Jenkins v. Missouri Brief in Support of Motion for Summary Affirmance

    UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

KALIMA JENKINS, et al.,
Appellants,

v s .

STATE OF MISSOURI, et al., 
Appellees.

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Nos. 85-1765WM 
85-1949WM 
85-1974WM

BRIEF IN SUPPORT OF MOTION FOR SUMMARY 
AFFIRMANCE OR IN THE ALTERNATIVE TO STRIKE 
FACTUAL STATEMENTS AND FACTUAL ARGUMENTS IN 

PLAINTIFFS' AND KCMSD1S BRIEFS AND THEIR JOINT ADDENDUM
Preliminary Statement

These districts predicted this appeal would present 
many troublesome problems. The letter of movants' liaison 
counsel to the Court, a copy of which is attached as Exhibit A, 
describes some of the recent concerns of these districts.
However, as stated in that letter, these districts do not expect 
to win this appeal based upon technical compliance with briefing 
requirements. On the other hand, now that plaintiffs and KCMSD 
have filed briefs which preserved appellate issues that were 
resolved by nonappealed factual determinations, they believe a 
summary affirmance is proper and required.

The only issues applicable to these districts that were 
preserved by plaintiffs are their issues 1 and 2, br. p. (xii), 
which are as follows:

1. Whether the District Court erred in absolving the 
suburban school districts of responsibility for 
participating in Missouri's pre-1954 interdistrict 
system of dual schools and of any duty to take part in 
remedying the effects on their children of that



violation and of subsequent violations by the Kansas 
City District and housing officials.

2. Whether the District Court erred in requiring 
plaintiffs to overcome a "no continuing effects" 
presumption arising solely because of the passage of 
time and in excluding most, then disaggregating the 
rest of plaintiffs' extensive evidence of continuing 
effects.

KCMSD preserved, br. p. x, the following two
issues:

1. Whether the District Court erred in rejecting 
interdistrict desegregation relief and dismissing the 
suburban school district defendants by requiring proof 
of independent constitutional violations by each 
suburban school district participating in and affected 
by the State's interdistrict constitutional violations.
2. Whether the District Court erred in failing to 
recognize that the State of Missouri's creation, 
maintenance, and failure to dismantle its pre-1954 
metropolitan-wide racially dual school system requires 
interdistrict relief.

The above issues purport to be legal issues. Indeed, 
neither Table of Authorities cites Rule 52(a) Fed. R. Civ. P., 
the "clearly erroneous" rule. Nor does either brief cite the 
recent Supreme Court decision of Anderson v. City of Bessemer 
City, North Carolina, 105 S. Ct. 1504 (1985) which prescribed the 
"plausible" standard for appellate review of clearly erroneous 
issues.

Whether these legal issues are viable and not moot 
depends upon whether the underlying facts framing those issues 
actually exist. The source for the factual predicate must, of 
course, be this case. The question becomes whether the facts 
here actually present the proffered legal issues. Oftentimes,

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there is a dispute over the facts and the parties preserve 
factual questions on appeal. However, neither plaintiffs nor 
KCMSD purported to present or preserve any factual issues.
Indeed, they studiously and obviously avoided any reference to 
Rule 52(a). Accordingly, to determine whether the facts present 
the proffered legal issues, this Court must accept the 
nonappealed findings of fact made by Judge Clark in his June 5, 
1984, Findings.

The above-stated legal issues stand or fall on the 
factual assumptions that Missouri had an "interdistrict system" 
or "metropolitan-wide" system of dual schools and that factually 
there is a current substantial "effect."

In his June 5, 1984, Findings, Judge Clark posed the
following understanding of plaintiffs' theory:1

. . . first, that the SSDs, as agents of the state, 
were guilty of operating a regional system of 
segregated schools that centered on and impacted Kansas 
City with blacks and made the suburbs whiter before 
1954; second, that the SSDs failed in their affirmative 
duty to eliminate the vestiges of the dual school 
system; and third, that the SSDs are liable for the 
effects of actions by the KCMSD and other defendants 
and can therefore be included in an interdistrict 
remedy. . . . Findings, p. 5.

