Liddell v. State of Missouri Opinion of the Court En Banc
Public Court Documents
February 8, 1984
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Brief Collection, LDF Court Filings. Liddell v. State of Missouri Opinion of the Court En Banc, 1984. 44fb0049-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7210ae0f-587b-4541-84f8-f0a0bd15cbd8/liddell-v-state-of-missouri-opinion-of-the-court-en-banc. Accessed August 10, 2025.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 83-1957
Craton Liddell, a minor, by Minnie Liddell,
his mother and next friend, and Minnie
Liddell; Joanna Goldsby, a minor, by Barbara
Goldsby, her mother and next friend, and
Barbara Goldsby; Deborah Yarber, a minor,
by Samuel Yarber, her father and next friend,
and Samuel Yarber; Natalie Moore, a minor,
by Louise Moore, her mother and next friend,
and Louise Moore; Rochelle LeGrand, a minor,
by Lois LeGrand, her mother and next friend,
and Lois LeGrand; on behalf of themselves
and all other school age children and their
parents residing in the roetropolitan school
district of the City of St. Louis,
Missour i ,
Appellees,
Earline Caldwell, Liddie Caldwell, Denise
Daniels, Dwayne Daniels, Gwendolyn Daniels,
Cedric Williams, Stephanie Williams, Gloria
Williams, Janis Hutcherson, Robert Smith,
Eddie S. Willi3, and the National Associ
ation for the Advancement of Colored People,
Appellees,
City of St. Louis,
United States of America,
Board of Education of the City of St. Louis,
State of Missouri, Daniel L. Schlafly,
Frederick E. Bussee, Gordon L. Benson,
Malcolm W. Martin, Mrs. Anita L. Bond,
Mrs. Joyce Bowen, Henry M. Grich, Jr.
(Secretary), Rev. James L. Cummings
(President), Mrs. Erma J. Lawrence,
Rev. Donald E. Mayer (Vice President),
Lawrence Moser, Charles Harris (Members of
the School Board); and Julius C. Dix,
Benjamin M. Price, Robert W. Bernthal,
Davis J. Mahan, Charles Brasfield (School
District Superintendents); and Robert B.
Wentz (Superintendent of Schools), all in
their official capacitites.
Appellees,
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of
of
St Louis County, Gene McNary, County
Executive; Harlow Richardson, CountyGeorge C. Le.chman Collection
St. Louis County Contract Account,
Affton Board of Education, Bayless Board of
Educat ion, Brentwood Board of Education,
ClaytonBoard of Education, Ferguson-
Florissant Reorganized R-2, Hancock Place
Board of Education, Hazelwood Board of
Education, Jennings Board of Education,
Kirkwood Board of Education, Ladue Board
Education, Lindbergh Board of Education,
^ l er r “ iUee^aJd SrSduSStion.
Normtnd? Board of Education, Parkway Board
S M -c tion.
Over v i ew Gardens Board of Education,
Rockwood Board of Education, Valley Park
Board of Education, University City Board
Education, Webster Groves Board of
Education and Wellston Board of Education,
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Appellees,
in his official capacity; The State ° Missouri Board of Education; Christopher S.
Bind Governor of the State of StateJohn Ashcroft, Attorney General of the State
of Missouri; Melvin E. Carnahan,
nf the State of Missouri; Stephen u., - j rnmirii ioner of Adniinistration of
the^State oHllssou?!; ?he State of Missouri
Board of Education and its inen'̂ e^s% ^ in Williamson (President), Jinuny Robertso
(Vice President), Grover A,
Cobble, Dale M. Thompson,
and Robert Welling,
Gamm, Delmar A.
Donald W. Shelton
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Appeal from the
States District
for the Eastern
District of Mis
United
Court
sour i.
Appellants.
No. 83-2033
Craton Liddell, a minor, by Minnie Liddell,
his mother and next friend, and Minnie
Liddell; Joanna Goldsby, a minor, by Barbara
Goldsby, her mother and next friend, and
Barbara Goldsby; Deborah Yarber, a minor, by
Samuel Yarber, her father and next friend,
and Samuel Yarber; Natalie Moore, a minor,
by Louise Moore, her mother and next friend,
and Louise Moore; Rochelle LeGrand, a minor,
by Lois LeGrand, her mother and next friend,
and Lois LeGrand; on behalf of themselves
and all other school age children and their
parents residing in the metropolitan school
district of the City of St. Louis, Missouri,
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Appellees, * ★
Earline Caldwell, Liddie Caldwell, Denise *
Daniels, Dwayne Daniels, Gwendolyn Daniels, *
Cedric Williams, Stephanie Williams, Gloria *
Williams, Janis Hutcherson, Robert Smith, *
Eddie S. Willis, and the National Associ- *
ation for the Advancement of Colored People, **
Appellees, * *
City of St. Louis, *
United States of America, *
Board of Education of the City of St. Louis,
State of Missouri, Daniel L. Schlafly,
Frederick E. Bussee, Gordon L. Benson,
Malcolm W. Martin, Mrs. Anita L. Bond,
Mrs. Joyce Bowen, Henry M. Grich, Jr.
(Secretary), Rev. James L. Cummings
(President), Mrs. Erma J. Lawrence,
Rev. Donald E. Mayer (Vice President),
Lawrence Moser, Charles Harris (Members of
the School Board); and Julius C. Dix,
Benjamin M. Price, Robert W. Bernthal,
David J. Mahan, Charles Brasfield (School
District Superintendents); and Robert E.
Wentz (Superintendent of Schools), all in
their official capacities,
Appellees,
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St. Louis County, Gene McNary, County
Executive, Harlow Richardson, County
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Treasurer, George C. Leachman, Collection of
St. Louis Contract Account,
Appellees,
Affton Board of Education, Bayless Board of
Education, Brentwood Board of Education,
Clayton Board of Education, Ferguson-
Flor issant Reorganized R-2, Hancock Place
Board of Education, Hazelwood Board of
Education, Jennings Board of Education,
Kirkwood Board of Education, Ladue Board of
Education, Lindbergh Board of Education,
MaDlewood-Richmond Heights Board of
Education, Mehlville Board of Education,
Normandy Board of Education, Parkway Board
of Education, Pattonville Board of Education,
Ritenour Board of Education, Riverview
Gardens Board of Education, Rockwood Board of
Education, Valley Park Board of Education,
University City Board of Education, Webster
Groves Board of Education and Wellston Board
of Education,
Appellees,
State of Missouri; Arthur Mallory, Commis
sioner of Education of the State of
Missouri, in his official capacity; The
State of Missouri Board of Education;
Christopher S. Bond, Governor of the State of
Missouri; John Ashcroft, Attorney General of
the State of Missouri; Melvin E. Carnahan,
Treasurer of the State of Missouri; Stephen
C. Bradford, Commissioner of Administration
of the State of Missouri; The State of
Missouri Board of Education and its members.
Erwin A. Williamson (President) , Jimmy
Robertson (Vice President), Grover A. Gamm,
Delmar A. Cobble, Dale M. Thompson, Donald
W. Shelton and Robert Welling,
Appellees,
St. Louis Teachers Union, Local 420,
American Federation of Teachers, Appellant.
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Appeal from the Uni
States District Cou
for the Eastern
District of Missour
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No. 83-2118
Craton Liddell, a minor, by Minnie Liddell,
his mother and next friend, and Minnie
Liddell; Joanna Goldsby, a minor, by Barbara
Goldsby, her mother and next friend, and
Barbara Goldsby; Deborah Yarber, a minor, by
Samuel Yarber, her father and next friend,
and Samuel Yarber; Natalie Moore, a minor, by
Louise Moore, her mother and next friend,
and Louise Moore; Rochelle LeGrand, a minor,
by Lois LeGrand, her mother and next friend,
and Lois LeGrand; on behalf of themselves
and all other school age children and their
parents residing in the metropolitan school
district of the City of St. Louis, Missouri,
Appellees,
Earline Caldwell, Liddie Caldwell, Denise
Daniels, Dwayne Daniels, Gwendolyn Daniels,
Cedric Williams, Stephanie Williams, Gloria
Williams, Janis Hutcherson, Robert Smith,
Eddie S. Willis, and the National Associ-
iation for the Advancement of Colored People,
Appellees,
City of St. Louis, Appellant.
United States of America,
Appellee,
Board of Education of the City of St. Louis,
State of Missouri, Daniel L. Schlafly,
Frederick E. Bussee, Gordon L. Benson,
Malcolm W. Martin, Mrs. Anita L. Bond,
Mrs. Joyce Bowen, Henry M. Grich, Jr.
(Secretary), Rev. James L. Cummings
(President), Mrs. Erma J. Lawrence,
Rev. Donald E. Mayer (Vice President),
Lawrence Moser, Charles Harris (Members of
the School Board) and Julius C. Dix,
Benjamin M. Price, Robert W. Bernthal,
David J. Mahan, Charles Brasfield (School
District Superintendents); and Robert E.
Wentz (Superintendent of Schools), all in
their official capacities,
Appellees ,
St. Louis County, Gene McNary, County
Executive, Harlow Richardson, County
Treasurer, George C. Leachnan, Collection of
St. Louis County Contract Account,
Appellees,
Affton Board of Education, Bayless Board of
Education, Brentwood Board of Education,
Clayton Board of Education, Ferguson-
Florissant Reorganized R-2, Hancock Place
Board of Education, Hazelwood Board of
Education, Jennings Board of Education,
Kirkwood Board of Education, Ladue Board
of Education, Lindbergh Board of Education,
Maplewood-Ri chmond Heights Board of
Education, Mehlville Board of Education,
Normandy Board of Education, Parkway Board
of Education, Pattonville Board of
Education, Ritenour Board of Education,
Riverview Gardens Board of Education,
Rockwood Board of Education, Valley Park
Board of Education, University City Board
of Education, Webster Groves Board of
Education and Weliston Board of Education,
Appellees
State of Missouri; Arthur Mallory,
Commissioner of Education of the State of
Missouri, in his official capacity; The
State of Missouri Board of Education;
Christopher S. Bond, Governor of the State
of Missouri; John Ashcroft, Attorney
General of the State of Missouri; Melvin E.
Carnahan, Treasurer of the State of
Missouri; Stephen C. Bradford, Commissioner
of Administration of the State of Missouri;
The State of Missouri Board of Education
and its members: Erwin A. Williamson
(President), Jimmy Robertson (Vice
President), Grover A. Gamm, Delmar A.
Cobble, Dale M. Thompson, Donald W. Shelton
and Robert Welling,
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* Appeal from the United
States District Court
for the Eastern
District of Missouri.
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Appellees,
St. Louis Teachers Union, Local 420,
American Federation of Teachers,
Appellant
No. 83-2140
In Re : City of St. Louis, Paul
and Ronald A. Leggett,
Berra
Peti tioners
Nc . 83-2220
Petition for Writ o
Prohibition.
Cr a ton Liddell, a minor, by Minnie Liddell, *
his mother and next friend, and Minnie
Liddell; Joanna Goldsby, a minor, by Barbara *
Goldsby, her mother and next friend, and
Barbara Goldsby; Deborah Yarber, a minor,
by Samuel Yarber, her father and next friend,
and Samuel Yarber; Natalie Moore, a minor,
by Louise Moore, her mother and next friend,
and Louise Moore; Rochelle LeGrand, a minor,
by Lois LeGrand, her mother and next friend,
and Lois LeGrand; on behalf of themselves *
and all other school age children and their
parents residing in the metropolitan school
district of the City of St. Louis, Missouri, ^
Appellees, * *
Earline Caldwell, Liddie Caldwell, Denise *
Daniels, Dwayne Daniels, Gwendolyn Daniels,
Cedric Williams, Stephanie Williams, Gloria
Williams, Janie Hutcherson, Robert Smith,
Eddie S. Willis, and the National Association
for the Advancement of Colored People,Appellees, * *
*City of St. Louis, #
United States of America, *
Board of Education of the City of St. Louis, *
State of Missouri, Daniel L. Schlafly,
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. • «, v Bussee, Gordon L. Benson,Frederick E. Bussee, ~ Anita L . Bond,
MrsC°Jovce Bowen?'Henry M. Grich, Jr.
(Secretary), Rev.
(PteS;denU 'E ^ M ; ye r V i c e Presided) ,
LawUnc^Moser , Charles Harris (Members of
C Knni BnarJ|- and Julius C. Dix,
Benjamin M ?ri c e , Rober t ̂«• f® * ^ tlJ|chool
their official capacities,
Appellees,
St. Loui, county Sene ?=Nary,, ̂ ounty
George C. Leachman. Collection of
I t Louie County Contract Account,
Appe1lees,
Bod-a of Education, Baylees Board of
Edu~a"iont Brentwood Board of Education,
Ili'JtoJ:°Si.rd Of Education,
Educat'ionl^Mehlv^ll^Board^of ̂ Education
o?1 Educat^on)^Fattonv<ille B ^ r d of Education,
Ritenour Board of Education, * ^ « " % osra
Gardens Board of Education, B Education,o£ E d u c a t i o n , Valley Park Board Mebster
o? Education and Wellston Board
of Education ,
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V .
sioner°ofMEducat ion^of htheMState^ofC° ^ iS~
S t ^ e ^ f V i S s S i r i ^ o a l d ^ f ^ d u c a t l o n ; ^ ^ ^
o?tmI?ouri!SiohnnAshc?of^Attorney General
Appeal from, the Unite"
States District Court
for the Eastern
District of Missouri.
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Stephen C. Bradford, Commissioner of Admini
stration of the State of Missouri; The State
of Missouri Board of Education and its
Members Erwin A. Williamson (President),
Jimmy Robertson (Vice President), Grover A.
Gamm, Delmar A. Cobble, Dale M. Thompson,
Donald W. Shelton and Robert Welling,
St. Louis Teachers Union, Local 420,
American Federation of Teachers,
North St. Louis Parents and Citizens for
Quality Education, an unincorporated
association, including William Upchurch,
Vivian Ali, and Dorothy Robins, parents of
children attending the St. Louis city public
schools and members of the regional plaintiff
classes who objected to the settlement
ag reement,
Appe Hants.
No. 83-2554
Craton Liddell, a minor, by Minnie Liddell,
his mother and next friend, and Minnie
Liddell; Joanna Goldsby, a minor, by Barbara
Goldsby, her mother and next friend, and
Barbara Goldsby; Deborah Yarber, a minor, by
Samuel Yarber, her father and next friend,
and Samuel Yarber; Natalie Moore, a minor,
by Lou i se Moore, her mother and next friend/
and Louise Moore; Rochelle LeGrand, a minor,
by Lois LeGrand, her mother and next friend,
and Lois LeGrand; on behalf of themselves
and all other school age children and their
parents residing in the metropolitan school
district of the City of St. Louis, Missouri,
Appellees
Earline Caldwell, Liddie Caldwell, Denise
Daniels, Dwayne Daniels, Gwendolyn Daniels,
Cedric Williams, Stephanie Williams, Gloria
Williams, Janis Hutcherson, Robert Smith,
Eddie S. Willis, and the National Associ
ation for the Advancement of Colored People,
Appellees
City of St. Louis,
United States of America,
Board of Education of the City of St. Louis,
State of Missouri, Daniel L. Schlafly,
Frederick E. Bussee, Gordon L. Benson,
Malcolm W. Martin, Mrs. Anita L. Bond,
Mrs. Joyce Bowen, Henry M. Grich, Jr.
(Secretary), Rev. James L. Cummings
(President), Mrs. Erma J. Lawrence,
Rev. Donald E. Mayer (Vice President),
Lawrence Moser, Charles Harris (Members of
the School Board); and Julius C. Dix,
Beniamin M. Price, Robert W.Bernthai,
David J. Mahan, Charles Brasfield (School
District Superintendents); and Robert E.
Wentz (Superintendent of Schools), all in
their official capacities,
Appellees
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St. Lo'jis County, Gene McNary, County ^
Executive, Harlow Richardson, County ̂
Treasurer, George C. Leachman, Collection of ̂
St. Louis County Contract Account,
Appellees,
Affton Board of Education, Bayless Board of
Education, Brentwood Board of Education,
Clayton Board of Education, Ferguson-
Florissant Reorganized R-2, Hancock Place
Board of Education, Hazelwood Board of
Education, Jennings Board of Education,
Kirkwood Board of Education, Ladue Board of
Education, Lindbergh Board of Education,
Maolewood-Richmond Heights Board of
Education, Mehlville Board of Education,
Normandy Board of Education, Parkway Board
of Education, Pattonville Board of Education,
Ritenour Board of Education, Riverview
Gardens Board of Education, Rockwood Board
of Education, Valley Park Board of Education,
University City Board of Education, Webster
Groves Board of Education and Wellston Board
of Education,
Appellees,
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State of Missouri; Arthur Mallory, Commis
sioner of Education of the State of Missouri, *
in his official capacity; The State of
Missouri Board of Education; Christopher S.
Bond, Governor of the State of Missouri;
John Ashcroft, Attorney General of the State *
of Missouri; Melvin E. Carnahan, Treasurer
of the State of Missouri; Stephen C.
Bradford, Commissioner of Administration of
the State of Missouri; The State of Missouri *
Board of Education and its members: Erwin A. *
Williamson (President), Jimmy Robertson
(Vice President), Grover A. Gamm, Delmar A.
Cobble, Dale M. Thompson, Donald W. Shelton
and Robert Welling, Appellants. *
Appeal from the United
States District Court
for the Eastern
District of Missouri.
Submi tted:
Filed:
November 28, 1983
February 8, 1984
Opinion of the Court En banc, LAY, Chief Judge, HEANEY, BRIGHT'
ROSS, McMILLIAN, ARNOLD, and FAGG, Circuit Judges, with JOHN R.
GIBSON, Circuit Judge, concurring in part and dissenting in part,
and BOWMAN, Circuit Judge, dissenting.
The Caldwell and Liddell plaintiffs, representing black stu
dents and parents of the St. Louis City School District, the City
School District, and several suburban school districts have
entered into a unique and comprehensive settlement agreement
designed to further desegregation in the city schools. The
United States District Court has approved the agreement and has
entered orders to fund the plan.
