Davis v. Mobile County Board of School Commissioners Motion for Leave to Supplement Petition for Writ of Certiorari

Public Court Documents
September 18, 1970

Davis v. Mobile County Board of School Commissioners Motion for Leave to Supplement Petition for Writ of Certiorari preview

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  • Brief Collection, LDF Court Filings. Jenkins v. Missouri Brief of State Appellees/Cross-Appellants, 1985. e00db5bf-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/acdfa15a-ba77-43ea-b2b7-159f6d3f5e3e/jenkins-v-missouri-brief-of-state-appelleescross-appellants. Accessed August 19, 2025.

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    In The

Imtpfc Glourt of AppmlB
For the E ighth Circuit

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM

Kalima Jenkins, et a l ,
Appellants and Cross-Appellees,

v.
State of Missouri, et al.,

Appellees and Cross-Appellants.

Appeals from  the U nited S ta tes D istrict Court fo r the 
W estern D istrict of M issouri, W estern Division, 

Honorable Russell G. C lark, Chief Judge

BRIEF OF STATE APPELLEES CROSS-APPELLANTS

W illiam Webster 
A ttorney General 

Terry Allen 
Deputy A ttorney General 

Bruce Farmer 
Georganne L. Wheeler 

A ssistant A ttorneys General 
Supreme Court Building 
Jefferson City, MO 85102 
(814) 751-3321

H. Bartow Farr, III 
J oel I. Klein 
Richard G. Taranto 

Oner , Klein & B’arr 
2550 M Street, N.W. 
W ashington, D.C. 20037 
(202) 775-0184 

Counsel fo r  S ta te  Appellees/  
Cross-Appellants

W il s o n  - E p e s  P r in t in g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n . D .C .  2 0 0 0 1



SUMMARY AND REQ U EST FOR ORAL ARGUMENT

T his desegregation  case involves both in te rd is tr ic t  and 
in tra d is tr ic t  claim s, m ade by both the p lain tiffs  and the  
K ansas C ity  M issouri School D is tr ic t  (K CM SD ) a g a in s t 
various S ta te  agencies and  officials, v arious federa l agen­
cies, and  v a rious school d is tr ic ts  in  the  K ansas  C ity 
m etropo litan  a rea . A f te r  y e a rs  of discovery and  m onths 
of tr ia l, th e  d is tr ic t  cou rt rejected  the  in te rd is tr ic t  claim s, 
m ak ing  extensive findings abou t th e  lack of any  signifi­
ca n t c u rre n t seg rega tive  effect re su ltin g  fro m  th e  alleged 
d isc rim in a to ry  acts. T he co u rt accepted the  in tra d is tr ic t  
claim s, how ever, find ing  th a t  vestiges of the  fo rm e r dual 
school system  rem ained  w ith in  the  KCM SD itself. In  the  
c o u rt’s view, th is  find ing  ju stified  a  rem edy fo r  all s tu ­
den ts and  all schools th ro u g h o u t th e  KCM SD.

The co u rt’s rejection  of th e  in te rd is tr ic t  claim s is cor­
rec t u n d e r  the  govern ing  law  established by M illiken  v. 
B radley, 418 U.S. 717 (1974 ), and  is overw helm ingly 
supported  by the  c o u rt’s findings. T he c o u rt’s decision to  
im pose a  d istric t-w ide  rem edy, by co n tra s t, is unsu p ­
po rted  by adequate  findings. In  add ition , the  rem edy 
adopted by the  d is tr ic t  cou rt is  u n ju stified  in  a num ber 
of p a r t ic u la r  respects.

The S ta te  defendan ts  request the  sam e am oun t of tim e 
fo r  o ral a rg u m e n t as th a t  g ran ted  to  the  KCM SD or 
p lain tiffs. T he S ta te  defendan ts believe th a t  40 m inu tes 
is  a  sufficient period.

(i)



Page

SUMMARY AND REQUEST FOR ORAL ARGU­
M ENT ................................ ................ ..................................... i

TABLE OF AU THO RITIES ................. ........ ...... ........ . v

PRELIM IN A RY  STA TEM EN T.......................................   xi

STATEM ENT OF TH E ISSUES _________ ____ ______ xii

STATEM ENT OF TH E C A SE .............................. ...........  1

INTRODUCTION AND SUMMARY OF ARGU­
M ENT ................................................................. ....... ........ .......  7

ARGUM ENT ............................................................ ............ . 8

I. The D istrict Court Properly  Found A gainst 
Plaintiffs and the KCMSD on Their Claims of 
In te rd is tric t L iab ility_________    8

A. The Law Governing In te rd is tric t Claims Re­
quires Proof of Intentionally D iscrim inatory 
Acts and A Significant C urren t Condition of 
Segregation Resulting From  Those A c ts____ 8

B. The D istrict Court Correctly Found T hat
School Boundaries In  the  Kansas City M etro­
politan A rea W ere Not Set or M aintained 
W ith a D iscrim inatory Purpose .......... ..........  12

C. The D istrict Court Correctly Found th a t  No
Racially D iscrim inatory Act of the S tate 
Was a Substantial Cause of Significant Cur­
ren t In te rd is tric t Segregation _______ _____  14

1. Pre-1954 S tate School Policies ................ 15
2. Post-1954 School-Related A c tio n s______ 22
3. Housing Actions ........ ................................. . 26

D. The D istrict Court’s Findings Dispose of the
In te rd istric t Claims A gainst the State De­
fendants .......       29

TABLE OF CONTENTS

(iii)



IV

II. The D istric t Court Adopted an Im proper Rem­
edy fo r the In trad is tric t Violation ......................... 40

A. The D istrict Court, in Developing a Remedy
for Segregation W ithin the KCMSD, Failed 
to L im it the  Remedy to  Redress of the  Con­
ditions Caused by T hat S eg rega tion ........... 40
1. The F inding of Segregation in the 90+  %

Black Schools __________ ________ ___ __  42
2. The F inding of Indigenous Inferiority.... 47

B. The D istrict Court Committed Several E r ­
ro rs W ith Regard to P articu la r Program s.... 53

1. The V oluntary In te rd is tric t Program .... 54
2. The General Addition of T eachers ...........  55
3. The School G rant P ro g ra m _________ __  55
4. The Buildings Plan ........................ ..............  56
5. The Allocation of Funding Between the

S tate  and the  KCMSD _________________  5g

CONCLUSION .................................................... ......... 63

TABLE OF CONTENTS—Continued
Page



V

TABLE OF AUTHORITIES
C A SE S  Page

Adam s  v. United States, 620 F.2d 1277 (8th C ir.),
cert, denied, 449 U.S. 826 (1980)..........................  15, 43

Alabama  V. Pugh, 438 U.S. 781 (1978)__________ xii, 60
Alexander  V. Youngstown Board o f Education,

675 F.2d 787 (6th Cir. 1982)..... .......... ......... .........  42
Anderson  v. C ity o f Bessemer City, N.C., 105

S.Ct. 1504 (1985) .... ........... ..................... ................ 30
A rm our  v. N ix, No. 16,708 (N.D.Ga. 1979), aff’d,

446 U.S. 930 (1 9 8 0 )______________________ __  14, 32
Arm strong  v. Board of School Directors of the 

City of M ilwaukee, 616 F.2d 305 (7th Cir.
1980) ____ ___ __________ ____________ ____ __ _ 42-43

A rth u r  v. N yquist, 712 F.2d 809 (2d Cir. 1983),
cert, denied, 104 S.Ct. 1907 (1984)___ ________  52

Barrows V. Jackson, 346 U.S. 249 (1953)________  27
B erry  v. School D istrict of the C ity of Benton

Harbor, 564 F. Supp. 617 (W.D.Mich. 1983).... 13
B erry  v. School D istrict of the C ity of Benton  

Harbor, 698 F.2d 813 (6th C ir.), cert, denied,
464 U.S. 892 (1 9 8 3 )___________ ___ _________ 13, 57

Bradley  V. M illiken, 484 F.2d 215 (6th Cir. 1973),
rev’d, 418 U.S. 717 (1974)..... ..................... ..........  11

Bradley  v. School Board of Richmond, 462 F.2d
1058 (4th Cir. 1972), aff’d, 412 U.S. 92 (1973).. 14

Brennan  v. A rm strong, 433 U.S. 672 (1977)____ 42
Brown  v. Board of Education, 349 U.S. 483

(1954) ...............       passim
Columbus Board of Education  V. Penick, 443 U.S.

449 (1979) ..........    ......9 ,30,41
Cunningham  v. Grayson, 541 F.2d 538 (6th Cir.

1976), cert, denied, 429 U.S. 1074 (1977)........ 14
Davis v. E ast Baton Rouge Parish School Board,

721 F.2d 1425 (5th Cir. 1983)_________ __ ____  44
D ayton Board of Education  v. Brinkm an, 433 U.S.

406 (1 9 7 7 )__________   9 ,41 ,57
Edelman  v. Jordan, 415 U.S. 651 (1974)_____xiii, 60, 61
Evans  v. Buchanan, 393 F. Supp. 428 (D.Del.),

aff’d mem., 423 U.S. 963 (1 9 7 5 )________ _____  11, 13
Evans  v. Buchanan, 582 F.2d 750 (3d Cir. 1978),

cert, denied, 446 U.S. 923 (1980).............. .............  13



VI

TABLE OF AUTHORITIES—Continued
Page

E x  Parte Young, 209 U.S. 123 (1908)................ ......  60
Ford M otor Company v. Dept, o f Treasury, 323

U.S. 459 (1945)...................................... .................. 60
General Building Contractors A ss ’n  v. Pennsyl­

vania, 458 U.S. 375 (1982) ........... ..... ................. 41
Goldsboro City Board of Education  v. Wayne 

County Board of Education, 745 F.2d 324 (4th
Cir. 1984) ...... .............................................. ........... .13, 30-32

Great N orthern L ife  Insurance Co. v. Read, 322 
U.S. 47 (1944) .... ................... ...... .................. ......... . 60

Haney  v. County Board o f Education, 410 F.2d
920 (8th Cir. 1969) ........................... ......... ........ ,........  13, 36

Hills v. Gautreaux, 425 U.S. 284 (1 9 7 6 )................. passim
Hoots v. Commonwealth of Pennsylvania, 672 

F.2d 1107 (3rd  C ir.), cert, denied, 459 U.S.
824 (1982) ________ ______ ______ ____________ 13

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

Keyes v. School D istrict No. 1, 413 U.S. 189
(1973) ........... ................................................... .............

Lee V. Lee County Board of Education, 639 F.2d
1243 (5th Cir. 1981).................... ................... ........

Liddell v. Missouri, 731 F.2d 1294 (8th C ir.), cert.
denied, 105 S.Ct. 82 (1984) ..................... ........

M iener v. M issouri, 673 F.2d 969 (8th C ir.), cert.
denied, 459 U.S. 909 (1982) _____ ____________

M illiken  v. Bradley, 418 U.S. 717 (1974)_________
M illiken  v. Bradley, 433 U.S. 267 (1977) .
Monell v. D epartm ent of Social Services, 436 U S

658 (1978) ________________ __ _______ ____ _
Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972) 
Morgan v. Kerrigan, 530 F.2d 401 (1st C ir.), cert.

denied, 426 U.S. 935 (1976)
M orrilton School D istrict No. 32 v. United States, 

606 F.2d 222 (8th Cir. 1979), cert, denied, 444
U.S. 1071 (1 9 8 0 )............. .................

M ount H ealthy City School D istrict v. Doyle 429
U.S. 274 (1 9 7 7 ).... ............................................’

Newburg Area Council, Inc. v. Board o f Education  
of Jefferson County, 510 F.2d 1358 (6th Cir. 
1974), cert, denied, 421 U.S. 931 (1975).............

passim

passim

11, 60
passim
passim

22
27

52

13, 39 

11

11,13



V ll

Oliver v. Kalamazoo Board of Education, 640 F.2d
782 (6th Cir. 1 9 8 0 )....................................................  52, 53

Parent Association of A ndrew  Jackson H.S. V.
Am back, 598 F.2d 705 (2d Cir. 1979) .................  57

Pasadena City Board of Education  V. Spangler,
427 U.S. 424 (1 9 7 6 )................... ..............................  44

Penick  V. Columbus Board of Education, 519 F.
Supp. 925 (S.D. Ohio), aff’d, 663 F.2d 24 (6th 
Cir. 1981), cert, denied, 455 U.S. 1018 (1982).... 59

Pennhurst S ta te School and Hospital v. Halder-
man, 104 S.Ct. 900 (1984)........................................  60

Plaquemines Parish School Board v. United
States, 415 F.2d 817 (5th Cir. 1969).... ................ 53

Pullm an-Standard  V. Sw int, 456 U.S. 273 (1982).. 31
Reed  v. Rhodes, 500 F. Supp. 404 (N.D. Ohio 

1980), aff’d, 662 F.2d 1219 (6th Cir. 1981),
cert, denied, 455 U.S. 1018 (1982)..................... 59

School D istrict of Kansas City, M issouri v. State
of Missouri, 460 F. Supp. 421 (W.D.Mo. 1978)... 2, 38

School D istrict of Omaha v. United States, 433
U.S. 667 (1977) ..______ _________ _________ _ 41-42

Shelley v. Kraemer, 334 U.S. 1 (1948)...................... 27
Swann  v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971)............. ..............................passim
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), 

cert, granted, 440 U.S. 906 (1979), cert, dis­
missed, 444 U.S. 437 (1980).................................... 18

Tasby v. Estes, 412 F. Supp. 1185 (N.D.Tex.
1975), aff’d on in terdistrict issues, 572 F.2d 
1010 (5th Cir. 1978), cert, granted, 440 U.S.
906 (1979), cert, dismissed, 444 U.S. 437
(1980) .... ...... ..................... ...........................................  14,32

Taylor v. Ouachita Parish School Board, 648 F.2d
959 (5th Cir. 1981) ........... ........ ................... ............  14

United States  v. Board of Education of Valdosta, 
Georgia, 576 F.2d 37 (5th Cir. 1978), cert, de­
nied, 439 U.S. 1007 (1978).................... ...................  43

TABLE OF AUTHORITIES—Continued
Page



V ll l

United S ta tes  v. Board o f School Commissioners 
of the City o f Indianapolis, 456 F. Supp. 183 
(S.D.Ind. 1978), aff’d in  relevant part, 637 F.2d 
1101 (7th Cir. 1980), cert, denied, 449 U.S. 838
(1980) ....... ............. ............................. ........................  11,13

United States  v. Jefferson County Board o f E du­
cation, 380 F.2d 385 (5th C ir.), cert, denied,
389 U.S. 840 (1967 )........... ................. .....................  53

United States  V. Missouri, 515 F.2d 1365 (8th
C ir.), cert, denied, 423 U.S. 951 (1975)_______ 13

United States  v. Texas, 447 F.2d 441 (5th Cir.
1971), cert, denied, 404 U.S. 1016 (1972)...........  53

United States  v. Texas, 321 F. Supp. 1043 (E.D.
Tex. 1970), aff’d in  relevant part, 447 F.2d 441 
(5th Cir. 1971), cert, denied, 404 U.S. 1016
(1972) .................................................. .......................... 13

W ashington  v. Davis, 426 U.S. 229 (1976) ................8, 9, 41
Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949)..............  27

S T A T U T E S
42U.S.C. § 1982 (1982)_________ _____ __________  53-54
Act of July  6, 1957, § 1, 1957 Mo. Laws 542-53.... 16
Mo. Const, a rt. 3, § 40 (2 0 )______________________  10-11
Mo. Const, a rt. IX, § 1 (a) (1 9 4 5 )............................ . 15
1865 Mo. Laws 177, § 20 ..___ ____________________  17
1869 Mo. Laws 8 6   _________________  17
1870 Mo. Laws 149, § 45, codified a t Mo. Rev. Stat.

Mo. a rt. 1, ch. 150, § 7052 ______ ______ _____ _ 16-17
1874 Mo. Laws 163-64, § 7 3 ............... ...... ................... 16-17
1887 Mo. Laws 264, codified a t  Mo. Rev. Stat.

§§ 8003 & 8004 (1889) .............................................  16-17
1893 Mo. Laws 247 ___ _____ __ ________________  16-17
1909 Mo. Laws 790, § 42, codified a t Mo. Rev.

Stat. a rt. 2, ch. 102, §§ 11145 & 11146 (1919).. 16-17 
1929 Mo. Laws 382-83, codified a t  Mo. Rev. Stat.

ch. 72, § 10350 (1939) _____ ______ ____ ____  i 6_i7
1946 Mo. Laws 1699-1700______________  16-17
Mo. Rev. Stat. §§ 162.222, 162.431, 162.441 (1978

& Supp. 1983)... ....... ..... ....... ...................................... 10

TABLE OF AUTHORITIES—Continued
Page



IX

Mo. Rev. Stat. § 165.563 (1943)........    23
Mo. Rev. Stat. § 99.040 (1978) ........    26
Mo. Rev. Stat. § 99.300 (1978)..................................   26
Mo. Rev. Stat. §§ 215.100, 213.105, 213.120 (1978).. 53-54

O TH ER A U T H O R IT IE S
Fed. R. Civ. P. 52 ( e ) ............. ..................................... . 30
Executive Order No. 11063........ ...................................  53-54
Effective Schools: A  Sum m ary of Research (1983).. 57-58 
M urnane, “In terp reting  the Evidence on School

Effectiveness,” 83 Harv. Educ. Rev. 19 (1981).. 57-58

TABLE OF AUTHORITIES—Continued
Page





PRELIMINARY STATEMENT

1. The decisions appealed from by the State cross­
appellants were rendered by Chief Judge Russell G. Clark 
of the United States District Court for the Western Dis­
trict of Missouri, Western Division, on June 1, 1981 
(unreported) ; August 12, 1981 (unreported) ; September 
17, 1984 (593 F. Supp. 1485) ; and June 14, 1985 (un­
reported) .

2. The jurisdiction of the District Court was based on 
28 U.S.C. §§ 1331, 1343 (1982).

3. The jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. § 1291 (1982). The State cross-appellants 
filed a timely notice of appeal on August 1, 1985.

