Missouri v. Jenkins Brief for the United States Amicus Curiae

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No. 91-324

I n  T h e

Btxpnm (Errurt uf tit? Ittftpfc §tatra
October T e r m , 1991

State of M issouri, et al.,
Petitioners, v. ’

K alim a  Je n k in s , et al,,
_________ Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

BRIEF IN OPPOSITION OF RESPONDENT 
KANSAS CITY, MISSOURI SCHOOL DISTRICT

A llen R. Snyder *
Patricia A. Brannan 

Hogan & Hartson 
555 Thirteenth St., N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W ard Keeler 
Michael Thompson 

Blackwell Sanders Matheny 
W eary and Lombardi 

Two Pershing Square 
2300 Main Street 
Kansas City, Missouri 64141 
(816) 274-6816

* Counsel of Record

W ilson  - Efes Printing Co . .  Inc . - 7 8 9 -0 0 9 6  - W a s h in g t o n . D .C . 2 0 0 0 1



COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether the courts below acted well within their 
equitable discretion to modify a desegregation plan, the 
scope of which this Court has declined to review, by as­
suring that as part of capital improvements necessary to 
make schools sufficiently safe, healthy and suitable for 
desegregation programs asbestos hazards would he abated 
to the extent required by federal law.

2. Whether the courts below similarly acted well within 
their equitable discretion to modify the desegregation plan 
by adjusting the budget required for the construction of 
a single high school, where the record at an evidentiary 
hearing demonstrated that errors in the original budget 
estimate, and new information about the actual costs of 
construction, necessitated a revised budget.

( i )





TABLE OF CONTENTS
Page

COUNTERSTATEMENT OF QUESTIONS PRE­
SENTED...... ........... ............... ... ............................... ...  i

TABLE OF AUTHORITIES .................................. .......  iv

COUNTERSTATEMENT OF THE CA SE....... ...........  1
A. Liability and Initial Remedy Proceedings______  1
B. The Orders at Issue ............... .......... .............. . 8

1. The Asbestos Order............ ..... .................. . 8
2. The Central High School Order ................ . 12

REASONS FOR DENYING THE WRIT ___________  15
I. REVIEW OF THE COST OF CENTRAL HIGH

SCHOOL AND ASBESTOS ABATEMENT 
WOULD BE INAPPROPRIATE UNDER THIS 
COURT’S STANDARDS FOR GRANTING A 
PETITION FOR CERTIORARI................. ........ 16

II. EVEN IF THE PETITION PRESENTED THE 
ISSUE OF THE OVERALL SCOPE OF THE 
DESEGREGATION REMEDY IN KANSAS 
CITY, THE COURT SHOULD DECLINE RE­
VIEW BECAUSE IT HAS PERMITTED THAT 
REMEDY TO GO FORWARD WHEN THE 
SCOPE ISSUE WAS PREVIOUSLY PRE­
SENTED ....... ........... ....... ................................. .... 22

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

(hi)



IV

TABLE OF AUTHORITIES
Cases: Page

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227
(1937) ................ ..,....... .................... ................... . 21

Anderson v. Bessemer City, 470 U.S. 564 (1985).... 15
Berkemer v. McCarty, 468 U.S. 420 (1984) ........  23
Board of Education of Oklahoma City Public

Schools v. Dowell,------ U.S.------- , 111 S. Ct. 630
(1991) ...........     23,26

Booker v. Special School Dist. No. 1, 585 F.2d 347 
(8th Cir. 1978), cert, denied, 443 U.S. 915
(1979)....... .......... ........... ................ ......... ....... 14, 19

Brown v. Board of Education, 349 U.S. 294
(1955) ............     19

Brown v. Board of Education, 347 U.S. 483
(1954)___________        7

Christianson v. Colt Industries Operating Corp.,
486 U.S. 800 (1988) ........... ....................... ...........  5

Deakins v. Monaghan, 484 U.S. 193 (1988) _____  21
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987).. 18
Graver Tank & Mfg. Co. v. Linde Air Products Co.,

336 U.S. 271 (1978) ....... ...... ....... .......... ........... . 18
Green v. New Kent County School Board, 391 U.S.

430 (1968) ............................ ................ ......... . 26
Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988), 

cert, denied in relevant part, 490 U.S. 1034
(1989) ........ ........... ... ...... ................. ...................7, i i ,  16

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986)
{en banc), cert, denied, 484 U.S. 816 (1987)____4, 5,16

Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo.
1987), aff’d, 855 F.2d 1295 (8th Cir. 1988), 
cert, denied in relevant part, 490 U.S. 1034
(1989)..................................... .............. ............. . 6, 7

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo.
1986), aff’d, 855 F.2d 1295 (8th Cir. 1988), 
cert, denied in relevant part, 490 U.S. 1034
(1989)..................... ............ .......... .............. ..... . 6

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo.
1985), aff’d, 807 F.2d 657 (8th Cir. 1986) {en 
banc), cert, denied, 484 U.S. 816 (1987) ....... . 2-4, 9



V

TABLE OF AUTHORITIES— Continued
Page

Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo.
1984).............................. ......................... ...... ........  2

Lewis v. Continental Bank Corp., 494 U.S. 472,
110 S. Ct. 1249 (1990)_______ ______ _______ _ 21

Mapp v. Board of Education, 477 F.2d 851 (6th
Cir.), cert, denied, 414 U.S. 1022 (1973)....... 19

Milliken v. Bradley, 433 U.S. 267 (1977) ...............  18-19
Missouri v. Jenkins, 495 U.S. 33, 110 S. Ct. 1651

(1990) ___ _____ ___ ______ ______ _____ _________ 8
NCAA v. Board of Regents, 468 U.S. 85 (1984).... 18
North Carolina v. Rice, 404 U.S. 244 (1971) .... ....  21
Rogers v. Lodge, 458 U.S. 613 (1982) ........ .............. . 18
Swann v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971) ............... ............... .........  19
Tiffany Fine Arts, Inc. v. United States, 469 U.S.

310 (1985) _____ _______________ ___________  .... 18
United States v. Ceccolini, 435 U.S. 268 (1978).... 18
United States v. Montgomery County Board of 

Education, 395 U.S. 225 (1969)............... ...............  18

Statutes:
Asbestos Hazard Emergency Response Act of 1986

(“AHERA” ) , 15 U.S.C. §§ 2641-2654 (1988)..... 9-11,
19-20

Rules:
Fed.R. Civ. P. 52(a) ................ .................................  15
Sup. C t.R .21.1(a)................ .................... ....... .......  23



In  T he

Bupmm (&mrt nf %  Unikb Btnt?b
October T erm , 1991

No. 91-324

State of M issouri, et at.,
Petitioners, v. ’

K alim a  Je n k in s , et at.,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

BRIEF IN OPPOSITION OF RESPONDENT 
KANSAS CITY, MISSOURI SCHOOL DISTRICT 1

COUNTERSTATEMENT OF THE CASE 

A. Liability and Initial Remedy Proceedings.

After a 92-day trial on interdistrict and intradistrict 
desegregation claims brought by the Jenkins plaintiff 
class of schoolchildren and the Kansas City, Missouri 
School District (“ KCMSD” ),2 on September 17, 1984 the 
district court (The Honorable Russell G. Clark) found 
that “ [t]he people of the State of Missouri through eon-

1 The Kansas City, Missouri School District respondents include 
the school district itself and its Superintendent.

2 The KCMSD originally filed the complaint in 1977 against State 
of Missouri defendants and a group of surrounding school districts. 
The KCMSD was re-aligned as a defendant and separate counsel was 
retained to represent the plaintiff schoolchildren. Trial proceeded 
both on the claims of the Jenkins plaintiff class and KCMSD’s cross­
claims against the State. The district court granted the motions to 
dismiss of the surrounding school districts on June 5, 1984.