With the exceptions and limitations noted in the opinion, we
approve the agreement and the order entered by the district court
with respect to:
The voluntary transfers of students between the city and
suburban schools and the establishment of additional magnet
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. „ t-hp Citv School Districtschools and integrative programs in the y
as necessary to the successful desegregation of *
schools;
The quality education programs for the nonintegrated schools
in the City School District;
The quality education programs for all schools in the City
School District, but only insofar as these programs ave ^
shown to be necessary for the city to retain its Class
rating or to be essential to the successful desegregation o
the city schools as hereinafter set forth;
T,e provisions of the district court's order requiring the
State of Missouri, as the primary constitutional violator,
pay the full cost of city to suburb and suburb to.clty
fers. maanet schools and integrative programs in the y
schools, and one-half of the cost of the quality educate
programs in the city schools. We decline to approve t
district court order insofar as it requires the State to fund
student transfers between suburban school dlSt“ CtS
fund magnet schools or integrative programs in those
districts;
improved facilities for the city schools. We require further
planning, however, before construction begins. *' J
with particularity the projects that will be un er a ,
to take account of a probable decline in the city school
population in the next few years.
. . Hi strict court roust take beforeWe outline the steps that the district co
it can require an increase in real estate taxes to fund the City
Board's share of the quality education component of the pBoard S a n a i c ^ >. os that the court must
without a vote of the people, and t P .. ., . . 0 _ Ww, issued to fund the citytake before it can require that bonds b
Board's share of capital improvements without a similar vote.
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make it clear, however, that no party found to have violated the
Constitution will be permitted to escape its obligation to
provide equal educational opportunity to the black children of
S t . Lou i s.
We make it clear that the suburban schools meeting the goals
set forth in the plan will receive a final judgment declaring
that they have satisfied their desegregation obligations.
Finally, we recognize that the settlement agreement and the
district court's order will have to be modified to conform to
this opinion, and we are aware that the cost of the plan, partic
ularly to the State, will be significantly reduced. In our view,
however, the changes do not alter the essential character of the
plan, and they preserve its constitutionality. The parties to
the settlement agreement are required to decide promptly whether
they will accept the changes set forth in this opinion. If they
refuse to dc so, the interdistrict trial will proceed. I.
I. PROCEDURAL HISTORY.
In February, 1972, a group of black parents (the Liddell
plaintiffs) filed a class action against the City Board, the
board members, and school administrators, alleging racial segre
gation in the city's schools in violation of the fourteenth
amendment. The defendants' motion to join the State of Missouri
and St. Louis County (containing the suburban school districts)
as codefendants was denied on December 1, 1973. A year la^er,
the parties entered into a consent agreement which provided for
an increase in the number of minority teachers and included a
pledge by the City Board to attempt to "relieve the residence-
based racial imbalance in the City schools." Liddell— v_.— Bd_j— of
Educ., 469 F. Supp. 1304, 1310 (E.D. Mo. 1979).
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The case first came before this Court in 1976,1 when the
Caldwell plaintiffs appealed the district court's denial of their
right to intervene. We granted intervention, but declined to
pass on the constitutionality of the consent decree. Liddell
Caldwell, 546 F.2d 766 (8th Cir.) (Liddell I), cert, denied, 433
U.S. 914 (1976,. We encouraged the United States and State of
Missouri to intervene, recommended the creation of a biracial
citizens committee to assist in formulating a desegregation plan,
and suggested voluntary interdistrict student transfers as one
remedial too1. Id. at 7 7 4.
Desegregation plans were developed and submitted to the
district court by the City Board, the Liddell plaintiffs, the
Caldwell plaintiffs, and the United States as amicus curiae.
Before approving any plan, the district court ordered a trial to
determine whether there had been a constitutional violation and
to frame a remedy if a violation was found. The United States,
the City of St. Louis, and two white citizens' groups were
allowed to intervene as plaintiffs. The State of Missouri, the
State Board of Education, and the Commissioner of Education were
added as defendants. The district court found no constitutional
violation, and held that the City Board had achieved a unitary
school system, in 1954-56 through its "neighborhood school
policy." Liddell v. Bd. of Educ., supra, 469 F. Supp. at 1360-
1361.
We reversed the district court in Adams v_.— United State_s,
620 F .2d 1277 (8th Cir.) (en banc),cert, denied, 449 U.S. 826
H?e recounted the procedural history of !̂?is ^ fixation in
?7loV !d ctV m
InitedS'tifes, 620 P.2d Till. 1281-1283 {6th Cir.), cert, denied.
449 U.S. 826 (1980).
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(1980),2 holding that the City Board and the State were jointly
responsible for maintaining a segregated school system. In
reaching this decision, we noted that the Missouri State Consti
tution had mandated separate schools for "white and colored
children" through 1976, that the State had not taken prompt and
effective steps to desegregate the city schools after Brown _v^
Bd. of Educ. , 347 U.S. 483 (1954) (Brown J.) , and that the City
Board’s policies and practices since 1956 had contributed to the
existing segregation. We remanded to the district court and
directed that the schools be promptly desegregated. We suggested
the following techniques:
(1) Developing and implementing compensatory
and remedial educational programs. * *
(2) Developing and implementing programs ̂
providing less than full-time integrated learning
exper iences.
(3) Developing and implementing a comprehen
sive program of exchanging and transferring
students with the suburban school districts of St.
Louis County. * * *
(4) Maintaining existing magnet and specialty
schools, and establishing such additional_schools
as needed to expand opportunities for an inte
grated education.
(5) Establishing an Educational Park.
(6) Continuing and expanding a policy of
permissive transfers in the district.
Adams v. United States, supra, 620 F .2d at 1296-1297 (citations
om i tted) .
2We also ruled
between L i d d e 11 I
557 (8th~C lT. 1977
on several procedural questions in the
and Adams, see Liddell v.— CaldweU.,
(Ltaaell II) .
inter im
553 F.2d
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After holding extensive evidentiary hearings. the ^strict
court approved a system-wide desegregation P1" “ th* city
schools beginning with the 1980-81 school year. liais e • --a.
i : T d u c . 4,1 F. supp. 351 («.»• "O. m o , . This Plan included^
comprehensive program of exchanging and transfers
between the city and suburban schools, the establishme
magnet schools and integrative programs, and , guality educ, ion
component. In approving the plan, the district court conclu .
- %‘s!aa tothU s s- - instrumentalities must bean£ to other state
rejected!.]
Id. at 3^9.
we affrrmed the drsttict court's plan on appeal Liddell v ^
of Educ. 687 F . 2d 643 (8th Cir. 1981, ( L r d d e l l ^ , . ^
denied, ~454 O.S. 1081, 1091 (1982,. In so dorng, we deeded tha.
T T T T s constitutionally permissible to allow a number of all-
. t /-it-v We noted that no all-white black schools to remain in the city. _ .a , Dian of voluntary mterd istr ictcrhool s would remain, that a P-*-
transfers would be initiated, that magnet schools and int^ rat1^
Programs would be established, and that a substantial P - t of the
desegregation budget would be spent to improve the
education in the all-black schools. «e affirmed the S ate s
liability for desegregation costs and remanded for continued
implementation of the plan.
Questions about this plan's implementation came beforeus in
early 1982, when the State again protested its liability
certain desegregation costs. Liadgi--- --- ---------- — -
626 (8th Cir.) (Liddell V) . cerc_denied, 103 S. Ct.
16
(1982).3 We aff i rmed the district court's allocation of costs,
placing one-half of the actual desegregation costs on the
State. We also required the State to pay the costs of voluntary
interdistrict transfers and the costs of merging city and county
vocational educational programs. Meanwhile, the City Board an
the Liddell and Caldwell plaintiffs continued to seek the
consolidation of the city and county schools into a single
integrated school district on the theory that the suburban
schools had also violated the Constitution. They successfu y
moved to add the county school districts and St. Louis County
officials as defendants to this litigation. We noted that the
suburban schools could not be held as constitutional violators
Without further evidentiary hearings and findings by the district
cou-t. we again noted that the State and City Board-already
adjudged violators of the Constitution-could be required to fund
measures designed to eradicate the remaining vestiges of segre
gation in the city schools, including measures which evolved the
voluntary participation of the suburban schools. Liddell---,
supra, 677 P.2d at 641.
of
•̂ We issue
E d uc., 6 9 3
2 a procedural order in the interim. Liddell
F .2d 721 (8th Cir. 1981) (Liddell IV).
v . Bd.
*We suggested that
the district court could (1) require the state and
Jhe city to take additional steps to improve the
quality of the remaining a l l - b l a c k schools in the
o-.. If ct- Tonis* (2) require that additional
^gtynet0f.choolsOUi S'estibli.?ed at
within the citv or in suburban school districts
with the consent of the suburban districts where
iincentives for voluntary interdistrict transfe .
c-n v ">A at 641-642 (footnote omitted) Liddell V , supra, 677 F.2d at
17
dl5.rict court entered an order on August 6. 1982, which The drs.rrct co lt »ould impose in the
d isclosed the mandatory ,nterdrstrret plan it
.v- s,vjrbar school districts were found liaoie ro event the s . ^ _ ^ ^ would create one uni£led
tutional violation . f tax rate. The court
metropolitan school district with a uniform tax
then scheduled interdistrict liability hearings.
w forP these hearings were held, however, the City Board,
* .. S i tiffs, the Caldwell plaintiffs, and all twen y
the L l d d 6 .„ school districts developed a settlement agreement
three co-nkJ sc. COUrt-aPpointed expert and filed awith the assistance of a cour ppo ^
proposed Utr ict claims against the county
M ^ 3 d'c!icts, and also enabled the State and City Board toschoc. du.s-.icts, . c^hocls through the■ stepc to desegregate the city schools yta<e iir.ro. ts... step- , , as we outlined in
voluntary partreipatien of the county schools,
L i d d e i- V •
The settlement plan has several c o g e n t ̂
voluntary interd i.tr iot transfers between City aHr t o r ^ y ^ r ^ ^ t ^ r ^ I o e i v e s ^ n o o g h
transfers within five years to MtlSCy judgraent.
gat ions under the plan will rece* teacher transfers
Affirmative hiring requirements an vo a substantial
• » in **“ Pl;;oi;° " .ttr.et Whit, student transfers
impact rn the c o u n t y ' sc remedial programs for city
to the city, - a * ° J duional Ba9net schools in the city
students, the plan or COBpensatory and remedial
and the C°Un'yn'ents These latter components are designed to education components. schools, and to make
improve the quality of educat.on in the city
special improvements in the all-black schoo
fiiAri the settlement agreement, the after the parties filed tne , oa« a.nAfter ^ . ADril and May of 1983 todistrict court conducted hearings i P
4
1
18
determine whether the settlement plan is fair, reasonable, and
adequate. In its July 5, 1983, order, the court concluded the
plan met these standards and allocated the costs of the plan
between the State and City Board. Liddell v. Bd. of Educ.,
567 F. Supp. 1037 (E.D. Mo. 1983). The State is totally
responsible for the costs of the voluntary interdistrict
transfers, the magnet schools, and various part-time and
alternative integrative programs. Further, the State will pay
one-half of the cost of the quality improvements in the city
schools and one-half of the capital improvements required by the
plan. The City Board is required to pay the remaining costs.
The district court ordered the City Board to submit a bond
issue to its voters before February 1, 1984, to fund its share of
the capital improvements required under the plan. In the event
this bond issue failed to obtain the necessary two-thirds vote
the court reserved authority to consider an appropriate order to
fund these capital improvements. ̂ The district court also
deferred a scheduled reduction in the City Board's operating levy
otherwise required by Mo. Rev. Stat. § 164.013 (Proposition C)
insofar as this revenue is necessary to fund the City Board's
share of desegregation costs. It further reserved authority to
order an increase in the City Board's property tax rate, follow
ing notice and a hearing on the amount, if the revenue necessary
to fund the City Board's constitutional obligation to desegregate
the city schools is not otherwise available.
Several weeks after the district court entered its order
approving the settlement, the State filed a motion to stay the
implementation of the plan. The City of St. Louis filed a peti
tion for a writ of prohibition seeking the same result. The
district court denied both of these motions, and the State and * S
^The two-thirds majority is required by Mo. Const, art
S 26(b). This bond issue election was held on November 8,
and it failed, receiving fifty-five percent voter approval.
. VI
1983 r
t
19
Citv cf St. Lou i e appealed to our Court. In an en banc order,
Liddell v. Missouri, 717 F.2d 1180 (8th Cir. 1983) (Liddell V l ± ,
we denied the stay with certain exceptions. We froze the number
interdistrict transfers and deferred any further district
We
o: mtercistricr.
court action concerning the City Board's property tax rate
a 1 sc defer re: action on the writ of prohibition unti. we
considered t h - case on its merits
St
c -
Anneals were filed from the district court's July 5, 1983,
I: ?tate of Missouri, the City of St. Louis, the North
■_ ., 5 Parents and Citizens for Quality Education, and the
■ - - r- !!*■ ' ̂ - .
► oPjdc
ac
c
a p rrov
r c u i r i n
r the i r
the c- a
State t
order in:
city sc
increase
cost of
on appeal that the district court
additional interdistrict transfers of
e State to pay the full cost of the
,3rcfp,e; 1 2 in approving additional magnet schools
e integrative programs, and requiring the State to
il cost; (3' in approving certain programs to improve
1 1 y of education in the city schools, and requiring the
: pay one-half the cost of these programs; and (4) in
a deferral of scheduled property tax reduction for the
hoc 1s , and in stating that it would order a further
n property taxes to fund the City Board's share of the
e quality education programs in the city schools.
The City of St. Louis ;joins in questioning the authority o^
the district court to enter the taxing order referred to in (4)
above.
The St. Louis Teachers Union contends that the district
court erred in denying its motion to intervene.
The Northside Parents Organization contends that the
district court erred in failing to provide more extensive relief
20
to the black students who wou
schools.
Id remain in the nonintegrated
The United States did not file a notice of appeal or cross
appeal. It did file a brief and it was permitted to argue its
position before the Court en banc. It appears to argue that many
of the programs authorized by the district court may be necessary
to desegregate the city schools, but questions whether the
district court's factual findings are sufficient to support all
aspects of the district court's remedial order. It asks this
Court to remand to the district court to correct the alleged
deficiencies .
II. INTERDISTRICT TRANSFERS.
On July 2, 1981, the district court entered an order autho
rizing voluntary interdistrict transfers and requiring the State
to pay the cost of the transfers. The program was initiated at
the beginning of the 1981-82 school year, and by the end of the
1982-83 school year, it had grown so that 873 city students were
attending county schools and 318 county students were attending
city schools. All but seven of the 318 were enrolled in city
6We question whether the United States should be heard as a
D a r t v Parties who do not appeal from a trial court judgment
cannot be heard to attack that judgment, either to enlarge their
own rights, or to lessen the rights of their adversary. See
Morley Construction Co. v. Maryland Casualty— rrsTon--! oi pf 9 37) : United States v. American Railway Express—
265 D-S-I425 ' HfTWWegtMi*
5n?“ d' gfff o AW ins. _Co/. 586 r.*a n 7 (8th Cir
1978): Tiedeman v. Chicaqo, Milwaukee, St. Paul t Pac. R. *
513 P .2d 1267, 1271-1273 (8th Cir. 1975).
Here, the United States is requesting that the district
court’s order be vacated and that the case be remanded forfurther findings. This r e s u l t wuld "lessen the rights of toe
parties to the settlement agreement. In practical ter ,
however, we have considered the United States s position
amicus curiae.
21
magnet schools. The State of Missouri paid the cost of these
transfers, including transportation costs and fiscal incentives,
to the sending and receiving schools.
The settlement agreement calls for an expanded program of
interdistrict transfers. City-to-county transfers of black
students will be permitted to grow incrementally until they reach
15,000. No limit is placed on the county-to-city transfers, but
the number is not expected to exceed 3,000. These transfers are
expected to be primarily to city magnet schools and programs.
Transfers between county districts are also permitted. _ All
student transfers are voluntary.
The State's funding obligations remain as they were under
the July 2, 1981, order: It must pay transportation costs and
must pay to the receiving district for each transferring student
an amount equal to the receiving district's cost per pupil, less
State aid and trust fund allocation. It is further required to
provide fiscal incentives to sending districts which may elect
payment under one of two formulas: either one-half of the State
aid the district would have received had the student not trans
ferred; or, beginning in 1984-85, if a district sends more
students than it receives, State aid based on the district's
enrollment for the second prior year. To be eligible for
transfer, students of good standing must be in the racial
majority in their home districts and must transfer to districts
where they would be in the racial minority.
After approval of the settlement agreement, transfers rose
dramatically. During the current school year, 2,294 city
students have transferred to suburban districts and three hundred
and eighty-nine suburban students have transferred to city
schools. Thirty-four suburban students have transferred to other
suburban districts. One thousand nine-hundred and sixty-five
additional city-to-county transfer applications are on file.
22
The settlement agreement provides that participating
districts will receive a final judgment releasing them from
further liability if they achieve the plan ratio7 within five
years. Litigation is stayed during this period. If the school
district does not reach the plan ratio, litigation can be renewed
after first pursuing various negotiating procedures. If the
liability of any individual school district is litigated, the
plaintiffs must prove liability and may not seek reorganization
or consolidation of school districts, nor may they seek a
minority enrollment exceeding twenty-five percent of the school
distr ict.
The State argues that the district court order approving the
settlement agreement and requiring the State to pay the full cost
of interdistrict transfers cannot be sustained because it imposes
ar. interdistrict remedy based on an intradistrict violation. We
disagree for two reasons: First, the issue has previously been
decided adversely to the State; second, the interdistrict
transfers are intrinsic to an effective remedy for the intra
district violation and are justified by precedent.
^ THF. PROPRIETY OF THE DISTRICT COURT1S ORDER WITH
RESPECT TO INTERDISTRICT TRANSFERS HAS BEEN
PREVIOUSLY DECIDED.
This Court has repeatedly authorized the interdistrict
transfer of students as a fundamental element of an effective
7Under the Plan Ratio, * * * a suburban school
district would accept up to as many black transte
students as would constitute 15 percent of the
total student population in that district, bu no
suburban school district would be required to
accept more black transfer students than would
raise the overall percentage of blacks in the
total student population higher than 25 percent.
Settlement Agreement, 1-2.
23
remedy for the unconstitutional segregation of the city
schools. In Adams v. United States, supra, 620 F.2d at 1296, we
specifically approved the development and implementation of a
comprehensive program of exchanging and transferring students
with the suburban school districts of St. Louis County."
In Liddell III, supra, 667 F . 2d at 650 , we rejected the
State's argument that the district court was without authority to
formulate an interdistrict plan without finding an interdistrict
violation. We also noted that voluntary interdistrict pupil
exchanges "must be viewed as a valid part of the attempt to
fashion a workable remedy within the City." _Id_. at 651. In an
order appended to that opinion, we noted that the State had been
"judicially determined to be a primary constitutional violator,"
and we held that an interdistrict transfer plan would be salutary
and would be entirely enforceable against the State. .Id. at 659.