These theories are, of course, those embraced in the above-quoted 
legal issues appellants want to present to this Court. Judge 
Clark's Findings, however, rejected those theories, " . . .  when 
considered in light of the evidence . . . "  Id. p. 5. Thus,

1 Judge Clark's June 5, 1984, Findings dismissed these districts. 
They were not parties to subsequent proceedings or orders that 
occurred in respect to the intradistrict claims. None of the 
orders or findings entered after their dismissal purported to, 
nor could they, adjudicate any of their duties or liabilities. 
Thus, the factual support for any appeal against these districts 
must stem only from the June 5, 1984, Findings.

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assuming, arguendo, the legal theories were proper (they are not) 
the theories were not factually proven to Judge Clark.

More specifically, Judge Clark found, as a fact, that 
no "regional black interdistrict system" caused blacks to leave 
these districts. Id. p. 15. Judge Clark found, as fact, that, 
"The manner in which blacks in any defendant district were 
educated was solely a matter of local control and within the 
discretion of the local school district" Id. Judge Clark found, 
as a fact, that, " . . .  no vestiges or significant effects of 
the pre-1954 dual school system remain in any SSD . . . "  Id. p. 
18. Indeed, Judge Clark found, as a fact, that, " . . .  
transferring blacks to the KCMSD under the prior segregated 
school system is not a cause of the present racial distribution 
of the population in the three-county area" Id. p. 18. Judge 
Clark found, as a fact, that there was no "significant effect 
. . . in any of the SSD's" Id. Finally, Judge Clark rejected 
factually any "effects" at all on the interdistrict issues. Id. 
p. 34-42. Nor did Judge Clark "exclude" or fail to consider all 
factual issues proffered to him, " . . .  considering all the 
exhibits which were not admitted . . . , the Court still
concludes there is no credible evidence . . . "  Id. p. 3. See 
also p. 2.

Plaintiffs and KCMSD cannot, as they knew or should 
have known, preserve only legal issues and yet base those issues 
upon their own factual version which was rejected by the trier of 
fact. In their zeal to present only their factual version they 
effectively not only concealed the nonappealed findings from the

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Court but they also succeeded in concealing from themselves the 
reality that they lost and preserved no factual basis for their 
legal issues.

Argument
I. A Party Cannot Forego Factual Issues On Appeal And Still 

Present Alleged Legal Errors Based Upon Rejected Factual 
Arguments

It is hornbook appellate law that appellate courts do 
not search the record, particularly extensive ones, for 
unassigned points of error. It is also hornbook appellate law 
that the only issues preserved are those set forth in the 
statement of issues in an appellants' initial brief.

Another fundamental precept of appellate law is that 
appellate courts are not trial courts. Appellate courts abhor 
making factual determinations because they do not see the 
witnesses or the trial's ebb and flow. Here, another reason not 
to retry the case on appeal is the length of time it would take 
to do so —  probably two or more years to perform a really 
effective retrial.

Thus, this Court's task is to apply the facts to the 
legal issues presented. The question of what facts to apply is 
answered, in our system, by the requirement that this Court must 
accept the district court's findings unless they are shown to be 
clearly erroneous —  the standard is -whether any "plausible" view 
supports the findings. Here, no need exists to determine facts 
at all because no appellate issue was preserved that attacked 
Judge Clark's Findings.

