Missouri v. Jenkins Brief of Respondents Jenkins et al. in Opposition to Certiorari

    No. 91-324

In The

Supreme Court of the United States
October Term, 1991

-----------------♦-----------------
STATE OF MISSOURI, et al.,

v.
Petitioners,

KALIMA JENKINS, et al.,

Respondents.
-----------------♦-----------------

On Petition For A Writ Of Certiorari To The 
United States Court Of Appeals For The 

Eighth Circuit
-----------------♦-----------------

BRIEF OF RESPONDENTS JENKINS, ET AL.
IN OPPOSITION TO CERTIORARI

- ♦ -----------------------------

"■Arth u r  A. B en so n  II 
1000 Walnut Street 
Suite 1125
Kansas City, MO 64106 
816/842-7603

J a m es S. L iebm a n  
C o lu m bia  U n iv ersity  

S c h o o l  o f  L aw  
435 West 116th Street 
New York, New York 10027 
212/854-3423

"Counsel of Record

Attorneys for Respondents Jenkins et al.

T h eo d o re  M. S haw  
U n iv er sity  o f  M ich ig a n  

S c h o o l  o f  L aw  
Hutchins Hall 
Ann Arbor, MI 48109 
313/763-7868

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

COUN TER-STATEM EN T OF 
Q U ESTIO N S PRESEN TED

1. W hether, having found that capital im prove­
ments were critical to the success of a school desegrega­
tion plan, the courts below erred in requiring the culpable 
parties to carry out those improvements in compliance 
with applicable provisions of the Asbestos Hazard and 
Emergency Response Act, 15 U.S.C. §§ 2641-2654 (1988).

2. Whether, having found that construction of a new 
high school was critical to the success of the school 
desegregation plan, the courts below erred in approving 
adjustments to the budget for the school.



TABLE OF CONTENTS
Page

Questions P resen ted .................................................................  i

Table of A u th orities .................................................................  iii

Counter-Statement of the C ase ........................................... 1

Reasons for Denying the W r it ..........................................  19

C onclu sion ................................................................    30

ii



Ill

TABLE OF AUTHORITIES
Page

C a ses

Adams v. United States, 620 F.2d 1277 (8th Cir.
1977)................................................................................................. 3

Board o f Educ. v. St. Louis, 149 S.W.2d 878 (Mo.
1941).................................................................................................4

Brown v. Board o f Educ., 347 U.S. 483 (1954) 
.........................................................................................6, 7, 10, 26

Columbus Board o f Educ. v. Penick, 443 U.S. 449
(1979) ..............................................................................21, 23, 25

Dayton Board o f Educ. v. Brinkman, 443 U.S. 528
(1 9 7 9 )............... ...................................................  21

.............................................................................................21, 23, 28

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

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985) .passim

Green v. County School Bd., 391 U.S. 430 (1968)

Jenkins v. M issouri, 672 F. Supp. 400 (W.D. Mo.
1987>................................................................... 3, 10, 15, 16, 22

Jenkins v. M issouri, 807 F.2d 657 (8th Cir. 1986) (en
banc), cert, denied, 484 U.S. 816 (1987)................... 11, 29

Jenkins v. M issouri, 855 F.2d 1295 (8th Cir. 1988),
aff'd, 110 S.Ct. 1651 (1990)......................................... passim

Jenkins v. M issouri, 904 F.2d 415 (8th Cir. 1990)........... 13

Jenkins v. M issouri, 942 F.2d 487 (8th Cir. 1991)...........28

Keyes v. School District No. 1, 413 U.S. 189 (1 9 7 3 )___ 21

Milliken v. Bradley, 418 U.S. 717 (1974) . . .12, 20, 21, 22, 28

M illiken v. Bradley, 433 U.S. 267 (1 9 7 7 ) ........................2, 27



IV

TABLE OF AUTHORITIES -  Continued
Page

Shelley v. Kraemer, 334 U.S. 1 (1 9 4 8 ).....................................9

State o f M issouri v. Kalima Jenkins, 491 U.S. 274
(1 9 8 9 ) ...............    2

State of M issouri v. Kalima Jenkins, 110 S.Ct. 1651
(1990)  .................................................................................. 2, 15

Swann v. Charlotte-M ecklenburg Bd. o f Educ., 402
U.S. 1 (1 9 7 1 ) ......................................................................... 5, 21

Watson v. M emphis, 373 U.S. 526 (1963)............................  21

S tatutes

Asbestos Hazard and Emergency Response Act,
15 U.S.C. §§ 2641-2654 (1988)...........................................  18

1889 Mo. Laws 226, expanded in 1909 Mo. Laws 
770, 790, 820 ...................   3



No. 91-324
-------4-------

In The

Supreme Court of the United States
O ctober Term, 1991

-----------------❖ -----------------

STATE OF MISSOURI, et ah,

Petitioners,
v.

KALIMA JENKINS, et ah,

Respondents.
-----------------♦-----------------

On Petition For A Writ O f Certiorari To The 
United States Court Of Appeals For The 

Eighth Circuit
-----------------♦-----------------

BR IEF OF RESPO N D EN TS JEN K IN S, ET AL.
IN O PPO SITIO N  TO C ERTIO RA RI

-----------------♦-----------------
COUN TER-STATEM EN T OF THE CASE

A. Introduction

Petitioners, officials of the State of Missouri, invite 
this Court, on the narrow est of questions, to review 
broadly a school desegregation remedy alleged to be 
excessive. Understandably, petitioners fail to reveal the 
expansive nature and scope of their violations, which 
required both the narrow aspects of the remedy that are 
actually before the Court and the remedy as a whole. 
Because this Court has never reviewed the violations,1

1 Nor has the Court reviewed the remedy in this case. 
Previously, this Court has declined to review the school­

1



2

and because "the nature of the desegregation remedy is 
to be determ ined by the nature and scope of the constitu­
tional v io la tio n s]," M illiken v. Bradley, 433 U.S. 267, 280 
(1977), respondent schoolchildren briefly recount the 
lower courts' violation findings and the extensive record 
evidence supporting them .2

B. Overview  of the D istrict Court's Findings

Prior to 1954 M issouri mandated racially segregated 
schools. The district court found that every "school dis­
trict in M issouri participated in this dual system ," and 
that intentionally segregated "access" to schools and par­
ticularly school districts had the effect of concentrating 
blacks within the Kansas City, Missouri School District 
("KCM SD "). 593 F.Supp. at 1490. The court further found 
that M issouri's continuing segregation of schools in the 
decade after 1954 "led to white flight from the KCMSD to 
suburban districts [of a] large number of students . . . and 
that it has caused a wide reduction in student achieve­
ment in the schools of KCMSD." Order, August 25, 1986, 
at 1-2. As a further result of M issouri's continuing seg­
regation of blacks in KCM SD's inferior schools, and of 
the consequent refusal of white voters to support the 
district financially, the KCM SD's "physical facilities have 
literally  rotted ," and the "overall cond ition" of the

children's petition seeking a broader, interdistrict remedy, 
]enkins v. Missouri, 484 U.S. 816 (1987), and the State's petition 
seeking a narrower remedy, 490 U.S. 1034 (1989). This Court has 
reviewed issues of attorneys fees 491 U.S. 274 (1989) and fund­
ing of remedies, 110 S.Ct. 1651 (1990).