Finally, in Liddell V , supra, 677 F.2d at 630, we reiterated
our conclusion that, because the State had been found a primary
constitutional wrongdoer, it can "be required to take those
actions which will further the desegregation of the city schools
even if the actions required will occur outside the boundaries of
the city school district." After discussing broad-based inter
district proposals and dismissing them as unsuitable, we
addressed the proper limits of the district court's equitable
remedial authority:
[T]he district court can require the existing
defendants — the state and city school board— to
take the actions which will help eradicate the
remaining vestiges of the government-imposed
school segregation in the city schools, including
actions which may involve the voluntary partici
pation of the suburban schools. For example, the
district court could * * * (4) require the state
to provide additional incentives for voluntary
interdistrict transfer.
24
Id. at 641-642 (footnote omitted).
We did not act hastily or arbitrarily in approving voluntary
interdistrict transfers. We outlined the reasons for our deci
sion in Adams v. Dnlted States, supra. 620 F.2d at 1 2 9 1 - 1 2 9 7 . We
reviewed the parties' proposed remedial alternatives, aeveral of
which involved extensive cross-busing between city schools. The
Caldwell plaintiffs proposed a seventy-five percent black/twenty-
five percent white racial mix within the district. The Liddell
plaintiffs, through their expert witness, Dr. David Colton,
proposed a four-tier division of the schools by age groups, which
would integrate schools above fourth grade to achieve a sixty
percent/forty percent or fifty-five percent/forty-five percent
ratio of black to white students. All whites above third grade
would attend integrated schools and all blacks would receive at
least one-third of their education above third grade in
integrated schools. The Department of Justice, through its
expert witness, Dr. Gary Orfield, proposed maintenance and
expansion of integration in all grades, voluntary interdistrict
and intradistrict transfers, magnet schools, integration of
personnel, and community involvement. The Board of Education
proposed the creation of integrated junior high schools which
would funnel students to high schools in a balanced fashion.
Magnet schools would supplement these junior high schools,
white parents proposed that the schools be left as they were or,
alternatively, that the city and county schools be merged and a
comprehensive plan for interdistrict student transfers be
developed.
Of the four plans submitted by the parties, we found that
only the Colton and Orfield plans were constitutionally permis
sible. We rejected the City Board's plan as too little too later
elementary schools would remain entirely segregated and
desegregation of the upper tiers would be delayed four to seven
years. We rejected the Caldwell plan because the record
supported the district court's finding that implementation of the
- 25 -
i
plar. would probably result in an all-black school system within a
few years. We found that the Colton plan was permissible with
some substantial changes, but that plan was discarded by the
district court after it found that the plan was "educationally
unsound" and that it would "fail to achieve effective desegre
gation." ■ Liddell v. Bd. of Educ., supra, 491 F. Supp. at 356.
The approach suggested by the United State's expert, Dr.
Orfield, was ultimately adopted by the district court as the plan
that held "the promise of providing 'the greatest possible degree
of actual desegregation, taking into account the practicalities
of the situation.'" _I_d. at 359 , citing Davis v. Bd. of School
Comm1 r s , 402 U.S. 33 , 37 (1971). We reaffirmed our support of
the Orfield plan in Liddell III, supra, 667 F.2d at 649-653. We
noted that it was the only constitutionally permissible plan
submitted that could achieve stable, effective integration while
minimizing transportation of students and maintaining integrated
schools in integrated neighborhoods. _Id. at 650 .
The State defendants have raised the question of remedial
scope twice before the Supreme Court. On June 17, 1981, the
State filed a petition for certiorari from our panel opinion in
Liddell III. In that petition, the State argued that there was
no basis for State liability:
The evidence in this case indicates that the State
of Missouri took the necessary and appropriate
steps to remove the legal underpinnings of segre
gated schooling as well as affirmatively
prohibiting such discrimination.
State’s Petition for Certiorari, Ho. 80-2152, June 17, 1981, at
17.
It further argued:
26
The District Court exceeded its authority in
ordering the preparation of a plan of voluntary
pupil exchanges between the St. Louis School
District and nonparty school districts because (1)
an interdistrict violation has neither been
pleaded nor proven, and (2) the District Court
cannot, consistent with Milliken v. B radley, order
the State of Missouri to fund such a voluntary
plan simply on the basis of an intradistrict
violation.
Id. at 20.
The Supreme Court denied certiorari. Missouri— v_.— Lidde_U ,
4 54 U.S. 1091 (1981) .
Not satisfied with this answer, the State raised the same
arguments again before our Court in Liddell IV. and Liddell _V.
Unsuccessful in our Court, the State filed a second petition for
certiorari with the Supreme Court on April 30, 1982. The State
again argued that
ordering an inter-district remedy [the .12(a)
voluntary transfers, funded by the State] without
first finding an inter-district violation and
inter-district effect is in conflict with this
court's decision in Milliken v. Bradley— I. [an
Hills v. Gautreaux].
State's Petition for Certiorari, No. 81-2022, April 30, 1982, a.
7; see also id. at 10.
Again, the Supreme Court denied certiorari. Missouri._v. Liddell
103 S. Ct. 172 (1982). Both of the State's petitions for certio
rari came after the Supreme Court's decision in Hills_ v
Gautreaux, 425 U.S. 284 (1976).®
®A1though denial of certiorari does not necessarily imply
tB§rtIaled°)f the decisi°n b6lOW °n the KieritS'' h U
27
As a result of our previous holdings and of the Supreme
Court's inaction, the use of interdistrict transfers is settled
as law of the case. While this doctrine does not foreclose is
Court from correcting its errors, it prevents repeated litigation
of the same issue and promotes uniformity of decision IiL_JL
Sidino and Alum inum. Coil Antitrust Litigation.
613 616 (8th Cir. 1982), vacated en banc, 705 F.2d 980 (8th Cir.
1963), cert, denied, 104 S. Ct. 204 (1983). We will reconsider a
previously decided" issue only on a showing of clear error an
manifest injustice. United States v (In ^ , 700 F.2d 445, 45
n 10 (8th Cir.), cert, denied, 104 S. Ct. 339 (1983)! W r t p -
v. S*nnders Archery Co,. 578 F .2d 727. 730-731 (8th
Cir. 1976).
K. are loath to retract our previous declarations on settled
issuer when a case returns on appeal) to do so ignores important
considerations of judicial economy and ignores our interest in
protecting the settled expectations of parties who have conformed
the ir" conduct to our guidelines. In this case, our conclusion
that State-funded interdistrict transfers are an appropriate
remedy is strengthened by our previous invocation of the law o
the case doctrine. Liddell V. s u e t s , 677 F.2d at 629-630.
The State argues that we should not be bound by our earlier-
decisions because the magnitude of the proposed plan with
respect both to cost and numbers of students, distinguishes it
from existing plans. Neither this Court nor the district court
placed any limitation on the number of students that could
transfer under the plan in existence during the last two sch
years, nor were we requested to do so. Moreover, it w.. clear
that the number of transfers would have to be large if
recognized that denial of certiorari- ^Ls,^ yndewen s y,
circumstances, a _,£"c£ “h ‘f?68 Ca3£74-1275 (8th Cir. 1977). See Meyer's Bahery., 561 F.2d 1268 , 1274^12 ̂ 443 (1973). united
also United States v K.as, 4 9 U.S. cir.,, cert, denied,
States v. Thompson, 685 F.za v
T o 3 S. Ct. 494 (1982).
28
opportunity for an integrated education was to be provided to a
significant number of the 30,000 black students that remained in
the all-black schools in the city.
Notwithstanding our view that the issues regarding inter
district -transfers have been heretofore decided, we again reach
the merits of the matter and, alternatively, hold that the plan
and the funding order, as they relate to interdistrict transfers,
meet constitutional standards.
B. THE DISTRICT COURT’S ORDER WITH RESPECT TO
INTERDISTRICT TRANSFERS MEETS CONSTITUTIONAL
STANDARDS.
Since Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) (Brown
II', principles of equity have guided courts in devising remedies
to eradicate segregation and its effects. Yet for equitable
remedies to pass constitutional muster, they must conform to
three overlapping criteria.
[First] , the nature of the desegregation remedy is
to be determined by the nature and scope of the
constitutional violation. * * * The remedy must
therefore be related to "the condition alleged to
offend the Constitution." * * * Second, the decree
must indeed be remed i al in nature, that is, it
must be designed as nearly as possible "to restore
the victims of discriminatory conduct to the posi
tion they would have occupied in the absence of
such conduct." * * * Third, the federal courts
* * * must take into account the interests of
state and local authorities in managing their own
affairs, consistent with the Constitution.
Milliken v. Bradley, 433 U.S. 267, 280-281 (1977) (Milliken II)
(citations and footnotes omitted).
Examination of voluntary interdistrict transfers confirms that,
as a remedy for an intradistrict violation, such transfers comply
29
wit.n constitutions! stsndsrds*
1. The remedy was c l o s e l y tailo red to the nature
and scope of the violation.
The Missouri Constitution requires the State to provide a
free public education. Mo. Const, art. 9, § 1 ( a ) - The State
supervises instruction, distributes funds for public education to
local school districts, approves school bus routes, provides free
textbooks, and passes on applications by school districts for
federal aid. See Mo. Rev. Stat. SS 1 6 1 . 0 9 2 , 1 6 3 . 0 2 1 , 1 6 3 . 0 3 1 ,
163.161, 170.051, 170.055; and Liddell v. Bd. of Educ^, supra,
469 F. Sapp, at 1313-1314.
Before the Civil War, Missouri prohibited the creation of
school* to teach reading and writing to blacks. Act of
February 16, 1847, S 1, 1847 Mo. Laws 103. State-mandated segre
gation was first imposed in the 1865 Constitution, Article IX
§ 2. It was reincorporated in the Missouri Constitution of
1945: Article IX specifically provided that separate schools
were to be maintained for "white and colored children." In
1952, the Missouri Supreme Court upheld the constitutionality of
Article IX under the United States Constitution. See State _ex
re 1. Hobby v. Disman, 250 S.W.2d 137, 141 (Mo. 1952). Article IX
was not repealed until 1976 . Adams v. United States., .supra, 620
F.2d at 128C. Under the segregated system, the State bused
suburban black students from St. Louis County into the city’s
black schools to maintain the dual system. IdL, at 1281. The
city schools remained largely segregated until this Court’s deci
sion in Adams. 5
5In addition, state law provided separate libraries, public
"institutes for colored teachers," Mo. Rev. Stat. 10632 (1939).
30
It is clear from the foregoing that the State's presence in
public education is immense and that the State’s Constitution and
statutes mandated discrimination against black St. Louis students
on the broadest possible basis. It is equally clear that the
discriminatory policies continued after the Supreme Court decided
Brown I, supra, in 1954. Given the breadth of the State's
violation, it was appropriate for the district court to mandate
an equally comprehensive remedy. The potential for integration
within the district, however, was limited by the fact that almost
eighty percent of the students were black, and by the district
court’s finding that if it integrated the city schools by impos
ing an eighty/twenty ratio in each school, an all-black school
system would probably result. With that in mind, the district
court properly considered the alternative of voluntary transfers
to county districts. The opportunity for effective integration
became a reality when the county schools agreed to accept the
voluntary transfer of several thousand black students.
2 . The remedy restores the victims of discrimi
nation as nearly as possible to the position they
would have ocoupied absent that discrimination.
We have heretofore enumerated the alternative remedies
suggested by the parties, and we have explained why the district
court selected a remedy which included voluntary interdistrict
transfers and why this Court approved that remedy. (See supra
pp. 25-26.)
of
10We also note that the remedial limits imposed by Dayton Bd^
Educ. v. B rinkman, 433 D.S. 406 (1977), are inapposite to this
case^ The findings“”of de jure segregation which distinguish this
case were absent in Dayton. In that case, the Supreme Court
considered the proper scope of an equitable remedy for three
isolated instances of discrimination.
31
We are met for the first time on this appeal with a new, or
at least a more precisely framed, argument against interdistrict
transfers. The State asserts that the district court cannot
require the State to fund extensive interdistrict transfers
unless the record supports and the district court finds that the
black children of St. Louis would have attended schools in the
county had it not been for the State's constitutional prohibition
against black and white students attending schools together.
Nothing in the cases cited by the State12 suggests or requires us
to hold that the district court abused its discretion when it
required the State to fund interdistrict transfers of students to
consenting districts. Indeed Milliken II states that the remedy
shojld correct conditions that "flow from such a violation an^
11The United States joins in this argument. In earlier
proceedings before this Court and the United States Supreme
Court, however, it supported the district court's remedial use o^
voluntary interdistrict transfers. It argued that voluntary
interdistrict transfers properly remedied the State s violation,
distinguishing them from the overbroad remedy in Milliken I,
which involved "imposition of relief upon nonparty school
districts." It asserted that the district court can order those
who have been found liable to make efforts to persuade those
nonparty districts to cooperate voluntarily." U. S. Brief in
Opposition to State's Petition for Certiorari, Missouri--Vjl.
Liddell, No. 80-2152, Aug. 17, 1971, at 14 (emphasis in
original) .
In a subsequent brief, the United States again distinguished
the interdistrict transfers from the impermissible interdistrict
remedv in Milliken I. Moreover, in endorsing interdistrict
transfers, it stated “that, under Hills, "the State parties can
and should be required to take appropriate remedial action for
the constitutional violations in which they participated. U. S.
Brief in Opposition to the State's Petition for Certiorari,
Missouri v. Liddell, No. 81-2022, April 30, 1982, at 7,8.
12Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526 (1979) (Dayton
II); Columbus Bd. of Educ. v. Penick, 443 U.S. 449 U9J9)? Schoq^
PTstrTct of Omaha v. United States, 433 U.S. 667 (1977); Dayton
Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977); H*11* * ^ —
Brad ley r~ro~uTST~?57~TTyn) (Milliken II) ; Pasadena Cit y. Bd^of
Educ; v. Spangler, 427 U.S. 424 (1976); Washington v. Davis,
T26- U.S. 529 (197$) ; Keyes v. School Dist. No. T, 4l3 U.S. 189
(1973); Swann v. Char lot te-Mecklenburg Bd. of Educ^, 402 U.S. 1
(1971).
32
should return victims "to the position they would have enjoyed in
terms of education," but for the violation. Milliken 11, su£ra,
433 U.S. at 282 . This remedy does precisely that: It returns
the largest number of victims to integrated schools and provides
integrative opportunities and compensatory and remedial programs
for those who cannot participate in the transfer plan. As the
primary constitutional violator, the State is in no position to
complain that some of the victims may elect to transfer to
integrated schools in another school district that is willing to
accept them.
In our view, Hills v. Gautreaux provides precedent for the
remedy mandated by the district court. In that case, the Supreme
Court considered a remedy against the United States Department of
Housing and Urban Development (HUD) for discrimination in public
housing in the City of Chicago. The United States Court of
Appeals for the Seventh Circuit had reversed the district court's
dismissal and ordered the district court on remand to enter
summary judgment against HUD for violations of the Fifth Amend
ment and the Civil Rights Act of 1964 by knowingly sanctioning
and assisting the Chicago Housing Authority's (CHA) racially
discriminatory public housing program. Hills v. Gautreaux,
supra, 425 U.S. at 291-292. Thereafter, the plaintiffs requested
that the district court require HUD to provide public housing
outside Chicago's city limits. The district court refused,
holding that the wrongs were committed solely against city
residents and within the city's boundaries.
On appeal, the Court of Appeals for the Seventh Circuit
reversed and the Supreme Court affirmed. The Supreme Court
stated:
We reject the contention that, since HUD s
constitutional and statutory violations vere
committed in Chicago, Hilllke_n precludes an order
against HUD that will affect its conduct in the
greater metropolitan area. The cr 1*1C®1
tion between HUD and the suburban school distric
33
in Milliken is that HUD has been found to have
violated the Constitution*. That violation
provided the necessary predicate for the entry of
a remedial order against HUD and, indeed, imposed
a duty on the District Court to grant appropriate
relief. * * * Our prior decisions counsel that in
the event of a constitutional violation "all
reasonable methods be available to formulate an
effective remedy," North Carolina State Board of
Education v. Swann, 402 U.S. 43 , 46 , and that
every effort should be made by a federal court to
employ those methods "to achieve the greatest
possible degree of [relief], taking into account
the practicalities of the situation." Davis v.
School Comm* 1rs of Mobile County, 402 U.S. 33,
37. As the Court observed in Swann v. Charlotte-
Mecklenburg Board of Education: "Once a right and
“a violation have been shown, the scope of a
district court's equitable powers to remedy past
wrongs is broad, for breadth and flexibility are
inherent in equitable remedies."
Hills v. Gautreaux, supra, 425 U.S. at 297 (emphasis added;
citations omitted).
The Supreme Court then discussed Milliken v. Bradley,
416 U.S. 717 (1974) (Milliken I) , and the limitation it imposed
or. the scope of the federal courts' equity powers. In Milliken
I, the respondents alleged that the Detroit school system was
racially segregated and they sought the creation of a unified
school district as a remedy. Without finding constitutional
violations by the suburban districts and without finding signif
icant segregative effects in those districts, the district court
ordered the consolidation of the Detroit school system with
fifty—three independent suburban school districts. After the
Court of Appeals for #the Sixth Circuit affirmed this desegre
gation order, the Supreme Court reversed, holding that the order
exceeded the district court's equitable powers: the courts must
tailor "the scope of the remedy" to fit "the nature and extent of
the constitutional violation." Id. at 744.
34
In evaluating the remedy in Hills according to Milliken I 's
standards, the Supreme Court noted that nothing in Mi 11 iken_I_
•suggests a per se rule that the federal courts lack authority to
order parties found to have violated the Constitution to
undertake remedial efforts beyond the municipal boundaries of the
city where the violation occurred." Hills v. Gautreaux, 8upra,
425 U.S. at 298 (footnote omitted). In Hills, the Supreme Court
approved the remedy • because it did not coerce uninvolved
governmental units and because CHA and HUD had the authority to
operate outside Chicago's city limits. Id.
Justification for requiring the State to fund transfers
between city and county schools is stronger than the justifi
cation for the remedy in Hills. Its role in education is much
broader than HUD's role in housing. See supra p. 30. In
addition, the breadth, gravity and duration of the State's viola
tion here was much greater. The violation scarred every student
in St. Louis for over five generations and it gained legitimacy
through the State Constitution and through the State's preeminent
role in education. In following the Supreme Court's guidelines
in Hills, we echo its conclusion concerning Milllken I. If we
barred the use of interdistrict transfers solely because the
State's constitutional limitation took place within the city
limits of St. Louis, we would transform
Milliken [I]'s principled limitation on the exer
cise of federal judicial authority into an
arbitrary and mechanical shield for those found to
have engaged in unconstitutional conduct.
