Loving v. Commonwealth of Virginia Brief Amicus Curiae

    I n  The

I h x x U h  Stall's (Cmtrt sxt Appeals
F or the  E ighth  Circuit

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM 
No. 85-2077WM

Kalima J e n k in s , et ah,
Appellants and Cross-Appellees,

v.
State of Missouri, et al.,

Appellees and Cross-Appellants.

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

Honorable Russell G. Clark, Chief Judge

REPLY BRIEF OF STATE 
APPELLEES/CROSS-APPELLANTS

William Webster 
Attorney General 

Terry Allen
Deputy Attorney General 

Bruce Farmer 
Georganne L. Wheeler 

Assistant Attorneys General 
Supreme Court Building 
Jefferson City, MO 65102 
(314) 751-3321

H. Bartow Farr, III 
J oel I. Klein 
Richard G. Taranto 

Onek, Klein , & F arr 
2550 M Street, NW. 
Washington, D.C. 20037 
(202) 775-0184 

Counsel for State 
Appellees/Cross-Appellants

W il s o n  - E p e s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C .  2 0 0 0 1



' jjLtJyWL



Page

I. The Findings of the District Court Do Not Sup­
port a Remedy Designed Simply to Aid the 
KCMSD as a Whole _____ _...__ _______ _ 4

II. Several Errors in Particular Parts of the Rem­
edy Require Correction ---------------------- --------- 10

Conclusion ...... .......... ............ ............ ................. .............  20

TABLE OF AUTHORITIES
Cases:

Blum v. Yaretsky, 457 U.S. 991 (1982)..................  2
Brown v. Board of Education, 349 U.S. 483 (1954).. 17
Edelman v. Jordan, 415 U.S. 651 (1974) ....... ........  17, 19
Hills v. Gautreaux, 425 U.S. 284 (1976)____ ____  4
Jenkins v. Missouri, 593 F. Supp. 1485 (W.D.Mo.

1984) ___________________________________  4, 6, 8
Liddell v. Board of Education, 667 F.2d 643 (8th

Cir. 1981) _______ ______ ______ ____ ____ _ 13
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert.

denied, 105 S.Ct. 82 (1984).................... 4,10,13, 17, 18
Liddell v. Missouri, 758 F.2d 290 (8th Cir. 1985).... 16
Milliken v. Bradley, 418 U.S. 717 (1974) ........... . 9
Raney v. Board of Education, 391 U.S. 443 (1968).. 19
United, States v. Scotland Neck City Board of Edu­

cation, 407 U.S. 484 (1972)_____ __ ______ _ 10
Washington v. Davis, 426 U.S. 229 (1976)_______ 3

Other:
Tenth Report of City Board under \  14 of the 

Court’s Order of May 21, 1980 (#L(142) 85), 
filed April 1, 1985, in Liddell v. Missouri, No.
72-100C (E.D. Mo.)

TABLE OF CONTENTS

13



I n  T h e

Ini:Uh Bintts GImirt of AppmU
F or t h e  E igh th  Circuit

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM 
No. 85-2077WM

Kai.lv:.'. J e n k in s , et a l,
Appellants and Cross-Appellees,

v.
State of Missouri, et al.,

Appellees and Cross-Appellants.

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

Honorable Russell G. Clark, Chief Judge

REPLY BRIEF OF STATE 
APPELLEES/CROSS-APPELLANTS

The 69 pages of briefs recently filed by the plaintiffs 
and KCMSD offer a dense mix of factual assertion and 
legal theory, covering both the interdistrict claims re­
jected by the district court and the intradistrict claims 
partially accepted by that court. According to these ap­
pellants, the district court specifically found that unlaw­
ful actions by the State caused the present racial dispari­
ties between the KCMSD and the SSDs in addition to a 
variety of inadequate conditions within the KCMSD it­
self. Thus, appellants say, the present $87 million remedy



2

must be supplemented by a plan consolidating all the de­
fendant districts into one district with a more evenly dis­
tributed racial population.

The approach taken by appellants, as applied to both 
the interdistrict and intradistrict claims, is unsound in 
several fundamental ways. As an initial matter, it de­
pends almost totally on their ability to create findings 
never made by the district court or to recast findings ac­
tually made. For example, appellants spend page after 
page seeking to transform statements about intradistrict 
segregation within the KCMSD schools or about private 
discrimination in housing into actual findings about in­
terdistrict segregation by the State or some other govern­
mental entity. See Blum v. Yaretsky, 457 U.S. 991 
(1982) (private action, even though consistent with overt 
State policy, not State action). Similarly, appellants try 
to expand the scope of intradistrict liability by adding 
their own garnish of findings to those contained in the 
order imposing liability on the State. But, having de­
clined to challenge the findings below forthrightly, ap­
pellants cannot now rewrite them to their own liking.

