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

    No.

R e c p  ■ g ^ .3

In T he

S u p r e m e  (E aurt irf life S t a t e s
October T erm, 1991

State of M issouri, et al., 
Petitioners,

vs.

Kauma Jenkins, et al., 
Respondents.

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

FOR THE EIGHTH CIRCUIT

W illiam L. W ebster 
Attorney General

M ichael J. F ields*
Bart A. M atanic 
Assistant Attorneys General 
Broadway Building, 8th Floor 
221 West High Street 
Jefferson City, Missouri 65102 
(314) 751-0531

David R. B oyd 
Comey & B oyd
1101 Connecticut Avenue, N. W. 
Suite 406
Washington, D.C. 20036-4301 
(202) 822-6340

Counsel for Petitioners

* Counsel of Record

S t Louis Law Printing, Inc. 13307ManchesterRd. StLouis.MO 63131 314-231-4477



QUESTIONS PRESENTED

The questions presented in this petition arise from the 
ongoing litigation over school desegregation remedies ordered 
in the Kansas City Missouri School District, the scope of which
this Court declined to review in Missouri v. Jenkins,___U.S.
___, 110 S. Ct. 1651 (1990). At this point, the cost of the
remedies that have been ordered in this school district will 
exceed $1.2 billion when fully implemented, with no apparent 
end-point in sight.

The questions presented by this petition are the following:

1. Whether the district court’s order, finding that the costs of 
asbestos abatement in the public schools of the Kansas City 
Missouri School District (“KCMSD”) are proper “desegre­
gation expenses” and requiring that the State of Missouri 
pay one-half of the costs of those activities and share 
liability for the entire cost of KCMSD ’ s asbestos abatement 
pursuant to its declared joint and several liability with the 
KCMSD, exceeded the proper scope of a federal desegre­
gation remedy required to address an intradistrict violation.

2. Whether the additional $8 million of budgeted construction 
costs for Central High School, a KCMSD magnet facility, 
is a proper “desegregation expense” of this intradistrict 
desegregation remedy, and whether the State can be or­
dered to pay a portion of the additional costs and ultimately 
share responsibility for the total costs through the joint and 
several liability doctrine declared in this case.

' A  complete list o f  the parties to the proceeding is contained in the caption 
o f the court o f appeals. Pet. App. A -l.



I l l—

TABLE OF CONTENTS

Page(s)

Questions Presented.......................................................... i

Table of Authorities ...............................................   iv

Opinions Below.................................................................  1

Jurisdiction.........................................................................  2

Constitutional Provision Involved................................... 2

Statement................................    2

1. The Prior Proceedings........................................  3

a. The Rejection of Claims for Interdistrict
R elief...................    3

b. The Intradistrict Claims and the Initial
Remedial O rder..........................................  5

c. The Magnet School Orders........................  6

d. A Summary of the Current State of the Rem­
edies in the K C M SD ................................... 8

2. The Orders Presented for Review ..................... 10

a. Asbestos Abatement C osts........................  11

b. The Central Order.......................................  13

Reasons for Granting the W rit........................................  16

Conclusion.......................................................................... 25



TABLE OF AUTHORITIES

Page(s)

Cases:

Board of Education of Oklahoma City Public Schools
v. D ow ell, ___  U . S .___ , 111 S. Ct. 630
(1991).................................................................. 16,17,20,21

Board of School Directors v. State of Wisconsin, 649 F.
Supp. 82 (E.D. Wis. 1985)......................... ............. 24

Bradley v. Baliles, 639 F. Supp. 680 (E.D. Va. 1986),
affd , 829 F.2d 1308 (4th Cir. 1987)......................  18

Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975)............  18

Castenada v. Pickerd, 781 F.2d 456 (5th Cir. 1986)..... 18

Green v. New Kent County School Board, 391 U.S. 430
(1968).................................................................. 16,18,21,24

Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo.
1984), a ffd , 807 F.2d 657 (8th Cir. 1986) (en 
banc)...........................................................................  3,5

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985),
a ffd , 807 F.2d 657 (8th Cir. 1986) (en banc) ....... 5,6

Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo. 1987), 
affd  in part, rev’d in part, 855 F.2d 1295 (8th Cir.
1988).................................................   11-12,22

Jenkins v. Missouri, 77-042-CV-W-4, slip op. (W.D.
Mo. April 20, 1989), affd, 931 F.2d 470 (8th Cir.
1991)............................................................... 1,10,13,19-20

Jenkins v. Missouri, 77-042-CV-W-4, slip op. (W.D.
Mo. May 5, 1989), affd , 931 F.2d 470 (8th Cir.
1991) 1,12



V-

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986)
(en banc), cert, denied, 484 U.S. 816 (1987) 
{Jenkins I ) .......................................................................3,4,6

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988), a jfd  
in part and rev’d in part, 110 S. Ct. 1651 (1990) 
{Jenkins II) ............................................................. 6,8,12,22

Jenkins v. Missouri, 931 F.2d 470 (8th Cir. 1991).........passim

Jenkins v. Missouri, Appeal No. 90-2314 (8th Cir.,
August 14 ,1991)......................................................  20

Kelley v. Board of Educ. of Nashville, 836 F.2d 986 (6th
Cir. 1987).................................................................  24

Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert.
denied, 469 U.S. 816 (1984) {Liddell V II) .........................  23

Liddell v. Board of Educ., 907 F.2d 823 (8th Cir. 1990)
{Liddell XIX) .............................................................  23

Little Rock School Dist. v. Pulaski County Special 
School Dist., 839 F.2d 1296 (8th Cir.), cert, denied,
488 U.S. 869 (1988).................................................  23

M illiken  v. B radley , 418 U .S. 717 (1974)
{Millikenl).................................................................  4,18

M illiken  v. B radley , 433 U .S. 267 (1977)
{Milliken I I ) ........................................................ 16,17,18,23

Missouri v. Jenkins,___U.S. ____, 110 S. Ct. 1651
(1990)..........................................................................passim

Missouri v. Jenkins, 491 U.S. 274 (1989)...................... 2,9

Pasadena City Bd. of Education v. Spangler, 427 U.S.
424 (1976) 2 0



---- V I -----

School Bd. of the City of Richmond v. Baliles, 829 F.2d
1308 (4th Cir. 1987)................................................  23-24

School District of Kansas City, Missouri v. State of 
Missouri, 460 F. Supp. 421 (W.D. Mo. 1978), 
appeal dism’d, 592 F.2d 493 (8th Cir. 1979)........  3-4

Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S.
1(1971)....................................................................16,17-18

United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484 (1972)........................................................ 18

Wright v. Council of the City of Emporia, 407 U.S. 451
(1972).........................................................................  18

Statutes:
15 U.S.C. § 2642(7).......................................................... 23

15 U.S.C. § 2461 ...............................................................  11

28 U.S.C. § 1254(1).......................................................... 2

40 C.F.R. § 736.83 ............................................................  23



No.
In T he

S u p r e m e  C o u r t  o f  %

October Term, 1991

State of M issouri, et al., 
Petitioners,

vs.
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 accompanying 
judgment of the United States Court of Appeals for the Eighth 
Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at 931 F.2d 470 
and is reprinted at pages A -1 through A-42 of the accompanying 
appendix to this petition. The two orders of the district court that 
were affirmed in the court of appeals’ decision presented for 
review are not reported and are set forth in the accompanying 
appendix at pages A-42 through A-58. Other unreported orders 
of the district court that are referred to in this petition are also



—  2

printed in the accompanying appendix at pages A-59 through A- 
66. Finally, the recent decision of the Eighth Circuit in Jenkins 
v. Missouri, Appeal No. 90-1234 (8th Cir. August 14,1991), is 
set forth at pages A-67 through A-78.

JURISDICTION

The judgment of the court of appeals was entered on April 22, 
1991. On July 16, 1991 Mr. Justice Blackmun granted an 
extension of time in which to file this petition until August 21, 
1991. The jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The petition presents questions pertaining to the proper appli­
cation of Section 1 of the Fourteenth Amendment, which pro­
vides in pertinent part: “No state shall. . .  deny to any person 
within its jurisdiction the equal protection of the laws.” U.S. 
Const, amend XIV, § 1.

STATEMENT

This petition affords the Court a renewed opportunity to 
consider the scope of the ongoing school desegregation remedies 
ordered by the United States District Court for the Western 
District of Missouri for the Kansas City Missouri School District 
(“KCMSD or the “District”), which Justice Kennedy character­
ized in his concurring opinion in Missouri v. Jenkins as “a 
remedial order unlike any before seen” by the Court. 110 S. Ct. 
1651,1676 (1990) (Kennedy, J., concurring).1 1

1 This litigation was previously before the Court on two occasions. The 
first, involving questions pertaining to the award o f attorneys’ fees, was 
decided in Missouri v. Jenkins, 491 U .S . 274 (1989). The second case, where-

(Footnote 1 continued on next page)



3

1. The Prior Proceedings.

As an understanding of the particular issues presented herein 
requires some familiarity with the overall remedy that has been 
ordered and is being implemented in the KCMSD, its history will 
be reviewed briefly.

a. The Rejection of Claims for Interdistrict Relief.

The initial focus of this lawsuit —  filed in 1977 by the 
KCMSD and certain KCMSD students —  was on claims of 
interdistrict segregation, including a sweeping proposed remedy 
involving reassignment of students across district and state 
lines.2 After the district court had realigned the KCMSD as a 
defendant in October 1978, School District o f Kansas City, 
Missouri v. State o f Missouri, 460 F. Supp. 421,442 (W.D. Mo.

(Footnote 1 Continued)

in the Court considered the district court’s authority to order an increase in 
local property taxes to assist in funding aportion o f  the desegregation remedy, 
is also styled Missouri v. Jenkins and is reported at 110 S. CL 1651 (1990). 
This Court’s second Jenkins opinion will occasionally be referred to as “the 
Jenkins tax case” in this petition.

2 Plaintiffs initially named the States o f  Missouri and Kansas and the 
United States Department o f  Housing and Urban Development (“HUD”) as 
defendants, claiming that they and other defendants had “helped cause or had 
been part o f  a system o f racial segregation among Kansas City metropolitan 
area school districts.” See Jenkins v. Missouri, 807 F.2d 657,661 (8th Cir. 
1986) (en banc), cert, denied, 484 U.S. 816 (1987) (Jenkins 1). The district 
court dismissed the action against the Kansas defendants for want o f  jurisdic­
tion, School District o f Kansas City, Missouri v. State of Missouri, 460 F. 
Supp. 421 ,431-35  (W.D. Mo. 1978), appeal dism’d, 592 F.2d 493 (8th Cir. 
1979), and realigned KCMSD as a defendant Id. at 442. The plaintiffs then 
proceeded as representatives o f  the Jenkins class. The court later ruled that 
HUD was not liable and dismissed HUD as a defendant, see Jenkins v. 
Missouri, 593 F. Supp. 1485, 1506 (W.D. Mo. 1984), and that ruling was 
affirmed in Jenkins I. 807 F.2d at 681-82.



—  4 —

1978), appeal dism’d, 592 F.2d 493 (8th Cir. 1979), 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 defendants. The KCMSD subse­
quently filed a cross-claim against the State, reiterating the 
claims of interdistrict violation and seeking indemnification 
against any intradistrict liability.

The district court rejected the claims for interdistrict relief, 
however. Applying the standards of Milliken v. Bradley, 418 
U.S. 717 (1974) (Milliken I), the court entered extensive find­
ings, demonstrating that the plaintiffs had proved neither an 
interdistrict violation nor an interdistrict effect. Additionally, 
the court determined that there had been no manipulation of 
district boundaries for racial reasons; that the pre-1954 State 
segregation policy had no significant current interdistrict effect; 
and that the pre-1948 State enforcement of racially-restrictive 
covenants likewise had no significant current interdistrict ef­
fects. HUD was found not to be liable and was dismissed as a 
defendant, as were the various suburban school district that had 
been named as defendants. The court of Appeals, sitting en banc, 
affirmed, 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, 484 U.S. 816 (1987) 
(Jenkins I)? 3

3 This court denied petitions for writs o f certiorari filed by the plaintiffs 
and the KCMSD. 484 U.S. 816 (1987).



5

b. The Intradistrict Claims and the Initial Remedial Order.

Considering the plaintiffs’ intradistrict claims, the court found 
that the State and the KCMSD had failed to eradicate all vestiges 
of the prior dual school system within the KCMSD.4 The district 
court noted that some schools were racially isolated. Jenkins v. 
Missouri, 593 F. Supp. 1485, 1493 (W.D. Mo. 1984), qff’d, 
Jenkins I, supra. It also broadly asserted, without further detail, 
that the “inferior education indigenous of the state-compelled 
dual school system has lingering effects in the Kansas City, 
Missouri School District.” Id. at 1492.

The district court then turned to the question of remedial relief. 
The remedy proposed by the KCMSD, which was accepted by 
the court in part, required no changes in student assignments or 
school attendance zones.5 Jenkins v. Missouri, 639 F. Supp. 19, 
25 (W.D. Mo. 1985), a jf d, Jenkins I, supra. Rather, it concen­
trated on providing substantial resources to the school district to

4 The district court’s finding o f S tate liability in 1984 rested on the fact that 
the Missouri Constitution previously included provisions requiring segre­
gated education in the public schools. Although, as the court noted, the 
Missouri Attorney General issued an Opinion declaring those provisions 
unenforceable after this Court’s fircwrt/decision and the related state statutes 
were later formally abrogated and the constitutional provisions formally 
rescinded, see 593 F. Supp. at 1490, the court held that the State had taken 
insufficient steps to dismantle the dual school system that existed as a result 
o f  its constitutional provisions and resulting state laws. See generally id. at 
1501-05.

5 In fact, the State proposed further student transfers with the objective o f 
reducing the percentage o f  minority students where they represented a 
disproportionate share o f the student body o f  a school in relation to the 
KCMSD enrollment as a whole. The plaintiffs and KCMSD opposed such 
measures, however, contending that further mandatory assignments might 
prompt white flight, 639 F. Supp. at 36, and that form o f relief was never 
ordered.



—  6  —

upgrade the school system as a whole. Id. at 25. These programs 
included hiring additional personnel so that the District could 
achieve AAA status (the highest State rating for Missouri school 
districts) and employ more classroom teachers to lower pupil- 
teacher ratios; providing cash grants to all schools to improve 
educational achievement; and implementing a variety of other 
programs such as summer schools, full day kindergarten, tutor­
ing, and early childhood development. Id. at 26-34. These 
programs were expected to cost approximately $50 million over 
the initial three years, and the State was required to pay approxi­
mately two-thirds of that amount. Id. at 43-44. The district court 
also ordered substantial improvements to the KCMSD capital 
facilities. Id. at 39-41. The S tate was ordered to bear $27 million 
of the $37 million cost, id. at 41, with more to follow. The court 
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.” Id. The Eighth Circuit affirmed most 
of this initial remedial order in Jenkins I. See 807 F.2d at 658.6

c. The Magnet School Orders.

The next major development in the evolution of this expansive 
remedy was the district court’s Magnet Order, which posited a 
“long term goal” of “mak[ing] available to all KCMSD students 
educational opportunities equal to or greater than those presently 
available in the average Kansas City, Missouri metropolitan 
suburban school district” and placed renewed emphasis on its

*As indicated above, the district court’s initial rulings were consolidated 
and resolved in a single opinion in Jenkins I. The Eighth Circuit modified the 
district court’s allocation o f  capital costs, requiring equal division. Jenkins 
/ ,  807 F.2d at 685. It did, however, later approve an allocation of 75% o f the 
liability on the State, with joint and several liability, for program costs. 
Jenkins v. Missouri, 855 F.2d 1295 ,1308 ,1316  (8th Cir. 1988), off din  part 
and rev’d  in part, 110 S. C t 1651 (1990) (Jenkins II).



—  7 —

earlier stated goal of attracting additional “non-minority enroll­
ment” to the KCMSD. See Missouriv. Jenkins, 110S. Ct. at 1668 
(Kennedy, J., concurring) quoting Jenkins II, 855 F.2d at 1301- 
02. (emphasis in original) Under the Court’s Magnet Order, all 
of the District’s high schools and middle schools were ordered 
converted to magnet facilities, each with a distinctive theme or 
emphasis, and some 67% of the District’s elementary schools 
have become magnet schools as well.7 Further capital improve­
ments were ordered, and the District Court for the first time 
ordered that local property taxes be raised to assist the KCMSD 
in raising its share of the costs of this ever-increasing and costly 
remedy.

The State’s resulting petition for certiorari presented ques­
tions pertaining to the permissible scope of the remedy and the 
Court’s authority to order an increase in State taxes to assist in 
its funding. The Court, however, declined to consider the 
question pertaining to the scope of the remedy, and later it 
affirmed the district court’s power to authorize the levying of 
taxes in support of the desegregation remedies it had ordered. 
Jenkins, 110S. Ct. at 1664; id. at 1677 (Kennedy, J., concurring). 
Nonetheless, the concurring Justices in Jenkins expressed seri­
ous reservations concerning the District’s desegregation plan 
and its goals. Reviewing some of the more unusual aspects of the

7 Justice Kennedy noted that the initial KCMSD plan called for conversion 
o f approximately one-half o f  the District’s elementary schools to magnets by 
the 1991-92 school year. See 110 S. Ct. at 1668 (Kennedy, J., concurring). 
The scope o f  the magnet system has been expanded, however. Currently, 
some 67 % o f the District’s elementary schools are, or are planned to become, 
magnet facilities.



—  8 —

remedies ordered for the KCMSD,8 Justice Kennedy noted that 
a member of the Eighth Circuit had characterized the remedy as 
“go[ing] far beyond anything previously seen in a school deseg­
regation case,” 110 S. C t at 1668 (Kennedy, J., concurring) 
quoting Jenkins II, 855 F.2d at 1318 (Bowman, J., dissenting 
from denial of reh. in banc), and observed that this Court “has 
never approved a remedy of the type adopted by the District 
Court” and that “[t]here are strong arguments against the validity 
of such a plan.” 110 S. Ct. at 1676 (Kennedy, J., concurring).

d. A Summary of the Current State o f the Remedies in the 
KCMSD.

Presently, the District is implementing and attempting to 
expand the massive ongoing remedies that have been ordered. 
This entails the district court’s annual review of budgets for 
various educational programs that are funded through the reme­
dial orders and continued litigation arising from issues presented

* Some o f the various aspects o f  the KCMSD remedy that Justice Kennedy 
considered illustrative o f  why the remedy was proving so costly were the 
following, which have been ordered as part o f  the capital improvements and 
magnet remedies: a performing arts middle school; a technical magnet high 
school offering programs ranging from heating and air conditioning to 
cosmetology and robotics; a 25 acre farm and 25 acre “wildlife area” for 
science study, which is to include an air-conditioned meeting room to 
accommodate 104 persons; air conditioning in all classrooms in high schools 
and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and 
vivariums; a model United Nations assembly area wired for language trans­
lations; broadcast-capable radio and television studios with an editing and 
animation lab; a temperature-controlled art gallery; movie editing and screen­
ing rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875- 
square-foot elementary school animal rooms for use in a Zoo Project; swim­
ming pools; and numerous other facilities. 110 S. Ct. at 1668, 1676-77 
(Kennedy, J., concurring) (citations omitted). As Justice Kennedy observed, 
“[i]t com es as no surprise that the cost o f this approach to the remedy far 
exceeded KCM SD’s budget, or for that matter, its authority to tax.” Id.



9

by the KCMSD’s attempts to implement and expand the rem­
edies. The issues presented for review in this instance arise from 
that continuing pattern of litigation and district court supervi­
sion.