Hills v. Gautreaux, supra, 425 U.S. at 300.
3. The d i s t r i c t c o u rt ' s order with respect to
i n t e r d i s t r i c t transfers does not infringe on State
or l o ca l government autonomy.
35
The Supreme Court in Hills v. Gautreaux, supra, 425 U.S. at
296, has interpreted Milliken I to mean that district courts may
not restructure or coerce local governments or their subdivi
sions. This remedy does not threaten the autonomy of local
school districts; no district will be coerced or reorganized and
all districts retain the rights and powers accorded them by state
and federal laws. See Hills v. Gautreaux, supra , 425 U.S. at
305-306.
We also find unpersuasive the State's argument that funding
this remedy will compel other budget cuts, which would interfere
with the autonomy of state and local governments. If we accepted
this argument, violators of the Constitution could avoid their
remedial responsibility through manipulation of their budgets,
leaving victims without redress. Simply put, parsimony is no
barrier to a constitutional remedy; "it is obvious that vindica
tion of conceded constitutional rights cannot be made dependent
upon any theory that it is less expensive to deny than to afford
them..'’ Watson v. Memphis, 373 U.S. 526, 537 (1963)
Interdistrict transfers between the city and the county
schools may proceed pursuant to the settlement agreement, subject
to the following exceptions:
(1) No additional transfers will be permitted for the
̂̂ The district court's funding order poses no eleventh
amendment problems. The State relies on Edelman v. Jordan, 415
U.S. 651 , 663 (1974 ), to avoid its liability for a remedy that
requires the expenditure of state funds where that remedy is
allegedly overbroad. The Supreme Court in Milliken II applied
the prospective compliance exception developed in Ex Parte Young,
209 U.S. 123 (1908), which "permits federal courts to enjoin
state officials to conform their conduct to requirements of
federal law, notwithstanding a direct and substantial impact on
the state treasury." Milliken II, supra, 433 U.S. at 289- After
elucidating the three criteria discussed earlier, the Supreme
Court in Milliken II found that the plan under review there was
constitutional. The interdistrict transfer plan under
consideration in this case conforms to the same three criteria.
36
balance of the current school year. Such transfers would
disrupt the education of students in both sending and
receiving schools. Planning and recruitment may continue so
that enrollment may reach the levels contemplated in the
settlement agreement.
(2) C i t y-to-county transfers will be limited to a total of
6,000 students in the 1984-85 school year and to not more
than 3,000 additional total transfers in each succeeding
school year until the limit of 15,000 is reached., A
shortfall of enrollment in one year may be made up in
succeeding years.
(3) In the event
exceeds the spaces
applicants who would
the number of applicants for transfer
available, priority shall be given to
otherwise attend an all-black school.
(4) In Liddell V , supra, 677 F.2d at 631-632, we warned of
the need for vigilance to control the costs of
desegregation. Budgetary constraints persist, and so does
the need for frugality. We are unwilling, however, to accept
the State's suggestion that "complementary zones" be estab
lished, which would effectively limit schools that
transferees could attend. This would destroy the voluntary
nature of the plan. Nevertheless, constant effort and
careful planning must be made by all concerned to limit the
costs of transportation, insofar as is consistent with the
Constitution and the voluntary nature of the plan.
C. COUNTY TO COUNTY
Although
between the
approval to
d istr icts.
between the
TRANSFERS.
funding of transfers of students
are unable to give similar
of students between county
the objective of transfers
eradication of segregation
we approve State
city and county, we
the funding of transfers
We emphasize again that
city and county is the
37
within the
violation
violat ion,
which were
however, ar
city. -Nor
will materi
city. Such transfers are closely tailored to the
and are clearly remedial with respect to that
according to the standards announced in Milliken_I_I_
discussed above. Transfers between county districts,
e not geared to remedy the violation found within the
does the record establish that intercounty transfers
ally assist in desegregating the city schools.
We recognize that some suburban school districts have
majority black enrollments and others have nearly all-white
enrollments. We acknowledge that the suburban districts would
achieve a further degree of desegregation by such transfers. We
neither prohibit nor discourage such voluntary transfers between
county schools but we cannot compel the State to pay for them
absent a finding of an interdistrict violation.
HI. magnet schools and integrative programs.
A. MAGNET SCHOOLS .
The district court and this Court previously authorized the
creation of magnet schools and integrative programs. About 8,000
students (one-half of whom were blacks) participated in these
schools and programs in the 1982-83 school year. Three hundred
participants resided in the county. No one suggests that the
magnet schools or integrative programs be discontinued.
The settlement agreement approved by the district court
provides for the expansion or replication of existing magnet
schools and programs and the development of new magnet schools
and programs — in both the city and the county with total enroll
ment to reach 20,000 students, twelve to fourteen thousand to be
enrolled in city magnets and the balance in county magnets. The
new schools would be phased in over the 1983-87 period.
To be eligible for transfer to the magnet schools, students
38
in good standing must be in the racial majority in their home
districts and must meet the qualifications for the magnets.
Special eligibility requirements allow white students from the
city to attend city magnets if the students now attend schools
that are less than ten percent or over fifty percent white.
Black students in majority black districts are eligible to attend
magnet schools and programs in other black majority districts if
seats remain open after all of the host district's black students
have been accommodated.
The State argues that insufficient attention has been
devoted to developing a curriculum designed to attract county
students. It also objects to being required to pay the full cost
of building and operating the new magnets.
Before reviewing the State’s specific arguments, we observe
that the utility and propriety of magnets as a desegregation
remedy is beyond dispute. In Adams v.__United— States , ..supra,
620 F . 2d at 1296-1297, we evaluated the remedies we had
previously found to be constitutionally permissible. We
recommended ■[ra]aintaining existing magnet and specialty schools,
and establishing such additional schools as needed to expand
opportunities for an integrated education." JLL. at 1297. We
reiterated our approval of magnet schools in Liddell III., su£ra_,
667 F . 2d at 658 (emphasis omitted), where, in considering an
intradistrict remedy, we directed the city and suburban school
districts to undertake a "study of the feasibility of establish
ing magnet schools located in suburban districts with attendance
open to students of both the suburbs and the city. * The
14Our affirmance in this case does not preclude the district
court from reconsidering these special requirements--to the
extent that they permit a white student attending a "***}
less than ten percent white enrollment to transfer to a ci y
magnet school— in light of decisions by the Supreme Court and
this Court. The district court may reconsider these requirements
upon the request of any party.
39
msuBast R r
location of these magnet schools should be determined by
agreement between the St. Louis Board of Education and the
suburban school districts involved." Finally, in Liddell V,
supra, 677 F.2d at 642, we reaffirmed our conclusion that the
district .court could "require that additional magnet schools be
established at state expense within the city or in suburban
school districts with the consent of the suburban districts where
the schools would be located." As with interdistrict transfers,
our previous determinations in this case concerning magnet
schools are law of the case.
Had we not in our previous decisions explicitly examined and
approved the use of magnet schools and programs, the weight of
precedent would nevertheless oblige us now to approve their
use. In Milliner. II, supra, 433 U.S. at 272 , the Supreme Court
mentioned magnet schools as a supplement to the compensatory and
remedial programs which it approved in that case. Dissenting in
another case", Justice Powell observed that the Supreme Court in
Swann v. Ch ar lotte-Mecklenbur q Bd. of Educ^, supra, 402 U.S. at
26-2~, implicitly encouraged the use of magnet schools:
Incentives can be employed to encourage
[majority-minority] transfers, such as creation of
maanet schools providing special educational b«ne-
fits and state subsidization of those schools that
expand their minority enrollments, * * * These an^
like plans, if adopted voluntarily by States, also
could help counter the effects of racialcould nelpimbalances between school beyond the reach of judicial correction
districts that are
Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 488 (1979).
This Court also approved magnets as a means of desegregating the
Little Rock schools in Clark v. Bd. of Educ. of Little Rock,
705 F .2d 265, 269, 272 (8th Cir. 1983).
40
Courts of Appeals In several other circuits have also
approved desegregation plans which include magnets. Arthur v_̂
Nvg'jist, 712 F . 2d 809, 811-813 (2d Cir. 1983); Berry v. School
District of Benton Harbor, 698 F . 2d 813, 819 (6th Cir.), cert_̂
denied, 104 S. Ct. 236 (1983); United States v. Texas Education
Agency,' 679 F.2d 1104, 1110 (5th Cir. 1982); Hart v. Community
School Bd. of Educ., 512 F.2d 37 , 54-55 (2d Cir. 1975) (citing
successful magnet programs in Boston, Massachusetts; Providence,
Rhode Island; and Coney Island, New York); Stout— y_j— Jefferson.
County Bd. of Educ., 483 F.2d 84 , 85 (5th Cir. 1973). District
courts have also approved plans that include magnets. Tasby
Wright, 520 F. Supp. 683, 741 (N.D. Tex. 1981), aff'd in part^
rev'd in part, on other grounds, 713 F . 2d 90 (5th Cir. 1983);
Smiley v. Blevins, 514 F. Supp. 1248, 1260 (S.D. Tex. 1981). A
survey of the literature reveals that magnets are being used in
at least eighteen cities. Rossell, Magnet Schools as a Desegre^
gat ion Tool, 14 Urban Education 303, 320 (1979).
Despite the widespread approval of magnet schools by the
federal courts, critics maintain that magnet schools cannot
correct the deep-seated evils of school desegregation. Se*x
e.q. , Morgan v. Kerrigan, 530 F . 2d 401, 410 & n.10 (1st Cir.),
cert, denied, 426 U.S. 935 (1976); Bradley v. Milliken 484 F.2d
215, 243 (6th Cir.), rev'd on other grounds, 418 U.S. 717 (1974),
Kelley v. Guinn, 456 F.2d 100, 108-109 (9th Cir. 1972), cert^
denied, 413 U.S. 919 (1973). Yet the criticisms in these cases
generally apply to desegregation plans in which magnets are the
principal tool in a -freedom of choice" plan. They function
differently in the settlement agreement approved here by the
district court. Magnet schools are a single element of the
panoply of remedies approved by this Court and the district
court. Like the magnet schools in Stout v. Jefferson County Bd_;_
of Educ., supra, 483 F.2d at 86, they are "part of a complex and
many-faceted" plan. Magnets perform the salutary function of
allowing "non-white as well as the white students so enrolled a
chance to widen their horizons through the interplay of ideas and
41
Hart v.the absorption of diverse sub-cultural attitudes."
Comm jn i ty School Bd. of Educ., supra, 512 F .2d at 54.
Magnet schools under this plan will be distinguished by the
features that have made them successful in other cities:
individualized teaching, a low pupil-teacher ratio, specialized
programs tailored to students' interests, enriched resources and
active recruitment. See Rosenbaum and Presser, Voluntary Racial
Integration in a Magnet School, 85 U. Chi. School Rev. 156, 156
(1976); Levine and Eubanks, Attracting Nonminority Students to
Macnet Schools in Minority Neighborhoods, 19 Integrateducation
52, 57 (1981). Because they are supplemented by the extensive
procram of interdistrict transfers and compensatory education,
these magnets will not resegregate, nor will they create a
dualzstic system with elitist schools.
We dc not believe that the district court erred in ordering
the State to pay the full capital and operating cost of magnet
schools. As we noted earlier, the State's status as a violator
of the Constitution compels the district court to remedy the
deprivations the State has caused. In Liddell V , supra, 677 F.2d
at 642, we held that the State could be ordered to undertake as a
part of its remedial responsibility the development of magnets.
Now we reaffirm that conclusion.
While we approve magnet schools and affirm the district
court's decision concerning their funding, we see merit in the
State's argument that careful study and planning roust precede
replication or expansion of magnets. New magnet schools must be
approved by the Magnet Review Committee and the district court.
The planning process should focus on those schools and programs
that present a reasonable probability of attracting suburban
white students; only those schools which demonstrate such a
probability should be approved. The new schools should be phased
in over a period of four years as provided for by the settlement
42
agreement. The total number of students enrolled in city magnet
schools shall not exceed 14,000.
We impose an additional limitation on the development of
suburban magnets. Although a panel of this Court approved the
use of suburban magnet schools in Liddell 111. suRra, 667 F.2d at
658-659; and Liddell V , supra, 677 F.2d at 641-642, the Court en
banc does not believe that the record sufficiently supports this
development. The county districts may proceed on their own, of
course, without state funding. Any black city students who
transfer into county-funded magnet schools would count toward
achieving the district's plan goal and would contribute to the
district's final judgment. State fiscal incentives would include
payments to districts sending transferees to county-funded
magnets, but the State will not be required to pay the capital or
operating costs of county magnet schools as such.
B. PART-TIME INTEGRATIVE PROGRAMS.
Part-time integrative programs are primarily intended to
provide integrative learning experiences for students attending
all-black schools. Adams v. United States, su£ra, 620 F.2d at
1296; Liddell IV, supra, 693 F . 2d at 727 ; Liddell— V, su£ra_,
677 F 2d at 642. These programs have been, and should continue
to be, an important element of the overall plan to integrate the
city schools. In determining the need for continuing the exist
ing programs, or developing new ones, the City Board and the
Budget Review Committee must keep the above standard in mind.
They must also recognize that the number of black students in
nonintegrated schools will decline dramatically over the next
four years. We thus approve the district court's decision
insofar as it permits the continuance of part-time integrative
programs and requires the State to pay full cost of the approved
prog rams.
43
We do not, however, specifically approve the new or expanded
programs or the dollar amounts for these programs listed in the
proposed budget (items A.4.10, A.4.11, A.5.01, A.5.02, A.5.04,
A.5.05, A.6.01, A.6.03, and A.6.04). We rather require the City
Board to resubmit to the Budget Review Committee, discussed infra
Section VI, a list of the new or expanded programs that they
would propose to implement. The total cost of these programs
should not exceed $1 million. Further, these programs must not
duplicate -any programs approved in the quality education section
of this opinion. Any dispute that emerges between the City Board
and the State concerning these programs should be submitted for
resolution by the Budget Review Committee and the district court
in light of this discussion.
IV. Q U A L I T Y EDUCATION I HP ROVE ME NTS .
The settlement plan approved by the district court includes
compensatory and remedial programs to improve the quality of
education throughout the St. Louis public schools and additional
programs for the same purpose in the nonintegra ted schools. The
district-wide improvements include a reduction in class size;
restoration of art, music, physical education, and extracur
ricular programs; creation of pre-school centers and all-day
kindergarten programs; additional staff to address the needs of
handicapped students; additional nursing and counseling staff;
and expansion of library and other media resources and
services. Administrative improvements include curriculum and
staff development, evaluation and performance assessment, and
enhanced long-range planning.
The additional improvements for the nonintegrated schools
include a further class-size reduction in grades K through 8, to
twenty pupils per teacher; additional remedial instruction time
through after-school, Saturday, and summer school programs;
parental involvement programs; and alternative education options
for black students unable to attend magnet schools. Other
44
programs address motivational needs of students in the a l l - b l a c k
schools by stimulating opportunities for student success and
recognition, by introducing role models for academic achievement,
and by establ ishi ng student concerns committees to address the
morale, attendance, and behavior issues which emerge during the
implementation of the plan.
A. LEGAL PRECEDENT FOR INCLUDING COMPENSATORY AND
REMEDIAL PROGRAMS IN DESEGREGATION REMEDIES.
This Court suggested the necessity for remedial and compen
satory programs in Adams v. United States* *HR£a, 620 F.2d at
1296, and rei terated that need in Liddell_V, supra, 677 F.2d at
641-642 . We thus approve them in principle as law of the case.
See supra p. 28. Moreover, such programs have solid support in
the case law as proper components of a desegregation remedy so
long as they relate to the c on st itut i onal v i o l a t i o n , are remedial
in nature, and account for state and local autonomy. M i l l i k e n
Ii , supra, 433 U.S. at 280-281.
In Brown I , the Supreme Court recognized that segregation
harms black children by generating "a fe el ing of i n f e r i o r i t y as
to their status in the community that may a f f e c t their hearts and
minds in a way unlikely ever to be undone." Brown J ., supra, 347
U.S. at 494. In l i g h t of this harm, federal courts have often
required the inclusion of remedial programs in desegregation
plans to overcome the i neq ual it ies inherent in dual school
systems. Mil l iken I I , supra, 433 U.S. at 283. See, e . fl ,̂ .Arth l̂
v. Nyquist, supra, 712 F.2d at 811; Oliver v. Kalamazoo B d. ._of
Educ., 640 F.2d 782, 789-790 (6th Ci r. 1980); Evans v. Buchanan,
582 F . 2d 750, 767-769 (3d C i r . 1978) (en banc), c e r t , denied,
446 U.S. 923 (1980); United States v . Texas, 447 F.2d 441, 448
(1 9 7 1 ). united States v. Jefferson County Bd. of Educ_j_, 380 F.2d
385, 394-395 (5th C i r . ) , c e r t , denied, 389 U.S. 840 (1967); Be{LE
v. School Di st . of Benton Harbor, 515 F. Supp. 344, 369-373 (W.D.
Mich. 1981), a f f ' d and remanded, 698 F.2d 813 (6th Ci r. 1983),
45
United States v. Bd» of School Comm'rs of Indi anapol is ,
506 F. Supp. 657, 671-673 (S.D. Ind. 1979), vacated in part on
other grounds, 637 F.2d 1101 (7th C i r . ) , c e r t , denied, 449 U.S.
838 (1980).
Such programs " a s s i s t students who previously attended a l l -
Negro schools when those students transfer to formerly a l l - w hi t e
schools. . . . The remedial programs . . . are an integral part
of a program for compensatory education to be provided Neg ro
students who have long been disadvantaged by the inequities and
discrimination inherent in the dual school system. Mil liken—II_,
supra, 433 U.S. at 284 (emphasis in o r i g i n a l ) , quoting
Plaquemines Parish School Bd. v. United S t a t e s , 415 F.2d 817, 831
(5th Cir. 1969). Crucial to the Supreme Court's analysis in
Milliken II is the concept that segregation not only i n f l i c t s
harm on individual black students, but also builds "inadequacies
[into the] * * * educational system. " Mil l iken I I , supra,
433 U.S. at 284 (emphasis added). Thus, to remedy the e f f e c t s of
a dual system which operated for decades with the sanction of
law, remedial e f f o r t s must also concentrate on systemic educa
t ional improvements.
