Jenkins v. Missouri Individual Brief of Appellee the School District of the City of Independence

    IN THE
UNITED STATES COURT OP APPEALS 

FOR THE EIGHTH CIRCUIT

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

KALIMA 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 
THE CITY

BRIEF OF APPELLEE THE SCHOOL DISTRICT OF 
OF INDEPENDENCE AND ITS SUPERINTENDENT 

DR. ROBERT L. HENLEY

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 The School District of the 
City of Independence, Missouri



SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
The Kansas City Missouri School District ("KCMSD") instituted 

this case in 1977. The states of Missouri and Kansas, their state 

Boards of Education, 19 school districts on both sides of the 

state line and three federal agencies were initially named as 

defendants. The District Court dismissed the Kansas defendants 

for lack of jurisdiction and realigned KCMSD as a defendant. In 

the course of discovery, millions of documents were produced and 

examined. Over 130 depositions were taken. Trial commenced on 

October 13, 1984, and Appellant Jenkins ("Jenkins") rested their 

case on March 6, 1984. The trial transcript contains over 16,000 

pages. At trial, 2,100 exhibits were offered and 140 witnesses 
were called. Additionally, over 10,000 pages of deposition 

testimony were designated and considered. The District Court 

made extensive findings of fact which are fully supported by 

record citations.
Based on its review of the evidence, the District Court found 

that the School District of the City of Independence 

("Independence") is operating a unitary fully integrated district 
under the standard set forth in Swann v. Charlotte-Mecklenberg, 

402 U.S. 1, 31 (1972). The Court's General Memorandum and Order 
of June 5 , 1984, ("Order") concluded that Jenkins had not met 
their burden of proving an interdistrict violation by 

Independence that had a significant interdistrict effect, as man­

dated by Milliken v. Bradley, 418 U.S. 717, 745 (1974 ), and 

Washington v. Davis, 426 U.S. 229, 240-41 (1976). Therefore, the

l



Court concluded that Independence could not be included in an 

interdistrict remedy. Jenkins has failed to appeal these fin­

dings. Consequently, the Court's Order dismissing Independence 

under Federal Rule 41(b) should be summarily affirmed.

If oral argument is needed, Independence requests 20 
minutes.

11



TABLE OF CONTENTS
PAGE

SUMMARY AND REQUEST FOR ORAL ARGUMENT..................  (i)

TABLE OF CONTENTS....................................... (iii)

TABLE OF AUTHORITIES.....................................  (iv)

STATEMENT OF FACTS AND ISSUES.......................... (v)
ARGUMENT:

I. THERE ARE NO SIGNIFICANT EFFECTS BECAUSE
OF ANY PRE-1954 ACTIONS.......................... 1

A. INDEPENDENCE PROMPTLY DESEGREGATED
AFTER BROWN..................................  2

B. JENKINS' EVIDENCE SHOWED FEW BLACK
TRANSFERS....................................  2

II. THE INDEPENDENCE BOUNDARIES ARE RACIALLY
NEUTRAL...................................      3

III. INDEPENDENCE HAS DONE NOTHING TO LURE WHITE
STUDENTS AWAY FROM KCMSD........................  4

IV. INDEPENDENCE HAS BLACK RESIDENTS, STUDENTS
AND FACULTY.................................    5

V. THE RECORD REVEALS NO HOUSING RELATED
VIOLATIONS BY INDEPENDENCE......................  6

VI. COOPERATIVE EFFORTS BETWEEN INDEPENDENCE 
AND OTHER ENTITIES ARE NOT CONSTITUTIONAL 
VIOLATIONS.......................................  7

CONCLUSION................................................  8

iii



TABLE OF AUTHORITIES

PAGE

BERRY v. BENTON HARBOR, 698 F.2d 813 (6th Cir. 1983).... . 7

BRADLEY v. SCHOOL DISTRICT OF RICHMOND, 462 F. 2d 1058 ,

(4th Cir. 1972), aff'd 412 U.S. 92 (1973 ).............. 5 , 7

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 ( 1954)........... 2

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

SWANN v. CHARLOTTE MECKLENBERG, 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 ).................... ......... ...........  3

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

IV



STATEMENT OF FACTS AND ISSUES

The District Court's findings of fact concerning 

Independence (Order at 59-67) are unchallenged by Appellants. 