At this juncture of the remedy, the district court has ordered 
desegregation remedies that will cost some $12 billion to imple­
ment, and the State of Missouri has actually paid approximately 
$469 million in support of its ordered-share and portions of the 
KCMSD’s ordered-share that the District itself has refused to 
implement a tax levy increase to fund.9 This, of course, is in 
addition to the State contributions to the cost of KCMSD’s 
educational program, which are provided pursuant to State laws 
providing for the allocation of certain specified tax revenues to 
school districts throughout the State of Missouri in accordance 
with applicable formulae.

Although the Jenkins tax case recognized the district court’s 
power to authorize raising the level of local property taxes in 
support of KCMSD’s obligation for its share of remedial costs, 
KCMSD has opposed increases in the tax levy to the level

9 As o f  the time the orders considered in the Jenkins tax case were entered, 
the remedies had grown to a level o f some $260 million in capital improve­
ments and a magnet-school plan costing over $200 million. See 110 S. Ct. at 
1668 (Kennedy, J., concurring) citing Missouri v. Jenkins, 491 U.S. at 276. 
Currently, the orders for capital improvements (portions o f  which have not yet 
been implemented) call for expenditures o f  approximately $505 million. The 
ordered programmatic remedies and other desegregation-related expendi­
tures, such as transportations costs, are now at a level o f  some $707 million.

The State’s actual payments o f $469 million consists o f payments o f some 
$402 million for desegregation remedies for which the State has been deemed 
to have the primary payment obligation. In addition, the State has been 
ordered to pay some $67 million (net o f  amounts paid and then reimbursed by 
KCMSD) to cover a portion o f the KCMSD’s primary liability, which the 
KCMSD itself has refused to implement a tax levy increase to pay in spite o f 
the taxing authority recognized in this Court’s Jenkins tax case.



—  1 0  —

required to fund all of its share, and the district court has declined 
to order KCMSD to raise taxes to those levels. As a result, the 
State has also been called upon to fund a portion of KCMSD’s 
share of the costs of the remedies pursuant to the concept of joint 
and several liability. See note 9, supra. That issue is presently 
before in the Eighth Circuit. Jenkins v. Missouri, Appeal No. 91- 
1938-WMKC (1991).

2. The Orders Presented fo r  Review.

This petition presents for review two issues that arose and 
were considered in the Eighth Circuit’s fourth decision address­
ing the remedies in this extended litigation. Jenkins v. Missouri, 
931 F.2d 470 (8th Cir. 1991). Specifically, the State seeks 
review of an order concerning the propriety of including as a part 
of the desegregation remedy the costs of abating asbestos sub­
stances contained throughout the school buildings of the KCMSD 
and the Court’s order that the State fund one-half of the estimated 
costs of that asbestos abatement activity. Also presented for 
review is a separate district court order approving an increase in 
the construction budget of $8,231,565 for Central High School, 
a new magnet facility that has been designed and built to offer an 
extraordinary range of athletic facilities in the hope of attracting 
additional urban and suburban non-minority enrollments into 
the KCMSD, rasing the total budget for constructing and equip­
ping that one facility from the $15,243,050 initially approved 
and ordered to arevised level of $23,474,615.10 Both orders were 
affirmed by the Eighth Circuit in a single opinion considering 
these and other issues.

10 The total cost o f  Central High School, when recognition is given to the 
costs o f site acquisition and preparation and an increase in the equipment 
budget, will be approximately $32 million. Cf. Pet. App. at A-43.



—  11 —

a. Asbestos Abatement Costs.

As the Eighth Circuit noted, the district court ’ s original capital 
improvements order included some costs for asbestos abatement 
that were not specifically challenged in the State’s earlier ap­
peals. Pet. App. at A-26. In subsequent proceedings leading to 
the instant petition, however, the KCMSD sought an older 
authorizing additional funding of some $900,000 for asbestos
abatement for six specific schools and seeking to impose 100% 
of that liability on the State. Pet. App. at A-23. In addition, 
KCMSD sought an order authorizing it to proceed with asbestos 
abatement for an entire phase of future renovations (referred to as the 
“Phase IH” renovations), and directing that those costs be shared by 
the State. Finally, the KCMSD urged that the district court establish 
guidelines for asbestos abatement for its remaining capital improve­
ments in accordance with the Asbestos Hazard Emergency Re­
sponse Act (“AHERA”), 15 U.S.C. §§ 2461 etseq. (1988).

With the exception of the KCMSD’s proposed allocation of 
responsibility for funding the asbestos removal activities, the 
district court granted the District all of the relief it had sought. 
The court concluded that asbestos removal costs were a proper 
“desegregation expense” and ordered that the State and the 
KCMSD share equally in that cost, subject to the joint and 
several liability rule that it has imposed in the case. The court 
further granted the KCMSD request that the federal standards set 
forth in AHERA would serve as the guidelines for the asbestos 
abatement program during the remaining capital improvements 
activities in the KCMSD.

In affirming, the Eighth Circuit noted that the State had 
reiterated on appeal the same arguments that the district court 
had rejected. The State maintained, for example, that the 
presence of asbestos in the Kansas City public school system was 
not caused by illegal segregation in the KCMSD, nor was that 
condition a “vestige of segregation” for which the State could be



—  1 2  —

held jointly and severally liable in a desegregation remedy. The 
State had further urged that asbestos abatement was a problem 
throughout Missouri and in schools throughout the nation, and 
noted that the evidence did not suggest that KCMSD’s asbestos 
problem was present in the formerly all-black schools and absent 
in the formerly all-white ones, as one would expect if this 
condition were a result of prior efforts at segregation. Pet. App. 
at A-24. The court of appeals then proceeded to endorse the 
district court’s findings rejecting those arguments.

As the Eighth Circuit noted, the district court’s order requiring 
the State to share in the costs of asbestos abatement throughout 
the KCMSD was based on its previous findings, which the court 
of appeals had approved earlier. The Eighth Circuit quoted those 
findings with renewed approval in sustaining the asbestos order. 
Pet. App. at A-24. The court of appeals quoted approvingly, for 
example, the district court’s finding that “ ‘ [t]he improvement of 
school facilities is an important factor in the overall success of 
this desegregation plan,’ ” and that health and safety hazards 
were an obstacle both to “education as well as to maintaining and 
attracting non-minority enrollment” Pet. App. A-24 quoting 
Pet. App. at A-56. The Eighth Circuit further noted with 
approval that the district court had acknowledged the court of 
appeals’ conclusion that capital improvements are “ ‘necessary 
for successful desegregation’ ” and are “ ‘required both to 
improve the education available to the victims of segregation as 
well as to attract whites to the schools.’ ” Pet. App. at A-24 
quoting Pet. App. at A-56 (citations omitted). Additionally, the 
court of appeals contributed one further justification for the 
asbestos order that had not been specifically advanced by the 
district court itself. The Eighth Circuit noted that it had previ­
ously found that both the State and the KCMSD had “caused the 
decay” of the facilities, thus necessitating their later renovation. 
Pet. App. at A-24 - A-25, citing and quoting Jenkins II, 855 F.2d 
at 1300 and Jenkins v. Missouri, 672 F. Supp. 400, 411 (W.D.



—  13

Mo. 1987), affd, in part and rev'd in part, 855 F.2d 1295 (8th Cir. 
1988). Citing the evidence in the district court that some of the 
court-ordered renovations had activated asbestos substances 
that normally would have remained dormant and thus posed no 
hazard, the court of appeals considered that fact to present a set 
of “unique circumstances” that properly allowed the district 
court to conclude that asbestos abatement costs are a “proper 
desegregation expense” and to require that the State assume a 
portion of the cost and share joint and several liability for it as 
well. Pet. App. at A-25. The court of appeals determined that it 
“cannot conclude that the district court’s characterization of 
asbestos abatement costs as a desegregation expense is clearly 
erroneous.” Pet. App. At A-26.

b. The Central Order.

Central High School was approved in the district court’s 
Magnet Order as a magnet facility that would focus on what was 
termed a “Classical Greek” curriculum, and would offer a 
separate computer science theme. Much of the “Classical 
Greek” focus is to be athletic in nature. Thus, in order to make 
the facility attractive, it was initially designed to include a vast 
array of specialized athletic facilities, including an Olympic size 
(50 meter) swimming pool with high dive platform and other 
diving facilities and seating to accommodate 400 spectators; 
indoor and outdoor running tracks; separate gymnasium facili­
ties for basketball and similar sports activities and for gymnas­
tics and wrestling activities; tennis and racquetball courts; and 
separate fields for various outdoor sports activities. Cf. Pet. 
App. at A-45. The district court’s Magnet Order budgeted 
$15,243,050 for the construction and equipping of Central, Pet. 
App. at A-30, which the court of appeals approved in Jenkins II 
as part of its general affirmance of the Magnet Order which this 
Court declined to review.



—  14 —

The KCMSD then proceeded to exceed even this generous 
budget, prompting it to seek an amendment increasing the 
construction budget by more than $8 million, with the result that 
the facility would be budgeted to cost more than $23 million to 
construct and furnish, and some $32 million in total, when site 
acquisition and other costs are considered. The State challenged 
the KCMSD motion, contending that the initial budget was more 
than sufficient and that the District had made no attempt to build 
a facility consistent with that generous budget.

Following an evidentiary hearing, the district court rejected 
virtually all of the State’s challenges. Although it deleted the 
high diving platform component of the swimming facility from 
the desegregation budget in response to safety concerns, Pet. 
App. at A-46; see note 13, infra, the remainder of the budget 
increase was sustained. The district court’s basic findings, 
which were again cited approvingly by the Eighth Circuit and 
adopted as a portion of its own rationale, included the following:

1) “that the location of Central in the predominantly black 
central corridor area of Kansas City made its desegregation 
a challenge”;

2) that alterations in and additions to the planned athletic 
facilities has caused the final budgeted figures to exceed the 
initial budget estimates;

3) “that the planned Central facilities are more extensive 
than any other high school in the Kansas City area and that 
such facilities are necessary to attract non-minority subur­
ban students to the inner city”

Pet. App. at A-30, A-34 (emphasis added).

As the court of appeals noted, the State maintained that 
KCMSD had unjustifiably expanded the plans for Central after 
the district court’s initial approved budget and challenged the 
district court’s purported findings as “policy judgments” that



15 —

should be subjected to de novo appellate review rather than 
treated with the level of deference normally accorded a trial 
court’s findings of fact. Pet. App. at A-34. The Eighth Circuit 
rejected the State s proposed standard of review, however, as 
“wholly unpersuasive” and proceeded to apply the clearly erro­
neous standard in reviewing the matter. P e t App. at A-34. 
Furthermore, in affirming the district court’s ruling, the court of 
appeals endorsed and emphasized its conclusion that a facility of 
the kind that was contemplated by the amended budget may be 
necessary to attract non-minority enrollments to that particular 
location:

The [district] court’s analysis particularly focused on the 
attractiveness o f Central’s facilities to non-minority stu­
dents. The district court cited the removal of certain 
athletic, art and music facilities from Central’s design plans 
and the efforts of the project management team to live 
within the original budget as factors indicating KCMSD’s 
efforts to reduce Central’s cost. The district court also 
pointed out that even a witness for the State conceded that 
the Central High concept was outstanding and could help 
achieve desegregation in the KCMSD.

Pet. App. at A-33 (emphasis added and citations omitted). The 
Eighth Circuit thus sustained the district court’s order expanding 
the Central budget, and that facility is now being constructed at 
a total cost in excess of $32 million.



- 1 6 -

REASONS FOR GRANTING THE W RIT

The 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 reference to the 
factors identified in Green v. New Kent County School Board, 
391 U.S. 430 (1968), and reiterated last Term in Board of
Education o f Oklahoma City Public Schools v. Dowell,__ U.S.
-----, 111 S .C l 630(1991),and to specify that the federal courts’
mandate to determine whether the vestiges of de jure segregation 
had been eliminated “as far as practicable”, Dowell, 111S. Ct. at 
638, is to be defined by those same Green factors.11 As the instant 
petition demonstrates, this further clarification is necessary and 
appropriate to assure that the Court’s recent admonition in 
Dowell that federal supervision of local school systems was 
intended to be a “temporary measure to remedy past discrimina­
tion,” 111S. Ct. at 637, is properly honored by the lower federal 
courts.

InMilliken v. Bradley, 433 U.S. 267 (1977) (.Millikenll), this 
Court articulated the general requirements that desegregation 
remedies must meet: 11

11 As the Court instructed in Dowell, 111 S. Ct. at 638,

In considering whether the vestiges o f  de jure  segregation had been 
eliminated as far as practicable, the District Court should look not only 
at student assignments, but “to every facet o f  school operations —- 
faculty, staff, transportation, extracurricular activities and facilities.” 
Green, 391 U.S. a t435. See also Swann v. Charlotte-Mecklenberg Bd. 
ofEduc., 402 U.S. 1 ,1 8  (1971) (“[EJxisting policy and practice with 
regard to faculty, staff, transportation, extracurricular activities and 
facilities are “among the most important indicia o f a segregated 
system ”)



—  17 —

[T]he nature of the desegregation remedy is to be deter­
mined by the nature and scope of the constitutional viola­
tion. The remedy must therefore be related to “the condi­
tion alleged to offend the Constitution.. . . ” Second, the 
degree must indeed be remedial in nature, that is, it must be 
designed as nearly as possible “to restore the victims of 
discriminatory conduct to the position they would have 
occupied in the absence of such conduct.” Third, the 
federal courts. . .  must take into account the interest of state 
and local authorities in managing their own affairs, consis­
tent with the Constitution.

433 U.S. at 280-81 (emphasis in original and citations omitted) 
Milliken II  also approved certain limited remedial and compen­
satory measures that were to be offered to the individual victims 
of discrimination while the school system was effecting a tran­
sition to a condition of constitutional compliance.12 Milliken II 
did not, however, grant the federal courts free license to identify 
and address every perceived deficiency in a school system that 
was undergoing a desegregation remedy. This, we submit, is 
confirmed by the Court’s recent admonitions in Dowell that the 
federal court’s supervisions of school systems was intended “as 
a temporary measure” and that the federal courts’ desegregation 
decrees, unlike those entered in some other areas, “are not 
intended to operate in perpetuity.” 111 S. Ct. at 637. See also 
Swann v. Charlotte-Mecklenberg Bd. ofEduc., 402 U.S. 1, 22

12 Courts commonly have described the goal o f  desegregation remedies as 
eliminating the “dual” school system and replacing it with a “unitary” one. C f 
Dowell, 111 S. Chat 635-36 (noting that the lower courts had sometimes used 
the term “unitary status” in inconsistent and confusing manners and instruct­
ing that the constitutional command that was at issue was the mandate o f the 
Fourteen Amendment that “N o State shall. . .  deny to any person. . .  the equal 
protection o f  laws”).



—  18 —

(1971) (“The elimination of racial discrimination in public 
schools is a large task and one that should not be retarded by 
efforts to achieve broader purposes lying beyond the jurisdiction 
of school authorities. One vehicle can carry only a limited 
amount of baggage.”)

As this Court made clear in Milliken I, a school district can 
satisfy the commands of the Fourteenth Amendment and still 
have largely-minority schools. Indeed, they will necessarily 
have largely minority schools when the student population of the 
district as a whole is predominantly minority. 418U .S.717,747, 
n.22 citing Green v. New Kent County School Board, supra; 
Wright v. Council o f the City of Emporia, 407 U.S. 451 
(\912)\United States v. Scotland Neck City Bd. ofEduc., 407 
U.S. 484 (1972). Thus, Milliken II expressly rejected the 
suggestion that “the Constitution is . . . violated by racial 
imbalance in the schools, without more,” 433 U.S. at 280, n. 14, 
and a number of courts have recognized that primarily-minority 
school districts can achieve unitary status without attracting 
additional non-minority students to change their overall racial 
composition. See Castenada v. Pickerd, 781 F.2d 456,461 (5th 
Cir. 1986); Calhoun v. Cook, 522 F.2d 717,719 (5th Cir. 1975); 
Bradley v. Baliles, 639 F. Supp. 680,685 (E.D. Va. 1986), affd, 
829 F.2d 1308 (4th Cir. 1987).

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. Equally 
important, by positing the attraction of additional non-minority 
students as a justifying rationale for measuring the permissible 
scope of the remedies that can be ordered, these courts have 
adopted a standard that is virtually limitless in its ability to 
accommodate the desire for greater remedial measures. Virtu­
ally any potential improvement in a school system can fairly be 
said to offer the promise of attracting additional non-minority



—  19 —

enrollments.13 Indeed, as the Eighth Circuit’s affirmance of the 
district court’s Central order demonstrates, the more difficult the 
undertaking, the most costly it can become.14 And finally, by 
embracing this essentially open-ended rationale in a case in 
which the school district proposes remedies that are to be

!3 This point is illustrated by the district court’s analysis o f the evidence 
introduced at the hearings it conducted to consider KCMSD’s requested 
budget increases for Central. Repeatedly, the district court credited as 
virtually dispositive the opinion testimony o f  various witnesses expressing 
the view that a challenged feature would be “attractive” to suburban, non­
minority students that KCMSD hoped to encourage to attend Central. See, 
e.g. Pet. App. at A-45 (one KCMSD witness testifying that “[ajlthough he 
agreed that swimming can be taught in a pool less than 50 meters. . .  a 50 meter 
pool would be more attractive to suburban, non-minority students”). After 
reciting that testimony and similar testimony o f  other witnesses, the district 
court concluded “that the desegregative attractiveness o f  the 50 meter pool 
justifies its inclusion in the Central design.” P e t App. at A-46.

The district court addressed the 10 meter diving platform in similar terms, 
but concluded that, in view o f the testimony expressing concern for safety and 
liability issues presented by such a platform, “[t]he Courtis not convinced that 
the desegregative attractiveness o f  the 10 meter diving platform outweighs 
the dangers and costs o f  construction and liability insurance associated with 
the platform.” The district court therefore refused to fund the 10 meter 
platform as a part o f  the desegregation remedy, although it indicated that the 
KCMSD could include the diving platform if  it chose to bear the entire cost 
itself. Pet. App. at A-46.

14 The district court opened its Central opinion with the following obser­
vation:

Central High School is virtually an all black school located in the central 
corridor area o f  Kansas City where the residential population is 
substantially all black. Therefore, the desegregation o f Central is a 
challenge.

P et App. at A-42. A s noted above, the court placed great weight on the 
opinion testimony o f  witnesses expressing the view that certain athletic 
features o f the Central facility would be “desegregatively attractive,” espe­
cially to suburban non-minority students. P et App. at A-44 through A-48. 
Similarly, the district court dismissed the testimony o f one o f the State’s 
witnesses noting the extravagance o f  certain elements o f the Central design

(Footnote 14 continued next page)



—  20 —

substantially funded by the State, the courts in this case have 
embarked on a remedy that is potentially endless in nature and 
scope.15

(Footnote 14 Continued)

in relation to other school buildings by noting that other buildings did not face 
the same desegregation challenges. Pet. A pp.atA -48. The court concluded,

Although the Central design is more extensive than any other high 
school in the Kansas City area, such facilities are necessary to attract 
non-minority suburban students to the inner city to accomplish the 
difficult task o f  desegregating Centra! High School

Pet. App. at A-49.