A secondary remedial o b j e c t i v e of the q u a l i t y education
improvements is to enhance the appeal of the c i t y school system,
thereby promoting the chances of a stable and successful
voluntary desegregation plan. The exodus of white parents and
students out of fear of i ntegrat ion, or "white f l i g h t , " is no
excuse for school o f f i c i a l s to avoid desegregating. Onited
States v. Scotland Neck C i t y Bd. of Educ. , 407 U.S. 484, 491
(1972); Monroe v. Bd. of Comm'rs, 391 U.S. 450, 459 (1968). Yet,
"there is a val id d i s t i n c t i o n between using the defense of white
f l i g h t as a smokescreen to avoid i n te g ra t io n ," and addressing
"the p ro babi l i t y of white f l i g h t in attempting to formulate a
voluntary plan which would improve the r a c i a l balance - in the
schools without at the same time losing the support and
acceptance of the p ubl ic ." Higgins v. Bd. of Educ. , 508 F.2d
46
779, 794 (6th Cir. 1974) (emphasis in o r i g i n a l ) ; accord Parent
A s s1n of Andrew Jackson High School v. Ambach, 598 F . 2d 705, 719
(2d Cir. 1979). A c h i l d ' s enrollment in a particular school is
the result of two decisions: the government's student assign
ment, and the parents’ decision to stay, move, o r send their
children to private school. Thus, as Professor James Coleman
i n s i s t s , "government p o l i c i e s must, to be e f f e c t i v e , anticipate
parental decisions and obtain the parents' act i ve cooperation."
Coleman, New Incentives for Desegregation, 7 Human Rights 10, 13
(1978). Improving the q u al i t y of integrated schools consequently
promotes parental acceptance of desegregation, and promotes the
remedy's success. Gewirtz, Remedies and Resistance, 92 Yale L.J.
585, 652-653 (1983). See also Rossell 6 Hawley, Po l i cy Alterna^
t iv e s for Minimizing White F l i g h t , 4 Educational Evaluation and
Policy Analysis 205 (1982).
The q u a l i t y improvements for the a l l - b l a c k schools serve a
further remedial o b j e c t i v e . A strong presumption e x i s t s against
the con st i tu ti on al propriety of one-race schools, Swann—
Charlotte Mecklenburg Bd. of Educ^, supra, 402 D.S. at 26, and
any desegregation plan leaving one-race schools must be c ar ef ul l y
scrutinized. I d . ; Lee v. Macon County Bd. of Educ^, 616 F . 2d
805, 809 (5th Cir. 1980). To overcome this presumption of
u n c o n st i t u t i o na l i t y , a court must find that the existence of one-
race schools is j u s t i f i e d in l i g h t of the part icular f a c t s of the
case and the f e a s i b i l i t y of other desegregation techniques.
Armstrong v. Bd, of School Directors,, 616 F.2d 305, 321-322 (7th
Cir. 1980); Tasby v. E s t e s , 572 F.2d 1010, 1014-1015 (5th Cir.
1978) . When no other f e as i b l e desegregation techniques e x i s t ,
then s p e c i f i c remedial programs for students in the remaining
one-race schools may be included as a means of ensuring equal
educational opportunity. See, e • 9 .las by— y.— Wright , supra,
713 F . 2d at 95-97; Clark v. Bd. of Educ. of L i t t l e Rock, supra,
- 47 -
i
705 F .2d at 272. 15
The d i s t r i c t court held extensive hearings on the fairness
of the q ual it y education component, with lengthy testimony from
l ocal and State education o f f i c i a l s , a number of expert
witnesses, -*nd representatives of the other p a rt i e s . After
reviewing the evidence and the recommendations of the court-
appointed f inanc ial advisor, the court concluded that the
programs f e l l within the proper remedial scope:
The sole purpose for the expenditure of funds
under this Plan is to carry out the consti tutions
re sp o ns i bi l i t y to remove the v es t i ge s of a segre
gated school system. * * *
In no way should any funding provisions
presently authorized by the Court be construed to
authorize expenditures unrelated to Board
desegregation obl igat ions under the Constitution
and the Settlement Plan as approved.
Li ddel l v. Bd. of Educ. , supra, 567 F.Supp. at 1051-1052
B. ANALYSIS OF THE COMPENSATORY AND REMEDIAL
PROGRAMS APPROVED BY THE DISTRICT COURT.
The posit ion of the State before this Court with respect to
the q u al i t y education programs is somewhat ambiguous. In i t s
opening b r i e f , i t argued that the c i t y and county schools had not
agreed to a q u al i t y education package and that therefore the
15The q u a l i t y of an a l l - b l a c k school is
students attend such schools v ol un tar i ly
also
See
Incentives for Desegregation, 7 Human Rights
The settlement plan recognizes this imperative in
voluntary interdistrict transfers.
improved when
Coleman, New
14-15 (1-978).
providing for
48
district court had nothing to approve.16
that
I t further asserted
It] he Quality Education [component] is not only
e sse nti al from a contractua 15,000
also from a const i tu ti on al standing. The
black ' c h i l d r e n in north S t . Louis who « 1
have th« opportunity to transfer under the Fia
are s t i l l victims of c onst itut i onal wrongdoing as
found by the court. The Quality Education section
fhe Plan is v i r t u a l l y the only remedy avai labl e
?o \hose Slalk children to redress their wrong.
Without i t they stand as victims without redress.
State's Opening Brief at 26-27.
I t concluded by s t a t i n 9 that the court did not have the
to modify the agreement to include the q ua li t y
component.
author i ty
education
in i t s reply b r i e f , the State changed the focus of i t s argu
ment and complained that the provisions requiring improvement in
the q ual it y of education in the integrated schools were only
remotely related to desegregation. I t continued to assert
position at oral argument.
The State is not a party to the settlement agreement. I t
thus lacks standing to question the v a l i d i t y of the agreement on
i t s terms. WaI t h ^ e l d i n . 422 0 . . . 480, SOI ( » 7 » > ,
Tucson School D i s t r i c t No. 625 P.2d 834, 837 (»th Cir
Even assuming that t h e l t a t e has standing to raise such
question, the d i s t r i c t court found that the part ies had a meeting
16Section IV of the settlement plan s tat es:
ITlhe S t. Louis County School districtsdonot
ilii the necessary
schools to form an op n do not agree or
disagtee wUh . U of the s p e c i f i c s in this basic
design.
- 49
o£ the minds with respect to the e.senti.l terms of the
agreement. This finding is not clearly erroneous.
The State clearly has standing, however, to challenge the
district court's funding order and did so before that cour
renews that challenge here. It argues, in substance, t
court approved funding for general educational improvement
the integrated schools which were unrelated to desegregation,
the rntegt two£oid. First, the State contends that
Its argumen b approved if the Court can find that
these programs may only PP £chool syste» but fo_r the
they would have been a part ot tne c y
past unconstitutional segregation. This positron » « • • * * *
case law and ignores the reality of the harm imposed by segre
°* a ---- -̂- - v;___ the numerous casescompensatory and remedial programs.
cited above approving such programs rested on such
r cion The point is that compensatory and remedial educ
conclusion. Th* t» lnt to remedy the effects of
r c s J i r r - victim/ of segregation and the school
system itself. 17
17The State cites q^ Antonio S^slt£on
Rodriguez., 411 O.S. If < nof constitutional right to anythat St. Louis students **a but fails to note a criticalparticular level of educatio , .. case. Rodriquez held that
distinction between Rodrigue^ and thi case equaT“protection
property wealth is not a 8USPect^ a®f expenditure levels between
clause, and thus ^ - P aratea^ ^ ^ o ^ l Eolation. Hence, the
no Constitutional right to a particular
l e v e l o£_ education. Id.
Our case unquestionably involves a suspect clj»®s aual school
an established constitutional vioUtiw <« f f ^ r dly endorsed
system). As noted above, court ha ovefcone educational
compensatory and *e™ediaJ; ef8eqregated schools,inadequacies imposed by segregate
notwithstanding.
50
The second aspect of the State’s argument is that there are
no findings made by the district court, nor sufficient support in
the record, to suggest that the quality education improvements
are only remedial in nature.18 The Second Circuit recently
observed that the line between remedial purpose and general
educational improvements unrelated to desegregation is inevitably
blurred:
[A] court is entitled to require money for
programs that materially aid the success of the
overall desegregation effort. A program of that
sort is not disqualified for needed funding simply
because its inclusion improves the overall quality
of the school system. At the same time a court
must be alert not to permit a school board to use
a court's broad power to remedy constitutional
violations as a means of upgrading an educational
system in ways only remotely related to desegre
gation. Striking the balance necessarily requires
considerable deference by a district court to the
good faith representations of the school authori
ties * * * and by a reviewing court to the
knowledgeable assessment of a district judge
intimately familiar with local conditions.
Arthur v. Nyquist, supra, 712 F.2d at 813 (citations omitted).
We think that the district court's order is fully supported
as it relates to the quality improvements in the nonintegrated
schools. Neither the State, the United States, nor the City
specifically objects to these improvements. Moreover, they are
consistent with the testimony of every expert witness that
testified. The reduction in class-size was viewed by the
18To clarify, relating the remedy to the violation pursuant
to Milliken II does not require a finding that ea^h educationa
program ~at Issue has in the past been ,i"f«Slte.d Evans ̂ discriminatory bias of a segregated school system. jL a —
Buchanan, supra, 582 F.2d at 769, quoting Jggff[433 U.S. at 27F. It is sufficient to determine that the remedi
program is directed to cure the general condition offending the
Constitution.
51
witnesses for the black plaintiffs as critical to t*Uln9
achievement levels of black • ~
: r ^ o t e a positive learni, climate reflect the
that the Supreme Court approved in MillUen I —
M i l l i k e n , 402 F. Supp. 1096. U18-1U9 ‘ ^ ̂
------- ,, c tin P 2d 229 (6th Cir. 1976), afl_d, 633 U.S. Zb/
^ f ^ ' s c h o o l s ’ of emphasis assist in providing equal educa-
one opportunity by providing alternative education option, for
black students unable to attend magnet schools. The motiv.tronal
norams are designed to bring about productive attitudes towar
learning, and are essential in the opinion of expert ''it"*s” s
e b the black plaintiffs. See Haywood. Compensator^luc^
tioTss Peabody 0. of Educ. 272. 274 (1982). Crain 6 Mahard,tuin, 59 Peaboay T,nmue Minority Academic
How D e s e g r e g a t i o n-- Orders-- May-- ""Pr ... ..--TT
achievement, 16 Harv. C.R.-C.L. L. Rev. 693, 702 (1982).
Notwithstanding our affirmance in principi. of the district
court's order insofar as it relates to the all-black school . «
believe that the following modifications to the order should
made so that careful planning and effective implementation m
proceed without disruption of the current school year:
(1 , to the extent that any of the programs have
been heretofore instituted, they may
continued. The remaining programs may be insti
tuted at the beginning of the 1984-85 schoo
year. The summer school program may be implemented
for the summer of 1984.
,2) The reduction in class site from present
levels to the 20:1 pupil-teacher ratio shouldI e
made over a period of four years beginningi in 19
85. The phased reduction recognises that as -a y
a. 12,500 additional black students may transfer o
county school, in the next four years, and that
52
many as 3,000 more black students may transfer to
magnet schools during the same period. By
coordinating the class-size reduction with the
transfers, student and teacher disruption can be
lessened and the construction or rehabilitation of
school buildings to house the smaller classes mini
mized .
(3) The amount budgeted for item B.1.01, Coordin
ation of Instruction, should be reduced by one-
half. Evelyn F. Luckey, an expert witness for the
Liddell plaintiffs, testified that the program
could be successfully accomplished within the
limits of the reduced amount.
(4) The schools of emphasis should be phased in
over a two-year period beginning in 1984-85.
(5) Detailed planning for the programs in the all
black schools should continue so that the programs
can be implemented on schedule.
we cannot fully agree with the district court's conclusion
that all of the quality education improvements in all schools are
closely related to the integration process. While we concur with
the Second Circuit's view that a district court should show
considerable deference to the good faith representations of the
school authorities, and that we should show similar deference to
the judgment of the district court, a review of the record leaves
us with the firm conviction that the district court erred in
approving many of the programs in the quality education budget.
We begin our analysis by indicating our areas of agreement
with the district court. Initially, we believe there is strong
support in the record for approving those programs necessary to
permit the city schools to regain, and then retain, their Class
53
M * status. This standard is developed by the Department of
Education of the State of Missouri. See Handbook for Classifi
cation and Accreditation of Public School Districts in Missouri
,1,80). Seventy-four percent of the children attending Missouri
public schools attend schools that have this rating. Missouri
School Directory (1982-83). The City Board was denied this
rating because its classes were too large, it had too many
uncertified teachers, it lacked counselors in the elementary
grades, it did not provide art, music, and physical education n
the elementary grades, and its library and media services vere
19inadequate.
Second, we find adequate support in the record for preschool
centers (budget item A.4.01, $811,000), and for planning and
program development ,a part of budget item A.1.01. $885,000,
Both of these programs are recommended by the State Department of
Education, and both have been shown to be closely related to the
desegregation process.
Third, we find adequate support in the record for all-day
kindergartens (budget item A.4.02, $6,129,000), parental involve
ment (budget item A.8.05); desegregation planning (budget item
A 8 13, $41,000); long-range planning (budget item A.8.15,
$431,000); and public affairs (budget item A.8.06, $184,000).
The all-day kindergarten program serves several important compen
satory and remedial objectives. Much of the testimony at the
fairness hearings emphasised the importance of
desegregation efforts on the earlier grades, as younger children
have developed fewer racial prejudices and differences in
performance are narrower. See Hawley, Effective ^^ation^l
strategies for Desegregated Schools, 59 Peabody J. of Educ. 209,
»Since this C-t'a orde^of > £ £ * « ^
t ^ % eta tneeC has Lc“ n?Jy “es^red the AAA status to the city
schools.
54
214 (1982). The additional instruction time will also assist in
building prerequisite skills for city pupils. The testimony also
emphasized that many of the children came from single-parent
families that did not provide them with the skills which would
permit them to compete with other children at the first-grade
level. See Milllken II, supra, 433 U.S. at 284. The all-day
kindergarten program is an expensive one which must be
implemented carefully if waste is to be avoided, and the full
benefits of the program realized. We therefore direct that the
program be phased in over a period of at least two years.
Parental involvement is similarly emphasized, both in the
record and in the literature, as crucial to the success of the
desegregation plan. See, e.<^, Hawley, Effective Educational
strategies for Desegregated Schools, su£ra, at 212, 225-226.
Because many students will not be attending their neighborhood
schools as a result of the student transfers, special parent-
staff seminars and other programs will be critical in developing
and maintaining parental involvement. The changes involved in
implementing the plan, and the future demographic and student
enrollment shifts, render long-range planning essential to t e
successful desegregation of the city schools. The public affair5
program is essential to citizen awareness and acceptance o t e
plan.
In light of the foregoing discussion, we approve the
district court's funding order insofar as it relates to programs
necessary to the city schools to retain its AAA rating. While
the record is not entirely clear as to precisely what programs
the State required the City Board to institute to regain this
rating, it appears that they are budget items A.2.01, library an
media services; A.2.02, audio visual services; A.3.01, lower
class size; and A.3.02, restoration of art, music, and physica
education. It is the Intention of the Court that these budget
items be implemented only insofar as necessary for the city
schools to retain their AAA status. Retaining this status does
- 55 -
I
not include a further class-size reduction in the integrated
schools. We also approve the following additional programs:
preschool centers, planning and program development, all-day
kindergarten, parental involvement, desegregation planning, long-
range planning, and public affairs.
We cannot, however, find adequate support in the record for
the remaining programs. All are desirable, but the City Board
has not made the case that they are necessary to provide equal
educational opportunities to the children of St. Louis, or are
otherwise essential as remedial or compensatory programs.
C. CAPITAL IMPROVEMENTS IN THE INTEGRATED AND
NONINTEGRATED SCHOOLS
The settlement agreement describes the age and condition of
the city schools: Generally, they are in a condition of old age,
rapid deterioration, and extreme deferred maintenance. Thirty-
four of the nonintegrated black schools and twenty-one of the
integrated schools are over fifty years old. Nearly one-fourth
of the building area in the city schools is over seventy-five
years old. Nearly one-half of the building area in the city
schools is over sixty-five years old. More than two-thirds of
the building area in the city schools is over fifty years old.
At the fairness hearing, the district court heard uncontradicted
evidence as to the condition of the city school facilities which
paralleled that recited in the settlement agreement.
In the last twenty-four years, St. Louis voters have
defeated thirteen proposed bond issues. The only bond issue to
pass during this period was in 1962, and approval came only after
resubmission to the voters. Significantly, both of the last two
proposed bond issues were approved by a simple majority; the
constitutional requirement of two-thirds voter approval, however,
blocked passage of these issues.
56
At the fairness hearing the State argued that .ore careful
planning -as required before renovation or new construct on
programs could be initiated, particularly in ll9 ht o «*P*=
declining enrollment in the city schools. It * 80 ,t9“* t
the schools were in a deplorable condition because V
.School Board had failed to maintain them over the years
questioned whether certain items were properly included in the
capital improvement budget, contending that theŷ -ere rout ne
maintenance items that should be funded exclusrvely by the City
Board.
The district court's order and memor
facility improvement program at length.
andum did not discuss the
It simply stated that
,b, the City Board shall submit t o ^ “ ^ters.
City's public schools; [and]
(c) should that bond
two-thirds majority vote
the Court will consider
obtain the funds deemed
issue fail to obtain the
required by State law,
an appropriate order to
sufficient to meet the
S p y i n g c o r s u t u t io n a f ^ i i g ^ t i o n S
desegregate the City’s public schools.
ridd.ii V. Bd. of Eduĉ _, supra, 567 P. Supp. at 1056.
Pursuant to
program with
total to be
Board bonds.
that order, the City Board formulated a building
a total cost of S127 million, with one-half of the
financed by the issuance of $63.5 million in City
The bond issue was presented to the voter, - ^"^ssu!'.
3,83. and fifty-five percent of the voters approved the iss
v f hi» voters in the predominately blackEighty-four percent of the voters in v
yards voted for the issue, but sixty-five percent of the
57
in the predominately white wards voted against it. The bond
issue was defeated because it failed to receive a two-thirds
majority.