2

stitutional provision and the General Assembly through 
legislative enactments mandated that all schools for blacks 
and whites in th[e] State were to be separate” in viola­
tion of the Fourteenth Amendment, and that “ the inferior 
education indigenous of the state-compelled dual school 
system has lingering effects in the Kansas City, Missouri 
School District.” Jenkins v. Missouri, 598 F. Supp. 1485, 
1503-04, 1492 (W.D. Mo. 1984). With these liability 
findings, uncontested by the State, the parties and dis­
trict court began the development of the remedy for this 
violation.

The State and the KCMSD submitted proposed desegre­
gation plans, and Judge Clark held two weeks of hearings 
that resulted in his initial remedial order of June 14, 
1985. The plan adopted by the district court had four 
key components designed both to achieve actual desegrega­
tion and to restore the black schoolchildren who were the 
victims of segregation to the position they would have 
occupied in the absence of discriminatory conduct. First, 
Judge Clark approved educational programs “designed 
to increase student achievement” because segregation had 
“ caused a systemwide reduction in student achievement 
in the schools of the KCMSD.” Jenkins v. Missouri, 639 
F. Supp. 19, 25, 24 (W.D. Mo. 1985) (emphasis in orig­
inal), aff’d, 807 F.2d 657 (8th Cir. 1986) (en banc), 
cert, denied, 484 U.S. 816 (1987). KCMSD, the plain­
tiff schoolchildren, and the State all had supported in­
clusion of educational components in the remedy. Jen­
kins, 639 F. Supp. at 24.

The second remedial component approved by the court 
was the use of magnet schools to draw new non-minority 
enrollment to the KCMSD, to encourage voluntary de- 
segregative transfers within the school district, and to 
make better educational opportunities available to mi­
nority as well as non-minority students in the district. 
Id. at 34. Judge Clark specifically found that magnet 
schools which would draw a voluntarily desegregated 
enrollment based on a special theme or method of teach-



3

mg held better promise of achieving actual desegrega­
tion than the State’s preferred method of mandatory 
student reassignment and busing, which would “ only 
serve to increase the instability of the KCMSD and reduce 
the potential for desegregation.” Id. at 38. As a third 
component of the remedy, Judge Clark ordered the State 
to seek the active cooperation of surrounding school dis­
tricts in a voluntary interdistrict transfer program. Id. 
at 38-39. The voluntary enrollment of non-minority stu­
dents from area districts in KCMSD magnet schools, and 
the opening of opportunities for minority students from 
KCMSD to attend integrated suburban schools, was found 
by the district court to be an appropriate remedial com­
ponent because of the difficulty of desegregating the 
KCMSD, which had become nearly 70 percent black and 
had an enrollment of 90 percent or more black in 25 of 
its 66 schools. Id. at 39, 36. That component of the 
remedy, and the remedial goal of attracting non-minority 
students from outside the KCMSD back to its magnet 
schools on a voluntary basis, also was responsive to the 
district court’s findings that “ segregated schools, a con­
stitutional violation, ha[ve] led to white flight from the 
KCMSD to suburban districts, large number [s] of stu­
dents leaving the schools of Kansas City and attending 
private schools and that . . . has caused a system 
wide reduction in student achievement in the schools of 
KCMSD.” Aug. 25, 1986 Order at 1-2.3

The court also approved as a fourth component of the 
remedy a program of capital improvements, because 
“ [t]he current condition of the . . . school facilities * 4

3 The State’s Petition contends that “ the plaintiffs . . . proved 
neither an interdistrict violation nor an interdistrict effect.” Pet. at
4. The respects in which the remedy provides for voluntary inter- 
district desegregation are fully supported by Judge Clark’s orders, 
including the August 25, 1986 Order quoted in text, and by the 
extensive evidence presented in the liability case that the violation 
had significant interdistrict aspects. That evidence is described in 
the Brief in Opposition of Respondents Kalima Jenkins, et al, at 
the Counter-Statement of the Case.



4

adversely affects the learning environment and serves 
to discourage parents who might otherwise enroll their 
children in the KCMSD . . . .” 639 F. Supp. at 39. Judge 
Clark recounted the evidence of “safety and health haz­
ards, educational environment impairments, functional 
impairments, and appearance impairments” in the schools, 
id., and concluded that “ improvement of school facilities 
is an important factor in the overall success of this de­
segregation plan.” Id. at 40.

On cross appeals to the United States Court of Appeals 
for the Eighth Circuit, KCMSD and the Jenkins plaintiffs 
argued that the district court erred in the legal standard 
that it applied to dismiss the surrounding suburban school 
districts, while the State questioned “what the vestiges of 
th[e] dual school system are 30 years after it was de­
clared void and what constitutes a proper remedy to elim­
inate those vestiges.” Brief of State Appellees/Cross 
Appellants at 40 (No. 85-1765WM, et al.) (filed Sept. 
23, 1985). The State also attacked some components of 
the remedy, particularly components for which the dis­
trict court set funding allocations that required most of 
the cost to be paid by the State.4 With regard to the 
voluntary interdistrict transfer plan, the State argued 
“that an order requiring support of an exchange pro­
gram between numerous school districts, based solely 
upon a violation in one of those districts, imposes an 
interdistrict remedy for an intradistrict violation.” Id. 
at 54.

The Eighth Circuit affirmed the dismissal of the sur­
rounding school districts and made modest alterations in 
the allocation of funding for the remedy, but affirmed 4

4 As the Eighth Circuit observed, “ [n,]o one challenge [d] the sub­
stantial portion [of the remedy] in which the costs are divided 
evenly between the State and the KCMSD.” Jenkins v. Missouri, 
807 F.2d 657, 682 (8th Cir. 1986) (en banc), cert, denied, 484 U.S. 
816 (1987). Those portions of the remedy included most of the 
components designed to improve educational achievement and the 
holding that magnet schools would be the basis in the remedy for 
student reassignment.



5

the inclusion of a voluntary interdistrict transfer com­
ponent and capital facilities improvements in the remedy. 
The Eighth Circuit specifically held that an interdistrict 
transfer plan, on a voluntary basis, is an appropriate 
part of a remedy where liability against the State has 
been established because such transfers would assist in 
the achievement of desegregation within the KCMSD. 
Jenkins, 807 F.2d at 683-84. The court reiterated, how­
ever, that a mandatory interdistrict remedy (such as 
consolidation of school districts or mandatory assign­
ment of students across school district lines) would be 
outside the scope of the violation found by the district 
court and thus beyond the district court’s power. Id. at 
683 n.30. With respect to capital facilities, the Eighth 
Circuit further held that the district court’s findings of 
hazards in the schools that impede attraction of students 
and obstruct the success of the educational programs in­
cluded in the remedy were “ sufficient to support its con­
clusion that capital improvements are necessary for suc­
cessful desegregation.” Id. at 685. The court went on, 
however, to reallocate funding responsibility for capital 
improvements on an equal basis between the State and 
the KCMSD, rather than requiring the State to pay most 
of the cost. Id.

