Missouri v. Jenkins Petition for a Writ of Certiorari to the US Court of Appeals for the Eighth Circuit

    No.

In The

^uymnT QJmtrt of tin' Muttefr States
October Term, 1988

State of Missouri, et al.,
Petitioners,

v .

Kalima Jenkins, et a l ,
Respondents.

PETITION FOR A  W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

* Counsel of Record

W illiam Webster 
Attorney General

Terry A llen 
Deputy Attorney General

Michael J. Fields 
Assistant Attorney General 
Broadway Building, 6th Floor 
P.O. Box 899 
Jefferson City, MO 65102 
(314) 751-3321

H. Bartow Farr, III *
David R. Boyd 
Beth Heifetz 

Onek, Klein & Farr 
2550 M Street, N.W., Suite 350 
Washington, D.C. 20037 
(202) 775-0184 

Counsel for Petitioners

W il s o n  - Ep e s  P r in t in g  Co . ,  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



QUESTIONS PRESENTED

For a purely intradistrict violation, the courts below 
have ordered remedies— costing hundreds of millions of 
dollars—with the stated goals of attracting more non­
minority students to the school district and making pro­
grams and facilities comparable to those in neighboring 
districts. To provide additional funding, the courts below 
further ordered a doubling of the local property tax.
The questions presented are:

1. Whether a federal court, remedying an intradis­
trict violation under Brown v. Board of Education, 347 
U.S. 483 (1954), may

a) impose a duty to attract additional non-minority 
students to a school district, and

b) require improvements to make the district schools 
comparable to those in surrounding districts.

2. Whether a federal court has the power under Arti­
cle III, consistent with the Tenth Amendment and prin­
ciples of comity, to impose a tax increase on citizens of 
a local school district. *

* A complete list of parties to the proceeding is contained in the 
caption to the opinion of the court of appeals. Pet. App. la-3a.

(i)



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ........... ..................................  i

TABLE OF AUTH ORITIES..............................................  iv

OPINIONS BELOW ........ .................................................... 1

JURISDICTION ......    2

STATEMENT .... .......... .................... ...................................  2

1. The Prior Proceedings ............................................  2

a. The Interdistrict Claim ....................... ............  2

b. The Intradistrict Claims and Initial Reme­
dial O rder.................    3

2. The Remedial Orders Now at Issue....-.................  5

a. The Magnet School Orders ................................ 5
b. The Capital Improvements Orders_________  7

c. The Funding Orders ........... ................. .............  8
3. The Court of Appeals’ Decision .......... ................  9

REASONS FOR GRANTING THE W R IT ___________  12

1. The Remedies in This Case Rest Upon an Un­
warranted Extension of This Court’s Desegrega­
tion Cases ...................... .................................. ........ 14

2. The Order Imposing a Tax Increase Is Outside
the Bounds of Judicial Authority .......   22

CONCLUSION ..........  28

APPENDIX ..................................................   A -l

(Hi)



IV

TABLE OF AUTHORITIES
Cases Page

Board of School Directors v. State of Wisconsin,
649 F. Supp. 82 (E.D. Wis. 1985) .......................... 21

Bradley v. Baliles, 639 F. Supp. 680 (E.D. Va.
1986), aff’d, 829 F.2d 1308 (4th Cir. 1987).......  17

Bradley v. Baliles, 829 F.2d 1308 (4th Cir. 1987).. 17, 21 
Brown v. Board of Education, 349 U.S. 294

(1955) ........._____       14
Calhoun v. Cooke, 522 F.2d 717 (5th Cir. 1975).... 17
Castenada by Castenada v. Pickard, 781 F.2d 456

(5th Cir. 1986) _______        17
Columbus Bd. of Educ. v. Penick, 443 U.S. 449

(1979) ________________________________________  14
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

(1977) ------- -------------- -------------------------- ------ ----- 14
Dows v. Chicago, 78 U.S. (11 Wall.) 108 (1871).... 25
Edelman v. Jordan, 415 U.S. 651 (1974) _________  23, 26
Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978),

cert, denied, 446 U.S. 923 (1980)______________  24,27
Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100 (1981) ...........................   25,27
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)_______  26
Fry v. United States, 421 U.S. 542 (1975)_______  25
Garcia v. San Antonio Metropolitan Transit Auth.,

469 U.S. 528 (1985) ..... .............. ..........................  25
General Bldg. Contractors Ass’n v. Pennsylvania,

458 U.S. 375 (1982)_____________________    12,22
Goldsboro City Bd. of Educ. v. Wayne County Bd.

of Educ., 745 F.2d 324 (4th Cir. 1984)_________  17, 18
Graham v. Folsom, 200 U.S. 248 (1906) .................  24
Green v. County School Bd., 391 U.S. 430 (1968).. 12, 14,

16
Griffin v. County School Bd. of New Kent County,

377 U.S. 218 (1 9 64 )__________ ___ ____ _____ ____  11, 23
Heine v. Levee Comm’rs, 86 U.S. (19 Wall.) 655

(1874) ______        24
Hills v. Gautreaux, 425 U.S. 284 (1976) ...................  22
Imbler v. Pachtman, 424 U.S. 409 (1976) ________  23
Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986)

( en banc), cert, denied, 108 S. Ct. 70 (1987)....3, 5, 17



V

Page
Kelley v. Board of Educ. of Nashville, 836 F.2d 986

(6th Cir. 1987) _______________________ ________.. 21
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (en

banc), cert, denied, 469 U.S. 816 (1984) ____ 10, 11, 21
Little Rock School Dist. v. Pidaski County Special 

School Dist., 839 F.2d 1296 (8th Cir.), cert.
denied, 109 S. Ct. 177 (1988) _______________  21

Louisiana ex rel. Hubert v. New Orleans, 215 U.S.
170 (1909) ____________ ___ ______________ _____  24

Louisiana v. Jumel, 107 U.S. 711 (1883) ________ 24
Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982)...  18, 20
Matthews v. Rodgers, 284 U.S. 521 (1932)........... . 23, 26
Meriwether v. Garrett, 102 U.S. 472 (1980) ...... ...... 24
Milliken v. Bradley, 418 U.S. 717 (1974)_________ passim
Milliken v. Bradley, 433 U.S. 267 (1977) _________passim
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert.

denied, 426 U.S. 935 (1976)............. .......... .......... 18
New York State Ass’n for Retarded Children v.

Carey, 631 F.2d 162 (2d Cir. 1980).............. ........ 27
Plaquemines Parish School Bd. v. United States,

415 F.2d 817 (5th Cir. 1969)______ __ _________ 24
Rees v. City of Watertown, 86 U.S. 107 (1874).... 23
Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974).... 27
San Antonio Indep. School Dist. v. Rodriquez, 411

U.S. 1 (1973) ................................................ ........13,20,25
School District of Kansas City, Missouri v. State 

of Missouri, 460 F. Supp. 421 (W.D. Mo. 1978).. 2
Stansbury v. United States, 75 U.S. (8 Wall.) 33

(1869).........       25
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971) ______ ______________ ___ ____ ____  l i ,  14
United States v. Board of School Comm’rs, 677 

F.2d 1185 (7th Cir.), cert, denied, 459 U.S. 1086
(1982) ------     27

United States v. County of Clark, 95 U.S. 769
(1878) ..........................       24

United States v. Missouri, 515 F.2d 1365 (8th 
Cir.), cert, denied, 423 U.S. 951 (1975) ........ . 11

TABLE OF AUTHORITIES— Continued



VI

Page
United States v. New Orleans, 98 U.S. 381 (1879).. 24
United States v. Scotland Neck City Bd. of Educ.,

407 U.S. 484 (1972) .......... ........................................  16
West v. Atkins, 108 S. Ct. 2250 (1988) ............... . 20
Wright v. Council of the City of Emporia, 407 U.S.

