Jenkins v. Missouri Individual Brief of Appellee Raytown Consolidated School District C-2

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT
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No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM

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KALIMA JENKINS, et al.,
Appellants,S IS

STATE OF MISSOURI, et al.,
Appellees.

Illliti
Appeal From the United States District Court for the 

Western District of Missouri, Western Division
the Honorable Russell G. Clark, Chief Judge

INDIVIDUAL BRIEF OF APPELLEE RAYTOWN CONSOLIDATED 
SCHOOL DISTRICT C-2 AND ITS SUPERINTENDENT 

DR. ROBERT ATKIN

A  > 1 '
:

GENE E. VOIGTS 
GARY L. WHITTIER 

SHOOK, HARDY & BACON 
20th Floor, 1101 Walnut Street 
Kansas City, Missouri 64106

Attorneys for Raytown Consolidated School District C-2

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

No. 85-1765WM 
No. 85 — 194 9WM 
No. 85-1974WM

KALIMA JENKINS, et al.,
Appellants, 

v.
STATE OF MISSOURI, et al.,

Appellees.

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

the Honorable Russell G. Clark, Chief Judge

INDIVIDUAL BRIEF OF APPELLEE RAYTOWN CONSOLIDATED 
SCHOOL DISTRICT C-2 AND ITS SUPERINTENDENT 

DR. ROBERT ATKIN

GENE E. VOIGTS 
GARY L. WHITTIER 

SHOOK, HARDY & BACON 
20th Floor, 1101 Walnut Street 
Kansas City, Missouri 64106

Attorneys for Raytown Consolidated School District C-2



SUMMARY AND REQUEST FOR ORAL ARGUMENT
This is a case in which plaintiffs seek to hold Raytown 

Consolidated School District C-2, its Superintendent (hereinafter 
"Raytown") and others liable for claimed continuing vestiges of 
an alleged prior interdistrict dual school system. Then, as now, 
Appellants argue for Raytown's consolidation into a massive metro­
politan district and, by necessary implication, the dissolution 
of a district which has sought to serve its patrons for over 
eighty years. On April 2, 1984, the district court granted Ray­
town's motion for judgment at the close of plaintiffs' evidence. 
The Court found that Raytown was not liable under the test of 
Milliken v. Bradley, 418 U.S. 717 (1974). Raytown was exonerated 
of the serious allegations made against it. Raytown requests 
this Court to affirm the order of the district court dismissing 
it under Rule 41(b) Fed. R. Civ. P.

This is an important case to the parties and has 
attracted considerable public attention. Raytown has been 
required to participate in eight years of litigation which cul­
minated in sixty-four days of trial.

Raytown's vindication and indeed its continued existence 
is now before this Court. Appellee respectfully requests that 
before the Court decides the outcome of this lengthy litigation, 
and Raytown's future, that it should be allowed at least fifteen 
minutes of 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
STATEMENT OF THE ISSUES.................................  iv
STATEMENT OF THE CASE...................................  1
ARGUMENT.................................................  1

BECAUSE PLAINTIFFS FAILED TO SATISFY THEIR BURDEN 
OF PROOF THAT THERE WAS EITHER A CONSTITUTIONAL 
INTERDISTRICT VIOLATION BY RAYTOWN WHICH HAD A 
SIGNIFICANT SEGREGATIVE EFFECT IN ANOTHER DISTRICT 
OR THAT THERE WAS A SUBSTANTIAL SEGREGATIVE EFFECT 
IN RAYTOWN BECAUSE OF A CONSTITUTIONAL INTERDIS­
TRICT VIOLATION BY ANOTHER DISTRICT, THE TRIAL 
COURT PROPERLY GRANTED RAYTOWN'S MOTION UNDER 
RULE 41(b) Fed. R. Civ. P ..........................