2 In the course of its deliberations on violations and rem­
edy, the district court heard evidence from more than 250 wit­
nesses over 130 days, amassed a transcript exceeding 40,000 
pages and received more than 50,000 pages of documentary 
evidence.



3

schools became so "generally depressing . . .  fas to] 
adversely affectf] the learning environm ent." 672 F.Supp. 
at 411, 403.

These findings and the voluminous record evidence 
supporting them are discussed in more detail below.

C. Pre-1954 V iolations

From  1865 through 1976 M issou ri's constitu tion  
required "sep arate" schools for "children of A frican 
descent/'3 and, from 1889 to 1954, the State enforced that 
provision with statutes making it a criminal offense for 
"any colored child to attend a white sch o o l."4

M issouri superimposed its dual schools on a vast and 
intensely fragmented system of individual school dis­
tricts. Unlike other southern states that mandated seg­
regation, M issouri did not have a small number of large, 
county-wide school districts. Instead, like most northern 
states, M issouri distributed its schoolchildren among a 
large number of small school districts -  over 10,000 dis­
tricts in 1900, and 8000 as late as 1948 (compared to 546 
today). P.Ex. 212.

Because M issouri's black population before 1954 was 
widely dispersed among its many small school districts,5

3 Mo. Const. 1865, art. 9, § 2.
4 1889 Mo. Laws 226, expanded in 1909 Mo. Laws 770, 790, 

820 to include even private schools. The history of Missouri's de 
jure school segregation appears in detail in the decision in 
Adams v. United States, 620 F.2d 1277 (8th Cir. 1977) to which the 
district court referred in making its violation findings, 593 
F.Supp. at 1485.

5 Before 1954, more than half the State's school-aged black 
children lived in 93 counties in each of which fewer than 1,000 
black children were widely and thinly dispersed among the 
county's 60 to 100 school districts. P.Exs. 208, 210, 184, 184A.



4

the state's racial segregation requirements had a partic­
ularly strong residential effect on the state's black school- 
children. In particular, most of M issouri's school districts 
reserved th eir sin g le  sch oolh ou ses for w hites and 
required black children to seek an education outside the 
district.6 Because M issouri did not require school districts 
to educate blacks locally or to reimburse them for tuition 
and transportation expenses incurred in getting an educa­
tion elsewhere,7 black families with children typically 
had no choice but to move to the few urban districts in 
the state that provided black, as well as white, schools.8

6 In 1866, the state school superintendent reported that 
blacks "are so widely scattered that it is impossible to collect 
them in sufficient number to warrant the expense of a school." 
P.Ex. 208. In 1914, the superintendent reported that lack of 
schools for blacks was "driving these people to towns in order 
to educate their children." P.Ex. K28. In 1922, the superinten­
dent reported "where there are fewer than fifteen [black] chil­
dren in a district . . . the school board is not interested in 
assisting these negro children to get an education." P.Ex. K30.

7 Board of Educ. v. St. Louis, 149 S.W.2d 878 (Mo. 1941) 
(school districts not required to pay for inter-county transfers).

8 Jenkins, 593 F.Supp. at 1490. For example, in the three 
counties around the KCMSD, 55 school districts enumerated 
blacks but failed to provide any reimbursement for tuition and 
transportation before 1931, when one district started paying. 
Only one other district was making payments as of 1945, and 
even in 1953 only five districts made such reimbursements. 
During much of that time, the KCMSD tuition amounted to one- 
fourth of the income of an average black family. Tr. 4313-4, 
5355-8. As a result, black families initially tried to collect sub­
scriptions to operate private schools. That failing, black parents 
next tried to convey their children to KCMSD, at their own 
expense, by horse and buggy, taxis, public buses, hired hearses, 
and on trains or on foot along routes plied by school buses 
reserved for white children only. Eventually, many families 
boarded their children with relatives and strangers in the



5

Citing this and other evidence, the district court 
found "an inextricable connection between schools and 
h o u sin g  in the K an sas C ity  a re a ."  B ecau se b lack  
" 'tp leople gravitate[d] toward school facilities/ " the 
" 'location of [black] schools in flu enced] the patterns of 
residential development of [the] metropolitan area and 
ha[d] im portant im pact on com position of inner city 
neighborhoods/ " 593 F.Supp. at 1491 and Order of June 
5, 1984 at 101, quoting Swann v. Charlotte-M ecklenburg Bd. 
o f Educ.., 402 U.S. 1, 20-21 (1971). Between 1900 and 1954 
the num ber and ratio of black fam ilies with school- 
children in the school districts surrounding the KCMSD 
declined precipitously. P.Ex. 53E. Although 21% of black 
students in the 3-county area lived outside the KCMSD in 
1900, that proportion had fallen to 3% by 1954. Id. The 
district court found that access to schools was a "m ajor 
factor" in causing blacks to move into the KCMSD.9 
"Undeniably," the district court found, "blacks m oved" 
out of districts that did not "m aintain the state-required

KCMSD; broke their families into two households, mother and 
children in the KCMSD, father working back home; and in the 
end, gave up their jobs and homes and moved entire families to 
the KCMSD.

9 593 F.Supp. at 1490, citing Tr. 16693 (expert testimony that 
lack of schools for blacks prompted the "depletion of black 
people from surrounding towns" into Kansas City). An expert 
for the schoolchildren described the impact of Missouri's sys­
tem of school segregation as a lost opportunity to take advan­
tage of the naturally high degree of residential integration once 
characterizing the 3-county area. Tr. 14,805-6, 15,286-7. Mis­
souri's demographer admitted that the "existence of a core of 
blacks caused by [governmental segregation] in the Kansas City 
area would have long lasting effects [because] . . . blacks tend to 
move short distances from the core . . . and in-migration [of 
blacks] tends to focus on that black core as a result of . . . infor­
mational networks." Tr. 22,076, 22,091.



6

separate schools [for blacks] . . .  to districts, including the 
KCMSD, that provided black schools." 593 F.Supp. at 
1490.

The district court found that the "intensity" of the 
"segregation" that resulted from state-mandated shifts in 
the black and white population in the Kansas City area 
"is dem onstrated by the fact that the average black family 
[in Kansas City] lives in a census tract that is 85% black 
while the average white family [in the suburbs] lives in a 
census tract that is 99% w hite." 593 F.Supp. at 1491.