The arguments made by appellants also routinely dis­
regard the need to establish causation : i.e., that certain 
unlawful acts caused present conditions. Thus, appellants 
(in particular, the plaintiffs) repeatedly claim that cur­
rent racial disparities among the districts are the result 
of the prior laws requiring segregation of students or of 
the temporary enforcement of racial covenants, despite 
extensive and unequivocal findings by the district court 
that such actions have no significant interdistrict effect.1

1 Compare Plaintiffs Response Brief at 1-15, 21 and KCMSD 
Response Brief at 10-13, 19-24 with June 5, 1984 Order at 18 (“The 
Court further finds that transferring blacks to the KCMSD under 
the prior segregated school system is not a cause of the present 
racial distribution of the population in the three-county area” ; 
“plaintiffs have not persuaded the Court that any vestiges or sig­
nificant effects of the pre-1954 dual school system remain in any 
of the SSDs” ; jobs and economics motivated black movement into



3

Appellants make the same sort of claims about the level 
of student achievement and the condition of facilities 
within the KCMSD, again without coming to grips with 
the absence of a causal link between those conditions and 
segregation. As the Supreme Court has made clear, how­
ever, only current conditions that result from unlawful 
discrimination are a proper subject for remedy by a fed­
eral court. Washington v. Dams, 426 U.S. 229, 240 
(1976).2

Because this brief is properly a reply brief on the issues 
relating to the State’s appeal, we do not address those 
points as they apply to the interdistrict claims other than 
to note that they exist. We do believe that a more de­
tailed discussion with regard to the intradistrict claims is 
in order.3

KCMSD and “any motivation resulting from segregated schools 
was de minimis and insignificant when compared to those primary 
motivating factors”) and id. at 43, 45-46, 49, 51, 55, 61-62, 67-70, 
74-75, 78-79, 84-87, 91 (findings of insignificant effects of pre-1954 
school policy) and id. at 44-45, 48, 51, 53, 59, 66, 73, 77-78, 82-83, 
90, 94 (findings of insignificant effects of racial covenant en­
forcement) .

We do not here repeat the presentation of the factual findings set 
out in our earlier brief. We do note, however, that the “uncontested 
facts” recited in plaintiffs’ brief are by no means uncontested.

2 The lack of attention to proper findings and principles of causa­
tion infects appellants’ legal analysis as well. For example, although 
appellants appear to concede that Milliken 1 does not permit inter­
district relief without findings of current interdistrict effects, they 
try to apply Milliken as though the district court had not found 
that no such effects exist. Later, the KCMSD argues that the State 
should be required to pay for general improvements throughout the 
KCMSD, on the theory that a remedy may aid a school system 
rather than students actually affected by discrimination, despite 
the absence of adequate findings that the harms to be redressed 
extend throughout the system.

3 With regard to the appeal by the American Federation of 
Teachers Local 691 (No. 85-2077WM), the State defendants merely 
note that there do not appear to be grounds, at this early date, 
for finding that the district court committed an abuse of discre­
tion in appointing Dr. Eugene Eubanks chairperson of the Monitor­



4

I. The Findings of the District Court Do Not Support a 
Remedy Designed Simply to Aid the KCMSD As a 
Whole.

Having found liability on the part of the State and the 
KCMSD for uneradicated vestiges of segregation within 
the KCMSD, the district court adopted a multi-faceted 
program for improvements in the KCMSD schools, a pro­
gram that extends throughout the district and that treats 
every school in much the same fashion. See Remedy Or­
der (June 14, 1985). Because any remedy must be tai­
lored to fit the nature and extent of the violation, see 
Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976), this 
extensive remedial program, to be valid, would have to be 
supported by adequate findings of system-wide conditions 
caused by unlawful segregation. As we noted in our open­
ing brief, the sole findings made by the district court in 
its September 17, 1984 Order—those relating to the ex­
istence of 24 schools with a 90+% black student body and 
to “inferior education indigenous of the state-compelled 
dual school system,” Jenkins v. Missouri, 593 F. Supp. 
1485, 1492-93 (W.D.Mo. 1984)—are either not broad 
enough or not well enough grounded in the record to 
justify the remedy here.