(xi)



XU
STATEMENT OF THE ISSUES

1. Whether the district court properly rejected the 
claims of interdistrict liability against the State defend­
ants, where there was no racial gerrymandering and no 
significant current segregative effects of any discrimina­
tory acts.

Milliken V. Bradley, 418 U.S. 717 (1974).
Lee v. Lee County Board of Education, 639 F.2d 

1243 (5th Cir. 1981).
2. Whether the district court acted within its equitable 

discretion in declining to include the proposed elaborate 
housing program in its school desegregation remedy.

3. Whether the Kansas City Missouri School District 
should be realigned as a plaintiff after it has been found 
liable for a constitutional violation.

4. Whether the district court erred in ordering exten­
sive remedial programs for every school in the KCMSD, 
without adequate findings regarding the extent of injury 
caused by the intradistrict violation.

Milliken v. Bradley, 433 U.S. 263 (1977).
Hills v. Gautreaux, 425 U.S. 284 (1976).

5. Whether the Eleventh Amendment requires dismis­
sal of the State and the State Board of Education as 
parties to this case.

Alabama v. Pugh, 438 U.S. 781 (1978).
6. Whether the district court erred in the following 

respects in its remedial order: (a) in requiring the State 
to continue making full Foundation Formula payments 
to the KCMSD, a constitutional violator, for students who 
are attending school elsewhere under a transfer program; 
(b) in ordering the addition of numerous teachers to the 
KCMSD staff throughout the district, over and above 
those needed to bring the KCMSD to AAA status; (c) 
in awarding block grants to every school in the KCMSD, 
without any designation of the money for programs 
tailored to injury from segregation; (d) in ordering a 
$37 million general capital improvements plan, without



xiii

any finding that current facility problems were related to 
segregation; and (e) in allocating more than 77 percent 
of the overall costs of the remedial plan to the State and 
only 23 percent to the KCMSD, though both were found 
jointly liable for the intradistrict violation.

Edelman V. Jordan, 415 U.S. 651 (1974).
Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984), 

cert, denied, 105 S.Ct. 82 (1984).



I n  T he

States GJmtrt itf Appeal#
F or th e  E ig h th  Circuit

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM

Kalima J e n k in s , et al.,
Appellants and Cross-Appellees,

v.
State of Missouri, et al,

Appellees and Cross-Appellants.

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

Honorable Russell G. Clark, Chief Judge

BRIEF OF STATE APPELLEES/CROSS-APPELLANTS

STATEMENT OF THE CASE

This lawsuit involves claims regarding the racial com­
position of the schools in the Kansas City metropolitan 
area. The suit was originally filed in 1977 by the KCMSD 
through its superintendent and its school board, and by 
students in the district. The named defendants included 
the State of Missouri, the Missouri State Board of Edu­
cation and various Missouri officials, the State of Kansas, 
the Kansas State Board of Education and various Kan­
sas officials, several Kansas school districts in the Kansas 
City metropolitan area, twelve Missouri school districts 
in the area, the United States Department of Health, 
Education, and Welfare (HEW), the United States De­
partment of Housing and Urban Development (HUD), 
and the United States Department of Transportation 
(DOT). The lawsuit alleged unconstitutional interdis­



2

trict segregation caused by acts of the defendants and 
sought a sweeping remedy involving reassignment of 
students across district and state lines.

In October 1978, the district court dismissed all of the 
Kansas defendants. School District of Kansas City, Mis­
souri v. State of Missouri, 460 F. Supp. 421 (W.D.Mo. 
1978). The court also realigned the KCMSD as a de­
fendant, a ruling that is before this Court in the appeal 
brought by the KCMSD (No. 85-1949WM). Thereafter, 
in May 1979, students in the KCMSD and in several of 
the defendant Missouri school districts filed an amended 
complaint.1 All of the non-Kansas defendants originally 
named were named again as defendants, and the KCMSD 
was added as a new defendant.

The amended complaint, at least as construed by the 
district court, made two distinct claims: it realleged the 
interdistrict violation alleged in the original complaint; 
and it alleged an intradistrict violation, committed by 
the KCMSD and by the State defendants, within the 
KCMSD. In July 1979, the KCMSD asserted a similarly 
dual cross-claim against the State defendants2; it sought 
indemnification for its intradistrict liability, and it made 
the same allegation of an interdistrict violation as that 
made by the plaintiffs.

Before trial began in 1983, the United States Depart­
ment of Transportation and one of the Missouri school 
districts were dismissed by stipulation, leaving the 
KCMSD, eleven suburban school districts (SSDs), the

1 The named plaintiffs were replaced at various times during the 
litigation. In February 1985, the court certified a class of all 
present and future KCMSD students. The named plaintiffs and the 
class are the appellants in No. 85-1765WM and the cross-appellees in 
No. 85-1974WM.

2 The State defendants were the State of Missouri, the Governor 
of Missouri, the Missouri State Board of Education and its mem­
bers, and the Commissioner of Education of the State of Missouri. 
In March 1985, the Treasurer of the State of Missouri was added 
as a defendant necessary for relief. All of the State defendants are 
cross-appellants in No. 85-1974WM and appellees in No. 85-1765WM 
and No. 85-1949WM.



3

State defendants, HUD, and HEW (later dismissed) as 
defendants. The district court refused to grant the State 
of Missouri’s motion to dismiss the State on Eleventh 
Amendment grounds. See Order of June 1, 1981 at 
13-14; Order of August 12, 1981 at 5-6. The court also 
refused to grant, this time upholding an Eleventh Amend­
ment defense, a 1980 request by the KCMSD that the 
State be ordered to contribute 50 percent of the future 
costs of the intradistrict desegregation plan adopted by 
the KCMSD in 1977 (Plan 6C) under agreement with 
the Office of Civil Rights of HEW. See Order of June 1, 
1981 at 17-31.

After hearing months of evidence by the plaintiffs and 
KCMSD, and before hearing evidence in response, the 
district court dismissed all of the suburban school dis­
tricts from the case. Order of April 2, 1984. As de­
scribed more fully below, the court found, in accordance 
with Milliken v. Bradley, 418 U.S. 717 (1974) [Milliken 
I], that school districts in Missouri were autonomous and 
that none of the districts had committed any interdistrict 
violation. Further, in extensive and detailed fact find­
ings, the court found that none of the discriminatory 
governmental actions advanced by plaintiffs or the 
KCMSD to support their interdistrict claims had any 
significant current interdistrict segregative effect. See 
generally June 5 Order (June 5, 1984, opinion setting 
out findings and conclusions underlying April 2, 1984, 
dismissal).

The findings of fact in the June 5 Order addressed 
each of the theories for finding interdistrict liability. 
First, the court held that there had been no manipulation 
of district boundaries for racial reasons, finding a “ [l]ack 
of proof of discriminatory intent in the establishment or 
changing of any school district boundary lines.” Id. at 6. 
Second, the court held that the pre-1954 State segrega­
tion policy had no significant current interdistrict effects, 
finding plaintiffs’ proof on this point to be “weak, specu­
lative, and in any event de minim[i]s.” Id. at 12. Third, 
the court determined that the pre-1948 State enforcement



4

of racially restrictive covenants had no significant cur­
rent interdistrict effects. Id. at 39.8 Taking these matters 
together, the district court concluded that “ [a]t most, 
plaintiffs’ evidence is de minim[i]s and is therefore 
insufficient” to support relief involving the SSDs, Id. 
at 98.

The court then heard further evidence and, on Septem­
ber 17, 1984, issued its final liability ruling. Jenkins v. 
State of Missouri, 593 F. Supp. 1485 (W.D.Mo. 1984) 
[“Jenkins”]. In that order, the court first rejected plain­
tiffs’ arguments that certain specific pre- and post-1954 
actions by the KCMSD and various state agencies were 
an adequate basis for finding liability. Thus, the court 
denied relief based on practices of the KCMSD such as 
allowing liberal transfers and undertaking “intact bus­
ing.” Furthermore, it found no basis for liability in 
post-1954 State actions concerning vocational schools, 
highway location and relocation assistance, and Missouri 
Housing Development Commission programs. See id. at 
1501-03 (“none of the aforementioned agencies com­
mitted any constitutional violation” ).

The court nevertheless did find liability for segregation 
within the KCMSD on the part of both the State de­
fendants and the KCMSD. The court first noted the un­
disputed fact that, prior to 1954, the State and the 
KCMSD had imposed a mandatory dual school system 
upon the students in the KCMSD. The court stated that, 
“having created a dual system, the State and KCMSD 
had and continue to have an obligation to disestablish 
the system.” Id. at 1504. The court then found that 
“there are still vestiges of the State’s dual school system 
still lingering in the KCMSD [and that] the obligations 
of the KCMSD and the State have not been met.” Id.3 4

3 The court also found that no challenged post-1954 school actions 
of the State or the SSDs were racially discriminatory. The inter- 
district claims and findings of fact are discussed in much greater 
detail in the Argument section below.

4 See also id. at 1505 (“Having found that there are still vestiges 
of the dual school system in the KCMSD, the Court finds the issues



5

The court identified two such “vestiges” in its opinion. 
Of particular importance was the fact that “24 schools 
. . . are racially isolated with 90+% black enrollment.” 
Id. at 1493. The court specifically found that, in light 
of this condition, “the District did not and has not en­
tirely dismantled the dual school system.” Id. The court 
also found 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.* 5

The court ordered the State and the KCMSD to de­
velop a remedial plan to “establish a unitary school 
system within the KCMSD.” Id. at 1506. The KCMSD’s 
initial plan proposed consolidation of the KCMSD with 
the SSDs. See KCMSD Plan for Remedying Vestiges of 
the Segregated Public School System (January 18, 1985). 
Because of its earlier rulings against the claims of inter- 
district violation, however, the district court rejected 
this plan and ordered the KCMSD to prepare an amended 
plan “to be implemented within the existing boundaries 
of the [KCMSD], which would have the effect of remov­
ing the vestiges of the dual school system as it presently 
exists in the KCMSD.” Order of January 25, 1985 at 3.

After submission of a new remedial plan by the 
KCMSD, and submission of alternative plans by the 
State defendants, see note 52 infra, the court held a 
two-week hearing on the scope of appropriate relief. On 
June 14, 1985, the court issued an order establishing a 
multi-faceted district-wide remedial plan. Remedy Order 
(June 14, 1985). The plan contemplates a broad upgrad­
ing of conditions throughout the KCMSD, at a projected

in favor of plaintiffs against the KCMSD and the State of Missouri 
and it further finds the issues in favor of the KCMSD against the 
State of Missouri.”)

5 Although the court found that certain actions by the State, 
largely the passing of now-superceded statutes, had “encouraged 
racial discrimination by private individuals,” it did not rest any 
determination of liability on such grounds. Id. at 1503.



cost of at least 87 million dollars during the next three 
years.

The plan provides numerous additional teachers, coun­
selors, and resources to raise the KCMSD rating to AAA 
status. Id. at 7-11. Class sizes will be reduced across the 
entire district. Id. at 11-15. Summer school will be made 
available to all interested students. Id. at 16-17. So, 
too', will all-day kindergarten. Id. at 17-18. Before and 
after school tutoring will be made available in certain 
elementary schools. Id. at 18-19. An elaborate early 
childhood development program will be implemented. Id. 
at 19-20. Each school will be given a fixed amount of 
money ($50,000-$75,000 in the first year, $100,000- 
$125,000 in the third year, with the 90+% black schools 
receiving the higher amount) to implement an “effective 
schools” program, the specifics to be determined by the 
KCMSD. Id. at 20-23. Funding will be provided for 
both current and future magnet schools in the KCMSD. 
Id. at 23-24. Funding will also be provided for staff 
development as well as for a public information specialist. 
Id. at 24-25, 37. In addition, the State will ask—indeed, 
already has asked—the suburban school districts to par­
ticipate in a voluntary interdistrict transfer plan. Id. 
at 31-33.6 Finally, a $37 million capital improvements 
program—to include the correction of safety, comfort, 
and aesthetic problems—will be undertaken. Id. at 33-37. 
Of the three-year cost of the remedial plan, the district 
court assigned more than 77% to the State, less than 
23% to the KCMSD. Id. at 41-42.

Judgment in the case was entered on June 18, 1985, 
and three separate appeals were taken. Implementation 
of the desegregation remedy is now under way.

6

,8 The court indicated that, in its view, further involuntary stu­
dent movement would be highly unlikely to result in additional 
stable integration. See Remedy Order at 31. The court did, how­
ever, adopt the State defendants’ suggestion that a study be con­
ducted of the feasibility of further student reassignment within 
the KCMSD. Id. at 26-31.



INTRODUCTION AND SUMMARY OF ARGUMENT
This desegregation case, involving both interdistrict 

and intradistrict claims, has had a long and complicated 
history. After several years of discovery and months of 
trial, the district court rejected the interdistrict claims, 
making extensive findings about the lack of any signifi­
cant current segregative effect resulting from the alleged 
discriminatory acts. The court did find, however, that 
vestiges of the former dual school system remained 
within the KCMSD itself, justifying, in its view, a rem­
edy for all students and all schools throughout the 
KCMSD. It is those various findings, and the law appli­
cable to them, that frame the issues on this appeal.

I. The Interdistrict Claims. The district court, in care­
ful findings of fact, determined that the plaintiffs and 
KCMSD had failed to prove an essential element of 
their interdistrict claims: i.e., that any unlawful acts 
of the defendants had a significant current segregative 
effect on an interdistrict basis. See pages 12-29 infra. 
Those findings, largely ignored by the plaintiffs and 
KCMSD on appeal, are not clearly erroneous, but mani­
festly correct. The court was also correct in holding 
that the presumption regarding intradistrict racial dis­
parities, recognized in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971) [Swann], does 
not- apply to interdistrict cases like this one. See pages 
31-36 infra. Finally, contrary to the suggestion of the 
plaintiffs and KCMSD, the court did not mistakenly deny 
interdistrict relief because of an erroneous interpreta­
tion of Milliken I.

II. The Intradistrict Claims. The district court found 
that the existence of 24 largely-black schools in the 
KCMSD was a vestige of the former dual school system 
in the district, a questionable finding that the State 
nonetheless does not challenge on this appeal. See pages 
42-45 infra. But neither that finding, nor a second find­
ing about inferior education indigenous to segregation, 
can support a remedy of the dimensions imposed by

7



8

the court. Thus, as a general matter, the remedy does 
not relate only to conditions properly found to have been 
caused by the constitutional violation. See Milliken v. 
Bradley, 433 U.S. 263 (1977) [Milliken II]. Further­
more, and in any event, particular portions of the rem­
edy are inconsistent with Liddell v. Missouri, 731 F.2d 
1294 (8th Cir. 1984), cert, denied, 105 S.Ct. 82 (1984) 
[.Liddell VII], governing remedial principles, and, in the 
case of the allocation of financial responsibility between 
the State and KCMSD, the Eleventh Amendment as well.

ARGUMENT

I. The District Court Properly Found Against Plaintiffs 
and the KCMSD on Their Claims of Interdistrict 
Liability.

The plaintiffs and the KCMSD have labored in their 
briefs to obscure both the legal standards applicable to 
their interdistrict claims and the district court’s findings 
of fact. Indeed, both of their briefs are written almost 
as though trial court findings had never been made, and 
both seek to introduce legal standards that are unsup- 
portable as well as wholly unprecedented in school deseg­
regation cases. The reasons for this approach are appar­
ent. The governing legal standards are simple and clear, 
and the district court entered detailed findings of fact 
showing that plaintiffs and the KCMSD failed at every 
turn to prove the elements of their interdistrict claims.

A. The Law Governing Interdistrict Claims Requires 
Proof of Intentionally Discriminatory Acts and A 
Significant Current Condition of Segregation Re­
sulting From Those Acts.

A violation of the Equal Protection Clause in a school 
desegregation case requires “ ‘a current condition of seg­
regation resulting from intentional state action.’ ” Wash­
ington v. Davis, 426 U.S. 229, 240 (1976) [Davis] (quot­
ing Keyes v. School District No. 1, 413 U.S. 189, 205 
(1973)). This standard thus requires proof of three 
elements: (1) a current condition of racial segregation 
(2) caused by (3) the defendant’s purposeful discrim­



9
ination. These elements must be proved in any school 
desegregation case, whether the alleged violation is inter- 
district or intradistrict.

Two aspects of these proof requirements, obvious on 
the face of the standard, bear emphasis in analyzing both 
of the claims—the interdistrict claim as well as the in­
tradistrict claim—in this case. First, the condition of 
segregation that must be traced to some unlawful gov­
ernmental act is a current condition, not some segrega­
tive condition of the past. This being an injunctive ac­
tion, it is not enough that an unlawfully caused condi­
tion of segregation have existed in 1954; what must be 
shown is an unlawfully caused condition of segregation 
that exists today.7 8 Second, it is not enough that there 
be, on the one hand, current racial disparities and, on 
the other hand, some discriminatory acts: the acts must 
have caused the disparities before a violation may be 
found.®

These general standards take on a special shape where 
the segregation alleged is interdistrict in nature—that is, 
segregation between districts—and the school districts ex­
hibit a marked degree of local control. In that circum­
stance, the three basic elements of a constitutional viola­
tion must still be proved, but the proof requirements for 
the three elements apply differently and are heightened. 
The Supreme Court set out the standards governing a 
claim for interdistrict relief in Milliken I :

Before the boundaries of separate and autonomous 
school districts may be set aside by consolidating the 
separate units for remedial purposes or by imposing 
a cross-district remedy, it must first be shown that 
there has been a constitutional violation within one 
district that produces a significant segregative effect

7 See, e.g., Columbus Board of Education v. Penick, 443 U.S. 449, 
458-68 (1979) [Columbus]; Milliken II, 433 U.S. at 280-88; Swann, 
402 U.S. at 15-16.

8 See, e.g., Dayton Board of Education v. Brinkman, 433 U.S. 
406, 413 (1977) [Dayton 7]; Milliken II, 433 U.S. at 282; Davis, 
426 U.S. at 239.