Therefore, these findings are the only proper statement facts for 

determination of this Appeal.

Independence adopts the Statement of Issues submitted in the 

Consolidated Brief of the Appellee Districts.

v



ARGUMENT
I. There Are No Significant Effects Because of Any

Pre-1954 Actions
Jenkins failed to produce any evidence that Independence is 

anything but a fully desegregated and unitary school system. 

Nathaniel Moreland, a black patron, established the non- 

discriminatory approach of Independence to the education of black 

students. He testified:
Q. Okay. You have no present complaints? I guess your 

children have graduated now, haven't they?

A. Really. You're trying to make a point, but the black 

people of Independence was satisfied with the way the 

school board handled that matter and we have gotten 

along fine since then. And I have no complaint with 

the way the school board handled the matter. They 

worked diligently with the black parents, the organi­

zation, they did a fine job and I am here to state 

that. So that there is no —  I really feel that if 

all the school boards in the land was like that one 

at that particular time we wouldn't be sitting here 

today. (T. 3886-7).
Other black witnesses also testified approvingly of the education 
and treatment of black children in Independence.-'- This testimony 

demonstrates Independence's commitment to equal educational

^See, for example, the testimony of A. Charles, T. 1752; I. 
Tucker, T. 689; and J. Briscoe, T. 1720.

1



opportunity and its longstanding desire to comply with Brown v. 

Board of Education, 347 U.S. 483, 495 (1954).
A. Independence Promptly Desegregated After Brown I 
Independence dismantled its dual school system shortly after 

Brown I. By July 6, 1954, Independence was preparing to desegre­

gate its schools (P. X. 2254). Significantly, in the 1954-55 

school year, Independence accepted all black high school students 

into its only high school. Transfers of black high school stu­

dents to KCMSD stopped immediately. In the 1957-58 school year 

complete integration was achieved. Thereafter, all black elemen­

tary and high school pupils attended previously all-white schools 

(P. X. 2254; Plucker D. 120).2 Contrary to Jenkins' assertion, 

Independence also retained its black teachers from the pre-1954 

period, employing them at the secondary level (P. X. 2255 and 

P. X. 2967).3
B. Jenkins' Evidence Showed Few Black Transfers

The only blacks that Independence transferred were high 

school students. These students were only transferred for a nine 

year period from 1945 to 1954. Jenkins' evidence showed that 

only about 100 total transfers during the entire nine-year period

^Jenkins' expert, Dr. Orfield, conceded that any short con­
tinuation of a black school after Brown I would have no significant 
effect today (T. 14,926). In respect to Independence, only the 
black elementary school continued in existence for a very short 
time. All actions relative to desegregation in Independence were 
coordinated with input from the local black community.

3Appellants ignore this fact and represent to the Court that 
all of SDD's black teachers were either demoted or dismissed 
(Jenkins' Brief at 37).

2



occurred (T. 4560). The exact number of such students involved 

is considerably less than 100 because most students were trans­

ferred for multiple years.4
There is no credible evidence to support Jenkins' argument 

that a current significant effect exists from these few ancient 

transfers. Indeed, no transferred black pupil moved from

Independence to attend school in KCMSD (Edwards D. 71; T. 1621). 

And, Jenkins' "depopulation" theory does not apply to 

Independence. Jenkins' historian conceded that Independence's 

black population, which was "rural non-farm", remained stable (T. 

4570). For most of the period prior to 1954, Independence had 

adequate black schools including a black high school (P. X. 2400; 

Plucker D. 87, 115).5 Thus, there is no evidentiary, historical, 

or legal basis to justify interdistrict relief that includes 

Independence.
II. The District Boundaries in Independence 

Are Racially Neutral
Jenkins presented no evidence that school district lines in 

Independence were drawn, changed or perpetuated for racial

4This is comparable to the number of transfers in Tasby v. 
Estes, 412 F. Supp. 1185, 1189-90 (N.D. Texas 1975) aff'd, on 
inter-district issue, 572 F.2d 1010 (5th Cir. 1978), where it was 
found that no interdistrict violation existed. Unlike Tasby, 
Independence transfers stopped immediately in 1954 and there have 
been no transfers of whites from KCMSD to Independence.