In response, the KCMSD places primary weight on the 
observation that programs may be appropriate “to rem­
edy the effects of discrimination on the victims of segrega­
tion and the school system itself.” KCMSD Response Brief 
at 26 (quoting Liddell v. Missouri, 731 F.2d 1294, 1315 
(8th Cir.), cert, denied, 105 S.Ct. 82 (1984) (emphasis 
added by KCMSD)). But this general statement misses the 
point. We do not dispute that a remedy may be directed 
to an entire school system if it is supported by proper 
findings that unlawful segregation actually caused the

ing Committee and in not appointing one of the AFT 691 Moni­
toring Committee members to chair any of the three subcommittees. 
Any complaints about, say, the impartiality or independence of the 
Committee chairperson or subcommittee chairpersons should await 
development of a record of how they have carried out their duties.



5

particular system-wide conditions at which the remedy is 
aimed. The problem in this case is that the controlling 
findings do not concern conditions throughout the entire 
KCMSD system (i.e., the -finding regarding segregation 
in 24 schools)4 5 or rest upon unsupported, and unsup- 
portable, speculation about the causes of poverty and 
below-average achievement (i.e,, the ambiguous finding 
regarding “inferior education”). Thus, contrary to the 
KCMSD’s apparent assumption, it cannot be said that 
segregation has caused the same harm to every student in 
every school, thus making irrelevant an effort to identify 
the “victims of discrimination” and the nature and ex­
tent of the harms they suffered.

As an alternative strategy, appellants try to overcome 
the lack of findings about system-wide harms by making- 
some themselves. In particular, the plaintiffs and KCMSD 
identify three alleged effects of segregation within the 
KCMSD that, they suggest, show the scope of the viola­
tion: a system-wide reduction in student achievement; an 
inability to retain or to attract non-minority students; 
and an inability to raise resources. See Plaintiffs Re­
sponse Brief at 31; KCMSD Response Brief at 24-26.® 
As we discuss below, none of these alleged effects can sup­
port the district-wide remedy.

1. Student Achievement. Although the district court 
stated in its June 14, 1985 Order that “ [ segregation has 
caused a system wide reduction in student achievement

4 Although this finding would plainly support a remedy redis­
tributing students throughout the KCMSD, and programs for stu­
dents harmed by attendance at the 90 + % black schools, it would not 
automatically support programs for students in the other schools 
within the district, absent further findings that they suffered com­
parable harms as a result of unlawful segregation.

5 The KCMSD also argues, in connection with its defense of a 
system-wide infusion of teachers, that students in the 90+% black 
schools have been dispersed throughout the system. Because the 
argument is raised in that context, we address it in our discussion 
of that particular program. See pages 13-14 infra.



6

in the schools of the KCMSD,” Remedy Order at 4 (em­
phasis in original), that statement cannot be used to 
inflate the earlier findings about scope of liability. To 
begin with, the court made this observation only after 
the remedy hearing and, as justification, cited only cer­
tain testimony from the remedy hearing. But the district 
court repeatedly ruled both before and during the remedy 
hearing that the causation question—what conditions in 
the KCMSD had been caused by segregation—had been 
resolved once and for all in the liability phase of the 
case. Thus, at the urging of plaintiffs and the KCMSD, 
the court prohibited the submission of evidence on this 
question. See, e.g., Tr. 22,253-54, 22,302-03, 22,590-91. 
That ruling, of course, prevented the State from litigat­
ing the issue after September 1984. In these circum­
stances, reliance on any findings or evidence on the issue 
from the remedy hearing would by itself require reversal.

Even if the evidence from the remedy hearing could 
properly be considered, however, it would not help ap­
pellants much. In their brief, plaintiffs do not point to 
any testimony at all that supports the new claim that 
segregation—rather than any number of other factors, 
not the least of which is the KCMSD taxpayers’ inade­
quate funding of their district—actually caused current 
achievement problems in every school in the KCMSD. See 
Plaintiffs Response Brief at 31. While the KCMSD cites 
to only seven scattered pages of testimony by Daniel 
Levine, see KCMSD Response Brief at 24-25 n. 66, 28-29 
n.82, even a quick reading of this testimony shows that 
it simply does not support the claim, see Tr. 16,414, 
16,431, 16,457-59, 16,520, 16,573. Rather, the testimony 
is nothing other than the testimony cited by the district 
court to advance its achievement-poverty-race theory in 
the first place, see Jenkins, at 1492, and it therefore adds 
nothing to that inadequate basis for system-wide relief.