451 (1972)_____________ __________ _______ ____  16

Statutes:
28U.S.C. § 1254(1) ............. ................ ..................... . 2
28U.S.C. § 1341.................. ............................................  26
Mo. Rev. Stat. § 164.013 ................... .................... ........  4

Other Authorities
L. Tribe, American Constitutional Law 1510

(1988) ........ ................ .......... ................ ......... ............. 22
The Federalist No. 32 (Rossiter ed. 1961)_________  25
The Federalist No. 78 (H. Lodge ed. 1888)___ __ _ 23

TABLE OF AUTHORITIES— Continued



In  T he

Bnptmt (Emtri at tip Itttfri* Btittw
October Term, 1988

No.

State of Missouri, et al,
Petitioners,v.

Kalima Jenkins, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

The State of Missouri, and certain of its agencies and 
officials, petition for a writ of certiorari to review the 
judgment of the United States Court of Appeals for the 
Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 
855 F.2d 1295. It is reprinted at pages la-47a of the 
separate appendix to this petition. One order of the dis­
trict court is reported at 639 F. Supp. 46-56; the other 
orders are not reported. The orders are reprinted at 
pages 55a-150a of the separate appendix to the petition.1

1 Several prior orders of the district court (593 F. Supp. 1485 
and 639 F. Supp. 19-46) are also reprinted in the separate appendix 
for the convenience of this Court. Pet. App. 151a-242a. We have 
also lodged with the Clerk of this Court 10 copies of a lengthy order 
issued on June 5, 1984, which is cited at several points in the body 
of the petition.



JURISDICTION
The judgment of the court of appeals was entered on 

August 19, 1988. The court denied rehearing and re­
hearing en banc on October 14, 1988. (An amended 
order, issued on January 10, 1989, is reprinted in an 
appendix following this Petition.) The jurisdiction of 
this Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT
The issues before the Court concern unprecedented 

remedial measures ordered for the Kansas City, Missouri 
School District ( “ KCMSD” ), as well as an equally un­
precedented court-ordered tax. The Eighth Circuit, with 
slight modifications, affirmed both the remedial measures 
and the tax. Pet. App. 4a-5a.

1. The Prior Proceedings.
a. The Interdistrict Claim. For many years, the prin­

cipal focus of this lawsuit— filed in 1977 by the KCMSD 
and certain KCMSD students—was on claims of inter­
district segregation, including a sweeping proposed 
remedy involving reassignment of students across dis­
trict and state lines. After the district court realigned 
the KCMSD as a defendant in October 1978, School Dis­
trict of Kansas City, Missouri v. State of Missouri, 460 
F. Supp. 421, 442 (W.D. Mo. 1978), students in the 
KCMSD and in several other Missouri districts (the 
“Jenkins class” ) filed an amended complaint, adding 
claims of an intradistrict violation within the KCMSD, 
allegedly committed by the KCMSD and the State de­
fendants.2 The KCMSD thereafter filed a cross-claim 
against the State, reiterating the claims of interdistrict 
violation and seeking indemnification against any intra- 
district liability.

The district court'—and, ultimately, the court of ap­
peals— rejected the claims for interdistrict relief. Apply­

2 Although plaintiffs named a number of other defendants, only 
the present petitioners and the KCMSD have been made responsible 
for the remedies ordered in this case.

2



3

ing the standards set forth in Milliken v. Bradley, 418 
U.S. 717 (1974) (Milliken I ), the court made extensive 
findings to demonstrate that plaintiffs had proved 
neither an interdistrict violation nor an interdistrict 
effect. The court determined that there had been no 
manipulation of district boundaries for racial reasons; 
that the pre-1954 State segregation policy had no sig­
nificant current interdistrict effects; and that the pre- 
1948 State enforcement of racially-restrictive covenants 
likewise had no significant current interdistrict effects. 
June 5, 1984 Order at 6-39. The court of appeals, sitting 
en banc, found these determinations to be dispositive, 
noting the “ specific findings that negate current sig­
nificant interdistrict effects.” Jenkins v. Missouri, 807 
F.2d 657, 672 (8th Cir. 1986) (en banc), cert, denied, 
108 S. Ct. 70 (1987) (Jenkins I) ®

b. The Intradistrict Claims and Initial Remedial 
Order. Although the district court rebuffed respondents’ 
claims for interdistrict relief, it did find that the State 
and KCMSD had failed to eradicate all vestiges of the 
prior dual school system within the district itself. The 
court first noted that “24 schools . . . are racially isolated 
with 90+%  black enrollment.” Pet. App. 213a. (At the 
time, the overall enrollment of the KCMSD was approxi­
mately 70% black. Pet. App. 217a.) The court found 
that, in light of this condition, “ the District did not and 
has not entirely dismantled the dual school system.” Pet. 
App. 213a. In addition, the court made a broad state­
ment, without further detail, that “ the inferior educa­
tion indigenous of the state-compelled dual school system 
has lingering effects in the Kansas City, Missouri School 
District.” Pet. App. 211a. The district court ordered the 
State and the KCMSD to develop a remedial plan to “ es- 3

3 This Court denied petitions for writs of certiorari filed by plain­
tiffs and the KCMSD. 108 S. Ct. 70 (1987).



4

tablish a unitary school system within the KCMSD.” 
Pet. App. 241a.

The remedy proposed by the KCMSD, and partly ac­
cepted by the court, made no changes in student assign­
ments; rather, it concentrated on adding substantial re­
sources in order to upgrade the school system as a whole. 
Pet. App. 156a-157a; 184a.‘ The order required, inter cdia, 
that the defendants add library materials and employ an 
additional 22 librarians, 54 specialty teachers, 31 teach­
ers’ aides, and 18 counselors to achieve AAA status (the 
highest State rating for Missouri school districts) ; em­
ploy 183 more classroom teachers to lower pupil-teacher 
ratios; provide cash grants to all schools (ranging from 
$100-$125,000 in the third year) to improve educational 
achievement; and initiate or expand programs for sum­
mer school, all-day kindergarten, before-and-after school 
tutoring, and early childhood development. Pet. App. 
158a-176a. The cost of these programs— and other re­
lated programs4 5—was estimated to be approximately 
$50 million over three years, with the State required to 
pay approximately two-thirds of that amount. Pet. App. 
196a-197a.6 * 8

4 Long before trial the KCMSD had implemented a reassignment 
plan, in response to a complaint by the federal Office of Civil Rights, 
providing that no school should have less than a SO percent minority 
enrollment. The district court strongly indicated its view that no 
further reassignment was feasible. Pet. App. 184a.

5 Other programs and studies ordered by the district court in­
cluded a staff development plan, stipends for staff development 
training sessions, a study regarding mandatory student reassign­
ments (never implemented), hiring of an additional public informa­
tion specialist, and establishment of a desegregation monitoring 
committee. Pet. App. 191a-195a.

8 To assist the KCMSD in paying its share, the court also en­
joined operation of the so-called “ Proposition C rollback,” which 
was designed to provide school districts with sales tax revenues in 
return for a partial rollback of property tax rates. See Mo. Rev. 
Stat. § 164.013. Pet. App. 197a-199a.



