Jenkins v. Missouri Brief of Appellant Kansas City, MO School District

    In  T he

Ittttvb ( ta r t of Appeals
F or the  E ighth  Circuit

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

Kalima J e n k in s , et a l ,
Appellants,

v.

State of Missouri, et a l ,
Appellees.

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

Honorable Russell G. Clark, Chief Judge

BRIEF OF APPELLANT  
KANSAS CITY, MISSOURI SCHOOL DISTRICT

James Borthwick 
Shirley W. Keeler 
Blackwell, Sanders, Matheny, 

Weary & Lombardi 
Five Crown Center 
2480 Pershing Road 
Kansas City, Missouri 64108 
(816) 474-5700

David S. Tatel 
Allen R, Snyder 
Elliot M. Mincberg 
Patricia A. Brannan 
Hogan & Hartson 
815 Connecticut Ave,, N.W. 
Washington, D.C. 20006 
(202) 331-4500 
Attorneys for Appellant 

Kansas City, Missouri 
School District

W i l s o n  - E p e s  p r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , d . c . 2 0 0 0 1



SUMMARY AND REQUEST FOR ORAL ARGUMENT

The court below correctly found that the State of Mis­
souri created a racially dual system of schools and hous­
ing in the Kansas City area before the Supreme Court’s 
decision in Brown v. Board of Education, 347 U.S. 483 
(1954), and that vestiges of the dual system persist to­
day. The court erred, however, in failing to order inter­
district relief despite the interdistrict nature of the 
State’s violations.

State law prior to 1954 required schools to be racially 
segregated and established a separate black school sys­
tem which operated on an area-wide basis, without re­
gard to school district boundaries. Pursuant to these; 
State laws, black children who lived in the many sub­
urban school districts (“SSDs”) that had no black schools 
had to travel to other districts, usually the Kansas City, 
Missouri School District (“KCMSD”), over long distances 
at great personal hardship to attend school. This inter­
district transfer system and other State discriminatory 
practices, such as State enforcement of racially restric­
tive covenants, channeled black families to KCMSD and 
discouraged them from living in SSDs. As a result, by 
1954, 98% of all black school children in the area at­
tended KCMSD, while the SSDs, which once had black 
communities, had become virtually all white.

After Brown, the State did nothing to fulfill its consti­
tutional obligation to dismantle the area-wide racially 
dual system it created. Area school districts thus remain 
racially identifiable today. The remedy approved by the 
District Court will not correct this vestige of the dual 
system. The court below rejected a metropolitan school 
district consolidation plan proposed by KCMSD which 
would have eliminated all vestiges of the dual system. 
The court did so because it concluded that the SSDs had 
not committed independent, intentional interdistrict vio­
lations. This ruling disregards decisions of the Supreme

(i)



11

Court and this Circuit which hold that suburban districts 
can be included in a metropolitan remedy where they 
participated in and were affected by the State’s interdis­
trict violations.

Because of the importance of these issues, Appellant 
KCMSD requests 45 minutes for its oral argument.



TABLE OF CONTENTS
Page

SUMMARY AND REQUEST FOR ORAL ARGU­
MENT .................... ................................... ............  i

TABLE OF AUTHORITIES ...... .......................... . v

PRELIMINARY STATEMENT _______ _________ ix

STATEMENT OF THE ISSUES... ___________  x

STATEMENT OF THE CASE ................................ . 1
A. The Racially Dual Metropolitan System of Edu­

cation in the Kansas City Area Prior to 1954.... 1
B. Failure to Dismantle the Metropolitan-Wide

Dual System After 1954 ____ __ _________  12
C. Procedural History of This Litigation ................ 16

SUMMARY OF ARGUMENT .... .............................. 20

ARGUMENT ______ ________ _________ ________  22
I. THE DISTRICT COURT’S REJECTION OF

INTERDISTRICT RELIEF AND DISMISSAL 
OF THE SUBURBAN SCHOOL DISTRICT 
DEFENDANTS WAS BASED ON THE ER­
RONEOUS LEGAL CONCLUSION THAT IN­
TERDISTRICT RELIEF REQUIRES PROOF 
OF INDEPENDENT CONSTITUTIONAL 
VIOLATIONS BY EACH AND EVERY SUB­
URBAN DISTRICT PARTICIPATING IN 
AND AFFECTED BY THE STATE’S INTER­
DISTRICT CONSITUTIONAL VIOLATIONS.. 22

II. WHEN REVIEWED UNDER THE PROPER 
LEGAL STANDARDS, THE EVIDENCE AND 
FINDINGS CONCERNING THE STATE’S 
CONSTITUTIONAL VIOLATIONS MAN­
DATE INTERDISTRICT RELIEF.....______  28

(iii)



IV

A. The Evidence and Findings Below Estab­
lished that the State of Missouri Created 
and Maintained a Metropolitan-Wide Dual 
School System in the Kansas City Area___  30

B. Because the State of Missouri Has Failed to 
Fulfill Its Affirmative Duty to Dismantle Its 
Pre-1954 Metropolitan-Wide Dual School Sys­
tem, and Because the Vestiges of that Sys­
tem Will Remain After Implementation of 
the District Court’s Remedial Order, It Was 
Error for the District Court to Rej ect Inter­

TABLE OF CONTENTS—Continued
Page

district Relief __ ____________ - ....- ...... 40
III. KCMSD HAS STANDING TO BRING THIS 

ACTION AS A PARTY PLAINTIFF AND 
SHOULD NOT HAVE BEEN REALIGNED 
AS A DEFENDANT___ ___ ___________ 44

CONCLUSION _______ _____ ________ ____- ....-....  49



V

TABLE OF AUTHORITIES
Cases Page

Adams v. United States, 620 F.2d 1277 (8th Cir.)
(en banc), cert, denied, 449 U.S. 826 (1980)....-passim 

Akron Board of Education v. State Board of Edu­
cation of Ohio, 490 F.2d 1285 (6th Cir.), cert.
denied, 417 U.S. 932 (1974)...........................xi, 46-47

Board of Education v. Allen, 392 U.S. 236 (1968).. 46
Board of School Directors of Milwaukee v. Wiscon­

sin, No. 84-C-877 (E.D. Wis. Apr. 29, 1985) ....44-45, 46 
Bradley v. School Board of Richmond, No. 3353-R

(E.D. Va. Aug. 31, 1984) ............. ..................  46
Bradley v. School Board of Richmond, 338 F.