15 A s this Court has noted, a school board undergoing a desegregation 
remedy “is entitled to a rather precise statement o f  its obligations under a 
desegregation decree.” Dowell, 111 S. Ct. at 636, citing Pasadena City Bd. 
o f Education v. Spangler, 427 U .S. 424 (1976). The same is certainly true o f  
a state defendant that is called upon to make massive financial contributions 
to a remedy o f  this kind. By adopting such ill-defined objectives for the 
remedy as eliminating the “vestiges o f segregation” or attracting additional 
non-minority enrollments into the school system, the lower courts in this case 
have embarked on a remedy that lacks ascertainable standards or an identifi­
able ending point

While the ill-defined nature o f this remedy’s objectives makes it virtually 
impossible to know when or how the parties’ remedial obligations might be 
satisfied in this case, the most recent decision of the court o f appeals, which 
was issued while this petition was being finalized, suggests that the Eighth 
Circuit believes that this billion dollar desegregation remedy will continue for 
an extended period o f time. W hile reconfirming that an essential goal o f this 
remedy is to attract non-minority students into the school district, see Jenkins 
v. Missouri, No. 90-2314 (8th Cir. August 14,1991) slip op. at 9, Pet. App. 
at 75, that court expressed dissatisfaction with the pace o f  progress in 
attaining that objective. According to the Eighth Circuit, “at this point, 
KCMSD has only begun its vast efforts to remedy the vestiges o f the dual 
system o f education in this district.” Id. at 7; Pet. App. at 73. While 
maintaining that the record indicated that some progress had been made, the 
court of appeals noted that the task o f increasing non-minority enrollments in 
the KCMSD had been “excruciatingly slow.” Id.



—  2 1  —

The lower courts’ treatment of Central thus illustrates the 
virtually limitless rationale that has driven this desegregation 
remedy, and that created the requirement that the district court 
exercise the taxing powers granted by the laws of the State of 
Missouri to assist in funding the KCMSD’s portion of the 
remedy.16 As the concurring Justices noted in the Jenkins tax 
case, it “cannot be contended that interdistrict comparability, 
which was the ultimate goal of the district court’s orders, is itself 
a constitutional command.” 110 S. Ct. at 1676. In this instance, 
the District Court’s goals for the $32 million Central High 
School facility exceed even the standard of interdistrict compa­
rability, however, responding instead to the goal of “desegregative 
attractiveness” for the attraction of suburban non-minority stu­
dents into an inner-city school. Neither goal is required by the 
command of the Equal Protection Clause of the Fourteenth 
Amendment, and neither can properly be relied on as the driving 
force for a remedy that so plainly exceeds the objectives of a 
legitimate desegregation remedy set forth in Dowell and Green.

The lower courts’ treatment of the question of asbestos fund­
ing suffers from similar infirmities. Again, by defining a central 
goal of this remedy in terms that substantially exceed the 
mandate of the Fourteenth Amendment, the lower courts have 
established a benchmark that accommodates virtually any im­
provement in the school system that might be advanced. Virtu­
ally any enhancement to the schools can be said to be “an

14 Justice Kennedy noted that the KCMSD and the plaintiffs have main­
tained a “ ‘friendly adversary’ ” relationship, with the District proposing ever­
more expensive capital improvements programs with the agreement o f  the 
plaintiffs and over the State’s objection. 110 S. Ct. at 1667 (Kennedy, J., 
concurring). In the process, “the KCMSD had demonstrated little concern for 
the fiscal consequences o f  the remedy that it helped design,” id., which 
inevitably forced the district court to exercise its authority to authorize 
increasing the level o f  local property tax to support the KCMSD’s portion of 
the remedy. Id. at 1667.



—  2 2  —

important factor in the success of [a] desegregation plan” or 
conducive to “maintaining and attracting non-minority enroll­
ment.” Pet. App. at A-24.

The record in this case provides no suggestion that the exist­
ence of asbestos in the public schools of the KCMSD is in any 
way the product of prior segregation. Moreover, the Eighth 
Circuit’s citation to prior statements concerning the State’s 
purported contribution to the prior decay of the school facilities 
in the KCMSD as a “vestige of segregation,” Pet. App. at A-25, 
citing Jenkins II, 855 F.2d at 1300 and Jenkins, 672 F. Supp. at 
411, refers to nothing more than the fact that for many years the 
voters of the KCMSD and its school administration failed to 
provide necessary funds and attention to the maintenance of the 
public school facilities— a reality that the concurring Justices in 
the Jenkins tax case recognized as a political problem rather than 
one that federal courts are empowers to address through the 
Fourteenth Amendment.17 The district court’s adoption of the 
federal standards embodied in the AHERA statute as the stan­
dard for asbestos abatement to be required and funded as part of 
this desegregation remedy illustrates the all-encompassing na­
ture of the remedy itself. AHERA was enacted to assure a 
prompt response to the potential hazards posed by asbestos 
substances in all schools, public and private, and the Act and the

17 A s Justice Kennedy noted:

District Courts can and must take needed steps to eliminate racial 
discrimination and ensure the operation o f  unitary school systems. But 
it is discrimination, not the ineptitude o f educators or the indifference 
of the public, that is the evil to be remedied. An initial finding of 
discrimination cannot be used as the basis for a wholesale shift o f 
authority over day-to-day school operations from parents, teachers, and 
elected officials to an unaccountable district judge whose province is 
law, not education.

Jenkins, 110 S. CL at 1676 (Kennedy, J., concurring) (emphasis added).



—  23

regulations it engendered impose the duty of compliance on 
“local education agencies],” a term that does not encompass 
states. See 15 U.S.C.§ 2642(7) and 40 C.F.R.§ 763.83. In this case, 
however, the expansive nature of the desegregation remedy allows 
the lower courts, under the guise of enforcing a desegregation 
remedy, to require the State of Missouri to share in the funding of a 
generalized obligation that Congress has imposed by statute on local 
education agencies.

Finally, even though the Jenkins remedy may be unlike any 
previously seen by this Court, 110 S. Ct. at 1676 (Kennedy, J., 
concurring), the uniqueness of this remedy does not suggest that 
the expansive rationale on which it is based does not merit the 
Court ’ s review. The remedies ordered in Jenkins are so far astray 
from this Court’s desegregation jurisprudence to warrant review 
on that basis alone. Equally important, the dynamics that give 
rise to remedies of this kind are no longer unusual. A little more 
than a decade earlier, Justice Powell considered the sight of a 
school board joining with the plaintiffs to sue a State in a 
desegregation case “unique”, and noted that the school board in 
that case apparently had decided to sacrifice its normal au­
tonomy in order to gain access to State funds for remedial 
purposes. See Milliken II, 433 U.S. at 293 (Powell, J., concur­
ring). This situation no longer is unique. In addition to this case, 
where Justice Kennedy noted that Justice Powell’s observations 
appeared applicable, see 110 S. Ct. at 1676 (Kennedy, J., 
concurring), the State of Missouri is a defendant in the ongoing 
desegregation case concerning the St. Louis public school sys­
tem. See, e.g., Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert, 
denied, 469 U.S. 816 (1984) (Liddell V77); Liddell v. Board of 
Educ., 907 F.2d 823 (8th Cir. 1990) (LiddellXIX). States have 
also been named in other desegregation cases as well. See e.g., 
Little Rock School Dist. v. Pulaski County Special School Dist., 
839 F.2d 1296 (8th Cir.), cert, denied, 488 U.S. 869 (1988); 
School Bd. o f the City o f Richmond v. Baliles, 829 F.2d 1308 (4th



24

Cir. 1987); Kelley v. Board ofEduc. o f Nashville, 836 F.2d 986 
(6th Cir. 1987); Board o f School Directors v. State ofWisconsin, 
649 F. Supp. 82 (W.D. Wis. 1985). The resulting change in the 
practical alignment of interests of the school boards —  which as 
nominal defendants can be expected to operate as “friendly 
adversaries” to urge that remedies be ordered “against” them to 
gain access to state treasuries —  will continue in the coming 
years. And in the absence of further guidance from this Court 
clarifying that federal school desegregation remedies cannot be 
expanded substantially beyond the parameters of the Green 
factors for the purpose of addressing vague and ill-defined 
“vestiges of segregation” that are not remedied by addressing the 
Green factors themselves, the intrusion of “unaccountable dis­
trict judge[s] whose province is law, not education,” 110 S. Ct. 
1676 (Kennedy, J., concurring) will proliferate.



—  25 —

CONCLUSION

The petition for a writ of certiorari to the United States Court 
of Appeals for the Eighth Circuit should be granted.

Respectfully submitted,

WILLIAM L. WEBSTER 
Attorney General

MICHAEL J. FIELDS*
BART A. MATANIC 

Assistant Attorney General 
Broadway Bldg., 8th Floor 
221 West High Street 
Jefferson City, Missouri 65102 
(314) 751-0531

DAVID R. BOYD 
COMEY & BOYD 
1101 Connecticut Ave., N.W.
Suite 406
Washington, D.C. 20036-2401 
(202) 822-6340

Counsel for Petitioners

Counsel of Record



APPENDIX



APPENDIX A

United States Court of Appeals 
for the Eighth Circuit

No. 89-1253

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his 

next friend, Antoria Cason; Jonathan Wiggins, by his next 
friend, Rosemary Jacobs Love; Kirk Allan Ward, by his 

next friend, Mary Ward; Robert M. Hall, by his next friend, 
Denise Hall; Dwayne A. Turrentine, Turrentine, by his next 

friend, Shelia Turrentine; Gregory A. Pugh, by his 
next friend, David Winters, on behalf of themselves 

and all others similarly situated;
Appellees,

American Federation of Teachers, Local 691, 
v.

The State of Missouri; Honorable John Ashcroft, 
Governor of the State of Missouri;

Appellants,
Wendell Bailey, Treasurer of the State of Missouri;

Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson



—  A-2

Members of the Missouri State Board of Education 
Robert E. Bartman,

Commissioner of Education of the State of Missouri, 
Appellants, 

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees,

Icelean Clark; Bobby Anderton;

Eleanor Graham; Gay D. Williams; Kansas City Mantel & 
Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon 

Dunham; Lindsay K. Kirk; Robert Frazier; Rick Feierabend; 
Linda Hollenbeck, James Hollenbeck; Susan Horseman; and 

Clifford M. Horseman,

Jackson County, Missouri

No. 89-1311

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd, Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on 
behalf of themselves and all others similarly situated;

American Federal of Teachers, Local 691 
v.

The State of Missouri; Honorably John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education



—  A-3 —

Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman,

Commissioner of Education of the State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claud C. 

Perkins, Superintendent thereof,
Appellees,

Icelean Clark; Bobby Anderton; Eleanor Graham; John C. 
Howard; Craig Martin; Gay D. Williams; Kansas City Mantel 
& Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon 
Dunham; Lindsay K. Kirk; Robert Frazier; Rick Feierabend; 

Linda Hollenbeck; James Hollenbeck; Susan Horseman; 
and Clifford M. Horseman,

Jackson County, Missouri.

No. 89-1838

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 

Rosemary Jacobs Love; Kirk Allan Ward; Robert M. Hall, by 
his next friend, Denise Hall; Dwayne A. Turrentine, by his 

next friend, Shelia Turrentine; Gregory A. Pugh, by his next



—  A-4

friend, David Winters, on behalf of themselves and 
all others similarly situated;

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan L. Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education of the 

State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees.

No. 89-1956

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd; Derek A. Dydell, by his next friend, Maurice Dydell; 
Terrance Cason, by his next friend, Antoria Cason; Jonathan 

Wiggins, by his next friend, Rosemary Jacobs Love; Kirk 
Allan Ward, by his next friend, Mary Ward; Robert M. Hall, 

by his next friend, Denise Hall; Dwayne A. Turrentine, by his



—  A-5

next Mend, Shelia Turrentine; Gregory A. Pugh, by his 
next Mend, David Winters, on behalf of themselves 

and all other similarly situated;
Appellees,

American Federation of Teachers, Local 691, 
Appellee, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education Robert E. 
Bartman, Commissioner of Education of the 

State of Missouri,
Appellants,

and
School DisMct of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees.

No. 89-2337

Kalima Jenkins, by her Mend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next Mend,



—  A-6 —

Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all other similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education 

of the State of Missouri,
Appellants,

and School District of Kansas City, Missouri and Claude C. 
Perkins, Superintendent thereof,

Appellees.

No. 89-2643

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell, Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, his his next friend,



—  A-7

Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education of the State

of Missouri,
Appellees,

and
School District of Kansas City, Missouri Claude C. Perkins, 

Superintendent thereof,
Appellees,

Ronika Newton, by her next friends, Ronald and Debra 
Newton; Marques Bussey, by his next friend, Christie 
Newman; Brian McClelland, by his next friend, Ella 

McClelland; Bryant Lightsey, by his next friend, Gina 
Lightsey; Nia Webster, by her next friend, Ajamu Webster, 
and Courtney Adams, by her next friend, Clinton Adams, Jr.

Appellants.



—  A-8 —

77-420-CV-W-4

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

Filed: May 22, 1991 

JUDGM ENT

This appeal from the United States District Court was submit­
ted on the record of the district court, briefs of the parties and was 
argued by counsel.

After consideration, it is ordered and adjudged that the orders 
of the district court of January 3,1989, January 13,1989, April 
20,1989, May 5,1989, May 24,1989, and September 11,1989 
are affirmed in accordance with the opinion of this Court.

April 22,1991

A true copy.

ATTEST: /s/ Michael E. Gans, Acting Clerk

CLERK, U.S. COURT OF APPEALS, 
EIGHTH CIRCUIT

MANDATE ISSUED: 5/20/91



A-9 —

APPENDIX B

No. 89-1253

Kalima Jenkins, by her friend, Kamau Agyei, Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, Turrentine, by his next friend, Shelia 

Turrentine; Gregory A. Pugh, by his next friend, David 
Winters, on behalf of themselves and all others 

similarly situated;
Appellees,

American Federation of Teachers, Local 691, 
v.

The State of Missouri; Honorable John Ashcroft, 
Governor of the State of Missouri;

Appellants,
Wendell Bailey, Treasurer of the State of Missouri;

Missouri Board of Education Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of 
Education of the State of Missouri,

Appellants,



A-10

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees,

Icelean Clark; Bobby Anderton;

Eleanor Graham; John C. Howard; Craig Martin; Gay D. 
Williams; Kansas City Mantel & Tile Co., Coulas & Griffin 
Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; 
Robert Frazier, Rick Feierabend; Linda Hollenbeck; James 
Hollenbeck; Susan Horseman; and Clifford M. Horseman,

Jackson County, Missouri

No. 89-1311

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Maurice Dydell; Terrance Cason, by 
his next friend, Antoria Cason; Jonathan Wiggins, by his next 
friend, Rosemary Jacobs Love; Kirk Allan Ward, by his next 

friend, Mary Ward; Robert M. Hall, by his next friend, Denise 
Hall; Dwayne A. Turrentine, by his next friend, Shelia 
Turrentine; Gregory A. Pugh, by his next friend, David 

Winters, on behalf of themselves and all others 
similarly situated;

American Federal of Teachers, Local 691, 
v.

The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver



—  A -l 1 —

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education 

of the State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claud C. 

Perkins, Superintendent thereof,
Appellees,

Icelean Clark; Bobby Anderton;

Eleanor Graham; John C. Howard; Craig Martin; Gay D. 
Williams; Kansas City Mantel & Tile Co.; Coulas & Griffin 
Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; 
Robert Frazier, Rick Feierabend; Linda Hollenbeck; James 
Hollenbeck; Susan Horseman; and Clifford M. Horseman,

Jackson County, Missouri.

No. 89-1838

Kalima Jenkins, by her friend, Kamau Agyei, Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,



—  A-12 —

American Federation of Teachers, Local 691, 
v.

The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan L. Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson 

State Board of Education 
Robert E. Bartman, Commissioner of Education 

of the State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees.

No. 89-1956

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd; Derek A. Dydell, by his next friend, Maurice Dydell; 
Terrance Cason, by his next friend, Antoria Cason; Jonathan 

Wiggins, by his next friend, Rosemary Jacobs Love; Kirk 
Allan Ward, by his next friend, Mary Ward; Robert M. Hall, 

by his next friend, Denise Hall; Dwayne A. Turrentine, by his 
next friend, Shelia Turrentine; Gregory A. Pugh, by his next 
friend, David Winters, on behalf of themselves and all other 

similarly situated;



- A - 1 3  —

Appellees,
American Federation of Teachers, Local 691, 

Appellee, 
v.

The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education 

of the State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees.

No. 89-2337

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd; Derek A. Dydell, by his next friend, Maurice Dydell; 
Terrance Cason, by his next friend, Antoria Cason; Jonathan 

Wiggins, by his next friend, Rosemary Jacobs Love; Kirk 
Allan Ward, by his next friend, Mary Ward, by his next 

friend, Mary Ward; Robert M. Hall, by his next friend, Denise 
Hall; Dwayne A. Turrentine, by his next friend, Shelia



—  A-14

Turrentine; Gregory A. Pugh, by his next friend, David 
Winters, on behalf of themselves and all other 

similarly situated;
Appellees,

American Federal of Teachers, Local 691, 
v.

The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L, Tolliver 

Raymond McCallister, Jr,
Susan D, Finke 

Thomas R. Davis 
Cynthia B, Thompson

Members of the Missouri State Board of Education 
Robert E. Bairman, Commissioner of Education 

of the State of Missouri,
Appellants,

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees.

No. 89-2643

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell, Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, by his next friend,



—  A-15

Mary Ward; Robert M. Hall, by his next friend Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

v.
The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri; Wendell Bailey, Treasurer of the State 

of Missouri; Missouri State Board of Education 
Roseann Bentley 
Dan Blackwell 

Terry A. Bond, President 
Roger L. Tolliver 

Raymond McCallister, Jr.
Susan D. Finke 

Thomas R. Davis 
Cynthia B. Thompson

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education 

of the State of Missouri,
Appellees,

and
School District of Kansas City, Missouri and Claude C. 

Perkins, Superintendent thereof,
Appellees,

Ronika Newton, by her next friends, Ronald and Debra 
Newton; Marques Bussey, by his next friend, Christie 
Newman; Brian McClelland, by his next friend, Ella 

McClelland; Bryant Lightsey, by his next friend, Gina 
Lightsey; Nia Webster, by her next friend, Ajamu Webster; 
and Courtney Adams, by her next friend, Clinton Adams, Jr.

Appellants.



—  A -16 —

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

Submitted: February 21, 1990 
Filed: April 22, 1991

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge,and 
JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The Kansas City school desegregation remedy continues to 
spawn numerous district court orders and appeals therefrom, 
most of them by the State of Missouri. Here, the State appeals 
from five separate district court orders that: 1) approved a 
revised procedure for funding the desegregation remedy; 2) 
required the State to pay the entire cost of asbestos removal in 
one phase of the school renovation capital improvements plan 
and fifty percent of it in the remaining phases of the plan; 3) 
approved the cost overran on the construction of the new Central 
High School and required the State to pay half; 4) approved a 
formula for calculating costs the school district avoided as a 
result of the establishment of two new middle schools required 
by the desegregation plan; and 5) refused to require the deseg­
regation monitoring committee to allow the S tate to bring its own 
court reporter to the committee’s proceedings. In addition, a 
group of schoolchildren appeal from an order disqualifying their 
attorney and denying their motion to modify the magnet school 
plan. We affirm the orders entered by the district court.