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Judge Clark, as a good trial judge, assumed the 
validity of plaintiffs' and KCMSD's legal theories and made fact 
findings applicable to those theories so that a full record would 
be before this Court. Assuming a legal standard most favorable 
to plaintiffs, the factual finding was made that no current 
substantial interdistrict effect existed by virtue of any 
violations by any entity. Thus, although inapposite in any 
event, the cases regarding an erroneous legal standard supposedly 
tainting facts are simply not applicable. Judge Clark applied 
the facts he found to the above-noted theories. Plaintiffs and 
KCMSD failed to prove the necessary facts to sustain their own 
erroneous legal theories. Judge Clark found the facts adverse to 
those necessary factual predicates. As a matter of fact, no 
regional or metropolitan system was found to have existed. He 
also found no current substantial or significant interdistrict 
effects of any such system, if it ever existed, or any such 
current substantial effects by a violation of any other party.
No appeal was made from these now conclusive factual findings. 
Thus, the legal issues presented by the briefs are moot and must 
be deemed waived. Summary affirmance is not only proper, it is 
required. Nothing but factually moot issues were presented to 
this Court. Plaintiffs' legal theories also present an erroneous 
view of the law.

It can be noted that an amicus attempts to preserve a 
clearly erroneous issue with respect to the factual issues 
presumed by appellants' legal issues. That only highlights the 
failure of either plaintiffs or KCMSD to appeal the facts. From

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a review of the amici briefs it looks as if various selected 
issues were parceled out so that many extra briefing pages could 
be used. However, an amicus, who is not a party, cannot preserve 
nonappealed issues for parties. That too is hornbook appellate 
law. See Preservation Coalition, Inc, v. Pierce, 667 F.2d 851 
(9th Cir. 1982). Thus, the amicus brief and its vain attempt to 
preserve a clearly erroneous issue do nothing for KCMSD and 
plaintiffs. These districts made no reply to the irrelevant and 
immaterial issues presented in this amicus brief.

No one could really dispute that KCMSD and plaintiffs 
claim to present only legal issues.2 They do not cite or list as 
authority Rule 52a or the important and controlling new clearly 
erroneous case, Bessemer, supra. Further, plaintiffs admit that 
they " . . .  generally confine their arguments to the district 
court's legal errors." That amorphous statement, which preserves 
no specified error, is not made until the 86th footnote in their 
brief. They there argue, without specification, that the fact 
decisions were based on an erroneous legal view (which, as noted 
above, is inaccurate even if the point had validity and it does 
not in this case) and upon a supposed "verbatim" adoption of 
proposed facts. The findings were not "verbatim" but even if 
they were, Bessemer requires application of its plausible 
standard. This obscure footnote reference is no more than an

2 Another infirmity in both briefs' factual statements and legal 
arguments is that they continually refer to alleged facts or 
order language that are not related to the June 5, 1984, Order. 
This Court, of course, cannot hold later adduced evidence or 
holdings from subsequent intradistrict orders against these 
districts who were then nonparties.

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invitation to search a massive record for error. It preserved no 
issue.

It should also be noted that at least some of 
plaintiffs' counsel have been involved in another appeal in which 
a similar problem developed. See Goldsboro City Board of 
Education v. Wayne County Board of Education, 745 F.2d 324, 327 
n.3 (4th Cir. 1984).3 Here, there is no reason to justify or 
countenance a studied and calculated practice of those appellants 
ignoring adverse findings. These districts also expect to 
prevail on the merits but appellants' briefing tactics preserved 
no viable, non-mooted issue.
II. KCMSD Is A Codefendant Who Filed No Cross-Claim Against 

These Districts; Therefore, It Has No Standing To Appeal The 
June 5, 1984, Order That Dismissed These Districts.

KCMSD was a codefendant on the interdistrict issue. It 
filed no cross-claim against these districts. Therefore, it has 
no standing to appeal the June 5, 1984, Order dismissing these 
districts. KCMSD's arguments thus are immaterial. It does now 
seek realignment but it failed below to cross-claim.
III. It Is An Unfair And Prejudicial Appellate Practice For An 

Appellant To Forego Appealing Adverse Fact Determinations 
And Yet Present A Statement Of Facts And Arguments And 
Joint Addendum Based Solely Upon The View Of The Evidence 
Rejected By The Trial Count; Striking The Facts And Joint 
Addendum and Substituting Therefor The Facts Found By Judge 
Clark Is A Proper Remedy.