On appeal to this Court, the State does not question either
the need to improve facilities, nor its obligation to help pay
for these improvements. In its opening brief, it argues that if
the bond issue fails, the whole plan will fail for lack of
funding because it is unfair to expect the State to pay the fu
costs of the improvements. It also renews its argument that,
because the county schools failed to agree to a detailed building
program, the settlement agreement as a whole must fail. Finally,
it asserts that, in any event, the district court is without
authority to enter an order requiring a tax levy to fund the City
Board's share of the improvements. In its reply brief, the State
simply states that the provision of the order requiring "exten
sive capital improvements" is "entirely out of proportion to the
constitutional violations found by the District Court."
The district court did not err in holding that the State had
an obligation to pay one-half of the costs of the capital
improvement program necessary to restore the city facilities to a
constitutionally acceptable level, and we find no merit in the
State's suggestion that the district court's order cannot stand
because the county districts failed to agree to the details of
the facilities improvement program. See supjra pp. 49-50.
There is merit to the State's argument that more careful and
detailed planning should precede action by the district court and
that this planning should identify the projects to be undertaken,
establish the cost of each project and set a more specific
schedule for the improvements. Planning and scheduling are
particularly important in view of the expected decline in enroll
ment.
58
on remand, therefore, the City Board should promptly Id. T
the projects to be undertaken, estimate the cost °f «=* ;
nd set a reasonably detailed schedule for the co-pleUo> o each
project. The projects having the highest ^atend.
uled for completion at the earliest possi referendum
the City Board should consider the^esir.biHty of ̂ refers^ ^
on a bond issue which can be ni ts to be built in later
s r ^ ^ t . 1" « - * c£ W i - *■»
detailed plans and schedules.
As soon as the City Board has prepared the new plans
estimates, and schedules. to the
Review Committee, discussed .infra Secti
„ uhpn the district court has approved them, a new district court. When th defeated
- - —
will be funded. See Infra. Section V.
V. FINANCING DESEGREGATION IN ST. LOUIS CITT SCHOOLS
in November, 1982, Missouri voters
.Proposition C, which directed local school o£ the
their operating levies by an amount equal to f y P
revenues local school districts would receive unde. «
increase in the state sales ta. Mo Rev. tat.^S ^
««>• In US JUlY 5',19 Estate taxes, r,dd.ll v- M . - S lthis rollback of l«al real • ^ the Board of
Educ. , ,supr£. 567 T• pp‘ Quality education
Education to use t h i s ‘% t Loui6 3chools to their AAA
rt:ir rr:.nr£. - : -ss
the district court's injunction of t e r ^ r6versal at
grounds, for the injunction was alrea y n p * 8ysten of
that time would have seriously disrupte ^ „e
school finance. Liddell VI. sn£i>. 717 F'2d
- 59
sustain the injunction against the rollback for the balance of
this school year for the same reason. The equitable nature of
that decision obliges us now to examine the propriety and the
merits of the district court's injunction of the rollback with
respect to years beyond 1983-84. We also consider the district
court's authority to order a further increase in property taxes
to fund operating expenses or capital improvements.
We hold that the district court's broad equitable powers to
remedy the evils of segregation include a narrowly defined power
to order increases in local tax levies on real estate. Limita
tions on this power require that it be exercised only after
exploration of every other fiscal alternative.
The district court's use of broad equitable powers
concerning school desegregation costs has been approved by
previous opinions of the Supreme Court. Thus, it has declared
that, when predicated on a right and a violation, "the scope of a
district court's equitable powers to remedy past wrongs is broad,
for breadth and flexibility are inherent in equitable
remedies." Swann v. Char lot te-Mecklenburg Bd. of Eduĉ ., supra,
402 U.S. at 15. These powers subsume a broad range of ideas and
tactics: equity assures that "all reasonable methods be available
to formulate an effective remedy." North Carolina State Bd.,_of
Educ. v. Swann, 402 U.S. 43, 56 (1971). These powers may also be
applied broadly "to achieve the greatest possible degree of
[relief] taking into account the practicalities of the
situation." Davis v. Bd. of School Comm'rs of Mobile County,
402 U.S. 33, 37 (1971).
In Griffin v. School Bd. of Prince Edward Counter, 377 U.S.
218 (1964), the Supreme Court acknowledged that the district
court may order an increase in taxes to fund schools where the
State has defaulted on its obligation to provide an equal educa
tional opportunity to all students. The Court did not limit the
scope of its holding by ordering a return to the previous tax
60
,ur#s It indicated only that the tax must be
levy or procedures. , ination" and that it
■necessary to prevent farther racial ,aintain
must "raise funds .debate to «°P*n, o^rate an ^
without racial discrimination a public school syste _
233.
c i c f 2d 1365 (8 th C ir .) »
_ » u ^ .— edged
cert, denied, 423 U.S. *.*x lew in
the district court's remedial^pw e ^ r ^ ^ ^ district court
excess of that authont suburban school
ordered the consolidation of three St L „ , tt
aistricts with disparate tax rates ««■••. ^ a n y of the three
concluded that a uniform t a x 9 operate the desegre-
($6.01, would be that .,tlhi. rate, inclusive
gated district, f ' atlserice thfi total aebt of the enlarged
oE the — - c « > °t:“ ave been approved by the voters for
district, shall be ae 11(c). Missouri
the purposes of ^ „ te, the district
constitution. Id a ^ no r e a s o n a b l e possibility that
court also noted th reauired two-thirds vote
such a tax levy would be approved by th paired
in the aftermath of the desegregation order. Id.
„. r„,„t sitting en banc unanimously approved aOn appeal, this Court sitting e districts. Judge
rate of $5.38, the highest rate of the three
Stephenson, writing for the full Court, stated:
It is anomalous to ?uggest that ̂ d i s t r i c t
court has the power to ls®h power to fashion an system but does Jiot have^the £ roUn# state Board
appropriate remedy. In rn2 p-g— 43, 45 *' * *•nf Education v. Swann, 402 U.S. *:>,
court stated:
CD f a state-imposed limitation on ^£Chool
sssi?
- 61 -
l
.. nn«ratcs to hinder vindi
9ciVt!on” o£ federal constitutional guarantee..
We have lltewi.e thaV'^S'e
tation of a BC^|°1 h federal courts under theremedial power of the teae^ Umlted by state
Fourteenth w®*,* «f Eduction of Sevier,
law." Haney v•County, supra,, 429 r.2
We are satisfied that the
the authority to implement its ^ made for the
by directing that th^ operation of thelevying of taxes essentxal to the^ope.^^ h r,
new school distri<? * ld ^ given to the plan
that deference sh° ^ h by the state and county
submitted in Jf ii. largely accepted by theofficials and which was la:eg JY fchat with the
court. It was the ^ ® w , through action of thereceipt of anticipated funds tnr^g wqu1<3 be
legislature the Prej ^ aidJJation should be given adequate. Maximum consideration ^ 1 officifi,
the views of the aDpear compatible withconcerned so lon<g1 as t y PP imum rate in the
^ w ^ ^ t rret^s^uirte reduced to *5.38 per
h nnd r&d•
a. at 1 3 7 2 - 1 3 7 3 ( c i t a t i o n s a n d f o o t n o t e o m i t t e d ) .
The City cites Evans .. ----- — district court is
■»78> <enbane>' £°C fcder^1°tar1 increase to fund a court-imposed
without authority o order a ^ * so construed.
Jesegregation plan. Griffin, made clear that
indeed, the court en banc, rely’ "9 - allocated
the district court h d t ^ I . to operate the
-no funds, or substant y action by the State would
remainder of the school system, su operations of the
clearly be unacceptable “ ln addition, in Evans, the
desegregation decree. — ' .obvious inherent political
district court had acted be run thelt course.- Id.
safeguards * * l-"> J ? " * * „ tltely consistent with Evans
Our instructions on remand are en « lltlcal funding
because the district court must defer to t po
V . Buchanan, 582 F.2d 750 (3d Cir.
62 -
Me readprocess before it may consider ordering a tax increase.
Evans for the proposition we stated at the outset of this drscus-
sion: a district court may require an increased tax levy, ut
only Where necessary to remedy a violation of the Constitution,
and only after exhausting all other alternatives.
The City and State also cite San Antonio Independent School
..... . V. Rodrigues, 411 O.S. 1 (1973), in arguing that the
courts should defer to the legislative expertise of state an
local governments. That case is also distinguishable. It
involved an equal protection challenge of Texas's use of t e
property tax for funding education. The appellants claimed that
this system of taxes per se was discriminatory because it̂ raise
disparate revenues in different school districts according to
disparities in the assessed valuation of property within the
districts. The Supreme Court found no suspect class affected an
no fundamental rights at stake. Instead, it relied on the
•rational basis’ test and deferred to legislative expertise in
fiscal matters. On the other hand, in this case, the City Board
and State have both been adjudged constitutional violators in
matters involving a suspect classification. Moreover, in this
case, no one challenges the mechanics of the tax system, which
was the central issue in the passage from Rodriguez that the
State cited.20
70The State y” ? . S i S H judgmentdistrict court may not order a tax 1 ̂ y ^ caseB arose tn a
against a municipality.^ t a „a.tae „ rrmntv Court of Clark
commercial wntBrt. in so°ught a co~u7t^
tax levy to pay interest c:oupons £ levy taxes
year the bonds .^wcre* is^ed^the county had no obligationbecause until the bonds wef* Baa<; w. c i t v of Watertown,and no authority to levy the ._j Countv Court
86 O.S. (19 Wall.) 107 (18 )» ® /"1879) involved bondholdersof Macon C°unyy, 99 0.S. 582 a679).f__inv^ In
I X ^ T ^ T o ^ d e ^ i n e d ,
were° formed. * * S i nce^thV statutes became, by implication, a part
(Continued)
- 63
that the district court's equitable power Our conviction that th increases or the■ 2 nowsr to order taxi n c l u d e s the r e m e d i a l p o w e r g r o u n d i n g the
- — i 1: : : .... =—
c o n t r a c t s clause of t h e ^ ^ c o u r t „ „ t e o o , n i * . d t h a t a
art. 1» 5 10, cl. 1* . . o t be i m p a i r e d s o l e l y
m u n i c i p a l i t y ' s c o n t r a c t u a l o b iga 10 t a x in o r d e r to m e e t
b e c a u s e s t a t e law re^ i C ^ ^ i t y ^ f New O r l e a n s r a i s e d s u c h an
t h o s e o b l i g a t i o n s . d e b t s o w e d to t h e r e c e i v e r of
a r g u m e n t in an a t t e m p t to a v o i ^ ^ nQ t r 0 u b ie h o l d i n g
a metropolitan police oar , the taxes for
that the courts could require the e U y ^ coUect . tax
which the judgment was ren ere , receiver." Louisiana
therefor for the benefit of the ” 215 u.S. 170,
ex rejLl__Hubert_ĵ _Jjaygr— y. Kansas^ower
181 (1909).
103 contract it cannot simply walk away fromitself enters into a contr . Trust Co. v.Jiew
- « - V ?jersex, <31 O.S. 1, ia. N o t w i t h s t a n d i n g these
e x e r c i s e d if debts a r e States a r e b o u n d
e f f e c t s , the C o u r t has r e g u l a r l y held that «,
by their debt c o n t r a c t s . - ( F o o t n o t e o m i t t e d . l ) .
.. have recognized that municipalities may
Similarly. courts ’ b pleading constitutional or
not avoid their liability r||||1nrr n-a Thrift Co. v.
statutory debt limitations.^ 19SS) 1 fiaSS-Si-S^
ĵ ujton, 131 SUpP; ’ J35> m p.2d 80. 83 (1941)1 RaynorJU
Martin v. Harris., 75 . • loin̂ • City Catlettsburg.
King Countx, 97 P.Jd 696, 708 “ ' „ 6 ’91 S.w.2d 56, 59-60
v. Davis' Administration, 262 Ky.
___________________________ , . . ».h<, U B e o f t h e t a x i n g remedy.
of the c o n t r a c t , they p r e c l u d e Toan xas'n v. T o p e k a , 87 O.S.
W i ioav for a default on bonds laue* the tax would not have been
lawful‘^because 'ft' wo'uWTot ‘have been levied for a public
purpose.
- 64
. 242 p 1003, 1004 (Ari*.
(1936) ; 1?9 200 ( C l . » » )
1926); City of Lona_Bearh ^ ^ ^ yond their legal U» i « *Vr : : : " r : , »
, , . . . . . . - ~
1983, order in light of the f°^lined to order an increase in
note that the district cout purposes until the need for such
real estate levies for opera i Jt also declined to
revenues had been cle“ ly **“ "*,' lmp’ovements until such tine
order a tax increase to fun mlned by the C ity Board as
a5 a bond issue of an amoun apital improvement needs of
sufficient to meet the most l e g a t e had been
It w=nt on. however, to Mo! Re!! Stat.
to not reduce its operating dUect the State to refrain
5 164.013 (Proposition C), a ^ that it would other-
£rom withholding from the C y lt required that the
- r r. r rjrr ~ -
r r :.;;r — - — "
reduce its operating levy on July 1,
. . . . . » “ “
accompanied by a factual fin x 9 J br insufficient. Me
other fiscal alternatives ‘ ^ e„ n though
are unwilling to read such a find 9 ^ ^ m t l e ot no budget
the record reveals that e ^ has been cut, real estate
surplus, federal aid for ese9 slightly in recent years
values in the district ‘*«'j £unds have been largely
and referenda to secure addi ^ court .ust allow the
unsuccessful.21 On remand, th £oc the 1984-85
rollback under Proposition C to
65 -
school year unless it
available or sufficient
addition, it shall not
makes similar findings.
finds that no other alternatives are
to finance its desegregation order. In
require any additional levy unless it
Specifically, the district court ahould, firat, pro»ptly
determine the amount of money that .ill be required in 1984-8S to
fund the desegregation order and it ahould subsequently determine
the funds necessary for each of the succeeding years. Second,
the district court should determine whether the City Board is
a b l e, with its own resources, to fund its share of the costs. In
making this determination, the district court shall consider the
reduced budgetary pressures that will result from the transfer of
nearly 6,000 students from city to county schools in W 8 4 -8 5 and
from the transfer of an additional 9,000 students in the follow-
i „ g three years. In addition, the district court shall consider
the e f f e c t s of students transferring to magnet schools and of the
C ity Board's receipt of transfer payments under the settlement
agreement for sending students to county schools. Third,
district court determines that the City Board lacks resources
sufficient to fund its share of the desegregation order, it shall
consider alternative sources of revenue. These alternat ves
include, but are not limited to: submission of a referendum to
the voters for an increased operating levy; or authorisation of
the C i t y Board by the State legislature to impose non-real estate
taxes within the city. Fourth, if the voters refuse to*PProve a
higher tax levy, or if the legislature falls to authorise the
City Board to raise taxes fro. non-property tax sources, or if
the City Board and the State, as Joint tortfeasors, are unable to
“ Since 1970, five referenda have been submitted^ the
voters to Increase the 'ut,h° , z9'76 remainder failed evenrequested increase passed in ' received a majority vote,though three of these remaining f̂ ou $100 of assessed
We note, however, that an approved by a
valuation in the current o p e r _ JJt art. 10, 5 11(c). simple majority of the voters. Mo.
- 66 -
agree on an alternate method of raising the City Board's share of
the cost, the district court shall conduct an evidentiary hearing
and thereafter enter a judgment sufficient to cure the constitu
tional violations which we have found in a manner consistent with
this and prior opinions.
y i . b u d g e t review committee.
The settlement agreement, the district court's funding order
and opinion, and this Court's opinion have established detailed
guidelines for desegregating the city schools over the next four
years. The agreement provides for a number of committees to
assist in desegregation. They include the Desegregation "°nitor-
ing and Advisory Committee, the Magnet Review Committee, and the
voluntary Interdistrict Coordinating Council. The function of
the latter committee is to coordinate and administer the student
transfers, the voluntary teacher exchanges and the part-time
educational programs. A Recruitment and Counseling Center as
also been established. Each of these committees and the Center
fulfill important functions in the desegregation process and may
be continued and funded in accordance with the settlement agree-
ment at the discretion of the district court.
The district court also outlined the budgeting procedures
that would be followed:
11. For the effective and timely impleraen-
tation of the Settlement Plan, as *Pproved, the
following budgeting procedure shall■ “PP1*
recard to all actual and reasonable costs»** J£p transportation costs and costs incurred for the
student transfer payments made to sending
receiving districts, incurred pursuant to the
approved Plan:
(a) each participating school deliver to State defendants a proposed bud9 et for
all desegregation programs and »ct1^ e|ettiement
Ifan t r * ^subsequent years], the budgets shall be delivere
67
before March 1 of the precedingto the State on or
fiscal year;
year-;
. » r\ r\ or before [March 15 of each preceding
f u c i r , " . ? aL \ r *'.̂ jarsszrelating to bud9!f?^ts the representatives may
ci°n • r rn ‘thV'court l jiint statement of budgetary
matters thfn remaining' in dispute for the Court a
cons ider at ion.
[T1he State shall submit in writing any objec
tirarepyreVentat“ es may^submrt “ the Court a
joint statement of budgetary matters
remaining in dispute for the C
ation;
(d) the Court’s f:inancial advise:^J^state* ands r £
wrTtingS dTrectl'y ^or'Vt a°ny subsequent hearing
that may be required; and
(e) for the 1983-1984 f:iscal ^•^."^equtled
disagreements t h a t be deferred to Onited meetings and reports -ill be^jeter ̂ ^
S ta te s Magistrate David Nĉ subsequent fiscalor before hugust s, !»«• '“ ,„ J remaining
disputedtbudget'Jissues in a manner the Court deems
appropriate.
then
consider-
present
'either in
Liddell v. Bd. of Educ^, su£ra, 567 F. Supp. at 1057.
We believe
respects: (D
does not give
that the budgeting process is deflelen n
it falls to require long-range budgeting! (2) it
the State, the principal funding source for the
68
i ar an adequate role In the budgetary process; and (3) It fsUs
r ^ d e l effective method of reviving
hpfore they reach the district court. As a result,before tney r . resolving disputes.ust spend an inordinate amount of its time resolving
that should be resolved by the parties.
We direct that a small budget committee be named, consisti g
of two representatives of the State of Missouri, one represen
tative from the city schools to be selected by the City^ Board,
one representative^to ̂ be "expe'rt in school
financing ^a^the ea'rli.st possible date. The
expert shall serve as chairman of the committee. Its «“ P
sibilities will be determined by the district court
include:
r„::T:,v:vr,r, -r,.:1» s r r i-tr--
and the City Board to anticipate the funds that will beand the city >lso £otce the participants to
to fund the plan. Th y .h t will occur in
consider at an early date the ^ ^ V ' o n Tn the intlgrated and
the city schools’ student popu a 1 ln the
nonintegrated schools and magnet schoo ,
effort to control costs.