CONCLUSION...............................................

ii



TABLE OF AUTHORITIES
Page

Anderson v. Bessemer City, _____  U.S. _____ ,
84 L. Ed. 2d 518 (1985)............................ iv2-3

Jenkins v. State of Missouri, 593 F. Supp. 1480,
1490 (1985)........................................  3

Milliken v. Bradley, 418 U.S. 717 (1974)...............  i
Federal Rules of Civil Procedure

Rule 41(b).........................................  if ii4

iii



STATEMENT OF THE ISSUES
Whether the district court erred in granting Raytown's 

motion under Rule 41(b) Fed. R. Civ. P. when it had found no acts 
by Raytown which were a constitutional interdistrict violation, 
no acts by this district which had a significant segregative 
effect in another district and no constitutional interdistrict 
violation by any other district which had a significant segre­
gative effect within Raytown.

Milliken v. Bradley, 418 U.S. 717 (1974);
Anderson v. Bessemer City, U.S. ,
84 L. Ed. 2d 518 (1985) .

IV



STATEMENT OF THE CASE
Before the district court plaintiffs alleged that this

J

defendant, Raytown, and others failed to carry out their affirma­
tive duties to eradicate segregation in the metropolitan area and 
have contributed to segregation by individual and concerted 
actions. Plaintiffs sought to racially balance the public school 
population throughout the metropolitan area (at least as to a 
portion of the metropolitan area and then only in Missouri) . 
General Memorandum and Order of January 5, 1984, pp. 1,6 (herein­
after "Order"). Trial was bifurcated into a liability and remedy 
phase.

At the conclusion of plaintiffs' liability evidence 
Raytown's motion to dismiss plaintiffs' claims at the close of 
plaintiffs' evidence pursuant to Rule 41(b) Fed. R. Civ. P. was 
sustained. Order of April 2, 1984; Order.

Because appellants have not in their statement of issues 
on appeal challenged the propriety of the findings of fact as 
made by the trial court, those findings as set forth in its Order, 
constitute the facts. Raytown joins in the Statement of the Case 
as set forth in the consolidated brief of Appellee school dis­
tricts and their superintendents.

ARGUMENT
BECAUSE PLAINTIFFS FAILED TO SATISFY THEIR 
BURDEN OF PROOF THAT THERE WAS EITHER A CON­
STITUTIONAL INTERDISTRICT VIOLATION BY RAY­
TOWN WHICH HAD A SIGNIFICANT SEGREGATIVE 
EFFECT IN ANOTHER DISTRICT OR THAT THERE WAS 
A SUBSTANTIAL SEGREGATIVE EFFECT IN RAYTOWN

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BECAUSE OF A INTERDISTRICT CONSTITUTIONAL 
VIOLATION BY ANOTHER, THE TRIAL COURT PRO­
PERLY GRANTED RAYTOWN'S MOTION UNDER 
RULE 41(b) Fed. R. Civ. P.___________________
Space constraints make full response to Appellants' 

brief impossible particularly when Appellants' brief more nearly 
resembles a pretrial brief to a trial court rather than an appel­
late brief. Appellants ignore the district court's findings of 
fact, misstate the evidence, and treat separate and distinct 
school district defendants as a single party. Thus, to illus­
trate this point, this brief will address only one issue, that of 
the so-called interdistrict dual school system.

Appellants state that " . . .  each of the SSD's . . .
either chose to deny hundreds of black children an education 
. . . or 'collaborated with each other and the [KCM] . . . through
the assignment and transfer of black students living in the suburbs 
to black schools in the City."’ (Emphasis added) Jenkins Brief, 
p. 41. The contention is not supportable. First, it is repre­
sentative of Appellants' effort to ignore facts pertaining to 
separate and distinct districts and treat them as a single party; 
second, it is factually wrong; and third, it ignores the district 
court's findings of fact.

The district court found Raytown was formed in 1903 as 
a result of a vote by the people which consolidated several rural 
school districts into a somewhat larger rural school district.
The boundaries of the district have remained unchanged from 1903 
to date. The trial court found no evidence of racial discrimination

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either in intent or effect from the formation or maintenance of 
the district's boundaries. Order, at p. 91.