D. Post-1954 Violations

After ninety years of vigorous crim inal and civil 
enforcement of school segregation prior to 1954, Missouri 
informed local school districts six weeks after Brown v. 
Board of Educ., 347 U.S. 483 (1954), that they henceforth 
could make their own decisions about whether, where, 
and how to educate black students.10

The district court found that, notwithstanding the 
State's acknowledged ability throughout the period to 
"do som ething about this entire m atter of having segre­
gated schools in M issouri by requiring reorganization [of 
boundaries] where [segregation] o ccu rs ,"11 the State

10 P.Ex. 2322. (June 30, 1954 opinion of the Missouri Attor­
ney General informing districts that they "may . . . permit white 
and colored children to attend the same schools" but assuring 
them that it was up to them to decide "whether [they] must 
integrate").

11 State education officials have long acknowledged the 
State's ability to solve the problem of its segregated schools. 
When a federal court ordered the consolidation of three small 
Missouri school districts as a remedy for unconstitutional 
school segregation in 1975, and members of the Missouri Gen­



7

procrastinated for exactly thirty years after Brown -  until 
a desegregation order was entered -  before taking any 
steps to desegregate the black children segregated within 
the KCMSD. 593 F.Supp. at 1505 (finding that Missouri 
"cannot defend its failure to affirm atively act to eliminate 
the structure and effects of its past dual system ").

With the State Attorney General's authorization, and 
the State Board and Department of Education's knowl­
edge and acquiescence, the KCMSD acted repeatedly dur­
ing the twenty years following Brown to extend its dual 
system, eventually concentrating more black children in 
the district's expanding black core and causing white 
families to move from the area to all white attendance 
zones just inside or outside the KCM SD's boundaries.12 
KCMSD expanded the dual system of schools in the area

eral Assembly inquired about the matter, Missouri's Commis­
sioner of Education, in letters to state board of education 
members, noted:

It is interesting that members of the General Assem­
bly directly associated with this matter are just now 
getting involved. However, I guess I am not surprised 
because I know the General Assembly would like to 
stay out of this area of controversy altogether. I have 
tried to keep them out by saying to everyone involved 
that the Missouri General Assembly really cannot do 
anything about. . . [school segregation]. It is true that 
the General Assembly could do something about this entire 
matter of having segregated schools in Missouri by requir­
ing reorganization where it occurs but I doubt if we'll see 
that.

P.Ex. 2463. (Emphasis supplied)
12 In 1977, when this action was filed, 25 of the pre-1954 one 

race schools remained 90% or more of the same race and 80% of 
all blacks in Kansas City attended schools that were 90% or 
more black. Jenkins, 593 F.Supp. at 1492. In 1954 the KCMSD 
operated 14 schools for only blacks. At trial, in 1984, 24 schools 
had 90% or more black students. Id.



8

by several means: gerrymandering attendance zones;13 
turning schools from all-w hite to nearly all black in a 
single year;14 explicitly segregating classroom s within 
potentially integrated schools;15 letting whites in racially 
transitional schools transfer freely to all-white schools 
throughout the 1950s, 1960s, and early 1970s; repeatedly 
selecting segregative sites for new schools during the 
same period; racially targeting faculty assignments; and 
replacing math and science courses in previously all- 
white schools with courses, for example, in "janitorial 
services" for the black children newly segregated in those 
schools.16 The district court found that the direct effects 
of branding black children as unfit classmates (or even 
recess- or lunch-m ates), and making blacks' education

13 During one short span of time, the district gerryman­
dered school attendance boundaries over three hundred times, 
usually changing lines by only a block or two, to assure that the 
growing black population remained in all-black school atten­
dance zones.

14 Ex.K2; Stipulation of February 21, 1984 (by moving 
boundaries into the expanding black core ten or fifteen blocks 
and by inviting the remaining whites in the new attendance area 
to take advantage of the KCMSD's Liberal Transfer Policy to 
transfer to all-white schools, the district turned virtually all- 
white elementary schools into virtually all-black schools in a 
single year). Central High and Junior High Schools were the 
first secondary schools that the KCMSD's segregative policies 
tipped from all white in 1955 to 95%+ black by 1960. Ex.K2.

15 593 F.Supp. at 1494 (for years black schoolchildren in the 
1960s walked to the overcrowded elementary school near their 
homes from where they and a black teacher were bused to an 
under-utilized white school where they were given their own 
all-black classroom and made to take their own separate recess 
and lunch periods).

16 Jenkins, 593 F.Supp. at 1493-4. See also Tr. 7018-21, 
7338-41, 8624-5, 8969-71, 9419-20; Stipulation 75 of February 21, 
1984.



9

inferior were largely demographic: While blacks perforce 
remained in their own, expanding, neighborhoods in the 
core of KCMSD, the State's and KCMSD's violations "led 
to white flight from the KCMSD to suburban districts, [a] 
large num ber of students leaving the schools of Kansas 
City . . . " 17

The district court also found that the racially restric­
tive covenants that M issouri enforced until five years 
after Shelley v. Kraemer, 334 U.S. 1 (1948), the racially 
segregated "dual housing m arket" that the State's hous­
ing and insurance agencies "encouraged,"18 the State's 
explicitly racially segregated relocations of persons dis­
placed by highways and urban renewal programs, the 
State 's history of discrim inatory actions in regard to 
schools, housing, m arriages and other practices, and 
KCM SD's continuation of its segregative school policies 
in the 1950s, 1960s and 1970s with the State's blessing 
"created an atm osphere in which private white individ­
uals could justify their bias . . . against blacks," thus 
encouraging racially discrim inatory redlining, steering 
and blockbusting in insurance, real estate and banking 
and further steering blacks into the KCMSD and whites 
into outlying areas. 593 F.Supp. at 1503.

Among the effects of these violations that the district 
court found are the following: (i) Black children within 
the KCMSD were subjected to system-wide racial isola­
tion of great "intensity." 593 F.Supp. at 1485 (rejecting 
M issouri's argum ent that factors other than schools 
caused the intense segregation), (ii) A "large number of

17 Order, August 25, 1986 at 1; Tr. 8715-6, 8721-30, 9228-32, 
9235 (cited at 593 F.Supp. at 1494); Tr. 17,314-16 (admission by 
Missouri that KCMSD underwent rapid transformation as 
"whites fled the district").

