. !5 -ii- TABLE OF AUTHORITIES Cases Berry v. Benton Harbor, 698 F.2d 813 (6th Cir. 1983) cert, denied 104 S.Ct. 235 (1983) ............. ........ 11 Brown v. Board of Education, 347 U.S. 483 (1954) ........... 6 Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ........................ ......................... 2 Davis v. School Commissioners of Mobile County, 402 U.S. 33 (1971) ...................................... 10 Evans v. Buchanan, 393 F.Supp. 428 (D.Del.) affd■ 423 U.S. 963 (1975) ..................................... 13 Green v. County School Board of New Kent County, 391 U.S. 430 (1968) .................................... 9 , 10 Haney v. County Board of Education, 410 F.2d 920 (8th Cir. 1969) ................. ....................... 4 Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973) ................... ................. 9 Lee v. Lee County Board of Education, 639 F.2d 1243 (5th Cir. 1981) ......................................... 4, 5 Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984) ("Liddell VII") ....... ...................... •...... . 10, 11, 12 Milliken v. Bradley, 418 U.S. 717 (1974) ("Milliken I") ....................................... 3, 4, 5, 7 Milliken v. Bradley, 433 U.S. 267 (1977) ("Milliken II") ...................................... 10 , 12 Morrilton School District No. 32 v. U.S., 606 F.2d 222 (8th Cir. 1979) cert, denied, 444 U.S. 1071 (1980) .................................. *.......... «... 3, 10, 11 Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976)............ 7 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) ....................................... 9, 10, 12 -iii- Taylor v. Ouachita Parish School Board, 648 F.2d 959 (5th Cir. 1981).......................................... 4 U.S. v. Missouri, 515 F.2d 1365 (8th Cir. 1975) cert, denied, 423 U.S. 951 (1975)...................... 4 Miscellaneous Authorities Boyer, High School, A Report on Secondary Education in America, Harper & Row, 1983, Chapter 3 ............ 6 The International Dictionary of Thoughts, Ferguson Publishing, 1969 ........................................ 2 -IV- PRELIMINARY STATEMENT We adopt the preliminary statements contained in Appellants' briefs. -v- a r g u m e n t I. Initial Statement We are the only party in this litigation supporting each order in the three appeals filed here. The District Court's opinions until June 14, 1985, were products of thoughtful legal analysis and painstaking decision-making. Sensitive primarily to a federal court's duty to undo the loathsome consequence of school segregation, but cognizant of the practical and legal restraints on judicial power, the trial judge put legal blame where it belongs and fashioned a remedy tailored to correct decades of pervasive evil. In an area where there are few easy answers, Judge Clark wisely rejected both the position of the State, which asked him to do too little, and the demands of plaintiffs and the Kansas City Missouri School District ("KCMSD") which asked him to do too much. The lower court's orders stand on their own and require little support from us. Moreover, at the District Court level, all parties exhibited an ability to exhaustively — and at times, it seemed, to interminably — • favor the court with lengthy legal and factual recitations. The first wave of appellate briefs again demon strates the detail and scholarship of vigorous and competent counsel. We are confident that the briefs filed today by the State and suburban school districts ("SSDs") will likewise contain definitive statements of their respective positions by articulate counsel. Accordingly, we have no doubt that this court does not need another sixty-five page exegesis on the applicability of desegregation law to the facts of this case. For these reasons and because the Clerk of this Court has advised counsel of "the Court's position that more is not better in cases such as this even though each attorney and each party strongly believes that added words of wisdom will somehow better elucidate the facts and legal issues for the judges",-!/ we submit a brief limited only to certain points that we believe may not be stressed by other parties. We hope to be mercifully concise. II. The Trial Court's Factual Findings Are Entitled To Great Weight Appellants urge reversal of many of the District Court's factual findings. Many of the contrary facts urged by appellants are grounded upon opinion testimony by their expert witnesses. The trial court rejected much expert testimony from all parties either because it was based upon incomplete predicates or because the facts at issue did not lend themselves to expert opinion.1/ Findings of fact should not be lightly discarded on appeal. In Columbus Board of Education v. Penick, 443 U.S. 449 (1979), Judge Stewart, concurring, wrote that in desegregation cases deference 1/ July 17, 1985 letter St. Vrain to Feldmiller which also advised " . . . brevity in such complex, multiparty litigation accomplishes far more than verbal inundation." 