The weakness of the evidence regarding achievement is 
perhaps most tellingly exposed by the fact that plaintiffs



7

and the KCMSD cite it for diametrically opposite con­
clusions. Thus, whereas the KCMSD asserts that intra­
district segregation caused the same problems in all the 
KCMSD schools (the 24 largely-black schools and the 
rest), KCMSD Response Brief at 28-29 n. 82, the plain­
tiffs state that the evidence of achievement problems in 
the KCMSD “show[s] substantial achievement deficits on 
the part of black children attending segregated schools 
when compared with black children from the same neigh­
borhoods attending integrated schools,” Plaintiffs Response 
Brief at 31 n. 46. The exhibit that plaintiffs cite—exhibit 
K53 prepared and introduced by the KCMSD—shows 
achievement differences between black students in two of 
the 24 largely-black schools (Pershing and Willard) and 
black students in four predominantly black schools that 
the exhibit itself describes as “desegregated” (Border 
Star, Bryant, Cook, and Marlborough). See KCMSD Exh. 
K53 (Deferred Appendix at 2090).6 * 8 This evidence is the 
only evidence cited by either plaintiffs or the KCMSD 
that actually addresses whether any effects of the intra­
district violation on achievement were felt throughout the 
KCMSD, and as plaintiffs acknowledge, it shows at most 
an effect only in the unlawfully segregated schools and not 
district-wide.

2. The Decline of Non-Minority Enrollment. The 
plaintiffs (though not the KCMSD) also put forth a 
“finding” that the intradistrict violation caused white 
flight from the KCMSD and a concomitant inability to 
attract non-minority students into the KCMSD. A sim-

6 The exhibit compares test scores from the 1982-83 school year.
The four schools that the KCMSD exhibit describes as desegregated 
had black enrollments in 1982-83 of 60.3% (Border Star), 71.2%
(Bryant), 57.7% (Cook), and 72.7% (Marlborough). See KCMSD 
Exh. K2 (Deferred Appendix at 2000, 2001, 2009). Thus, contrary 
to its frequent equation of a high percentage of black students with 
unlawful segregation, even the KCMSD has recognized that it is not 
simply the percentage of black students in a school that makes it 
segregated. See also pages 9-10 infra.



8
pie review of the authority cited by the plaintiffs shows 
that the district court found no such thing.

The district court had three things to say about white 
flight and non-minority enrollment. In the September 
1984 Order, it noted the declining proportion of white 
students within the KCMSD but made no finding that 
segregation was the cause. Jenkins, at 1492-93, 1495. In 
the Remedy Order, where the question of causation was 
not at issue, the court rejected the proposition, advanced 
by the KCMSD and plaintiffs, that a fear of white flight 
was a reason for refusing to consider possible reassign­
ment within the KCMSD. Remedy Order at 28-31. Also, 
the court stated the obvious fact that particular improve­
ments in the school district might help to attract and 
retain non-minority as well as minority students.7 E.g., 
id. at 10, 17, 19, 34. None of these statements comes any­
where close to being a finding that segregation caused a 
loss of white students. To the contrary, the discussion 
about the possible effects of integration on white enroll­
ment underscores the unlikelihood that segregation 
prompted the decline in white enrollment.

3. Resources. The plaintiffs and KCMSD finally sug­
gest a finding that segregation within the KCMSD 
caused the KCMSD’s inability “to raise adequate re­
sources” to support its programs and facilities.8 Here,

7 The reliance of the appellants on these observations only 
emphasizes their failure to distinguish between general improve­
ments and truly remedial programs. That failure is even more 
graphically exhibited in footnote 92 of the KCMSD Response Brief, 
where the KCMSD seeks to support the remedy on the alleged 
ground that the overall financing of education in Missouri is too 
low. While KCMSD officials may well disagree with legislative 
choices about the funding of education, that does not mean they 
may legitimately use this school desegregation case as a vehicle for 
obtaining a general increase in school funding.

®We note, again, that the only statement to this effect is a passing 
reference on page 36 of the Remedy Order. Because the State was 
not permitted to address the issue of causation in the remedy 
hearing, it would be error to rely upon that statement to demon­
strate the scope of the violation in this case.



9

at least, we have some measure of agreement with what 
they say: the inability of the KCMSD to raise adequate 
resources is clearly at the heart of the intradistrict issues 
in this case. We do not agree, however, that segregation 
is the cause of that inability.

The plain fact is that plaintiffs and the KCMSD pre­
sented no evidence to support the notion that unlawful 
segregation within the KCMSD is responsible for the low 
levels of taxation and property assessment for the 
KCMSD. Any fair reading of the record shows, in fact, 
that there is no positive correlation at all between segre­
gation in the KCMSD and the community’s financial 
support for the district. Indeed, the evidence suggests 
just the opposite: the level of funding was more than 
adequate when segregation was most pervasive (the 
KCMSD was rated AAA from 1954 to 1977) , and it be­
gan its decline only in 1977, when segregation was di­
rectly attacked by Plan 6C’s elimination of the all-white 
schools and marked reduction of the number of nearly 
all-black schools. See State Brief at 51-52.