18 Jenkins, 593 F.Supp. at 1491, 1503.



10

[white] students" and their families fled the KCMSD for 
"suburban d istricts."19 (iii) As "m any residents of the 
KCMSD left the district and moved to the suburbs" with 
their children, the KCMSD was left with a white voting 
majority that was without children or was unsupportive 
of the district's mainly black student population and that 
for nearly two decades "refused to approve a tax levy 
increase and a bond issue." 672 F.Supp. at 412. (iv) These 
financial restrictions on the district led to "rotted" and 
"generally depressing" physical facilities. Id. at 403, 411. 
As the court of appeals noted:

The findings of fact dem onstrate a spiraling 
effect of white children leaving the KCMSD 
schools and KCM SD's white constituency with­
drawing its financial support from the system.
This process eventually caused the decay of 
KCM SD's school buildings, which in turn fed 
the cycle.

855 F.2d at 1305. (v) Throughout the 30 years after Brown, 
the educational achievem ent of black children suffered, 
as the "inferior education indigenous of the state-com ­
pelled dual school system  caused" a "system  wide reduc­
tion" in student achievem ent in the schools of the 
KCMSD, 593 F.Supp. at 1492, 639 F.Supp. at 24. As a 
result, the district's educational-quality rating from the 
State dropped to lowest in the area, and the district's 
ability to retain nonminority students declined further. 
639 F.Supp. at 24, 26, 29.

M issouri did not appeal any of the district court's 
findings as to the nature and scope of its violations, nor 
did it appeal the findings of pervasive, system wide

19 Order, August 25, 1986, at 1-2. See e.g., Tr. 12993-4, P.Ex. 
53G, K.Ex.2 (nearly 15,000 whites left KCMSD schools in waves 
over 15 years as the defendants' violations spread through the 
school district).



11

demographic, physical, and educational effects caused by 
those violations.

Although the district court found that these findings 
added up to a history of constitutional violations with 
"intens[e]" segregative effects, it concluded that the inno­
cence of the suburban school district defendants in caus­
ing the racial transform ation of area schools and the 
absence of sufficient segregative effects in any particular 
district, aside from the KCMSD, precluded the inclusion 
of the suburban districts in an interdistrict remedy.20 The 
district court thereupon ordered proposals for a remedy 
limited to the KCMSD, except insofar as voluntary mea­
sures might enable black children to attend school in the 
suburbs and enable suburban white children to attend 
magnet schools in the KCMSD at state expense.

D. The Ordered Rem edies

As the district court began devising a remedy for the 
violations it had found, it laid out two legal standards 
that it would follow. It noted that "the scope of the

20 593 F.Supp. at 1488 ("plaintiffs simply failed to show that 
those [suburban district] defendants had acted in a racially 
discriminatory manner that substantially caused racial segrega­
tion in another district"). In January, 1985 the schoolchildren 
and KCMSD submitted their first proposed remedy, a broad 
interdistrict consolidation plan, that would have created fully 
integrated schools at comparatively little cost to Missouri. 
KCMSD Plan For Remedying Vestiges of Segregated Public 
School System, docket no. 1046. The State did not support the 
proposal, and the district court declined to consider it, requiring 
instead the submission of plans that imposed no obligations 
upon surrounding school districts. Order, January 25, 1985. An 
equally divided en banc court of appeals affirmed, 807 F.2d 657 
(8th Cir. 1986), and this Court denied the schoolchildren's peti­
tion for certiorari to review the denial of interdistrict relief. 484 
U.S. 816 (1987).



12

remedy is determ ined by the nature and extent of the 
constitutional violation," and that the goal of a remedy is 
to prohibit new violations and eliminate the "vestiges of 
state imposed segregation." 639 F.Supp at 23 (citing M illi- 
ken v. Bradley, 418 U.S. 717, 744 (1974)). Missouri never 
challenged these principles in the district court, the court 
of appeals or this Court.

Rejecting the plaintiffs' requests for a remedy involv­
ing mandatory interdistrict busing and M issouri's sug­
gestions that the remedy focus on busing children from 
one part of the 75-percent m inority KCMSD district to 
another, the district court in 1985 ordered a plan aimed at 
achieving two goals: (i) removal of the educational defi­
cits to which the State's intentional segregation had sub­
jected the black children within the KCMSD and (ii) 
voluntary integration efforts aimed at reversing some of 
the racially segregative effects of the State's violations. 
639 F.Supp. 19.21

In order to elim inate inferior schooling, the court 
directed the KCMSD to implement plans (i) to achieve a 
more satisfactory  academ ic rating from the State by 
improving KCMSD libraries and reducing teaching loads, 
(ii) to institute early childhood and remedial summer 
school program s, and (iii) to undertake the capital 
improvements necessary to assure that these educational 
program s operated in adequate buildings. The court 
found that such measures were necessary to "restore the 
victims of discrim inatory conduct to the position they 
would have occupied in the absence of such conduct." Id. 
at 23.

21 Two consecutive orders are reported together at 639 
F.Supp. 19. The initial remedy order of June 14, 1985 appears at 
639 F.Supp. 19-46, aff’d, 807 F.2d 657 (8th Cir. 1986), cert, denied 
484 U.S. 816 (1987). The order on pending motions of June 16, 
1986 appears at 639 F.Supp. 46-56.



13

In order to reduce the racial isolation of KCMSD's 
black children, the court initially invited the State to seek 
the voluntary participation of surrounding districts in a 
transfer program by which KCMSD's minority students 
could volunteer to attend school in cooperating school 
districts nearby.22 Id. at 38. In a survey ordered by the 
district court, thousands of black children expressed an 
interest in transferring out of the KCMSD to suburban 
schools. The court hoped that facilitating such transfers 
would "serve to provide additional opportunities for 
desegregated schools [within the KCMSD] as well as 
desegregative educational experiences for KCMSD stu­
dents [in surrounding districts]." Id. Educating KCMSD's 
black students in the already existing and educationally 
appropriate classrooms of surrounding districts to which 
the State's violations previously had propelled the dis­
trict's white students would have served to avoid the 
expense of renovating the KCM SD's "rotted" schools and 
of installing costly magnet facilities in the KCMSD to try 
to attract white students back from those surrounding 
districts.

For several years after the district court's initial rem­
edy in 1985, M issouri did not act on the district court's 
order to develop a voluntary transfer plan. In 1986, the 
district court admonished the State for its inaction. 639 
F.Supp. at 51 (warning the State that continued inaction 
will result in the court seeking "other methods of [deseg­
regation] at the State's expense"). In 1990, after continued 
inaction by the State, the court of appeals ordered sub­
mission of a transfer plan. 904 F.2d at 419. The plan

22 Numerous school districts are nearby. In addition to the 
KCMSD, the City of Kansas City includes all or parts of 12 
school districts. A dozen others are nearby.



14

submitted in 1990 resulted in only ten KCMSD black 
students transfering to a single suburban district.