The KCMSD and Jenkins plaintiffs petitioned this 
Court for a writ of certiorari to review the legal basis 
of the Eighth Circuit’s affirmance of the dismissal of the 
surrounding school districts. This Court denied certiorari. 
484 U.S. 816 (1987). No cross-petition was filed by the 
State on the scope of remedy issues it raised in the Eighth 
Circuit. The order setting the initial scope of the remedy, 
with the modest modifications made by the Eighth Circuit, 
thus became the law of the case. See Christianson v. Colt 
Industries Operating Corp., 486 U.S. 800, 816 (1988). 
Because no party had sought a stay of implementation 
during the pendency of the proceedings, the implementa­
tion of the remedy began at the start of the 1985-86 
school year.



6

Over the six years since the implementation of the 
remedy began, the district court has entered numer­
ous orders clarifying, renewing, or setting specific param­
eters on the remedial components. Of greatest note, on 
June 16, 1986, the district court approved for fall of 1986- 
87 the opening of an initial group of six magnet schools, 
and on November 12, 1986, ordered a Long-Range Magnet 
School Plan that was to be phased in over a six-year 
period. Each of these orders also provided for capital 
facility improvements to accommodate the special needs 
of the magnet school programs and to bring the schools 
up to an acceptable level of safety, health and appro­
priateness for educational programs. Jenkins v. Missouri, 
639 F. Supp. 19, 53-55 (W.D. Mo. 1986), aff’d, 855 F.2d 
1295 (8th Cir. 1988), cert, denied in relevant part, 490 
U.S. 1034 (1989) ; Jenkins v. Missouri No. 77-0420- 
CV-W-4, slip op. at 4 (W.D. Mo. Nov. 12, 1986).

On September 15, 1987, the district court approved a 
Long-Range Capital Improvements Plan to implement a 
significant part of the remaining capital needs to make 
KCMSD schools sufficiently safe, healthy, comfortable 
and attractive for both the magnet school programs and 
for the desegregation educational programs. The court 
specifically found that KCMSD’s “physical facilities have 
literally rotted” and that the “overall condition” of the 
schools remained “ generally depressing and thus adversely 
affects the learning environment and continues to dis­
courage parents who might otherwise enroll their children 
in the KCMSD.” Jenkins v. Missouri, 672 F. Supp. 400, 
411, 403 (W.D. Mo. 1987), aff’d, 855 F.2d 1295 (8th 
Cir. 1988), cert, denied in relevant part, 490 U.S. 1034 
(1989). The district court premised this order on two 
findings. First, the court found that the State’s manda­
tory segregation had caused these “ rott[ingj” physical 
conditions, since large numbers of white taxpayers with 
children, who previously had contributed to the majori­
ties needed to pass levy increases and bond elections, left 
the district, thereby “preventing] the KCMSD from 
raising funds to maintain its schools.” 672 F. Supp. at



7

411, 403, citing November 12, 1986 Order at 4. Second, 
the court found that “ a long-range capital improvement 
plan aimed at eliminating the substandard conditions 
present in KCMSD schools is properly a desegregation 
expense and is crucial to the overall success of the de­
segregation plan.” Id. at 403 (emphasis added).

The State appealed these three orders to the Eighth 
Circuit, once again arguing strenuously that the orders 
exceeded the district court’s equitable discretion because 
the State believed they went beyond the bounds of the 
violation that the district court found. Once again, the 
Eighth Circuit affirmed. Jenkins v. Missouri, 855 F.2d 
1295, 1299-1300 (8th Cir. 1988), cert, denied in relevant 
part, 490 U.S. 1034 (1989). The Eighth Circuit based its 
affirmance on the principle that “ the victims of unconstitu­
tional segregation must be made whole, and . . .  to make 
them whole it will be necessary to improve their educa­
tional opportunities and reduce their racial isolation.” 
Id. at 1301. The court further affirmed the capital im­
provements plan, based on the district court’s “ findings” 
that the constitutional violations of “both KCMSD and 
the State had caused the decay of the KCMSD’s build­
ings.” Id. at 1300. The court recognized that “ [t]he 
foundation of the plans adopted was the idea that im­
proving the KCMSD as a system would at the same time 
compensate the blacks for the education they had been 
denied and attract whites from within and without the 
KCMSD to formerly black schools.” Id. at 1301. The 
court went on to affirm as modified a procedure by which 
local property taxes could be raised to pay the KCMSD’s 
share of the remedy that both it and the district court 
had found to be constitutionally required. Id. at 1308-15.

The State petitioned this Court for a writ of certiorari 
to review two questions presented by the Eighth Circuit’s 
affirmance:

1. Whether a federal court, remedying an intra- 
district violation under Brown v. Board of Edu­
cation, 347 U.S. 483 (1954), may



8

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 
Article III, consistent with the Tenth Amendment 
and principles of comity, to impose a tax increase 
on citizens of a local school district.

See 57 U.S.L.W. 8577 (Feb. 28, 1989) (No. 88-1150).

This Court granted the petition to review the second 
question only. 490 U.S. 1034 (1989). The decision on 
the merits, issued on April 18, 1990, addressed only the 
issue of whether the tax orders of the district court and 
the court of appeals exceeded their equitable and consti­
tutional power. Missouri v. Jenkins, 495 U.S. 33, ------ ,
110 S. Ct. 1651, 1660 (1990) (“ [w]e granted the State’s 
petition, limited to the question of the property tax in­
crease . . . .” ). The magnet school and capital improve­
ment orders thus have been in the process of implemen­
tation since the district court’s orders were issued in 1986 
and 1987.

B. The Orders at Issue.

The two particular orders at issue in the State’s peti­
tion for certiorari are among a series of orders by the 
district court that have made modifications in the de­
segregation plan in the course of implementation, based 
on experience and further information that has become 
available.