5
The district court also ordered substantial improve­

ments to the KCMSD school facilities. Pet. App. 187 a- 
191a. Acknowledging that the condition of the KCMSD 
schools was caused by a “ lack of maintenance,”  Pet. App. 
189a, the court nonetheless ordered the expenditure of 
$37 million to eliminate safety and health hazards, to 
correct conditions that impede the level of comfort needed 
for a good learning climate, and to make the facilities 
visually attractive. (The State was ordered to bear $27 
million of the $37 million cost. Pet. App. 191a-196a.) 
In language of particular importance to the orders now 
under review, the court further directed the KCMSD to 
review its facilities to identify any additional “ capital 
improvements needed in order to bring its facilities to 
a point comparable with the facilities in neighboring 
suburban school districts.”  Pet. App. 191a.7

The Eighth Circuit affirmed most of this initial reme­
dial order. Jenkins I, 807 F.2d at 658.®

2. The Remedial Orders Now at Issue.
a. The Magnet School Orders. The court-ordered 

remedy, already strikingly broad, underwent a dramatic 
expansion with the orders presently before this Court. 
In the first order, requiring expanded budgets for six 
existing magnet schools,7 8 9 the district court specified for

7 The court also endorsed a program of voluntary interdistrict 
transfers, Pet. App. 185a-187a, and directed that the KCMSD sub­
mit a budget for its then-existing magnet schools. It ordered the 
State to fund a survey to determine the most attractive magnet 
themes, accompanied by a proposed marketing and recruitment 
plan. Pet. App. 177a.

8 The Court reversed, however, the district court’s unequal alloca­
tion of costs between the State and the KCMSD. 807 F.2d at 686. 
It required instead that costs for programs and capital improve­
ments be divided evenly between the State and the KCMSD, as 
both were constitutional violators. On remand, however, the district 
court ordered the State to bear 75% of the remedial costs, and the 
Eighth Circuit later affirmed. Pet. App. 112a-113a; id. at 23a-24a.

9 By this order, the court held that all of the operating costs of 
the schools, whether part of the original budgets or newly ordered



6

the first time the “ long term goal” of the remedy: “ to 
make available to all KCMSD students educational op­
portunities equal to or greater than those presently avail­
able in the average Kansas City, Missouri metropolitan 
suburban school district.” Pet. App. 145a-146a (em­
phasis in original). The court also placed renewed em­
phasis on a second goal: to “ attract non-minority enroll­
ment” to the school district. Pet. App. 146a.

The next magnet order, handed down five months 
later, invoked similar themes in support of a plan turn­
ing the KCMSD into a district of nearly all magnet 
schools. Pursuant to this order, every senior high school, 
every middle school, and approximately one-half of the 
elementary schools in the KCMSD were to become mag­
net schools by the 1991-92 school year. Pet. App. 121a.w 
The district court stated that the “plan would serve 
the objectives of its overall desegregation program,”  
stressing again the “greater educational opportunity 
to all KCMSD students.” Pet. App. 122a (emphasis 
in original). Although the court observed that the 
magnet themes would provide incentives for trans­
fers by existing students, it said that the “ most impor­
tant [ ] ” objective of the plan was to attract more white 
students: in its words, to “draw non-minority students 
from the private schools who have abandoned or avoided 10

by the court, were to be counted as necessary desegregation ex­
penses. Pet. App. 145a-149a. The court then established a total 
budget of approximately $13 million for the six affected schools; 
it made the State liable for approximately $6.6 million of that 
amount and the KCMSD liable for approximately $6.3 million. Pet. 
App. 149a.

10 To achieve this goal, the court approved a six-year operating 
budget (excluding capital costs) of more than $142 million. Pet. 
App. at 123a. It held the State and KCMSD jointly and severally 
liable for $53 million of the total; the State was held solely liable 
for the remainder. In its Order of July 6, 1987, the district court 
approved an additional $3.2 million for personnel and resource costs 
for two magnet schools, scheduled to open in the 1987-1988 school 
year.



7

the KCMSD, and draw in additional non-minority stu­
dents from the suburbs.” Pet. App. 123a.

b. The Capital Improvements Orders. The twin objec­
tives of attracting more white students and making the 
district comparable to suburban districts also drove the 
capital improvements orders. The two magnet orders 
called for an additional $65 million in capital improve­
ments, with the court noting that “ the capital facilities 
program requested by the KCMSD is a proper remedy 
through which to remove the vestiges of racial segrega­
tion, and is needed to attract non-minority students back 
to the KCMSD.” Pet. App. 124a.11 In ordering these 
expenditures as part of the desegregation remedy, the 
court again declined to accept the State’s argument that 
“ the present condition of the district school facilities is 
not traceable to unlawful segregation but is due to a 
lack of maintenance by the KCMSD” ; it found that, even 
if the State “ did not directly cause the deterioration of 
the school facilities, it certainly contributed to, if not 
precipitated, an atmosphere which prevented the KCMSD 
from raising the necessary funds to maintain its 
schools,” Pet. App. 123a-124a.

The most extensive capital plan— requiring an addi­
tional $187 million, divided evenly between the State and 
KCMSD, for renovation and new construction projects—- 
was expressly designed to make KCMSD schools compar­

11 The court also' ordered the acquisition of sites for 12 totally 
new schools to be constructed, and approved acquisition of “ the 
Jewish Community Center [JCC] or a comparable facility” for 
temporary use until the new performing arts middle school was 
available. (The costs of acquiring the land and of rehabilitating the 
JCC were not included in the $53 million.) Pet. App. 125a. In its 
Order of April 29, 1987, the court approved the JCC purchase, with 
acquisition and renovation costs of some $7.3 million, making the 
State and the KCMSD jointly and severally liable for this amount. 
Pet. App. 116a-119a. An additional $353,061 for capital improve­
ments was included in the district court’s July 6, 1987 Order. Pet. 
App. 110a.



8

able to suburban schools. The district court, in fact, dis­
missed a state proposal because it did not provide for 
such “ comparability.” Pet. App. 70a. Then, after noting 
that the changes would “ eliminate the existing health 
and safety hazards” and promote “ a good learning en­
vironment,” Pet. App. 72a-73a, the court stated: 
“ Equally important, these renovations proposed by the 
KCMSD, unlike those contained in the State plan, will 
make the KCMSD visually attractive and reasonably 
comparable to the suburban Kansas City, Missouri 
schools.”  Pet. App. 73a (emphasis added). The court 
continued to be explicit about the cause of the existing 
conditions, finding that, “ [unquestionably, the deterio­
ration of the KCMSD facilities is due to deferred main­
tenance by the KCMSD.” Pet. App. 69a. It nonetheless 
insisted that the State was liable for correcting them, 
remarking again that the State had “ certainly con­
tributed to an atmosphere which prevented the KCMSD 
from raising the funds to maintain its schools.” Id.

c. The Funding Orders. Confronted with a rapidly 
escalating remedial plan, the district court ultimately de­
cided to order additional taxes to finance it. Pet. App. 
87a-88a. Pointing out that the KCMSD’s present tax 
levy is “ much less than the tax levy of any neighboring 
school district,” Pet, App. 89a, the court ordered a prop­
erty tax increase of $1.95 for each $100 of assessed valu­
ation. Id.12 The effect was to raise the tax levy on prop­
erty in the KCMSD from $2.05 to $4.00 per $100 of 
assessed valuation.13

12 The district court also imposed a tax surcharge on income 
earned within the KCMSD. Pet. App. 88a. The Eighth Circuit 
reversed that portion of the order, Pet. App. 62a-65a, and no issues 
regarding the income tax surcharge are before this Court.

