Proposed Opinion and Order

    IN THE
UNITED STATES COURT OP APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-1765WM 
No. 85-1949WM 
No. 95-1974WM

RALIMA JENKINS, et al.,
Appellants,

v.

STATE OF MISSOURI, et al.,
Appellees.

Appeal From the United States District Court for the 
Western District of Missouri, Western Division 

the Honorable Russell G. Clark, Chief Judge

INDIVIDUAL BRIEF OF APPELLEE FORT OSAGE 
REORGANIZED SCHOOL DISTRICT R-l AND ITS SUPERINTENDENT

DR. VICTOR GRAGG

HUMPHREY & FARRINGTON, P.C. 
NORMAN HUMPHREY JR. 
KENNETH B. McCLAIN 

123 West Kansas 
Independence, MO 64050
STINSON, MAG & FIZZELL 
GEORGE E. FELDMILLER 

920 Main Street 
Post Office Box 19251 

Kansas City, MO 64141

■

Attorneys for Fort Osage Reorganized School District R-l



STATEMENT OF THE CASE AND REQPEST FOR ORAL ARGUMENT

The Fort Osage Reorganized School District R-l 

(hereinafter "FOSD") is a financially poor, rural school district 

in the eastern portion of Jackson County. It has, by far, the 

lowest assessed value of any School District Defendant 

(hereinafter "SDD") (Tr. 6406-8 ). FOSD had no prior dual school 

system or black transfers to KCMSD. It is a single high school 

unitary district in full compliance with Brown v. Board of 

Education, 347 U.S. 483, 495 (1954) and Swann v.

Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 31 (1971).

FOSD is a "second tier district" not contiguous with KCMSD 

(T. 6215). Buckner, the largest municipality in Fort Osage, is 

over 30 miles from downtown Kansas City. Due to its remote loca­

tion, FOSD has had limited contacts with KCMSD. It has never 

been involved in any program which even arguably had, or which 

could have had, an adverse racial impact upon KCMSD.

Consequently, FOSD was mentioned infrequently during the entire 

trial. The Court properly found that FOSD did not coruutit a 

single act constituting a constitutional violation under the 

strict standard of Milliken v. Bradley, 418 U.S. 717, 745 (1974) 

or Washington v. Davis, 429 U.S. 229, 240-41 (1976) (General
Memorandum and Order of June 5, 1984 at 48-51) ("Order").

Because Appellants have failed to appeal those findings, this 

Court should summarily affirm. If oral argument occurs, FOSD

requests 15 minutes.

(i)



TABLE OF CONTENTS

PAGE
STATEMENT OF THE CASE AND REQUEST FOR ORAL
ARGUMENT................................................. (i)

TABLE OF CONTENTS.......................................  ( i i )

TABLE OF AUTHORITIES.....................................(iii)

STATEMENT OF FACTS AND ISSUES.......................... (iv)
ARGUMENT

I. THE FOSD BOUNDARIES WERE NOT FORMED
OR MAINTAINED WITH ANY RACIAL MOTIVATION....  1

II. JENKINS' HISTORICAL CASE AGAINST
FOSD FAILED ................................... 2

III. JENKINS’ MISCELLANEOUS ARGUMENTS ARE
INAPPLICABLE TO FOSD ................

A. NO EVIDENCE OF DISCRIMINATION IN
EMPLOYMENT WAS PROVEN..................... 3

B. FOSD HAS NOT LURED WHITE STUDENTS
FROM KCMSD ...............................  4

C. COOPERATIVE EFFORTS BY FOSD WITH OTHER
DISTRICTS DO NOT CONSTITUTE INTER­
DISTRICT VIOLATIONS ...................... 4

D. THERE HAS BEEN NO INVOLVEMENT BY FOSD IN
HOUSING MATTERS ..........................  5

CONCLUSION .............................................  5

(ii)



TABLE OF AUTHORITIES
PAGE

BRADLEY v. SCHOOL DISTRICT OF RICHMOND, 462 F.2d 1058,
(4th Cir. 1972), aff 'd 412 U.S. 92 (1973 )..............  (4)

BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954)........... (i)

MILLIKEN v. BRADLEY, 418 U.S. 717 (1974) ..................  (i)

SWANN v. CHARLOTTE-MECKLENBERG BOARD OF EDUCATION,
402 U.S. 1 (1971) ................ ......................  (i)

TASBY v. ESTES, 412 F.Supp. 1185 (N.D.Tex. 1975), 
aff'd, on Interdistrict issue, 572 F.2d 1010 
(5th Cir. 1978 )....... ..................................  (2)

WASHINGTON v. DAVIS, 426 U.S. 229 (1976)...................  (i)

(iii)



STATEMENT OF FACTS AND ISSUES

FOSD was dismissed by the District Court pursuant to Fed. 