10

in another district. Specifically, it must be shown 
that racially discriminatory acts of the state or local 
school districts, or of a single school district have 
been a substantial cause of interdistrict segregation. 
Thus an interdistrict remedy might be in order 
where the racially discriminatory acts of one or 
more school districts caused racial segregation in an 
adjacent district, or where district lines have been 
deliberately drawn on the basis of race. In such cir­
cumstances an interdistrict remedy would be appro­
priate to eliminate the interdistrict segregation di­
rectly caused by the constitutional violation. Con­
versely, without an interdistrict violation and inter­
district effect, there is no constitutional wrong call­
ing for an interdistrict remedy.

418 U.S. at 744-45. Thus, in any case in which a state 
school system exhibits a large measure of local control, 
Milliken I requires that parties seeking an interdistrict 
remedy prove either (a) that the school district boun­
daries were manipulated for racial reasons or (b) that 
some intentionally discriminatory action by the govern­
mental defendants—the State or the local school dis­
tricts—was a “substantial cause” of “significant” current 
interdistrict segregation. Id.; see Hills v. Gautreaux, 425 
U.S. 284, 294 & n. 11 (1976) [Hills] (Milliken I  re­
quires demonstration of “significant” interdistrict segre­
gative effects caused by unlawful governmental a c t); 
Lee v. Lee County Board of Education, 639 F.2d 1243, 
1254-56 (5th Cir. 1981).

These Milliken I  standards apply to the interdistrict 
claims in this case because education in Missouri ex­
hibits the requisite degree of local control. As the dis­
trict court found below, “each of the school districts is a 
locally autonomous and independent entity.” June 5 
Order at 12. Thus, Missouri school districts have the 
power to establish their own boundaries by local initia­
tive, Mo. Rev. Stat. §§ 162.222, 162.431, 162.441 (1978 
& Supp, 1983), and indeed the Missouri Constitution pro­
hibits the legislature from passing any “special law” 
affecting school district boundaries, Mo. Const, art. 3,



11

§ 40(20). See June 5 Order at 8, 11. School districts 
are governed by locally elected boards of education and 
have sweeping or plenary authority to make decisions 
regarding curriculum, finance, personnel, student assign­
ment, transportation, and administration. Id. at 8-11; 
see Lowell Dep. at 6 (transportation); PL Exh. 2267 
(student assignment); PL Exh. 1737 (finance) ; Tr. 
6179-80 (locally elected boards, personnel, finance). For 
these and other reasons,® the district court found that 
“the SSDs are more autonomous than those [districts] 
discussed in Milliken and numerous other desegregation 
cases.” Id. at 7-8.w Hence, due regard for the tradition 
of local control in education requires that the Milliken I 
standards be applied to the interdistrict claims in this 
case.* 10 11

0 The district court also found that, before 1954, local school 
districts had substantial autonomy in deciding whether to provide 
schools for their black students or to transfer them to other dis­
tricts. June 5 Order at 11; see Tr. 335-36, 372, 378, 622-24, 696-97, 
871-72, 1084-86, 1124-26, 1136-38, 1154, 1199, 5837; PI. Exh. 1814; 
see notes 18, 19 infra. The court further noted that the federal 
Office of Civil Rights in HEW (now Department of Education) has 
always considered Missouri school districts autonomous and that 
school boards must be sued in their own names and do not share 
the State’s Eleventh Amendment immunity. Id . ; see High Dep. vol. 
1 at 65, 70, 110-11; Ward Dep. vol. 1 at 30; Mount Healthy City 
School District v. Doyle, 429 U.S. 274, 280 (1977) ; Miener v. 
Missouri, 673 F.2d 969, 980-81 (8th Cir.), cert, denied, 459 U.S. 
909 (1982).

10 The court found at least as much local control in the Missouri 
schools as that found in Alabama in Lee v, Lee County Board of 
Education, supra, and more local control of boundaries or other 
matters than in Michigan, see Bradley v. Milliken, 484 F.2d 215, 
247-48 (6th Cir. 1973), rev’d, Milliken I, 418 U.S. 717 (1974), in 
Indiana, see United States v. Board of School Commissioners of the 
City of Indianapolis, 637 F.2d 1101, 1124-25 (7th Cir. 1980), cert, 
denied, 449 U.S. 838 (1980), in Delaware, see Evans v. Buchanan, 
393 F. Supp. 428, 438 (D.Del.), aff’d, mem., 423 U.S. 963 (1975), 
and in Kentucky, see Newburg Area Council, Inc. v. Board of Edu­
cation of Jefferson County, 510 F.2d 1358 (6th Cir. 1974), cert, 
denied, 421 U.S. 931 (1975).

11 The KCMSD seeks to get around these standards by suggesting 
that the autonomy of local school districts in Missouri is “a dubious 
legal proposition.” KCMSD Brief at 27 n. 80. The treatment of local 
school districts as mere “instrumentalities of the State” is, how­



12

To make out their claim for interdistrict relief against 
the State defendants, the plaintiffs and the KCMSD were 
accordingly required to show either (a) that the State 
had engaged in the racially motivated manipulation of 
the boundaries of the KCMSD or the SSDs or (b) that 
some discriminatory State action other than racial gerry­
mandering was a substantial cause of significant current 
interdistrict segregation. They failed on both counts.

B. The District Court Correctly Found That School 
Boundaries In the Kansas City Metropolitan Area 
Were Not Set or Maintained With a Discriminatory 
Purpose.

The district court expressly found an utter “ [l]ack of 
proof of discriminatory intent in the establishment or 
changing of any school district boundary lines.” June 5 
Order at 6. The court stated: “There was no credible 
evidence that any of the boundaries of any defendant 
school district were established or maintained with any 
racially discriminatory intent.” Id. at 9. Indeed, the 
district court made this specific finding with respect to 
every one of the SSDs except Grandview, about which no 
boundary issue had ever been raised. See id. at 43 (Blue 
Springs), 45 (Center), 48 (Fort Osage), 54-55 (Hick­
man Mills), 59-61 (Independence), 67 (Lee’s Summit), 
74 (Liberty), 78 (North Kansas City), 83-84 (Park 
Hill), 91 (Raytown).

The importance of these findings can best be under­
stood by reference to the caselaw on which plaintiffs and 
the KCMSD exclusively depend. For, in failing to prove 
any governmental manipulation of school district bound­
aries for racial reasons, the plaintiffs and the KCMSD 
distinguished their claim for interdistrict liability from 
the interdistrict claims in every school desegregation case 
in which such a claim has prevailed. All of these cases

ever, just the sort of treatment rejected by the Supreme Court in 
Milliken I  in the face of similar claims of ultimate state authority. 
418 U.S. at 726 n. 5, 741-43. The argument that “no significant 
local autonomy existed with respect to the pre-1954 interdistrict 
school system for blacks” is simply incorrect. See notes 18, 19 infra.



13

involved racially motivated governmental decisions about 
the drawing or maintaining of school district boundaries. 
This is true, as the district court recognized, see June 5 
Order at 6-7, of the three cases from this Circuit involv­
ing findings of interdistrict liability—MorrUton School 
District No. 32 v. United States, 606 F.2d 222, 225-28 
(8th Cir. 1979), cert, denied, 444 U.S. 1071 (1980); 
United States v. Missouri, 515 F.2d 1365, 1367-70 (8th 
Cir.), cert, denied, 423 U.S. 951 (1975); and Haney v. 
County Board of Education, 410 F.2d 920, 923-24 (8th 
Cir. 1969). It is equally true, as the district court also 
recognized, see June 5 Order at 9-10, of the Wilmington 
case,1'2 the Indianapolis case,12 13 the Louisville case,14 and 
the Allegheny County case.15 See also Berry v. School 
District of the City of Benton Harbor, 564 F. Supp. 617, 
625 (W.D. Mich. 1983) ; United States v. Texas, 321 
F. Supp. 1043, 1048-50 (E.D. Tex. 1970), aff’d in rele­
vant part, 447 F.2d 441 (5th Cir. 1971), cert, denied, 
404 U.S. 1016 (1972). By contrast, in case after case 
that did not involve some kind of racial gerrymandering, 
the courts have repeatedly rejected the claims of inter- 
district liability.16

12 Evans v. Buchanan, 393 F. Supp. 428, 438-45 (D.Del), aff’d 
mem., 423 U.S. 963 (1975); see Evans V. Buchanan, 582 F.2d 750, 
762-63 n. 11 (3d Cir. 1978), cert, denied, 446 U.S. 923 (1980) (not­
ing state legislation regarding boundaries as basis for interdistrict 
liability).

13 United States v. Board of School Commissioners of the City of 
Indianapolis, 456 F. Supp. 183, 188 (S.D.Ind. 1978), aff’d in rele­
vant part, 637 F.2d 1101, 1108 (7th Cir. 1980), cert, denied, 449 
U.S. 838 (1980).

14 Newburg Area Council, Inc. v. Board of Education of Jefferson 
County, Kentucky, 510 F.2d 1358 (6th Cir. 1974), cert, denied, 421
U. S. 931 (1975) ; see Lee v. Lee County Board of Education, supra, 
639 F.2d at 1257-58 (in Newburg, “school district boundaries had 
been artificially maintained in order to preserve the racial charac­
teristics of the school districts involved”) .

15 Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107, 1116, 
1120 (3rd Cir.), cert, denied, 459 U.S. 824 (1982).

16 See, e.g., Milliken I, supra-, Goldsboro City Board of Education
V. Wayne County Board of Education, 745 F.2d 324 (4th Cir. 1984); 
Berry v. School District of the City of Benton Harbor, 698 F.2d 
813, 818-19 (6th Cir.), cert, denied, 464 U.S. 892 (1983); Lee V. Lee



14

The plaintiffs and the KCMSD were therefore left 
with a claim for interdistrict relief unique in the annals 
of school desegregation law. Unable to establish any un­
lawful creation or maintenance of school district bound­
aries by the State or by any of the local school districts, 
the plaintiffs and the KCMSD were consigned to proving 
their interdistrict claims indirectly. They were required 
to show, as no proponents of interdistrict relief in any 
case have yet succeeded in showing, that some racially 
discriminatory act other than gerrymandering was a 
substantial cause of significant current interdistrict seg­
regation. The district court below found that plaintiffs 
and the KCMSD had made no such showing.

C. The District Court Correctly Found That No 
Racially Discriminatory Act of the State Was a 
Substantial Cause of Significant Current Inter­
district Segregation.

In trying to overcome the finding that current racial 
disparities among the SSDs and the KCMSD are not the 
result of a constitutional violation, the plaintiffs and the 
KCMSD have chosen to emphasize the one element most 
favorable to them: the fact of current racial disparities. 
It is undisputed, of course, that there is a much heavier 
concentration of black students in the urban KCMSD 
than in the suburban SSDs.17 No interdistrict violation 
is shown, however, by the mere fact that one school dis­
trict is largely black while neighboring districts are 
largely white: the contention to the contrary is precisely

County Board of Education, swpra; Taylor v. Ouachita Parish 
School Board, 648 F.2d 959 (5th Cir. 1981) ; Cunningham, v. Grayson, 
541 F.2d 538 (6th Cir. 1976), cert, denied, 429 U.S. 1074 (1977) ; 
Bradley v. School Board of Richmond, 462 F.2d 1058 (4th Cir. 1972)' 
aff’d by equally divided court, 412 U.S. 92 (1973); Tasby v. Estes, 
412 F. Supp. 1185 (N.D.Tex. 1975), aff’d on interdistrict issues, 572 
F.2d 1010 (5th Cir. 1978), cert, granted, 440 U.S. 906 (1979), cert, 
dismissed, 444 U.S. 437 (1980); Armour v. Nix, No. 16,708 (N D 
Ga. 1979), aff’d, 446 U.S. 930 (1980).

17 In 1982, approximately 68% of the KCMSD’s student population 
was black, whereas approximately 5% of the SSD’s student popula­
tion was black. The percentage of black students in the SSDs, how­
ever, varies greatly from district to district. See PL Exh.’ 53G.



15

what Milliken I rejected. Indeed, the situation in Kansas 
City—the concentration of blacks in an urban area with 
predominantly white suburbs—is the situation in most 
cities in the United States today. See Tr. 16,486-88 (tes­
timony of KCMSD witness, Dr. Daniel Levine) (Kansas 
City typical of big cities in evolution of racial patterns); 
Tr. 19,082 (testimony of Dr. William Clark) (same) ; 
Columbus, 443 U.S. at 485 (Powell, J., dissenting).

Appellants thus had to show something more than the 
existence of racial disparities to establish interdistrict 
liability on the part of the State defendants: i.e., that 
racially discriminatory acts of the State were a substan­
tial cause of the current disparities. In attempting to 
meet this burden, the plaintiffs and the KCMSD identi­
fied three bases for interdistrict liability on the part of 
the State defendants—the pre-1954 State school-segrega­
tion policy; certain post-1954 State school-related actions; 
and certain housing-related actions. The district court, 
however, unscrambled the jumbled allegations of unlaw­
ful conduct, carefully analyzed the evidence to determine 
whether they were in fact discriminatory acts causing 
significant current segregation, and found on every spe­
cific basis for interdistrict liability that the plaintiffs and 
the KCMSD had failed in their proof.

1. Pre-1954 S ta te  School Policies.
The first, and by far the most important, asserted 

basis for interdistrict liability on the part of the State 
is the pre-1954 policy of mandatory segregation. As the 
State defendants have conceded throughout this litiga­
tion, the State of Missouri unconstitutionally mandated 
separate schools for black and white children prior to the 
1954 decision by the United States Supreme Court in 
Brown v. Board of Education, 349 U.S. 483 (1954) 
[Brown]. Mo. Const, art. IX, § l ( a )  (1945). See
Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.), 
cert, denied, 449 U.S. 826 (1980). That policy, although 
not formally removed from the State Constitution until 
1976, was declared unenforceable by the Attorney Gen­



16

era! of Missouri in 1954 and removed from the statute 
books by 1957. Act of July 6, 1957, § 1, 1957 Mo. Laws 
452-53; PI. Exh. 2232. Nevertheless, the plaintiffs and 
the KCMSD sought to prove in the district court that 
the interdistrict racial disparities today, more than thirty 
years later, were substantially caused by the pre-1954 
mandatory segregation. Their theory was that the segre­
gation policy caused a dearth of black schools outside the 
KCMSD, which in turn caused today’s concentration of 
blacks in the KCMSD. The district court found to the 
contrary: as the court said, “ [plaintiffs’ proof was 
weak, speculative, and in any event de minim[i]s.” June 
5 Order at 12.

To begin with, even when the segregation laws were in 
effect more than thirty years ago, they did not mandate 
interdistrict segregation. The policy of the State of Mis­
souri was to require separate schools for black and white 
children; the State “did not require separate school dis­
tricts.” June 5 Order at 15. State law, moreover, at 
least after 1887, did not prohibit the maintenance of black 
schools in the SSDs or their predecessors. Although State 
law had varying provisions over the years for the edu­
cation of black students in districts with a very small 
black enrollment (roughly 8 to 25), the manner in which 
districts educated resident black students—whether a 
black school was maintained or black students were trans­
ferred to other districts—was generally a matter for lo­
cal decision. See id.; Tr. 5837 (testimony of plaintiffs’ 
witness, Dr. Anderson); PL Exh. 116A, 1814.1® In fact, 18

18 Both the plaintiffs and the KCMSD assert that State law long 
prohibited the maintenance of black schools in districts with less 
than a certain minimum number of black students. KCMSD Brief 
at 3, 6; Plaintiffs Brief at 5. The plaintiffs’ and the KCMSD’s read­
ing of the statutes is simply wrong. Although such a prohibition 
existed before 1887, Missouri law has contained no such prohibition 
for nearly 100 years.

In 1887, the Missouri legislature repealed the requirement of 
1870 Mo. Laws 149, § 45, and 1874 Mo. Laws 163-64, § 73, codified 
at Mo. Rev. Stat. art. 1, ch. 150, § 7052, that districts with fewer 
than 10 black students close their black school. See 1887 Mo. Laws



17

for many years, Missouri law required black schools in 
small districts.19 And there were black schools in some of 
the SSDs and their predecessors before 1954. See June 5 
Order at 61-62 (black school in Independence), 74-75 
(black school in Liberty), 79 (black school in North Kan­
sas City), 84-86 (black school in Park H ill); PI. Exh. 39.

In any event, the plaintiffs and the KCMSD simply 
failed to prove that, whatever the conditions in the SSDs 
may have been, a significant number of black students 
from the SSDs moved to, or transferred to school in, the 
KCMSD. The absolute numbers, the district court found, 
themselves show that insignificance. Thus, with respect 
to moves, the court below, looking at the two critical pe­
riods of 1910-1920 and 1930-1960 (i.e., extending even 
beyond Brown), found: “ [ejven assuming the entire de­
crease in the three-county area can be accounted for

264, codified at Mo. Rev. Stat. §§ 8003 & 8004 (1889) . In 1893, a 
proviso was added to the 1887 statute that permitted, but did not 
require, a school district with fewer than eight black students to 
discontinue its black school. 1893 Mo. Laws 247 (district “may 
discontinue” black school). The statute, as thus amended, was 
carried forward in 1909 Mo. Laws 790, § 42, and codified at Mo. 
Rev. Stat. art. 2, ch. 102, §§ 11145 & 11146 (1919). See Plaintiffs 
& KCMSD Jt. Addendum A at A81-A82. The 1929 revision of the 
statute likewise contained no prohibition on maintaining a black 
school without a minimum number of black students. 1929 Mo. 
Laws 382-83, codified at Mo. Rev. Stat. ch. 72, § 10350 (1939) ; see 
1946 Mo. Laws 1699-1700 (reenacting statute without modification 
in any relevant respect). See also PI. Exh. 116A (collecting statutes).

19 Replacing similar statutes enacted in 1865 and 1869, see 1865 
Mo. Laws 177, § 20; 1869 Mo. Laws 86, the Missouri legislature in 
1870 required the provision of a black school in any district with 
at least 16 black students. 1870 Mo. Laws 149, § 45. This provision 
was repeated in § 73 of 1874 Mo. Laws 163-64, while § 74 added a 
requirement that, if two adjoining districts each had less, but 
together had more, than 16 black students, they must jointly estab­
lish a black school. The minimum number was changed to 15 in 
1887. See 1887 Mo. Laws 264, codified at Mo. Rev. Stat. §§ 8003 & 
8004 (1889) and Mo. Rev. Stat. art. 2, ch. 102, §■§ 11145 & 11146 
(1919). This law was not significantly modified until 1929. See 
1929 Mo. Laws 382-83. Thereafter, a school district with 8 black 
children was required either to maintain a black school or to pay 
the transportation and tuition for black students to attend in 
another district. See PI. Exh. 116A (collecting statutes).