13 On October 27, 1987, the district court amended the September 
15, 1987 order to require that the revenues from the property tax 
increase, rather than the income tax surcharge, be used to retire 
capital improvement bonds. The court instructed that the property



9

The principal explanation offered by the court for di­
rectly imposing taxes was a practical one: “ the KCMSD 
is unable with its present resources to raise revenues to 
fund its share of [desegregation] costs,” and “ [t]he 
KCMSD has exhausted all available means of raising 
additional revenue.” Pet. App. 85a-86a. Accordingly, 
the court determined that it had “no alternative but to 
impose tax measures which will enable KCMSD to meet 
its share of the cost of the desegregation plan.” Pet. 
App. 87a-88a. The court made clear, however, that the 
new taxes were to be used “ not only to eliminate the 
effects of unlawful segregation but also to insure that 
there is no diminution in the quality of its regular 
academic program.” Pet. App. 83a. The court said that 
“ it is essential that the KCMSD have sufficient revenues 
to fund an operating budget which can provide quality 
education, including a high quality faculty.” Id,.14

3. The Court of Appeals’ Decision.

The Eighth Circuit affirmed most of the district court’s 
orders. In so doing, it called attention to the broad goals 
of the remedial program, stating that the district court 
had fashioned its remedial orders with the aim of “ im­
proving the KCMSD as a system.” Pet. App. 10a. It 
found this intention appropriate as a means of “ compen­
sate ing] the blacks for the education they had been 
denied” and “ attract [ing] whites from within and with­
out the KCMSD to formerly black schools.”  Id. The 
court of appeals also quoted with approval the declara­
tion that the goal of the remedy was “to make available 
to all KCMSD students educational opportunities equal

tax increase is to remain in effect through the 1991-1992 fiscal year. 
Pet. App. 63a.

14 The court subsequently denied motions to intervene filed by 
Icelean Clark, et al., a group of individual and corporate taxpayers, 
and by Jackson County, Missouri, the county in which the KCMSD 
is located and the entity responsible for collecting and remitting 
the property tax. Pet. App. 59a-61a.



10
to or greater than those presently available in the aver­
age Kansas City, Missouri metropolitan suburban school 
district.”  Pet. App. 10a (emphasis in district court 
opinion).

The court of appeals then concluded that the extensive 
magnet plan was a proper means of reaching these ends. 
Pet. App. lOa-lla. The court rejected the State’s argu­
ment that the equal protection clause did not require at­
traction of additional white students, relying on its prior 
holding in the St. Louis desegregation case that “volun­
tary interdistrict remedies may be used to make mean­
ingful integration possible in a predominantly minority 
district.” Pet. App. 11a (emphasis in original). See 
Liddell v. Missouri, 731 F.2d 1294, 1302-08 (8th Cir.)
< en banc) (Liddell VII),  cert, denied, 469 U.S. 816
(1984). The court also rejected arguments that the State 
could not be held responsible for “white flight” arising 
out of efforts to desegregate; 15 it decided instead that 
“ such court-ordered integration would not have been nec­
essary had the State not unconstitutionally mandated 
a dual school system and then failed to eliminate the 
vestiges of segregation.” Pet. App. 13a.

The court of appeals also approved the orders requir­
ing the renovation of KCMSD schools (and the building 
of many new ones), again noting that a central purpose 
of the orders was “to attract non-minority students back 
to the KCMSD.” Pet. App. 16a. Although the State em­
phasized the finding that lack of local funding had caused 
the deterioration of the KCMSD facilities, the court held 
that the State could nonetheless be held responsible be­
cause “ segregation and the failure to remove the vestiges 
of the dual school system contributed to the atmosphere 
preventing KCMSD from raising necessary funds.”  Pet. 
App. 17a. The court then said that, in any event, the 
orders were properly part of an effort “both to improve

15 The district court had not made any reference to “white flight”  
in its magnet orders, but respondents had argued on appeal that 
“white flight”  was a justification for the plan.



11

the education available to the victims of segregation as 
well as to attract whites to the schools.” Pet. App. 18a.w

Finally, the court of appeals upheld the order requir­
ing a twofold increase in the property tax rate. Pointing 
to “ [t]he judiciary’s power to determine the rights and 
liabilities of parties in cases arising under the Constitu­
tion and laws of the United States the court con­
cluded that “ this power is without purpose if it does not 
carry with it the power to determine a remedy.”  Pet. 
App. 27a-28a.16 17 The court noted that it had previously 
approved the idea of court-ordered taxes in Liddell VII, 
supra (731 F.2d at 1320)— relying heavily on language 
in Griffin v. County School Bd. of New Kent County, 
377 U.S. 218 (1964)— and that Liddell VII required af­
firmance of the tax increase in this case. In addition, 
it noted that the KCMSD had been unable to obtain the 
necessary voter approval for tax increases under state 
law and that “ its levy of $2.05 was the lowest in Jack- 
son County.”  The court thus determined: “With these 
considerations and under the precedent of the Supreme 
Court in Griffin, Swann [402 U.S. 1 (1971)], and 
Washington State [443 U.S. 658 (1979)], and this Court 
in Liddell VII and United States v. Missouri [515 F.2d 
1365 (8th Cir.), cert, denied, 423 U.S. 951 (1975)], the 
district court did not err or abuse its discretion in order­
ing that the KCMSD property tax levy be increased to 
allow the district to fund its share of the desegregation 
remedies.” Pet. App. 36a.18

16 The court also concluded that the Eleventh Amendment did 
not bar an order requiring the State to overhaul the facilities, even 
though the deterioration had occurred gradually over a period of 
several decades. Pet. App. 16a-17a.

17 The court dismissed the notion that the Tenth Amendment 
raised any barriers to- exercise of a judicial taxing power, indicating 
that this Court had held otherwise in Milliken v. Bradley, 433 U.S. 
267 (1977). Pet. App. 28a.

18 Chief Judge Lay dissented from the decision to allow the prop­
erty tax increase. In his view, “ [t]he State of Missouri should . . .



12

A petition for rehearing en banc was denied, with 
Judge Bowman (joined by Judge Wollman) dissenting. 
In his dissent, Judge Bowman remarked that “ [t]he 
remedies ordered go far beyond anything previously seen 
in a school desegregation case,”  raising the question 
whether they “ represent an unsupportable exercise of 
judicial power in a legislative-style attempt to solve so­
cial problems that have their origins in other causes.” 
Pet. App. 54a. He concluded: “ In over five years on the 
bench, I have not seen a case more deserving than this 
one of thoughtful consideration by the entire Court.” Id.

REASONS FOR GRANTING THE WRIT

This case presents fundamental questions about the 
permissible goals of a desegregation remedy. The courts 
below, discontent simply to order creation of a unitary 
school system (see Green v. County School Board, 391 
U.S. 430 (1968)), have sought instead to achieve ends 
far different from any deemed constitutionally imperative 
by this Court. The first, declared to be the goal of the 
entire remedy, is to make the Kansas City system com­
parable to “ the average Kansas City, Missouri metro­
politan suburban school district.”  Pet. App. 10a. The 
second, said to be the “most important” goal of the 
sweeping magnet plan, is to bring about “meaningful 
integration”— specifically by attracting more white stu­
dents to the district. These unique objectives inevitably 
resulted in orders that “go far beyond anything pre­
viously seen in a school desegregation case.” Pet. App. 
54a (Bowman, J., dissenting from denial of rehearing 
en banc).

These orders are simply an abuse of federal remedial 
powers. See generally General Bldg. Contractors Ass’n 
v. Pennsylvania, 458 U.S. 375, 399 (1982) (remedial

pay for any amount KCMSD is unable to contribute, failing existing 
means by KCMSD to raise the monies in order to effectuate con­
stitutional compliance.” Pet. App. 45a-47a.



13

authority “ extend [s] no farther than required by the 
nature and the extent of [a constitutional] violation” ). 
Nothing in the equal protection clause requires that a 
school district— even a once-segregated district— be com­
parable to neighboring districts or have some particular 
degree of racial balance. A unitary school district, at 
least as understood until now, may be predominantly of 
one race (see Milliken I, supra), and fully unitary school 
districts may differ from one another in terms of avail­
able financing and educational resources. See San An­
tonio Indep. School Dish v. Rodriguez, 411 U.S. 1 
(1973). To hold otherwise is to enforce rights that do 
not exist.