1/ For example, at trial and on appeal, plaintiffs have relied heavily on the opinion of Dr. James Anderson, a historian. One does not have to agree with Napoleon ("What is history but a fable agreed upon?") Wendell Phillips ("We read history through our prejudices") or Samuel Johnson ("That certain kings reigned, that certain battles were fought, we can depend on as true; but all the coloring, all the philosophy of history is conjecture") to conclude that the explanations of causes and effects by historians may only be limited by the number of historians. Quotations from The International Dictionary of Thoughts, Ferguson Publishing, 1969, pp. 362-363. should be given to the district court's fact finding because trial judges are "uniquely situated . . . to appraise the societal forces at work in the communities where they sit." Cited with approval, Morrilton School District No. 32 v. U.S., 606 F.2d 222 (8th Cir. 1979) cert, denied, 444 U.S. 1071 (1980). ("We must give deference to the District Court's findings of fact, which can be set aside only if clearly erroneous"). Therefore, the Court's findings of fact should be accorded great weight. Each finding of contested fact is amply supported by the record and should be allowed to stand. Ill. The Trial Court Properly Held That The SSDs Committed No Violation And Should Not Be Part Of Any Remedy All parties agree with the District Court that Milliken v. Bradley, 418 U.S. 717 (1974) ("Milliken I") is the "lynchpin" to this dispute. However, plaintiffs and KCMSD fundamentally challenge the Court's reading of Milliken I. Although KCMSD appears to put more emphasis on the second factor than the first, both appellants argue that Milliken I (1) mandates a finding of wrongdoing against the defendant suburban school districts ("SSDs"); and (2) even if there was no intentional misconduct by the SSDs, requires their inclusion in an interdistrict remedy abolishing all existing defendant districts and creating a new consolidated superdistrict. Appellants are wrong on both counts. -3- M ^(is Absent racial gerrymandering/ two distinct criteria mu st 4 ^ 4 - be satisfied before school districts can be compelled to d'ck- participate in consolidation or cross-district remedies. F i r s t ^ ^ ^ l#y\ there must be a purposeful constitutional violation within one '•“l-fy Pfy district that, second, "produces a significant segregative effect in another district." Then, and only then, can an interdistrictp^ remedy be fashioned to right the "interdistrict segregation directly caused by the constitutional violation." (All emphasiS|y^^ added). The Fifth Circuit discussed the importance of the underscored phrases in Lee v. Lee County Board of Education, by 639 F .2d 1243 (5th Cir. 1981). It said Milliken 11s . . . deliberate choice of phrases such as "substantial" or "direct cause" and "signifi cant segregative effect" also expresses an insistence that in cases where an inter district remedy is requested, there must be clear proof of cause and effect and a careful delineation of the extent of the effect. In the absence of such a showing, school district lines are to be carefully observed and desegregation remedies confined to orders affecting the school district in which the condition of segregation is manifest. A W Also, Taylor v. Ouachita Parish School Board, 648 F.2d 959 (5th Cir. 1981) . Appellants reference this language from Milliken I but frequently they ignore or gloss over the word "direct" and the word "significant" — an adjective used at least three times to 2/ Unlike Morrilton School District No. 32 v. U.S., supra.; U.S. v. Missouri, 515 F.2d 1365 (8th Cir. 1975) cert, denied, 423 U.S. 951 (1975) and Haney v. County Board of Education, 410 F.2d 920 (8th Cir. 1969) there can be, and is, no real claim of racial gerrymandering here. -4- modify "segregative effect". Certainly, the interpretations of Milliken I proffered by KCMSD (". . . school districts may be included in an interdistrict remedy if they participated in and were affected by interdistrict segregation, even if they themselves had not committed independent, intentionally discriminatory acts") (p. 24) and by plaintiffs (". . . these remedial principles provide relief commensurate with the full geographic extent of a violation's effects on school children, no matter who committed the violation and no matter where and how it was committed") (p. 38) are much too expansive.3 Milliken I simply does not reach so far. Furthermore, appellants' sense of causation is so broad that it includes the most speculative and remote factors. In Lee, supra at 1256, the Court held, "there must be clear proof of cause and effect and a careful delineation of the extent of the effect." Appellants' most obvious errors occur when plaintiffs repeatedly invoke certain nineteenth century events to support broad post-1954 allegations. This disjointed connection is frequently patched by complaints of inadequate records and conclusions that if records were adequate they would support appellants' contentions. Obviously, appellants' world view rests more on faith than logic. Morover, appellants' historical recitations improperly assume that current demographics extend undiminished into the