18

only by people leaving and going to Kansas City because 
of the dual school system, . . . the impact of that move­
ment on the KCMSD enumeration [is] insignificant.” 
June 5 Order at 16.2<> With respect to transfers, the 
court found the pre-1954 totals equally insignificant: in 
1954, less that 0.5% of the KCMSD black enrollment 
consisted of transfers, and that number included trans­
fers from districts other than the SSDs, Ibid.20 21 Moreover, 
the evidence showed that many of the transferees did 
not move to where they transferred to school. Id. at 18 
(citing Tr. 372, 565, 632-36, 676-80, 714, 719, 841, 1216- 
17, 1334-35, 1358-60, 1664-65, 2587-88, 2699-2704, 3170- 
73).22 Thus, the impact of transfers and moves even

20 In 1910-1920, the black enumeration in the three-county area 
outside the KCMSD decreased by 287 while the black enumeration 
in the KCMSD increased by 6,676. In 1930-1960, the decrease out­
side the KCMSD was 550 while the increase in the KCMSD was 
45,000. June 5 Order at 15-16.

21 The district court found that, over the half-century from 1900 
to 1954, only 251 students transferred into the KCMSD from the 
SSDs. June 5 Order a t 16. This amounted to only 4,6 students 
per year. Even assuming, arguendo, that all of the roughly 600 
student transfers recorded on PI. Exh. 40 came from predecessors of 
the SSDs—an assumption clearly unwarranted by the evidence, see 
Tr. 4557-59—the figure would amount to only 11.1 students per 
year. In either event, the numbers are insignificant. See Tasby v. 
Estes, supra, 572 F.2d at 1015 n. 19 (eleven transfers insignificant). 
In addition, the district court noted the insignificance of the number 
of transfers to Lincoln High School (the black high school) in the 
KCMSD prior to 1954. June 5 Order at 16-17 (citing Tr. 1773).

Of course, none of these numbers reflects the reasons for the 
transfers. In particular, none reveals whether black schools were 
available in the districts from which the students transferred or 
whether the absence of a black school was the cause of the transfer.

22 The plaintiffs submitted a list of 44 names of students who 
allegedly transferred to Lincoln High School before 1954 and 
moved to the KCMSD after transferring. Of the people on this 
list, however, a number now live outside the KCMSD, some lived 
in the KCMSD only briefly, and some did not transfer until after 
1954, when the State’s segregation policy was no longer in effect. 
For these reasons, and both because there was no “credible evidence 
as to why these 44 people moved to Kansas City” and because the 
total is “insignificant in any event,” the district court concluded 
that the list “does not show a connection between black schools in 
Kansas City and the movement of blacks into Kansas City.” June 5 
Order at 17.



19

before 1954 was wholly insubstantial.23
Having failed to show any significant numbers of 

moves to the KCMSD from the SSDs or their predeces­
sors, plaintiffs and the KCMSD also failed to show that 
even the limited number of moves were motivated by the 
unavailability of black schools outside the KCMSD. Nor 
did they demonstrate that a lack of available suburban 
schools was the reason for the substantial migration of 
blacks into the KCMSD from outside the metropolitan 
Kansas City area. Indeed, the district court specifically 
found to the contrary. To whatever extent schools were 
in fact unavailable, the court found that “the absence of 
black schools in any of the defendant districts did not 
discourage black families from outside (or from within) 
Missouri from moving to and living in those districts.” 
June 5 Order at 18 (citing Tr. 1153-54, 1213-14, 1252- 
54). The motivation for the migration into the KCMSD 
(not just of blacks, but of whites as well) was primarily 
the economic opportunities available there.

The findings on this point are comprehensive. Thus, 
the court found that the largest pre-1954 black population 
increases in the KCMSD occurred during the two world 
war periods and, as was true all over the country, were 
“in large part due to the unusual economic and employ­
ment ramifications of the world wars and intervening 
depression.” Id. at 17 (citing Tr. 5932-34, 9988-90). 
Outside Kansas City, Liberty, Independence, and Excelsior 
Springs, blacks in the three-county area were “mostly 
rural, farm-dependent families,” id. at 16 (citing Tr. 331, 
454, 526, 796, 901-06, 935, 952, 1008, 1052, 1089, 1100- 
05, 3139, 3165-66), and the increase in black population 
in the KCMSD was due to the availability of jobs and 
economic opportunities in the city.24 By contrast, the

23 See June 5 Order at 43 (Blue Springs) ; 45-46 (Center) ; 49 
(Ft. Osage) ; 51 (Grandview) ; 55 (Hickman Mills) ; 61-62 (Inde­
pendence) ; 67-70 (Lee’s Summit); 74-75 (Liberty) ; 78-79 (North 
Kansas C ity); 84-87 (Park Hill) ; 91 (Raytown).

24 The period from 1910 to 1960 is well-recognized as the period 
of massive emigration of blacks from rural to urban areas all over



20

movement of blacks into communities within the SSDs or 
their predecessors did not vary according to whether the 
particular community had a black school, thus refuting 
the suggestion that the availability of schools was what 
attracted blacks to the KCMSD rather than to the outly­
ing districts.25 As the district court found, “jobs and eco­
nomic opportunity were primary motivators for blacks 
leaving the three-county area and moving to Kansas City 
and elsewhere, and . . . any motivation resulting from 
segregated schools was de minimis and insignificant when 
compared to those primary motivating factors.” Id. at 
18. See Tr. 595, 600, 676-78, 713, 796, 911, 1052, 1089, 
1103, 1111, 1163, 1307-18, 1552, 1579-80, 1680-81, 1728, 
2781, 3214, 3267.

Of course, the effect that plaintiffs and the KCMSD 
must trace to the pre-1954 segregation policy is a current 
effect, not an effect in 1954. Thus, the failure to prove 
that the pre-1954 segregation policy was a substantial 
cause of interdistrict disparities before 1954 translates 
into an even clearer failure to prove that the pre-1954 
policy was a substantial cause of interdistrict disparities 
today. If the pre-1954 interdistrict effects were negligi­
ble, the effects are even more negligible after thirty years 
in a “dynamic” and “fluid” society in which “myriad 
factors produce a multitude of simultaneous decisions and 
consequent effects” and in which “many events have in­
tervened, reshaping earlier actions.” June 5 Order at 98-

the country. See Milliken I, 418 U.S. at 759 n. 9 (Douglas, J., 
dissenting) (citing Hauser, “Demographic Factors in the Integra­
tion of the Negro,” Daedalus 847-77 (fall 1965), and U.S. Dep’t  of 
HEW, J. Coleman et al., Equality of Educational Opportunity 39-40 
(1966)).

25 Thus, not one of those areas that had black schools experienced 
any appreciable increase in its black population, while blacks moved 
into some areas that did not have black schools. See June 5 Order 
at 61-62 (black school in Independence, but no increase in black 
population) ; 69 (black families moved into Lee’s Summit even 
though no black school) ; 74-75 (black school in Liberty, but no 
increase in black enumeration, see PI. Exh. 49) ; 79 (black school in 
North Kansas City, but no increase in black enumeration) ; 84-86 
(black school in Park Hill, but no increase in enumeration).



21

99; see also id. at 18 (“The Court further finds that 
transferring blacks to the KCMSD under the prior segre­
ga ted  school system is not a cause of the present racial 
distribution of the population in the three-county area”) ; 
(“plaintiffs have not persuaded the Court that any 
vestiges or significant effects of the pre-1954 dual school 
system remain in any of the SSDs”) .

Indeed, a brief look at the post-1954 history shows 
just how patent was the plaintiffs’ and the KCMSD’s 
failure of proof. The critical fact is that the massive 
increase in the KCMSD’s black population occurred after 
1954, when the segregation policy had already been de­
clared void, and not in the years when the segregation 
policy was in effect. Thus, in 1955-56, the black enroll­
ment in the KCMSD was only 11,625; by 1971-72, it had 
increased to 35,620 (from which it then declined to 24,803 
in 1983-84). KCMSD Exh. K2. Moreover, from 1881 to 
1954, the percentage of black students in the KCMSD was 
virtually unchanged—13.6% of the total student popula­
tion in 1881, and 14.0% in 1954. PL Exh. 53E [sub] ; 
June 5 Order at 16.26 By contrast, after 1954, the per­
centage of blacks in the KCMSD increased steadily—from 
18.9% in the 1955-56 school year to 50.2% in the 1970- 
71 school year to 67.7% in the 1983-84 school year. 
KCMSD Exh. K2.

These numbers have an obvious significance for two 
reasons. First, they show that the greatest increase in 
black population in the KCMSD occurred at a time when 
the pre-1954 segregation policy was not operative, a time 
when the availability of schools could not have been a 
reason for residential decisions. Second, the growth in 
black population after 1954—for reasons largely unrelated 
to schools—reinforces the finding that the movement of 
blacks to Kansas City before 1954 was also for reasons

26 Further, after 1910, the percentage of blacks in the enumera­
tion of the three-county area outside the KCMSD was never more 
than 4.4%, and the total number was never more than 859. The 
figures for 1920 are 3.1% and 572, highs for the period 1920-1954. 
PI. Ex. 53E[sub],



22

unrelated to schools. The numbers thus confirm the dis­
trict court’s finding that all but an insignificant portion 
of today’s black KCMSD population is not in the KCMSD 
because of the pre-1954 policy but for other—namely, 
economic—reasons.

2. Post-1954 School-Related Actions.
All of the suburban school districts, the court below 

found, became unitary school districts soon after Brown. 
See June 5 Order at 19, 99. Black enrollments in the 
SSDs have steadily increased at least since 1968. Id. at 
36; PL Exh. 53G, 53H. Since shortly after Brown, as 
the district court found, “school district boundaries have 
not constrained black movement in any way.” Id. at 39.

Nevertheless, the plaintiffs and the KCMSD have 
pointed to a number of post-1954 school-related actions as 
a second alleged basis for interdistrict liability. Most of 
the identified actions were taken solely by the suburban 
school districts, however; only a few were actions of the 
State.27 Of these few State actions, the district court 
found that none was racially discriminatory.

The first allegation involved the Area Vocational Tech­
nical School program. The district court found, however, 
that the State committed no violation in this program. 
Although the State distributed the federal funds for the 
program, “ [e]ach district, in its discretion, determined 
whether or not to participate in the program and in what 
manner.” June 5 Order at 23. In any event, the district 
court, after reviewing the evidence concerning the voca­
tional schools in each district, id. at 23-26, found that 
“ [t]he area schools were established without discrimina­
tory intent and there was no credible evidence that their 
operation had the effect of segregating students on the

27 Neither plaintiffs nor the KCMSD has sought to impose 
vicarious liability on the State defendants for acts of local school 
districts not taken pursuant to State policy. This is hardly surpris­
ing given that there is no principal-agent relationship between the 
State defendants and autonomous school districts and* that there is 
no vicarious liability under 42 U.S.C. § 1983 (1982). See Monell 
V. Department of Social Services, 436 U.S. 658, 690-691 (1978).



23

basis of race.” Id. at 26. The court also found “no evi­
dence that vocational educational monies have been dis­
tributed with a purposefully discriminatory motive or 
effect.” Id. Thus, on two counts—the absence of either 
discriminatory purpose or effect—“the operation of voca­
tional education in the Kansas City metropolitan area 
is not an interdistrict constitutional violation.” Id. See 
also Jenkins, at 1495.28

The plaintiffs and the KCMSD also alleged that the 
enactment of House Bill 171 in 1957 was a constitutional 
violation. The bill amended Mo. Rev. Stat. § 165.563 
(1943), which had declared that any city of over 500,000 
was to be a single school district, to apply thereafter only 
to cities of over 700,000. The district court found that 
H.B. 171 “was not discriminatorily enacted.” June 5 Or­
der at 27. Among the articulated bases for this finding 
of fact were the following: that neither the original 1897 
law (setting the level at 300,000) nor its 1909 revision 
(raising it to 500,000) was enacted for racial reasons; 
that H.B. 171 was passed unanimously and counted 
among its supporters a black representative from the 
KCMSD who had long been a promoter of civil rights; 
that there were racially neutral administrative reasons 
for passage of the bill as well as for its having been sup­
ported even by the KCMSD; and that the bill did not 
affect the KCMSD in 1957 and, since then, several an­
nexations to the KCMSD have increased its white popula­
tion. Id. at 27-29.29

w Plaintiffs do not appear to allege on appeal that any State 
action concerning the vocational-technical schools was racially dis­
criminatory. Plaintiffs’ Brief at 28-29. Indeed, plaintiffs assert that, 
when the State initiated the program, it did so “without considering 
[the schools’] impact on racial isolation.” Ibid.

29 Although both the plaintiffs and the KCMSD point to H.B. 171 
as a basis for State interdistrict liability, the KCMSD does not 
allege racial motivation in the passage of H.B. 171 (which the 
KCMSD itself supported), and the plaintiffs do not challenge the 
district court’s finding as clearly erroneous, the finding clearly 
being amply supported by the record. See KCMSD Brief at 14; 
Plaintiffs’ Brief at 27.



24

The plaintiffs and the KCMSD further pointed to the 
State’s inaction on the Spainhower Commission proposals 
as a basis of interdistrict liability. The Spainhower pro­
posals—made in 1979, after this lawsuit was filed and 
after the KCMSD’s Plan 6C was in place-—contained 
wide-ranging recommendations for the restructuring of 
school financing, boundaries, and local control. But, to 
begin with, the failure to act upon proposals that might 
increase integration is itself not a constitutional violation 
unless there is a preexisting duty to take such action, 
which was not the situation here. Furthermore, as the 
district court found, the reason that the Legislature did 
not enact these proposals was simply that “it desired to 
maintain Missouri’s strong tradition of local control over 
public education.” June 5 Order at 29. Reviewing the 
evidence, the court found that any race-motivated opposi­
tion by particular legislators or private individuals was 
insignificant and not adopted by or an influence on any 
government entity. See id. at 29-31. Thus, the court 
specifically found, “ [t]here was no credible evidence . . . 
that racial concerns led to the defeat of the Spainhower 
recommendations.” Ibid.50

In addition, the plaintiffs and the KCMSD pointed to the 
State’s failure to adopt the “Milwaukee Plan” proposal, 
embodied in H.B. 1717 in 1979, to provide State money 
to school districts as an incentive for participating in 
interdistrict transfer programs akin to the one in Mil­
waukee. The court noted that the State Department of 
Elementary and Secondary Education opposed the meas­
ure as too expensive. See June 5 Order at 31. It identi­
fied no evidence that the State or any SSD opposed the 
measure for reasons related to race. Ibid.30 31

30 Neither the plaintiffs nor the KCMSD contends on appeal that 
the district court’s finding of no discriminatory purpose in the 
non-adoption of the Spainhower proposals is clearly erroneous. 
See KCMSD Brief at 13; Plaintiffs’ Brief at 27-28.

31 Neither plaintiffs nor the KCMSD alleges on appeal that re­
jection of the Milwaukee Plan was for racial reasons. See KCMSD 
Brief at 14 n.41; Plaintiffs’ Brief at 28.



25

In sum, none of the post-1954 actions for which the 
plaintiffs and the KCMSD seek to hold the State defend­
ants liable for an interdistrict violation was a purpose­
fully discriminatory act causing significant interdistrict 
segregation.32 Because the autonomy of local districts 
means that their acts cannot form a basis of State lia­
bility, the plaintiffs and the KCMSD do not seek to base 
State interdistrict liability on the defendant school dis­
tricts’ allegedly unconstitutional post-1954 acts. See 
KCMSD Brief at 12-16; Plaintiffs’ Brief at 26-29. In 
any event, the district court found that each of the local 
districts’ alleged violations was not in fact an interdistrict 
violation.33

82 In the district court, the plaintiffs also advanced arguments 
about juvenile homes as a basis for State interdistrict liability. 
The district court found that “there is absolutely no showing that 
the schools have had a racial impact on the KCMSD or any SSD.” 
June 5 Order at 21. Apparently, neither the plaintiffs nor the 
KCMSD challenges this finding on appeal.

83 The district court found that the Cooperating School Districts 
Association of Suburban Kansas City had not been racially moti­
vated in any of its actions and that no SSD joined with racial 
animus. June 5 Order a t 19. The court also found that there was 
no racial motivation, or any discriminatory result, in any of the 
SSDs’ roles in sharing the revenues from the Kansas City y2% 
sales tax approved in 1974. Id. at 20-21. In addition, the court 
found, after carefully analyzing the evidence, that there was no 
credible evidence either that the SSDs had engaged in any dis­
criminatory hiring or that the disproportionately small number of 
black faculty in the SSDs was a cause of the disproportionately 
small number of black students. See id. at 31-34. Finally, the 
district court found that the SSDs’ joint arrangements in the 
area of special education (e.g., for handicapped children) were not 
racially discriminatory. Id. at 22.

With respect to the actions of the KCMSD advanced by plain­
tiffs as a basis of interdistrict liability, only one (intact busing) 
was found by the district court to have been intentionally discrimi­
natory. See Jenkins, at 1493-95. More important, the court 
found that the plaintiffs’ evidence on “racial transition within the 
KCMSD has only intradistrict implications.” June 5 Order at 35. 
Although “ [ajctions of the KCMSD in assigning children to par­
ticular schools may have had an intradistrict effect, . . . those ac­
tions [did not] have any significant effect on the enrollment of any 
other SSD.” Id. at 38; see id. at 38-39 (chart showing 1958-1973 
KCMSD-SSD transfers) (PL Exh. 1775B, C, D, E, 53G). Further,



3. Housing Actions.

The plaintiffs have sought to rest interdistriet liability 
on the part of the State, not only directly on school pol­
icies, but also indirectly on various housing actions. Vir­
tually all of plaintiffs’ housing allegations, however, apply 
only to governmental entities other than the State of 
Missouri, such as HUD and local government agencies.34 
With respect to those few actions that are those of the 
State, the evidence and findings below demonstrate that 
no significant interdistriet school segregation today was

to the extent that KCMSD policies were responsible for the exten­
sion of the “black corridor,” that extension has moved into Ray­
town, Hickman Mills, Center, and Grandview, thus decreasing ra­
cial disparities between the SSDs and the KCMSD. See id. at 39. 
And there is no evidence in the record to support the implausible 
suggestion that segregative policies within the KCMSD were a 
cause of “white flight.” See Hills, 425 U.S. at 294 n .ll  (rejecting 
as “speculative” similar allegation of basis for interdistriet viola­
tion) .