Supp. 67 (E.D. Va.), rev’d on other grounds,
462 F.2d 1058 (4th Cir. 1972), aff’d by equally 
divided court, 412 U.S. 92 (1973) (per curiam).. 46

Brewer v. Hoxie School District No. 46, 238 F.2d
91 (8th Cir. 1956) ........... ....................... xi, 45, 46, 47

Brown v. Board of Education, 349 U.S. 294
(1955) ____________ __________ ___ - ...... 12

Brown v. Board of Education, 347 U.S. 483
(1954) ...................... ............................... ......... passim

Cape Girardeau School District No. 63 v. Frye,
225 S.W.2d 484 (Mo. App. 1949) .............. . 27

Columbus Board of Education v. Peniclc, 443 U.S.
449 (1979) ............... .............................. ........ 22, 40

Cooper v. Aaron, 358 U.S. 1 (1958).................. . 22
Davis v. Board of School Commissioners, 402 U.S.

33 (1971) ................... .....................................  43
Dayton Board of Education v. Brinkman, 443 U.S.

526 (1979) ....................................................40, 41, 43
Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978) .................... 47
Evans v. Buchanan, 393 F. Supp. 428 (D. Del.),

aff’d, 423 U.S. 963 (1975) .......... ..............x, 26, 32, 34
Green v. County School Board, 391 U.S. 430

(1968)......................................................... 22, 40, 44
Haney v. County Board of Education of Sevier 

County, Arkansas, 410 F.2d 920 (8th Cir.
1969) ......... .... ............. ......................... ......... 27,31



VI

TABLE OF AUTHORITIES—Continued
Page

Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir.),
cert, denied, 459 U.S. 824 (1982) ....................  26

Keyes v. School District No. 1, 413 U.S. 189
(1973) ............................... ...............................  32,43

Larson v. Valente, 456 U.S. 228 (1982)...............~ 47
Lee v. Lee County Board of Education, 639 F.2d

1243 (5th Cir. 1981) .....„................. ................  28
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert.

denied, 105 S. Ct. 82 (1984)____ ____ _____ 36
Liddell v. Board of Education of St. Louis, 677 

F.2d 626 (8th Cir.), cert, denied, 459 U.S. 877
(1982) .......... ........... ...................... .................  22

Liddell v. Board of Education of St. Louis, 667 
F.2d 643 (8th Cir.), cert, denied, 454 U.S. 1081
(1981) ....... ........................... ............... ............  23-24

Liddell v. Board of Education of St. Louis, No.
72-100C (4) (E.D. Mo. Sept. 24, 1981) ..............  46

Little Rock School District v. Pulaski County 
School District No. 1, 584 F. Supp. 328 (E.D.
Ark. 1984), appeal pending, No. 85-1078-FA
(8th Cir.) .............. ............. ............................  xi, 46

Milliken v. Bradley, 433 U.S. 267 (1977)............... 36, 46
Millikenv. Bradley, 418 U.S. 717 (1974) ________passim
Morrilton School District No. 32 v. United States,

606 F.2d 222 (8th Cir. 1979) (en banc), cert.
denied, 444 U.S. 1071 (1980) ..................... x, 24, 27, 31

Newburg Area Council, Inc. v. Board of Educa­
tion of Louisville, Kentucky, 510 F.2d 1358 (6th 
Cir. 1974), cert, denied, 421 U.S. 931 (1975) ....x, 31-32 

Pierce v. Society of Sisters, 268 U.S. 510 (1925).... 45
Regents of the University of Minnesota v. Na­

tional Collegiate Athletic Association, 560 F.2d
352 (8th Cir. 1977) ......................... .................  45

Shelley v. Kraemer, 334 U.S. 1 (1948) ................  9, 33
Simon v. Eastern Kentucky Welfare Rights Or­

ganization, 426 U.S. 26 (1976)_______ ____ _ 47
Singleton v. Wulff, 428 U.S. 106 (1976) .............. 48
State v. County Court, 311 Mo. 167, 277 S.W. 934

(1925) ____ _________  4



V l l

State ex rel. Morehead v. Cartivright, 122 Mo.
App. 257, 99 S.W. 48 (1907) ................ ....... 4

Swann v. Charlotte-MecJclenburg Board of Educa­
tion, 402 U.S. 1 (1971) ...... ............... ..............passim

Taylor v. Ouachita Parish School Board, 648 F.2d
959 (5th Cir. 1981)........ .... .............................. 28

United States v. Board of School Commissioners 
of Indianapolis, Indiana, 637 F.2d 1101 (7th
Cir.), cert, denied, 449 U.S. 838 (1980)..... .....  34

United States v. Board of School Commissioners 
of Indianapolis, Indiana, 573 F.2d 400 (7th
Cir.), cert, denied, 439 U.S. 824 (1978).......... x, 25, 26

United States v. Missouri, 363 F. Supp. 739 (E.D.
Mo. 1973), aff’d in relevant part, 515 F.2d 1365
(8th Cir.), cert, denied, 423 U.S. 951 (1975)..... 22, 32

United States v. Missouri, 515 F.2d 1365 (8th
Cir.), cert, denied, 423 U.S. 951 (1975)....x, 25, 27, 31

United States v. Texas, 321 F. Supp. 1043 (E.D.
Tex. 1970), aff’d in relevant part, 447 F.2d 441 
(5th Cir. 1971), cert, denied, 404 U.S. 1016
(1972) ............. ..................................................  x, 31

Valley Forge Christian College v. Americans 
United for Separation of Church and State, Inc.,
454 U.S. 464 (1982) ___ _____ ______ __ _ 48

Washington v. Seattle School District No. 1, 458
U.S. 457 (1982)___ ___ _____ __________ __  48

Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949)........... 33
Constitutions

U.S. Constitution Amendment XIV ................... 25, 27, 46
Mo. Const, of 1945 art. 9, § la ...................   2
Mo. Const, of 1875 art. 11, § 3 ...      2
Mo. Const, of 1865 art. 9, § 2 .....   2