In a June 5, 1984, order the district court rejected claims of 
interdistrict violations. Jenkins v. Missouri, No. 77-0420-CV- 
W-4, slip op. at 105 (W.D. Mo. June 5, 1984). After hearing 
additional evidence, the district court found the State of Missouri



—  A-17 —

and the Kansas City, Missouri School District (KCMSD) liable 
for racial segregation of students within KCMSD and for failure 
to dismantle the dual school system. Jenkins v. Missouri, 593 F. 
Supp. 1485, 1503-04 (W.D. Mo. 1984). After additional hear­
ings, the district court ordered intradistrict remedies against 
KCMSD and the State. This court reviewed these several orders 
in Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (en banc) 
(Jenkinsl), cert, denied, 484 U.S. 806 (1987). Additional orders 
dealt specifically with developing and funding a desegregation 
plan, including a capital improvement plan, which provided for 
the renovation of certain existing facilities, construction of new 
facilities, and a magnet school plan. Jenkins v. Missouri, 639 F. 
Supp. 19 (W.D. Mo. 1985); Jenkins v. Missouri, 672 F. Supp. 
400 (W.D. Mo. 1987). We affirmed these orders in Jenkins v. 
Missouri, 855 F.2d 1295 (8th Cir. 1988) (Jenkins II). The 
Supreme Court granted certiorari to hear appeals related to the 
funding of the remedy by increased property taxes, Missouri v. 
Jenkins, 490 U.S. 1034 (1990), and affirmed this court’s rulings 
on the issue. Missouri v. Jenkins, 110 S. Ct. 1651 (1990).

The implementation and funding of the desegregation remedy 
has resulted in continued litigation. The district court estab­
lished a desegregation monitoring committee to oversee imple­
mentation of the court’s orders, recommend modifications, and 
consider certain issues subject to review by the district court. 
The functioning of this committee and issues relating to the 
remedy and the funding of the remedy were before us in Jenkins 
v. Missouri, 890 F.2d 65 (8th Cir. 1989) (Jenkins III). As the 
parties have continued to differ on the development of the details 
of the desegregation remedy, the district court has held addi­
tional hearings and entered numerous orders. A group of six 
orders comes to us on appeal in what is now the fourth round of 
the intradistrict desegregation litigation.1 While the broad scope *

’ The State appeals district court orders o f  January 3, 1989; January 13, 
1989; April 20,1989; May 5,1989; and May 24,1989. A group o f KCMSD

(Footnote 1 continued on next page)



—  A-18 —

of the desegregation litigation bears upon each issue in these 
orders, we believe that it is most efficient to forego a lengthy 
history and instead state the relevant facts as we discuss the 
separate issues.

L

The State first appeals from the district court’s order of 
January 3,1989, approving a revised procedure for funding the 
desegregation remedy. Jenkins v. Missouri, No. 77-042Q-CV- 
W-4 (W.D. Mo. Jan. 3,1989).

In response to this court’s ruling that the district court ex­
ceeded its power in ordering an income tax surcharge to fund 
desegregation costs, Jenkins II, 855 F.2d at 1315-16 (8th Cir. 
1988), KCMSD requested increased funds from the State in 
order to insure that the remedy would be fully funded. The 
January 3,1989, order implemented a revised funding method, 
known as a drawdown procedure, which works as follows: In 
any given month, desegregation costs are first paid by KCMSD 
with available desegregation revenues. After KCMSD spends 
all of its available funds, desegregation expenses are paid by 
withdrawing money from a special joint program account, into 
which the Treasurer of Missouri deposits the State’s share of 
desegregation costs. The court ordered the State to maintain an 
$11 million balance in the account at the beginning of each 
month. Jenkins, slip op. at 4 (Jan. 3,1989). Prior to this order, 
the State had been ordered to maintain a $5.25 million balance. 
The district court increased the State’s funding obligation be­
cause the State andKCMSD were jointly and severally liable and 
this court has mandated that the remedies be fully funded.

(Footnote 1 Continued)

schoolchildren (the Ronika Newton group) appeal from an order dated 
September 11,1990.



A -19

The State argues that the district court erred in ordering the 
revised drawdown procedure because the State is now required 
to pay remedial costs for which KCMSD had been previously 
held to be solely liable. The State boldly argues that the district 
court has not held the State and KCMSD jointly and severally 
liable for the legal wrong underlying the remedy. The State 
urges that the district court did not make a finding of joint and 
several liability for the underlying wrong at the liability trial, and 
that the district court’s application of joint and several liability 
was a “recent fabrication” in reaction to the State’s successful 
appeal of the income tax surcharge.

We reject these arguments. We view the State’s arguments as 
mere efforts to relitigate an issue that was settled long ago. In our 
decision dealing with the funding of the remedy, we made 
abundantly clear “that the constitutional violations must be 
remedied and the remedies fully funded.” Jenkins II, 855 F.2d 
at 1316. We stated:

In our earlier en banc opinion we made clear that the 
remedy ordered by the district court must be fully funded. 
Should the funds that KCMSD can provide for desegrega­
tion expenses under today’s decision fall short, the remain­
der must be paid by the State, as the orders of the district 
court have imposed joint and several liability on the State 
and KCMSD.

Id. (citation omitted).

The district court’s order recognized this very language in 
requiring the State to pay the balance of desegregation expenses 
as a jointly and severally liable party. Jenkins, slip op. at 4 (Jan. 
3, 1989). In so doing, the district court carefully followed our 
specific directions that the remedies be fully funded.

The State’s argument, with its all too evident personal over­
tones implying that the district judge recently fabricated a



—  A-20 —

finding of joint and several liability, is plainly refuted by numer­
ous orders entered in this litigation. For example, the district 
court order entered November 12, 1986, explicitly found the 
State andKCMSD jointly and severally liable for a portion of the 
magnet school plan, and the State solely liable for the remaining 
costs of its implementation. Jenkins v. Missouri, No. 77-0420- 
CV-W-4, slip op. at 1 (W.D. Mo. Nov. 12,1986). The same order 
held the State and KCMSD jointly and severally liable for the 
cost of the capital facilities program, the site acquisitions, and the 
magnet school plan. Id. at 5-6.

Likewise, in its July 6,1987, order, the district court applied 
comparative fault principles to allocate desegregation costs 
between KCMSD and the State, ruled that the State and KCMSD 
were “jointly and severally liable for the entire [1987-1988] 
budget,” Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 
15 (W.D. Mo. July 6,1987), and ordered contribution between 
the two constitutional violators to be 75 percent for the State and 
25 percent for KCMSD, id. at 14. The district court ordered joint 
and several liability in that instance pursuant to this court’s 
mandate that “the remedy ordered by the Court by fully funded.” 
Id. at 15 (quoting Jenkins /, 807 F.2d at 686).2 This court 
subsequently affirmed the July 6, 1987 order. Jenkins II, 855 
F.2d at 1308.

It is significant that five other district court orders3 also refer 
to the joint and several liability of KCMSD and the State. In

2 Numerous other orders o f  the district court found joint and several 
liability with respect to particular aspects o f the remedial plan. See, e.g., 
Orders of: April 29, 1987, slip op. at 3; August 19, 1987, slip op. at 3-4; 
September 15,1987, slip op. at 13; July 25 ,1988 , slip op. at 28; January 13, 
1989, slip op. at 5; March 30 ,1989 , slip op. at 8; April 4 ,1989 , slip op. at 3; 
April 12,1989; slip op. at 7-8; April 20,1989, slip op. at 11-12; May 5,1989, 
slip op. at 4-5.

3 November 12,1986, slip op. at 1; July 6 ,1987 , slip op. at 15; April 29, 
1987, slip op. at 3; August 19,1987, slip op. at 3-4; September 15,1987, slip 
op. at 14-15.



—  A-21 —

appealing these orders, the State never attacked the findings of 
joint and several liability. Instead, the State limited its appeals 
to challenging the amount of financial contribution, the alloca­
tion of costs, and alleged violations of the eleventh amendment 
and federal-state comity principles. In the State’s appeal from 
the district court’s allocation of desegregation costs, the State 
admitted that “the State and KCMSD have been held jointly 
liable for an intradistrict violation.” Reply Brief for Appellant at 
27, Jenkins II, 855 F.2d 1295 (8th Cir. 1988) (No. 86-1934- 
WM). In the same appeal, the State argued that “the court 
repeatedly made the State liable for most of the mandated costs, 
while casting its orders in the form of joint and several liability.” 
Brief for Appellant at 15-16, Jenkins II, 855 F.2d 1295 (8th Cir. 
1988) (No. 86-1934-WM). We need not read these statements 
as admissions that the district court based its orders upon a 
finding of joint and several liability, however, because the 
district court orders themselves clearly address that issue.

In Jenkins II, we affirmed the five district court orders using 
the language of joint and several liability. 855 F.2d at 1310-11, 
1314n.8,1316n.21. The State’s argument that these orders only 
provided for joint and several liability as to certain parts of the 
remedy is fully answered by this court’s affirmance of these 
orders. In affirming these orders, we explicitly stated that the 
remedy must be fully funded and should KCMSD’s funds fall 
short, the remainder must be paid by the State, as a jointly and 
severally liable party. Id. at 1316.4

4 Two footnotes reiterated this holding:

W e recognize that there may be some circumstances in which the 
district court could justifiably find that KCMSD did not have sufficient 
resources to fully fund the apportionment we have affirmed today o f the 
desegregative costs, and if  it so finds, we do not preclude the district 
court from placing the remainder o f the burden on the State. It is our 
intent that KCMSD contribute its share, subject to these considerations.

855 F.2d at 1314 n. 18 (citations omitted).

(Footnote 4 continued on next page)



—  A-22

Insofar as the State has any right to complain, not having 
raised the issue on appeal from the earlier orders, it is evident that 
the district court based its order on its findings that the State 
created a system of segregated schools, and that both the State 
and KCMSD failed to dismantle that system. Jenkins II, 855 
F.2d at 1300 (citing Jenkins, 593 F. Supp. at 1485,1490,1504). 
We entertain no doubt that the district court’s 1985 order based 
its finding of intradistrict liability on the State’s and KCMSD’s 
failure to perform a common duty and on an indivisible harm 
caused by independent separate and concurring torts of two or 
more tortfeasors. Jenkins, 593 F. Supp. at 1503-04. Joint and 
several liability is, therefore, appropriate. Edmonds v. Compagnie 
Generate Transatlantique, 443 U.S. 256, 260, and n.8 (1979); 
Brickner v. Normandy Osteopathic Hosp. Inc., 687 S.W.2d 910, 
911 (Mo. Ct. App. 1985); See Restatement (Second) o f Torts § 
878 (1977).

We deem it unnecessary to discuss the several criminal cases 
cited by the State, or its argument about the burdens placed upon 
all of the Missouri taxpayers. The State has opposed the district 
court orders placing a greater financial burden on KCMSD as 
well as orders placing on the State an obligation to pay for 
remedies KCMSD could not fund. Simply put, joint and several 
liability is an issue that has been previously decided by the 
district court and this court, and we reject the State’s effort to 
argue otherwise.5 In similar circumstances, we would entertain

(Footnote 4 Continued)

While we have rejected the argument urged by a number o f  the amici 
and adopted by the dissent that under this principle all costs should be 
borne by the State, the State does have an obligation to pay any required 
sums which are beyond the capacity o f  the school district.

Id. at 1316 n.21.

5 The S tate ’s arguments are at best frivolous and represent another example 
o f the verbal excess we have earlier criticized. See Jenkins III, 890F.2dat68- 
69.



A-23 —

the possibility of awarding sanctions, but because a fee will be 
awarded to prevailing counsel, we are satisfied that it is most 
appropriate to leave the State with the additional expense it will 
be required to pay.

n.
The State next appeals from the district court’s May 5,1989, 

order increasing funding for asbestos abatement in the capital 
improvement plan ordered as part of the desegregation remedy. 
Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 4-5 (W.D. 
Mo. May 5,1989).

KCMSD sought $910,224 in additional funding from the 
State for 100% of the asbestos abatement costs incurred in the 
renovation of five elementary schools and one high school.6 Id. 
at 1. In addition, KCMSD sought a court order authorizing it to 
proceed with asbestos abatement for all Phase III renovations 
and directing that the costs of such removal be shared by the 
State. Id. KCMSD also sought a court order establishing 
guidelines for asbestos abatement for the remainder of the capital 
improvement plan in compliance with the Asbestos Hazard and 
Emergency Response Act (AHERA), 15 U.S.C. §§ 2641-2654 
(1988).

The district court concluded that asbestos abatement costs 
were a proper desegregation expense and ordered the additional 
funding, but allocated the cost equally between KCMSD and the 
State. Jenkins, slip op. at 4 (May 5,1989). The district court also 
concluded that asbestos abatement costs in later phases of the 
capital improvement plan should be allocated equally between

6Cook, S winney, Volker, Marlborough, Hartman elementary schools and 
Lincoln Academy.



A-24 —

the State and KCMSD with joint and several liability, and 
approved the use of the AHERA regulations as guidelines for the 
asbestos abatement process. Id. at 4-5. See 15 U.S.C. § 2643; 40 
C.F.R. §§ 763.80-99 (1990).

On appeal, the State makes the same arguments that the 
district court rejected. The State first argues that the presence of 
asbestos was not caused by illegal segregation in the school 
district, is not a vestige of segregation, and therefore, the cost of 
eliminating asbestos is not a cost of desegregation or a cost for 
which the State can be held jointly and severally liable. The State 
urges that the duty to abate asbestos has been placed essentially 
on all schools in the country, and that it is a problem at both 
formerly all black and formerly all white schools. The State also 
argues that our earlier decision, Jenkins II, required KCMSD to 
pay asbestos abatement costs out of interest income from capital 
improvement bonds, and that KCMSD is required to pursue 
claims against other responsible entities or funding sources 
before it can recover such expenses from the State.

The district court based its ruling concerning asbestos abatement 
costs on its previous findings, affirmed by this court, that “ ‘[t]he 
improvement of school facilities is an important factor in the overall 
success of this desegregation plan,’ ” and that “ ‘safety and health 
hazards [in a school facility are] both an obstacle to education as 
well as to maintaining and attracting non-minority enrollment ’ “ 
Jenkins, slip op. at 3 (May 5,1989) (quoting Jenkins, 639 F. Supp. 
at 40) (emphasis added in May 5 order). The district court also 
acknowledged this court’s conclusion that capital improvements 
are“ ‘necessary for successful desegregation,’ "id. (quoting Jenkins 
/, 807F.2d at 685), and are “ ‘required both to improve the education 
available to the victims of segregation as well as to attract whites to 
the schools,’ ” id. (quoting Jenkins II, 855 F.2d at 1305).

Moreover, we note that the district court ordered the renova­
tion of older school buildings to remedy physical facilities that



—  A-25 —

“ ‘have literally rotted/ ” Jenkins II, 855 F.2d at 1300 (quoting 
Jenkins, 672 F. Supp. at411) and that both KCMSD and the State 
caused the decay of these facilities. Jenkins II, 855 F.2d at 1305 
(citing Jenkins, slip op. at 4 (November 12,1986); Jenkins, 639 
F. Supp. at41)). KCMSD presented uncontested evidence to the 
district court 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 reno­
vation work. Thus, the evidence in the record before the district 
court differentiates this situation from situations found at other 
school districts, or for that matter any other public buildings. 
Here, KCMSD and the State are under an order to remove decay, 
caused by both, so as to provide safe and healthy school facilities 
that are not an obstacle to education or desegregation, and 
asbestos removal is necessary to comply with that order. The 
unique circumstances presented here cause us to conclude that 
the district court did not err in holding that asbestos abatement 
costs are a proper desegregation expense, and in requiring the 
State to assume a portion of these costs as a jointly and severally 
liable party.

The State’s remaining arguments on this issue require little 
discussion. The State’s insistence that our earlier decision 
required KCMSD to fund asbestos removal out of interest from 
funds generated by the bond issue simply does not square with 
the language in our opinion. See Jenkins II, 855 F.2d at 1306. 
Our language in that decision suggested only that interest from 
bond proceeds will be available as a possible source of funding 
KCMSD’s share of additional desegregation expenses, such as 
additional asbestos removal costs. Id. Likewise, the argument 
that the district court abused its discretion in not requiring 
KCMSD to pursue claims against responsible entities is fully 
answered by the fact that such litigation has commenced, as 
demonstrated by pleadings furnished to this court of which we



—  A-26 —

take judicial notice. School Dist. v. Acands, Inc., No. 87-903- 
CV-W-9 (W.D. Mo., docketed Oct. 23, 1987). Similarly, we 
cannot conclude that the district court abused its discretion in 
refusing to allow the State to make its own asbestos survey of the 
KCMSD schools. We reject this argument in light of the facts 
that the State declined to participate in the formulation of a plan 
for asbestos abatement in the KCMSD schools or to initiate joint 
meetings with the staff, and that the desegregation monitoring 
committee was kept abreast of the asbestos abatement problems.

We further note that the State did not appeal earlier orders of 
the district court and this court that included asbestos abatement 
costs in the capital improvements plan. Asbestos abatement 
costs were included in the budgets for Phase in capital improve­
ment projects that the district court held were to be financed by 
the State, see 639 F. Supp. at 56, and the budget in the long range 
capital improvement plan approved by this court. JenkinsII, 855 
F.2d at 1295. Accordingly, for the reasons stated above, we 
cannot conclude that the district court’s characterization of 
asbestos abatement costs as a desegregation expense is clearly 
erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 
573-74 (1985).

m.
The State next appeals from that portion of the district court’s 

January 13,1989, order that approved a decision of the desegre­
gation monitoring committee refusing to allow a court reporter 
to be present at its proceedings. Jenkins v. Missouri, No. 77- 
0420-CV-W-4, slip op. at 5 (W.D. Mo. Jan. 13, 1989). The 
district court held that the committee was not intended to 
function with “overly formal procedures,” and that the presence 
of a court reporter would tend to increase the level of formality 
and thereby hinder “an open exchange of thoughts, opinions and 
ideas. Id.



A-27

As the creation of this committee was within the district 
court’s equitable power, and as the parties have a right to appeal 
the committee’s rulings to the district court, we are not con­
vinced that the district court erred or abused its discretion by 
denying the State’s request to require the committee to allow the 
presence of a court reporter at its meetings. Our earlier opinion 
made clear that the use of this committee is based upon the right 
of de novo appeal, and we believe it best to leave the details of 
the committee’s functioning to the district court’s sound discre­
tion. The State has established neither an error compromising 
legal rights nor an abuse of discretion. We affirm the district 
court’s order refusing to require the committee to allow a court 
reporter at its proceedings.

IV .

The State appeals from the district court’s May 24,1989, order 
that adopted a formula for calculating costs that were avoided in 
other parts of the school system in 1987-88 because of the 
establishment of Lincoln and New Paseo middle schools. Jenkins 
v. Missouri, No. 77-0420-CV-W-4 (W.D. Mo. May 24, 1989). 
In making its determination, the district court accepted KCMSD ’ s 
proposal, which divided costs into fixed and variable compo­
nents. The court found that fixed costs would not generate cost 
avoidance because they are necessary to operate the schools 
regardless of enrollment, and that variable costs might generate 
cost avoidance because they are independent on enrollment and 
calculated on a per pupil basis. Id. at 4-5.

The State argues that the court should adopt a formula previ­
ously used to calculate the magnet transportation budget that, 
incidentally, the State had unsuccessfully opposed on appeal in 
JenkinsIII. 890F.2dat69. The State’s approach would multiply 
the number of students from the KCMSD attending Lincoln and 
New Paseo middle schools by the inflation-adjusted per pupil 
cost of educating them elsewhere in the school district. The per



—  A-28 —

pupil cost would be based on the per pupil figure used in the 
1984-85 school year, the year preceding implementation of the 
desegregation plan, and would be adjusted for inflation. The 
State’s formula would result in a cost avoidance figure of 
$2,278,604, as compared with the $96,106 reached by applica­
tion of the KCMSD formula. Jenkins, slip op. at 2-3 (May 24, 
1989).