1. The Asbestos Order.
The Long-Range Capital Improvements Plan and the 

earlier capital improvements ordered for the initial stages 
of the magnet school plan all contemplated that some 
asbestos abatement would be done as part of the renova­
tion work at District schools. The district court originally 
so ordered because it held that “ a school facility which



9

presents safety and health hazards to its students and 
faculty serves both as an obstacle to education as well as 
to maintaining and attracting non-minority enrollment.” 
639 F. Supp. at 40. In fact, the State's own proposed 
capital improvement plan, which the district court re­
jected because it was inadequate in other respects, ac­
knowledged that asbestos abatement necessarily would 
have to be part of the desegregation-related work and 
provided budget estimates for that work.5

The cost of asbestos abatement was particularly diffi­
cult to specify with certainty in advance of each project. 
This is true because it generally cannot be known until 
a renovation project begins precisely where asbestos will 
be found and what means will be necessary to abate it. 
The record also shows that other desegregation-related 
capital improvement plan work, such as knocking out 
walls to enlarge learning spaces and opening walls to 
gain access to decrepit pipes and electrical wiring, has 
created a need for asbestos abatement that otherwise 
would not exist.6

Moreover, on October 30, 1987, the United States En­
vironmental Protection Agency published final rules pur­
suant to the Asbestos Hazard Emergency Response Act 
of 1986 (“AHERA” ), 15 U.S.C. §§ 2641-2654 (1988), 
establishing strict standards for maintaining environments 
free of asbestos hazards. The rules went into effect on 
December 14, 1987. 52 Fed. Reg. 41826 (Oct. 30, 1987). 
Thus the actual work done by KCMSD under the capital 
improvements plan had to comply with the new, stricter 
standards; the inspections originally conducted by the 
KCMSD for the presence of asbestos in its facilities and 
the less expensive methods KCMSD originally contem­

6 See State’s Ex. 9, Tr. Vol. VI at 64 (Aug. 11,1987).

6 See Declaration of Don M. Powers, in support of KCMSD Motion 
for Increased Funding for CIP Asbestos Abatement Costs (filed 
Dec. 7, 1988), ft 3.



plated for handling asbestos abatement were no longer 
consistent with federal law.7

By late in 1988, the KCMSD had completed asbestos 
abatement work and knew the necessary costs for the first 
six magnet schools that had opened in the KCMSD. The 
KCMSD moved the district court for approval of the 
asbestos abatement costs in excess of its original esti­
mates for those six schools— some $910,224— as a de­
segregation cost required to meet federal health and 
safety standards in regard to the work that remedying 
the constitutional violations required in the KCMSD’s 
school buildings. It also sought court approval of the 
use of AHERA standards as an appropriate guideline 
for the KCMSD’s future renovation of school buildings 
to make them available and suitable for desegregation 
programs.8

The State opposed the District’s motion, contending 
that asbestos abatement is not a desegregation expense, 
but it produced no evidence challenging the facts that 
the renovations otherwise necessitated by the constitu­
tional remedy in turn necessitated asbestos abatement 
for the health and safety of children in KCMSD schools.9 
The record showed, to the contrary, that the renovations 
required to remedy the violation would dislodge asbestos- 
containing materials, and once they did, AHERA would 
require a level of abatement as a matter of federal law 
that was more stringent than originally contemplated by 
the KCMSD when it prepared its estimated budgets for 
capital improvements. Although one of the State’s major

7 See Declaration of Walter Houston, in support of KCMSD Mo­
tion for Increased Funding for CIP Asbestos Abatement Costs (filed 
Dec. 7, 1988), If 3.

8 The State’s Petition at page 11 confuses the schools and amounts 
involved in the KCMSD’s motion. The $910,224 increase was for the 
six schools in “ Phase III” of the capital improvements plan; the 
Phase III increase requested was not in addition to the $910,224.

9 See State’s Response to KCMSD Motion for Increased Funding 
for CIP Asbestos Abatement Costs (filed Jan. 5, 1989).

10



11

arguments was that school districts generally have to 
comply with AHERA so the costs of compliance should 
not be a desegregation expense, it produced no evidence 
to counter the KCMSD’s proof that the cost in the KCMSD 
was extraordinary because the asbestos-containing ma­
terials would not have been dislodged had the consti­
tutional violations not required desegregation-related cap­
ital improvements work that the court ordered.10

The district court granted the KCMSD’s motion, with 
some modifications in the requested allocation of costs 
between KCMSD and the State. The district court noted 
that the Eighth Circuit, in its affirmance of the scope of 
the capital improvements plan, already had anticipated 
that “ ‘the capital plan that we affirm today does not 
cover all expenditures that may be necessary between now 
and the 1991-92 school year [including some] asbestos 
removal costs.’ ”  Pet. App. A-56, quoting Jenkins, 855 
F.2d at 1306.11

On the State’s appeal to the Eighth Circuit, that Court 
affirmed, citing the uncontested evidence that achieving 
an acceptable level of health and safety was an appropri­
ate goal for capital improvements in a desegregation 
plan, that asbestos abatement was vital to health and 
safety, and that “ the evidence in the record . . . differ­
entiates this situation from situations found at other 
school districts, or for that matter any other public build­
ings” because “many asbestos-containing products that 
normally would pose no danger (such as flooring), be­
come potentially dangerous when disturbed during the 
[court-ordered] renovation work” needed to remedy the 
constitutional violations. Pet. App. A-25.

The State sought no stay of the district court order 
pending appeal. The asbestos abatement work approved

10 Id.

11 We cite the State’s petition for writ of certiorari as “ Pet.” ; the 
State’s Appendix in support of its petition as “ Pet. App.” ; and the 
Joint Appendix from the Eighth Circuit Jenkins III Appeal, No. 89- 
1838WM, reported at 855 F.2d 1295 (8th Cir. 1988) as “J.A.”



12

for the six magnet schools has been done, and the $910,- 
224 budget increase for that work has been expended. In 
fact, the vast majority of asbestos abatement called for 
under the capital improvements plan is complete.

2. The Central High School Order.
When the Long-Range Magnet School Plan was pro­

posed in 1986, Central High School was a virtually all­
black school, located in the “central corridor” area of 
Kansas City which is heavily minority. J.A. 2477-78, 
988-89. It was at that time in the worst physical condi­
tion of any KCMSD high school. J.A. 2388. Testimony 
during the Long-Range Magnet School Plan hearing dem­
onstrated that water damage, falling plaster and ceiling 
tiles, worn out floors and peeling paint were prevalent 
throughout the school. Testimony of Dr. Richard Hunter, 
Volume II at 396-400 (Sept. 16, 1986). Dr. Hunter 
stated that one could “ see daylight” through a hole in 
the auditorium’s roof and “when it rains it just came 
directly into the auditorium. Very depressing conditions 
walking around the building, and a very poor educational 
facility.” Id. at 399-400.

Among the initial capital facility projects approved for 
magnet schools as part of the Long-Range Magnet School 
Plan order was the construction of a new Central High 
School. No party contested that a new building was neces­
sary for reasons of safety, health, comfort and attractive­
ness for educational programs, and for the special facili­
ties needed to implement at Central both the Computers 
Unlimited and Classical Greek magnet themes.12 The 
approval of a new Central High School building thus 
became final with the Eighth Circuit’s affirmance of the

12 The Computers Unlimited program offers computer-assisted in­
struction and specialized courses involving computer technology, 
while the Classical Greek program emphasizes development of “a 
sound mind and a sound body” by combining a vigorous liberal arts 
and classical studies curriculum with unique opportunities for 
athletic training and physical education, including a focus on 
Olympic events and activities. J.A. 596-98, 599-601.



13

November 12, 1986 Order, and this Court’s denial of 
the State’s petition for certiorari to review that 
affirmance.

As KCMSD developed the design for the new Central 
High School, it became clear that the budget approved 
by the courts below would not be adequate for the pro­
gram requirements for the new facility. The budgets 
originally presented to the district court by the KCMSD 
were “based upon studied estimates” that the district court 
held could be “ adjusted when the actual costs of the 
capital facilities work and the magnet school plan ordered 
by the Court are ascertained.” November 12, 1986 Order 
at 6.