3 Interestingly, plaintiffs in Goldsboro also used the same 
tactic of arguing the trial court applied a wrong legal standard 
and that the findings were infected because of their belief the 
suburban area in a previous de jure area had not acted to 
decrease the proportion of blacks in the City. The Court held, 
on p. 328, that the " . . .  district court did not misconstrue 
the law." Neither did Judge Clark here and, as noted, he even 
assumed application of plaintiffs' erroneous standards and still 
found no factual current substantial interdistrict effect.

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Plaintiffs' and KCMSD's "facts" are neither fair nor 
accurate. For a fair record distillation, see defendants' March 
21, 1984, proposed findings. And, the actual and now binding 
facts are set forth in Judge Clark's June 5, 1984, Findings. The 
statement of facts and factual arguments in plaintiffs' and 
KCMSD's briefs and their joint addendum should be stricken as 
appellants have waived any factual arguments. This Court must 
accept Judge Clark's findings for application to the legal issues 
presented.

A complicated appeal is difficult enough to process and 
brief without either party deviating from acceptable norms of 
briefing strategy. Where, as here, a party's ability to respond 
fairly is compromised, then remedial action is appropriate not 
only for the concerned litigants but also to insure that future 
litigants, and the Court, will not again be similarly burdened.

There is an extensive record in this appeal. Judge 
Clark issued detailed and record supported findings. Although no 
appeal was taken from those findings, the statement of facts and 
factual arguments in plaintiffs' and KCMSD's briefs and their 
joint addendum present only their view of the evidence. No 
findings are set forth. None are specifically identified as 
being clearly erroneous or without plausible record support. No 
fair treatment or identification of the position of adversaries 
is articulated. In short, pretrial briefs have been filed. The 
briefs are contradicted by the conclusive Findings and these 
districts could rebut effectively every point made or attempted

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to be remade by plaintiffs and KCMSD just as happened at trial 
during plaintiffs' own case.

In essence, if the Court retries this case de novo on 
appeal, it will have to search the record. Yet, because of page 
limitations and the absence of any specific error of fact being 
pointed out, these districts could not provide a detailed 
response or even know how to file an effective response brief. 
Therefore, these districts reject the entire fact statements and 
factual arguments and joint addendum filed by KCMSD and 
plaintiffs. We refer the Court to the nonappealed findings of 
Judge Clark and request the opportunity to file a detailed 
response before the Court would ever rely upon any statement or 
factual point proffered by KCMSD or plaintiffs.

Their briefing tactic runs afoul of the federal rules 
of appellate procedure and the teaching of Markowitz & Co. v. 
Toledo Metropolitan Housing Authority, 608 F.2d 699, 704 (6th 
Cir. 1979). For the reasons expressed in that case and in this 
brief, the plaintiffs' and KCMSD's statements of fact, factual 
arguments and joint addendum should be stricken. Judge Clark's 
nonappealed June 5, 1984, Findings should be deemed the law of 
the case for this appeal against these districts. Summary 
affirmance is required.

STINSON, MAG & FIZZELL 

By
George E. Feldmiller 
Charles W. German 
Kirk T. May 
Daniel D. Crabtree 
2100 CharterBank Center 
P. O. Box 19251

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Kansas City, Missouri 64141 
816-842-8600

Liaison Counsel for the Missouri 
School District Defendants (Except 
KCMSD) and Counsel for the North 
Kansas City School District, School 
District of the City of 
Independence, Grandview 
Consolidated School District C-4, 
Lee's Summit Reorganized School 
District R-7 and Fort Osage 
Reorganized School District R-l and 
their superintendents

COCHRAN, TYREE, OSWALD, BARTON & 
MCDONALD

Robert McDonald 
Julius Oswald 
P. O. Box 550
Blue Springfs, Missouri 64015 
816-836-8000