The KCMSD formula resulted in a lower cost avoidance 
figure because it divided costs into fixed and variable categories 
and excluded from its calculation such fixed items as the costs of 
principals, assistant principals, instruction coordinators, librar­
ians, cafeteria employees, nurses, clerical employees, security 
guards, utilities, maintenance, equipment, telephone service, 
and other similar expenses. Id. at 4-5. The court found that these 
costs will occur at other schools in KCMSD regardless of the 
transfer of some of their students to Lincoln and New Paseo. Id. 
at 5. Variable costs that were avoided by the opening of the two 
middle schools include the costs of such items as supplies, 
textbooks, and postage. The district court found that these costs 
will decline at other schools in KCMSD as their students transfer 
to Lincoln and New Paseo. Id.

The district court thus concluded that the distinction between 
fixed and variable costs was valid, and it rejected the State’s 
proposal because it included fixed costs that are not avoided 
elsewhere as a result of student transfers to Lincoln and New 
Paseo.

The State argues, in addition to advocating application of the 
magnet transportation budget formula, that the use of the 
KCMSD formula violates limitations on desegregation rem­
edies announced in Milliken v. Bradley, 418 U.S. 717 (1974) 
{Milliken I) and reiterated in Milliken v. Bradley, 433 U.S. 267 
(1977) {Milliken II).



—  A-29 —

In Milliken I, the Court stated that “the scope of the remedy is 
determined by the nature and extent of the constitutional viola­
tion.” 418 U.S. at 744. \n Milliken II, the Court emphasized that 
“federal-court decrees must directly address and relate to the 
constitutional violation itself.” 433 U.S. at 282. KCMSD agrees 
that Milliken I  and Milliken II require that the State receive an 
appropriate credit for any savings in the KCMSD’s operating 
budget that result from operation of the new magnet schools 
funded by the desegregation plan’s base budget. KCMSD 
asserts that its formula abides by Milliken I and Milliken II by 
insuring that nondesegregation costs are excluded from the 
State’s obligation.

By relying on Milliken I and Milliken II, the State is apparently 
arguing that the district court made an error of law. We see no 
basis for concluding that the district court applied rules of law 
that conflict with Milliken I  and Milliken II, and are convinced 
that nothing in the Milliken cases in any way impinges upon the 
district court’s factual findings or analysis.

The determination of the proper formula to calculate costs 
avoided necessarily involves a distinctly fact-bound inquiry, 
and, indeed, the district court here made detailed findings of fact. 
Factual findings are not overturned unless clearly erroneous, 
Fed. R. Civ. P. 52(a), and the State makes no effort to demon­
strate that the district court clearly erred.

In analyzing the cost avoidance issue, we are convinced of the 
necessity of distinguishing between fixed and variable costs. We 
therefore conclude that the district court did not err in rejecting 
a formula that did not incorporate that distinction nor in accept­
ing a formula that properly relied on that distinction. As time 
goes on, and the desegregation plan is further implemented, the 
district court is free to consider further arguments that the 
application of a different formula to costs avoided is warranted.



—  A-30

For the foregoing reasons, we affirm the district court’s order 
on the cost avoidance issue.

V.

The State next argues that the district court exceeded its 
authority in approving an increase of $8,231,565 in Central High 
School’s construction budget. Jenkins v. Missouri, No. 77- 
Q420-CV-W-4 (W.D. Mo. Apr. 20, 1989). The district court’s 
November 12, 1986, order had approved a budget for capital 
facilities in magnet schools, including $15,243,050 for Central 
High School. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip 
op. at Attachment B (W.D. Mo. Nov. 12,1986). The April 1989 
order increased Central’s budget to $23,474,615, and quoted 
language in the November 1986 order which stated “that the 
budget ‘consists of studied estimates which would be adjusted as 
actual costs are ascertained.’ ” Jenkins, slip op.at 3 (April 20, 
1989) (quoting Jenkins, slip op at 4, 6 (Nov. 12,1986)).

The district court in its April 20,1989 order found: 1) that the 
location of Central in the predominantly black central corridor 
area of Kansas City made its desegregation a challenge; 2) that 
alterations in and additions to the planned athletic facilities, 
which include an Olympic-size pool, indoor running track, and a 
gymnastics facility, caused the budget for such facilities to 
exceed preliminary estimates; 3) that the expanded athletic 
facilities and the space allocation of 220 square feet per student 
are necessary to implement the Computers Unlimited and Clas­
sical Greek magnet themes and to attract non-minority students;
4) that the planned Central facilities are more extensive than any 
other high school in the Kansas City area and that such facilities 
are necessary to attract non-minority suburban students to the 
inner city; 5) that the original budget omitted costs for architects 
and engineers, advertising, soil surveys and testing, furniture 
and construction contingencies; 6) that the original budget 
assumed a net space to gross space efficiency ratio of 85 percent,



—  A-31 —

while the new budget assumes a 72 percent ratio.7 Jenkins, slip 
op. at 1-8 (April 20, 1989).

The district court stated that the State did not contest KCMSD ’ s 
motion for approval of a site acquisition and preparation budget 
or KCMSD’s motion for a $1,739,077 increase in Central’s 
equipment budget. Id. at 9-10.

The district court approved the Central High construction, site 
acquisition and preparation, and equipment budgets, id at 10-11, 
but rejected the planned installation of a 10-meter diving plat­
form, id. at 5. The court held that costs associated with the 
construction and site acquisition and preparation budgets ap­
proved in its order shall be allocated equally between the State 
and KCMSD, with joint and several liability. Id. at 11. The court 
also held that the costs associated with the equipment budget 
shall be allocated 75 percent to the State and 25 percent to 
KCMSD, with joint and several liability. Id.

The State argues that the district court erred in approving the 
overrun in Central’s construction and equipment budgets be­
cause KCMSD failed to prove or even plead the changed 
circumstances necessary to justify modifying an existing injunc­
tion. The State contends that the district court erred by failing to 
require such proof. The State further argues that the district court 
erred in modifying its November 1986 order to impose joint and 
several liability on the State for additional amounts approved by 
the district court to construct and equip Central. The State 
contends that KCMSD should fully fund the budget increases 
because the Central cost overrun resulted either from errors by

7 The ratio o f  useable space (which excludes space for circulation, 
restrooms, mechanical equipment and janitor’s closets) to total space is 
referred to as “efficiency.” A  75 percent efficiency ratio is usual for school 
buildings. Jenkins, slip op. at 8 (April 20 ,1989).



—  A-32 —

KCMSD in formulating the original estimate or from plans to 
enhance Central beyond what is necessary to achieve desegrega­
tion.

The State asserts that KCMSD unjustifiably expanded Central ’ s 
plans after the district court approved the original budget esti­
mate instead of attempting to adjust the plans to conform to the 
budget. It also contends KCMSD did not inform the district 
court of the planned increase in Central’s facility and budget for 
18 months in an attempt to “maneuver” the district court into 
acceding to its wishes.

We are not persuaded by the State’s argument that the district 
court exceeded its authority in modifying injunctive relief. We 
have held that 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.” Booker v. 
Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir. 1978), 
cert, denied, 443 U.S. 915 (1979). School desegregation plans 
are particularly likely to need adjustment. As the Supreme Court 
has observed regarding such cases: “[Ejquity has been charac­
terized by a practical flexibility in shaping its remedies and by a 
facility for adjusting and reconciling public and private needs.” 
Milliken II, 433 U.S. at 288 (quoting Brown v. Board of Educ., 
349 U.S. 294,300 (1955)). The Fifth Circuit recently cited with 
approval a treatise that stated: “ ‘[A] court must continually be 
willing to redraft the order at the request of the party who 
obtained equitable relief in order to insure that the decree 
accomplishes its intended result.’ ” United States v. Lawrence 
County School Dist., 799 F.2d 1031, 1046 (5th Cir. 1986) 
(quoting 11 C. Wright & A. Miller, Federal Practice and Proce­
dure, § 2961, at 599(1973)).

We have said that the basic responsibility for determining 
whether and to what extent an injunction should be modified 
“rests primarily on the shoulders of the district court that issued



—  A-33 —

the injunction in the firstplace.” Booker, 585 F.2d at 353. Based 
on the foregoing authorities, we conclude that the district court 
had the authority to modify its earlier injunctive order.

The district court correctly recognized that the November 
1986 budget consisted of studied estimates to be adjusted as 
actual costs were ascertained. The State’s argument essentially 
seeks to require KCMSD to construct a new Central High for the 
amount of the original estimate plus a contingency overran and 
engineering and architectural fees totaling approximately $3.3 
million. The April 1989 order establishes that the district court
carefully considered the extensive evidence regarding the design 
process for Central, including the athletic facilities, the classical 
Greek and computer magnet programs, and the size and space 
requirements for the school. The court’s analysis particularly 
focused on the attractiveness of Central’s facilities to non­
minority students. The district court cited the removal of certain 
athletic, art and music facilities from Central’s design plans and 
the efforts of the project management team to live within the 
original budget as factors indicating KCMSD’s efforts to reduce 
Central’s cost. Jenkins slip op. at 8-9 (April 20, 1989). The 
district court also pointed out that even a witness for the State 
conceded that the Central High concept was outstanding and 
could help achieve desegregation in the KCMSD. Id. at 9.

After carefully considering the evidence regarding space 
needs for the magnet programs and athletic facilities, the district 
court found that the space allocation of 220 square feet per 
student was justified and that the “magnet programs” could not 
be successfully implemented in a lesser facility.” Id. at 8. While 
the original budget contained certain flaws, the district court 
found that the process used by KCMSD in the design of Central 
followed the procedures the State’s expert outlined as normally 
used by educators and architects in designing schools. Id. at 4. 
The district court therefore rejected the State’s claim that the 
design process was inappropriate. Id.



—  A-34

The State makes no argument that any of the district court’s 
findings are clearly erroneous. The State characterizes the 
district court’s findings as “policy judgments” and argues that its 
determinations should be subject to de novo review. We reject 
the State’s argument as wholly unpersuasive. Applying the 
standard of Bessemer City, 470U.S. at573-74, we areconvinced 
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 justified, that the allocated 
space of 220 square feet per student is necessary to implement 
the magnet themes and enhance the school’s attractiveness to 
non-minority students, and that the increased construction and 
equipment budgets are necessary to meet the design require­
ments.

The State’s final argument, concerning joint and several 
liability, is an argument with which we have already dealt in this 
decision. The State’s argument is particularly unpersuasive in 
view of the fact that the November 1986 order charged the State 
with joint and several liability for the costs of the capital 
improvements and new construction and made the State solely 
liable for a portion of the relief ordered. Jenkins, slip op. at 1,5- 
6 (Nov. 12, 1986).

This court affirmed the November 1986 order following an 
appeal by the State. Jenkins II, 855 F.2d at 1308. The State did 
not appeal to this court the finding of joint and several liability 
for the capital facilities program that included Central. Joint and 
several liability for the construction costs of Central is thus the 
law of the case. See Liddell v. Missouri, 731 F.d 1294, 1304-5 
(8th Cir. 1984) (en banc), cert, denied, 469 U.S. 816 (1984).

In sum, the district court’s November 1986 order expressly 
stated that the capital improvements budget was subject to 
adjustment as actual costs were ascertained. The district court 
based its April 1989 order on factual findings that the State does



—  A-35 —

not allege to be clearly erroneous. We are convinced that the 
district court did not err in exercising its equitable power to 
modify the original cost estimates, and we therefore affirm its 
April 1989 order permitting an increase in the construction and 
equipment budgets for Central High School and allocating costs 
between the State and KCMS with joint and several liability.

VI.

The last of the appeals before us8 is from the district court’s 
order disqualifying the attorneys for the Ronika Newton group, 
a group pf black schoolchildren, and denying their motion to 
modify the long-range magnet school plan. Jenkins v. Missouri, 
No. 77-0420-CV-W-4, slip op. at 10-11 (W.D. Mo. Sept. 11, 
1989). The district court permitted the Newton group to file an 
amicus brief in which the group sought to eliminate the racial 
quota guidelines from the magnet plan’s admission standards. 
Jenkins, slip op. at 1, 8 (Sept. 11, 1989).

The district court disqualified the Newton group’s counsel, 
Mark J. Bredemeier, Jerald L. Hill and Richard P. Hutchinson, 
of the Landmark Legal Foundation, because they “previously 
represented and currently represent [ ] in this litigation interests 
adverse to the interest of movants.” Id. at 10. The Landmark 
attorneys were, and continue to be, counsel of record for amici 
curiae Icelean Clark and others in actions challenging the court- 
ordered property and income tax surcharges. Id. at 9-10. Land­
mark also represented intervenors Eleanor Graham and others

8 The State also appealed a November 15, 1988, order that awarded the 
Jenkins class fees under 42 U.S.C. § 1988 (1988) at “market rates” for 
paralegal workers and law clerks. Jenkins v. State of Missouri, No. 77-0420- 
CV-W-4, slip op. at 6-9 (W.D. Mo. Nov. 15,1988). The State withdrew this 
appeal after the Supreme Court decided the issue in Missouri v. Jenkins, 109 
S. CL 2463,2471-72 (1989).



—  A-36 —

when that group challenged the court-ordered property tax 
increases. Id. Landmark’s clients in this case, the Newton group 
members, are participants in the magnet school program, and as 
such are direct beneficiaries of the same court-ordered taxes that 
Landmark opposed in its representation of the Clark and Graham 
groups and continues to oppose by representing the Clark group 
today.

In reaching its decision to disqualify, the district court cited 
the ABA Model Code of Professional Responsibility EC 5-15 
(1980) which states: “A lawyer should never represent in 
litigation multiple clients with differing interests; and there are 
few situations in which he would be justified in representing in 
litigation multiple clients with potentially differing interests.” 9 
Id. (quoted in Jenkins, slip op. (Sept. 11,1989). Rule 1.7 of the 
Missouri Supreme Court Rules of Professional Conduct (1986) 
(found at Missouri Rule 4) prohibits presentation of a client if the 
representation “may be materially limited by the lawyer’s re­
sponsibilities to another client or to a third person, or by the 
lawyer’s own interests.. . . ”

We have, in attorney disqualification issues, stated that the 
district court bears responsibility for supervision of the members

9 The Newton group’s brief points out that the district court for the Western 
District o f Missouri does not follow the ABA Model Code of Professional 
Responsibility, which contains Ethical Consideration 5-15. Under rule 
2(D)(2) o f  the Rules o f the District Court for the Western District o f Missouri 
(1983), the Western District follows whatever rules of professional respon­
sibility the Missouri Supreme Court adopts, and on August 7, 1985, the 
Missouri Supreme court adopted the newer Model Rules o f Professional 
Conduct Missouri Rule 4. On this issue the Model Rules are substantially 
similar to the Model Code. Model Rule 1.7 states: “A lawyer shall not 
represent a client if  the representation o f  that client will be directly adverse to 
another c lien t. . . ” Model Rules o f Professional Conduct Rule 1.7 (1983); 
Missouri Rule 4 (Rule 1.7).



__ A-37 —

of its bar. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602,605 
(8th Cir. 1977) (citingHullv. CelaneseCorp., 513F.2d 568,571 
(2d Cir. 1975)) (subsequent history omitted). See also Central 
Milk Producers Coop. v. Sentry Food Stores, Inc., 573 F.2d 988, 
991-93 (8th Cir. 1978);Blackv. Missouri, 492 F. Supp. 848,859 
(W.D. Mo. 1980). The district court’s action in this case is 
discretionary and will only be upset upon a showing of abuse of 
discretion. Fred Weber, Inc., 566 F.2d at 606. That discretion 
is particularly broad in class actions, and especially when, as in 
this case, there is ongoing litigation. Mendoza v. United States, 
623 F.2d 1338,1346 (9th Cir. 1980) (“class suit imposes special 
responsibilities upon the trial judge” because it carries “inherent 
dangers of conflict”), cert, denied, 450U.S. 912 (1981). Sec Fed. 
R. Civ. P. 23(d) (granting district court authority to make 
“appropriate orders” in class actions).

On behalf of the Newton group, Landmark argues that its 
appearance before the Supreme Court on the tax issue has not and 
will not have any effect on the magnet school plan or full funding 
of the desegregation plan. Landmark argues that neither the 
Clark nor the Graham group has ever contested the implementa­
tion of the desegregation plan, or that it should be fully funded, 
only the propriety of funding via court-imposed taxes. Land­
mark further argues that vague and general inconsistencies 
giving rise to hypothetical conflicts do not justify disqualifica­
tion.

We are unconvinced by these arguments. The district court 
made the following statements about the conflict arising from 
Landmark’s representation:

[The Newton group members’] desire to participate in the 
magnet school program evidences their interest in the 
successful implementation of the desegregation remedy, 
which includes the magnet school program. As a result, 
[the Newton group members] would benefit from the court-



—  A-38 —

ordered income tax surcharge and property tax increase, 
which amici curiae Icelean Clark, et al, previously opposed 
and currently opposes through representation by [the New­
ton group’s] counsel. Thus, it is clear that amici curiae 
Icelean Clark, et al ’ s, interest in reversing the court-ordered 
taxes to fund the desegregation remedy is adverse to [the 
Newton group’s] interest in seeking greater access to mag­
net schools.

Jenkins, slip op. at 10 (Sept. 10, 1989).

When this appeal was argued before use, Landmark had 
represented the Clark group before the Supreme Court on the tax 
issue,10 and was awaiting the Court’s decision. We also take 
judicial notice that Landmark continues to represent the Clark 
group in further litigation not only before the district court, but 
in this court. In representing the Clark group, Landmark’s 
efforts threatened the viability of the desegregation plan by 
challenging the plan’s funding.

Landmark’s representation of the Newton group while still 
counsel of record for the Clark group presented a genuine 
conflict of interest. The district court recognized this potential 
conflict and correctly disqualified Landmark from the Newton 
group’s motion.

Landmark also argues that no conflict of interest arises out of 
its prior representation of the Graham group because the district 
court dismissed the Graham group from this litigation after that 
group prevailed on its only claim. Landmark complains that the 
district court relied on a boilerplate allegation from the memo­
randum in support of the Graham group’s motion to intervene in 
the surcharge refund action and that the alleged conflict is 
irrelevant because those proceedings have ended.

10Missouri v. Jenkins, 110 S. Ct. 1651,1664 n.19 (1990) (decision filed 
April 18,1990).



—  A-39 —

We recognize, as did the district court, that the Graham group 
was no longer a party in the Jenkins litigation when Landmark 
began representing the Newton group. The district court did not 
base its disqualification on a conflict of interest arising out of 
Landmark’s prior representation of the Graham group and its 
present representation of the Newton group. The court only 
quoted statements Landmark made during the previous repre­
sentation because the reasoning therein provided additional 
support for the court’s decision to prevent Landmark’s concur­
rent representation of the Newton and Clark groups. See Jenkins, 
slip op. at 10-11 (Sept. 11,1989).

The district court relied specifically on an allegation in the 
Graham group’s motion for leave to intervene that stated: “All 
of the present parties clearly have interests adverse to those of 
Applicants: Plaintiffs [including the Ronika Newton group 
members], obviously, are the direct beneficiaries of the revenues 
generated by the income tax surcharge.” Id. at 10-11 (citing 
Graham group ’ s memorandum in support of motion to intervene 
at 3) (emphasis added by district court). The district court 
viewed this statement as an admission by Landmark that a 
conflict of interest exists between two parties when one party 
wishes to challenge the legitimacy of a court-ordered remedy 
and another party stands to benefit from the same remedy the first 
party is challenging. We find no error in the district court ‘s 
application of this reasoning to Landmark’s simultaneous repre­
sentation of the Clark and Newton groups.

We also reject Landmark’s attempt to brand an allegation 
essential to the Graham group’s right to intervene as simply 
boilerplate. Such categorization is inappropriate in light of Fed. 
R. Civ. P. 11, which requires an attorney filing a pleading to sign 
the pleading thereby certifying that “to the best of the signer’s 
knowledge, information and belief formed after reasonable 
inquiry it is well grounded in fact.” Id.