In September 1988, the KCMSD filed a motion asking 
the district court to increase the construction budget for 
Central to recognize the “actual costs” necessary for the 
construction. After extensive discovery, the district court 
held a three-day hearing. The court heard expert testi­
mony by architects for both the KCMSD and the State, 
the KCMSD’s construction project manager, and educa­
tors, parents and community members involved in the 
development of the programs at Central, or who con­
templated sending their children to school there.

The district court approved the budget modification for 
the construction of the new Central High School, exclud­
ing the costs associated with a high diving tower.13 Pet. 
App. A-46, A-50. The court carefully reviewed the basic 
reasons why the original budget was inadequate: 1) a 
flawed design assumption that certain enclosed athletic 
facilities could be located inside an indoor track; 2) an 
incorrect assumption about the appropriate design “ effi­
ciency ratio,” or ratio of net program space to gross 
building space; and 3) the erroneous omission of archi­

18 In the same order the district court approved a site for Central 
and a revision in the alignment of budget years and adjustment in 
the cost of equipment for the school. Pet. App. A-50-A-52. The 
State did not present evidence disputing those aspects of the Central 
project.



14

tects’ and engineers’ fees, soil survey and testing and bid 
advertising from the estimate. All of these issues were 
the subject of discovery and hearing testimony by expert 
architects and a construction manager. The court also 
carefully reviewed the extensive evidence that the facili­
ties proposed by the KCMSD for Central, particularly the 
athletic facilities on which the court made findings on a 
room-by-room basis, were necessary for the magnet school 
theme. Pet. App. A-45-A-49. The State’s own witness 
admitted, as the district court noted, that various facili­
ties were appropriate to the program and would be at­
tractive to a desegregated enrollment. Pet. App. A-46, 
A-47. The court specifically found that “ [t]he magnet 
programs could not be successfully implemented in a lesser 
facility,” and that “ such facilities are necessary to attract 
non-minority suburban students to the inner city to ac­
complish the difficult task of desegregating Central High 
School.” Pet. App. A-49. The court also reviewed the 
uncontested evidence that the KCMSD made efforts to 
remain within the original budgets, and that in the 
course of so doing eliminated certain art, athletic and 
music facilities from Central that also could be attractive 
but that were not essential to the program. Pet. App. 
A-49-A-50.

On an appeal taken by the State, the Eighth Circuit 
affirmed. That court rejected the State’s argument that 
the district court exceeded its authority in modifying its 
earlier budget order for Central, because “a federal court 
has ‘inherent jurisdiction in the exercise of its equitable 
discretion and subject to appropriate appellate review 
to vacate or modify its injunctions.’ ” Pet. App. A-32, 
quoting Booker v. Special School Dist. No. 1, 585 F.2d 
347, 352 (8th Cir. 1978), cert, denied, 443 U.S. 915 
(1979). The court recognized that the original order 
approved “ studied estimates to be adjusted as actual costs 
were ascertained,” and the district court’s order demon­
strated its careful consideration of the various facilities 
proposed within the school. Pet. App. A-33. In particular, 
the court pointed out that the State made no argument



15

that any of the district court’s findings were “ clearly 
erroneous.”  Pet. App. A-34; see Fed. R. Civ. P. 52(a). 
Applying this Court’s standard in Andersooi v. Bessemer 
City, 470 U.S. 564, 573-74 (1985), the court was “ con­
vinced that the district court did not clearly err in finding 
that the KCMSD’s design process was appropriate, that 
the additions to the planned athletic facilities were justi­
fied, that the allocated space of 200 square feet per stu­
dent is necessary to implement the magnet themes and 
enhance the school’s attractiveness to non-minority stu­
dents, and that the increased construction and equipment 
budgets are necessary to meet the design requirements.” 
Pet. App. A-34.

Once again, no stay was sought or issued pending 
appeal. In fact, the new Central High School building 
was constructed and open to students on September 3, 
1991. Nearly 200 non-minority students are now in the 
Central High School student body, resulting in a 17.5 
percent non-minority racial composition. This is a sig­
nificant change from the all-minority student body that 
Central had before it became a magnet school.

REASONS FOR DENYING THE WRIT
The decision which the State seeks to have this Court 

review presents highly fact-bound, narrow, and technical 
issues of the correct budget amounts for certain construc­
tion activities as part of a desegregation plan. It is 
extraordinary to contemplate the prospect of this Court 
delving into the intricacies of building efficiency ratios, 
the extent of appropriate asbestos abatement during 
school renovations and the like. No conflict among the 
circuits or important question of federal law is presented 
by why it costs more than originally anticipated in 1986 
or 1987 to build a new Central High School in 1990 and 
1991, or why it costs more to abate asbestos during school 
renovations after new federal regulations raised health 
and safety standards for that work. Under the “two- 
court rule,” the extensive fact findings that supported the 
revised estimates should not be disturbed by this Court.



16

In any event, the issues the State asks the Court to re­
view are moot, because Central High School is finished, 
and received its new student body on September 3, 1991. 
The asbestos work that was the subject of the $910,224 
budget increase the State complains of has been per­
formed. No decision of this Court could alter the scope 
of what has been done in these projects.

In apparent recognition that the orders actually at 
issue do not present questions worthy of the Court’s re­
view, the State invites the Court to take “ a renewed 
opportunity to consider the scope of the ongoing school 
desegregation remedies ordered by the United States Dis­
trict Court for the Western District of Missouri for” the 
KCMSD. Pet. at 2. Such an invitation is inappropriate, 
because the Court already declined to review the magnet 
school and capital improvement plans affirmed in Jenkins 
v. Missouri, 855 F.2d 1295 (8th Cir. 1988), cert, denied 
in relevant part, 490 U.S. 1034 (1989), and the State 
never even sought this Court’s review of the basic struc­
ture of the remedy approved in Jenkins v. Missouri, 807 
F.2d 657 (8th Cir. 1986) (en banc), cert, denied, 484 
U.S, 816 (1987). The remedy has been in implementa­
tion for years. All of the conversions to magnet schools 
called for in the initial six-year cycle of the plan have 
taken place; most of the capital improvements have oc­
curred. It would be tremendously disruptive of a remedy 
that is off to a successful start for this Court to attempt 
now, in the context of far narrower issues, to review the 
reams of testimony, exhibits, other record evidence and 
fact findings that support the desegregation remedy in 
Kansas City.