Statutes
28 U.S.C. § 1291 (1982)..... .. .............................. . ix
28 U.S.C. § 1331 (1982)..... .. ........................ ........  ix
28 U.S.C. § 1343 (1982)____       ix
1945 Mo. Laws 1699-1700 ___________________ 3

TABLE OF AUTHORITIES—Continued
Page



VIII

1929 Mo. Laws 382-83 ............................................   3, 4
1921 Mo. Laws 611-13, 614, 626-27, 640-41...............  3, 4
1909 Mo. Laws 790-91 ................. ..... .................... 3
1897 Mo. Laws 219-20 ....... .......... .... ....................  3
1889 Mo. Laws § 8004, 226-27 ...........................    3, 4
1883 Mo. Laws 187 .............................          3, 4
1874 Mo. Laws 163-64 ... .............. .......................... 3
1868 Mo. Laws 170 ... .............. ..................... ......... 3
1865 Mo. Laws 177, 255 ..........................................  3, 6
1847 Mo. Laws 103-104...... .......... ..................... . 2

Rules
Fed. R. Civ. P. 41 (b)______ _________________  17

TABLE OF AUTHORITIES—Continued
Page



PRELIMINARY STATEMENT

1. The decisions appealed from were rendered by 
Chief Judge Russell G. Clark of the United States Dis­
trict Court for the Western District of Missouri, West­
ern Division, on October 6, 1978 (460 F. Supp. 421); 
June 5, 1984 (unreported) ; September 17, 1984 (593 
F. Supp. 1485) ; January 25, 1985 (unreported) ; and 
June 14, 1985 (unreported to date).

2. The jurisdiction of the District Court was based 
on 28 U.S.C. § 1331 (1982), because this action arises 
under the Constitution and laws of the United States, 
and 28 U.S.C. § 1343 (1982), because it seeks to redress 
the deprivation, under color of State law, of rights se­
cured by the Constitution and laws of the United States.

3. The jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. § 1291 (1982). Appellant Kansas City, 
Missouri School District filed a timely notice of appeal 
on July 23, 1985.

(ix)



X

STATEMENT OF THE ISSUES

1. Whether the District Court erred in rejecting inter- 
district desegregation relief and dismissing the suburban 
school district defendants by requiring proof of independ­
ent constitutional violations by each suburban school dis­
trict participating in and affected by the State’s inter­
district constitutional violations.

Milliken v. Bradley, 418 U.S. 717 (1974).
Morrilton School District No. 32 v. United States, 
606 F.2d 222 (8th Cir. 1979) (en banc), cert, de­
nied, 444 U.S. 1071 (1980).
Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), 
aff’d, 423 U.S. 963 (1975).
United States v. Board of School Commissioners of 
Indianapolis, Indiana, 573 F.2d 400 (7th Cir.), cert, 
denied, 439 U.S. 824 (1978).

2. Whether the District Court erred in failing to rec­
ognize that the State of Missouri’s creation, maintenance, 
and failure to dismantle its pre-1954 metropolitan-wide 
racially dual school system requires interdistrict relief.

Morrilton School District No. 32 v. United States, 
606 F.2d 222 (8th Cir. 1979) (en banc), cert, de­
nied, 444 U.S. 1071 (1980).
United States v. Missouri, 515 F.2d 1365 (8th Cir.) 
(en banc), cert, denied, 423 U.S. 951 (1975).
Newburg Area Council, Inc. v. Board of Education 
of Louisville, Kentucky, 510 F.2d 1358 (6th Cir. 
1974), cert, denied, 421 U.S. 931 (1975).
United States v. Texas, 321 F. Supp. 1043 (E.D. 
Tex. 1970), aff’d in relevant part, 447 F.2d 441 (5th 
Cir. 1971), cert, denied, 404 U.S. 1016 (1972).

3. Whether the District Court erred in dismissing 
KCMSD as a party plaintiff for lack of standing and 
realigning it as a defendant.



X I

Brewer v. Hoxie School District No. U6, 238 F.2d 91 
(8th Cir. 1956).
Akron Board of Education v. State Board of Educa­
tion of Ohio, 490 F.2d 1285 (6th Cir.), cert, denied, 
417 U.S. 932 (1974).
Little Rock School District v. Pulaski County School 
District No. 1, 584 F. Supp. 328 (E.D. Ark. 1984), 
appeal pending, No. 85-1078-EA (8th Cir.).



In  T he

HmtFii (Enurt at Amalfi
F or the  E ighth  Circuit

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

Kalima J e n k in s , et al.,
Appellants,

State op Missouri, et al.,
_______  Appellees.

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

Honorable Russell G. Clark, Chief Judge

BRIEF OF APPELLANT  
KANSAS CITY, MISSOURI SCHOOL DISTRICT

STATEMENT OF THE CASE

A. The Racially Dual Metropolitan System of Education 
in the Kansas City Area Prior to 1954.

As the court below found, the State of Missouri estab­
lished by law a racially “dual school system” in which 
“ [e]ach school district in Missouri participated” prior 
to 1954.1 In the Kansas City metropolitan area,2 the sepa­
rate school system for black children was implemented 
on an area-wide basis without regard to school district 
boundaries: black students were required to attend black

1 Jenkins v. Missouri, 593 F. Supp. 1485, 1490 (W.D. Mo. 1984) 
(“Jenkins”) .

2 For purposes of this brief, the terras “Kansas City metropolitan 
area” and “metropolitan area” refer to Jackson, Clay and Platte 
counties in Missouri.