The courts below did not stop at ordering unprece­
dented programs for unprecedented reasons: they or­
dered a specific tax increase to help pay for them. In 
200 years, no federal court ever before assumed the 
power to mandate a hike in tax levies. Thanks to the 
orders below, the KCMSD has now become a judicial 
enclave, where the court selects the programs to meet 
its chosen goals, directs state and local officials to 
execute those programs, and then sets tax rates to sup­
ply additional funding. This arrogation of authority— 
subject only to review by the courts themselves— exceeds 
any known boundaries of judicial power.

Respondents’ success in obtaining such orders will 
hardly be lost on other districts with similar problems. 
As urban school systems have found themselves con­
fronted with limited resources and unwilling taxpayers, 
they have increasingly turned to desegregation suits “ for 
the purpose of extracting funds from the state treasury.” 
Milliken v. Bradley, 433 U.S. 267, 293 (1977) (Milli­
ken II) (Powell, J., concurring). Although other federal 
courts to date have proved more resistant, the Eighth 
Circuit has conspicuously led the way in approving rem­
edies that have little to do with non-discriminatory stu­
dent assignments and much to do with overhaul of



14

fiscally-strapped school systems. These remedies not only 
result in unheard-of costs, but, unhinged as they are 
from accepted notions of equal protection, they too read­
ily come to reflect judges’ views of how best to operate 
a school district. Such extraordinary orders should not 
be allowed to stand.

1. The Remedies in This Case Rest Upon an Unwarranted 
Extension of This Court’s Desegregation Cases.

The orders in this case all raise a central question: 
What are the proper goals of a desegregation remedy? 
Over several decades of desegregation cases, this Court 
has established the general principle that the equal pro­
tection clause requires a formerly dual school system to 
become a unitary one. In Green v. County School Bd., 
supra, the Court said that once-segregated school dis­
tricts have an “affirmative duty to take whatever 
steps might be necessary to convert to a unitary sys­
tem in which racial discrimination would be eliminated 
root and branch.” Id. at 437-38. See also Swann v. Char- 
lotte-Mecklenhurg Bd. of Educ., 402 U.S. 1, 16 (1971) 
(“ a district court has broad power to fashion a remedy 
that will assure a unitary school system” ). Each of the 
cases reviewed by this Court has involved orders directed 
at that result, utilizing assignment patterns and reason­
able ancillary programs designed to ease the transition 
from dual to unitary status. See, e.g., Brown v. Board of 
Education, 349 U.S. 294 (1955) (Brown I I ) ; Green v. 
County School Bd., supra; Swann v. Charlotte-Mecklen- 
hurg Bd. of Educ., supra; MilliJcen II, supra; Dayton 
Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977) ; Colum­
bus Bd. of Educ. v. Penick, 443 U.S. 449 (1979).

The orders in this case stand on very different footing. 
The overall goal of the remedy— and one central to the 
$300 million capital program— is “ to make available to 
all KCMSD students educational opportunities equal to 
or greater than those presently available in the average 
Kansas City, Missouri metropolitan suburban school dis­



15
trict.” Pet. App. 146a; id. at 10a. The “most impor­
tant [ ] ” goal of the magnet plan, and one also underlying 
the capital plan, is to “draw non-minority students from 
the private schools who have abandoned or avoided the 
KCMSD, and draw in additional non-minority students 
from the suburbs.” Pet. App. 123a. These goals not only 
are without precedent, but, as discussed below, they are 
without constitutional basis. As such, they take the fed­
eral courts into areas reserved to other branches of 
government.

a. The magnet plan, in both scope and purpose, is 
unlike any ever ordered by a federal court. No other 
court has required a district to turn most of its schools 
into magnet schools, and no other court has imposed a 
duty to attract more students of a designated race. The 
Eighth Circuit endorsed both of these propositions, rea­
soning that “ meaningful integration . . .  in a predomi­
nantly minority district”  could not otherwise be achieved. 
Pet. App. 11a.19

This conclusion seriously distorts the right at issue in 
a desegregation case. The right is to attend school in a 
district free of racial discrimination; it is not to be 
enrolled in a district or school with some particular num­
ber of white and black students. Furthermore, and of 
great importance here, this right does not change depend­
ing upon whether the district is, or is not, “predominantly 
minority.”  To the contrary, this Court has explicitly 
rejected “ [t]he suggestion . . . that schools which have 
a majority of Negro students are not ‘desegregated,’ 
whatever the racial makeup of the school district’s popu­
lation and however neutrally the district lines have been

19 Although the court of appeals suggested that the magnet plan 
might cause some movement of students already enrolled in the 
district, it is more than evident that the principal aim of the plan 
is to attract new nonminority students. Not only did the district 
court say so, Pet. App. 15a-16a, but the KCMSD admitted below 
that “ [j]ust moving white students from one school to another” 
would be a “kind of ‘shell game’ . . . .” KCMSD Br. at 40.



16

drawn and administered.” Milliken I, 418 U.S. at 747 
n.22. The Court, in fact, has stressed that judicial efforts 
to achieve a particular degree of racial balance, for its 
own sake, would be impermissible, stating that “ the 
Constitution is not violated by racial imbalance in the 
schools, without more.” Milliken II, 433 U.S. at 280 
n.14.

The courts below have misunderstood, or simply dis­
regarded, this central principle. It is true that more 
nonminority students will improve the extent of integra­
tion in the KCMSD, but that fact is essentially irrelevant 
to the constitutional inquiry.20 As this Court made clear 
in Milliken I, a unitary district may have largely- 
minority schools—indeed, necessarily will have largely- 
minority schools— when the racial composition of the dis­
trict as a whole is heavily minority. Id. at 747 n.22, cit­
ing Green v. County School Board, supra; Wright v. 
Council of the City of Emporia, 407 U.S. 451 (1972); 
United States v. Scotland Neck City Bd. of Educ., 407 
U.S. 484 (1972). In such circumstances the existence of 
largely-minority schools does not represent a failure to 
desegregate, as it well might in a district that was 30 
percent minority; it reflects nothing more than the rela­
tive number of black and white students enrolled in the 
district. A school district, of course, may seek to achieve 
more integration than its enrollment allows, but it is not 
the role of a federal court to require it.

If the Eighth Circuit were correct in its view, then 
other courts of appeals have clearly failed in their duty 
to achieve “ meaningful integration.” The Fifth Circuit, 
for example, has recognized on several occasions that a

20 As the Court plainly stated in Milliken I : “ The constitutional 
right of the Negro respondents residing in Detroit is to attend a 
unitary school system in that district.” 418 U.S. at 746 (emphasis 
added). Implicit in that statement, and in the holding of the case 
itself, is that the Detroit school system could achieve unitary status 
by properly addressing the assignment patterns of the students 
then enrolled in the district.



17

heavily-minority school district may be unitary with­
out any plan to attract more non-minority students. See 
Calhoun v. Cooke, 522 F.2d 717, 719 (5th Cir. 1975); 
Castenada by Castenada v. Pickard, 781 F.2d 456, 461 
(5th Cir. 1986). The Fourth Circuit has taken the same 
view. See Goldsboro City Bd. of Educ. v. Wayne County 
Bd. of Educ., 745 F.2d 324 (4th Cir. 1984); Bradley v. 
Baliles, 829 F.2d 1308 (4th Cir. 1987). Indeed, in the 
Richmond case, despite the fact that the district as a 
whole was more than 86% minority, the district court 
refused to order programs for the purpose of attracting 
white students, saying that “although it would be desir­
able to have greater balance than currently exists in the 
percentages of blacks and whites in RPS, such balance is 
not constitutionally required.”  Bradley v. Baliles, 639 
F.Supp. 680, 695 (E.D. Va. 1986), aff’d, 829 F.2d 1308 
(4th Cir. 1987).