The district court further found that there were no 
black enclaves or communities within Raytown and that no black
students were transported out of Raytown.to another district.
Further, the court found plaintiffs failed to show that the 
absence of a black school precluded blacks from settling in Ray­
town prior to 1954. Order, at p. 91.

Plaintiffs' argument, as applied to Raytown, of inter­
district transfers ignores the district court's findings of fact. 
Such findings are presumed to be correct and are not to be set
aside unless clearly erroneous. Anderson v. Bessemer City, _____
U.S. _____ , 85 L. Ed. 2d (1985). Such findings are not presented
for review where Appellants' statement of issues on appeal does 
not state as an issue whether the findings of fact are clearly 
erroneous. Thus the issue is not presented for appellate review. 
See Motion for Summary Affirmance filed September 23, 1985.

Appellants frequently cite historian Anderson as to the 
location and number of blacks in the three-county area prior to 
1954. Again, they ignore the district court's findings that 
historian Anderson's opinions are contrary to the weight of the 
evidence and wifthout sufficient foundation. Jenkins v. State of 
Missouri, 593 F. Supp. 1480, 1490 (1985). While many examples
could be cited in support of this finding, one will serve to 
illustrate the point. It was historian Anderson who testified 
that a school district he identified as Raytown 53 (there was no

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such district) which was portrayed to be the same as this defen­
dant, Raytown C-2, had as its southern border the south Jackson 
County line (it does not and never did) and extends north through 
Jackson County, across the Missouri River to include areas north 
of the Missouri River in Clay County (it does not and never did). 
(Tr. 4587-4590). This is but one minute example which illustrates 
why the district court is uniquely qualified to find facts. All 
of those factors which are a part of the credibility of a witness 
and affect the weight to be accorded to the witnesses' testimony 
are observed first hand by the trial judge and tested in the 
trial court and not in the sterile pages of a transcript or buried 
in over 100 footnotes which are by their nature incomplete and 
not representative of the testimony taken as a whole. See: 
Anderson v. Bessemer City, supra.

The district court found that no black students resided 
within or were enrolled in the Raytown School District during the 
1953-54 or 1954-55 school years. Order, at 92. Because records 
were not maintained during the 1960's as to the race of the stu­
dents enrolled, it cannot be ascertained when black students 
first enrolled in the district. What is clear, however, is that 
Raytown has the second highest enrollment of black students in 
absolute numbers and the fourth highest as a percentage of student 
enrollment. Order, at 42, 92. The Court's general and specific 
findings make it clear that there is no barrier to blacks moving 
to #the district as evidenced by their increasing enrollment and

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that there was no evidence that the district had engaged in any 
conduct which had the intent or effect of affecting the racial 
composition of the student enrollment in the Raytown district or 
in any other school district. Order, at 94, 95. Because plain­
tiffs failed to establish any intentionally racially discrimina­
tory acts or omissions by Raytown which had a substantial segre­
gative impact in Raytown or on any other district and because 
there were no constitutional interdistrict violations by another 
district which had a significant segregative effect in Raytown, 
the Court properly granted Raytown's motion under Rule 41(b). 
Milliken v. Bradley, 418 U.S. 717 (1974) .

All of the reasons and authorities supporting the pro­
priety of the district court's judgment and findings of fact and 
conclusions of law as set forth in its General Memorandum and 
Order of June 5, 1984, are set forth in the consolidated brief 
required to be filed on behalf of the individual school districts.

CONCLUSION
For all of the reasons stated above and in the consoli­

dated brief of the dismissed school district defendants, Raytown's 
dismissal by the district court should be affirmed.

Gene E. Voigts
Gary L. Whittier
SHOOK, HARDY & BACON
20th Floor, 1101 Walnut Street
Kansas City, Missouri 64106
816/474-6550
ATTORNEYS FOR RAYTOWN CONSOLIDATED 
SCHOOL DISTRICT C-2

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