84 Plaintiffs have pointed to the racial considerations embodied 
in the appraisal manual used by the Federal Housing Administra­
tion from 1934 to 1947 in deciding which private mortgages to in­
sure. Plaintiffs’ Brief a t 16-17. This allegation, of course, con­
cerns only the Federal Government and not the State of Missouri. 
In any event, the district court found the present effect of pre- 
1950 appraisal practices to be de minimis. Jenkins, at 1497.

Plaintiffs have further pointed to the relocation policies of the 
Land Clearance for Redevelopment Authority (LCRA). See Plain­
tiffs’ Brief at 18-20. As is evident from the fact that the district 
court considered plaintiffs’ allegations regarding the LCRA as 
bearing solely on the liability of HUD, the LCRA is not a State 
agency. Rather, it was created by the City of Kansas City and 
functions independently of the State—though not of the City of 
Kansas City or of HUD—in carrying out HUD-funded urban re­
newal projects. See Jenkins, at 1497-98; Mo. Rev. Stat. §§99.300 
etseq. (1978).

In addition, plaintiffs have pointed to certain actions of the 
Housing Authority of Kansas City (HAKC). See Plaintiffs’ Brief 
at 24-26. Like the LCRA, however, the HAKC is not a State 
agency but is instead a municipal corporation whose functioning 
required approval of the City of Kansas City and which carries out 
federal programs. See Mo. Rev. Stat. § 99.040 (1978). Indeed, the 
district court considered the allegations against the HAKC as bear­
ing solely on HUD’s liability, see Jenkins, at 1498-99, and plaintiffs 
apparently did not contend below that the alleged HAKC violations 
directly supported liability on the part of the State.

26



27

substantially caused by any discriminatory State housing 
actions.

The one discriminatory housing-related action by the 
State concerns privately created racially restrictive cove­
nants.35 These were enforced by the courts of Missouri 
until the Supreme Court declared them unenforceable in 
1948. As the district court found, however, this pre-1948 
enforcement has no significant segregative effects today.

The reasons are apparent. “There is no evidence [that] 
such covenants were enforced by the state courts follow­
ing Shelley v. Kraemer, 334 U.S. 1 (1948).” June 5 
Order at 39.36 There has been more than thirty years of * 38

®5 Although plaintiffs also point to various forms of private dis­
crimination in the real estate, banking, and insurance industries, 
Plaintiffs’ Brief at 17-18, the district court recognized that this dis­
crimination did not constitute state action under the Fourteenth 
Amendment for which State agencies can be liable. See Jenkins, at 
1502-03. The court did find that former discriminatory provisions 
in Missouri’s law “encouraged racial discrimination by private 
individuals in the real estate, banking and insurance industries,” 
but expressly refrained from imposing liability on the State on 
that general ground. Id. at 1503. Under the principles established 
in Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972), and subse­
quent cases, a finding of liability on that sort of indirect “encour­
agement” would be error.

38 The only suggestion by the KCMSD to the contrary is evidence 
that the last restrictive covenant in Clay County was recorded in 
1960. KCMSD Brief at 15 n.47. Of course, recording of a cove­
nant by a county official is not enforcement by the State of Mis­
souri. In any event, there is no evidence to suggest that this was 
anything other than an isolated instance.

The plaintiffs suggest that the district court found that the 
Missouri courts enforced restrictive covenants until 1953. Plain­
tiffs’ Brief at 15. The suggestion is incorrect. See June 5 Order at 
39; Jenkins, a t 1497. The most that can be said is that the Missouri 
courts, though refusing to grant specific performance to enforce 
restrictive covenants (in accordance with the holding of Shelley v. 
Kraemer), apparently entertained suits for damages for their 
breach until the Supreme Court declared the award of damages in 
such suits unconstitutional in Barrows v. Jackson, 346 U.S. 249 
(1953). See Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949). There is 
no evidence, however, that any damages were ever awarded after 
1948. In any event, any such actions in the period of five years 
from 1948 to 1953 would do little to undermine the district court’s 
finding of no significant effect thirty-two years later.



2 8

“tremendous housing growth” in the suburban areas since 
these covenants became a nullity, and there has been a 
nearly complete turnover of property, so that a negligibly 
small portion of today’s houses are pre-1948 (or even 
pre-1953) houses that have not been sold in the interim. 
Id . ; see Tr. 18,616. Moreover, there was never a sub­
stantial number of such covenants located in the SSDs, 
and as soon as “the covenants were no longer enforce­
able,” “the areas most affected by these covenants soon 
were occupied by blacks.” Jenkins, at 1497. See also 
June 5 Order at 39. Thus, specifically rejecting the testi­
mony of plaintiffs’ expert witness, Dr. Gary Tobin, see 
June 5 Order at 37, 39,37 the district court found, after 
reviewing the evidence in each of the SSDs, that the pre- 
1948 enforcement of restrictive covenants, like the pre- 
1954 school segregation policy, has “negligible present ef­
fects” more than three decades later on interdistrict racial 
disparities in school enrollments. June 5 Order at 99.3S

The other State housing-related actions challenged by 
the plaintiffs provide no better a basis for interdistrict 
liability on the part of the State, because all were found 
not to have been discriminatory. First, the actions of the 
Missouri Department of Highway and Transportation in 
choosing the location of highways (notably, Interstate 70 
and the South Midtown Freeway) and in relocating persons 
displaced by these highway projects were found not dis­
criminatory: indeed, with respect to relocations, the re- 
locatees selected their own new locations, and the De­
partment asked to be notified of any discrimination en- 38

87 Plaintiffs have relied heavily, in the court below and in this 
Court, on the testimony of Professor Gary Tobin, one of their 
leading experts on housing. With respect to his testimony, the 
court below stated: “The Court has considered carefully Dr. Tobin’s 
presentation, and finds . . . that none of Dr. Tobin’s opinions dem­
onstrated any significant effect on the racial makeup of any of the 
SSDs.” June 5 Order at 37.

38 For specific findings about each of the SSDs, see June 5 Order 
at 44-45 (Blue Springs), 48 (Center), 51 (Ft. Osage), 53 (Grand­
view), 59 (Hickman Mills), 66 (Independence), 73 (Lee’s Summit), 
77-78 (Liberty), 82-83 (North Kansas City), 90 (Park Hill), and 
94 (Raytown).



29

countered but never received any complaints. See Jenkins, 
at 1501-02; Tr. 18,031, 18,043, 18,050. Similarly, the 
Missouri Housing Development Commission was found to 
have engaged in no discrimination in its provision of 
financing for middle and low income housing, chiefly un­
der federal programs. See Jenkins, at 1502. Finally, the 
Missouri Real Estate Commission, at least since the 
1940s,39 has not engaged in any discriminatory acts: in­
deed, “ [t]he only complaint involving illegal activities of 
realtors which was filed with the Missouri Real Estate 
Commission led to the permanent revocation of the real 
estate license of the agent involved.” Jenkins, at 1503.

It is true, as the plaintiffs and the KCMSD repeatedly 
state in their briefs, that the district court found that a 
“dual housing market . . . still exists to a large degree 
today.” Jenkins, at 1491. It is also true that the court 
below found that the residential concentration of blacks 
in the KCMSD has “caused the public schools to swell in 
black enrollment.” Ibid. But it is one thing to note the 
existence of racial disparities in housing, quite another to 
hold that the disparities are the result of unlawful dis­
crimination by a particular defendant. Here, the find­
ings of fact, specifically addressing each claim advanced 
by the plaintiffs and the KCMSD, make it clear that the 
State is not legally responsible for the “dual housing 
market” identified by the court.

D. The District Court’s Findings Dispose of the Inter­
district Claims Against the State Defendants.

In these appeals, the plaintiffs and the KCMSD have 
adopted what amount to three lines of attack against the 
refusal of the district court to find no interdistrict lia­

39 The only evidence of discrimination by the Commission is its 
endorsement in the early 1940s of a realtor Code of Ethics that 
embodied racial considerations and its apparent enforcement of 
racially restrictive covenants. See PI. Exh. 316, 1386. Not even 
plaintiffs, however, claim that these actions have any significant 
effect on housing, let alone on schools, forty years later, and there 
is no evidence suggesting such an effect. Indeed, to suggest such 
an effect would squarely conflict with the district court’s finding 
that the State’s enforcement of restrictive covenants before 1948/ 
53 has no significant current effects.



30

bility on the part of the State defendants. First, they 
have sought to reargue the underlying facts, trying in 
effect to treat this Court as a successor trial court. Sec­
ond, they have sought to introduce into the law governing 
claims of interdistrict segregation a burden-shifting pre­
sumption that derives from the one used in intradistrict 
cases. Third, they have sought to portray the decision 
below as infected with legal error. None of these attacks 
on the district court’s rejection of the interdistrict claims 
has any merit.

1. The district court’s findings cannot be overturned 
unless they are clearly erroneous. See Fed. R. Civ. P. 
52(e). This is so even with respect to findings that de­
pend entirely on documentary evidence, let alone on the 
mixture of documentary and testimonial evidence that 
was presented in this case. Anderson v. City of Bes­
semer City, N.C., 105 S.Ct. 1504, 1512 (1985).40 The 
clearly erroneous standard, of course, requires great def­
erence to the trial court’s findings:

If the district court’s account of the evidence is 
plausible in light of the record viewed in its entirety, 
the court of appeals may not reverse it even though 
convinced that had it been sitting as the trier of 
fact, it would have weighed the evidence differently. 
Where there are two permissible views of the evi­
dence, the factfinder’s choice between them cannot be 
clearly erroneous.

Id. at 1512. Moreover, deference to the trial court’s view 
of the evidence is especially important in a school desegre­
gation case like this, where discriminatory intent regard­
ing numerous acts must be determined (often from cir­
cumstantial evidence) and various alleged unlawful 
causes of racial disparities must be sifted from among 
the myriad causes that do not give rise to liability on the 
part of a particular defendant. See Columbus, 443 U.S. 
at 457 n.6; Goldsboro City Board of Education v. Wayne

40 The clearly erroneous standard applies equally to findings of 
fact that are taken from proposed findings submitted by one of the 
parties to the case. 105 S.Ct. at 1511.



31

County Board of Education, supra, 745 F.2d at 327-28; 
see also Pullman-Standard v. Swint, 456 U.S. 273 (1982).

We think it clear from the record, as recounted in de­
tail above, that the district court’s findings of fact on the 
interdistrict claims would stand under any standard of 
review, because those findings are, in all crucial respects, 
virtually demanded by the evidence in the case. All the 
more apparent is it that those findings must stand under 
the “clearly erroneous” rule. As shown above, there is 
ample support in the record for the district court’s find­
ings that the local school districts are independent and 
autonomous, that there has been no racial gerrymander­
ing, that the pre-1954 segregation policy was not a sig­
nificant cause of today’s interdistrict racial disparities, 
that none of the challenged post-1954 State school-related 
actions was racially discriminatory, that the enforcement 
of racially restrictive covenants more than 30 years ago 
has at most a de minimis effect on school enrollments 
today, and that none of the other challenged housing- 
related actions of the State was racially discriminatory. 
It can scarcely be said that these findings, entered by a 
judge who managed the case for seven years and presided 
over eight months of trial, are not plausible in light of 
the record as a whole. Indeed, by their careful avoidance, 
throughout their briefs, of the contention that the court’s 
findings are clearly erroneous, the plaintiffs and the 
KCMSD have effectively conceded that these findings can­
not be overturned. Accordingly, the district court’s find­
ings must be accepted by this Court.

2. As the district court’s factual findings make clear, 
none of the discriminatory acts alleged as a basis for in­
terdistrict relief (including the pre-1954 segregation pol­
icy and the pre-1948/53 enforcement of racially restric­
tive covenants) has more than de minimis effects on 
school enrollments today. Not surprisingly, no case has 
ever rested interdistrict liability on findings of negligible 
current effects of thirty-year old actions, even where 
there have been a greater number and more recent cross­
district transfers than those shown here. See, e.g., Milli-



32

ken I, supra, 418 U.S. at 750; Goldsboro City Board of 
Education V. Wayne County Board of Education, supra, 
745 F.2d at 330-31; Lee v. Lee County Board of Educa­
tion, supra, 639 F.2d at 1257-60; 41 Tasby v. Estes, supra, 
412 F. Supp. at 1188-92, aff’d, 572 F.2d at 1015-16 & 
n.19; Armour v. Nix, supra [discussed in Lee v. Lee 
County Board of Education, 639 F.2d a t 1259]. Recog­
nizing as much, the plaintiffs and the KCMSD have 
tried to avoid their failure of proof by proposing—with­
out admitting that they are proposing—a novel and un­
warranted modification of existing law.

The plaintiffs and the KCMSD suggest that interdis­
trict liability on the part of the State may be based on 
two simple facts: that the State had once engaged in 
unlawful segregation that had no more than the de 
minimis interdistrict effects found here; and that inter­
district racial disparities exist today. According to plain­
tiffs and the KCMSD, nothing further need be shown to 
shift the burden to the State and SSD defendants to 
demonstrate that current interdistrict disparities are not 
in fact traceable to the thirty-year old State policies. 
Plaintiffs and the KCMSD seek to borrow for the anal- 41

41 The Fifth Circuit in Lee v. Lee County Board of Education 
concluded that even where, unlike this case, “an interdistrict trans­
fer program was formerly used in order to maintain racial segre­
gation,” an interdistrict remedy cannot be justified “unless it is 
established that these transfer programs have a substantial, direct 
and current segregative effect.” 639 F.2d at 1260. With respect to 
the allegation, similar to the one that is the centerpiece of plain­
tiffs’ and the KCMSD’s claim here, that the transfer practices had 
a current effect because they contributed to the development of 
housing patterns, the Court of Appeals stated:

This assertion is vague and speculative. . . . The possible 
causes of residential segregation are myriad. In the absence 
of some more compelling logic or more convincing evidence to 
support the conclusion that current demographic patterns in 
Western Lee County are directly caused by the practice of 
inter-district student transfers employed prior to 1970, we 
cannot conclude that such transfers support an inter-district 
desegregation order under Milliken.

Ibid. This reasoning applies with even greater strength when the 
challenged transfer practices occurred, not 11 years ago, but more 
than thirty years ago.



33

ysis of their interdistrict claim a modified version of the 
presumption from intradistrict cases that the Supreme 
Court articulated in Swann, 402 U.S. at 26. See, e.g., 
Plaintiffs’ Brief at 52; KCMSD Brief at 42-43. The 
Court should reject this attempt to alter the law.

First of all, even if the Swann presumption could be 
extrapolated into interdistrict cases, it would not apply 
unless the prior policy created separate black and white 
districts. The very premise of the Swann presumption 
(applied, within a single district, to schools) is that the 
separation of white and black students that exists now is 
the same as the separation that existed at a time of man­
datory segregation. But, as the record in this case openly 
shows, the present condition of 1 majority-black district 
and 11 majority-white districts is not the same as the 
condition prevailing in 1954: then, the KCMSD was a 
majority white district. Furthermore, no State policy re­
quired the education of black students in the KCMSD or 
generally required their exclusion from the SSDs.

Moreover, even if the Swann presumption were to ap­
ply other than to specifically mandated segregation among 
districts, its rationale could not be extended to cases 
where the impact of the prior segregative policy was in­
significant. The presumption thus would not apply 
where, as here, the trial court specifically found that, 
when the State policy was in effect, it made at most a 
negligible contribution to interdistrict segregation. Were 
it otherwise—and this is apparently what plaintiffs and 
the KCMSD suggest—the defendants would bear the bur­
den of disproving a causal nexus between the segregation 
policy and interdistrict disparities thirty years later even 
if only one student transferred before 1954 because no 
black school existed where that student lived. This sit­
uation is not the same as the complete, forced segrega­
tion that the Swann Court had in mind. Thus, the Swann 
presumption would not apply to this case even if it could 
justifiably be extended from the intra- to the interdistrict 
context.



34

In fact, however, there is no justification for applying 
the Swann presumption to claims of interdistrict segre­
gation. No court has ever applied it in such circum­
stances or even suggested that it should apply.42 Indeed, 
the proposed extension was specifically rejected by the 
Fifth Circuit in Lee v. Lee County Board of Education, 
supra, 639 F.2d at 1254-55. The reasons are evident 
from the fact, which Milliken I  so heavily stressed, that 
there is a tremendous difference between an intradistrict 
claim and an interdistrict claim involving autonomous 
districts.

The Swann presumption applies “within an autonomous 
school district as a signal which operates simply to shift 
the burden of proof” on the question whether current 
racial disparities are in fact discriminatory. Milliken I, 
418 U.S. at 741 n.19. Thus, if a single district had once 
assigned students to schools on the basis of race, and at 
a later date racial disparities still exist in the district’s 
assignment of students to schools, it makes sense to re­
quire the school authorities to show that the present dis­
parities do not exist for the same reason that the earlier 
ones did. After all, within a single district, it is a single 
entity that has been doing the assigning at both the 
earlier and later times, and if there is continuity of re­
sult, the district may be held to the task of demonstrat­
ing that there is no continuity of reason for the result.

The interdistrict context is radically different. In that 
context, if districts are autonomous, as they have long 
been in Missouri, there is no single “system” assigning

42 The cases on this issue that plaintiffs point to all involve ra­
cial gerrymandering. See Plaintiffs’ Brief at 52-53. In such cases, 
there is no occasion to employ a Swann-type presumption, because 
the only issue is whether particular boundary decisions were ra­
cially motivated. There is no gap between a segregated condition 
and a prior discriminatory act that must be causally bridged, and 
hence there is no call for any presumption: once racially motivated 
boundary manipulation has been shown, boundary lines are no 
longer entitled to the same degree of respect. Thus, the cases cited 
by plaintiffs are not precedent for application of the Swann pre­
sumption in interdistrict cases.