I. REVIEW OF THE COST OF CENTRAL HIGH 
SCHOOL AND ASBESTOS ABATEMENT WOULD 
BE INAPPROPRIATE UNDER THIS COURT’S 
STANDARDS FOR GRANTING A PETITION FOR 
CERTIORARI

The actual issue before the courts below that cul­
minated in the approval of a revised budget for Central 
High School and for asbestos abatement was limited to



17

ascertaining the appropriate and accurate cost of those 
projects. The court previously had found that a new 
Central High School to replace the segregation-scarred 
Central High School building was a necessary part of the 
desegregation plan. Indeed, the State in those earlier pro­
ceedings had offered no evidence contesting the need for 
a new Central High School as part of the desegregation 
plan, nor did it challenge that asbestos abatement had to 
be done in KCMSD school buildings to make them suffi­
ciently safe and healthy for successful desegregation pro­
grams. Indeed, the State’s own proposed desegregation 
plan component for capital improvements called for as­
bestos abatement as part of the renovation work.14

It is simply not the case that these increased budgets 
were ordered, as the State suggests, because it would be 
nice to have bigger, better, or fancier schools to attract 
non-minority enrollment. In the case of Central High 
School the actual stated reasons for the budget increase, 
in both the KCMSD’s request and the district court’s find­
ings, are: 1) The budget needed to include items that 
originally were omitted erroneously such as architects’ 
and engineers’ fees, bid advertising, soils survey and test­
ing, furniture and construction contingencies; 2) A 72 
percent ratio of net to gross building space was more 
appropriate than the 85 percent ratio assumed in the 
original estimate; and 3) Certain athletic facilities could 
not properly be located inside an indoor running track. 
Pet. App. A-43, A-50. The asbestos budget increase was 
requested by the KCMSD, and affirmed by the Eighth 
Circuit, based on “uncontested evidence . . . that asbestos 
was found in existing buildings during the court-ordered 
renovation, and that many asbestos-containing products 
that normally would pose no danger (such as flooring), 
became potentially dangerous when disturbed during the 
renovation work,”—-factors which “differentiate [ ] this 
situation from situations found at other school districts,

14 See note 5, supra.



18

or for that matter any other public buildings.” Pet. App. 
A-25.

Because these findings of fact were reviewed by two 
lower courts, this Court should follow its “ traditional def­
erence to the ‘two-court rule,’ ” United States v. Cecco- 
lini, 435 U.S. 268, 273 (1978) (citation omitted), and 
decline review. As this Court has frequently stated “ [a] 
court of law, such as this Court is, rather than a court 
for correction of errors in factfinding, cannot undertake 
to review concurrent findings of fact by two courts below 
in the absence of a very obvious and exceptional showing 
of error.” Goodman v. Lukens Steel Co., 482 U.S. 656, 
665 (1987), quoting Graver Tank & Mfg. Co. v. Linde 
Air Products Co., 336 U.S. 271, 275 (1978).15 Since there 
has been no “ exceptional showing of error,” the judgment 
of the district court, affirmed by the Eighth Circuit Court 
of Appeals, should remain undisturbed.

Even beyond the two-court rule, the complex remedial 
situation here should make the Court hesitate to review 
the district court’s fact findings concerning a change in 
the remedy, because changes in equitable remedies are 
frequently necessary if remedial goals are to be achieved. 
See United States v. Montgomery County Board of Edu­
cation, 395 U.S. 225, 234-35 (1969) (in school desegre­
gation cases, remedial orders that are inflexible and rigid 
are “ troublesome” ). As this Court has long taught, “ [i]n 
fashioning and effectuating [such] decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies and by a facility for adjusting and 
reconciling public and private needs.” Milliken v. Brad­

15 See also, e.g., Tiffany Fine Arts, Inc. v. United States, 489 U.S. 
310, 317-18 n.5 (1985) (noting “ reluctance to disturb findings of 
fact concurred in by two lower courts” ) ; NCAA v. Board of Regents, 
468 U.S. 85, 98 n.15 (1984) (Court accords “ great weight to a find­
ing of fact which has been made by a district court and approved by 
a court of appeals” ) ;  Rogers v. Lodge, 458 U.S. 613, 623 (1982) 
(same).



19

ley, 433 U.S. 267, 288 (1977), quoting Brown v. Board 
of Education, 349 U.S. 294, 300 (1955).16

The wisdom of these admonitions is illustrated here. 
The State petitioners never challenged as clearly errone­
ous the fact finding on which these budget increases were 
based. While they contested in the district court some of 
the facts KCMSD and the Jenkins plaintiffs presented, 
their own expert architect acknowledged at the eviden­
tiary hearing on the Central High School budget that 
certain costs were not included in the original construc­
tion estimate that were essential for completion of the 
project. J.A. 1146-49; J.A. 1151. While the State com­
plained generally in objecting to the use of the AHERA 
standard for asbestos abatement that not all of the abate­
ment was necessitated by the disruption of asbestos due 
to demolition and renovation required elsewhere in the 
desegregation plan, it failed to produce any evidence iden­
tifying any particular portion of the abatement that was 
unrelated to that disruption and the need to make schools 
sufficiently safe and healthy to conduct successful educa­
tional programs that will draw a desegregated enrollment.

The State petitioners’ attacks on the use of AHERA 
standards for asbestos abatement make clear how far 
its argument has strayed from the record and logic of the 
courts below. At the same time that the State petitioners

16 Accord, Swann v. Charlotte-Meckleriburg Board of Education, 
402 U.S. 1, 15 (1971) ( “ breadth and flexibility are inherent in 
equitable remedies” ) (emphasis added). The lower federal courts, 
in considering modifications in desegregation decrees, repeatedly 
have recognized that the district courts are in the best position to 
assess the appropriateness of changes in the remedy. See, e.g., 
Booker v. Special School Dist., 585 F.2d 347, 353 (8th Cir. 1978), 
cert, denied, 443 U.S. 915 (1979) ( “ the basic responsibility for de­
termining whether . . . and to what extent [a desegregation injunc­
tion] should be modified rests primarily on the shoulders of the dis­
trict court that issued the injunction in the first place” ) ; Mapp v. 
Bd. of Educ., 477 F.2d 851, 852 (6th Cir.), cert, denied, 414 U.S. 
1022 (1973) (“ [appropriate relief required by changed conditions 
is a matter for presentation to and consideration by the District 
Court” ).



20

criticize the courts below for supposedly adopting as the 
guideline for the remedy the “virtually limitless” stand­
ard of attractiveness to additional non-minority students, 
they fault those courts for adopting the AHERA regu­
latory standards for asbestos abatement work. Far from 
being limitless, the AHERA standards add an objective 
level of precision to the remedy, so that the school dis­
trict can measure not whether it has done all of the as­
bestos abatement it would like to do, or that it would be 
attractive to do, but that it must do under federal law 
because it is disrupting asbestos in the course of other 
work required by the court-ordered plan.

The State’s AHERA argument is as illogical as would 
be a complaint that electrical work performed in the 
course of the desegregation capital improvements was 
being done in accordance with the standard required by 
the city’s building code. When the court orders that the 
constitutional violations that caused the district’s schools 
to “ rot[J” be remedied by building a new school or ad­
dition, or by upgrading wiring to provide the lighting 
needed for an adequate educational environment, that 
work must, of course, meet the applicable building codes. 
That the work is “up to code” does not mean that the 
State is required as an obligation under the desegrega­
tion plan to bring the KCMSD schools’ electrical systems 
up to the building code; the use of the building code as 
a measure is a function of the fact that electrical work 
is being done for other reasons. Indeed, the reasons for 
the work the State does not, and cannot, challenge, hav­
ing acknowledged the same remedial proposals in its own 
capital improvements plan. The use of the building code, 
like the use of AHERA to measure the appropriate de­
gree of asbestos abatement, is the kind of objective meas­
ure that the lower federal courts can and should rely 
on to lend some clarity and objectivity in the shaping of 
an equitable remedy. The illogical alternative apparently 
favored by the State petitioners is an order that the 
KCMSD abate asbestos disturbed as part of the constitu­
tionally mandated desegregation plan capital improve­



21

ments to some lesser degree than is required by federal 
law, and by the health and safety needs of KCMSD 
schoolchildren.