2

schools even if those schools were in districts other than 
where the students lived. Area school districts and the 
State cooperated with each other to transfer students and 
take other necessary steps to maintain the dual system.3

The racially dual, metropolitan system had its origins 
in State law prior to the Civil War. Until 1865, as this 
Court has recognized, “Missouri prohibited the creation 
or maintenance of schools for teaching black children to 
read or write.” 4 Beginning in 1865, the Missouri legis­
lature enacted a series of statutes permitting the educa­
tion of blacks but requiring separate public schools for 
black children.5 This State-mandated segregated system 
was incorporated into the Missouri Constitution of 1945, 
which explicitly required separate schools for “white and 
colored children.” 6 State statutes requiring racial seg­
regation in the public schools were not repealed until 
1957, and school segregation “remained a part of the 
state constitution until repealed in 1976.” 7

The State itself enforced and administered the legally 
mandated racially dual system. This included a State­
wide inspector of “Negro schools,” teachers and other 
personnel who worked out of the inspector’s office and 
supervised the curriculum and other details concerning

3 See pp. 3-5, infra.
4 Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.) (en 

banc), cert, denied, 449 U.S. 826 (1980). See 1847 Mo. Laws 103. 
This statute also prohibited free blacks from settling in Missouri, 
restricted religious and other meetings by blacks, and imposed 
criminal penalties for the violation of any of its provisions. Id. 
at 104. (All State laws and constitutional provisions cited herein, 
except for current laws, are contained in Plaintiffs’ Exhibit (“PX”) 
116A.)

5 See Adams, 620 F.2d at 1280; Jenkins, 593 F. Supp. at 1460.
6 Adams, 620 F.2d at 1280; Jenkins, 593 F. Supp. at 1490. See 

Mo. Const, of 1945, art. 9, :§ la. Similar provisions were contained 
in the 1865 and 1875 Missouri Constitutions. See Mo. Const, of 1865, 
art. 9, § 2; Mo. Const, of 1875, art. 11, i §  3.

7 Adams, 620 F.2d at 1280. Accord, Jenkins, 593 F. Supp. at 1490.



3

schools maintained for black children, a statute requir­
ing the Missouri State Superintendent of Schools to es­
tablish and operate black schools where local districts 
failed to do so, and other detailed laws, regulations, and 
funding provisions for black schools.8

Pursuant to State law, the separate school system for 
blacks operated on an interdistrict basis without regard 
for school district boundaries. State law allowed a dis­
trict to maintain schools for blacks only if a certain 
minimum number of black students resided in the dis­
trict.9 10 As of 1874, State legislation mandated that ad­
joining districts with specified numbers of black students 
combine to offer joint schools for black children 19 and 
also authorized the transfer of black students to other 
districts which had schools for them.11 Missouri law also

8 See, e.g., 1921 Mo. Laws 640-41 (establishing office of “State 
Negro Inspector of Negro Schools”) ; 1874 Mo. Laws 164 (pro­
viding that State Superintendent was to establish and operate 
schools for blacks where districts failed to do so) ; Ex. K37 at 39- 
40 (1946 Report of State Superintendent of Public Schools) (dis­
cussing supervisory functions performed by “State Supervisor of 
Negro Schools” and other personnel); Transcript (“Tr.”) 14,814 
(Orfield) (discussing extensive State supervision over segregated 
system of education in Missouri prior to 1954). Excerpts from the 
testimony of Dr. Orfield, as well as Drs. Anderson, Tobin, Levine, 
Olson and Weinberg are included in the Addendum filed by Appel­
lants, at Section A.

9 This number varied over time from eight to 20. See, e.g., 1865 
Mo. Laws 177; 1868 Mo. Laws 170; 1929 Mo. Laws 382-83.

10 1874 Mo. Laws 163-64. See also 1897 Mo. Laws 219-20 (per­
mitting joinder of adjoining districts for the establishment of black 
schools if the number of black students in either or both is less 
than 25).

11 See, e.g., 1883 Mo. Laws 187; 1889 Mo. Laws § 8004; 1909 Mo. 
Laws 790-91; 1921 Mo. Laws 611-13 and 626-27; 1929 Mo. Laws 
382-83; 1945 Mo. Laws 1699-1700. See also Adams, 620 F.2d at 
1280, 1294 n.27; Jenkins, 593 F. Supp. at 1490. As of 1929, State 
legislation even permitted interdistrict transfers from districts 
which had sufficient black students to form a black school, thus per­
mitting a district to avoid creating black schools altogether even 
where the requisite number of black children lived in the district. 
See 1929 Mo. Laws 382-83.



4

required districts like KCMSD which maintained black 
schools to accept black students from other districts.12 13 
As of 1921, State statutes contained specific provisions 
for payment for interdistrict transfers of black students. 
Generally, they required that the home district pay some 
tuition costs to the districts which received black trans­
fers, although receiving districts were required to accept 
transfer students regardless of whether tuition was paid.18

In the Kansas City area, therefore, separate schools for 
black children were maintained only within KCMSD it­
self and intermittently in some suburban areas which had 
sufficient numbers of black students.14 * * * Under State law,

12 See State v. County Court, 311 Mo. 167, 277 S.W. 934 (1925); 
see also 1883 Mo. Laws 187; 1889 Mo. Laws 226-27; 1921 Mo. Laws 
614, 626-27. Although the District Court suggested that a school 
district could refuse to accept black transfer students (June 5, 
1984 Order at 11-12), it made no finding that any district ever 
successfully did so. To the contrary, the Supreme Court of Missouri, 
sitting en banc, stated in State v. County Court, that the City of 
St. Louis wrongfully suspended a black transfer student from one 
of its high schools for refusal of the transferring district to pay 
tuition, because the student had a “right to attend a high school in 
the City of St. Louis for colored children [which] is in no way 
dependent upon the payment of the tuition incident thereto . . . .” 
277 S.W. at 936.

13 See, e.g., State v. County Court; 1921 Mo. Laws 626-27; see 
also 1929 Mo. Laws 382-83.

14See PX 39; Tr. 4,308-12 (Anderson). Because of the large 
number of small school districts in the Kansas City area and the 
wide dispersal of the black population in the late 19th and early 
20th centuries, there was often an insufficient number of black 
residents within a district to form a black school. See Tr. 4,182-84, 
4,204-05 (Anderson) (noting that the State was subdivided into
approximately 8,000 districts up until 1954 and that, as a result, 
the number of black children within a single district was often 
not sufficient to support a separate black school). In addition, 
school districts throughout the State often underestimated the 
number of resident black children, thereby evading any legal obliga­
tion to provide schools for black children. See Tr. 4,255-62, 4,272-73, 
5,323-25 (Anderson). Accord, e.g., PX 210 (1921 Report of Missouri
State Superintendent of Public Schools) (there are not as many 
black schools as there should be because some school boards feel 
that “these people” should not be given a school if it can possibly
be avoided) ; State ex rel. Morehead v. Cartwright, 122 Mo. App.
257, 99 S.W. 48 (1907).