35

students to schools across district lines. Student assign­
ment is a district-by-district matter, and where students 
reside is not controlled by any governmental entity 
(State or SSD). Accordingly, there is no interdistrict 
assigner of students whose motives are suspect, and thus 
no call for the Swann presumption. This is so, of course, 
even if, as is plainly not the case here, a single entity 
assigning students across district lines did exist at one 
time, for in the absence of a current entity assigning 
students, there is simply no entity to which a presump­
tion of unlawful motive in assigning can now be ap­
plied.43 This is doubly so when, as here, there was never 
any interdistrict assignment system.44

Not only does the Swann presumption make no sense 
in the interdistrict context, but application of it to an 
interdistrict claim would run afoul of the principles artic­
ulated in MUliken I. That case establishes “fundamental 
limitations on the remedial powers of the federal courts 
to restructure the operation of local and state govern­
mental entities.” Hills, 425 U.S. at 293. The whole 
point of MUliken I  was to require a distinctively strong 
showing before the deeply rooted tradition of local con­
trol is cast aside and the “established geographic and 
administrative school system” is overridden. MUliken I, 
418 U.S. at 746. Even assuming it made sense to do so, 
importing the Swann presumption into the interdistrict

43 Thus, even if the few pre-1954 transfers that existed in this 
case were to be mischaracterized as a “system,” as the KCMSD 
does throughout its brief, that “system” has in fact been disman­
tled: there is today no interdistrict assignment “system.”

44 In Milliken I, supra, the Supreme Court repeatedly pointed 
out that Swann concerned only intradistrict segregation. See, e.g., 
418 U.S. at 740, 741 (interdistrict remedy issue “not presented in 
Swann”) , 741 n.19. Indeed, the Court specifically stated: ‘‘Brown, 
supra-, Green, supra; Swann, supra; Scotland Neck, supra; and 
Emporia, supra, each addressed the issue of constitutional wrong 
in terms of an established geographic and administrative system 
populated by both Negro and white children. In such a context, 
terms such as ‘unitary’ and ‘dual’ systems, and ‘racially identifiable 
schools,’ have meaning, and the necessary federal authority to rem­
edy the constitutional wrong is firmly established.” 418 U.S. at 746.



36

context would fly directly in the face of the Court’s 
rejection of the “notion that school district lines may be 
casually ignored or treated as a mere administrative 
convenience.” 418 U.S. at 741.4’5

3. The third line of attack taken by the plaintiffs and 
the KCMSD is to suggest that the district court com­
mitted a legal error by misinterpreting Milliken I. Thus, 
according to the KCMSD, the district court found the 
State liable for creating and for failing to eradicate 
“the racially dual school system in the Kansas City Met­
ropolitan area” but did not order correction of this “sys­
tem” because the court “misapprehended the legal stand­
ard applicable to interdistrict violations and relief.” 
KCMSD Brief at 22. This argument is wrong on sev­
eral counts.

The first error is that the entire argument depends 
on a false premise: that the district court found the 
State defendants responsible for a dual school system in 
the “Kansas City Metropolitan area.” Throughout its 
opinion (including at the very pages that the KCMSD 
cites to support its theory), the district court said again 
and again, in almost the same terms, that the violation 
was the failure to eliminate the “vestiges of the dual 
school system in the KCMSD.” Jenkins, at 1505 (em­
phasis added). See id. at 1504 (“vestiges of the State’s 
dual school system still lingering in the KCMSD”) 
(emphasis added); id. (failure to “dismantle the 
KCMSD’s dual school system”) (emphasis added); id. 
at 1492 (“inferior education indigenous of the state- 
compelled dual school system has lingering effects in the 
Kansas City Missouri School District”) (emphasis add­
ed) ; id. {“the District did not and has not entirely dis- 45

45 Given this plain statement by the Supreme Court, it is some­
what startling that the KCMSD’s brief quotes, as if Milliken I  had 
not later held to the contrary, the assertion from Haney v. County 
Board of Education of Sevier County, Arkansas, suyra, 410 F.2d 
at 925, that “ [political subdivisions of the state are mere lines 
of convenience for exercising divided governmental responsibilities.” 
KCMSD Brief at 27.



37

mantled the dual school system. Vestiges of that dual 
system still remain.” ) (emphasis added) ; see also id. 
at 1492 (“Court . . . will focus on the anatomy of the 
KCMSD”) (emphasis added). Having found a violation 
“in the KCMSD,” the court then set out to remedy just 
that violation.46 The court thus specifically directed the 
parties “to prepare a plan which would establish a 
unitary school system within the KCMSD” Id. at 1506 
(emphasis added). The court described that plan as 
one “to dismantle the vestiges of a dual school system 
in the KCMSD.” Ibid, (emphasis added).

This series of findings and instructions is the natural 
corollary to the extensive findings of the district court 
that the plaintiffs and KCMSD did not show any signifi­
cant current interdistrict effects from unconstitutional 
behavior. Thus, the court concluded that plaintiffs and 
the KCMSD had proved only a violation “in the KCMSD” 
calling for a remedy “in the KCMSD.” That conclusion, 
far from being inconsistent with Milliken I, is compelled 
by Milliken I. The contrary suggestion of the plaintiffs 
and KCMSD owes more to their misreading of the de­
cision below than to any misreading of Milliken I  by the 
district court.

The plaintiffs and KCMSD are also somewhat mis­
leading in their selection of quotes regarding the legal 
standards applied by the district court. Thus, the dis­
trict court repeatedly and correctly recited the governing 
standard from Milliken I. See, e.g., June 5 Order at 14; 
Order of June 1, 1981 at 17. Moreover, the court on 
several occasions clearly expressed the view of that stand­
ard that plaintiffs and the KCMSD insist is the correct 
one. See, e.g., Order of Jan. 25, 1985 at 2 (interdistrict 
remedy may not extend to SSDs “in which no constitu­

46 As we discuss in part II of this brief, we disagree with por­
tions of the remedy on the ground that they are not supported by 
adequate findings about conditions caused by the violation. But 
there is no question that, whatever the scope of those findings may 
be, they relate at most to conditions within the KCMSD, not 
throughout the entire metropolitan area.



38

tional violation or significant segregative effect has been 
found” ) ; Order of June 1, 1981 at 16-17; Order of 
August 12, 1981 at 8 (“If the evidence later developed 
in this case demonstrates that these outlying school dis­
tricts have been ‘neither [1] involved in nor [2] affected 
by [a] constitutional violation, Milliken v. Bradley, 433 
U.S. 267, 282, 97 S.Ct. 2749, 53 L.E.2d 745, 757 (1977) 
(brackets added), then those districts could not properly 
be included in any remedial plan which this Court might 
fashion.” ) ; School District of Kansas City v. State of 
Missouri, supra, 460 F. Supp. at 429-31 (interdistrict 
relief barred only for districts “ ‘neither involved in nor 
affected by’ ” violation).

To their selective reading of the orders below, the 
plaintiffs and KCMSD add a similarly selective reading 
of Milliken I. Although certain language in Milliken 1 
can be read to suggest that a remedy may involve in­
dependent school districts merely upon a showing that 
they were affected by an interdistrict violation, the 
plaintiffs and KCMSD too readily skip over the parts 
of Milliken I that express serious concern about imposing 
a remedy on essentially innocent parties. The Milliken 
Court, for example, shortly after reviewing the standards 
that plaintiffs and the KCMSD cite, stated: “To approve 
the remedy ordered by the court would impose on those 
outlying [suburban] districts, not shown to have com­
mitted any constitutional violation, a wholly impermis­
sible remedy based on a standard not hinted at in Brown 
I and II  or any holding of this Court.” 418 U.S. at 745 
(emphasis added). This statement followed repeated 
references by the Court to the absence of “any finding 
that the included districts committed acts which effected 
segregation within the other school districts,” id. at 
722, the lack of any “claim that these outlying districts 
had committed constitutional violations,” id. at 730, the 
failure of the district court to address “the claim that a 
finding of a constitutional violation by the intervenor 
[suburban] districts was an essential predicate to any 
remedy involving them,” id. at 733, and the failure of



39

the Court of Appeals to acknowledge “that no constitu­
tional violation by the outlying districts had been
shown,” id. at 735-36.

The opinion in Milliken I  is thus an unreliable place 
to look for clear authority that a court can abolish inde­
pendent, autonomous school districts in the absence of 
any indication that they are responsible for an existing 
unconstitutional condition. On the contrary, the emphasis 
in Milliken I  on local autonomy strongly suggests that 
a federal court may not undertake to do away with a 
school district simply on a showing that it was somehow 
affected by the constitutional violation of another party. 
That situation is very different from a situation in 
which the boundaries of the district have been drawn 
with discriminatory purpose (and may thus be suspect 
from the start) or in which the district committed acts 
causing significant current segregation somewhere else. 
Only in the latter cases can a school district properly be 
said to have forfeited the right to assert its independence.47

In any event, in a case like this one where the court 
found no interdistrict effects, the issue is a red herring. 
The assumed legal error would make a difference only 
if the district court had declined to consider the inter­
district claim against the State defendants or if the court 
had not made findings on the elements of that claim in­
dependent of the idea that the SSDs must have discrim­
inated. The record makes clear that neither is the case. 
As shown in detail above, the district court plainly con­
sidered every single basis for interdistrict liability

47 Holdings in the lower courts are not on point, because the 
only cases finding interdistrict liability involve racial gerrymander­
ing : where discrimination is found in the very existence or shape 
of a school district, it is a remedy precisely tailored to the viola­
tion, and it hardly offends the tradition of local control, to re­
vise or override the discriminatorily manipulated boundaries. See 
Morrilton School District No. 32 V. United States, supra, 606 F.2d 
at 228-29.

See also Liddell VII, supra, 731 F.2d at 1308 (“The Supreme 
Court in Hills . . . has interpreted Milliken I to mean that district 
courts may not restructure or coerce local governments or their 
subdivisions.”)



40

against the State that the plaintiffs or the KCMSD put 
forth. Moreover, with respect to every such basis, the 
district court entered findings, wholly separate from 
whether the SSDs had discriminated, that the State’s act 
was either not racially motivated or, in the case of the 
pre-1954 segregation policy and the pre-1948/53 enforce­
ment of racially restrictive covenants, had at best a 
de minimis effect on current interdistrict segregation. 
The plaintiffs and the KCMSD have pointed to not a 
single instance in which, and not even suggested how, 
these were affected by the reading of Milliken I  that they 
attribute to the court below. Plainly, they were not. 
See pages 10-29 supra.

II. The District Court Adopted an Improper Remedy for 
the Intradistrict Violation.

Although the plaintiffs and the KCMSD principally 
sought to prove segregation on an interdistrict basis, the 
district court found that they had alleged, and proved, 
segregation within the KCMSD itself. The court thus 
devised an elaborate remedy—applying to every school 
within the district and costing a minimum of 87 million 
dollars over a three-year period—to redress the “vestiges 
of the dual school system in the KCMSD.” Jenkins, at 
1505.

It should be made clear at the outset that the State 
does not in any way seek to justify or excuse the “dual 
school system” once required by State law. Moreover, 
the State does not challenge, as such, the finding of in­
tradistrict liability. Our appeal in this case is simply 
over what the vestiges of that dual school system are 
30 years after it was declared void and what constitutes 
a proper remedy to eliminate those vestiges.

A. The District Court, in Developing a Remedy for 
Segregation Within the KCMSD, Failed to Limit the 
Remedy to Redress of the Conditions Caused by 
That Segregation.

The legal standards governing the fashioning of deseg­
regation relief are, by now, well-known. The Supreme



41

Court eight years ago set out the essential finding that 
must be made before any remedy is appropriate in a 
school desegregation case: “that the constitutional vio­
lation caused the condition for which remedial programs 
are mandated.” Milliken II, 433 U.S. at 286 n. 17. 
Once the conditions caused by the violation have been 
identified, a court must then “tailor ‘the scope of the 
remedy’ to fit ‘the nature and extent’ of the constitu­
tional violation.” Hills, 425 U.S. at 293-94.

The first obligation in following these principles is 
thus to identify the dimensions of the violation—i.e., 
the “current conditions of segregation resulting from 
intentional state action.” Davis, 426 U.S. at 240. That 
obligation is a necessary antecedent to all that follows 
because federal equitable powers “ [can] be exercised 
only on the basis of a violation of the law and [can] 
extend no further than required by the nature and extent 
of that violation.” General Building Contractors Ass’n 
v. Pennsylvania, 458 U.S. 375, 399 (1982). Stated an­
other way, “federal-court decrees exceed appropriate 
limits if they are aimed at eliminating a condition that 
does not violate the Constitution or does not flow from 
such a violation . . . .” Milliken II, 433 U.S. at 282.

The definition of a constitutional violation—i.e., iden­
tifying the acts of discrimination and the present con­
ditions resulting therefrom'—is not a matter for judicial 
discretion. On the contrary, the Supreme Court has 
emphasized that the existence and extent of a constitu­
tional violation “must be satisfactorily established by 
factual proof and justified by a reasoned statement of 
legal principles.” Dayton I, 433 U.S. at 410. See also 
Columbus, 443 U.S. at 470 (Stewart, J., concurring in 
result) (“ [t] he development of the law concerning school 
desegregation has not reduced the need for sound fact­
finding by the district courts” ). Indeed, the Supreme 
Court in several instances has remanded school cases on 
the ground that the factual findings regarding the scope 
of the violation were inadequate. See School District of



42

Omaha v. United States, 433 U.S. 667 (1977); Brennan 
V. Armstrong, 433 U.S. 672 (1977).

In this case, the district court made only two direct 
findings about the conditions resulting from (or the 
“vestiges” of) the “dual school system” : one relating to 
the existence of 24 largely-black schools in the KCMSD 
and the other to “inferior education indigenous of the 
state-compelled dual school system.” Jenkins, at 1492, 
1493. As we discuss below, the first finding (which the 
State does not challenge for purposes of this appeal) is 
simply too narrow to support a remedy reaching every 
school and every student throughout the KCMSD. See 
pages 42-47 infra. The second finding, the scope of 
which is uncertain on its face, likewise cannot justify 
improvements throughout the KCMSD in light of, first, 
the lack of proof actually linking general conditions in 
the KCMSD to the prior dual system and, second, the 
clear evidence of other causes (including declining local 
support) of those conditions. See pages 47-53 infra. 
The remedy thus goes well beyond the violation at issue 
in this case.

1. The Finding of Segregation in the 90+% Black 
Schools. The district court here was clearly of the view 
that the primary “vestige of the dual school system” 
was the presence of 24 schools found to be “racially iso­
lated with 90+% black enrollment.” Jenkins, at 1493. 
But the fact of a current racial disparity, even in a 
district that was previously segregated by law, does not 
automatically establish the existence of a continuing con­
stitutional violation. As the Supreme Court has ob­
served, the Constitution is not violated by racial im­
balance in the schools, without more.” Milliken II, 433 
U.S. at 280 n. 14. The district court thus was required 
to do more than merely “equal [e] racial imbalance with 
a constitutional violation calling for a remedy.” Milliken 
I, 418 U.S. at 741 n. 14.48

See also Alexander v. Youngstown Board of Education 
.2d 787, 791 (6th Cir. 1982) ; Armstrong v. Board of School
4,8



43

The Supreme Court in Swann, of course, while not re­
moving the need to establish proper causation, did adopt 
a presumption linking the existence of largely one-race 
schools to a prior dual system in the absence of evidence 
to the contrary.* 49 In such cases, where schools of pre­
dominantly one race are present at the time of trial, “the 
burden [is] upon the school authorities . . .  to satisfy the 
court that their racial composition is not the result of 
present or past discrimination.” Swann, 402 U.S. at 26. 
But, even giving full weight to that presumption here, 
there is good reason to doubt that the former dual school 
system caused the present condition of 24 largely-black 
schools within the KCMSD,

To begin with, the district court seemingly gave no 
weight to the fact that the overall student population 
within the KCMSD is approximately 70i% black. Under 
such circumstances, the existence of 90~H% black schools 
is plainly less indicative of current or lingering discrimi­
nation than it would be in a district with a black popula­
tion of, for example, 43% (Dayton) or 32% {Columbus). 
This fact is reinforced by the absence in the KCMSD of 
any school that is set aside primarily for white students. 
(The KCMSD has only one school that is more than 70% 
white.) Compare Adams v. United States, supra, 620 
F.2d at 1285. In light of these percentages, it is not self- 
evident that the distribution of students would now be 
markedly different if the schools had not been segregated 
before.80

The history of these- particular schools, about which the 
district court also had little to say, raises further con­

rectors of the City of Milwaukee, 616 F.2d 305, 321 (7th Cir. 
1980) ; United States v. Board of Education of Valdosta, Georgia, 
576 F.2d 37, 39 (5th Cir.), cert, denied, 439 U.S. 1007 (1978).

49 As we have discussed above, this presumption applies to segre­
gation within a single district, not to racial disparities among 
several districts. See pages 31-36 supra.

59 Indeed, when the court below addressed the issue of racial 
distribution for purposes of determining the proper remedy, it 
expressed scepticism that any further desegregation could be 
achieved by pupil reassignment. Remedy Order at 31.



44

cerns. Unlike the situation prevailing in many formerly 
de jure districts, the largely-black schools in the KCMSD 
are not lineal descendants of once all-black schools. To 
the contrary, of the 24 schools cited by the district court, 
17 were white schools prior to Brown. (Another, South­
east, opened later with a more than 90% white enroll­
ment.) KCMSD Exh. K2. Thus, each of these schools 
underwent a complete racial transition in the years fol­
lowing Brown, a transition that is consistent with the 
trend of population in general within the KCMSD and 
in many other urban school districts as well. See page 
15 supra. At the very least, this pattern lessens the 
force of the Swann presumption since it is not reason­
able to assume that, in the absence of strong evidence to 
the contrary, the existence of a black school in 1984 was 
caused by its standing as a white school in 1954.