Counsel for Blue Springs 
Reorganized School District and its 
superintendent
DONALD C. EARNSHAW
23 East 3rd Street
Lee's Summit, Missouri 64063
816-524-3428
Counsel for Grandview Consolidated 
School District C-4 and Lee's 
Summit R-7 and their 
superintendents
LAW OFFICES OF TIMOTHY BOSLER
Timothy Bosler
Tom Capps
800 Westowne VII
152 Highway & 219 Highway
Liberty, Missouri 64068
816-781-8171Counsel for the School District of 
the City of Liberty and its 
superintendent
HUMPHREY & FARRINGTON 
Norman Humphrey, Jr.
Kenneth B. McClain 
123 West Kansas Street 
Independence, Missouri 64050 
816-836-5050
Counsel for the School District of 
the City of Independence and Fort

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Osage School District R-l and their 
superintendents
KURANER, SCHWEGLER, HUMPHREY, LOWE 
& FISHMAN
Jeffrey L. Lucas
500 Commerce Bank Bldg.
922 Walnut
Kansas City, Missouri 64106 
816-221-3443

Counsel for Hickman Mills 
Consolidated School District C-l 
and its superintendent
POPHAM, CONWAY, SWEENEY, FREMONT & 
BUNDSCHU

Hollis H. Hanover 
1300 Commerce Bank Bldg.
922 Walnut
Kansas City, Missouri 64106 
816-221-2288

Counsel for Center School District 
and its superintendent
SHOOK, HARDY & BACON 
Gene E. Voigts 
Gary L. Whittier 
1101 Walnut
Mercantile Tower - 20th FI.
Kansas City, Missouri 64106 
816-474-6550

Counsel for Raytown Consolidated 
School District C-2 and its 
superintendent
SWANSON, MIDGLEY, GANGWERE, CLARKE 
& KITCHIN
James H. McLarney 
Lawrence M. Maher 
1500 Commerce Bank Bldg.
922 Walnut
Kansas City, Missouri 64106 
816-842-9692

Counsel for Park Hill Reorganized 
School District R-4 and its 
superintendent

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WITHERS, BRANT & HOWARD 
Conn Withers 
Commercial Bank Bldg.
17 East Kansas Street 
Liberty, Missouri 64068 
816-781-4788

Counsel for the North Kansas City 
School District and its 
superintendent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that appropriate service of the
foregoing was made on all counsel of record this day of
September, 1985.

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S t i n s o n , M a g  & F i z z e l l
9 2 0  M ain  S t r e e t

T h e  Ma s t  B uilding  
7 5 0 0  We s t  llOLb S t r e e t  

O v e r l a n d  Pa r k , Ka n s a s  6 6 2 1 0 -2 3 2 9  
(913) 4 6 1 -0 6 0 0

P. O. Box 19251
K a n s a s  C ity , M i s s o u r i  64141-2251 

(816) 8 4 2 - 8 6 0 0

T e l e x : A 2-AI23
T e l e x  A n s w e r b a c k : S tin so n  m ag  KSC 

T e l e c o p ie r : (816) 4 7 4 -6 8 0 2

3 7 4 5  In t e r F irst  T wo 
Da l l a s . T e x a s  75270-2171  

(214) 741 -2 2 0 0

September 23, 1985

Mr. Robert St. Vrain, Clerk 
United States Court of Appeals 

for the Eighth Circuit 
United States Court and Custom House 

Room 511
St. Louis, Missouri 63101

Re: No. 85-1765WM, No. 85-1949WM and
85-1974WM; Kalima Jenkins, et al., 
Appellants v. State of Missouri, et 
al., Appellees

Dear Mr. St. Vrain:
I am writing in my capacity as liaison counsel for the 

defendant school districts (except KCMSD) in the above appeals.
Undoubtedly, the Court and staff are aware of the 

briefing problems in these appeals. The plaintiffs-appellants 
have now filed a printed brief to replace the over length one 
rejected by the Court. The "new" brief is essentially the same 
as the rejected brief except it is printed and contains 137 
footnotes rather than 138. A single two-page footnote was 
dropped. The new print size and margins do not appear to comply 
with the applicable rules. Over 50% of the words and 40% of the 
lines are in hard to read footnotes.