Although plaintiffs and the KCMSD commonly try to 
treat segregation and a high percentage of black students 
as if they were legally one and the same, that view was 
expressly rejected in Milliken I.° There, the Court found 
no support for the “suggestion . . . that schools which 
have a majority of Negro students are not ‘desegre­
gated,’ whatever the racial makeup of the school district’s 
population and however neutrally the district lines have 
been drawn and administered . . . .” 418 U.S. at 747 
n.22. The Court noted that prior cases had not even 
“intimated that ‘actual desegregation’ could not be ac­
complished as long as the number of Negro students was 
greater than the number of white students.” Id., citing, 9

9 One KCMSD witness expressed his opinion that a school with 
a 51% black and 49% white student body was “racially isolated.” 
See Tr. 22,842.



10

inter alia, United States v. Scotland Neck City Board of 
Education, 407 U.S. 484, 491 n.5 (1972) (where “a 
desegregation plan was implicitly approved for a school 
district which had a racial composition of 77% Negro 
and 22 % white” ). The presence of a high number or 
percentage of black students in a particular school or 
school district thus may not automatically be deemed a 
condition of segregation requiring a remedy, just as the 
failure of local taxpayers to support such a district can­
not uncritically be said to have been caused by “segrega­
tion.”

In sum, the plaintiffs’ and KCMSD’s three attempts to 
bolster the foundation for the district-wide remedy are 
all unavailing. The fact remains that the only two bases 
for intradistrict relief are the findings about the 24 
largely-black schools and the inherent inferiority of un­
lawfully segregated schools. As we explained in our 
opening brief, these findings simply cannot support the 
$87 million program put in place in every school through­
out the district.

II. Several Errors in Particular Parts of the Remedy 
Require Correction.

In our opening brief, as here, we have concentrated 
our attention (in the intradistrict part of the case) on 
the absence of findings sufficient to support the system- 
wide remedy adopted by the court below. Our opening 
brief, however, also identified a number of particular 
respects in which the remedy departed from legal re­
quirements, including the requirement that each part of 
the remedy be “necessary to provide equal educational 
opportunities . . . [or] otherwise essential as remedial 
or compensatory programs.” Liddell v. Missouri, 731 
F.2d at 1318. The KCMSD 10 has now responded, if only

10 With the exceptions noted below, the plaintiffs have not sepa­
rately responded to the particular allegations of error we made in 
our opening brief.



11

summarily, to our allegations of error.11 None of the 
responses eliminates or reduces the need to correct cer­
tain errors in the remedy.

1. The Voluntary Interdistrict Program. Besides pre­
serving our challenge to the adoption of any interdistrict 
remedy for an intradistrict violation, a challenge not 
otherwise pursued here, we pointed out in our opening 
brief that one aspect of the voluntary interdistrict stu­
dent transfer program adopted by the district court was 
excessive. Under the program, when minority KCMSD 
students transfer to any of the SSDs, the State must pay 
to the KCMSD the full Foundation Formula allotment 
for all those absent students.12 This requirement is a 
windfall for the KCMSD, which is jointly liable for the 
violation found below, is an unnecessary “incentive” to 
the KCMSD (which has actively promoted the program), 
and is inconsistent with the practice in Liddell, which 
provided for only one-half of the pupil payment (or pay­
ment based on enrollment in the “second prior year” ). 
See State Brief at 54-55.

Ignoring the fact that the payment scheme provides a 
financial benefit for a constitutional violator,13 the 
KCMSD makes two points in its response to these chal­
lenges. First, the KCMSD says that its costs will not 
show a “significant decrease” if only a few students 
transfer. KCMSD Response Brief at 27. That response 
is of little value, however, since the loss of revenue based

11 Neither the plaintiffs nor the KCMSD has addressed our con­
tention, founded on the Eleventh Amendment, that the State of 
Missouri and the State Board of Education must be dismissed as 
parties to this case. See State Brief at 60 n. 63. This Court should 
thus order dismissal of those parties.

12 The State must make payments to the receiving districts as 
well. Remedy Order at 32.

1:3 It is noteworthy that, throughout its briefs, the KCMSD never 
refers to its own conduct in maintaining and then perpetuating the 
dual school system within its boundaries.



12

on a few transfers would not be significant either. If 
any but an insignificant number of students transfer, as 
the KCMSD itself admits, id. at 27 n.77, “savings would 
be possible” : costs would be lower because fewer teach­
ers, supplies, and other resources would be needed. More­
over, only paying the KCMSD for those students actually 
attending school in the KCMSD would still leave the dis­
trict with greater per-pupil revenues than it had before 
the transferring students left, for none of the substan­
tial local revenues diminish when a student withdraws. 
In these circumstances, there is no justification for re­
quiring the State to make a full Foundation Formula 
payment to the KCMSD for students attending school 
elsewhere.