5

black children who lived in areas without black schools 
had to travel to KCMSD or other districts to obtain an 
education.15 As a result, many black students had to 
make long and difficult daily trips to school which often 
required that they leave home as early as 5:30 a.m., ar­
rive long before school started or after school began, and 
return home as late as 7 :45 p.m.16

In addition, the quality of education provided for blacks 
was extremely poor, especially in suburban black schools, 
which usually were rated second class or lower by the

15 The pattern of interdistrict transfers in the metropolitan area 
is demonstrated on PX 37A, 37B, and 37E, which are overlays for 
area maps (e.g., PX 5B) that show black enclaves, black schools, 
and the direction of transfers and migration, respectively. See Tr. 
14,817 (Orfield) (for black children, pre-1954 system of education 
in Kansas City area “operated on a regional basis to force black 
students to transfer wherever they were permitted to go to school 
within the metropolitan area”)- Although numerous witnesses 
testified concerning interdistrict transfers at trial, the evidence 
also indicated that this testimony reflected only a fraction of the 
number of black students who travelled to KCMSD or other dis­
tricts to obtain an education. This was because many of the trans­
fers went unrecorded, particularly prior to 1931 when tuition and 
transportation costs were not paid on a reimbursement basis and 
black students sought to establish residency in the receiving district 
or to take other steps to avoid having to pay such costs as out-of­
district students. See Tr. 4,313-14, 4,332-36, 5,855-58 (Anderson) ; 
Tr. 2,110-11 (Fields). Examples of recorded interdistrict transfers 
are included in PX 37E, PX 40, PX 1775 and at Tr. 420-22 
(Shields) ; 1,747-48 (Charles) ; 1,773-75 (W hite); 541 (Winkfield) ; 
608-10 (Bratton) ; 150-51 (Pratt) ; 1,604-14 (Briscoe) ; 1,645-48 
(Snead) ; 802 (Porter); 2,130-33 (Harris) ; 2,163-67 (Robinson) ; 
1,362-1371 (Jones) ; 626-28 (Tucker) ; 2,835 (Douglass) ; 1,830-34 
(Patterson); 588 (Hudson); 1,294-98 (Strickland). Examples of 
this interdistrict transfer evidence are set forth in the Addendum, 
at Section B.l.

16 See, e.g., Tr. 1,362-71 (Jones) (describing long and difficult 
trip to school and testifying that black students would often miss 
first-hour class) ; Edwards dep. 59-60; Tr. 1,645-47 (Snead) ; Tr. 
2,130-31 (Harris) ; Fields dep. 178-79. Examples of evidence of the 
hardships suffered by blacks as the result of the interdistrict 
school system for blacks are included the Addendum, at Section 
B.l.



6

State of Missouri.17 The black schools that were estab­
lished in suburban and rural areas closed frequently, par­
ticularly since State law required black schools to close 
for at least six months if specified minimum enrollments 
were not maintained.18 Especially at the high school 
level, the only consistently available comprehensive high 
school for blacks in the area was Lincoln in KCMSD.19 
For this reason, many black families split up, sent chil­
dren to live with (or gave addresses of) friends or rela­
tives in KCMSD, or moved to KCMSD itself, in order 
to obtain a better education for their children in KCMSD 
schools.20

17 See PX 39 at 2-6; PX 39A. Suburban black schools never 
received accreditation from the independent North Central Associa­
tion. Id. In contrast, black schools in KCMSD were consistently 
rated first class by the State, and Lincoln High School in Kansas 
City received North Central accredition for many years. PX 39 
at 1. Record testimony from teachers and students in suburban 
black schools prior to 1954 documented numerous specific instances 
of poor quality schools for blacks, including schools with no 
books, plumbing, or toilet facilities, and schools where black 
teachers had to shovel coal or perform other janitorial jobs and 
to use seventh and eighth graders to help “teach” younger children. 
See, e.g., Tr. 1,631-36, 1,739-41 (Snead and Charles) (Pleasant 
Hill) ; 1,466-69, 3,181-82 (Douglass and Jackson) (Parkville) ; 
3,144-45, 2,777-81 (Pearl and Thornton) (Platte C ity); 2,830-34 
(Douglas) (Parkville). When black parents protested, the solution 
in some instances was to shut down the black school and send the 
children to KCMSD. See Tr. 1,718-19 (Brisco); 3,748-49 (More­
land) ; 4,311-12 (Anderson) ; PX 107 at 54-55. Testimony con­
cerning poor quality schools for blacks in the SSDs, in contrast 
with KCMSD, included in the Addendum, at Section B.3.

18 See, e.g., 1865 Mo. Laws 255; PX 39 at 2 (Lee’s Summit 
“colored school” closed in 1910); id. at 3 (White Oak school in 
North Kansas City closed in 1949 and was operated on an “inter­
mittent” basis and “by subscription” in earlier years).

19 See Tr. 1,905-06 (Fields) ; 14,786 (Orfield) ; 2,242-43 (Curtis) ; 
3,268-70 (Thurman). Dr. Anderson concluded that for blacks, as a 
whole “from the establishment of Lincoln High School in 1887 to 
1954, . . . this was a one high school area.” Tr. 4,334.