We have difficulty comprehending how this printed brief 
is a good-faith response to the Court's rejection of the first 
brief. The only thing accomplished was plaintiffs-appellants 
unnecessarily incurring printing expense. Our desire for a fair 
and concise brief did not mean we wanted simply to increase 
expenditures for any party. Indeed, we hate to incur printing 
expense for our briefs just to present more bulk to the Court.
In regard to this "new" printed brief, the Court and the parties 
must still attempt to digest the same amount of excess material 
in a harder to read form. We assume the Court will do its best 
to plod through this "new" brief. We do not expect or desire to. 
win this appeal based on whether plaintiffs-appellants comply 
with Court rules on page limitations or technical printing

EXHIBIT A



Mr. Robert St. Vrain
September 23, 1985
Page 2

requirements. We assume, however, there is a mutuality in the 
application of rules. Moreover, we do not want to lose because 
we follow the rules on behalf of our clients. It is that concern 
which leads us to ask you to bring our strong objections to 
plaintiffs' brief and some other matters of concern to the 
Court's attention.

Not only do these districts not have adequate pages to 
respond to what, in essence, is a 174 page brief (plaintiffs' new 
64 page printed brief, KCMSD's 50 pages and the obvious 
delegation of argument to the 3 amici at 20 pages each), but this 
"new" brief is in our judgment, quite unfair in its style. 
Illustratively, none of the statements of fact set forth the 
nonappealed from actual findings by Judge Clark.

This situation brings to mind the teaching of the Court 
of Appeals for the Sixth Circuit in Markowitz & Co. v. Toledo 
Metropolitan Housing Authority, 608 F.2d 699, 704 (6th Cir.
1979). In dealing with a situation which was not as grievous as 
here, that Court stated:

This is an appropriate point to pause to 
mention a problem with this case with which 
an appellate court should never have to 
grapple: attempting to sift fact from
fiction in the brief . . .  In a case such as 
this, where issues of historical fact are 
bitterly contested, the parties are free to 
explain their version of events to the Court, 
as long as it is clear that it is just their 
version, and as long as both the findings of 
the trial court and their opponent's position 
are also accurately and fairly presented. We 
remind counsel that this Court is bound by 
factual determinations of the district court, 
absent a finding of clear error, and those 
determinations must always be the starting 
place in any statement of facts for appellate 
review. Furthermore, we repeat our frequent 
admonition that the statement of facts is not 
a vehicle for argument." [emphasis added]
If a cursory review of these briefs were possible, one 

could readily observe they do not accurately or fairly present 
the trial court's findings. These districts are faced with the 
impossible task of responding in 50 pages to what are, in 
reality, pretrial briefs that " . . .  ignore the record evidence 
in order to present the most favorable version of events 
possible," Id. Indeed, our problem is worse because no appellate 
issue attacking any finding is preserved by plaintiffs or KCMSD.



Mr. Robert St. Vrain
September 23, 1985
Page 3

It is not surprising, therefore, that not one finding of fact is 
identified as being clearly erroneous. All that is presented is 
a handpicked selection of now irrelevant factual argument (given 
the failure to appeal from the facts as found) which also contain 
many inaccuracies, half-truths, opinions and hyperbole problems. 
The Sixth Circuit expressed the concern that an appellate Court,
" . . . should not be required to pore over an extensive record 
as an alternative to relying on counsel's representations," Id.

Not only has the Court been given such a task but our 
clients have not been given a fair or accurate presentation of 
the facts as found by Judge Clark. Had that occurred, the 
briefing and review process could have focused on any actual 
issue that could survive a motion for summary affirmance. 
Furthermore, the briefs do not specify the evidence applicable 
for each appellee. For example, these districts were dismissed 
in April, 1984. Yet, the briefs use, without specification, 
later adduced evidence against these districts. An unfair 
weaving and borrowing of facts or language from orders and 
records that apply to different parties is presented. That 
practice required us to expend substantial effort trying to 
review unfamiliar and irrelevant evidence that was never admitted 
while these districts were parties. Nor is the Court apprised of 
the record applicable to these districts.