Having decided against the mandatory busing of stu­
dents to and from the suburbs, Order, January 25, 1985, 
and to and from the KCM SD's predominantly minority 
schools, 639 F.Supp. at 35, and faced with M issouri's 
failure even to try to induce voluntary transfer efforts, 
the district court considered other plans. It found that 
only two other devises were available to cure the State's 
intentional segregation of blacks within the KCMSD: 
m agnet sch ools d esigned  to d esegregate  K C M SD 's 
schools voluntarily by attracting back some of the whites 
whom the violation had caused to leave the district, and 
capital improvements designed to repair the "generally 
depressing" physical condition in which the State and 
KCMSD's violation had left the district's facilities and 
thus to remove one cause of white abandonment of the 
district as a result of the violation.

The district court thereupon ordered the KCMSD to 
convert to magnet schools in order to "generate voluntary 
student transfers resulting in greater desegregation in the 
district schools" and "draw non-minority students from 
the private schools . . . and draw in additional non­
m inority students from the suburbs." Order, November 
12, 1986, at 3, aff'd, 855 F.2d 1295 (8th Cir.), cert, denied, 
490 U.S. 1034 (1989). The court of appeals affirmed the 
district court's findings that the violations had directly 
caused the segregation of blacks within the KCMSD and 
whites outside the district, and also affirmed the district 
court s determ ination that the "com prehensiveness of the



15

[magnet] plan was a step in the right direction" of undo­
ing that unlawful segregation. 855 F.2d at 1304. In partic­
ular, the court of appeals determined that the magnet 
school orders were:

bolstered by the district court's findings that the 
preponderance of black students in the district 
was due to the State and KCMSD's constitu­
tional violations, which caused white flight. . . .

These findings that the unconstitutional 
segregation caused the KCMSD to lose certain 
students form the basis for a remedy designed 
to attract them back.

Id. at 1302. The court of appeals found that the magnet 
school plan was "am ply supported by the State's own 
evidence." The court of appeals further concluded that 
there was no evidence to support M issouri's contention 
that the magnet schools would not achieve voluntary 
desegregation of KCMSD schools. Id. This Court declined 
to review the magnet school judgments of the lower 
courts. 490 U.S. 1034 (1989).

In 1987 the district court next addressed the financial 
effects of the violation, namely, white voters' chronic 
refusal to vote funds for the district, and the consequent 
need for capital improvement. The court first requested 
the parties' assistance in suggesting ways that the chron­
ically  underfunded d istrict could meet the financial 
requirements of the desegregation remedy. Order, July 16, 
1987 at 16. M issouri replied, asking that the KCMSD, 
rather than the State, be required to pay the full 50 per 
cent share of the remedial expenses originally allocated to 
the district, and acquiescing in proposals for mandatory 
local tax increases, which the court thereupon ordered.23

23 672 F.Supp. 400. The court of appeals affirmed, modify­
ing the manner in which the taxes were to be increased. 855 F.2d



16

The district court next ordered a capital improvement 
plan to cure the financial and physical effects on the 
KCMSD of the State 's violations and the consequent 
desertion of the district by white families and voters. The 
court found that unconstitutional segregation was in part 
responsible for the massive decay of school district build­
ings because the concentration of blacks and degradation 
of the district's educational programs made it impossible 
for the m ajority black district to secure the votes needed, 
from the still m ajority white voting population, to pro­
vide funds for repair and maintenance of its buildings. 
672 F.Supp. at 403. In particular, the court found that the 
violations contributed to "num erous health and safety 
hazards, educational environment hazards," "inadequate 
lighting," "odors from unventilated restrooms with rot­
ted, corroded toilet fixtures," "noisy classroom s" because 
of poor acoustical treatm ent, "faulty heating and electri­
cal system s," and "inadequate fire safety system s." Id. 
Overall, the court found that buildings were in such 
disrepair as a result of the violation that even principals 
would not send their own children to them. Repairing 
those facilities was thus found to be "crucial" to the 
success of the voluntary desegregation plan.

The district court found that renovations of some and 
replacem ent of other buildings were necessary to (i) 
restore to victim s of segregation the facilities denied to 
them by the violations, (ii) undo some of the educational 
harms caused by the violation, and (iii) upgrade facilities 
to a level that would not continue to discourage white 
enrollment. The district court further found that capital 
improvements were "crucial to the overall success of [the] 
desegregation plan." Id.

1295. This Court affirmed the tax increase as modified by the 
appeals court, 110 S.Ct. 1651 (1990).



17

The court of appeals affirmed findings that the defen­
dants were to blame for the deteriorated facilities of the 
school district, that the improvements were necessary to 
achieve the desegregation of the district, and that the 
capital plan was not excessive to the requirements of the 
desegregation plan nor beyond the scope of the viola­
tions. Id. 855 F.2d at 1304-5.

E. M issouri's Specific  Com plaints

Central High School was the first high school that the 
State's and KCM SD's post-1954 violations caused to turn 
from an all-w hite to all-black school in the space of a few 
years. See supra note 14 and accompanying text. By the 
time the court had adjudicated the violation and was 
devising a remedy, Central was an all-black high school 
located in the center of an all-black residential corridor 
created by the State's housing violations and the district's 
school violations. Pet. App. at A42. See supra pp. 6-9. By 
then, the school was virtually falling down around its 
students. As the court found, restoring the integrated 
student population that Central would have had in 1954 
had the district and the State required the integrated 
populations living near the school to attend it posed a 
"challenge" thirty years later. In the magnet school order 
not here at issue, the court directed that Central be reno­
vated or replaced. Order, November 12, 1986. That plan 
provided for a dual theme magnet high school featuring a 
computer-based educational plan and a "Classical Greek" 
theme featuring a combination of rigorous academic and 
athletic program s. The d istrict court noted that the 
"extensive" facilities and budget provided for in the plan 
were "necessary" to achieve "the difficult task of deseg­
regating Central High School." Pet. App. at A49.

As the school district developed its design docu­
ments for C entral, it discovered errors and incorrect



18

assumptions in the estim ates underlying the court's origi­
nal budget and sought the district court's approval for a 
revised budget. In approving the adjustments, the district 
court found that the school district had used proper 
budgeting procedures, had eliminated nonessential fea­
tures of the plan, and had reduced costs wherever possi­
ble. Pet. App. at A49. It found a second time that the 
desegregative magnet program for Central "could not be 
successfully implemented in a lesser facility." Id.

On appeal, the court of appeals held that the condi­
tions the district court identified as requiring a budget 
adjustment were properly found as a matter of fact. The 
appellate court accordingly concluded that the district 
court had properly m odified the prior injunction "in the 
exercise of equitable discretion," and affirmed the mod­
ified Central High School plan. Pet. App. at A32-34.