20See, e.g., Tr. 2,714 (Brown); 2,110-11 (Fields); 1,361-62 
(Jones); 2,780 (Thornton); 9,438, 9,511 (Newsome); 1,201-04



7

A typical case was Beatrice Williams. She moved from 
her parents’ home in Lee’s Summit to her aunt’s house in 
KCMSD in order to continue her schooling when the 
only black elementary school in Lee’s Summit closed in 
1910, after she had completed fourth grade. Her mother 
later moved to Kansas City to care for her when her 
aunt died, with her father staying in Lee’s Summit to 
work. Ms. Williams’ family thus was separated for seven 
years so that she could complete her education through 
her graduation in 1917 from Lincoln High School.21

The 1910 school closure in Lee’s Summit similarly 
drove most other black families with school-age children 
living there to other places, such as KCMSD, where their 
children could receive an education. Few, if any, ever 
returned to Lee’s Summit.212

Bettie Wellman’s family had a similar experience. 
While living in Pleasant Hill in the 1930’s, her eldest 
brother had to leave the family to live with an uncle 
in Kansas City, Kansas—and be legally adopted by him— 
in order to receive his high school education.28 By the 
time Bettie Wellman reached high school age, her family 
had moved to Clinton, which had an inferior three-year 
black high school. After completing her Clinton educa-

(Williams) ; 1,086-87 (Harris) ; 1,147-48 (Bastin) ; 1,713-14
(Brisco) ; 1,806-07 (White) ; 2,684-85 (Brown) ; 1,027-28, 1,031-37, 
1,060-61 (May) ; 2,499 (Griggsby) ; 3,532-33 (Bryant) ; 950 (Proc­
tor) ; 1,686-90 (Wellman); 3,183-92 (Jackson); 3,599 (Thomas). 
Many witnesses testified graphically concerning the hardships that 
black families were forced to endure to provide better educational 
opportunities for their children. See, e.g., Tr. 1,141-42 (Bastin) 
(family had to separate so that children could obtain better educa­
tion) ; Tr. 890 (Lobb) (family had to pay child’s room and board 
in KCMSD) ; Tr. 126-28 (Pratt) (sisters lost contact with their 
parents because they moved to their grandmother’s house in KCMSD 
to attend school and began calling their mother “Miss Kita” because 
of lack of contract with her). See generally PX 90. See also Ad­
dendum, Sections B.l. and B.2.

21 Tr. 1,201-04 (Williams).
22 Tr. 1,209-12,1,216 (Williams).
2:3 Tr. 1,687-89 (Wellman).



8

tion, she had to leave her family to move in with an aunt 
in KCMSD in order to complete her education at Lincoln 
High School. Later, her mother moved the rest of the 
family’s children to Kansas City so that they could all 
receive the best possible education. Her father remained 
in Clinton where he had employment, commuting to see 
his family once a week on his day off from work, when 
he could.24 25

The record is full of similar experiences told by other 
blacks who found it necessary to leave the SSDs and move 
to KCMSD to educate their children. Indeed, official 
State reports as early as the 1920’s documented the fact 
that black families were moving to the cities in Missouri 
—including Kansas City—specifically because of the lack 
of adequate schools for blacks in rural and suburban 
areas and the better educational opportunities available 
in the cities.26

Racial segregation in area schools was powerfully re­
inforced by other types of segregation mandated or en­
couraged by the State. Missouri State courts continued

24 Tr. 1,689-92 (Wellman).
25 See, e.g., Ex. K34 (1929 Report of Missouri State Superintend­

ent of Public Schools) at 122, 123 (“high school opportunity for
[N]egro children is very limited” other than in St. Louis and 
Kansas City; “84 percent of all the high school education in the 
state” for blacks is provided in these cities although “less than half 
the [N]egro population in the state” lives there; in light of poor 
education for blacks in areas ouside the cities, “the pronounced drift 
of the [Njegro population away from the farm to the city is 
quite understandable”). Accord, Ex. K31 (1924 State report) at 
197 (“[m]any [blacks in rural areas] leave to seek better educa­
tional facilities for their children”) ; Ex. K28 (1914 State report) 
at 25 (“shortsighted people are driving these [black] people to 
towns in order to educate their children”) ; Ex. K30 (1922 State 
report) at 31 (“[o]n account of the lack of school facilities in many 
small towns and rural districts there is a desire on the part of the 
[N]egro population to move to the larger cities”). See Adden­
dum, Section D. See also Jenkins, 593 F. Supp. at 1490 (“[ u n ­
deniably, some blacks moved to districts, including the KCMSD, 
that provided black schools”).



9

to enforce racially restrictive covenants until the 1950’s.26 
Restrictive covenants made it impossible for black famil­
ies to move into many areas of the SSDs, and restricted 
expansion of those small black enclaves which had existed 
in the SSDs since the 19th century.27 28 Moreover, as the 
District Court found, Missouri established “separate in­
stitutions for teaching black school teachers” and “for 
higher education for blacks,” it provided that school 
boards could establish “separate libraries, public parks 
and playgrounds for blacks,” and it “made it a crime for 
a person of % Negro blood to marry a wThite person.” 38

26 See Tr. 13,005 (judicial notice taken that racially restrictive 
covenants “were in effect and were enforced in Missouri until in the 
1950s”) ; Tr. 12,967, 13,041-45, 13,056 (Tobin) ; O’Flagherty dep. 
13-15; Jenkins, 593 F. Supp. at 1497, 1503; Adams, 620 F.2d at 
1291 n.21. The Supreme Court declared racially restrictive cove­
nants unconstitutional in 1948. See Shelley v. Kraemer, 334 U.S. 
1 (1948).

27 PX 22, PX 22A (maps showing locations of residential areas 
and restrictive covenants); Tr. 13,023-28 (Tobin). Indeed, partly 
as a result of restrictive covenants, it was estimated that, between 
1925 and 1940, “only 15 new houses were available to blacks through­
out” Kansas City. Tr. 14,867 (Rabin).

28 See Jenkins, 593 F. Supp. at 1503. This racial segregation 
was further reinforced by acts of violence against blacks in the 
suburbs and by police harassment of blacks in white areas. See, e.g., 
Tr. 14,833 (Orfield) (proffered testimony) (in the early 20th 
century, violence against blacks in white areas “tended to consoli­
date the residential concentration, and that would contribute to the 
school segregation that the city had to deal with later on”) . Plain­
tiffs proffered evidence of specific incidents of such harassment and 
their effects on black citizens. See, e.g., Tr. 498-99 (Waller) (blacks 
left suburban areas for relative safety of Kansas City in reaction 
to lynching of black citizen in Excelsior Springs, which was appar­
ently condoned by local white law enforcement officials) ; 3,322-34 
(Thurman) (three black families left suburban area after threat 
by Ku Klux Klan against them when they attempted to enroll their 
children in all-white schools) ; 2,260-67 (Curtis) (blacks in Blue 
Springs were driven out by riot and burning of house by whites, and 
city marshal “escorted out” blacks who attempted to come to town 
thereafter); 5,068, 5,071 (Brooks) (blacks in white areas were 
often stopped and arrested without cause). See Addendum, Section
B.4.