R. Civ. P. 41(b) on April 2, 1984. The Court specifically found 

that FOSD had not committed a single act justifying its inclusion 

in the interdistrict remedy sought by the Appellants.

FOSD adopts the District Court's Findings of Facts contained 

in its Order. Appellants have failed to appeal these findings. 

Therefore, FOSD submits the Court's findings as the only proper 

Statement of Facts on Appeal.

FOSD adopts the statement of issues submitted in the 
Consolidated Brief of All the Appellee School Districts.

(iv)



ARGUMENT
I. The FOSD Boundaries Were Not Formed or Maintained 

With Any Racial Motivation.

Appellant Jenkins ("Jenkins") presented no evidence that 

FOSD lines were drawn, changed or perpetuated for racial reasons. 

In 1949, FOSD was created from sixteen rural elementary school 

districts and the Buckner and Levasy High School Districts (P. X. 

538) Appellant Kansas City Missouri School District ("KCMSD") was 

not contiguous with any of these districts, nor did it ever 

express an interest in annexing them (Order at 48).

In 1951, the rural elementary districts of Union, Elm Grove, 

and Etna were annexed into FOSD. In 1972, the Courtney Elementary 

School District voted to annex into FOSD. None of the annexed 

districts were ever within the City of Kansas City, nor were any 

contiguous to KCMSD. There is no evidence that KCMSD ever 

expressed an interest in annexing any of these rural elementary 

districts (P.X. 37).l The Spainhower Commission plan was never 

an issue in FOSD. The FOSD Board did not take a position for or 

against the plan (Bartow Dep. 152). The plan would have combined 

FOSD with Independence, Blue Springs, Oak Grove, Grain Valley and 

the Courtney Districts. There were few black children in any of 

these districts. Likewise, H.B. 171 would not have affected FOSD. 

None of its territory is within the City of Kansas City,

^The only school district sought by both KCMSD and FOSD was 
the industrial Pleasant Valley Elementary District. Both sought 
to annex this district due to the few number of students and high 
assessed valuation. However, KCMSD was awarded this district 
through a statutory arbitration proceeding, even though its 
assessed valuation was three times greater than FOSD (P.X. 452).

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Missouri.2 Consequently, the Court's finding that these issues 

are irrelevant to FOSD is amply supported.

II. Jenkins' Historical Case Against FOSD Failed.
Black people have never lived in the FOSD's boundaries in 

significant numbers. Therefore, it was not surprising that 

Jenkins failed to identify significant black transfers from any 

predecessor school district of FOSD to KCMSD. Instead, Jenkins 

points to a couple of suspected transfers that occurred in 

approximately 1910 (Tr. 5960).3 The inherent weakness of this 

case is demonstrated by Jenkins' attempt to draw FOSD into a 

metropolitan racial balance plan on the basis of these de minimis 

and speculative transfers.

Nor did Jenkins present any credible evidence that any black 

families ever moved from or failed to move to FOSD, or any prede­

cessor, because of schools. The area within FOSD was predomina­

tely rural before and after Brown. Jenkins' expert testified that 

no increase in black population could be expected in such an 2 *

2 Of course, Fort Osage does not receive any Kansas City 
sales tax receipts (Order at 51).

•^Jenkins' evidence at best showed only the transfer of two or 
three black students over a fifty-year time period (Tr. at 5960). 
And, the evidence was that such students were from a rural 
district that was not then part of Fort Osage. It was unclear 
whether this small number of transfers were in fact from that 
Predecessor or outside the district entirely (Tr. 5960). As a 
legal matter, these particular transfers are insignificant in any 
event. Tasby v. Estes, 412 F.Supp. 1185, 1189-90 (N.D. Tex.
1975 ) aff'd on interdistrict issue, 572 F.2d 1010 (5th Cir.
1978) .

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area.

III. Jenkins' Miscellaneous Arguments Are Also 
Clearly Inapplicable to FOSD.

There is no evidence that FOSD ever took any action to

discourage black enrollment in its- district. In fact, the

annexation of Courtney in 1972 brought minority enrollment into

the district (Gragg D. 220-1). Black families currently live

within the FOSD and their children attend school in a non-

discriminatory fashion (P. X. 53-G; P. X. 2967).4 5

A. No Evidence of Discrimination in Employment Was Proven 
Jenkins failed to produce a single witness that had suffered 

employment discrimination in FOSD. Even though it was under no 

duty to do so, FOSD adopted an official affirmative action policy 

statement to attempt to hire black teachers (P. X. 2967). In 

pursuit of this policy, FOSD has interviewed at college campuses 

with significant minority enrollment, including Lincoln University 

(Gragg D. 85). However, in two recent years, FOSD was informed by 

the Lincoln University placement office not to bother interviewing 

at the school due to the lack of interest shown by its students to

4

4The fallacy of Dr. Orfield's blanket assertion that black 
schools would have attracted more black families to the SDD's, is 
demonstrated by an examination of FOSD. The uncontradicted 
testimony was that only agricultural occupations existed in FOSD 
prior to 1954. Dr. Anderson testified that he expected this 
population to migrate into the cities, regardless of the availa­
bility of school, in order to find work (T. 4567-68).