The Eighth Circuit also tried to tie the goal of greater 
integration to “white flight” from the district, an effort 
that only compounds its original error.21 What the court 
means to do, it seems, is to apply a far-reaching theory

21 The court of appeals’ reliance on “white flight” seems more 
an attempt to tailor “ findings” to the remedy, than the other way 
around. The district court mentioned nothing about “white flight” 
in any of its magnet orders. Furthermore, the finding to which the 
court of appeals refers is not really a finding at all, but a statement 
by the district court (in an order having nothing to do with magnet 
schools) that it had previously made such a finding. See August 25, 
1986 Order (“ The court has found that segregated schools, a con­
stitutional violation, has led to white flight from the KCMSD to 
suburban districts [and] large numbers of students leaving the 
schools of Kansas City and attending private schools . . .” ). No 
citation was given by the district court, and no such previous finding 
actually exists. In fact, the principal finding regarding white flight 
— for the crucial period from 1958-73—was that “the numbers in­
volved are too insignificant to have a segregative impact on the 
KCMSD or the [suburban districts].” June 5, 1984 Order at 39. 
See also Jenkins I, 807 F.2d at 670 (“argument based on the actions 
of KCMSD and white flight run[s] contrary to the factual find­
ings . .



18

of “but-for” causation— one that would make the State 
liable for an effect of desegregation, rather than for 
effects of segregation itself. Such a principle would seri­
ously enlarge existing notions of remedial duties. As 
almost every desegregating school district experiences 
some loss of students, the Eighth Circuit’s approach— by 
turning effects of desegregation into effects of segrega­
tion— would mean that one remedy would beget the need 
for additional remedies, often converting intradistrict 
cases into interdistrict ones. The result would be a con­
tinuing cycle of cause and effect, which would leave 
school districts under the perpetual control and super­
vision of the federal courts.22

Once again, no other court has ever gone nearly so far. 
The Fourth Circuit, for example, has noted the “move­
ment from city to suburbs seen throughout the United 
States and the abandonment of public schools by white, 
city residents seen in many communities where desegre­
gation has occurred” ; it has nonetheless held that federal 
courts are “not at present charged with a responsibility 
to remedy problems caused by demography and private 
racism.”  Goldsboro City Bd. of Educ. v. Wayne County 
Bd. of Educ., supra, 745 F.2d at 333. The First Circuit 
similarly has said that “ racial isolation imposed by his­
toric school district boundaries” and by “ individual 
choices to attend private institutions” is not “ constitu­
tionally recognized segregation.”  Morgan v. Kerrigan, 
530 F.2d 401, 422 (1st Cir.), cert, denied, 426 U.S. 935

22 In this case, for example, neither the district court nor the 
court of appeals has given any hint of how many white students 
must be attracted to the district for “meaningful integration” to 
occur. The typical desegregation plan uses the racial makeup of 
the district as a starting point for determining enrollment goals 
for individual schools (perhaps plus or minus 20% of the district 
average), but here the object is to change the racial makeup of the 
district. There is thus no way to tell what the actual goal is or 
when it will be achieved.



19

(1976).23 The courts below, in their rush to cure all ills 
of the KCMSD, simply refused to accept that fact.

b. The intention to attract new students to the KCMSD 
drives much of the facilities plan as well. See Pet. App. 
18a-20a; id. at 188a. But this plan— costing more than 
$300 million—also tracks the extraordinary goal of the 
overall remedy: to make KCMSD programs arid facilities 
comparable to those in suburban districts.23 24 25

The obligation to make city schools comparable to 
suburban ones is no more grounded in the equal protec­
tion clause than the duty to achieve “meaningful inte­
gration.” As the district court found, the cause of the 
disparity in facilities between the KCMSD and neighbor­
ing districts is not some biased treatment by the State: 
it is the failure of the KCMSD itself to provide adequate 
maintenance. Pet. App. 69a (“Unquestionably, the de­
terioration of the KCMSD facilities is due to deferred 
maintenance by the KCMSD” ). The lack of maintenance 
was caused by the actions of KCMSD voters who, unlike 
their suburban counterparts, refused to approve higher 
tax levies; their resistance left the levy in the KCMSD 
well below that in districts with better facilities. Pet. 
App. 89a.215

Differences in local school funding are not matters to 
be resolved by the federal courts. This Court held in

23 We also note that, by seeking’ to make the State responsible 
for purely private choices, the courts below have greatly expanded 
the concept of “ State action.” See Lugar v. Edmonson Oil Co., 457 
U.S. 922 (1982). The issue of “ State action” is discussed further 
at page 20, infra.

24 The district court specifically rejected a State proposal because 
it did not provide for such comparability (Pet. App. 70a); it accepted 
the KCMSD proposal because the improvements “will make the 
KCMSD visually attractive and reasonably comparable to the sub­
urban Kansas City, Missouri schools . . . .” Pet. App. 73a.

25 A court might require such parity upon proof that a State 
unlawfully discriminated among various school districts. There are 
no such findings in this case.



20

San Antonio Independent School District v. Rodriguez, 
supra, that the equal protection clause does not prohibit 
a “ system of school financing [which] results in unequal 
expenditures between children who happen to reside in 
different districts . . . 411 U.S. at 54-55. Thus, had
the plaintiffs and school district filed suit directly chal­
lenging the difference between local and suburban tax 
rates, and sought an order mandating equal facilities, 
that suit would clearly have been unsuccessful. There is 
no reason— and certainly the courts below have given 
none—for reaching a different result merely because the 
claims pass through the looking glass of a desegregation 
case.

The courts below also drew a causal link between the 
actions of the State and those of private voters, reasoning 
that “ the State of Missouri by its constitutional viola­
tions and subsequent failure to affirmatively act to re­
move the vestiges of the dual school system certainly con­
tributed to an atmosphere which prevented the KCMSD 
from raising the funds to maintain its schools.” Pet. App. 
69a (emphasis added) ; see also id. at 17a. But this link 
is the proverbial weak one. To begin with, a State can­
not be held legally responsible for private actions unless, 
inter alia, the private party “may fairly be said to be a 
state actor.”  West v. Atkins, 108 S. Ct. 2250, 2255 
(1988) (quoting Lugar v. Edmonson Oil Co., 457 U.S. 
922, 937 (1982)). There is no conceivable way that a 
KCMSD resident, entering a voting booth to support or 
oppose a tax increase, can “ fairly be said to be a state 
actor.” Moreover, the court of appeals’ attempt to match 
voting patterns with the existence of “ segregation”— by 
pointing out that voting support fell off when the district 
enrollment became majority black (Pet. App. 18a n.7) — 
again reveals its inability to distinguish between two 
separate concepts: the percentage of black students in 
the district and the extent of unlawful discrimination. 
The fact that a school district is majority black does not 
mean that it is segregated, much less that private voting



decisions are guided by state statutes deemed unenforce­
able several decades before.

c. It is both striking and troubling that, as the most 
virulent segregation has declined, the remedies imposed 
by federal courts have greatly expanded. At the same 
time, school districts often have become plaintiffs, or com­
pliant defendants, seeking costly decrees that will sig­
nificantly upgrade their school systems.28 The Eighth 
Circuit, in particular, has proved willing to break new 
ground in approving, or even affirmatively calling for, 
such systemic improvements. See Liddell v. Missouri, 
supra', Little Rock School Dist. v. Pulaski County Special 
School Dist., 839 F.2d 1296 (8th Cir.), cert, denied, 109 
S. Ct. 177 (1988).