(2) Receiving the annual budgets prepared by the participat-
.no Ichool districts on the same date that the budgets are to be
09 . . h th state The State and each participating district received by the State. T of >9teement and disagree-
will identify, in writing, th.it determined by
ment relating to budgetary matters at a ti The
the court on the recommendation of the u ge
- 69
Budget Committee will make every effort to resolve differences as
to the budget in accordance with the principles set forth in the
settlement agreement, the district court’s order and this
opinion. Any unresolved disputes will be promptly presented to
the district court with the recommendations of the court-
appointed expert. The district court will resolve any
disputes. This resolution is not an appropriate task for a
United States Magistrate. The number of disputes should be
dramatically reduced if the parties participate in good faith in
the procedure outlined. The district court will enter an
appropriate order with respect to the funding of the Budget
Committee.
V I I . OTHER ISSUES.
Several issues raised by various parties remain for resolu
tion by this Court. We hold the following:
A. ST. LOUIS TEACHERS.
Ths district court did not err in denying the St. Louis
Teachers Union Local 420 the right to intervene in these proceed
ings. The Union has, however, timely raised its interest in
seeking preferential hiring rights for black city teachers in
county school districts, and this interest is sufficient to allow
its intervention in future proceedings. See Fed. R. Civ. P. 24.
We note further that the settlement plan contains annual
hiring goals for black teachers and administrators in the county
schools. Implementation of these goals requires only nominal
monetary support from the State, and provides significant bene
fits to the county districts and the black plaintiffs. We
approve this section of the settlement plan.
70
B. ■ORTH ST. LOOIS PARENTS.
The « * , . . . — - ri:::: f::
tion argue that « . « the Interest, of the blech
settlement. Plan because it s . o r l ^ ^ Bchool. £or the
students who will rema transfer to county
interests of the black students who the amount of
schools. They base their argumen on ^ ^ ^ county achools
state funding for students w o £unding to compensate
greatly exceeds the amount o= schools.
Students who remain in neighborhood all-black
_ in equal educational
As we have discussed, supra p. - schools is a
f students remaining m oneopportunity for aggregation remedy. The settle-
crucial concern in « » B1 * uty improvements for the ali
ment plan contains significant qual y „ith Binl„,al
black schools, and we have approved these prog the
l im ita tio n s . - - d ~ “ ^ t ^ g - - b l a c k
claim that the i"t«« we 6ee the record, black students
schools are being Tilternatives: attend their neighborhood
Will now have several alte county, or
school, attend an integrated school in the
attend a magnet school.
Both the North St. Louis Parents and the City arg #1
aistrict court failed to provide “ did not err in
class members. «e hold that the district p„ . Bt. as
this regard. Nor did it ce3pond in detail to
class members of due process by far 9 ^ aiittlct court’s
their objections to the sett emen ̂ reasoned examination of
opinion reveals that it *ngag* concerning whether the plan is
objections raised by class mem ^ Bd. ot Educ^. supra,
fair, reasonable and adequate. M ^ e i ------ -
567 F. Supp. a t 1 0 4 2 - 1 0 4 7 .
- 71
c . THE CITY'S PETITION POP * MUT OP PROHIBITION, AND
ITS OTHER REMAINING OBJECTIONS.
In our recent en b.nc order, we reserved . *»“ « « the
City's petition for a writ of prohibition until «e consldere
. its on appeal. ™ *reasons discussed above, i s m pp. 59-66, concerning the City
Board's property tax rate, we deny the writ.
For reasons discussed throughout this opinion, we hold that
the district court did not fail to evaluate the settlement agree-
. oroperlyr we thus dismiss the City's objections on this
Hint The City argues further that the district court erred in
H ig o lifting cross-examination of experts at the fairness
hearing. We find no abuse of discretion by the district court in
this regard. See Fed. R. Evid. 611.
D. FINAL JUDGMENT FOR THE COUNTY SCHOOL DISTRICTS.
we specifically approve the settlement agreement “
it relieves the participating county school districts of li.bil
ity if they meet the goals set forth in the settlement plan
within five years.
We have considered all other arguments and find they have no
mer it.
CONCLUSION
The judgment of the district court is affirmed in part. and
. ..tter is remanded to the districtreversed in part, and this matter is re _ .
court for action consistent with this op mon. citUens
the City of St. Louis, the North St. Louis Parents *nd Ci*1’* the city or s Teachers Union Local 420
for Q u a l i t y E d u c a t i o n , a n d the S . c o s t s of
w i l l e a c h b e a r t h e i r o w n c o s t s o n a p p e a l .
appeal shall be taxed to the State of M i s s o u r i . The mandate of
this Court will issue forthwith.
- 72
JOHN R. GIBSON, Circuit Judge, concurring in part and dissenting
in part.
The Court today approves a settlement which in great part
requires funding by the State of Missouri. The State of Missouri
was not a party to this settlement. In the litigation before us
the State has been found to be a constitutional violator insofar
as there is an intradistrict constitutional violation within the
City of St. Louis. The Court today improperly requires the State
to fund a remedy far broader than this constitutional violation,
an admittedly interdistrict remedy involving not only the schools
in the City of St. Louis but the schools in St. Louis County.
Accordingly, I must dissent in part.
It is necessary that we first determine what this Court has
found to be the constitutional violations by the State of
Missouri and then consider the nature of the remedy that may be
employed in such circumstances.
I.
Even though this case has been before this Court on four
earlier occasions, the nature of the constitutional violation by
the State of Missouri has been outlined only most generally. In
our most recent opinion, Liddell v. Board of Education of City_of
St. Louis, 677 F.2d 626 (8th Cir. 1982) (Liddell _V) r certLi-
denied, ____ U.S. ____, 103 S. Ct. 172 (1983), the panel, speak
ing through Judge Heaney stated:
We held in Adams that the state had substantially
contributed to the segregation of the public
schools of the City of St. Louis. No appeal was
taken from that decision by the state. That
decision has been settled and will not be
reopened.
73
677 F.2d .t 629. The Court there referred t0 *h* , \ „ T 2 A 64
,.^■1 v Board ̂ f_Educat1on of City of St^oul*. ,02 , i m
(8th Cir.) (Liddell H i ), cert, denied. 451 O.S.
.here the panel, again speaking through Judge Heaney-state .
The State of Missouri v ig o ro u s ly contends that
it should have no part in paying for the costs ot
integration because its actions did not violate
the Constitution. . . .
This contention is wholly without »erit. In
X causal rel?A"onTh (p^be t^n'the*^ti£°2?‘the
t ^ r « i ysd ofeCtthde *deseg r eg a t i on°Uplan ° i S T g
' r ir W s s s « ^ * d a w & £ a 5fir
cielrar ^ al o ^ ^ ^ ^ ^ V h e T t V t ' e 8. Vnd^he
Itnatr"hal chosen8 not Jo seekdecision in the Supreme Court, Atthe very leas ,
our opinion left thr a.strict “ ‘j ' i , ' its its earlier conclusions. We will not
decision to do so.
667 F.2d at 654.
These opinions referred to the earlier en banc decision in
....... united States. 620 F.2d 1277 (8th Cir.). cert, denied.
449 U.S. 826 (1980). In Adams, the Court held that the diBtric
court had erroneously concluded that the Board of Education *
discharged its duty to desegregate the St. Louis «**»!
adopting a neighborhood school plan and re 9
discriminatory actions thereafter and that factors over.h.ch the
Board of Education had no control .ere responsl
segregation in the St. Louis school system, ^dams. «20 E.2
1291 The Court observed that most schools in north S .
.ere' black in 1954 and remained black and that most > "
south St. Louis -ere .Kite in 1954 and remained -hit.. The
74
had not dealt with the problem in 1954 to 1956 by developing a
plan that would integrate the schools in north and south St.
Louis. The Court concluded: "We have no alternative but to
require a system-wide remedy for what is clearly a system-wide
violation." Id. Liddell III & V refer to the discussion on
pages 1294 and 1295 in Adams, and footnotes 27 and 28. Testimony
of Dr. Or field that an interdistr ict remedy funded by the State
of Missouri would have the best chance of permanently integrating
the schools in metropolitan St. Louis was discussed, together
with the pre-Brown practices of both the St. Louis suburban
school districts and those of the City of St. Louis to maintain
segregated schools. The costs of the desegregation plan were to
be apportioned among the defendants as determined by the district
court.
It is evident that this discussion in Adams is dealing with
the St. Louis City school system. The Board was directed to
develop a system-wide plan for integrating the elementary and
secondary schools. The Court remanded "to the district court
with instructions to take those steps necessary to bring about an
integrated school system" in accordance with certain guidelines
and timetables set out. Adams, 620 F.2d at 1295. Cooperative
transfers with suburban districts in St. Louis County were
d i scussed.
This discussion in Adams does not address the question of
interdistrict violation or interdistrict remedy.
This conclusion is fortified by the suggestion in Liddell_V
that "the interdistrict liability proceedings previously severed
from the remainder of the case be postponed until after . . . an
order in the pending 12(c) proceeding" and that "the inter
district liability aspect should then proceed promptly there
after." 677 F.2d at 642. The district court and this Court have
not to this time made findings or conclusions of interdistrict
violation.
75
Liddell V made the following reference with respect to the
State defendants:
IT)hey ere prleery ^ e " ? ^'.cttoSi
therefore, can ê J Lsegregation of the city
which will * « V'\rh.th*uons required will occur *rhno 1 s even if the actio q „i(.u schoolschools eve outside the
distr ict.
boundar ies of the city
677 F.2d at 630.
The decision discussed the voluntary participation of^suhur-
r»rr^i.«icr^ir.ti- "H u y.»- —
schools. 671 F.2d at 641.
, V the district court commenced its prep-Following Liddell v_> tne u.fore the
a: at ion for trial of the interdistrict ssues■ ^ “"tion
trial could proceed and fading* on th i _ ^ the
,na ^ 1 " ^participating. From this
: : ; ; i r r : ^ t n c i u s i o n *.*
^ r \ r r : z : r : : :: «-
; T s in the c " y of St. Louis and particularly to ^segregate schools in the Cr » including the predominantly
Tite5 srhodr in noth St. Louis and the predominantly black
schools in north St. Louis.
II.
The scope of remedy available once a constitutional viola
tion has fOUn ̂ he*n9tlb*tn ^ U” .edribtv Board of Education
supreme ? ™ o s424, 49 L.Ed.2d 599 (1976), in which theV. spangle_r_» 427 U.S.
Court speaking through Justice Rehnquist statedc
- 76
[I] n Swann the Court ®*^ti5>r*^ts«hâ ey0na which a recognized that there .re ^ ^ i s ^ n t l e a dual
court may not go in seeki g ^ L>Ed#2d 5 5 4 , 91 S
school system. !*•' •* ‘ A part tied to the Ct 1267. These limits at® 8£hool authorities
necessity of eSta^ ® £ 9caused unconstitutional
have in some n'ann®r .. a constitutionalsegregation, for 1*1 basis for judiciallyviolation there would be no * 3a racialordering assignment of student
basis." Ibid.
427 O.S. at 4 3 4 The t ^ showing that the poet-
ssiae, the Court finding that the ^ ,chools was ciUsed
1971 changes in,the racia ^ ^ defendants, pointing to
o£ Tasadena.s residential patterns.
427 U.S. 435-36.
The principles ^ M I K (»7«>. The
S t S the5 - e t decision in
418 717 ,1,74) < M « ^ f l r a l courts to re
limitation on the reme P ^ ,tate government, and
structure the opera ion ■ d only on the basis of
explained that that power ™ at 293, 47
constitutional violation. Hills, s^L_,
L.Ed.2d at 801. The Court stated tha
[o] nee a constitutional taVlor "the scope of
federal court is‘ re*ux.reda°ure and extent of the the remedy" to fit the ̂ t^ MiUiken# there was
constitutional vlolati.°. ’tional action on the part no finding of unconstitutiona fficials and no
S U ? t ,r . t i « S ‘ the^iolaaons commit^^ n the
significant^ S S ^ ^ ̂ (Citations omitted.)
77
425 U.S. at 293-94.
. un liken I in detail as we
" “ “ “
I are as follows:
j __i \oie consistently
The contr° K1\IJ?inasPis that the scope of the
expounded in our .holdl£g s nature and extent of
su?- js g
^rlSrifc^ssrgHremedy, it must nrst within one district
a constitutional segregative effect in
that produces a Big5iirifically» it ®uSt be shown another district. Specifically he state orthat racially discriminatory acts ^ g.ngle g x
local school dlS>li:A1nctS; substantial cause of district have teein ThuS ftn interdistrict
interdistrict ^ iJ ^der where the racially remedy might be in or BOre school
discriminatory ®ctSial segregation in an ad3a£®^ districts caused racial « e g w lines have been
district, or where the basis of race. Irl.SUŵ deliberately drawn or‘ rict remedy would becircumstances an ttt interdistr ict
appropriate to _d by the constitutional
segregation directly without an interdistrict
violation. Conversely .^t^fEelt, there U no
violation and lnt« d callin tor an Interdistrict constitutional wrong c a m g
remedy.
418 U.S. at 744-45.
--_a.lv in r.pneral Building.
The Supreme Court more 0 s> ____ , _____, 102
Cont£actors__Ass^n_jL:— judicial remedial powers
.*b. exercised only on the basis of •
Of the federal court can ̂ extend no farther than
violation of the law an • * of . . . [the] violation."
required by the nature and exten
- 78
From this discussion it is apparent that the issue before
this Court is what measures are tailored to fit the scope and
nature of the State’s constitutional violation. As we have aeen,
that constitutional violation is at most intradistrict in nature
and, specifically, the failure to take measures to desegregate
the St. Louis school system, particularly the north and south
sides of that system. There is no hint of a finding that there
was an interdistrict effect flowing from this intradistrict vio
lation .
Under these principles the intradistrict violations found
are insufficient to require the interdistrict remedy agreed to by
all of the parties except the State of Missouri, and to Impose
the cost of this remedy on the State of Missouri. Because there
are no findings by the district court as to the extent of the
remedy required, this Court should not give its approval to a
settlement placing substantial funding responsibility on the
State of Missouri.
The Supreme Court in Bills concluded that selection of sites
for public housing in the City of Chicago by HUD justified a
remedy beyond the City of Chicago's territorial boundaries. The
reasons for the conclusion were discussed as follows:
Here the wrong committed by HUDeon fined the
respondents to segregated public . th
relevant geographic area for purposes o *jj*
respondents' housing options is ‘h« Chi=?f° housing market, not the Chicago city limiK? An order against HUD and cha
regulating* ’their conduct in themetropolitan area will do no more than take into
account HUD’s expert determination
relevant to the respondents’ housing opportuniti
and will thus be wholly commensurate with the
•nature and extent of the constitutional vio
lation." (citation omitted.)
425 U.S. at 299-300.
79
BtU3 does not justify the conclusion reeched by this
Court. In Hills HUD hed made sn expert determination that the
Chicago area and not simply the City of Chicago -as the relevant
area. The wrongful act of HUD was confining the respondents to
segregated public housing. We have no record in this case that
the State of Missouri confined black students to the City of St.
Louis as opposed to the county nor that the State had conceded
the city and county to be the relevant area in issue. We have no
finding that any of the intradistrict violations of the State
which occurred within the City of St. Louis had any relationship
to the county, or conversely that any acts of the State that may
have been of an interdistrict nature affected the City. In Hills
the particular facts pointed to the nature of the constitutional
violation and a remedy in the larger area. HUls cannot support
the interdistrict remedy approved by the Court today. The dis
trict court has made no findings in a vein similar to Hills and
the Court in its opinion has reached no conclusions similar to
those in Hills except the unsupported assertion that Hills justi-
fies the remedy.
III.
The Court today bases its approval of the interdistrict
transfers on the questionable ground that this issue has been
previously decided. The Court's earlier decisions, in which we
have discussed the nature of the constitutional violation, do not
support its conclusion.
Liddell III, supra, 667 F.2d 643, dealt with the earlier
order of the district court relating to a voluntary cooperative
plan of pupil exchanges between the city and county (12(a)), a
merger and full desegregation of the separate vocational educa
tional programs in the county and city (12(b)), and development
and submission of *a suggested plan of interdistrlct .sc oo
desegregation necessary to eradicate the remaining vestiges of
government-imposed school segregation in the City of St. ouis
- 80
and St. Louis County.- *67 F.2d .t 650-51. The Court, with
respect to para9r.ph 12(e). specifically states. Mblec.use the
plan is to be voluntary, no question is raised about whether the
district court will be able to enforce the plan once it is drawn
up.- 667 F. 2d at 651. Paragraph 12(b), relating to vocational
education, was based upon a specific finding of the district
court that a separate special district for vocational education
was part of the State's failure to take affirmative steps o
eradicate the dual system it had formally mandated, and was
designed to remedy this violation.
Paragraph 12(c) in Liddell III relates to a suggested feasi
bility study and goes no farther. It recognised that to the
extent that segregation was imposed by county school districts,
not parties to the lawsuit and not designated as constitutional
violators, it could not be considered as government-imposed. To
the extent of any segregation imposed by the State or other
defendants -and to the extent those defendants have the power to
remedy the violation, it is proper for the district court to
order them to take steps to do so.- 667 P.2d at 651 The
court's opinion, however, cited no finding and made no conclusion
that city-county interdistrict segregation was imposed by the
State or the City Board. Later in the opinion, the Court speci-
fically referred to the apportionment of costs in Adams. ----- e—
in, 667 F. 2d at 654. In discussing apportionment of costs, the
Court mentioned specifically the segregation existing ’in the St.