—  A-40 —

Landmark argues that to the extent any conflict of interest 
arises by its representation of the Newton group, this conflict is 
ameliorated by the informed consent of that group’s members. 
See Rule 1.7 of the Missouri Supreme Court Rules of Profes­
sional Conduct. The Newton group members are minor school- 
children, and as such, are not capable of giving fully informed 
consent. We observe that a trial court has a special obligation to 
see that minors are properly represented, United States v. Reilly, 
385 F.2d 225, 228 (10th Cir. 1967), because it assumes the 
ultimate responsibility for determinations made on behalf of 
children. Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974); Black v. 
State o f Missouri, 492 F. Supp. 848,869 (W.D. Mo. 1980). Thus, 
by disqualifying Landmark as the Newton group’s counsel, the 
district court properly discharged its special responsibility by 
deciding that conflicts of interest rendered Landmark an inap­
propriate advocate of the Newton group.

We find no abuse of discretion in the district court’s decision 
to disqualify Landmark. In Central Milk, we stated the general 
rule that “we encourage the district courts to strictly enforce the 
Code of Professional Responsibility.” 573 F.2d at 993. With 
that in mind, we affirm the district court’s decision to disqualify.

The Newton group argues that despite disqualification of 
counsel, the district court should nonetheless, have considered 
the group ’ s motion to modify the long-range magnet school plan. 
We believe that the district court correctly denied the motion 
because the Newton group was acting through counsel, and 
counsel had been disqualified. We also point out that counsel 
had not filed a motion to intervene on behalf of the Newton 
group, although it is evident from their representation of other 
amici and interested parties that they were aware of this proce­
dure. Finally, the Newton group concedes that its members have 
all been admitted to magnet schools since the filing of this action, 
Brief for Appellants at 5 n.3, Jenkins v. Newton (8th Cir. 1989) 
(No. 89-263) so it is likely their action would now be moot. See 
Carson v. Pierce, 719 F.2d 913, 933 (8th Cir. 1983).



A-41 —

With regard to modifying the magnet school plan, this court 
affirmed the present version of the program. See Jenkins II, 855 
F.2d at 1301-04. Certainly as time passes, the magnet school 
program will be subject to modification. Indeed, in the order 
now under appeal, the district court considered a motion by the 
Jenkins class to modify admissions policy and the racial quota 
that the district court established. The appellate briefs also 
inform us of other ongoing efforts to modify the magnet school 
racial guideline policy. We are satisfied that our best course at 
this time is to affirm the district court order of September 11, 
1989, and leave further development of this issue for the future.

We affirm the orders of the district court of January 3,1989, 
January 13,1989, April 20, 1989, May 5,1989, May 24, 1989, 
and September 11, 1989.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, 
EIGHTH CIRCUIT.



—  A-42 —

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF MISSOURI 

WESTERN DIVISION

No. 77-0420-CV-W-4

KALIMA JENKINS, et al.,
Plaintiffs,

vs.
STATE OF MISSOURI, et al„

Defendants.

Filed: April 20, 1989 

ORDER

Before the Court is the KCMSD ’ s motion for approval of a site 
for Central High School and for increases and modifications in 
the budgets for building construction and equipment for the 
magnet programs. Plaintiffs support the KCMSD’s motion. The 
State of Missouri opposes the KCMSD’s motion. A hearing 
regarding the KCMSD’s motion was held on March 15-17, 
1989. The KCMSD’s motion will be granted as set forth in this 
order.

Central High School is virtually an all black school located in 
the central corridor area of Kansas City where the residential 
population is substantially all black. Therefore, the desegrega­
tion of Central is a challenge. The Long Range Capital Improve­
ments Plan (“LRCIP”) calls for the discontinued use of the 
existing Central facility to be replaced by a new facility housing 
Computers Unlimited and Classical Greek Magnet programs. 
The KCMSD filed a motion for approval of a site for Central 
High School and for increases and modifications in the budgets 
for building construction and equipment for the magnet pro­



A-43 —

grams. The KCMSD seeks approval of: (1) a site acquisition and 
preparation budget for Central of $7,010,166; (2) an increase in 
the Central construction budget from $ 15,243,050 to $23,474,615; 
and (3) a $1,739,077 increase in the equipment budget for 
Central with realignment of the budget years in which equipment 
expenditures will be made. The DMC voted to take no exception 
to the proposals in the KCMSD’s motion.

The KCMSD seeks an increase in the Central construction 
budget arguing that “the Central High School project has proven 
to be one that requires funding more than 10% in excess of the 
original estimate.” Suggestions in Support of the Motion of the 
KCMSD for Approval of a Site for Central High School and for 
Increases and Modifications in the Budgets for Building Con­
struction and Equipment for the Magnet Programs at 6. The 
KCMSD argues that the original construction budget estimates 
were not based on detailed design drawings, but instead were 
based on approximation of the square footage and particular 
facilities that would be required for the program. The KCMSD 
continues by stating that as the magnet programs were developed 
and preliminary building design began, it became apparent that 
the original construction budget was based on several assump­
tions that were not practical. The KCMSD cites three principal 
reasons why the new construction budget exceeds the original 
construction budget: (1) the original budget assumed that the 
area inside an indoor track could be used for enclosed athletic 
areas such as locker areas and a weight room, while the new 
budget proposed that the enclosed spaces be located elsewhere, 
thereby resulting in an increase in square footage; (2) the original 
budget assumed the ratio of net space to gross space to be 
approximately 85%, while the constraint of working around the 
existing Central facility results in a net-to-gross space ratio of 
approximately 72% for the new budget; and (3) the original 
budget excluded necessary costs for architects’ and engineers’ 
fees, soil surveys and testing, and advertising. The KCMSD



A-44 —

concludes by arguing that the new budget is based on detailed 
and extensive program development and months of analysis by 
architects and educational planners and that the new budget is 
reasonable and necessary to provide an appropriate facility for 
the Central magnet programs.

The State opposes the KCMSD ’ s motion on four grounds: (1) 
the Court has previously approved a Central construction budget 
of $15,243,050; (2) the process employed by the KCMSD in 
designing Central was flawed; (3) the athletic facilities included 
in the Central design are too extensive; and (4) the square footage 
of the Central design is too large.

Although the Court previously approved a $15,243,050 esti­
mated construction budget for Central, Jenkins v. State o f Mis­
souri, Order of November 12,1986, Attachment B at 1, the Court 
recognized that the budget “consists of studied estimates which 
would be adjusted as actual costs are ascertained,” id. at 4, 6. 
Therefore, the Court will entertain the KCMSD’s motion for an 
increase in the Central construction budget.

The State’ architectural expert, Mr. David Pearce, set out six 
steps followed in the design process of an educational facility 
prior to construction: (1) bond issue planning; (2) project 
definition phase in which the educators define the program; (3) 
schematic design phase; (4) design development drawings; (5) 
construction document phase; and (6) bid award phase. (Tr. at 
542-49). Mr. Pearce testified that he was “concerned” about the 
design process of Central and that there was uncertainty “as to 
how to arrive at a program [and] how to take that program through 
the design process.” (Tr. at 556). Mr. Pearce stated that in his 
opinion the Central program was still “in a state of flux. . .  and that 
someone has to decide what the program is so that the building can 
be designed to meet that program.” (Tr. 561). The first step in the 
design process described by Mr. Pearce, bond issue planning, is 
not applicable to the Central design. However, Mr. Arthur



—  A-45 —

Rainwater, the Central High School principal involved exten­
sively from the education side of the Central design process, 
testified previously to Mr. Pearce that the Central design process 
began with Mr. Rainwater and Dr. Simpson designing an educa­
tional facilities program, proceeded through the schematic de­
sign and design development phases and is currently in the 
construction document phase. (Tr. at 15). Thus, it is apparent 
that the KCMSD’s design process for Central has followed the 
exactprocedure the State’s own expert outlined as normally used 
by educators and architects in designing educational facilities. 
The State’s claim that the KCMSD’s design process for Central 
was inappropriate is without merit.

The Long Range Magnet Plan (“LRMP”) states that Central 
“will be equipped with the latest physical education equipment 
. . . [and] will have extensive sport and physical education 
facilities.” LRMP at 80. Specifically, the LRCIP calls for a 
natatorium, fieldhouse, outdoor track, tennis courts, football 
field, soccer field and rugby field. LRCIP, Appendix II at 28. 
The State objects to the extent of the athletic facilities contained 
in the Central design.

The LRCIP calls for a natatorium including “an Olympic size 
pool, with high diving platform and other boards, separate locker 
and shower facilities for males and females” with “sufficient 
seating to accommodate 400 spectators.” LRCIP, Appendix II 
at 28. Several witnesses, including the State’s, interpreted “an 
Olympic size pool” to be a 50 meter pool. (Tr. at 66,502-03,531, 
604). The Central design includes a 50 meter pool. Although he 
agreed that swimming can be taught in a pool less than 50 meters, 
(Tr. at 146), Mr. Rainwater testified that a 50 meter pool would 
be more attractive to suburban, non-minority students, (Tr. at 
73). Plaintiffs’ witnesses consisting of swimming coaches and 
parents of suburban students involved in swimming supported 
Mr. Rainwater’s testimony regarding the attractiveness of a 50 
meter pool. (Tr. at 243, 266-67, 276-77, 435-36, 448-49). Mr.



—  A-46

Bruce Breiner, a witness for the State, also testified that a 50 
meter pool would be a positive factor in attracting non-minority 
students from the suburbs, (Tr. at 523-24), and another witness 
for the State, Mr. John Maher, testified that swimming is attrac­
tive to non-minority students, (Tr. at 488). The 50 meter pool in 
the natatorium is attractive because it provides year-round train­
ing in a long course pool, which is not available in suburban 
Kansas City. (Tr. at 68-69,241-42,264-65,445-46). The Court 
finds that the desegregative attractiveness of the 50 meter pool 
justifies its inclusion in the Central design.

The LRCIP’s “high diving platform” was interpreted to be a 
10 meter diving platform. (Tr. 67, 503). The Central design 
includes a 10 meter diving platform. Mr. Rainwater testified that 
the diving platform would be attractive to suburban students. 
(Tr. at 68-69, 73-74). Mr. Paul Swafford, a diving coach, 
supported Mr. Rainwater’s testimony regarding the attractive­
ness of a 10 meter platform. Plaintiffs’ Exhibit 1 at 18,24. Mr. 
Breiner and Mr. Maher, both witnesses for the State, stated that 
diving would be attractive to non-minority students. (Tr. at 488, 
524). However, Mr. Breiner testified that he would be concerned 
about a 20 meter diving platform from a safety and liability 
standpoint. (Tr. at 522). The Court is not convinced that the 
desegregative attractiveness of the 10 meter diving platform 
outweighs the dangers and costs of construction and liability 
insurance associated with the platform. Therefore, the Court 
will not approve the inclusion of the 10 meter diving platform in 
the Central design to be funded by the KCMSD and the State. If 
the KCMSD desires to include such a platform in the Central 
design, the platform shall be funded 100% by the KCMSD. The 
Court will approve the inclusion of the diving boards in the 
Central design.

The LRCIP calls for a fieldhouse to include “an indoor 
running track, basketball court, spa, athletic training facilities, 
two racketball and handball courts, separate lockers and showers



—  A-47

for males and females, a weight room, and wrestling facilities.” 
LRCIP, Appendix II at 28. Mr. Rainwater interpreted an “indoor 
running track” to be the same as a competition track, not a 
jogging track. (Tr. at 149-50). The design of Central includes a 
one-tenth mile indoor track. A one-tenth mile track is the 
smallest track that would allow a minimum configuration of 
three basketball courts within it. (Tr. at 63). Mr. Rainwater 
testified that an indoor track would be attractive to suburban 
students (Tr. at 64-65). Plaintiffs’ witnesses consisting of track 
coaches and a parent of a suburban student involved in track 
supported Mr. Rainwater’s testimony regarding the attractive­
ness of an indoor track. (Tr. at 244-46, 281-82, 384-85). The 
indoor running track is attractive because it provides year-round 
training with less health hazards. (Tr. at 64,245,282,384). The 
Court finds that the desegregative attractiveness of the one-tenth 
mile indoor track justifies its inclusion in the Central design.

Although the LRCIP does not call for a dedicated gymnastics 
facility for Central, such a facility is included in the Central 
design. Mr. Rainwater testified that the gymnastics facility was 
included in the Central design for two reasons: (1) it would be 
a major attraction to non-minority suburban students; and (2) it 
would be logical to provide gymnastics in a Classical Greek 
program in high school because the LRMP requires all students 
in a Classical Greek program in grades K-8 to participate in 
gymnastics every year. (Tr. at 78-79). Witnesses for both the 
plaintiffs and the State supported Mr. Rainwater’s testimony 
regarding the attractiveness of a dedicated gymnastics facility. 
Plaintiffs’ Exhibit 1 at 19-24; (Tr. 487-88, 523). The dedicated 
gymnastics facility is attractive because it provides year-round 
training with greater safety. (Tr. at 80); Plaintiffs’ Exhibit 1 at 
19-21. The State’s own witness agrees that gymnastics should 
be conducted in a dedicated facility. (Tr. at 487). Although the 
LRCIP does not specifically include gymnastics in the Classical 
Greek Magnet program, Dr. Daniel Levine clearly states that



_  A-48 —

gymnastics were envisioned as a strong part of the program. 
Deposition of Daniel Levine at 25-26,68. The Court finds that 
the desegregative attractiveness of the gymnastics facility justi­
fies its inclusion in the Central design. The LRMP states that the 
Central physical education program “will continue the emphasis 
from the elementary and middle school program.” LRMP at 80. 
Thus, it is consistent with the LRMP to implement a gymnastics 
program at Central because students in grades K-8 are required 
to participate in gymnastics every year. Additionally, the 
desegregative attractiveness of the gymnastics program will be 
retained at the high school level.

The size and scope of the remaining athletic facilities included 
in the Central design are not specifically challenged by the State. 
The Court finds that such facilities are necessary and appropriate 
inclusions in the design of Central.

The State’s expert witness in school administration and edu­
cational facility planning, Mr. Robert Black, testified that the 
Central design providing for 220 square feet per student was 
“intriguing” and that it “startled” him because he “had never had 
the opportunity to design a secondary school facility with square 
footage allowance anywhere close to that.” (Tr. at 624-25). He 
continued by stating that “the square footage that is being 
planned for the building per student is extravagant, the most 
extravagant that I have ever encountered.” (Tr. at 627). How­
ever, on cross-examination Mr. Black testified that of the school 
facilities with which he is familiar with the square footage per 
student, none had a natatorium with a 50 meter pool, an indoor 
track or racquetball courts and none had desegregation as the 
purpose of the program. (Tr. 639-41). As a result of the inclusion 
of such athletic facilities in the Central design, the square footage 
per student will be greater than in a traditional school without 
such facilities. However, the athletic facilities in the Central 
design are necessary to implement the Classical Greek Magnet 
program and to provide desegregative attractiveness. Addition­



A-49 —

ally, the Computers Unlimited and Classical Greek Magnet 
programs academic requirements necessitate more square foot­
age per student than a traditional academic program. In the 
Computers Unlimited program classrooms, die student com­
puter terminals are arranged around the perimeter of the room 
with traditional classroom seating in the middle of the room. (Tr. 
at 50). Although this arrangement requires classrooms to be 
larger, it allows the teacher to see all the computer screens, 
prevents computer terminals from dominating the classrooms, 
allows some students to work at the computers while others are 
working in the traditional classroom, and makes it easier to get 
electricity to the computers. (Tr. at 50-51). Space must also be 
allocated to house a mainframe computer. The Classical Greek 
program requires a 300 seat auditorium that increases the square 
footage per student. However, the auditorium is necessary to the 
program and can also double as a lecture hall. (Tr. at 45). The 
Court is convinced that the square footage per student in the 
Central Design is necessary to implement the Computers Unlim­
ited and Classical Greek Magnet programs and to achieve 
desegregative attractiveness.

Although the Central design is more extensive than any other 
high school in the Kansas City area, such facilities are necessary 
to attract non-minority suburban students to the inner city to 
accomplish the difficult task of desegregating Central High 
School. (Tr. at 89-90). The magnet programs could not be 
successfully implemented in a lesser facility, and therefore, the 
KCMSD seeks to increase the budget, not reduce the Central 
design. (Tr. at 216, 227). Prior to its request to increase the 
budget, the KCMSD deleted from the Central design facilities 
such as a dance room, broadcast booth, outdoor stadium, film 
editing facility, music facilities and art labs. (Tr. at 228-29). 
Although the architects and the educators believed that the 
original budget was inadequate, the Project Management Team 
directed them to try and meet the original budget approved by the 
Court. (Tr. at 302-05). Value engineering was employed in an



—  A-50

attempt to reduce the cost of the facility. (Tr. at 308-09). 
Additionally, the original budget omitted costs of architects ’ and 
engineers’ fees, advertising, soil surveys and testing, furniture 
and construction contingencies. (Tr. at 310-11, 574-77). The 
original budget also assumed a net space to gross space effi­
ciency ratio of 85%, while a 75% ratio is usual for school 
buildings (Tr. at 312). The new budget assumes a 72% ratio for 
Central design. (Tr. at 322-23). Finally, the original budget 
assumed that the area inside the indoor track could be used for 
enclosed athletic areas. (Tr.at314). However, it was determined 
that such a design was inappropriate for an educational facility, 
thereby resulting in an increase of square footage in the new 
budget. (Tr. at 314-15). Mr. Maher, a witness for the State, 
testified that personnel is the key to running a successful magnet 
program and that a good facility and equipment is attractive in 
hiring the best personnel (Tr. at 467,488-89). Mr. Maher even 
admitted that the concept of Central High School is an outstand­
ing model program and that it could be successful to desegregate. 
(Tr. at 501). Therefore, the Court will grant the KCMSD’s 
motion for an increase in the Central High School construction 
budget with the deletion of the 10 meter diving platform.

The KCMSD’s motion also seeks approval of a Central High 
School site preparation and acquisition budget of $7,010,166. 
The LRMP and LRCIP call for Computers Unlimited and 
Classical Greek Magnet programs for 700 students in each 
program in grades 9-12 in a new Central High School facility. 
The existing site consists of 14.5 acres, while an optimum site for 
the magnet programs would consist of 35 acres. Final Site 
Report for Central High School at 1. The site expansion 
alternative selected consists of the existing Central site plus a 
city park bounded by 31st Street, Linwood Boulevard and 
vacated right-of-ways for Bales and Askew Streets and the 
acquisition of 8.4 acres of private property for a total site of 32.2 
acres. Id. at 2 ,3 ,5 . The KCMSD would enter into a cooperation



—  A-51 —

agreement with the City of Kansas City permitting the use of the 
city park land for construction of athletic facilities and requiring 
the KCMSD to obtain land adjacent to the park for relocation of 
park facilities. See id. at 87-98. Projected site acquisition and 
preparation costs are set forth below:

Land acquisition $ 1,933,937
Relocation 369,650
Appraisals 46,500
Title searches and surveys 74,500
Demolition and site preparation 4,392,579 
Land cost contingency 193.000

$ 7,010,166

No party opposed the proposed site acquisition and prepara­
tion budget for Central. The Court has reviewed the Final Site 
Report for Central High School. The Court notes that the site 
selected will result in the displacement of 13 residential homes 
and 17 commercial businesses. Id. at 5. However, the site 
selected results in much less residential displacement than other 
alternatives. Id. The site provides good after-hours supervision. 
Id. Additionally, the site selected results in a substantial cost 
savings over other alternatives, id. at 13, and the Court notes that 
the public expressed strong support for the site alternative 
selected as well as the site layout, id. at 8. The Court will approve 
the site acquisition and preparation budget for Central High 
School as set forth above.