The KCMSD’s second point on the interdistrict transfer 
program concerns the consistency of the full-payment 
formula with the payment formula for the comparable 
program in Liddell. The KCMSD does not actually con­
test the fact, which may be confirmed simply by reading 
Liddell and the settlement agreement, that the sending 
districts in St. Louis were required to elect irrevocably 
either half-payment for transferring students for each 
future year or full-payment based on enrollment in the 
second preceding year. Rather, the KCMSD suggests 
that the “second prior year” option may result in a 
higher State payment than the full-payment rule adopted 
below. But that obviously could happen only for a two- 
year transition period, after which the benefits of the 
alternative option would disappear; indeed, the point of 
the second option in St. Louis is to ease the transition to 
a smaller student population. The formula adopted below 
makes no such provision for transition to a lower budget. 
Without any need, it simply pays the KCMSD for stu­
dents who are not there.14

14 Although we accept that Liddell is not an inflexible blueprint 
for the remedy here, we find it hard to agree with the KCMSD that 
Liddell should be followed when it helps the KCMSD and ignored



13

2. The General Addition of Teachers. In Liddell, this 
Court rebuffed the attempt to add teachers in the non- 
segregated schools over and above those needed to bring 
the district to AAA status. 731 F.2d 1318. Yet that is 
precisely what the remedy adopted by the district court 
in this case provides. Not only is the addition of 183 
teachers in excess of those needed to qualify the KCMSD 
for a AAA rating inconsistent with Liddell, it is plainly 
nothing more than a general improvement in the district, 
unrelated to school desegregation.

The KCMSD tries to defend this system-wide addition 
of teachers in a number of ways. KCMSD Response 
Brief at 28. First, it states that Liddell is irrelevant 
because the integrated schools for which it disapproved 
the general teacher addition are only 30-50% black. This 
assertion is both misleading and incorrect. Of the 62 non- 
integrated schools in St. Louis (the schools that receive 
a general addition of teachers), one is 82% black and the 
other 61 are more than 90% black (50 are 99-100% 
black). Further, not only did the district court give the 
30-50% guideline a 15% flexibility (so that schools up to 
65% black are considered integrated and, hence, not 
eligible for the general addition of teachers), see Liddell 
v. Board of Education, 667 F.2d 643, 649 n.3 (8th Cir. 
1981), but, in fact, half of the 33 integrated schools have 
a black enrollment of more than 50%, with numbers rang­
ing up to 80%. See Tenth Report of City Board under 
If 14 of the Court’s Order of May 21, 1980 ( #L(142)85) 
at 3-9, filed April 1, 1985, in Liddell v. Missouri, No. 72- 
100C (E.D.Mo.). Thus, contrary to the KCMSD’s sug­
gestion, many schools with well over 50% black enroll­
ment are not. covered by the teacher-addition program in 
Liddell, while every school that is covered (with one ex­
ception, which is 82% black) is more than 90% black. 
If this pattern were followed in Kansas City, only the 24

when it does not. Compare KCMSD Response Brief at 26 n. 76, 
30-31, 32 with id. at 26 n. 76, 28-29.



14

schools with 90+% black enrollment, and perhaps 2 or 3 
others with more than 82% black enrollment, would be 
covered by the general teacher-addition program. See 
KCMSD Exh. K2.

In any event, as the KCMSD persists in refusing to 
understand, neither the percentage of black students nor 
the absolute number is, by itself, the test for coverage 
by a remedial program: what matters is whether schools 
are unlawfully segregated. Here, of course, the district 
court found that only the concentration of black students 
in the 24 schools with over 90% black enrollment was the 
result of unlawful segregation, not the attendance pat­
terns in the remaining schools in the district. Indeed, as 
noted above, see note 6 supra, even the KCMSD has rec­
ognized at other times that its schools with upwards of 
70% black enrollment are, in legal terms, desegregated.

The KCMSD next suggests that a system-wide increase 
is needed because Plan 6C moved some black students 
into non-segregated schools “from formerly all-black 
schools or all-black ne ig h b o rh o o d sKCMSD Response 
Brief at 28 (footnote omitted) (emphasis added). This 
argument is unpersuasive for several reasons. First, the 
reference to movement from “all-black neighborhoods” 
once again confuses the separate concepts of unlawful 
segregation and the presence of black students. Having 
come from an “all-black neighborhood” is plainly not the 
same as having attended an unlawfully segregated school. 
Second, the KCMSD has put forth no evidence whatever 
to show what number of the KCMSD’s current students 
in other than the 24 largely black schools, eight years 
after Plan 6C was implemented, ever attended unlaw­
fully segregated schools. It is self-evident, however, that 
the number must be exceedingly small at least for all the 
students in grades K through 8, who entered school after 
6C began. In short, the KCMSD’s defense of across- 
the-board class-size reductions is yet another attempt to 
turn a good idea into a constitutional necessity.