distant past. This again leads appellants to unsupported causal linkage. For example, plaintiffs frequently imply that Kansas City suburbs have always been an integral part of the Kansas City metroplex. In fact, until the -5- World War II housing boom and the post-1960 expansion of roadways, most of the areas served by the SSDs were rural with few everyday connections to Kansas City proper. Moreover, educational patterns in the past differed greatly from present times. For instance, in 1900 on a national level only 8.5% of the youth group were enrolled in high schools and only 6.3% graduated. By 1939, 47% of the total age group were enrolled in high schools and by 1950, 67%. Boyer, High School, A Report on Secondary Education in America, Harper & Row, 1983, Chapter 3. Without unnecessarily digressing into historical causality, two conclusions are inescapable. First, the social, economic, political and personal factors that influenced KCMSD before and after Brown v. Board of Education, 347 U.S. 483 (1954) ("Brown"), were far more complex and far less capable of empirical proof than appellants' simplified analyses suggest. And, second, if this case had been decided in 1957 under the law as it presently exists, the outcome would have been identical to the result reached by Judge Clark: KCMSD and the State would have been found guilty of pervasive constitutional violations within the KCMSD and the suburban school districts would have been released to solve their own problems.—/ —/ The Trial Court found that within a few years after Brown each SSD was operating a unitary school district (6/5/84 Opinion, pp. 99-100). This finding, supported by detailed record references by the trial judge, has not been seriously challenged on appeal. -6- During the 1954-55 school year, KCMSD was less than 19% black. Whites constituted a majority until 1970. Until 1970 KCMSD could have achieved a mathematical racial balance in its schools (6/5/84 Order, p. 17; 9/17/84 Order, p. 10). It did not do so. Instead, it maintained the ugly discrimination that began with the State's invidious statutory requirements prior to Brown and continued, after Brown, because of the State's outrageous indifference. Segregation within KCMSD remains unremedied to the present. The immediate dilemma of freeing itself from this pernicious pattern is exacerbated by the fact that, like other mature urban areas, KCMSD now is comprised of a black student majority. The difficulties created by the failure of the State and KCMSD to act responsibly for more than thirty years is one thing. It is quite another to destroy the KCMSD and require the SSDs to share responsibility for wrongs directly attributable only to KCMSD and the State. In final analysis, appellants propose their conception of an ideal situation. From appellants' perspective they begin from a desired result and then try to reach it by spinning theories of ancient violations and no fault liability. However, Milliken I teaches that "the objectives sought to be achieved in a remedial plan is desegregation, not interracial experience or racial balance." Morgan v. Kerrigan, 530 F .2d 401 (1st Cir. 1976). From another viewpoint, KCMSD proposes to correct its segregation by self-destructing and forcing its liability on autonomous school districts that have not been illegally segregated for over thirty years. Notwithstanding KCMSD's -7- suicidal tendencies, this community gains much from its continued existence. Urban patrons can directly confront urban problems without political compromises with suburban and rural interests. The structure and organization of an urban institution can remain intact and best resolve the multiple problems peculiar to a mature city. Additional time and complexities inherent in a new, judicially created superdistrict can be avoided and KCMSD can get on with the business of providing a quality, desegregated education. KCMSD cannot avoid the consequences of its past discrimination by going out of business. KCMSD and the State have the ability and the duty to provide a quality education in a desegregated environment to the students of the district. Under the District Court’s remedial order, there is great promise that the effects of past discrimination will be eliminated and that increased integration will result as education improves. The remedy is designed to maintain the incumbent white population while luring new parents (first time parents and recent residents) to reside within and send their children to the KCMSD. At the same time, white students who now reside within KCMSD but attend parochial and private schools are provided substantial incentives to transfer to public education within KCMSD. The District Court's September 17, 1984 and June 14, 1985 Orders contain a comprehensive and workable plan to dismantle the KCMSD's dual system. The Court has required specific and substantial action while allowing sufficient flexibility to adjust to unforeseen future needs. Years of bias -8- will not be erased overnight. The Trial Court has crafted a broad plan to effectively insure the rights of KCMSD students within the