10

The District Court specifically found that such State 
conduct placed “the State’s imprimatur on racial dis­
crimination,” that “the State has encouraged racial dis­
crimination by private individuals in the real estate, 
banking and insurance industries,” and that “ [t]his has 
and continues to have a significant effect on the dual 
housing market in the Kansas City area.” 28 The Dis­
trict Court further found that the dual housing market 
“impacted blacks in the KCMSD and consequently caused 
the public schools to swell in black enrollment” ; that 
“there is an inextricable connection between schools and 
housing” ; and that the availability of schools “ ‘may thus 
influence the patterns of residential development of a 
metropolitan area and have important impact on composi­
tion of inner city neighborhoods.’ ” * 30

The State-sponsored racially dual system of schools and 
housing, reinforced by other types of segregation, re­
sulted in increased black concentration in KCMSD. The

20 Jenkins, 593 F. Supp. at 1503. The record also reflected de­
liberate decisions by the Kansas City Planning Commission, which 
collaborated with State agencies, to designate areas as black en­
claves and permissible areas into which blacks could move. See 
Tr. 10,870-919 (Rabin). The Missouri State Real Estate Board 
also promulgated codes of ethics which prohibited realtors from 
introducing black families into white neighborhoods and subjected 
realtors to loss of their licenses for violation of that ethical pro­
vision. Tr. 13,038-45 (Tobin) ; PX 316.

30 Jenkins, 593 F. Supp. at 1491. quoting Swann v. Charlotte- 
Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21 (1971). See also note 
25, supra; Tr. 12,971-74, 13,037-43 (Tobin); Tr. 16,833-35, 
16,913-15 (Weinberg) ; Tr. 14,804-08, 15,525-27 (Orfield) ; Tr. 
7,714-15, 7,719-21 (Kain) (absent housing discrimination, many 
more blacks would live in SSDs and fewer blacks would live in 
KCMSD). Residential and school segregation reinforced each other. 
For example, by segregating schools and preventing black teachers 
from teaching in most of them, black teachers, who were virtually 
the entire black middle class and thus had an important leadership 
role, were discouraged from living in white areas such as the 
SSDs. Tr. 14,795, 14,801-02 (Orfield).



11

evidence below showed, and the District Court agreed, 
that black families left the SSDs and moved to KCMSD, 
at least in part because of the State-sponsored racially 
dual system of education and housing; the evidence also 
showed and the District Court also found that blacks 
moving to the metropolitan area chose to settle in 
KCMSD rather than in the SSDs because of the avail­
ability of schools and housing there.81

The city and its schools thus became increasingly black, 
while the suburbs and their schools became increasingly 
white. Between 1900 and 1950, the black population of 
Kansas City more than tripled; at the same time, the 
black population in the three counties outside Kansas 
City dropped nearly by half.82 As a result, the percent­
age of Kansas City area black residents who lived out­
side the city itself dropped from more than 17% in 1900 
to less than 4 % in 1950.31 32 33

31 See Jenkins, 593 F. Supp. at 1490, 1491, 1503; notes 25 and 
30, supra-, Tr. 14,694, 14,782-87, 14,793-99, 14,804-08, 15,285-90 
(Orfield) (blacks moving into the Kansas City area located where 
black schools were located and were particularly drawn to KCMSD, 
which thus became “a magnet for commercial and residential de­
velopment for blacks,” and the State-sponsored dual system of 
education and housing “would have inevitably lowered the tendency 
for blacks to settle in [predominantly white suburban and rural 
areas and] to remain there if they were settled and had children in 
need of education.”) ; Tr. 4,310-20, 4,485-86 (Anderson) (black 
families, particularly those with children, would tend not to move 
into areas where schools were unavailable and left small rural 
districts for Kansas City) ; Tr. 16,688-96 (Olson) (availability of 
schools was a factor in leading blacks to settle in KCMSD); Tr. 
16,833-71, 16,913-15 (Weinberg) (blacks migrating into the area 
from outside Missouri chose to live in Kansas City because of the 
availability of schools); Tr. 21,120-21 (Hawley) (availability of 
schools is important in determining where people live once they 
move to a new area) ; Tr. 12,396-97 (Shechter) (schooling is an 
important factor in determining where blacks look for housing).

32 See PX 16B. Specifically, the black population in Kansas City 
increased from 17,567 in 1900 to 55,682 in 1950, while the black 
population outside Kansas City in Jackson, Clay, and Platte coun­
ties declined by 44.7% from 3,687 in 1900 to 2,038 in 1950.

33 Id. Specifically, 3,687 of the area’s 21,254 black residents 
(17.3%) lived outside Kansas City in Jackson, Clay, and Platte



12

These disparities were even more pronounced in the 
schools. In 1900, black students were 6.8% of the stu­
dent population in the three-county area outside KCMSD, 
and 8.8% in KCMSD.34 By 1954, however, only .8% of 
the school children in the SSDs were black, while the 
KCMSD percentage had increased to 16.8%.35 Over 98% 
of all black school children in the Kansas City metropoli­
tan area attended school in KCMSD in 1954, while the 
SSDs were virtually all-white.3'6

B. Failure to Dismantle the Metropolitan-Wide Dual 
System After 1954.

Notwithstanding the Supreme Court’s command in 
Brown,37 38 that State and local officials dismantle racially 
dual school systems, Missouri’s Attorney General de­
clared that it was the function of the courts and local 
authorities, not the State, to desegregate the public 
schools.*8 State laws and constitutional provisions were

Counties in 1900, while only 2,038 of 57,720 area black residents 
(3.5%) lived outside Kansas City in 1950. This diminishing black 
population in the SSDs is illustrated by PX 2, 3B, 5B, 6B, 7B, and 
8B, a series of maps of the three-county area outside Kansas City, 
which show the decreasing number of black enclaves from 1900 to 
1960.