The State did not seek a stay of the district court's 
order, and the KCMSD thereupon completed construction 
of Central High School. Nearly 1200 students are now 
enrolled in Central, including a significant and growing 
number of nonm inorities.24

2. Asbestos. The capital improvements that the dis­
trict court found were necessary to cure the educational, 
fin an cial, and dem ographic effects of the v iolation 
required the KCMSD to renovate certain structures and to 
dem olish others. Federal law 25 in turn required the 
KCMSD, in carrying out those renovation and demolition

24 Central, in this its first year in the new school, has 31.2% 
nonminority enrollment in the Classical Greek theme and 13.2% 
in the computers theme. Before the remedy was ordered Central 
was 99.7% minority. Ex.K2.

2o Asbestos Hazard and Emergency Response Act, 15 
U.S.C. §§2641-2654 (1988).



19

orders, to meet certain standards concerning the abate­
ment of asbestos in public buildings undergoing con­
stru ction  and repair. F inding that the S ta te 's  and 
KCM SD's constitutional violations were the reason why 
renovations were required and, thus, were the reason 
why federally mandated asbestos abatement had to occur, 
and finding that elim inating health hazards was an 
important component of a cure for the district's educa­
tional deficits and necessary to the success of the deseg­
regation plan, Pet. App. at A56, the district court found 
that the expense of m eeting the asbestos abatem ent 
requirements of federal law was a part of the overall 
desegregation expense. The court accordingly ordered the 
State and the KCMSD to share equally in the cost of 
abating asbestos that was likely to be dislodged in the 
course of com pleting the capital improvement plan.26

The court of appeals affirmed. Pet. App. at A24-26. It 
found that, in the "unique circumstances presented here," 
asbestos abatement during building work was necessary 
to assure "safe and healthy school facilities that are not 
an obstacle to education or to desegregation." Pet. App. 
at A-25.

The asbestos abatement tasks in the capital improve­
ment work ordered by the district court are now virtually 
complete.

REA SO N S FOR DENYING THE W RIT

Unasham edly candid in its petition, the State of Mis­
souri all but admits that the questions it here presents are

26 Similarly, the school district's capital program ordered 
by the court includes the cost of compliance with minimum and 
prevailing wage laws,. OSHA's construction safety standards, 
and air quality standards. The State does not challenge those 
components of the plan.



20

not them selves worthy of this Court's plenary attention. 
Scrutiny of M issouri's petition yields not a hint of a 
conflict in the circuits nor even a suggestion of an im por­
tant federal question presented by the budget-adjustment 
and asbestos-abatem ent matters that are all that is actu­
ally before the Court. Instead, Missouri freights two nar­
row, technical orders with the full weight of a remedy 
devised over alm ost a decade and grounded firmly in the 
nature and scope of the unique set of violations that 
necessitated the remedy. In the process, the State asks the 
Court to review (i) the district court's violation findings, 
which the State never appealed; (ii) the district court's 1984, 
1985, 1986, and 1987 findings detailing the various educa­
tional, financial, physical, and racially segregative effects 
of the State's violations, which the State never appealed ; 
(iii) the district court's 1985, 1986, and 1987 remedy 
orders, which the State either never appealed  or as to 
which this Court previously has denied certiorari; and (iv) 
two more recent technical orders requiring certain reme­
dial adjustments and details, as which the State never 
sought a stay and which accordingly are now, or soon to 
be, entirely completed.

The uninteresting, and now almost entirely academic, 
questions (whether, in the course of capital improve­
ments, it was proper to make the school district adhere to 
federal asbestos-abatem ent safety standards and whether 
it was proper to correct estim ation errors in the budget 
for a construction project previously affirmed on appeal) 
do not themselves m erit this Court's review and cannot 
bear the weight of the many long-since-resolved issues 
that M issouri attem pts to load upon them. Nor is there 
any reason to bootstrap a wider review of previously 
unappealed orders onto those two mundane questions.



21

A. THE LEGAL STAN D A RD S ON W HICH THE D IS ­
T R IC T  COURT RELIED  IN SHAPING THE REM ­
ED Y  A RE U N O B JE C T A B L E , M A N D A TE TH E 
R E M E D Y  O R D E R E D ,  A N D  W E R E  N E V E R  
APPEALED BY THE STATE.

In its first remedy order in 1985 the district court 
adopted as its guiding principles the very constitutional 
lim itations on rem edies that the State claim s were 
ignored.27 The court insisted that "th e scope of the 
remedy [be] determined by the nature and extent of the 
violation" and that the remedy eliminate "the vestiges of 
state imposed segregation." 639 F.Supp. at 23 (citing Mil- 
liken v. Bradley, 418 U.S. 717, 744 (1974)). M issouri has 
never challenged the appropriateness of these principles.

The court then proceeded to make findings of fact 
that linked violations to effects and linked effects to each 
component of the remedy the court ordered. Specifically, 
the court first found intentional segregation of blacks in 
the KCMSD and intentional degradation of the district's 
education program. The district court next found that 
these violations caused an "in tense!]" concentration of 
blacks within the KCMSD, "inferior" educational oppor­
tu n ities, and a "sy stem  w ide redu ction  in stu dent 
achievem ent," 639 F.Supp. at 24, which in turn, caused 
"large num bers" of whites to flee from the KCMSD to 
suburban districts. Order of August 25, 1986. Next, the 
court found that in the absence of feasible and legally 
warranted m andatory-busing plans, and given the State's 
refusal to arrange for a transfer of blacks to the suburbs,

27 6 39 F.Supp. at 23 (relying on Milliken, Columbus Bd. of 
Educ. v. Penick, 443 U.S. 449 (1979), Dayton Bd. of Educ. v. Brink- 
man, 433 U.S. 406 (1976), Swann v. Charlotte-Mecklenberg Bd. of 
Educ., 402 U.S. 1 (1971), Keyes v. School District No. I, 413 U.S. 189 
(1973), Green v. County School Board, 391 U.S. 430 (1968), and 
Watson v. Memphis, 373 U.S. 526 (1963)).



22

only a magnet school plan could be a valuable and effec­
tive means of desegregating the district by attracting back 
a voluntarily integrated enrollment. Order of November 
12, 1986. Finally, the court found that improving the 
buildings of the school district was "crucial to the overall 
success of the desegregation plan" and to overcoming the 
educational and physical effects of the violation. 672
F.Supp. at 403. None of those fact findings has ever been 
challenged by the State as erroneous.

In reviewing the remedy orders, the court of appeals 
relied on the same principles, 855 F.2d at 1299, approved 
the d istrict court's fact findings, tested the remedies 
adopted against the lim iting principles in M illiken and 
other cases, and affirmed the remedies.