15

3. The School Grant Program. One large component 
of the district court’s remedial plan is an open-ended 
block grant program to every school in the KCMSD, a 
program funded entirely by the State at a cost of more 
than $17 million over three years. The goal of this pro­
gram is the goal of all of any school district’s programs: 
to improve educational achievement in the district. And 
the Remedy Order leaves to the KCMSD extremely broad 
discretion to use the money as it likes. Remedy Order 
at 20-23. Notwithstanding the KCMSD’s simple assertion 
to the contrary, see KCMSD Response Brief at 29 n. 83, 
this part of the remedial program is just a transfer of 
funds from the State to the KCMSD. This is a far cry 
from the compensatory, remedial programs that the Su­
preme Court had in mind in Milliken I I : the program is 
largely unformed, let alone properly tailored to fit the 
violation.

If. The Buildings Plan. The district court also in­
cluded a $37 million capital improvement program in the 
remedial plan. It did so despite the undisputed fact that 
the current disrepair of the KCMSD’s buildings was 
caused by the KCMSD’s lack of adequate funding and 
hence of maintenance, not by any unlawful segregation 
in the district. As explained above, the district court 
erred in attributing to unlawful segregation the KCMSD 
taxpayers’ inadequate financial support of the district. 
Further, the court apparently relied on the theory that 
a remedy may include any school improvement that 
might conceivably complement other, independently de­
fensible portions of the remedy. But this theory so 
vastly expands the remedial powers of the courts as to 
obliterate the standards for exercising remedial discre­
tion; and such a theory is certainly unjustifiable at least 
when there is a clear alternative cause for the deficien­
cies and when the costs of correcting them are so greatly



16

disproportionate to the other parts of the remedy. See 
State Brief at 56-58.15

The KCMSD’s sole response is to say that the amount 
is not excessive in comparison to the amount in Liddell. 
See KCMSD Response Brief at 30. The issue, however, 
is not whether the amount is great or small, but whether 
the expansive buildings program is, under the standards 
that govern the exercise of equitable discretion, a proper 
part of this equitable remedy.16 Here, the evidence shows 
conclusively that general neglect is the root of this par­
ticular problem. Furthermore, whereas the buildings 
housing the unlawfully segregated schools in St, Louis 
were “either the worst or among the worst in the City,” 
it is undisputed that this is not the case in the KCMSD. 
See Liddell v. Missouri, 758 F.2d 290, 302 (8th Cir. 
1985) ; State Defendants’ Proposed Order with Findings 
of Fact and Conclusions of Law at 70-71 (Deferred Ap­
pendix at 1878-79). For these reasons, the KCMSD’s 
simple reliance on Liddell to defend the building program 
in the Kansas City remedy is misplaced.17

15 In addition, there is no persuasive evidence that the building 
conditions here are in fact connected with the parts of the remedy 
directly aimed at improving achievement. See State Brief at 57-58 
n. 60.

16 In any event, the State in Liddell has been ordered to spend 
only $20 million for capital improvements. See Liddell v. Missouri, 
758 F.2d 290, 302, 304 (8th Cir. 1985). Moreover, even that obliga­
tion depends on an equal commitment by the local district—the sort 
of commitment that, apart from a fund of $10 million, the KCMSD 
has been unwilling to make.

17 In criticizing the State’s assertion that it was ordered to pay 
more than 75% of the capital costs ($27 out of 37 million), the 
KCMSD also appears to suggest that the costs might be evened out 
by allocating to the KCMSD an uneven share of costs over and 
above $37 million. KCMSD Response Brief at 88. Of course, there 
is no indication at this point that there will be any such additional 
costs. If the KCMSD, as its argument might suggest, recognizes 
the fairness of a 50-50 allocation of costs, at least in the capital 
improvement part of the remedial program, it would obviously be