Although the district court did note in passing the 
“racial change in the schools and housing patterns, usu­
ally changing from predominantly white to predominantly 
black,” it went on to hold that the evidence of such 
“resegregation” had “no legal significance.” Jenkins, at 
1492. This conclusion, however, mistakenly merges two 
distinct concepts. This case does not involve “resegrega­
tion” as that term is properly understood: i.e., the return 
of once-black schools to a predominantly black student 
body after an unsuccessful period of attempted integra­
tion. In that situation, the courts have held that a failed 
effort to desegregate does not necessarily discharge a con­
stitutional violator of his duty to break down what he 
once created. See, e.g., Davis v. East Baton Rouge Parish 
School Board, 721 F.2d 1425, 1435 (5th Cir. 1983).* 51 
Here, by contrast, most of the schools in question have 
gone, not from black to black, but from white to black. 
Since the original condition of segregation in those schools

o1 On the other hand, it is well-established that, having once
eradicated the effects of prior segregation, a school district does 
not have a constitutional obligation to maintain any particular 
level of racial balance. Pasadena City Board of Education v. 
Spangler, 427 U.S. 424, 435-37 (1976).



45
(i.e., their exclusively white character) has been broken 
down, the court must undertake a further inquiry into 
whether the current condition of racial identifiability is 
nonetheless the product of unlawful discrimination. The 
district court made no such effort here.

Despite the questions raised by this analysis, the State 
has decided not to challenge the finding for two reasons. 
First, as a practical matter, the combination of the 
Swann presumption and the “clearly erroneous” standard 
makes such a challenge difficult to sustain even on a rec­
ord like the one in this case. Second, and in any event, 
the State is not opposed to a properly-tailored remedy to 
aid the students in those schools. But, even if this finding 
is taken at face value, it is sufficient only to support re­
lief for the particular students harmed by such racial 
isolation, not the school-by-school improvements contem­
plated by the district court. As the Supreme Court ob­
served in Milliken II, a remedy must be designed “ ‘to 
restore the victims of discriminatory conduct to the posi­
tion they would have occupied in the absence of such con­
duct.’ ” 433 U.S. at 280, quoting Milliken I, 418 U.S. at 
746 (emphasis added).

The definition of the “victims of discrimination” ap­
pears to have been the source of some confusion in the 
district court. Initially, having found a violation on the 
part of the State and the KCMSD, the court in its order 
of September 17th directed the parties to “concentrate 
on the schools in which the student enrollment is more 
than 90% black.” Jenkins, at 1506.52 That directive,

52 The State defendants initially submitted a plan (January 18, 
1985) that followed that admonition. The State defendants’ second 
plan (March 26, 1985), an elaboration of the first, followed the 
same principle. When, however, in conferences held prior to the 
remedy hearing, Judge Clark made it clear that he would consider 
only a district-wide remedy, the State defendants submitted an 
alternative plan (April 29, 1985) that proposed remedial programs 
for all the schools in the KCMSD. See Memorandum of the State 
of Missouri Regarding the Remedy Hearing and Alternate District- 
Wide Plan (April 29, 1985) at 2. The State in its submission ex­
pressly reserved the right to challenge the requirement of a plan 
reaching all schools in the KCMSD. Id. at 2.



46

taken together with the emphasis placed upon the “racial 
isolation” of those schools, seemed to indicate that the 
harms caused by such racial isolation fell primarily upon 
those students. But, shortly thereafter, in its order cer­
tifying the class of plaintiffs in this case, the court or­
dered that the class consist of all students in the KCMSD, 
regardless of race or school of attendance. Subsequently, 
the court stated that “the minority students in the 
KCMSD are the victims of racial discrimination which 
was mandated by the Constitution and statutes of the 
State of Missouri . . . .” Remedy Order at 3. Finally, 
of course, the court decided to impose a remedy that 
applies in virtually the same fashion to all students in 
the KCMSD.

A finding of racial isolation in some schools does not, 
however, justify a series of general improvements aimed 
at all students in all schools. To the extent that the stu­
dents in the 24 largely-black schools have been unlawfully 
segregated, as the district court specifically found, they 
stand in a different constitutional posture from the stu­
dents in other schools throughout the district. As Brown 
made clear, the “inherent inferiority” of a deliberately 
segregated school burdens the students of that school in 
ways not felt by black students in a non-segregated 
school, and certainly not by white students within the 
same system. See Brown, 347 U.S. 493 (finding that 
“segregation of children in public schools solely on the 
basis of race, even though the physical facilities and other 
‘tangible’ factors may be equal, deprive[s] the children 
of the minority race of equal educational opportunity”). 
In fact, the very premise of a remedial program is to 
redress the disadvantages experienced by particular stu­
dents as a result of forced segregation, a premise that 
assumes, and logically depends on, the existence of other 
students not similarly disadvantaged.

The record is undisputed that, at the time of trial, the 
KCMSD did not have a system of completely all-white 
and all-black schools as it had maintained 30 years ear­
lier. To the contrary, many of the KCMSD schools had



47

then, and have now, substantial numbers of black and 
white students in every grade. For example, during the 
1984-85 school year, 20 elementary schools (out of 50) 
had a student body that was at least 40% white. Two 
more were between 39 and 40 percent white, while an­
other 7 schools had a student body that was at least 20% 
white. KCMSD Exh. K74. In such circumstances, a find­
ing that 24 schools are still racially isolated is not either 
the legal or factual equivalent of a finding that students 
in all other schools are also the victims of continuing dis­
crimination.

2. The Finding of Indigenous Inferiority. The district 
court made only one other express finding about vestiges 
of the dual system: that “the inferior education in­
digenous of the state-compelled dual school system has 
lingering effects in the Kansas City, Missouri School Dis­
trict.” Jenkins, at 1492. That finding also is insufficient 
to support the broad relief in this case.

In the first place, the scope of the finding itself is 
unclear. The court does not identify what the dimensions 
of the “lingering effects” might be or what students are 
subjected to those effects. The finding, read in context, 
may thus describe only the conditions in those schools that 
are deemed themselves to be vestiges of the prior dual 
system. Taken that way, the finding would reinforce the 
finding that the students in those 24 schools are still 
suffering the effects of once-compelled segregation, defin­
ing more specifically what the additional effects (beyond 
racial isolation) presently are.

If the finding is intended to be read more expansively 
—to identify a causal connection between general condi­
tions throughout the KCMSD and the “dual school sys­
tem”—it stands essentially unsupported. The court of­
fered two bases for its finding. The first, resting on the 
Brown theory about the inferiority endemic to segregated 
schools, is, as we have just discussed, too narrow a ground 
to explain extending programs to unsegregated schools. 
The second, depending on a chain of reasoning about



achievement, poverty, and race, is far too broad to be 
sustained on this record.

The discussion of the relationship among poverty, race, 
and achievement is remarkably brief for so complex and 
controversial a subject. In its discussion, the court first 
indicates that “ [t]he general attitude of inferiority 
among blacks produces low achievement which ultimately 
limits employment opportunities and causes poverty.” 
Jenkins, at 1492. Then, however, the court goes on to 
acknowledge that “poverty results in low achievement re­
gardless of race.” Ibid. Finally, after stating that it is 
“undeniable that most poverty-level families are black,” 
ibid., the court proceeds to a conclusion that “the inferior 
education indigenous of the state-compelled dual school 
system has lingering effects.” Ibid.

This loose analysis reveals little about the real nature 
of cause and effect in this case. To begin with, we ques­
tion whether an assertion of such sweeping generality 
could ever support a finding of segregation-caused injury 
in a particular case. Putting that aside, however, it is 
clear, first of all, that the generalization does not readily 
apply to the roughly 10,000 white students in the KCMSD 
or to black students who do not fit the pattern so quickly 
sketched by the court. Even more importantly, the record 
simply will not support the sequence of conclusions essen­
tial to the proposition that, because it produced attitudes of 
inferiority among blacks that in turn caused low achieve­
ment among blacks that in turn caused poverty among 
blacks, the prior dual school system now causes low 
achievement among black students in the KCMSD. While 
it may well be possible to correlate socioeconomic status 
and school achievement, see Tr. 16,507-08 (testimony of 
Dr. Daniel Levine, witness for the KCMSD), it is a 
wholly different matter of proof to demonstrate that pres­
ent conditions of black poverty in the KCMSD (and, con­
sequently, low achievement among poorer students) are 
the result of the prior “state-compelled dual school sys­
tem.” The citation of a dozen pages of testimony, pulled 
from the record of months of trial, is, by no reasonable

48



49

standard, a sound basis for concluding that unlawful 
segregation in the KCMSD has caused educational defi­
ciencies throughout the district.

In our view, the finding regarding inferior education 
ultimately rests upon nothing much more definite than an 
assumption about the causes of below-average achievement 
in the KCMSD. For that reason, it is important to recog­
nize that the Swann presumption does not apply to shift 
the burden of proof where the condition at issue is not 
racial disparity but a more general condition like poor 
achievement. Apart from the fact that the Swann pre­
sumption is expressly stated in terms of racial disparities, 
see 402 U.S. at 26, the logic of the presumption applies 
only to that situation. While it is reasonable to presume, 
absent contrary evidence, that racial disparities within 
a district are the residue of a time when racial disparities 
were intentional, it does not stand to reason that any and 
all problems in a particular school system have their 
origin in past segregation. To the contrary, both com­
mon sense and a familiarity with other school systems 
would suggest that the overall level of conditions in a 
particular school district is typically determined by many 
forces other than policies regarding racial assignments.

That suggestion is fully borne out in this case. For, 
although the district court did not discuss it, the history 
of the KCMSD reveals unmistakably that the current 
status of AA classification and the poorer quality of its 
facilities are not conditions prevailing constantly since 
1954 or at any time thereabouts. To the contrary, for a 
period long after 1954, the KCMSD was rated AAA and 
had facilities among the best, if not the best, in the State. 
The decline in the conditions of the KCMSD is thus an 
event of very recent origin, occurring for the most part 
more than two decades after the State ended its require­
ment of mandatory segregation.

Had the district court looked into the reasons for that 
decline, it could not have reasonably concluded that seg­
regation was the cause. Rather, the decline in conditions 
from the late 1970s to the present tracks closely a pat­



50

tern of decisions by the KCMSD taxpayers regarding 
support of their school system. Contrary to the impres­
sion given by plaintiffs and the KCMSD, and unlike the 
situation prevailing in St. Louis, the KCMSD is not a 
poor district surrounded by richer suburban districts: as 
measured by property wealth within the district (the 
basis on which school funds are raised), it is a rich dis­
trict surrounded by poorer suburban districts. Moreover, 
the suburban districts, without exception, have imposed 
upon themselves a higher rate of tax levy than the tax­
payers of the KCMSD.

The record is unequivocal on this point. While the 
average district in the State had an assessed valuation of 
$24,946 per pupil in 1983-84, the KCMSD had a far 
higher valuation of $37,918 per pupil. But this differ­
ence in property value, notable in itself, is considerably 
understated. The distortion is caused by the fact that 
Jackson County (in which the KCMSD is located) dis­
counts its assessments far more than other counties. 
State Exh. 6. If the State equalization formula is ap­
plied to these assessments, the valuation per pupil in the 
KCMSD rises to $60,371, compared to averages of ap­
proximately $40,000 in the suburban districts and state­
wide. State Exh. 4.

Upon its assessment base, the KCMSD has chosen 
to impose a below-average rate of tax levy. In 1983- 
84, the average adjusted levy for all districts in the State 
was $3.89 per $100 of assessed valuation, wThile the rate 
in the KCMSD was only $3.43. State Exh. 3.53 Even 
more importantly for present purposes, the other districts 
in the Kansas City metropolitan area (with which the 
KCMSD has sought enforced parity) have a current av­
erage levy, on an adjusted basis, of $4.28 per $100 of

5:3 By way of comparison, the adjusted levy in St. Louis in 
1983-84 was $3.50. Ibid. In St. Louis, however, the equalized 
assessed valuation per pupil was only $39,559—less than two-thirds 
the figure in the KCMSD ($60,731). Furthermore, St. Louis 
assesses its property at 25.5% of value (the second highest in the 
state) compared to 14.5% in Jackson County (the second lowest).



assessed valuation. The present adjusted rate for the 
KCMSD is $3.26 per $100.

An historical analysis is even more striking. As we 
have noted, the KCMSD maintained a AAA classification 
in every year from 1954 through 1977. In that year, the 
KCMSD imposed a tax levy slightly higher than the av­
erage levy in districts throughout the State; after 1977, 
however, its levy declined every year at a time when the 
average levy statewide increased every year. State Exh.
3. During this same period, the tax levy of the KCMSD 
each year was approximately $1.25 per $100 of valuation 
below the average of the suburban districts in this case. 
Ibid.6i

The district court, in its remedial order, did note the 
declining support from KCMSD taxpayers, but dismissed 
it as a further indication of the effects of a segregated 
system. Remedy Order at 35-36. This treatment, how­
ever, wrongly equates the condition of a majority-black 
school system with the condition of a segregated school 
system. See Milliken I, 418 U.S. at 747 n.22. As the 
record plainly shows, the KCMSD taxpayers have not 
withdrawn support from the district because it was be­
coming more segregated: there is no dispute, in fact, 
that they provided more than an adequate level of fund­
ing in the years when segregation was at its most 
pervasive. The decline in support has come only in 
recent years when the percentage of black students has 
risen. In those years, moreover, as a result of Plan 6C, 
the number of nearly all-black schools has gone down. 
See Jenkins, at 1492-93. Thus, assuming arguendo that 
the level of support was dependent at all upon racial 
factors, it cannot be tied as an evidentiary matter to the

51

64 Although a local sales tax provides same additional revenue, 
it does not make up for the huge sums lost by the lower rate of 
levy. If the KCMSD had maintained a tax rate equal to the average 
throughout the Kansas City area, it would have raised more than 
100 million additional dollars in the past ten years, enough to pay 
for many of the general programs ordered by the court.



52

degree of segregation within the KCMSD but only to the 
overall percentage of black students within the district.

The attempt to use a school desegregation case as a 
means of redressing general problems is not a new one. 
Eight years ago, Justice Powell noted a similar strategy 
in the Detroit case, pointing out that the plaintiffs and 
local school board had “joined forces . . .  for the purpose 
of extracting funds from the state treasury.” Milliken 
II, 433 U.S. at 292 (Powell, J., concurring in the 
judgment). See also Oliver v. Kalamazoo Board of Edu­
cation, 640 F.2d 782, 810 (6th Cir. 1980). Similarly, the 
Second Circuit has warned that “a court must be alert 
not to permit a school board to use a court’s broad power 
to remedy constitutional violations as a means of up­
grading an educational system in ways only remotely 
related to desegregation.” Arthur v. Nyquist, 712 F.2d 
809, 813 (1983), cert, denied, 104 S. Ct. 1907 (1984).55 
As the First Circuit has put it, “better quality education 
as a general goal is beyond the proper concern of the 
desegregation court.” Morgan v. Kerrigan, 530 F.2d 401, 
429 (1st Cir.), cert, denied, 426 U.S. 935 (1976).

The line between programs aimed at the effects of seg­
regation and programs aimed at improving conditions 
generally is not always a bright one. See Arthur v. 
Nyquist, 712 F.2d at 813. But a broad educational 
plan making almost no distinctions among students—re­
gardless of whether they are white or black, or whether 
or not they attend a school that deviates from racial per­
centages obtaining in the district as a whole—is a very 
great distance from the sort of plans noted by the Su­
preme Court in Milliken II  or approved in many other 
school cases throughout the country.56 At the very least,

05 In Arthur, the Second Circuit noted that counsel for plaintiffs 
(Thomas I. Atkins of the NAACP) had criticized “the attempts 
of school boards throughout the country, operating under desegrega­
tion decrees, secure additional funding ostensibly but, in his 
view, not realistically needed to carry out court-ordered remedies.” 
Ibid.

56 The usual emphasis in desegregation plans has been upon pro­
grams for black students in, or just moving from, segregated black



53

to support such a program, a federal court should draw 
a clear connection between the overall conditions to be 
remedied and persuasive evidence that the conditions re­
sulted from deliberate segregation. The record in this 
case contains no such evidence.

B. The District Court Committed Several Errors With 
Regard to Particular Programs.

As we have discussed, our principal objection to the 
remedy is that it is directed largely at conditions caused 
by factors other than the mandatory dual school system. 
Even if the Court should disagree with that position, 
however, there are errors with regard to particular pro­
grams that require correction. As this Court noted in 
Liddell VII, the fact that programs may be “desirable” 
does not mean that they are “necessary to provide equal 
educational opportunities to the children of St. Louis . . . 
or . . . otherwise essential as remedial or compensatory 
programs.” 731 F.2d at 1318. Rather, the record must 
show that the programs, particularly those applicable in 
all schools, “are closely related to the integration proc­
ess.” Id. at 1317.57

schools. See, e.g., Milliken II, 433 U.S. at 287 (programs for “chil­
dren who, as a group, are isolated by force of law from the main­
stream”) ; United States v. Jefferson County Board of Education, 
380 F.2d 385, 394 (5th Cir.), cert, denied, 389 U.S. 840 (1967) 
(“remedial education programs” for “students attending or who 
have previously attended segregated schools”) ; Plaquemines Parish 
School Board v. United States, 415 F.2d 817, 831 (5th Cir. 1969) 
(“remedial programs to assist students who previously attended 
all-Negro schools”) ; United States v. Texas, 447 F.2d 441, 448 
(5th Cir. 1971), cert, denied, 404 U.S. 1016 (1972) (“specific edu­
cational programs designed to compensate minority group children 
for unequal educational opportunities resulting from past or present 
racial and ethnic isolation”) ; Oliver v. Kalamazoo Board of Educa­
tion, supra, 640 F.2d at 789 (power to order “ancillary programs to 
enhance the achievement of black children if such is necessary to 
cure the effect on the black children of unconstitutional school 
segregation”) .

57 The district court did not abuse its discretion in not adopting 
the plaintiffs’ proposed housing component. As the court was aware, 
the State and federal governments have extensive provisions to 
combat discrimination in general and housing discrimination in 
particular. See, e.g., Mo. Rev. Stat. §§ 215.100, 213.105, 213.120



54

1. The Voluntary Interdistrict Program. The State 
continues to believe that an order requiring support of 
an exchange program between numerous school districts, 
based solely upon a violation in one of those districts, im­
poses an interdistrict remedy for an intradistrict viola­
tion. This Court, however, rejected that argument in 
Liddell VII. 731 F.2d at 1306-08. While we wish to pre­
serve the point for purposes of the record, we will not 
otherwise pursue it at this time.