To this date, M issouri has never claimed that the legal 
standards the courts below applied are incorrect, nor that 
the district's "v iolation" findings are incorrect, nor that 
the district court's effects (or "vestiges") findings are 
in correct, nor that there should be no educational 
improvements to cure some of these effects, nor that 
magnet schools and voluntary transfers are impermissible 
means of curing other effects, nor that capital improve­
ments are anything other than "crucial" to the success of 
the overall plan to cure the violations, nor that Central 
High School should not be replaced, nor even that 
asbestos should not be abated when necessary restora­
tions take place.28 Because the parties are in agreement on 
the applicable legal standards, because those standards

28 Indeed, before the district court entered the order now at 
issue, the State proposed its own asbestos abatement program, 
including its own request that the State be ordered to fund that 
abatement. State's Ex. 9 (August, 1987). Furthermore, as the 
court of appeals found, Missouri "did not appeal earlier orders 
of the district court and this court that included asbestos abate­
ment costs." Pet.App. at A26.



23

premise an appropriate remedy on the district court's 
findings of violations, effects and necessary measures to 
cure those effects, and because the district court made, 
the court of appeals affirm ed, and in most cases the State 
never appealed the requisite findings, there is no ques­
tion of interest that is presented by this case.

B. The State's D efaults Since The Rem edial Process
Began, and Not Any Error by the Lower Courts, Are
R esponsib le for the Rem edial Expense.

The d istrict co u rt's  findings of u nconstitu tional 
school segregation placed M issouri immediately under an 
"affirm ative duty to take whatever steps might be neces­
sary" to cure the segregative, educational and other 
effects of that violation. Columbus Bd. o f Educ. v. Penick, 
443 U.S. 449, 459, (1979) (quoting Green v. County School 
Bd., 391 U.S. 430, 437-38 (1968)). Explicitly invoking the 
State's constitutional obligation, the district court con­
cluded its findings of violations by calling upon the State, 
on its own, to remedy the effects of its violation. 593 
F.Supp. at 1505. Most specifically, the Court noted that 
the M issouri General Assembly "established the school 
districts and if it deems necessary, can change them " to 
achieve desegregation. Although the State's chief state 
school officer reached the same conclusion even before 
the d istrict cou rt rendered  its d ecisio n ,29 M issouri 
ignored the court's invitation.

In 1985 the school district and the Jenkins class pro­
posed a com prehensive remedy that would have consoli­
dated area districts and achieved desegregation instantly 
and at very little cost to the State. Missouri opposed a 
mandatory interdistrict remedy, and the district court 
rejected it. Order, January 25, 1985. In 1985 the district

29 See supra note 11 and accompanying text.



24

court invited plans for magnet schools, 639 F.Supp. at 34, 
but again M issouri chose to submit no plan whatsoever, 
leaving the district court with no alternative but to work 
from the plan jointly submitted by the plaintiff school- 
children and the KCMSD.

Also in 1985, the court asked the State to use its good 
offices to establish a transfer plan for m inorities to attend 
school in volunteering suburban school districts. 639 
F.Supp. at 38. Among the beneficial features of such a 
plan to overcome the State's "intensive" concentration of 
blacks in the KCMSD would be its minimal cost, inas­
much as integrated sets of students could be educated in 
existing and educationally attractive facilities in the sub­
urbs, in lieu of requiring the KCMSD to tear down old 
schools (abating asbestos in the process) and build new 
ones (among them Central High). Again, the State did not 
act. In 1986 the district court admonished the State to act, 
threatening to find "other methods of accomplishing this 
task at the State's expense." Id. at 51. Still, the State failed 
to establish a transfer program even though its success 
would have greatly reduced the expenses of the volun­
tary KCMSD plan about which it continues to complain.

Similarly, when the district court in 1987 sought sug­
gestions for helping the KCMSD fund its share of the 
desegregation costs, the State offered no plan, expressed 
no opposition to the schoolchildren's motion for a court- 
ordered tax increase, and insisted that means be found to 
enable the school district to pay its own share. Yet, when 
the district court adopted the only proposal before it, in 
which the State previously had acquiesced, the State sud­
denly objected and brought the matter to this Court -  still 
without alternative suggestions.

In summary, over and over again for nearly 40 years 
now, the State has adhered to a single unconstitutional 
and unhelpful pattern of action in this case: defaulting in



25

its prim ary duty to cure the effects of its violation; 
defaulting in its fail-back duty to propose remedies for 
the court's consideration; w ithholding objection from, 
and even supporting, aspects of the remedy that the 
Court is considering; and then complaining after-the-fact 
about the expense of remedies that it never previously 
opposed and that were necessitated by the extent and 
continuation of its violations and by its rejection of less 
costly remedial options.

Now, M issouri again attacks a remedy for which it 
has proposed no alternative of its own, as to which it has 
resisted every alternative remedy proposed by others, 
and about which it has limited its contribution to after- 
the-fact com plaints about expense. The violations found 
against M issouri, and never appealed, caused "a large 
number of w hites" to flee the school district to the sub­
urbs, degraded the educational opportunities for the 
m inority students left behind, and literally "rotted" the 
district's instructional plan. Missouri accordingly placed 
itself under a continuing obligation to the schoolchildren, 
and to the courts, to eliminate those effects, an obligation 
satisfied only by effective actions to decrease the effects 
of its segregation. Columbus, 443 U.S. at 459. Yet, in this 
Court, as consistently below, Missouri fails to identify 
how the schoolchildren will be relieved of harms that no 
party denies the State caused and that no party doubts 
still exist.

Moreover, the State itself is responsible for the single 
aspect of the remedy about which it complains, namely, 
cost. According to the district court's findings, the State 
intentionally segregated blacks within the KCMSD for 
120 years prior to Septem ber 1984, causing the system- 
wide racial segregation of the district, generating perva­
sive education decline, and resulting in massive physical 
decay. The cost of curing these illegally caused conditions



26

is undoubtedly expensive. But how could a cure for 120 
years of determ ined and racially, educationally, and phys­
ically costly violations be other than expensive?

Accordingly, whether because of its ongoing consti­
tutional default, its unclean hands, or its having repeat­
edly sandbagged the district court, the State has no valid 
com plaint about a remedy that its unlawful pre- and 
post-Brown actions required or a remedial expense that its 
post-1984 inaction has singlehandedly inflated.

C. The Rem edy is M anifestly  W ithin the Court's D is­
cretion G iven its Avoidance of Rem edial Burdens 
on Parties O ther Than Those D irectly R esponsible 
for the V iolation and its Effectiveness.