The prior decisions of this Court— all rendered 10 
years or more ago— simply do not account for cases of 
this nature. As the opinions in this case demonstrate, it 
is a simple matter for federal courts to recite broad 
remedial standards, such as those set forth in Milliken 
II (433 U.S. at 280-81), while seeking to accomplish ends 
different in kind and degree from any previously ap­
proved by this Court. The more that federal courts dis­
place local school boards, or work in tandem with them, 
the easier it is for courts to become attracted to goals:—like 
greater integration or greater parity with other dis­
tricts— that school boards are trying to achieve, whether 
or not they have any constitutional basis. Not unnatur­
ally, the image of a largely-black, underfunded urban 
system, surrounded by more prosperous, largely-white 26

26 Slightly more than a decade ago, Justice Powell regarded as 
“ unique” the sight of a school board joining with plaintiffs to sue 
a State. Milliken II, 433 U.S. at 293 (Powell, J., concurring). The 
situation is no longer unique. See Little Rock School Dist. v. 
Pulaski County Special School Dist., 839 F.2d 1296 (8th Cir.), cert, 
denied, 109 S.Ct. 177 (1988); Bradley v. Baliles, 829 F.2d 1308 
(4th Cir. 1987); Kelley v. Board of Educ. of Nashville, 836 F.2d 
986 (6th Cir. 1987); Board of School Directors v. State of Wis­
consin, 649 F. Supp. 82 (E.D. Wis. 1985).

21



22
suburban systems, may lead courts to conclude— contrary 
to established principles— that judicial power can correct 
that sort of disparity as well.

The result is a serious dissonance between the remedies 
ordered and the rights to be protected. One leading com­
mentator has said that “ [r]acial segregation cases in 
particular— and public law cases in general— threaten 
to sever the traditional ties that bind rights to remedies, 
and to cast the courts adrift on a sea of discretion.” 
L. Tribe, A m e r ic a n  Co n stitu tio n al  L a w  1510 (1988). 
But racial segregation cases are not just matters of 
discretion, with federal courts free to solve such prob­
lems as they see fit; they, too, are governed by prin­
ciples that define what the courts may and may not do.27 
Those principles allow federal courts to order districts 
purged of racial bias, but not to mandate greater racial 
balance or an equivalence with other districts; and they 
allow federal courts to cure conditions caused by official 
action, but not to undo private actions like white flight or 
rejection of tax increases. Here, those principles have 
been honored in the breach.

2. The Order Imposing a Tax Increase Is Outside the 
Bounds of Judicial Authority.

Having ordered programs of unequalled dimension, the 
district court issued an order directly increasing— indeed, 
doubling— local property taxes. Pet. App. 89a. This 
remarkable action squarely raises questions about the 
power of federal courts to order taxes under any cir­
cumstances and, in particular, the exercise of such power 
here.

There are serious grounds for doubting that federal 
courts have any power to order specific taxes. The court

27 The link between violation and remedy is not a matter of 
discretion for the federal courts ; it is the “ controlling principle 
governing the permissible scope of federal judicial power.” General 
Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. at 399 (quoting 
Hills v. Gautreaux, 425 U.S. 284, 294 (1976)).



23

of appeals conceded that relevant historical materials 
seem to contemplate a federal judiciary without power 
over the purse. Slip op. at 27-28 (citing The Federalist 
No. 78 (H. Lodge ed. 1888)). And, more than a century 
ago, this Court said so in no uncertain terms: “ [The] 
power to impose burdens and raise money is the highest 
attribute of sovereignty, and is exercised /  . .b y  the 
power of legislative authority only. It is a power that 
has not been extended to the judiciary. Especially it is 
beyond the power of the Federal judiciary to assume the 
place of a State in the exercise of this authority at once 
so delicate and so important.”  Rees v. City of Water- 
town, 86 U.S. 107, 116-117 (1874). See also Matthews v. 
Rodgers, 284 U.S. 521, 525 (1932).

The court of appeals, reasoned, however, that the judi­
cial power to declare acts unconstitutional would be 
“without purpose if it does not carry with it the power 
to determine a remedy.” Pet. App. 28a.28 Despite the ap­
pealing symmetry to this notion, however, it fails to come 
to grips with the many circumstances where immunities 
or doctrines of judicial restraint limit federal courts to 
imposition of partial remedies. Thus, a prisoner im­
prisoned by the knowing use of false testimony may 
obtain reversal of his conviction but not damages from 
the prosecutor for his imprisonment (see Imbler v. Pacht- 
man, 424 U.S. 409 (1976)) ; or persons deprived of ben­
efits from a state treasury may get benefits in the future 
but not those already lost (see Edelman v. Jordan, 415 
U.S. 651 (1974)). The courts simply do not have an 
inherent power to redress all harm arising from uncon­
stitutional acts.

Apart from this “power without a purpose”  theory, 
the Eighth Circuit relied principally on language in Grif- 28

28 The court of appeals also ignored the fact that the judicial 
levy was intended to fund not just the desegregation programs, but 
“an operating budget which can provide quality education, including 
a high quality faculty.”  Pet. App. 83a.



24

fin v. Comity School Bd., 377 U.S. 218 (1964), which it 
regarded as recognizing a judicial power to tax.28 There 
is no question that this Court in Griffin seemed to approve 
of judicially-compelled taxes, but no tax was actually 
before the Court in Griffin and, indeed, no tax on remand 
was ever imposed. Furthermore, the Court cited no sup­
port for this controversial proposition, and its full dis­
cussion was limited to a single conclusory statement.38 
This treatment hardly seems so compelling as to be the 
last word on the issue— especially since the Court has 
never said, before or after, that federal remedial powers 
encompass the raising of the tax revenues.31 29 30 31

29 The Court indicated that, on remand in that case, the district 
court might “ require the Supervisors to exercise the power that is 
theirs to levy taxes to raise funds adequate to reopen, operate, and 
maintain without racial discrimination a public school system in 
Prince Edwards County . . . .” Id. at 233. Refusing to comply with 
Brown, the county had closed its public schools, and was financing 
private “white-only” schools with revenues from taxes levied to 
operate the public schools.

30 The Fifth Circuit has taken the view that Griffin lacks rele­
vance in most, if not all, other desegregation settings. See Plaque­
mines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 
1969). The Third Circuit has also noted limitations on the exercise 
of the power suggested in Griffin. See Evans v. Buchanan, 582 
F.2d 750 (3d Cir. 1978), cert, denied, 446 U.S. 923 (1980).