17

5. The Allocation of Funding Between the State and, 
the KCMSD. In allocating the costs of the $87 million 
remedial plan, the district court assigned to the State 
more than 80% of the educational program costs and 
more than 75% of the capital improvement costs. This 
disproportionate burdening of the State for a concededly 
joint violation is unfair and erroneous for a number of 
reasons. First, the evidence and findings make clear that 
it was the KCMSD’s actions (attendance area shifts, op­
tional attendance zones, transfer policies, intact busing) 
that left the vestiges of segregation uncorrected for dec­
ades after 1954, when every surrounding school district, 
with precisely the same local autonomy, became unitary 
within a few years of Brown v. Board of Education, 349 
U.S. 483 (1954). Second, the common practice in other 
desegregation cases, and the clear practice in Liddell, has 
been to divide at least all intradistrict-program costs 
equally between the local school district and the State 
where both were found to be violators. See, e.g., Liddell, 
731 F.2d a t 1300.18 Third, the district court’s decision to 
assign a disproportionate share of the costs to the State 
in order to compensate the KCMSD for past desegregation 
expenditures runs afoul of the Eleventh Amendment pro­
hibition on indirect as well as direct efforts to exact State 
funds for past obligations. See Edelman v. Jordan, 415 
U.S. 651 (1974). Fourth, even if it were permissible to 
credit the KCMSD for past expenditures, the district court 
awarded an excessive credit, including millions of dollars 
of ordinary education expenses rather than specific de­
segregation expenses. See State Brief at 58-63.

more sensible and fair to share costs equally for every dollar spent, 
from first to last, rather than follow the skewed pattern put forth 
by the district court.

18 The one exception in Liddell is the “part-time integrative 
programs.”



18

The KCMSD’s first response is that Liddell did not 
equally divide costs between the City and the State, 
KCMSD Response Brief at 30-31. But this argument 
coyly ignores our point. As the KCMSD well knows, 
Liddell made a clear distinction between the programs 
confined to the St. Louis district itself and those reaching 
outside the district, such as the interdistrict transfer and 
magnet programs. Only for the programs reaching out­
side the district (and for the “part-time integrative pro­
grams”) was the State assigned more than an equal share 
of the costs; for all other programs, including capital 
improvements and educational programs, the State and 
the City were ordered to share the costs equally. 731 
F.2d at 1300.19 In this case, none of the $87 million un­
equally divided between the State and KCMSD by the 
Remedy Order is a cost of transfer, magnet, or other 
interdistrict programs: it all goes toward intradistrict 
educational and capital-improvement programs. See Rem­
edy Order at 41-42.20 The unequal division of these costs 
is squarely in conflict with the practice in Liddell.

The KCMSD’s other responses are hardly responsive at 
all. The KCMSD says nothing whatever in defense of the 
amount of the credit that it received for past expendi­
tures. Thus, it is admittedly getting “credit” for money 
received from the State in the first place and spent on 
programs having nothing to do with desegregation. Fur­
ther, its response on the Eleventh Amendment point is 
simply to assert that future expenditures may be ordered 
without regard to the Eleventh Amendment, a response 
that amounts to saying that an end-run around the Elev­

19 The KCMSD’s own brief makes this clear. All of the programs 
that Liddell funded unequally, including certain of the capital 
improvement costs, fall in the first category of interdistrict pro­
grams. See KCMSD Response Brief at 30-31 nn. 88 & 89.

20 The only exception is an $85,000 budget item for planning 
magnet programs.



19

enth Amendment is permissible because it is an end-run. 
KCMSD Response Brief at 32-33. This theory, of course, 
is flatly contrary to Edelman v. Jordan, which held that 
the Eleventh Amendment prohibited ordering the State 
to make future payments as an equitable restitution for 
unfulfilled past obligations. 415 U.S. at 665-68. Finally, 
the plaintiffs renew the argument that the KCMSD should 
not have to bear its full share of the remedial costs be­
cause that sort of requirement would burden the victims 
of discrimination. Plaintiffs Response Brief at 31-32. As 
was pointed out in our opening brief, however, hundreds 
of liability awards against governmental entities testify 
to the fact that a government may be saddled with lia­
bility for discrimination against its own citizens;21 and in 
any event, the primary burden of any additional taxa­
tion within the KCMSD would not fall on the parents of 
KCMSD’s black students, but rather on the heavy base 
of commercial property within the district.

21 The plaintiffs inexplicably cite Raney v. Board of Education, 
391 U.S. 443, 447-48 (1968), to support their claim. The case says 
nothing close to what the plaintiffs are arguing. The passage cited 
says that the school board in the case may not, by adopting a free- 
choice plan, shift onto the parents the board’s obligation to make 
the schools unitary.



20

CONCLUSION

For all of these reasons, we respectfully request that 
the judgment of the district court be reversed insofar as 
it reflects the errors identified above.

Respectfully submitted,

W illiam Webster 
Attorney General 

Terry Allen
Deputy Attorney General 

Bruce Farmer 
Georganne L. Wheeler 

Assistant Attorneys General 
Supreme Court Building 
Jefferson City, MO 65102 
(314) 751-3321

H. Bartow Farr, III 
J oel I. Klein 
Richard G. Taranto 

Onek, Klein , & Farr 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 775-0184 

Counsel for State
Appellees/Cross- Appellants