Finally, the issues here are moot, and as a practical 
matter present no opportunity for the Court to change 
the course of the Central High School construction or 
asbestos abatement projects. The new Central High 
School is now completed. The school opened in September 
1991, and whereas it was an all-minority school before 
it became a magnet, the student body for 1991-92 is 17.5 
percent non-minority. This is significant progress, since 
the existing, all-minority classes of students were not 
required to leave when the school became a magnet school. 
The freshman class is 24 percent non-minority, so en­
hanced desegregation for Central is readily achievable.

Similarly, the $910,224 in additional absestos work 
for six schools, about which the State complains, has 
long been completed and paid for. In the desegregation 
capital improvements program generally, the vast ma­
jority of the work has been completed.

Litigants “must have suffered, or be threatened with, 
an actual injury traceable to the defendant and likely to 
be redressed by a favorable judicial decision”  before this 
Court should exercise its discretionary jurisdiction. Lewis
v. Continental Bank Cory., 494 U.S. 472,------ , 110 S. Ct.
1249,1253(1990) (emphasis added) (citations omitted).17 
A ruling by this Court would not change the fact that 
Central High School has been built in accordance with

17 This is true because Article III of the Constitution limits the 
federal courts to adjudicating- “actual, ongoing controversies between 
litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988). In 
addition, Article III “ denies federal courts the power ‘to decide 
questions that cannot affect the rights of litigants in the case before 
them,’ ” Lewis v. Continental Bank Corp., 110 S. Ct. at 1253, quoting 
North Carolina v. Rice, 404 U.S. 244, 246 (1971), and further limits 
them to “ resolving ‘real and substantial controversies admitting of 
specific relief through a decree of a conclusive character.” Id., also 
quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937) 
(emphasis added).



22

the budget increase approved by the courts below, and 
the work at the schools subject to the asbestos abate­
ment budget increase of $910,224 has been completed.18 19

Needless to say, these issues do not present any con­
flict among the circuits that requires resolution by this 
Court, nor do they present any important question of 
federal law. They concern the process of school build­
ing construction and estimating the costs of such con­
struction. The fact findings at issue are backed by the 
testimony, in affidavits and at a hearing in the case of 
Central High School, of architects, construction managers 
and construction cost estimators. They should remain 
undisturbed by this Court.

II. EVEN IF THE PETITION PRESENTED THE ISSUE 
OF THE OVERALL SCOPE OF THE DESEGREGA­
TION REMEDY IN KANSAS CITY, THE COURT 
SHOULD DECLINE REVIEW BECAUSE IT HAS 
PERMITTED THAT REMEDY TO GO FORWARD 
WHEN THE SCOPE ISSUE WAS PREVIOUSLY 
PRESENTED

Despite the fact that the questions presented by the 
State petitioners raise only the narrow and technical 
issues described in part I. above, petitioners invite the 
Court generally to “consider the scope of the ongoing 
school desegregation remedies” ordered for Kansas City. 
Pet. at 2.:1® That issue is not properly before the Court

18 The State petitioners likely will contend that these issues are 
not moot because this Court could rule that the State should not 
have to pay for the budget increases. Such a narrow question of 
payment allocation is hardly an issue, however, that warrants this 
Court’s review.

19 The State stresses repeatedly that the overall purported cost of 
the remedy is “ some $1.2 billion” and that it “ has actually paid 
approximately $4-69 million” toward the remedy. Pet. at 9 (emphasis 
in original). These numbers distort considerably what is at issue 
in the instant petition and the facts regarding the overall remedy. 
The actual construction cost increase approved for Central High 
School was $8,231,565, with a 10 percent contingency factor, and the 
actual cost increase for asbestos abatement at six schools was



23

because of the narrowness of the State’s questions and 
the rulings actually made by the court of appeals on the 
two budget change decisions the State petitioners chal­
lenge. See Sup. Ct. R. 21.1(a) ( “ Only the questions set 
forth in the petition, or fairly included therein, will be 
considered by the Court” ) ; Berkemer v. McCarty, 468 
U.S. 420, 443 n.38 (1984).

Even if that decision and the questions presented could 
somehow be read to implicate larger issues about the 
scope of the remedy overall, the Court should decline 
review because it has permitted the remedy to go for­
ward on two previous occasions when review of scope 
issues was requested by various parties.20 * * * * * * * * * 30 In 1989, the

$910,224, with future work likewise to meet the AHERA standards. 
Even if the petition properly raised issues concerning the overall 
scope of the remedy, the State’s $1.2 billion figure apparently a) 
compresses about 10 years of capital improvement work and seven 
years of magnet school and desegregation program costs into one 
number, b) is based at least in part on maximum budgeted figures 
and not on the actual costs of the work, which have been ascertained 
on occasion to be lower, and c) includes all the costs paid by the 
KCMSD from locally generated funds.

20 The State’s rather dramatic recitation of what it characterizes
as “ the evolution of this expansive remedy” stresses the dollar
amounts of each stage of the further development of the remedy, as
if to suggest that the costs of the remedy will continue to escalate
forever if not halted by this Court. Pet. at 5-10, 16-18, 20 (“ the
courts in this case have embarked on a remedy that is potentially
endless in nature and scope” ). In fact, the capital improvements
ordered by the courts below are one-time projects to provide schools
or to make existing schools suitable for desegregation programs. A
very significant proportion of that work is already completed. With 
respect to the magnet school plan, the KCMSD has made a commit­
ment to the district court that after the initial cycle of implementa­
tion and magnet school conversions ends at the conclusion of the
1991-92 school year, the cost will begin to drop because start-up 
equipment, supplies and training necessary to begin these programs 
will be in place. In short, there is no basis to believe that any party 
to this case, or the courts below, intend these decrees to operate 
“ in perpetuity” in violation of this Court’s teaching in Board of 
Education of Oklahoma City Public Schools v. Dowell, —— U.S. 
------ , ------ , 111 S. Ot. 630, 637 (1991).



24

State petitioners sought review of the scope of the de­
segregation orders’ Long-Range Magnet School Plan and 
capital improvements plan, arguing specifically, as they 
do in the instant petition, that a remedy based on the 
duty to attract additional non-minority students to a 
school district and to improve a school district to a 
level of comparability with surrounding districts is be­
yond the power of a federal court remedying an intra­
district constitutional violation. Compare Petition in 
Nos. 88-1150, et al. at i (“ Whether a federal court, rem­
edying an intradistdict [school segregation] violation 
. . . 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” ) with Petition at issue 
here, No. 91-324 at 18 ( “By establishing as a primary 
remedial objective the goal of attracting additional non­
minority enrollments to the school system, the lower 
courts in Jenkins have defined this intradistrict remedy 
in terms that exceed the constitutional mandate.” ) .

