Jenkins v. Missouri Brief of Appellee/Intervenor Kansas City Missouri Federation of Teachers Local 691

    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.

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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

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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

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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.

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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.

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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