The KCMSD’s motion requests an increase of $1,739,077 in 
the equipment budget for Central and realignment of the budget 
years in which equipment expenditures will be made. The 
equipment budgets in the LRMP were estimates based on pro­
jected needs. After planning the equipment purchases for the 
Central Computers Unlimited program, it was determined that 
an increase of $1,739,077 was needed in the equipment budget 
as follows:



A-52

1987-88 1988-89 1282=20 1220=21 1991-92
LRMP
Funding

$ 500,000 $250,000 $ 200,000 $150,000 $100,000 
Requested 
Funding

$1,517,660 $108,525 $1,065,443 $128,925 $118,524

Mr. Rainwater testified that the increased equipment budget was 
necessary because the original equipment budget was insuffi­
cient to meet the requirements set forth in the Hunter specifica­
tions and the LRMP. (Tr. at 101-04. No party opposed the 
KCMSD’s motion. The KCMSD’s request for an increased 
equipment budget for the Central Computers Unlimited program 
will be granted as set forth above. The KCMSD also requests a 
realignment of the Central Classical Greek program equipment 
budget. No increase in the budget is requested. The requested 
budget realignment is set forth below:

1989-90 1990-91 1991-92

LRMP Funding $ - 0 -  $200,000 $150,000

Requested
Funding $350,000 $ - 0 - $ - 0 -

Mr. Rainwater testified that the budget realignment is necessary 
so the Central facility will be fully equipped when the program 
is ready to move into it, thereby enhancing student recruitment 
(Tr. at 100-01). No party opposed the KCMSD’s request. The 
KCMSD ’ s request for a realignment of the equipment budget for 
the Central Classical Greek program will be granted as set forth 
above.

The costs associated with the Central construction and site 
acquisition and preparation budgets approved previously in this



—  A-53 —

order shall be allocated equally between the State and the 
KCMSD with joint and several liability. The costs associated 
with the Central equipment budgets approved previously in this 
order shall be allocated 75% to the State and 25% to the KCMSD 
with joint and several liability. If the construction, site acquisi­
tion and preparation, or equipment costs exceed the budgets 
approved for Central by more than 10%, the KCMSD is directed 
to seek approval of the Court for the increased expenditure.

Accordingly, it is hereby

ORDERED that the KCMSD’s motion for approval of a site 
for Central High School and for increases and modifications in 
the budgets for building construction and equipment for the 
magnet programs is granted as set forth in this order; and it is 
further

ORDERED that the costs associated with the Central High 
School construction and site acquisition and preparation budgets 
approved in this order shall be allocated equally between the 
State and the KCMSD with joint and several liability; and it is 
further

ORDERED that the costs associated with the Central High 
School equipment budgets approved in this order shall be allo­
cated 75% to the Stte and 25% to the KCMSD with joint and 
several liability; and it is further

ORDERED that the KCMSD shall seek Court approval for 
any construction, site acquisition and preparation, or equipment 
costs for Central High School exceeding the budgets approved in 
this order by more than 10%.

/s/ RUSSELL G. CLARK 
DISTRICT JUDGE 

UNITED STATES 
DISTRICT COURT

Dated: April 20, 1989



—  A-54 —

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF MISSOURI 

WESTERN DIVISION

No. 77-0420-CV-W-4

KALIMA JENKINS, et al.,
Plaintiffs,

vs.
STATE OF MISSOURI, et al.,

Defendants.

Filed: May 5, 1989 

ORDER

Before the Court is the KCMSD’s motion for increased 
funding for CIP asbestos abatement costs. The State of Missouri 
filed a response. The KCMSD’s motion will be granted as set 
forth in this order.

The KCMSD filed a motion for increased funding for CIP 
asbestos abatement costs. The KCMSD seeks an order: (1) 
approving additional funding of $910,224 for asbestos abate­
ment required as part of construction pursuant to the Long Range 
Capital Improvement Plan (“LRCIP”) to be paid 100% by the 
State; (2) establishing guidelines for asbestos abatement for the 
remainder of the LRCIP in conformity with the federal Asbestos 
Hazard and Emergency Response Act of 1986 (“AHERA”); and 
(3) authorizing the KCMSD to proceed with asbestos abatement 
work for all existing schools designated for use as part of the 
LRCIP with asbestos removal being funded equally by the 
KCMSD and the State, the KCMSD states that all asbestos 
abatement work for the LRCIP Phase HI facilities has been 
completed at a cost of $910,224 in excess of the original estimate



—  A-55 —

of $37,885. The KCMSD attributes this budget overrun to 
inspections that did not reveal the full extent of the presence of 
asbestos in the KCMSD facilities and stringent guidelines for 
regulation of asbestos removal and abatement in school build­
ings contained in the AHERA. Pursuant to the allocation of 
funding previously approved by the Court for Phase III of the 
LRCIP, the KCMSD requests that the additional asbestos abate­
ment costs be borne 100% by the State. Additionally, the 
KCMSD seeks Court approval of use of the AHERA regulations 
as guidelines for the asbestos abatement process and to proceed 
with asbestos abatement of all buildings scheduled for use in the 
LRCIP with the cost of such abatement to be shared equally 
between the State and the KCMSD. Finally, in a footnote, the 
KCMSD requests that its share of additional funding for the 
asbestos abatement overruns be provided from the desegrega­
tion program budget because the increased costs for asbestos 
abatement were not included in the $150 million capital im­
provement bonds issue authorized by the Court. See KCMSD 
Motion for Increased Funding for CIP Asbestos Abatement 
Costs at 5 n. 1. The State counters that asbestos abatement is not 
a desegregation expense because the KCMSD would have had to 
remove the asbestos from schools even if the remedial plan did 
not exist. The State argues that even assuming asbestos abate­
ment is a desegregation expense, the Eighth Circuit’s order of 
August 19, 1988, requires the KCMSD to pay 100% of the 
asbestos abatement costs with funds from interest on the $150 
million bond issue. See Jenkins v. State o f Missouri, 855 F.2d 
1295, 1306 (8th Cir. 1988). At the maximum, the State argues 
that the cost of asbestos abatement should be shared equally by 
the State and the KCMSD pursuant to this Court’s order of 
September 15, 1987. The State continues by arguing that if 
asbestos abatement is a desegregation expense, it is a capital 
improvement and, therefore, the KCMSD’s portion of the ex­
pense should be funded from the capital improvements budget. 
The State concludes by arguing that the KCMSD should be



—  A-56 —

ordered to pursue all claims it might have against other entities 
for asbestos abatement costs and all other funding sources for 
these costs. Additionally, the State requests the opportunity to 
conduct its own survey of KCMSD facilities and then file a 
supplemental response. The State’s request for an opportunity 
to conduct a survey of KCMSD facilities and to file a supplemen­
tal response will be denied.

This Court has previously stated that “ [t]he improvement of 
school facilities is an important factor in the overall success of 
this desegregation plan. Specifically, a school facility which 
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.” Jenkins v. State of 
Missouri, 639 F. Supp. 19, 40 (W.D. Mo. 1985) (emphasis 
added). The Eighth Circuit stated that “[t]hese findings of the 
district court are sufficient to support its conclusion that capital 
improvements are necessary for successful desegregation,” 
Jenkins v. State o f Missouri, 807 F.2d 657,6 85 (8th Cir. 1986), 
and that “[e]ven absent the finding that the State contributed to 
causing the decay, the capital improvements would still be 
required both to improve the education available to the victims 
of segregation as well as to attract whites to the schools,” 
Jenkins, 855 F.2d at 1305. Therefore, the Court finds that 
asbestos abatement in the KCMSD schools to be renovated 
pursuant to the LRCIP is a proper desegregation expense and 
will approve additional funding of $910,224 for asbestos abate­
ment.

Asbestos abatement is a capital improvement. This conclu­
sion is supported by the Eighth Circuit’s statement that “the 
capital improvements plan that we affirm today does not cover 
all expenditures that may be necessary between now and the 
1991-92 school year, specifically some $16 million for land 
acquisition and asbestos removal costs." Jenkins, 855 F.2d at 
1306 (emphasis added). Therefore, the KCMSD’s share of the



- A - 5 7  —

asbestos abatement costs shall be funded from the capital im­
provements budget.

The State argues that the Eighth Circuit’s order of August 19, 
1988, requires the KCMSD to pay 100% of the asbestos abate­
ment costs with funds from interest on the $150 million bond 
issue. The Court disagrees. The Eighth Circuit stated:

[I]t is apparent that the capital improvements plan that we 
affirm today does not cover all expenditures that may be 
necessary between now and the 1991-92 school year, 
specifically some $16 million for land acquisition and 
asbestos removal costs. We are informed by the post­
argument filings that KCMSD’s bond issue has been sold, 
and that the net proceeds are in the hands of the district. 
Presumably, these funds will produce substantial interest 
income before all will be expended in the renovation and 
construction program.

Id. Although the Eighth Circuit indicates that interest income 
from the capital improvement bonds will be available to pay 
desegregation expenses, such as land acquisition and asbestos 
removal costs, the Eighth Circuit did not require the KCMSD to 
pay 100% of the asbestos abatement costs with funds from 
interest on the bond issue. The KCMSD argues that the State 
should bear 100% of the additional asbestos abatement costs 
pursuant to this Court’s order of June 16, 1986. However, the 
State counters that the additional asbestos abatement costs 
should be allocated equally between the State and the KCMSD 
pursuant to this Court’s order of September 15, 1987. The 
additional asbestos abatement costs approved in this order shall 
be allocated equally between the State and the KCMSD with 
joint and several liability. Additionally, the Court encourages 
the KCMSD to pursue all claims it might have against other 
entities for asbestos abatement costs and to pursue any other 
funds that might be available for asbestos removal.



—  A-58

The Court will approve the use of the AHERA regulations as 
guidelines for the asbestos abatement process and will also 
approve proceeding with asbestos abatement of all facilities 
scheduled for use under the LRCIP with the cost of abatement to 
be shared equally between the State and the KCMSD with joint 
and and several liability. Accordingly, it is hereby

ORDERED that the KCMSD’s motion for increased funding 
for CXP asbestos abatement costs is granted as set forth in this 
order, and it is further

ORDERED that the costs associated with the asbestos abate­
ment shall be allocated equally between the State and the 
KCMSD with joint and several liability; and it is further

ORDERED that the Court approves the use of the AHERA 
regulations as guidelines for the asbestos abatement process; and 
it is further

ORDERED that the Court approves asbestos abatement for all 
facilities scheduled for use under the LRCIP with the costs of 
abatement to be shared equally between the State and the 
KCMSD with joint and several liability.

/s/RUSSELL G. CLARK 
DISTRICT JUDGE 
UNITED STATES 
DISTRICT COURT

Dated: May 5,1989



A-59 —

APPENDIX E

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF MISSOURI 

WESTERN DIVISION

No. 77-0420-CV-W-4

KALIMA JENKINS, et a l, 
Plaintiffs, 

vs.
STATE OF MISSOURI, et al., 

Defendants.

ORDER
[Filed Nov. 12, 1986]

On June 16, 1986, this Court directed the Kansas City, 
Missouri School District (KCMSD) to submit a proposal for a 
comprehensive magnet school program by August 1,1986. The 
KCMSD filed its proposal on August 13, 1986 along with its 
motion requesting approval and funding of the plan. The Court 
conducted hearings on KCMSD’s motion during the week of 
September 15,1986 and again on October 9 and 10,1986. After 
careful consideration of the evidence presented, the Court will 
grant the motion in part and deny it in part. The Court will order 
implementation of the magnet plan as submitted and will ap­
prove the proposed budget to fund the plan. The Court will 
approve the capital improvements and new construction re­
quested for magnet schools at the cost estimated by the KCMSD. 
The Court will find the State of Missouri and the KCMSD jointly



—  A-60

and severally for approximately $53,000,000 of the estimated 
$143,000,000 budget approved for implementation of the mag­
net school plan. The State of Missouri will be solely liable for 
the remaining costs of the implementation. The Court will find 
the State of Missouri and the KCMSD jointly and severally liable 
for costs of the capital improvements and new construction 
estimated at $53,000,000.

Magnet School Plan

The Court requested the KCMSD to submit a comprehensive 
magnet school proposal for consideration as part of the Court’s 
overall plan to eliminate the vestiges of unlawful segregation in 
the KCMSD and to avoid future constitutional violations. The 
implementation of magnet schools as a tool to desegregate is 
within the equitable powers of a Court in fashioning a remedy in 
a school desegregation case. In its order dated June 14,1985, the 
Court reviewed these equitable powers and will not do so here. 
In response to the Court’s request, the KCMSD submitted a long­
term magnet school plan that was the product of extensive 
research, experience and planning of nationally respected ex­
perts on magnet schools. The plan proposes that every senior 
high school, every middle school, and approximately one-half of 
the elementary schools in the KCMSD will become magnet 
schools by the school year 1991-92. The plan proposes numer­
ous magnet themes ranging from foreign languages to perform­
ing arts to science and math. Each magnet school would, 
however, retain the basic academic curriculum offered in the 
district.

The State of Missouri contends that the proposed magnet plan 
was hastily drafted and that it magnetizes too many schools over 
too short a time period. The State suggests that magnet schools 
would be implemented more gradually, based upon the experi­
ence of earlier schools. While the Court is mindful of the State’s 
position, it is convinced that the students who are presently



—  A-61

enrolled in the KCMSD are entitled to a vindication of past 
denial of constitutional rights now.

The Court finds that the proposed plan would serve the 
objectives of its overall desegregation program. First, the 
carefully chosen magnet themes would provide a greater educa­
tional opportunity to all KCMSD students. The plan magnetizes 
such a large number of schools that every high school and middle 
school student will attend a magnet school. At the elementary 
level, there would be a sufficient number of magnets to permit 
every student desiring to attend a magnet school to do so. The 
Court is opposed to magnetizing only a limited number of 
schools in a district even though such plans have been approved 
by the Eighth Circuit Court of Appeals and the United States 
Supreme Court. The philosophy of a magnet school is to attract 
non-minority students into a school which is predominantly 
minority. It does so by offering a higher quality of education than 
the schools which are being attended by the non-minority stu­
dents. In each school there is a limitation as to the number of 
students who may be enrolled. Thus, for each non-minority 
student who enrolls in the magnet school a minority student, who 
has been the victim of past discrimination, is denied admittance. 
While these plans may achieve a better racial mix in those few 
schools, the victims of racial segregation are denied the educa­
tional opportunity available to only those students enrolled in the 
few magnet schools. This results in a school system of two-tiers 
as it relates to the quality of education. This inequity is avoided 
by the KCMSD magnet school plan.

The Court also finds that the proposed magnet plan would 
generate voluntary student transfers resulting in greater desegre­
gation in the district schools. The suggested magnet themes 
include those which rated high in the Court ordered surveys and 
themes that have been successful in other cities. Therefore, the 
plan would provide both minority and non-minority district 
students with many incentives to leave their neighborhoods and



—  A-62 —

enroll in the magnet schools offering the distinctive themes of 
interest to them. Most importantly, the Court believes that the 
proposed magnet plan is so attractive that it would 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.

The KCMSD proposed a budget of $142,736,025 for imple­
mentation of its comprehensive magnet school plan over a six- 
year period. See Attachment A.[‘| The KCMSD admits that the 
proposed budget consists of studied estimates which would be 
adjusted as actual costs are ascertained. While the resources 
requested are substantial, the constitutional violations commit­
ted were also substantial. The Court has carefully reviewed the 
proposed budget and finds that the estimated costs are reason­
able. The long-term benefit to all KCMSD students of a greater 
educational opportunity in an integrated environment is worthy 
of such an investment.

For the reasons stated, the Court orders the implementation of 
the proposed magnet school plan as a fundamental component of 
its overall desegregation remedy and approves the budget at the 
cost estimated by the KCMSD.

Capital Facilities Program

The KCMSD also requests approval and funding of capital 
improvements to eleven of the district schools that it proposes to 
become magnets in September 1987, and for the construction of 
four new school facilities to be used as magnets beginning 
September 1988. The specific schools and the cost estimates for

[* Attachments A  and B to this opinion are not included in this Appendix. 
Ten copies o f  each attachment have instead been lodged with the Clerk o f this 
Court.]



A-63

the work requested are listed in Attachment B. In response to 
KCMSD’s request, the State of Missouri argues 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. The Court finds that even if the State by its constitu­
tional violations and subsequent failure to affirmatively act to 
remove the vestiges of the dual school system did not directly 
cause the deterioration of the school facilities, it certainly con­
tributed to, if not precipitated, an atmosphere which prevented 
the KCMSD from raising the necessary funds to maintain its 
schools. Furthermore, the capital facilities program requested 
by the KCMSD is a proper remedy through which to remove the 
vestiges of racial segregation, and is needed to attract non­
minority students back to the KCMSD.

The KCMSD proposed a budget of $52,858,301 for the capital 
improvements to the eleven existing schools and the construc­
tion of four new facilities. The budget consists of studied 
estimates which would be adjusted as actual costs are ascer­
tained. After careful consideration of the capital facilities work 
requested, the Court finds that the estimated costs are reason­
able.

For the reasons stated, this Court orders that the requested 
capital improvements be made to the eleven existing schools and 
that four new facilities be construed at the costs estimated by the 
KCMSD. The Court orders that sites be acquired for Central 
High School, New Paseo Middle School, and New West El­
ementary School. The Court approves the rehabilitation of the 
Jewish Community Center or a comparable facility for use as a 
performing arts school in 1987-88 until the New Paseo Middle 
School is constructed.

In its motion filed August 13, 1986, the KCMSD also re­
quested that the State of Missouri be required to fund the 
construction of the New Northeast and New Southeast Elemen­



—  A-64

tary Schools, and site expansions to facilitate magnet themes at 
Pitcher Elementary, Garfield Elementary, Northeast Middle 
School, Central Senior high School, and East Senior High 
School. The Court denies these requests at this time because 
these magnet programs are not scheduled for implementation 
before 1989-90.

Funding

In its order of September 17,1984, this Court found that the 
State of Missouri and the KCMSD had violated the constitu­
tional rights of the plaintiffs. To date, the State of Missouri has 
borne most of the costs of the Court’s overall plan to remove the 
vestiges of unconstitutional segregation from the KCMSD. This 
was based on the Court’s earlier determination that the State had 
the “primary responsibility for insuring that the public education 
systems in the State comport with the United States Constitu­
tion.” Jenkins v. State o f Missouri, 593 F. Supp. 1485, 1506 
(W.D. Mo. 1984). The KCMSD, which includes its citizens, 
must be called to help remedy the conditions for which it is 
partially responsible. Accordingly, the Court orders that the 
KCMSD and the State of Missouri are jointly and severally liable 
for the cost of the capital facilities program estimated at 
$52,858,301. The KCMSD and the State of Missouri are also 
jointly and severally liable for the cost of site acquisitions for 
Central High School, New Paseo Middle School, New West 
Elementary School and the cost of rehabilitation of the Jewish 
Community Center or a comparable facility for use as a perform­
ing arts magnet in 1987-88. These costs were not included in the 
KCMSD’s capital facilities estimate.

It is further ordered that the KCMSD and the State of Missouri 
are jointly and severally liable for the following costs of the 
implementation of the magnet school plan approved by the 
Court:



—  A-65 —

$8,316,272 in 1986-87 
$8,908,406 in 1987-88 
$8,908,406 in 1988-89 
$8,908,406 in 1989-90 
$8,908,406 in 1990-91 
$8,908,406 in 1991-92

The result is that the KCMSD and the State of Missouri are 
jointly and severally liable for $52,858,301 of the $142,736,025 
that the KCMSD estimates is required to implement its magnet 
school plan. The Court further orders that the State of Missouri 
is solely liable for the balance of the costs of implementation, or 
$89,877,724.