Initially, the Jenkins class of schoolchildren favored 
and sought an interdistrict remedy but the district court 
denied consolidation relief, concluding that the remedy 
would excessively intrude the court in the affairs of the 
suburban school districts. The court then noted that the 
M issouri General Assembly had created those districts 
and could easily and integratively reorganize them if it 
chose. "If such legislation is the only means by which the 
State can fulfill its fourteenth amendment obligations," 
the court wrote, "then such legislation is mandatory." 593 
F.Supp. at 1504. The General Assembly chose not to act, 
however, and the court chose not to make it act -  again 
given the extent to which such an order, although sup­
portive of the least expensive and most effective remedial 
option, might intrude on the interests of innocent subur­
ban jurisdictions and citizens.

The district court next asked the State to use its good 
offices to secure voluntary participation by the suburbs in 
a volu ntary  in terd istrict desegregation  remedy. 639 
F.Supp. at 38. W hile more expensive than a remedy that 
simply redrew boundary lines, such a plan still would



27

have been less expensive than having to build magnet 
schools and refurbish facilities in the KCMSD. Nonethe­
less, despite repeated orders by the district court, the 
State refused to act. Absent action by the State, and 
barring pressure by the court on innocent suburban dis­
tricts, parents, and children, the remedial constraint on 
involving innocent parties trumped the remedial require­
ment of effective removal of segregative vestiges, and no 
interdistrict transfer was implemented.

In early 1985, the State proposed a mandatory infra­
district remedy to move the plaintiff schoolchildren from 
one inferior facility with substandard educational ser­
vices and a m ajority black student body to another. Id. at 
35. The district court rejected this approach as well -  on 
grounds that the State 's proposal not only burdened 
innocent victim s of the violations but also would have 
been entirely ineffective in removing the segregative and 
educational effects of the State's violation.

Having rejected all these remedies as excessively 
intrusive on the interests of innocent individuals and 
suburban school districts and having rejected the State's 
single proposal on the additional ground of remedial 
ineffectiveness, the district court instead ordered a less 
intrusive remedy: academic programs and ancillary relief 
to rem edy the segregation-caused inferior education 
available to students in the mostly minority KCMSD as 
approved in M illiken v. Bradley II, 433 U.S. 267 (1977); 
voluntary transfers of nonminorities to magnet schools as 
also approved in id.; and refurbished buildings in the 
KCMSD to reverse some of the physical, educational and 
segregative effects of the State's violations.

It is true that the remedy imposed was more expen­
sive than the other proposals. It also is true, as plaintiffs 
have repeatedly made clear to the district court, that this 
remedy is (and rem ains) less satisfactory to them -



28

because it is less im mediately effective -  than either a 
mandatory interdistrict consolidation plan or a manda­
tory interdistrict transfer plan or even a m eaningful vol­
untary interdistrict transfer plan. But the plan the court 
chose has another virtue, which is legally decisive under 
the this Court's rem edial-effectiveness decision in Green, 
391 U.S. at 437-39, and its remedial-limits decision in 
M illiken, 433 U.S. at 280, as interpreted by the district 
court: among all the available plans, the one the court 
imposed is the only one that holds out even a hope of 
removing the vestiges of the State's violations and, at the 
same time, does not m andatorily involve school districts 
and schoolchildren who were not responsible for those 
violations.

The district court can hardly be said to have abused 
its discretion in selecting the only educationally and 
desegregatively effective option that is available.

D. The Remedy Is Working

Having eschewed the broader, mandatory, and more 
intrusive plans first presented to it, and having declined 
M issouri's requests that the violations be left essentially 
without a remedy, the district court adopted a middle 
course and ordered a voluntary plan. As the court of 
appeals noted, although the "KCM SD has only begun its 
vast efforts to remedy the vestiges of the dual system of 
education in the school district," 942 F.2d at 491, the 
district court's plan already is bearing fruit. This year 913 
new nonm inority students from the suburbs have been 
attracted to the KCM SD's magnet schools -  Central High 
School among them -  joining 778 nonminority students 
who have re-enrolled from previous years. These 1,691 
students have caused for the first time in two decades a



29

significant increase in the percentage of nonminority stu­
dents in the KCMSD. September, 1991 Census of Students.

The educational programs and improved facilities tar­
geted for the mostly minority students in the KCMSD also 
show early signs of working. Science and math scores in 
many schools have especially shown dramatic improvement, 
reversing trends suffered in most urban schools.30

E. The Asbestos Abatement And Budget Adjustments to 
Which the State Objects Are Necessary, Proper, and 
Entirely Non-Controversial Components of the Reme­
dial Effort

If, as Missouri never disputes, magnet schools are 
appropriate remedies for its violations, and if, as Missouri 
never disputes, buildings must be renovated to house those 
schools, and if as federal law requires and both courts found 
below, asbestos necessarily must be abated from buildings 
being renovated, then what possible objection can there be to 
include abatement in the remedial budget? Unable to chal­
lenge the fact findings that some construction is required as a 
part of the magnet remedy, that abatement is then required, 
and that the costs of abatement are thus necessarily costs of 
the magnet remedy, the State is reduced to attacking the 
overall price tag on a set of remedies that are not before the 
Court, in which the State has largely acquiesced, and as to 
which the State has no legally or equitably sound objection.

Similarly as to the Central High costs estimates, if con­
struction of a new school is required by the magnet school 
remedy, the district court may estimate construction costs 
and change them upon appropriate fact findings to correct 
errors. No more than that was done by the lower courts, and

30 "Since 1987, KCMSD scores have improved on every 
subtest at every grade level" except two. Missouri Mastery and 
Achievement Tests, Spring, 1991 Performance at 2.



30

none of it is here challenged by Missouri for being based on 
erroneous findings. Thus, as to Central also, the State finds it 
must attack the remedy itself.

The original 1985 remedy order, 639 F.Supp. 19, pro­
vided for both magnet schools and capital improvements. 
The State did not appeal the magnet school order and the 
provision for capital improvements was affirmed, 807 F.2d at 
685, and Missouri did not seek certiorari. Missouri thus seeks 
relief from principles established in orders entered nearly 
seven years ago, principles it does not challenge, and from 
fact findings implementing those principles, fact findings it 
does not challenge as erroneous. There is thus no basis for 
accepting Missouri's invitation to use two narrow orders as 
the means for a broad and wholesale review of a remedy 
properly adopted years ago and appropriately implemented 
ever since.

CONCLUSION

For the foregoing reasons, the writs should be denied.
Respectfully submitted,

" A rth u r  A. B en so n  II 
1000 Walnut Street 
Suite 1125
Kansas City, MO 64106 
816/842-7603

T h eo d o re  M. S haw  
University of Michigan 

School of Law 
Hutchins Hall 
Ann Arbor, MI 48109 
313/763-7868

J a m es S. L iebm an  
Columbia University 

School of Law 
435 West 116th Street 
New York, New York 10027 
212/854-3423

"■Counsel of Record

October 28, 1991 Attorneys for  Respondents Jenkins et al.