The program ordered by the district court nevertheless 
oversteps legitimate bounds. In addition to providing 
that the State must extend substantial payments to any 
suburban districts electing to receive KCMSD students, 
the court ordered that the State “shall continue to pay to 
the KCMSD the full student foundation allotment for 
each student who transfers from the KCMSD to a sub­
urban school district . . . .” Remedy Order at 32. This 
requirement is excessive for several reasons:

First, it is a windfall for a violator of the Constitu­
tion. The district court made clear that, to the extent 
that unlawful segregation still exists within the KCMSD, 
the State and KCMSD are jointly responsible for it. 
Jenkins, at 1505. Second, it is totally unnecessary. As 
the lead witness for the KCMSD itself testified, the 
KCMSD hardly needs to be bribed in this fashion to allow 
its students to attend school in suburban districts. Tr. 
22,233. Third, it is at odds with the practice in Liddell. 
There, even a settlement agreement negotiated by the

(1978); 42 U.S.C. § 1982 (1982); Executive Order No. 11063 
(1962), reprinted at ibid., Note. Moreover, the testimony regarding 
the component showed that it was lifted in great part from reme­
dies in housing rather than school cases, was extremely costly in 
comparison to the likely benefits, and could well lead to disputes 
requiring the further attention of the court. See, e.g., Tr. 24,080-82 
(similar to remedies in housing cases); 24,085 ($1,000 or more to 
place single family) ; 24,095 (families need not have children) ; 
24,099-103 (court oversight necessary). The court thus could have 
rationally concluded that “ [t)he elimination of racial discrimina­
tion in public schools . .  . should not be retarded by efforts to achieve 
broader purposes lying beyond the jurisdiction of school authori­
ties.” Swann, 402 U.S. at 22.



55

school districts themselves provided only for a payment of 
one-half of the per-pupil allotment. 731 F.2d at 1302.58 
There is no reason here to insist upon a gratuitous 
doubled payment to the KCMSD.

2. The General Addition of Teachers. The district 
court, having already provided for the addition of 48 art, 
music, and physical education teachers as part of the 
plan to restore a AAA rating to the KCMSD, went on 
to order the addition of 183 regular teachers at an 
annual cost of as much as 6 million dollars. Remedy 
Order at 11-16. This requirement plainly substitutes the 
“desirable” for the “necessary.”

It is undisputed that the KCMSD already has more 
than enough regular teachers to meet AAA standards. 
Indeed, of the 50 largest school districts in Missouri, 
nearly one-half have either the same overall pupil-teacher 
ratio as does the KCMSD or a higher one, even before 
addition of the specialized teachers needed to meet AAA 
standards. State Exh. 18 (1983-84 data). By contrast, 
the KCMSD has more administrators per pupil than 
any other district in the entire State and more than 1% 
times the rate of many other districts. Ibid.

The effort by the KCMSD to gain still more teachers 
throughout its system is the same sort of effort rebuffed 
by this Court in Liddell. There, this Court reversed the 
district court order insofar as it generally lowered pupil- 
teacher ratios below the requirements for AAA standing. 
731 F.2d 1318. (The Court affirmed the order as it ap­
plied to the nonintegrated schools.) Again, there is no 
reason for a different result here.

S. The School Grant Program. The district court, seek­
ing to improve test scores throughout the KCMSD, in es­
sence provided each school with a cash grant to be used 
for this purpose. The grant in year 3 for schools that 
are more than 90% black is $125,000 per school. The 
grant for every other school in the district in that year is

BS An alternative formula based upon the pupil count “for the 
second prior year’’ was also provided. See 731 F.2d at 1302.



56

$100,000. The overall cost in the first three years is 
more than 17 million dollars, all of which is borne by the 
State. Remedy Order at 20-23.

This sort of general funding seems at almost the oppo­
site end of the spectrum from a tailored remedy to aid 
particular victims of segregation. See pages 40-42 supra. 
But, even apart from that problem, the order requires 
State funds to be committed to any one or all of a hotch­
pot of programs, in the discretion of the KCMSD, without 
any real assurance that the programs selected will serve 
their intended purpose. Indeed, in making the proposal 
for an “effective schools” program on which the district 
court grants are loosely based, the KCMSD itself was 
unable to provide even a tentative budget until the last 
day of hearing. This sort of hit-or-miss approach is no 
basis for a remedial program.

b- The Buildings Plan. The district court also ordered a 
37 million dollar capital program in the face of undisputed 
evidence that KCMSD voters had refused to approve bond 
issues for this purpose for more than 15 years. See Tr. 
22,752-53. In addition, the KCMSD’s own architect read­
ily agreed that “the buildings in the Kansas City School 
District are in need of repair because of deferred main­
tenance and failure to maintain the buildings.” Tr. 
22,752. It could not be clearer, therefore, that the cause 
of the present conditions is not any unlawful action by 
the State, but the neglect of the KCMSD taxpayers and 
officials. See pages 49-51 supra.

The district court gave no weight to these facts, reject­
ing the “argument that the present condition of the 
facilities is not traceable to unlawful segregation” as 
“irrelevant.” Remedy Order at 35. This flat disregard 
for the principles of causation, on its face, is incon­
sistent with the basic idea that remedies must relate 
to, and be limited by, the conditions caused by uncon­
stitutional action. The district court apparently saw 
no inconsistency, however, because it believed that the 
lack of maintenance by the KCMSD was itself “fur­



57

ther evidence of the detrimental effects that segregation 
has had on this school district’s ability to raise adequate 
resources,” id. at 36, and that, in any event, it could 
order anything helpful in carrying out “the educational 
components of a desegregation plan,” ibid. Neither view 
is correct.

As we have said, the district court simply erred in 
treating the failure of the KCMSD taxpayers to com­
mit funds as evidence of the “detrimental effects” of 
segregation. See pages 51-52 supra. It likewise erred 
in its belief that it could order the State to contribute to 
improvement of the buildings merely because that ex­
traordinarily costly action might complement other por­
tions of the remedy. Taken literally, of course, that notion 
would make the standards applicable to equitable rem­
edies largely meaningless. Where there is clear evidence 
that a shortcoming is the result of actions by other 
entities, a defendant cannot be saddled with the cost of 
correcting it merely on the ground that it would be an 
aid to correcting the conditions for which he is respon­
sible. See Dayton I, 433 U.S. at 420.59 That principle 
applies even more strongly when the cost of the program 
is wholly out of proportion to the cost of the programs 
that it is supposed to assist. Thus, while the court may 
well have the power to order the KCMSD to repair the 
buildings that it neglected, that power does not extend to 
other parties, such as the State, merely because it would 
be convenient to have it do so.00

69 The Sixth Circuit has said that, having found “intentional dis­
criminatory actions on the part of a defendant,” a federal court 
must then “ [relate] them directly to redress only those segregative 
effects which had been caused by the intentional segregative acts.” 
Berry v. School District of City of Benton Harbor, supra, 698 F.2d 
at 819. See also Parent Association of Andrew Jackson H.S. V. 
Amback, 598 F.2d 705, 715 (2d Cir. 1979).

'60 In any event, there is no persuasive evidence of any correlation 
between the condition of facilities in the KCMSD and the level of 
achievement: some schools like Swinney have consistently high test 
scores despite studies showing that they need a greater than aver­
age amount of repairs. Compare State Exhibit 62 (test scores)



58

5. The Allocation of Funding Between the State and 
the KCMSD. The remedial order in this case calls for 
the State to pay approximately 80 percent of the cost 
of the programs (roughly 40 out of 50 million dollars 
over three years) and nearly 75 percent of the capital 
improvement costs (27 out of 87 million dollars). This 
effort to saddle the State with a disproportionate bur­
den, and correspondingly exempt the KCMSD from its 
proper share, is both erroneous and unfair.

The State recognizes that it has been found liable for 
failing to eradicate the vestiges of de jure segregation, a 
finding that carries with it a clear responsibility to 
contribute to a remedy addressed to those vestiges. At 
the same time, however, it cannot be forgotten that the 
KCMSD played an unmistakable role in perpetuating 
segregation long after State compulsion had ceased. In 
the 1960s, it was the KCMSD (under no compulsion from 
the State) that “made frequent shifts in the attendance 
areas of elementary and secondary schools . . . .” See 
Jenkins, at 1493-94. The court concluded that “the use 
of these optional zones, coupled with the liberal transfer 
policy, did not aid to integrate the District; to the con­
trary, it allowed attendance patterns to continue on a 
segregated basis.” Ibid. Again, from the mid-1950s until 
the 1960s, it was the KCMSD (under no compulsion from 
the State) that adopted the “intact busing” program. 
The court found that “the District’s use of intact busing 
had a segregative intent and effect.” Id. at 1494. As we 
previously have noted, of the many school districts in- * 59

with KCMSD Exhibit 81 (Devine-James repair estimates). This 
lack of correlation is not surprising in view of the experiences na­
tionwide. Thus, the Educational Research Service concluded after 
surveying the available literature that “student learning depended 
more on the people providing educational services than on school 
facilities and supplies.” Effective Schools: A Summary of Research
59 (1983). See also Murnane, “Interpreting the Evidence on School 
Effectiveness,” 83 Harv. Educ. Rev. 19, 25 (1981) (“ [t]he current 
conclusion is that the physical resources available in a school in a 
particular year are not systematically related to the achievement 
of the students in that year”) .



59

volved in this case, only the KCMSD had failed to estab­
lish a unitary school district by the time of trial.61 * * * * *

Where joint liability has been found in other desegre­
gation cases, it is common practice to require equal con­
tributions to the remedy. In Millilcen II, for example, the 
Supreme Court approved a plan under which costs were 
divided equally between the Detroit School Board and 
the State of Michigan. 433 U.S. at 277. In Columbus, 
the district court directed that “the state defendants 
[shall] share equally with the Columbus defendants all 
expenses incurred.” PenicJc v. Columbus Board of Edu­
cation, 519 F. Supp 924, 942 (S.D. Ohio), aff’d, 633 
F.2d 24 (6th Cir. 1981), cert, denied, 455 U.S. 1018 
(1982). In Cleveland, after the court ruled that the 
state must “share jointly and severally in the cost of 
implementation of desegregation,” the costs have been 
shared equally by the State and City. Reed v. Rhodes, 
500 F. Supp. 404, 424-26 (N.D. Ohio 1980), aff’d, 662 
F.2d 1219 (6th Cir. 1981), cert, denied, 455 U.S. 1018 
(1982).

An equal division was also the course followed in the 
St. Louis case for virtually all intradistrict components. 
Although the State bears the cost of transportation for 
students crossing district lines and of magnet schools 
aimed at further interdistrict transfers, a different rule 
applies for programs confined to the St. Louis district 
itself. The State and City Board share equally the 
costs of intradistrict magnet schools, educational pro­

61 Although the KCMSD insists that it had a right to be a
plaintiff in this ease, the decision of the court to realign the dis­
trict as a defendant was correct when taken and even more ob­
viously correct in retrospect. As a party found to have violated
and still to be violating the rights of its students, the KCMSD has
no absolute right to represent their interests as a plaintiff. Nor 
has it pointed to any reason to believe that the plaintiffs have not 
done all that the KCMSD could have done in that role. The court 
thus correctly determined that the appearance of the KCMSD as a 
plaintiff was inappropriate and redolent of potential conflicts.



grams, capital improvements, and the like. See Liddell 
VII, 731 F.2d at 1300.62

Although the district court sought to justify its de­
parture from these precedents by pointing to past ex­
penditures by the KCMSD, that explanation is insuffi­
cient on several grounds. First, the order violates the 
Eleventh Amendment by imposing an additional future 
obligation on the State for not making payments in the 
past. That sort of retroactive penalty is plainly barred. 
See Edelman v. Jordan, 415 U.S. 651 (1974).63 Second, 
even if it were permissible to credit the KCMSD and 
penalize the State for past actions, the court has allowed 
the KCMSD an extravagant credit for what amounts 
to normal operations. Thus, even by its own standard, 
the order is inequitable.

The basic principle of the Eleventh Amendment is 
that “a suit by private parties seeking to impose a 
liability which must be paid from public funds in the 
state treasury is barred by the Eleventh Amendment.” 
See Edelman v. Jordan, 415 U.S. at 663. Although 
there is a well-recognized exception to that doctrine 
stemming from Ex Parte Young, 209 U.S. 123 (1908), 
it only allows federal courts to enjoin State officials 
to future compliance with the Constitution or fed­
eral law. See Pennhurst State School and Hospital v. 
Halderman, 104 S.Ct. 904 (1984). It does not allow a 
federal court to make an exaction based upon past acts 
(or failures to act) on the part of the State or its 
officials. Edelman v. Jordan, supra-, Ford Motor Com­
pany v. Dept, of Treasury, 323 U.S. 459 (1945); Great 
Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944). * 68

6 0

63 The sole exception is the “part-time integrative programs.”
68 As a separate matter, we note that the district court also erred 

by refusing to dismiss the State itself and the State Board of 
Education on Eleventh Amendment grounds. See Alabama V. Pugh, 
438 U.S. 781 (1978) (state entitled to dismissal) ; Miener v. Mis­
souri, supra, 673 F.2d at 980-81 (State Board of Education en­
titled to immunity). This Court should reverse that ruling. Order 
of June 1, 1981 at 14; Order of August 12, 1981 at 5-6.



61

That constitutional limitation on federal judicial power 
cannot be circumvented by overloading future obligations 
as a back-door method of obtaining relief for past ones. 
Indeed, the Supreme Court rejected precisely that ap­
proach in Edelman v. Jordan, swpra. There, the lower 
federal courts had imposed on the State an obligation 
to make “equitable restitution” in the future for pay­
ments found to have been unlawfully withheld in the past. 
Id. at 666. The Court held that the Eleventh Amendment 
prohibited such an order, despite the attempt to charac­
terize it as a future obligation, saying that it was based 
upon a failure to act “at a time when [the State] was 
under no court-imposed obligation to conform to a dif­
ferent standard.” Id. at 668. The Court concluded that 
the order thus was “indistinguishable in many respects 
from an award of damages against the State.” Ibid.

It is clear, therefore, that the district court could not 
have directly ordered the State to reimburse the KCMSD 
for past expenses incurred by the district. Its power to 
obtain the same result indirectly is no greater. As the 
Court emphasized in Edelman, it is not the form of the 
order, but the effect of the order, that is controlling. See 
id. at 665 (court must look to “award actually made” 
not “form”) . This order simply goes too far.84

Even if the Eleventh Amendment were not a barrier, 
however, the order would be objectionable.85 In partieu- 64 65

64 The failure of the district court to observe the limitation 
imposed by the Eleventh Amendment is especially surprising in 
light of its earlier order denying the KCMSD’s request for partial 
summary judgment and a preliminary injunction. There, the Court 
rejected the argument that an injunction should issue because, 
otherwise, the Eleventh Amendment would bar retroactive recovery 
of Plan 6C costs if the State defendants were subsequently found 
liable. In its order, the court held that the motion was “plainly an 
attempt to circumvent the Eleventh Amendment’s prohibition of 
retroactive money awards.” Order of June 1,1981 at 30.

65 Before the KCMSD made its effort to obtain credit for “deseg­
regation costs,” it had advised the district court that its spending 
under Plan 6C (the only recognized desegregation plan) was in 
the neighborhood of $5 million. Motion for a Preliminary Order



62

lar, the KCMSD has received a credit of $4,918,233 for 
Lincoln Academy, although the KCMSD has admitted 
that the cost of the magnet component is only $247,363. 
For the Swinney and Volker schools, the KCMSD was 
awarded a credit of $1,450,636, although the cost of the 
magnet component is $37,988. The credit for the Hart­
man, Cook, and Marlborough schools is $2,085,790, al­
though the magnet programs cost $36,349. In each case, 
the amount credited represents the total building cost, 
including all costs for non-magnet programs, and makes 
no reduction whatever for the fact that roughly half of 
the total cost is paid by funds from the State and federal 
governments. In short, the relation between these sums 
and desegregation efforts by the KCMSD is mostly fanci­
ful.66

Finally, we note the stated reluctance of the district 
court to impose a full share on the KCMSD because it 
would burden the “victims” of discrimination. Remedy 
Order at 3. In our view, it is a curious doctrine that al­
lows a governmental entity to reduce its liability on the 
ground that it discriminated against its own citizens. 
But, in any event, the bulk of the 1.1 billion dollars of 
property within the KCMSD is highly developed commer­
cial real estate, not single family homes occupied by stu­
dents in the KCMSD. Those taxpayers, who have for 
years declined to provide the funding about which the 
district court expressed particular concern, do not merit 
a judicial reward.

Providing a Partial Remedy Without Hearing at 3 (filed April 4, 
1985). The principal cost of Plan 6C, however, is for transportation, 
of which the State pays more than 62%. See KCMSD Exh. K78. 
Yet, within a few weeks, it had decided that its desegregation costs 
were more than $17 million without even including transportation 
costs.

66 The other so-called “desegregation expenditures” include items 
such as Instructional Assistants (the equivalent of Assistant Prin­
cipals) in all elementary schools and Coordinators of Instruction in 
Secondary Schools. The KCMSD also included a “Bilingual Edu­
cation” program despite the absence of any finding regarding dis­
crimination against non-English speaking students.



63

An equal sharing of costs is thus consistent with his­
torical practice and more equitable to the parties. That 
course should have been followed here.

CONCLUSION
For all of the above reasons, we respectfully request 

that the judgment of the district court be affirmed in 
part and reversed in part.

Respectfully submitted,

W illiam Webster 
A ttorney General 

Terry Allen
Deputy A ttorney General 

Bruce Farmer 
Georganne L. Wheeler 

A ssistant Attorneys General 
Supreme Court Building 
Jefferson City, MO 65102 
(314) 751-3321

H. Bartow Farr, III 
J oel I. Klein 
Richard G. Taranto 

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

Counsel for State Appellees/ 
Cross-Appellants



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