On April 24, 1989, this Court declined to review the 
scope of the remedy issue presented by the State in Nos. 
88-1150, et al. 490 U.S. 1034 (1989). Moreover, the 
Court also declined to review the original petitions for 
certiorari filed by KCMSD and the Jenkins plaintiffs in 
1987, which argued that a mandatory interdistrict rem­
edy was justified based on the record before the district 
court in the liability case. See 484 U.S. 816 (1987). 
The State bypassed the opportunity to cross-petition to 
challenge the basic structure of the original remedy, 
which called for educational programs, magnet schools, 
capital improvements, and desegregative voluntary in­
terdistrict transfers.

The result has been that progress has continued in the 
implementation of the overall remedy right up to today. 
The 1991-92 school year, now underway, is the final 
year for conversion of schools to magnet schools under 
the first six-year cycle of the Long-Range Magnet School



25

Plan. Accordingly, all of the KCMSD high schools and 
middle schools have been converted to magnet schools, 
along with 35 elementary schools. This process has in­
cluded training of existing staff and hiring of specialized 
staff in the magnet themes, the purchase of equipment 
and supplies to support the specialized programs that the 
themes require and, under the capital improvements plan, 
the construction or renovation of specialized facilities to 
accommodate specialized classes. Indeed, under the capital 
improvement plan, seven new school buildings are com­
pleted and already housing students in magnet school 
programs. Six more new school buildings are under con­
struction and are scheduled for completion during the 
1992-93 school year. Dozens of other school building ren­
ovation projects are completed or will be completed dur­
ing the current school year.

Simply put, the courts below have been on the course 
of supervising the implementation of the remedy for over 
six years, during which this Court declined or was not 
asked to review challenges to the scope of that remedy. 
It would be extremely disruptive to the implementation, 
and no doubt could set the KCMSD on an even longer 
course toward unitary status, if  the Court entertained 
now what at least some passages in the State’s petition 
describe as a global review of the remedial standards and 
particular remedy components adopted by the courts be­
low.121

In an effort to raise some question of federal law 
that might make these issues appear worthy of review

21 Needless to say, review of the overall remedy, after over six 
years of judicial proceeding's and implementation, would raise 
many of the same questions described at pages 18-19 above con­
cerning deference to the fact findings of the courts below. The 
remedial proceedings have been the subject of weeks of major 
hearings and several smaller hearings per year, involving expert 
as well as lay testimony on educational and construction issues. 
The parties have filed cabinets full of motions papers and exhibits 
during the remedial proceedings, and the district court has entered 
over 160 substantive orders.



26

by this Court, the State petitioners suggest that “ [t]he 
grant of certiorari in this case would allow this Court 
to establish clearly that the permissible scope of a court- 
ordered desegregation remedy is to be determined by ref­
erence to the factors identified in Green v. New Kent 
County School Board, 391 U.S. 430 (1968) . . . Pet. 
at 16. Certainly no such clarification is needed. For 
over 20 years, the lower federal courts have been super­
vising the development and implementation of desegrega­
tion plans with reference to this Court’s directives in 
Green, reiterated last Term in Board of Education of 
Oklahoma City Public Schools v. Dowell, — — U.S. — —,
------ , 111 S. Ct. 630, 638 (1991) . The district court
here relied on Green, among other decisions of this Court, 
as the guideline for the overall structure of the remedy. 
639 F. Supp. at 23. The State petitioners fail completely 
to explain how the Central High School and asbestos de­
cisions run afoul of Green, since both bear directly on the 
“ facilities” factor cited in Green as part of “every facet 
of school operations” that must be considered in formulat­
ing a desegregation remedy. Green, 391 U.S. at 435.

The State petitioners also ask the Court “to specify 
that the federal courts’ mandate to determine whether 
the vestiges of de jure segregation had been eliminated 
‘as far as practicable,’ Dowell, 111 S. Ct. at 638, is to be 
determined by those same Green factors.” Pet. at 16 
(footnote omitted). The Central and asbestos issues 
simply do not raise Dowell issues of when stable desegre­
gation, to the extent practicable, can be said to have been 
achieved. No party in this case has made a request that 
the district court determine whether unitary status has 
been achieved in the KCMSD, and the State makes no 
representation that the KCMSD is unitary. Such a deter­
mination obviously is premature in the midst of imple­
mentation of this desegregation plan. Without a deter­
mination by the district court, after a hearing and 
through proper fact findings, as to whether all vestiges 
of segregation have been removed to the extent practi­



27

cable, there is no Dowell issue to be considered by this 
Court.

For the same reasons, the issues presented by this 
petition do not raise any question of whether some or all 
“ largely-minority schools” can remain in a unitary school 
district. Pet, at 18. The petition does not define what a 
“ largely-minority school” would be in Kansas City, and 
the courts below have not opined on whether it is prac­
ticable for all schools in the KCMSD to have desegregated 
enrollments, or whether some racially identifiable schools 
will be permitted to remain at the termination of the 
remedy. Indeed, no party has sought a ruling on that 
issue, which is unsurprising since it would be premature 
in the midst of implementation of the remedy, while de- 
segregative gains are still being made, to determine 
whether some schools as a practical matter will remain 
racially identifiable. Certainly the question of whether 
racially identifiable schools will remain in the KCMSD 
is not implicated in issues of the proper budget for con­
struction of Central High School and the proper amount 
of asbestos abatement to be done during desegregation 
capital improvements.

In fact, the issue of racially identifiable schools may 
never need to be reached, because as the KCMSD magnet 
schools come on line, they are slowly winning the desegre­
gated enrollments that are the goal of the plan. In 1985, 
Judge Clark found that 19 of the 50 elementary schools 
had 90 percent or higher black enrollment, as did three 
of the eight junior high schools and three of the eight 
high schools. By the 1991-92 school year, 11 fewer schools 
were at that level: 9 fewer elementary schools and 2 
fewer middle and high schools. In the 1991-92 school 
year, almost 1,700 new non-minority students, who previ­
ously had attended private or suburban schools, were at­
tending school in the KCMSD. Of that number, over 900 
were new to the KCMSD in the fall of 1991. A solid



28

foundation of desegregative progress and of remedying 
the harm to minority students has been laid.

There can be no doubt that such voluntary desegrega­
tion costs more to achieve than the type of mandatory 
busing that the State proposed and the district court re­
jected in 1985. Voluntary desegregation through magnet 
schools and parent choice, although it requires an invest­
ment to make the schools worth choosing, avoids the coer­
cion and instability inherent in busing-only remedies. 
The district court here so found back in 1985. 689 F. 
Supp. at 35-36. For over six years it has been on a course 
of making a voluntary remedy work in a school district in 
a state of “ decay” and declining educational achievement. 
As we are finally turning the corner on desegregative 
progress, that remedy should not be disturbed.

CONCLUSION
For the foregoing reasons, the petition should be denied.

Respectfully submitted,

Allen R. Snyder *
Patricia A. Brannan 

Hogan & Hartson 
555 Thirteenth St., N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W ard Keeler 
Michael Thompson 

Blackwell Sanders Matheny 
W eary and Lombardi 

Two Pershing Square 
2300 Main Street 
Kansas City, Missouri 64141 
(816) 274-6816

October 28,1991 * Counsel of Record