^There has never been a civil rights complaint against FOSD 
regarding its treatment of black students, and black students 
participate fully in all activities (Tr. 15436-7). There is only 
one high school in FOSD. Dr. Orfield testified that any school 
district where all students attended only one high school was 
unitary. (Tr. at 15725).

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teach in rural FOSD (P. X. 2967). Furthermore, FOSD entered into

contracts with two black teachers in recent years but both decided

to teach elsewhere (P. X. 2967; Gragg D. 225). 6

B. FOSD Has Not Lured White Students from KCMSD
Jenkins produced no evidence that FOSD encouraged or caused 

whites to move from KCMSD. Similarly, no constitutional viola­

tions by KCMSD or the state significantly effected FOSD's racial 

balance. Between 1962 and 1973, FOSD gained only 9 students who

had moved from KCMSD (P. X. 1775B, C, D and E). Even assuming all

9 attended school throughout 1962-72, these few students only 

constituted .2% of FOSD's total enrollment (P. X. 1775B, C, D and 

E; P. X. 53-G). This can hardly be viewed as a significant inter­

district effect. See, Bradley v. School Board of Richmond, 462 

F.2d 1058, 1065 ( 4th Cir. 1972 ) aff 'd. , 412 U.S. 92 ( 1973 )

(holding larger percentages are legally insignificant).

C. Cooperative Efforts By FOSD With Other Districts 
Do Not Constitute Interdistrict Violations

Vocational education has always been stressed in rural FOSD. 

In 1968, the first AVTS in the western half of Missouri was opened 

in FOSD (Bartow D. 93). FOSD, Blue Springs, Grain Valley, and Oak 

Grove School Districts participate in the FOSD AVTS. The latter 

two districts are not parties to this case and none of the par­

ticipating districts are contiguous with KCMSD (Order at 24).* 7

®When this fact was called to the attention of Jenkins' sta­
tistician Dr. Carlson, he admitted that his assessment of Fort 
Osage's hiring practices would have to be re-evaluated (Tr.
6514) .

7It is difficult to understand how FOSD can be included in a 
metropolitan racial balance plan in light of the fact that school 
districts like Grain Valley and Oak Grove are excluded. Those 
districts are as close geographically as FOSD is to KCMSD and 
doth have experienced a higher degree of suburbanization than
most of the municipalities within FOSD.

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FOSD was chosen as the location for the AVTS only because it then 

had unused bonding capacity {Bartow D. 101).8 KCMSD never 

invited FOSD to participate in its AVTS (Order at 24).

D. There Has Been No Involvement By FOSD in Housing Matters
Not a single black witness testified about discriminatory 

housing practices, either private or public, within FOSD. Neither 

FOSD nor any other group ever opposed any public or subsidized 

housing. In fact, the evidence shows that there is ample public 

and subsidized housing in the FOSD (P. X. 27). No testimony con­

nected FOSD to urban renewal, highway displacement, or any other 

acts in Jenkins' litany of alleged housing discrimination.

Likewise, no testimony was offered about private housing 

discrimination such as restrictive covenants, redlining, block­

busting, or steering in the FOSD. In fact, Jenkins' evidence 

shows blacks are moving to FOSD in increasing numbers.

CONCLDSION
For the above reasons and those stated in the Consolidated 

Brief of all the Appellee School Districts, FOSD's dismissal must 

be affirmed. No fairly applied legal standard justifies the 

FOSD's destruction or consolidation.

8The evidence at trial demonstrated that KCMSD never asked to 
participate in the FOSD AVTS or invited FOSD to participate in 
its AVTS. Further, the evidence demonstrated that the FOSD AVTS 
does not adversely impact on KCMSD's funding (T. 6407-8).

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Respectfully submitted,

HUMPHREY & FARRINGTON, P.C. 
NORMAN HUMPHREY JR.
KENNETH B. McCLAIN,
123 West Kansas 
Independence, MO 64050 
(816)836-5050

STINSON, MAG & FIZZELL 
GEORGE E. FELDMILLER 
920 Main Street 
P. O. Box 19251 
Kansas City, MO 64141

ATTORNEYS FOR APPELLEE 
FORT OSAGE SCHOOL DISTRICT