31 We also note that, in Griffin, the Court contemplated no more 
than an order directing local authorities to perform a function that 
state law empowered them to perform—i.e., “ to exercise the power 
that is theirs.”  In that respect, the case may simply be a linear 
descendent of cases allowing the use of mandamus to order collec­
tion of authorized taxes. See Louisiana ex rel. Hubert v. New 
Orleans, 215 U.S. 170 (1909); Graham v. Folsom, 200 U.S. 248 
(1906). But that power goes only so far: “mandamus is only 
effective to compel the levy of a tax, when [the legislative] depart­
ment has directed or authorized such tax to be imposed. If no tax 
has been provided for . . . granting the mandamus would be an 
assumption of legislative power, and the application for the writ 
must therefore necessarily fail.” United States v. New Orleans, 
98 U.S. 381, 391 (1879). See also Louisiana v. Jumel, 107 U.S. 711 
(1883); Meriwether v. Garrett, 102 U.S. 472 (1880); United States 
v. County of Clark, 95 U.S. 769 (1878); Heine v. Levee Comm’rs,



25

It seems more plausible, in fact, that the power to tax 
is one “ reserved to the States” under the Tenth Amend­
ment, U.S. Const. Amend. 10, at least insofar as inter­
ference from the federal courts is concerned. The Tenth 
Amendment precludes an exercise of federal power that 
“ impairs the States’ integrity or their ability to function 
effectively in a federal system,” Fry v. United States, 
421 U.S. 542, 547 n.7 (1975), and “ [i]t is upon taxa­
tion that the several States chiefly rely to obtain the 
means to carry on their respective governments 
Dows v. Chicago, 78 U.S. (11 Wall.) 108, 110 (1871). 
See The Federalist No. 32, at 197-98 (Rossiter ed. 
1961) ; Fair Assessment in Real Estate Ass’n v. McNary, 
454 U.S. 100 (1981) ; San Antonio Independent School 
Dist. v. Rodriguez, supra. Although States retain the 
full range of their sovereign powers “ only to the extent 
that the Constitution has not divested them of their orig­
inal powers and transferred those powers to the Federal 
Government,” Garcia v. San Antonio Metropolitan Tranr 
sit Auth., 469 U.S. 528, 549 (1985), it would be an 
astonishing proposition to maintain that Article III re­
quired the States to share with the federal judiciary their 
sovereign powers over taxation. Whatever the powers 
conferred upon Congress under Article I, it has long been 
the common understanding, noted above, that the federal 
courts possess no taxing power.

A judicial order imposing taxes also bypasses the dem­
ocratic safeguards on which States must rely to defend 
their sovereign interests. The Court in Garcia, disagree­
ing that the Tenth Amendment protected States from 
laws enacted by Congress, reasoned that “ the principal 
and basic limit on the federal commerce power [under 
Article I] is that inherent in all congressional action— 
the built-in restraints that our system provides through 
state participation in federal governmental action.” Id.

86 U.S. (19 Wall.) 655 (1874); Stansbury v. United States, 75 U.S. 
(8 Wall.) 33 (1869).



26

at 556. The Court thus concluded that “ [t]he political 
process”— in particular, the representation of States in 
Congress— “ensures that laws that unduly burden the 
States will not be promulgated.” Id. But, quite obvi­
ously, the protections offered by “ the political process” 
are totally lacking when the federal judiciary involves 
itself in the business of imposing state taxes.32 * It is 
precisely because judicial power is not governed by, or 
responsive to, democratic processes that its misuse is of 
such grave concern.*3

Even if a judicial power to tax does exist, however, 
it seems clear that its use must be strictly limited. This 
Court has cautioned lower federal courts that, in mat­
ters involving state taxation, they should exhibit “ a 
scrupulous regard for the rightful independence of state 
governments . . . .” Matthews v. Rodgers, 284 U.S. 521, 
525 (1932). This principle of restraint, also embodied 
in the provisions of the Anti-Injunction Act, 28 U.S.C. 
§ 1341, “ reflect [s] the fundamental principle of comity

32 There is nothing- remarkable, of course, about the notion that, 
as a constitutional matter, the judicial power to intrude upon state 
operations falls short of that enjoyed by Congress. That is pre­
cisely the situation, for example, with regard to state immunities 
under the Eleventh Amendment. Although federal courts cannot 
require states to redress grievances through retroactive monetary 
awards, see Edelman v. Jordan, supra, Congress can override the 
Eleventh Amendment and authorize such awards. See Fitzpatrick 
v. Bitzer, 427 U.S. 445 (1976).

83 The Eighth Circuit rejected the State’s Tenth Amendment ar­
gument, saying that it had been foreclosed by the decision in 
Milliken II, supra. Pet. App. 28a. But that conclusion is clearly 
wrong. While the Court upheld the particular remedy there against 
a Tenth Amendment challenge, it explicitly noted that “ [t]he Dis­
trict Court has neither attempted to restructure local governmental 
entities nor to mandate a particular method or structure of state or 
local financing.” 433 U.S. at 291 (citations omitted) (emphasis 
added). It thus found that the court had enforced the Fourteenth 
Amendment “ in a manner that does not jeopardize the integrity of 
the structure or functions of state and local government.” Id. The 
order below, by contrast, is a direct affront to that integrity.



27

between federal courts and state governments that is es­
sential to ‘Our Federalism/ particularly in the area of 
state taxation.” Fair Assessment in Real Estate Ass’n 
v. McNary, 454 U.S. at 103.34 It is no less fundamental 
when the courts seek, not to stop a levy of taxes, but to 
compel one.

The district court here made no effort to avoid inter­
ference with local taxing authority: as the likelihood be­
came greater that the KCMSD could not fund its share, 
the remedial orders became even more extravagant. Fur­
thermore, neither court below made any serious inquiry 
into whether the KCMSD might become unitary without 
a mandatory tax increase. Even if the extraordinary 
remedy were legitimate—which we dispute (see pages 
14-22 supra)— it would defy both logic and history to 
suggest that it is the only possible way to achieve de­
segregation. Every other school district throughout the 
country has been able to undertake desegregation with­
out a court-ordered tax increase, and all have been able 
to do so without the sort of far-ranging programs funded 
by the court in this case. Had the courts below not been 
so wedded to their unique plan, this constitutional con­
frontation might well have been averted. .

Abuses of judicial power, in constitutional cases, can 
be corrected only by the judiciary itself. Here, the open- 
ended remedies— and the taxing order to fund them— 
mark a sharp extension of, if not departure from, any 
principles of remedial authority previously endorsed by 34

34 The Second Circuit has said that “a federal district court ought 
not to put itself ‘in the difficult position of trying to enforce a 
direct order . . .  to raise and allocate large sums of money . . . 
steps traditionally left to appropriate executive and legislative 
bodies responsible to the voters.’ ” New York State Ass’n for 
Retarded Children v. Carey, 631 F.2d 162, 165 (2d Cir. 1980) 
(quoting Rhem v. Malcolm, 507 F.2d 333, 341 (2d Cir. 1974)). See 
also Evans v. Buchanan, 582 F.2d at 778-80; United States v. 
Board of School Comm’rs, 677 F.2d 1185, 1190 (7th Cir.), cert, 
denied, 459 U.S. 1086 (1982).



28

this Court. If such orders are now within the scope of 
judicial power, then it is time for this Court to say so di­
rectly; if they are not, then this Court should reverse 
them in this case. Either way, review by this Court 
is appropriate.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

William Webster 
Attorney General

Terry Allen 
Deputy Attorney General

Michael J. Fields 
Assistant Attorney General 
Broadway Building, 6th Floor 
P.O. Box 899 
Jefferson City, MO 65102 
(314) 751-3321

H. Bartow Farr, III *
David R. Boyd
Beth Heifetz 

Onek, Klein & Farr 
2550 M Street, N.W., Suite 350 
Washington, D.C. 20037 
(202) 775-0184

* Counsel of Record Counsel for Petitioners



APPENDIX



A -l

A P P E N D IX

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Nos. 86-1934/2537/87-1479/ *
2299/2300/2565/2588/ 
2589/88-1073WM

Kalima Jenkins, etc., et al.,
vs. Appellees,

The State of Missouri, et al.,
_________ Appellants.

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

This Court’s mandate which was issued on October 14, 
1988, is hereby recalled.

There are three (3) petitions for rehearing with sug­
gestions for rehearing en banc pending before the Court. 
It is hereby ordered that the petitions for rehearing and 
the petitions for rehearing with suggestions for rehearing 
en banc are denied.

This order is entered nunc pro tunc effective October 
14, 1988. The Court’s mandate shall now issue forth­
with.

January 10, 1989

Order Entered at the Direction of the Court:

,/s/ Robert D. St. Vrain 
Clerk,
United States Court of Appeals, Eighth Circuit.