To have responded fully to such a briefing tactic would 
have required literally a retrial of a trial that consumed over 6 
months, over 140 witnesses and over 50,000 total pages of 
transcript, depositions and exhibits. The proposed findings 
submitted by these defendants were 500 pages. These districts 
offer the Court a transcript summary of several hundred pages to 
aid in a record review if the case is going to be retried in the 
appellate court.

We realize that the Court, and our public-institution 
clients, have probably been dealt a fait accompli in these 
briefing tactics. These districts responded the best they could 
with their limited pages and time. We will proceed on the 
assumption the Court will take this objection along with the 
districts' motion for summary affirmance or with the rest of the 
case. No future litigant or judicial panel should be required to 
deal with or respond to pretrial briefs and evidentiary arguments 
which ignore the facts found by the trial judge in 105 pages of 
findings. It is difficult to deal intellectually with the actual 
issues in this context.

We know the Court will not retry the case on the 
appellate level. But, if there is any question concerning 
factual issues, we request the opportunity to submit a response 
to any such concern or to file our own responsive version of all



Mr. Robert St. Vrain
September 23, 1985
Page 4

facts supportive of our clients. If the dismissal of these 
defendants is affirmed, we suggest that an award of attorney fees 
to respond to our adversaries' briefs may be in order.

It can be parenthetically noted that the NAACP amicus 
brief cites and relies upon a recently.published article by one 
of plaintiffs'-appellants' appellate lawyers on the supposed 
liability of our clients in this case. Putting aside whether the 
publication should have occurred, we do not believe the article 
should be proffered or cited as a balanced discussion. Certainly, 
it should not be used as a vehicle for extra briefing of issues 
that may or may not have been preserved before this Court.
Citation to the article amounts to reliance on a brief which is 
beyond the page limits the Court attempted to prescribe for this 
appeal. This particular amicus brief should also not be considered 
for the additional reason it attempts to present a clearly 
erroneous issue not preserved by any other appellant. That 
practice is not permitted. See Preservation Coalition, Inc, v. 
Pierce, 667 F.2d 851 (9th Cir. 1982).

Finally, we note that the lawyers' committee and the 
Kansas City SCLC amicus brief cites as supporting authority a 
recent article by Judge Heaney. Because this appeal is going to be 
heard en banc, we regret very much that our adversaries rely upon 
that article. It evidences their belief that Judge Heaney's 
extrajudicial views may control. We recognize and respect Judge 
Heaney's great interest in this area of the law. We also fully 
believe and expect that Judge Heaney will separate whatever his 
personal views, as expressed in the article, may be and will give 
the proper deference to the district court's findings from which no 
appellate issue was preserved. Nor do we believe that the article 
was intended to be used as authority in support of propositions 
subject to review by the Court on which that judge sits. 
Nevertheless, our clients, who share Judge Heaney's goal of equal 
opportunity, are legitimately concerned that our adversaries relied 
on this article. Thus, we suggest that this amicus brief be 
stricken. Our clients would prefer not to be in the position of 
seemingly attacking any Judge's personal or extrajudicial views. 
From our clients' perspective, Judge Heaney and the clients should 
not have been placed in this position. We regret having to mention 
this issue but we do not think the extrajudicial views of a judge 
should be relied upon in a case of this nature.

Enclosed herewith for filing are the required number of 
consolidated briefs and individual briefs for each district.



Mr. Robert St. Vrain
September 23, 1985
Page 5

The individual briefs, by the way, strive to deal with individual 
points for each district. They were not suited to the task of 
trying to ameliorate our concerns expressed in regard to our 
opposition's briefing tactics. Also enclosed for filing are the 
required copies of a motion for summary affirmance or in the 
alternative to strike plaintiffs' and KCMSD's statement of facts 
and supportive suggestions.

Yours very truly
STINSON, MAG & FIZZELL
By

GEF:sm
cc: Michael Gans

All Counsel Of Record