boundaries of legal precedent. Green v. County School Board of New Kent County, 391 D.S. 430 (1968) ("Green"); Keyes v. School District No. 1, Denver Colorado, 413 U.S. 189 (1973); Swann v. Charotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) ("Swann"). IV. In No Event Is Appellants' Proposed Consolidated Superdistrict Appropriate As A Remedy In the unlikely event this Court finds some merit in appellants' contentions that the case should be remanded to the trial court to determine whether the SSDs should be compelled to participate in a court ordered remedy, we ask it to define the appropriate remedial guidelines for such a proceeding. Such instruction certainly will aid the trial court in conducting future proceedings. Moreover, a clear definition now will diminish the chances of more time-consuming appeals later. In this regard, we believe that under all the circumstances most generous to appellants' position, the replacement of the KCMSD proposed by appellants is not a possibility allowed by legal precedent. At most, any mandatory remedy going beyond the present geographic area of KCMSD must be limited either to an adjustment of KCMSD boundaries to include portions of some existing SSDs or, more properly, to a plan that involves some SSDs but maintains their overall autonomy and insures their future existence after desegregation is accomplished. If this is -9- correct, then the parties and the trial court should know it if the case is remanded. Federal Courts are duty-bound to accomplish "the transition to a unitary, non-racial system of public education" in which "racial discrimination would be eliminated root and branch" Green, at 436 and 438. Courts must make "every effort to achieve the greatest degree of actual desegregation, taking into account the practicalities of the situation," Davis v. School Commissioners of Mobile County, 402 U.S. 33 (1971), at 37. To accomplish these ends, the federal judiciary enjoys broad equitable power to fashion remedies eradicating segregation and its effects. Swann, supra, at 15. However, those powers have Constitutional limits. In Milliken v. Bradley, 433 U.S. 267 (1977) ("Milliken II"), a case ignored in plaintiffs' brief and mentioned only in passing by KCMSD, the Supreme Court held: (First], the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. . . The remedy must therefore be related to "the . . . Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." . . . Third, the federal courts . . . must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. Milliken II is a major factor of this Court's decisions in Morrilton School District No. 32 v. U.S., supra., at 229, and in Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984) ("Liddell VII"). As Judge Clark noted, both cases concern different -10- substantive issues than those present at bar. Morrilton involved racial gerrymandering that foreclosed concerns about local autonomy. Liddell VII has limited application to the instant case because it turned on the issue of whether the State could be ordered to partially fund a voluntary settlement among a number of school districts. However, for the purposes of our present alternative argument, the language of Liddell VII is instructive and the fact that the participating non-St. Louis districts were allowed to maintain their autonomy is important. Had this Court concluded in Liddell VII that the suburban St. Louis districts had to be consolidated into a single metropolitan district, it would not have approved the voluntary plan. Indeed, in Liddell VII, this Court stressed the importance of maintaining the independence and autonomy of existing school districts as a major factor influencing its approval of the St. Louis voluntary plan: The Supreme Court in Hills v. Gautreaux, [425 U.S. 284 (1977)] has interpreted Milliken I to mean that district courts may not restructure or coerce local governments or their subdivi sions. This remedy does not threaten the autonomy of local school districts? no district will be coerced or reorganized and all districts retain the rights and powers accorded them by state and federal law. Also, see Berry v. Benton Harbor, 698 F.2d 813 (6th Cir. 1983) cert, denied 104 S.Ct. 235 (1983). Although metropolitan consolidation might someday be required in the most egregious cases, it should never be used to destroy legitimate districts unless less extraordinary methods are unavailable to correct the offending conditions. -11- Thus, assuming that the SSDs are somehow responsible for the segregation within the KCMSD, their remedial role must be carefully drawn. Overall, of course, the guilty SSD must redress the injustice it has caused; but, at the same time, the remedial plan must be limited only to that wrong, taking into account the historic autonomy of each SSD and the legitimate local interests it represents. Even if this Court disagrees with the District Court and finds that certain SSDs are responsible for "significant segregative effects" in KCMSD, the particular segregative effects for each SSD must be identified. In the language of Liddell VII, at 1308, the "breadth, gravity