5Even though KCMSD disengenously attempts (Brief of KSMSD at 6 
nt. 17) to lump the SDDs together regarding the quality of their 
"black" schools, its arguments do not apply to Independence. The 
Young school was a modern brick school that provided a good edu­
cation with a "generous supply and maintenance of library, 
reading and other instructional materials."

3



The formationreasons. The formation of Independence predated KCMSD's. 

Independence encompasses the majority of the City of 

Independence, as well as small portions of the cities of Kansas 

City and Sugar Creek.6 The attempted deannexation of the Van 

Horn area, almost entirely within the City of Independence, from 

KCMSD failed (Goodrich D. 32).7 Thus, there is no effect and 
hence no significant constitutional violation under the worst 

assumptions.

III. Independence Has Done Nothing To Lure 
White Students Away from KCMSD

Independence has never taken any white transfer students from 

KCMSD. Fred Cioffi, an HEW investigator, testified that 

Independence fully cooperated in his investigation of a rumor 

that post-Brown I transfers of white non-resident students from 
KCMSD to Independence might have existed. His investigation, 
however, revealed no such transfers. There was no evidence that 

any such transfers ever occurred (T. 10156-7).
Jenkins produced no evidence that Independence encouraged or

^Although issues such as the Spainhower Commission plan and 
H.B. 171 are irrelevant, Independence would not have been com­
bined with KCMSD under Spainhower (P. X. 504) and it would have 
been virtually unaffected by H.B. 171 (P. X. 36). There is no 
evidence of any meaningful involvement, much less discriminatory 
intent by Independence in regard to either issue.

^In Berry v. Benton Harbor, 698 F.2d 813, 815 (6th Cir. 1983), 
the court faced a somewhat similar situation except the dean­
nexation attempt there was approved by the State Board of 
Education. However, because the deannexation effort was never 
implemented, the Berry court found no significant interdistrict 
effect.

4



caused whites to leave KCMSD. Independence was virtually unaf­

fected by any "white flight" from KCMSD. The 121 students 

Jenkins contends moved from KCMSD to Independence during the 

1960's and 70's only constituted .8% of Independence's population 

(P. X. 53-G). That is hardly any effect, much less a significant 

interdistrict effect.8 Consequently, even if Jenkins' strained 

legal theories had any merit, the Court was correct in finding 

that they failed when applied to Independence.

IV. Independence Has Black Residents, Students and Faculty
There are no barriers to prevent blacks from moving to 

Independence. Appellants' own evidence shows blacks are moving 

to Independence in increasing numbers. The number of blacks in 
Independence schools has increased since 1972 with an increase of 

fifty students during the 1983-84 school year (P. X. 2967). The 

increased enrollment of blacks is in contrast with the sharp 

decline in the number of white students.
Although employment practices are intradistrict matters, 

Independence has a tradition, as noted above, of having black 
faculty members.9 Indeed, Appellants' evidence demonstrates that

®See Bradley v. School District of Richmond, 462 F.2d 1058, 
1065 (4th Cir. 1972), aff'd 412 U.S. 92 (1973).

^To the extent that KCMSD's argument that black teacher role 
models were needed in the SDDs to attract black families has any 
validity, it is inapplicable to Independence (KCMSD Brief at 10 
nt. 30). Independence's black teachers have always been an 
integral part of its community and, served as role models for 
black and white students alike.

5



Independence still has black faculty members and a black prin­

cipal (P. X. 2967). Independence also tried to persuade one 

other black teacher to accept a principal position (P. X. 