Louis school system.- These statements but reinforce the Courts
reliance on the intradistrict violation as the basis forits
action. The Court today gives an overly broad reading of Liddell
III .
in Liddell V , 677 F.2d 626, the Court recognised that Adams
held that the State had contributed to the segregation -of the
public schools of the City of St. Louis.- Citing Hills, JHEIi,
it then concluded that paragraph 12(a) relating to voluntary
interdistrict transfers is entirely enforceable against the State
- 8 1
defendant and that the State can be required to take actions that
will further the desegregation of the city schools, even if the
actions required will occur outside ..the boundaries of the city
school district. As we have seen, the Court in Liddell III fc V
did not attempt to identify a type of constitutional violation
similar to that in Hills, in which actions had confined a certain
group of persons to one portion of the area in question, or to
demonstrate a finding, concession or conclusion that the city-
county area should be considered as one. The Court was consider
ing only "a modest beginning toward voluntary interdistrict
desegregation." The Court concluded in Liddell V that the State
and the city school board must take action to eradicate the
remaining vestiges of government-imposed school segregation in
the city schools. The Court's references to "actions which may
involve the voluntary participation of the suburban schools" and,
specifically, to "requir[ing] the state to provide additional
incentives for voluntary interdistrict transfer," 677 F.2d at
641-42, were given by way of example only. The tentative
suggestion that the State provide "additional incentives" is far
from a conclusion that the State be required to fund a voluntary
interdistrict transfer plan in which it was not a consenting
party. These suggestions were made with reference to the 12(c)
hearings which it suggested go forward, and which specifically
related to development of a feasibility plan for overall inte
gration. The interdistrict liability proceedings were to await
this development. 677 F.2d at 642. The Court today has engaged
in a massive bootstrapping effort to find that Liddell III or
Liddell V has established the liability of the State for the
interdistrict transfer plan.
The Court declares that we are bound by our previous hold
ings as to interdistrict transfers. The law of the case
doctrine, however, applies with less force to prior decisions of
a panel. Van Gemmert v. Boeing Co., 590 F.2d 433, 436-37 n.9 (2d
Cir. 1978); aff'd. 444 U.S. 472 (1980); 18 C. Wright, A. Miller &
E. Cooper, Federal Practice and Procedure S 4478 at 796-97.
82
Resting as it does on the precarious comparison with Hills, even
if the issue were firmly established by Liddell V, the Court en
banc should attempt to decide the case correctly rather than
consistently. See Robbins, et al v. Prosser’s Moving t Storafle
Co,, 700 F.2d 433, 438 (8th Cir. 1983); Pnited States v. Unger,
700 F. 2d 445, 450 n.10 (8th Cir. 1983); Wrist-Rocket
Manufacturing Co. v. Saunders Archery Co^, 578 F.2d 727, 730 (8th
Cir. 1978).
IV.
The State was ordered to match funds raised in a bond issue
submitted to the voters by the City Board for capital improve
ments. The issue failed and this Court’s order rather hastily
approves the summary treatment of the district court with respect
to this issue.
The laws of Missouri place the responsibility for main
tenance of the schools’ physical plant on the City Board of
Education. Mo. Rev. Stat. S 177.031 (1984). This Court in its
opinion correctly describes the age, deterioration and deferred
maintenance of the plant. In twenty-four years thirteen bond
issues have been defeated and one in 1962 approved only after
resubmission. The last two bond issues were approved by a simple
majority but the constitutional requirement of two-thirds voter
approval has blocked passage of these issues.
There is no finding in the district court order and no
conclusion by this Court that the condition of the physical plant
of the St. Louis schools is related in any way to the
constitutional violations of either the City Board or the
State. There is nothing to suggest that the condition is other
than purely and simply the result of the neglect of the City
Board to fulfill its responsibilities. To order the State to pay
half of this expense is to require a remedy beyond the
constitutional wrong that has been found, which violates the
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abolished, but specifically left the manner of levy and the
amount and the mean, of collection to procedures under state law
and standards. See also Plaquemines Parish School Board
nnited States. 415 F.2d 817 (Sth Cir. 1869). 0“' *“ “ er
decision in nnited States v. Missouri. 515 F.2d 13*5 (8th r.
1975), cert, denied sub, nom. Ferguson Keorqanl.ed School
ni.trict v. nnited States. 423 H.S. 951, 96 S.Ct. 374, 46 L.Ed.2d
288 (1975), simply permitted the tax levy to be established at
the highest rate approved by voters in the largest district.
I have no quarrel with the proposition that, with proper
findings that particular programs are necessary to remedy a con
stitutional violation that has been found to exist, a district
court has the power to order the funding of those programs. The
order should simply be in the form, however, to mandate that
certain programs be carried out, and legislative bodies should be
left with the responsibility for structuring the local or state
taxing instrumentalities to achieve the result required. The
federal courts go too far in mandating specific taxing pro
cedures. I thus agree with the Court today only insofar as it
mentions the option of the district court to simply enter a Judg
ment against the State, as tortfeasor, for the amount required to
fund those programs necessary to remedy the constitutional vio a-
tion.
VI.
The disagreement expressed with respect to the Court's opin
ion today is specifically limited to those areas set forth
above. The programs required by the settlement plan within t e
city' school district, and particularly within the all-black
schools, to provide a quality education for those students
deprived of proper educational opportunities by the segregative
actions of defendants, and the enhancement and enrichment pro
grams are fully Justified by this Court's earlier findings of
intradistrict violation. The magnet school, and integrative
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i
programs within the City of St. Louis are similarly geared to the
particular violations that were found to have occult'd. u ,
the opinion of the Court in III. IV (A) and (B) approved programs
that are justified hy the record before the dUttiot court and
this Court, and I join the Court in these portion, of its
opinion. The ruling on other issues in VII (A), (B) snd (C) are
properly reached.
The settlement plan is an inspired and far reaching one. I
express my disagreement today only insofar as the State s
required to fund a portion of this program that has been the
subject of agreement by other parties and not the State, where
there are no findings that those portions of the program are
necessary to remedy the intradistrict constitutional violation
that has been found. Even if the Court were to hold today in
accordance with my views I believe that a settlement would never
theless be achieved. The county school districts profit
immeasurably by the settlement agreement, as near y a
funding obligation is placed upon the State and they are relieved
of the risk of being found to have in any way contributed to a y
interdistrict segregation. The State has further incentive to
reach settlement as to these issues, and properly should be
allowed to have a voice in the extent of the programs to be
funded, because such a great portion of the expenses must be
borne by the State.
BOWMAN, Circuit Judge, dissenting.
I join in Judge John R. Gibson's well-reasoned dissent con
cerning the lack of findings to support the interdistrict aspects
of the remedy, the lack of findings to support the t«qvirem.nt
that the State provide funding for capital Improvements in the
S . i - 1 Plant Of the City schools, and the singular
prlateness in our Constitutional system of a ~
ordering state and local taxing authorities to impose specif
tax increases. His opinion adequately reflects my dlsagreeme
- 86
with the decision of the Court in . 1 1 three of those . r e . . . I
cannot agree, however, t h .t the remaining i n t r . d l . t r i c t . .p e c ts
of the remedy .pproved by the Court .r e j u s t i f i e d by adequate
findings, and for that reason I dissent separately.
The issue in this case is not whether quality education is a
good thing, or whether it would be wise public policy for the
State to dedicate more of its resources to the public schoo s.
instead, the issue is whether, on the present record, we have the
Constitutional authority to compel the State to provide funding
for the array of costly programs required by the settlemen
plan. I submit that we do not.
The costs of carrying out the plan that the Court today
approves will be enormous. For the 1984-85 year alone the
State's share of these costs is likely to exceed 849,000.000,
with the City school board contributing additional funds o
approximately $15,000,000. These costs, and particularly the
State's share, -ill increase very substantially in future years
as the pace of implementation quickens. If these costs are
necessary to remedy a Constitutional violation, then they must be
borne by the responsible parties-and ultimately by the citixens
of the State-no matter how financially painful compliance may
be But if these costs go beyond what is needed to right a
constitutional wrong, if in fact the plan Includes
amenities that may be laudable from an educational st.ndpoin,t
are not tailored to the incremental segregative effects that ha
been caused by the Constitutional violation, then the effect of
the Court's decision is to transfer, without any basis in law or
the Constitution, funds from taxpayers or other compe ing
programs (including other needy school districts, to the bene
ficiaries of this plan. Our problem as a reviewing cour 3
. the record gives us no ba.i. for an intelligent and Principle*
determination of the critical question in this case. on
' side of the line— Constitutional necessity or judicial excur.Un
into policy-making and educational exper imentatlon-do
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various components of the plan approved by the district court
fall?1
We do not have before us a desegregation plan fashioned by
the district court after careful findings of fact of the in
required by the Supreme Court in Dayton Bd. of Bduc. v. Br ntgan.
4 3 3 - o . s . 406 , 417, 420 ( 1 9 7 7 ) . Rather, what we have before us
is a desegregation plan fashioned by agreement of the City ec 0 0
board, the suburban school boards, and the plaintiffs. T
State, which must bear the brunt of the costs, is not a
the agreement. Over the objections of the State, the
court has adopted the agreement or plan, end it has done . 0 with
out inquiring into the continuing effects of the Constitutional
violation and the need for the various programs included in
plan to remedy those continuing effects.
1* few examples will serve to “ A ^ n V o^ doUafs^for such
plan approved by the Court inc 1“J3e_d '‘kindergartens, schools of
things as p m a g n e t ’ schools) , parental emphasis (which are in ad<iitio ^ magnet school component,
involvement, and Saturday c *. over $ 2 2 , 0 0 0 , 0 0 0 during the
as presently structured, wi ^ 1084-85 alone, the plan would
plan’s first two years. D u r <3eSi<fnatea -Coordination of provide $ 1 , 7 6 2 , 0 0 0 for « item * * £ * * “ •* lt was even
Instruction”— whatever *hat *fy aade the subject of fact-mentioned, much less dl*^us ducted by the district court, and finding, during the hea“ ̂ , the plan's specific items,the same is true °f virtually -curriculum Development,"Substantial funding ls - -^le model experiences,"-Peer Tutoring," "Shared Motivat °„ *>le wog unit>.
and "Strengthen the capabilitieis o putports to "ensure
The capital improvements section < and supports the in- a learning environment which cop ootimizes the learning
structional program in a manner jfJLCA 0?? 5ho drafted the plan
process." While the P ^ * / that wayweshou?d not be forgiven
may be forgiven for siting that y» without first insisting
if we allow this .pi?n A ?he 1 manner the Constitution requires.
Because^ •*? of ^ X t U ^ l y ^ t a b ^ w ^ f - C f SM ^ f t U i V e ^ . d e d to ̂ remedy tbe
Constitutional violation.
88
In considering the proposed plan. the district « Urt «r.ly
. ... . h.arinq to determine whether the proposed settlement
M a n " U £*ir‘ reasonable. snd edegu.te for the resolution of th*
?„*> interdistrict _phaset of this school
the district court*s ingulr, ~
- e then the inquiry 'sction'should be
to determine whether e •« on the mterdistrict
setisfectory in terms of the Pule ll consideretions se ^ r ^ ^
Rni^p of Pancakes, 513 r.iQ '
SZ2U3- ' - ™ 1 HOU s" 7 ^ - ^ 7 , end in Professor Moore's dis- rprt. denied, 423 U.s. ot>t \ i onrjn
- — nf~ le 23, 38 Moore's Federal Practice 1 23.8014] at
23-521 through1 23-524, and giving a few obligatory bows to the
Constitution^ in language wholly conclusory.^e
approved the plan and ordered all signs ^ 567
State defendants, to comply with all
F. Supp. at 1042, 1055.
The district court's approach and its
inadequate to provide that this Court
order and the itutional violation that has been found
today r ? : r tc - s : r d and the state2 would justify
against the City u n ltarv school system within the City
requiring them to crest* a uni y judicially-compelled
school district, b\ \ l \ T . L *^existed even if d.
creation of a sys e , . the city schools.
segregation never had been ^ h e reme'dy J a school
As the Supreme Court has made clear,
2As Part I. of Judge uJrehnofR the * Constit u UonaV % io?ation demonstrates, the exact nature of c deter»ined. I agree,
previously found in this . t the violation found on the parthowever, with his concision that the # u failure to take
adequate *Vteps #to°deseg^egate* the schools throughout the City.
89
desegregation ««Jhoald^re.tore^. ̂ ^ ocoupled m the
ej v̂ -
280 (1977) ( C i t a t i o n o m i t t e d ) a u t „ d the
D a y t o n . J B U ' t h « S u p t e "' . t h . t ‘ . S e the C o u r t w a s d e . 1 -
l i m i t s of o u r a u t h o r ity--P a m . 5 i t u a t i o n w h e r e O e j u g .
l n g , as we c e a s e d . a n y y e a r s ago.
; r i : : n nh e ° C o u r t , c o n s t i t u t i o n a l v i o l a t i o n s a r e f o u n d , t h e n
„ . (r, the f i r s t i n s t a n c e ,[T]he D i s t r i c t C o u r C o u r t of A p p e a l s , roust
s u b j e c t to r e v i e w by t h e ^ “ " s e g r e g a t i v e e f f e c t
d e t e r m i n e h o w rouch inc r a c ia i d i s t r i b u t i o n of
t h e s e v i o l a t i o n s h a d o n U » w » M p r e s e n t l y
the D a y t o n s c h o o l F » P i b u t i o n is c o m p a r e d to
constituted, w h e n h<apn <n the a b s e n c e of s u c h
what it w o u l d have\ . T h e r e m e d y m u s t be
c o n s t i t u t i o n a l vi . . ’d i f f e r e n c e , a n d o n l y if
t h e J r h t s t0b e e n d r s y s t r i d e i m p a c t m a y t h e r e be a
s y s t e m w i d e remedy.
W e r e a l i z e t h a t ,t h i s * V e V i e w i n g 'court to
t h a t it is rouch e a S i e r f ° r 8 u c h as ' c u m u l a t i v e
f a u l t a m b i g u o u s phr<*se t®he f i n d e r of fact to
v i o l a t i o n 1 t h a n 1 _ ^ d e t e r m i n a t i o n s in the
m a k e the c o m p l e x * a^ a . t h a t is w h a t the
f i r s t i n s t a n c e . " o n ' ^ ' s c a ll for, a n d t h a t is
C o n s t i t u t i o n an d ou r c a s e s c
w h a t roust be d o n e in t h i s c a se.
i n n at 420 (citation omitted).D a y t o n , 433 U.S. ar \
in the c a s e n o w before us, t h e " ̂ o' * the
d e t e r m i n e the incremental th e defendants or to c o m -
Constitutional v i o l a t i o n c o m m to what ft w o u l d h a v e
pare the present C i t y 8 c h o ° * P ° P b e e n ^ tailoring of the
been absent a violation. » « • * “ . t e £ t r r e d to in Dayton or
order to redress o n l y ‘that ^ t h e p o s i t i o n t h e y
to r e s t o r e s t u d e n t s in o £ B u c h c o n d u c t * as r e q u i r e d
w o u l d h a v e o c c u p i e d in t h e a b
by Millikan II•
- 90
\The district court's failure to conduct a Dayton-type in
quiry and to make findings on incremental segregative effects has
rendered it impossible for this Court properly to review the
district court's order. This failure has left us without any
measuring stick by which we can assess the various components of
the settlement plan. The opinion of the Court implicitly recog
nizes this difficulty when, in searching for some standard to
guide its review of certain of the compensatory and remedial
programs approved by the district court, the Court resorts to a
school classification device— Class AAA status— developed by the
State's Department of Education as a means of rating schools, and
approves programs necessary to permit the City schools to regain
and retain their Class AAA status. Although the Court's need to
find a standard to which it can repair is understandable, I do
not believe that the approach taken is sound. There has been no
showing of any kind that in the absence of the defendants'
Constitutional violation the City schools would have maintained
Class AAA status. Thousands of Missouri school children, over
one—quarter of the total number, attend schools that lack Class
AAA status. That fact alone, when coupled with the recent resto
ration of the City schools to Class AAA status, casts consider
able doubt on the proposition that any educational problems that
may exist within the City schools are of unusual severity or that
they rise to a level of Constitutional concern. In any event, we
cannot simply make assumptions about the continuing harms that
have flowed from the violation; rather, these harms must be
determined by the kind of fact-finding by the district court and
review by this Court that Dayton mandates.
The process by which the settlement plan came into being
underscores the need for careful fact-finding before imposing the
plan and its burdensome costs upon the State. In the first
place, it would be a most remarkable coincidence if a plan in
tended to settle the broad interdistrict claims in this case was
at the same time properly tailored to cure only the effects of
the intradistrict violation. Moreover, it must be remembered
*
- 91 -
that the negotiations «
State, at leest *'“ £ * ‘ 'hat it could not agree to a plan of
become apparent “ *h« ‘“ “ J ^ ^ detetBinea to
the scope and cost t ^ conditioned upon compulsory
achieve. The P a > u the participating school dis-
funding from the State, benefits None of them had any
tacts stood t o “ -cm ^
real incentive to pre benefit their school
high with programs and funds that ̂ woul ^ ^ ^
systems. As might be expe » attempt to measure the
parties to the on which the
incremental segrega 1 ĥnse effects. Such negotiations
Pl- CeStS t°; narrowly tailored to
are inherently unlike y rtr*sent-day educational defi-r r r s =,r z =
fact-finding, is especially cntica
3The looseness, vagueness, ^
emphasized by one of the
district courts
in nearly every p r o g r a m ^
one can point r^t consistent with thebudget items which a . th the planning as isdescriptor certainly not with andP I would not
in the case of »any . * Stances until all thoseapprove it under any circumsta^ ^ clear what was
points were clarified, lt cf the expenditure
er teen1tv1edlyC°:Ci- e 4
ptograms°In iWZthafJeV would’he rendered
In poorer shape than t ey • : pederal
Testimony of Otis Baker, Coordinator t of Elementary
Programs, Division of Instruction, S t a t e ^ p ^ „eatln, p 16 9 .
and Secondary Education* £_s’ate "expert" presented y
^ e 8 ^ u e 8 } tnea8# 40 ou
- 92 -
above I would reverie the judgment For the reasons eta tea aDove, iFor tne re* the district court
of the district court and remand the ca
for further proceedings consistent with this opinion. l
nope, of course, that the parties could resume their negotiate
and achieve a settlement agreement to which all could ..sen .
V
A true copy
Attest:
CLERK U. S. COURT OF APPEALS, EIGHTH CIRCUIT,
proponents of the plan, ^ V ' ^ o t ^ w f t h e r ! school system in
that to her knowledge there is n Comr>onents that are included
the United States that has all the Vont.ln.d in the
within the quality «duc.atlon Carol Gibson, Director of
settlement plan. T.fS t Tr of Fairness Hearing, p. 1-Education, Nat io n a l Urban League Tr.c^ a rn following
195. one of the ? hPe ° X l i ty educat'on improvements portionobservation concerning the quality
of the plan:
This whole section of the proposal lTOksto
s-.of expenses they can dream up well remember
?heir°earliere|ttem|t to have geMtal^maintenance
expenses fTmp^lementtng ‘the 12(a) plan now in
e f f ec t.
Testimony of Shannon K. S c h o o l ! * Tr ̂ o f * Fairness%ear ing* Association for Neighborhood Schools. Tr.
p. 3-49, 50.
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