All judgment amounts are based upon studied estimates 
provided by the KCMSD and may be adjusted when the actual 
costs of the capital facilities work and the magnet school plan 
ordered by the Court are ascertained. The State of Missouri will 
not be permitted to withhold foundation formula payments or 
state transportation funds due the KCMSD in order to recover 
any contribution for money paid by the State on the joint and 
several judgments.

The Court is aware that the magnet plan will require a more 
extensive program for the transportation of students than pres­
ently exists. The KCMSD has not submitted a budget for the 
actual cost of transportation required by the plan claiming the 
costs cannot be predicted with accuracy until the District gains 
experience in determining from where the students attending the 
particular magnet schools will come. The Court will defer its 
assessment as to the extent of the need for transportation and the 
liability for the cost of same until such time as realistic estimates 
for the needs and cost are available. The KCMSD is ordered to 
provide this Court with estimated costs of the transportation 
required for implementation of the plan in 1987-88 on or before 
August 15,1987.



—  A-66 —

The KCMSD may extinguish its liability for the $52,858,301 
portion of the implementation cost of the magnet school plan by 
passing a $53,000,000 school capital improvement bond issue. 
If this should occur, the State of Missouri would no longer be 
liable for the $52,858,301 in capital facilities work ordered by 
the Court.

The Court also wishes to point out that during the course of this 
lawsuit the Court has not been informed of one affirmative act 
voluntarily taken by the Executive Department of the State of 
Missouri or the Missouri General Assembly to aid a school 
district that is involved in a desegregation program. By making 
approximately $105,000,000 of the judgments joint and several, 
the General Assembly may be encouraged to explore the possi­
bility of enacting legislation that would permit a district involved 
in a desegregation plan more versatility than it presently has to 
raise funds with which to support the program.

For the reasons stated, it is hereby

ORDERED that the KCMSD’s motion for approval of its 
long-range magnet school plan is granted in part and denied in 
part as set forth in this memorandum.

/s/ Russell G. Clark 
RUSSELL G. CLARK 
District Judge 
United States District Court

Dated: November 12,1986



—  A-67 —

APPENDIX F

United States Court of Appeals 
for the Eighth Circuit

No. 90-2314

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; Tufanza A. 

Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by 
his next friend, Maurice Dydell; Terrance Cason, by his next 
friend, Antoria Cason; Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, Denise Hall; 
Dwayne A. Turrentine, by his next friend, Shelia Turrentine; 

Gregory A. Pugh, by his next friend, David Winters, on behalf 
of themselves and all others similarly situated; 

Appellees,
American Federation of Teachers, Local 691, 

Appellee, 
v.

The State of Missouri; Honorable John Ashcroft, Governor of 
the State of Missouri;

Wendell Bailey, Treasurer of the State of Missouri;

Missouri State Board of Education 
Roseann Bentley 

Dr. Dan Blackwell 
Rev. Raymond McCallister, Jr.

Susan D. Finke 
Thomas R. Davis (Presiding)

Cynthia B. Thompson 
Gary M. Cunningham

Members of the Missouri State Board of Education 
Robert E. Bartman, Commissioner of Education of the State

of Missouri,



A-68 —

Appellants,

and

School District of Kansas City, Missouri and Claude C. 
Perkins, Superintendent thereof,

Appellees,

Appeals from the United States District Court 
or the Western District of Missouri.

Submitted: June 25,1991 
Filed: August 14, 1991

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit 
Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Another appeal from the Kansas City, Missouri, School Dis­
trict desegregation remedy is now before us. The State appeals 
from a district court1 order approving a contingency plan that 
modifies the magnet school admissions policy for the 1990-91 
school year. The contingency plan temporarily allows deviation 
from the original Long-Range Magnet School Plan, which 
required that new magnet schools open with a student population 
that is 60% minority and 40% non-minority. The State argues 
that the district court erred or abused its discretion in adopting the 
contingency plan and in rejecting the State’s two alternatives to 
the contingency plan. The State also argues that the contingency 
plan will result in the reestablishment of the racially identifiable

1 The Honorable Russell G. Clark, United States District Judge, Western 
District o f Missouri.



—  A-69 —

schools, and thus, the court cannot require funding of certain 
components of the remedial plan. The State’s arguments lack 
merit, and we affirm the district court order.

On June 14,1985, the district court entered its first order for 
the desegregation of the Kansas City, Missouri, School District. 
Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985), o ff das 
modified, 807 F.2d 657 (8th Cir. 1986) (en banc), cert, denied, 
484 U.S. 816 (1987). An important part of the district court 
remedy included the implementation of a magnet school pro­
gram. Id. at 34-35. The KCMSD prepared and presented its 
Long-Range Magnet School Plan, which the district court ap­
proved on November 12, 1986. Jenkins v. Missouri, No. 77- 
0420-CV-W-4, slip op. at 4 (W.D. Mo. Nov. 12, 1986).

The Long-Range Magnet School Plan provided that all of the 
middle and high schools in the KCMSD become magnet schools 
in the 1990-91 school year. The Plan required that the district’s 
new magnet schools open with a 60% minority and 40% non­
minority student population. The Plan also required that existing 
schools that are converted to magnet schools reduce their minor­
ity percentage by 2% per year until the schools reach the 60%/ 
40% goal.

As the 1990-91 school year approached, it became evident 
that the 60%/40% goal would not be reached and that if the goal 
were adhered to, all minority students could not be placed in the 
middle and high schools for the school year. KCMSD proposed 
a contingency plan providing for a temporary deviation from the 
60%/4Q% racial admissions guidelines. The State objected to 
the KCMSD’s contingency plan, arguing that the plan would 
lead to the reestablishment of racially segregated schools. The 
State suggested that instead of adopting the contingency plan 
proposed by the KCMSD, the KCMSD should either convert the 
failing magnet schools back to traditional schools to accommo­
date students who could not get into magnet schools without



A-70

upsetting the racial guideline, or open traditional schools an­
nexes at the magnet schools for such students. Although the 
district court stated that it viewed the 60%/40% guidelines as a 
steadfast magnet school admissions requirement, it adopted the 
contingency plan as temporarily necessary under the circum­
stances and rejected the alternatives proposed by the State. 
Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 4 (W.D. 
Mo. July 3,1990). The State appeals, arguing that the district 
court erred or abused its discretion in: (1) adopting the
contingency plan because the plan will lead to the reestablish­
ment of racially identifiable schools; (2) failing to accept its 
alternatives to the contingency plan; and (3) continuing to hold 
the State liable for the funding of remedial components in these 
circumstances.

Before we address the merits of the State’s arguments, we note 
that we view the district court order in the context of the court 
crafting and managing a remedy for the failure of both the 
KCMSD and the State to eliminate vestiges of the dual school 
system lingering in the KCMSD. We need not, as we deal with 
each chapter of this ongoing and thoroughly litigated remedy, 
recite all of the details as to what has gone on before, but those 
who are interested may refer to Jenkins v. Missouri, 807 F.2d 
657,682-686 (8th Cir. 1986) (en banc) (Jenkins I), cert, denied, 
484 U.S. 816 (1987), Jenkins v. Missouri, 855 F.2d 1295 (8th 
Cir. 1988) {Jenkins II), o ff din part and rev’ din part, llO S.C t. 
1651 (1990), Jenkins v. Missouri, 890 F.2d 65 (8th Cir. 1989) 
(Jenkins III), and Jenkins v. Missouri, 931 F.2d 470 (8th Cir. 
1991) (Jenkins IV).

L

The State first argues that the district court abused its discre­
tion or otherwise erred in failing to consider, credit, or properly 
weigh evidence that the adoption of the contingency plan would 
lead to the reestablishment of racially identifiable schools.



—  A-71

The district court has broad discretion over the implementa­
tion of its remedial orders. As we stated in Jenkins IV, “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. 931 F.2d at 482 (quoting Booker v. 
Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir. 1978), 
cert, denied, 443 U.S. 915 (1979)). School desegregation plans 
are particularly likely to need adjustment. As the Supreme Court 
has observed in such cases: “ ‘[Ejquity 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. Bradley, 433 U.S. 267, 288 (1977) {Milliken II) (quoting 
Brown v. Board o f Educ., 349 U.S. 294,300 (1955)). The Fifth 
Circuit recently cited with approval a treatise that stated: “ ‘[A] 
court must continually be willing to redraft the order at the 
request of the party who obtained equitable relief in order to 
insure that the decree accomplishes its intended result. ’ ” United 
States v. Lawrence County School Dist., 799 F.2d 1031, 1046 
(5th Cir. 1986) (quoting 11 C. Wright & A. Miller, Federal 
Practice and Procedure, § 2961 at 599 (1973)).

The State argues that the district court erred or abused its 
discretion in rejecting the testimony of its expert witnesses who 
testified about the phenomenon of “tipping.” The experts 
testified that if a minority population at a school reaches a certain 
level, non-minority students will leave and the school will 
become all-minority or nearly all-minority, and that this phe­
nomenon is described as “tipping.”

The State presented affidavits from Joan Solomon, Director of 
Urban Education for the State of Missouri, who had been the 
State’s representative to several committees in the St. Louis 
desegregation case, and Fred Linhardt, Director of Vocational 
Planning and Evaluation for the Department of Elementary and 
Secondary Education for the State of Missouri, also a member of 
one of the committees in the St. Louis case. Solomon testified



—  A-72

in her affidavit that “any increase in minority percentage over 
60% in Kansas City’s magnet schools could well make it 
significantly more difficult to attract non-minority students to 
the schools, and to retain present non-minority students” Like­
wise, Linhardt testified that in his experience it was difficult to 
attract and retain non-minority students in primarily minority 
schools, and that he had witnessed tipping in public vocational 
high schools in St. Louis City and County. He also concluded 
that increasing the minority percentage in the magnet schools 
above 60% “could well make it significantly more difficult” to 
attract and retain non-minority students.

The State argues that its evidence regarding tipping was 
uncontroverted as KCMSD presented no affidavits, declara­
tions, or documents saying that tipping would not be a problem 
in the magnet schools. The State also points to decisions of 
various other courts, as well as this court, recognizing the 
difficulties attendant to desegregation efforts when minority 
percentages in schools reach varying higher levels.2 The district 
court answered the State’s argument by concluding that “[t]he 
State has failed to provide support for its proposition that 
allowing the KCMSD to enroll more than 60% minority students 
in magnet schools would make it more difficult for the KCMSD 
to attract and retain non-minority students.” Slip op. at 5 (July 
3,1990 order).

2Liddellv.BoardofEduc.,469F. Supp. 1304 ,1327(E.D.M o. 1979), re'vd 
on other grounds, Adams v. United States, 620 F.2d 1277 (8th Cir.) (subse­
quent history omitted); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (en 
banc), cert, denied, 469 U.S. 816 (1984); Clark v. Board ofEduc., 705 F.2d 
265 (8th Cir. 1983); Morgan v. Kerrigan, 4 0 1 F. Supp. 216 (D. Mass. 1975), 
off d, 530 F.2d 401 (1st Cir.), cert, denied, White v. Morgan, 426 U.S. 935 
(1976).



A-73 —

The State’s argument on appeal is easily answered. The 
State’s argument is based upon the assumption that its unop­
posed testimony has preclusive weight. In essence, the State’s 
argument is that the district court judge, who has lived with this 
case since 1977, must give credit to the affidavits of two state 
employees with respect to the tipping phenomenon after prob­
lems have developed in the first few years of implementing a 
massive school desegregation plan. The State’s argument ig­
nores the district court’s duty to make factual findings based on 
the evidence before it and, in doing so, the court’s right to reject 
testimony that may be presented by either side.

A number of additional factors support our decision to reject 
the State’s argument. First, at this point, KCMSD has only 
begun its vast efforts to remedy the vestiges of the dual system 
of education in the school district. Second, despite repeated 
urging by this court, as of yet, the parties have only been able to 
achieve a voluntary interdistrict transfer plan involving 10 
KCMSD students attending an elementary school in Missouri 
City. It is evident that utilizing a voluntary interdistrict transfer 
plan would ease the task of increasing the non-minority enroll­
ment percentage in the KCMSD. Third, although the progress to 
date has been excruciatingly slow, the record demonstrates that 
progress has occurred, and the State’s assumption that the plan 
is a failure is premature, to say the least. The KCMSD enroll­
ment figures indicate that in the 1987-88 school year, KCMSD 
placed approximately 140 new non-minority students in the 
magnet schools; in 1988-89,300; in 1989-90,517; and in 1990- 
91, 654. Moreover, many schools with a high percentage of 
minority students have, in fact, been successful in attracting non­
minority students. For example, Central Middle School, which 
was nearly 100% minority, now has a 24% non-minority enroll­
ment. In addition, Pinkerton Latin Grammar Elementary, Knotts 
Environmental Science Elementary, and Faxon Elementary have 
made similar progress in increasing their non-minority student 
population.



—  A-74

Under these circumstances, we cannot conclude that the 
district court erred or abused its discretion in adopting the 
contingency plan.

n.
The State next argues that the district court erred in failing to 

accept either of its two alternatives to the contingency plan and 
in concluding that the State had failed to present a viable solution 
to the potential problems of student placement for the 1990-91 
school year. Specifically, the State suggested that instead of 
modifying the 60%/40% guidelines, the KCMSD should either 
“de-magnetize” certain magnet schools that had been unsuccess­
ful in attracting non-minority students and open these as tradi­
tional schools to students not admitted to magnet schools, or 
create traditional school annexes at the existing magnet schools 
for the temporary use by students whom the KCMSD could not 
serve consistently with the 60%/40% guidelines. Along similar 
lines, the State argues that if the KCMSD is allowed to abandon 
the goal of numerical integration, then the court should not 
require the State or the KCMSD’s patrons to fund remedial 
components that have as their sole or principal justification the 
attraction of non-minority students from the suburban and pri­
vate schools.

The district court rejected the State’s alternatives because it 
concluded that either suggestion would re-create totally segre­
gated schools in the KCMSD. Slip op. at 5 (July 3, 1990). It 
stated: “The State’s assumption that some magnet schools are 
failing is premature, as the [Long Range Magnet Plan] has not 
been fully implemented.” Id.

The district court did not err in rejecting the State’s alterna­
tives and continuing to hold the State responsible for funding of 
the remedial plan. The most obvious shortcoming of the State’s 
arguments is that the arguments are directed solely to the



—  A-75 —

KCMSD’s progress in attracting non-minority students to the 
magnet schools and do not consider any of the district court’s 
findings concerning the past segregation in the KCMSD or the 
causes and effects of that segregation. In Jenkins II, we pointed 
to district court findings that segregation has caused a system- 
wide reduction in student achievement in the KCMSD schools, 
855 F.2d at 1300 (citing Jenkins 639 F. Supp. at 24), that 
segregation in KCMSD had caused the departure of whites in the 
system to private and suburban schools, id. (citing slip op. at 1- 
2 (August 26,1986)), and that “ ‘[KCMSD’s] physical facilities 
have literally rotted’ ”, Id. (quoting Jenkins v. Missouri, 672 F. 
Supp. 400, 411 (W.D. Mo. 1987)). We affirmed the remedial 
orders entered by the district court stating: “The foundation of 
the plan adopted was the idea that improving 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. 
We affirmed the magnet school program as an integral part of the 
remedy with the goals of improving the education provided to all 
KCMSD students and attracting non-minority students back to 
the KCMSD schools. Id. at 1301-02. We further concluded that 
a substantial capital improvement plan would be required to 
achieve these goals. Id. at 1304-05.

As we have made abundantly clear, the purpose of the remedy 
in this litigation is at least two-fold: First, to remedy the 
deprivation of education opportunities to children in the KCMSD, 
and second, to attract non-minority students to the school dis­
trict. As we reiterated in Jenkins II, the long term goal of the 
district court’s effort was:

to make available to all KCMSD students educational 
opportunities equal to or greater than those presently avail­
able in the average Kansas City, Missouri, metropolitan 
suburban school district. In achieving this goal the victims 
o f unconstitutional segregation will be restored to the



A-76

position they would have occupied absent such conduct, 
while establishing an environment designed to maintain 
and attract non-minority enrollment.

855 F.2d at 1301-02 (citing slip op. at 17 (June 16, 1986)) 
(emphasis added in 855 F.2d at 1301-1302).

The State’s arguments simply ignore the goals of the district 
court remedial orders that have been amply discussed and 
approved by this court. Improving educational opportunities 
and attempting to attract non-minority students, whether from 
private schools or schools outside the district, present difficult 
management tasks. That effort is now in mid-stream. Under 
these circumstances, we are particularly mindful of the difficulty 
faced by the district court judge. We see no abuse of discretion 
in the orders entered in this case, no legal error, and insofar as the 
findings are based upon findings of fact, no findings of fact that 
are clearly erroneous.

The corollary to the State’s argument is that if the integration 
goals are not achieved, KCMSD should simply reestablish what 
the district court termed “the recreation of totally segregated 
schools in the KCMSD.” Slip op. at 5 (July 3,1990). The district 
court did not err when it concluded that the State’s alternatives 
would re-create segregated schools. The State’s argument does 
not otherwise deserve further response.

It must be remembered that the district court issued its magnet 
school order on November 12, 1986. This court decided the 
appeal of that order and others on August 19,1988. Jenkins II, 
855 F.2d at 1296. Implementation of the magnet school orders 
has been slow. Part of the reason for the slow progress is the 
enormity of the task of remedying constitutional wrongs that had 
a tremendous impact in the Kansas City area. Implementation of 
the plan is requiring a considerable expenditure of funds to build 
new facilities and to develop plans for ambitious educational 
programs. It must also be said that in all likelihood, part of the



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reason for the slow pace is the fact that the State or a group of 
citizens has vigorously challenged and appealed every step and 
turn in implementing the desegregation plan. Exclusive of 
disputes on attorneys’ fees, this is the twentieth appeal since our 
first order approving the intradistrict desegregation plan. At the 
time the parties argued this case, four other cases were argued, 
and we have ascertained since argument that four more appeals 
have been filed. It is to be expected that an issue of this kind will, 
after the first litigation, produce other contested issues. On the 
other hand, there is a unique irony in this situation in which one 
of the parties substantially contributing to the protracted litiga­
tion presents an argument that because there has not been 
immediate success, the plan should be scrapped.

The beneficiaries of the desegregation plan are the children of 
the Kansas City, Missouri, School District. The programs being 
developed in the district are proving to be of interest to an 
increasingly larger group of non-minority students who had been 
enrolled in suburban districts and private schools and must be 
given a chance to work.

The Jenkins group has argued that the issues in this appeal are 
moot. Without extended discussion, we conclude that the issues 
are capable of repetition. Indeed, the records of this court reflect 
that the State has filed another appeal from a similar order with 
respecttothe 1991-92 school year. This satisfies us that we need 
not stay our hand because of mootness.

Finally, a brief has also been filed for a group of amici curiae 
arguing that they may be precluded from attending the KCMSD 
school of their choice in the future as a result of the magnet 
school admissions racial quota policy. It is evident from the 
contingency plan adopted that efforts are being made to ensure 
that minority school children will be able to attend magnet 
schools. Indeed, that is the very intent of the contingency plan. 
We, therefore, reject the arguments put forth by amici.



—  A-78

We affirm the district court’s order.

A true copy.

Attest: /s/ Michael E. Gans

CLERK, U. S. COURT OF APPEALS, 
EIGHTH CIRCUIT.