and duration" of the violation must be assessed. This is because "the nature of the violation determines the scope of the remedy" Swann, supra. Unless the "significance" of an SSD's actions are found to be pervasive the rule of Milliken II mandates something other than abolishment of KCMSD into a new consolidated district with the offending SSDs. We cannot say now what that lesser remedy would be because we are incapable of debiting any SSD with significant discriminatory acts against KCMSD except for the purposes of argument and further hearings will be required to illuminate the precise posture of the SSDs. Nevertheless, mandatory interdistrict programs between KCMSD and the offending, existing districts (like those voluntarily entered in Liddell) or partial adjustments to geographic boundaries (while maintaining the continued autonomy of the KCMSD and the surviving SSDs) come to mind. More possibilities surely will become apparent if the record is reopened. What is clear now is that appellants' leap -12- to a new consolidated superdistrict does not automatically follow, even if they are granted each and every factual assertion in their favor. Indeed, appellants share a common flaw in their urge for a consolidated, metropolitan school district limited to Missouri school districts. Implicit and explicit in appellants' plan is a Wilmington type, "no-place-to-hide" model. Evans v. Buchanan, 393 F.Supp. 428 (D.Del.) affd. 423 U.S. 963 (1975). In its June 5, 1984 Order the trial court distinguished Evans, at p. 104, on the basis that, unlike the instant case, Wilmington and its surrounding school district were not autonomous under Delaware law. We agree with Judge Clark's legal analysis. We add, as a practical matter, that a Wilmington plan will not work in our case without the inclusion of Kansas school districts. The Wilmington model created a consolidated district in a wide circle so large that no one could move within the metropolitan area to escape it. Wilmington is a single-state metropolitan area, smaller than ours and dominated by one large corporation (Dupont) which endorsed and actively supported the metropolitan plan. Our larger community, on the other hand, has no predominant economic or social force and, most significantly, embraces communities in both Kansas and Missouri. Since the consolidation plan favored by appellants does not include Kansas, there is no all-inclusive circle. Instead, there is a semi-circle with only imaginary lines as the sole barrier to white flight into Kansas. Anyone with the slightest familiarity with our metropolitan area knows that Kansas has long served as a vacuum for the problems of -13- Kansas City, Missouri, sucking in thousands of families whose response to a maturing urban environment is to find safehaven in new bedroom suburbs insulated from the older city by the legalities of our state and federal system. Indeed, the record below discloses the same interaction and social policy concerning certain Kansas districts and KCMSD as between KCMSD and the SSDs. Whatever abstract policy arguments might be advanced conceptually for a Wilmington model, those ideas cannot apply here in the absence of Kansas. We mention Kansas to make two points. First, the practical relationship between the autonomous Kansas Districts and KCMSD were little different than the relationships between KCMSD and the SSDs except, of course, that the SSDs were subject to the same State laws as KCMSD. This supports the trial court's conclusions that the SSDs were autonomous entities that bear no liability for the KCMSD's segregation within its boundaries. Second, if there is some overriding social policy that requires judicial creation of a superdistrict, then Kansas must be included despite the legal difficulties and appellants' curious refusal to push an issue consistent with their overall theory. At footnote 64 of its brief, KCMSD states that its consolidation plan, "could, at least for the time being, produce stable effective desegregation" and suggests that Kansas "could be added at a later time if their inclusion in a remedial order becomes necessary." In this manner, KCMSD apparently proposes that it should be allowed to dissolve, that another five or ten years should be allowed to pass to see if the new Missouri-only -14- metropolitan district succumbs to failure; and then, forty or so years after the relevant facts, claims can be asserted against Kansas based on its pre-1954 relationship to the KCMSD. This is simple nonsense. If, for some reason we are unable to fathom, a metropolitan district is required, then it must be done at the earliest possible time and it must be a true metropolitan district. As far as Kansas is concerned, later is too late. CONCLUSION We ask the Court to affirm the orders on appeal here. In the alternative, we request a definition of the appropriate remedial perimeters for the guidance of the trial court and the parties in the event the matter is remanded. Michael D. Gordon, P.C. JOLLEY, MORAN, WALSH, HAGER & GORDON 1125 Grand Avenue, Suite 1300 Kansas City, Missouri 64106 Tel: (816) 474-1240 -15-