2967). Jenkins' statistical witness, Mr. Carlson, conceded 

that the number of black teachers in Independence was within 

expected statistical standard deviations (T. 6446). And, the

number of teachers reflected by Mr. Carlson's chart was actually 

understated. The evidence shows that five additional black 

teachers were hired during the pertinent period. In fact, 

Independence made a good faith effort to hire every black appli­

cant (P. X. 2967). Independence has also had black substi­

tute teachers (T. 1768). At least one black teacher testified 

she did not apply for full-time employment at Independence 

because KSMSD paid teachers more money (T. 1768). Furthermore,
Independence recruits at black universities, including Lincoln 

(P. X. 2967). Given these facts, it is apparent why the Court 

concluded that Independence's hiring practices have no signifi­

cant interdistrict relevance, impact, or effect (Order at 64-5).

V. The Record Reveals No Housing Related Violations
By Independence

Finally, Jenkins failed to show any link between alleged 

racial discrimination in housing and any school district action. 

No evidence revealed any involvement by Independence in any housing 

related activity of other government entities in either the City 

of Kansas City or the City of Independence. When stripped to its 
essentials, Jenkins' overstated arguments at trial relative to urban 
renewal projects in the City of Independence showed only about

6



o KCMSD.three or four relocations that had some nexus t 

Furthermore, there has been no showing that schools were involved 

in the relocation process, nor were the number of school 

children significant in any sense. In fact, only one relocated 

family had children (T. 3870). Consequently, Jenkins has

apparently abandoned this argument on appeal (Jenkins' Brief at 

18, 24).!0 Nor was there any testimony that private racial
steering, block busting, or redlining ever occurred in 

Independence. Jenkins' evidence demonstrated that there were few 

restrictive covenants ever in Independence (T. 13,332-3).

Furthermore, in the few Independence neighborhoods that ever had 

racially restrictive covenants, blacks have moved in freely (T. 
1734, 13,332-3).

VI. Cooperative Efforts Between Independence and Other Entities
Are Not Constitutional Violations

Prior to 1971, Independence provided for vocational education 
within its own district. In 1971, Independence became a sending 

district to the Joe Herndon AVTS in the contiguous Raytown 

district. Independence was never approached by KCMSD to par­
ticipate in its AVTS (Goodrich D. 150). Nor is there

Having failed to demonstrate that any urban renewal project 
within the boundaries of Independence had any discriminatory 
effect at all, Jenkins now has turned their attention to urban 
renewal projects within the City of Kansas City (Jenkins ' Brief 
at 18-24). Independence cannot be included in this racial 
balance program on the basis of the alleged constitutional viola­
tions of other governmental bodies. Bradley v. School Board of 
the City of Richmond, 462 F.2d 1058 (4th Cir.) aff'd 412 U.S. 92 
(1973).

7



any evidence that KCMSD needed the participation of any other 
district.

Independence has sent a few special education pupils to KCMSD 

when it did not have facilities available within its district. 

Appellants have alleged that the SDD's stopped participating 

with KCMSD because its special education program became predomi­

nately black (Jenkins' Brief at 29 Nt. 59). There is no evidence 

to support this allegation. Instead, the evidence demonstrated 

Independence only stopped sending its handicapped students to 

KCMSD because the long bus rides were very hard on the children 

(Goodrich D. 146-8).H  Today, Independence has its own comprehen­
sive special education program.

There is no evidence that the participation or non­

participation of Independence in any cooperative program was ever 

pursued with the purpose or effect of segregating students in 

KCMSD. These programs are not constitutional violations and 

instead, they should be encouraged.

CONCLUSION
For the above reasons and those stated in the Consolidated 

Brief of the Appellee School Districts, Independence's dismissal 

must be affirmed. No fairly applied legal standard justifies 
Independence's destruction or consolidation.

11-Jenkins' tries to contrast this cooperation in special educa­
tion with alleged failure to cooperate in desegregation matters 
(Jenkins' Brief at 29, nt. 59). However, it should be noted that 
Independence never was asked to participate in any programs 
geared to promote racial balance in KCMSD (P. X. 626).

8



Respectfully submitted,

HUMPHREY & FARRINGTON, P. 
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 
THE SCHOOL DISTRICT OF 
THE CITY OF INDEPENDENCE