34 PX 49, 53E.
35 PX 49, 53H. The black student enumeration in the three- 

county area outside Kansas City fell by over 70% (1,445 to 410) 
from 1900 to 1950. PX 49A and 54. While the number of black 
students in the SSDs was dropping, the number of white students in 
the SSDs was increasing dramatically. In 1900, the total white 
student population in the three counties outside Kansas City was 
19,961. PX 54. By 1950, that population had more than doubled, 
to 44,496. PX 49A. The KCMSD black student population nearly 
tripled during the same period (2,971 to 8,068). PX 49.

33 PX 53H.

37 Brown v. Bd. of Educ., 347 U.S. 483 (1954), and Brown v. Bd. 
of Educ., 349 U.S. 294 (1955).

38 Approximately six weeks after the Supreme Court’s decision 
in Brown, the Missouri Attorney General rendered an opinion 
(PX 2232) declaring State laws mandating segregated schools to be



13

announced as unenforceable, but remained on the books 
for years—over 20 years in the case of the constitutional 
provision requiring separate schools.8®

In the years following Brown, the State of Missouri 
had numerous opportunities to promote significant de­
segregation in the Kansas City area. For example, pro­
posals to consolidate or reorganize school districts, nota­
bly the Spainhower Plan in the late 1960’s, would have 
significantly decreased segregation in the Kansas City 
area,39 40 Other proposals called for State financial assist­
ance for voluntary interdistrict transfers to promote de­

unenforceable; however, neither that opinion nor any later opinion 
discussed any obligation to dismantle the existing dual system or 
to desegregate. Tr. 6,047-49 (Nystrand). Although the State itself 
recognized as late as 1979 the “need for more substantial desegrega­
tion, especially in our urban areas,” the State did not act affirma­
tively to desegregate the dual interdistrict system. PX 1369; see 
also Tr. 17,526 (Wasson). In the only policy statement on inter- 
district desegregation ever adopted by the State Department of 
Elementary and Secondary Education (PX 465), the State left the 
matter entirely up to the local districts. Tr. 17,517-18 (Wasson). 
See also Tr. 17,821, 17,827-34 (Walker) (head of State technical 
assistance program designed to assist districts with problems of 
race and sex discrimination believes desegregation is a local matter ; 
budget included $20,000 for entire State) ; Tr. 17,939-40, 17,956-59 
(Drake) (State never has withheld vocational funds for race dis­
crimination although it has for sex discrimination). Examples of 
testimony from State and local officials concerning the failure of 
the State to take action to desegregate are included in the Adden­
dum, Sections C.l. and C.2.

39 See Adams, 620 F.2d at 1280; p. 2, supra.

40 The Spainhower Plan (PX 504), proposed to the State legis­
lature by the Missouri School District Reorganization Commission 
chaired by James Spainhower, recommended the redrawing of 
school district boundaries to create a series of 20 “super” school 
districts throughout the State. Under the Spainhower plan, KCMSD 
would have been part of a much larger Kansas City metropolitan 
area school district. The consolidated school district would have 
embraced many of the defendant suburban school districts in this 
action and contributed significantly to desegregation in the area. 
The plan never emerged from legislative committee. Tr. 6,093-96, 
6.106-09 (Nystrand) ; 15,014-17 (Orfield).



14

segregation.41 Although the State of Missouri had used 
its power, authority and resources to enforce racial seg­
regation prior to Brown, after that decision it failed to 
adopt these proposals or to take any other positive action 
whatsoever to mandate desegregation in the Kansas City 
area.42

In fact, some government actions after 1954 actually 
perpetuated the pre-1954 interdistrict system. In the 
Kansas City area, interdistrict transfers of black stu­
dents continued until at least 1959.4'3 In addition, State 
legislation and other actions made desegregative reor­
ganization more difficult than before. For example, HB 
171, enacted in 1957, limited the ability of KCMSD to ex­
pand and acquire a more diverse non-minority population 
as the Kansas City limits expanded.44 SB 29, enacted 
in 1973, eliminated the ability of 10 citizens to petition

41 In 1979, HB 1717 was introduced in the State legislature to 
make available State financial assistance to city and suburban 
school districts that would participate in a wholly voluntary inter- 
district desegregation measure modeled on a plan that had been 
implemented in Milwaukee. The State Department of Elementary 
and Secondary Education opposed the proposal which, like the Spain- 
hower plan, died in committee. Tr. 17,437-41 (Bartman) ; Mallory 
dep. at 76-79. One witness for the State acknowledged that the 
Department has not supported any legislation that “would have had 
the purpose or effect of causing school district desegregation . . . 
since 1972.” Tr. 17,505 (Wasson).

42 See Jenkins, 593 F. Supp. at 1505 (noting State’s “failure to 
affirmatively act to eliminate the structure and effects of its past 
dual system”). Accord, Tr. 2,020 (Fields), 3,071-72 (Bluford); 
16,434, 16,437 (Levine); 17,022-24 (Travis). The SSDs also 
failed to take any action from Brown to the time of trial to dis­
mantle the metropolitan-wide dual system in which they partici­
pated. Tr. 14,911-12 (Orfield).

43 See, e.g., June 5, 1984 Order at 79-80 (North Kansas City sent 
black students to KCMSD after 1954) ; Tr. 2,843-49 (Douglass) 
(Park Hill school district refused to desegregate and continued to 
send black high school students out of the district through 1958- 
59) ; Tr. 1,267-70 (Woods) (interdistrict transfers of black students 
from Lee’s Summit to KCMSD continued until 1958 or 1959) ; Tr. 
3,142-43 (Pearl) (interdistrict transfers of black students from 
Parkville to Platte City until 1959-60). See Addendum, Section C.3.

44 Tr. 6,145-47 (Nystrand) ; Tr. 1,971-72 (Fields).



15

for school district annexation and instead required a 
minimum of 10% of the voters in a district contiguous 
to large city districts such as KCMSD.45 46

As the District Court found, moreover, the dual hous­
ing market which the State helped create in the Kansas 
City area “still exists to a large degree today.” The State, 
however, has failed to grant authority to State agencies 
with responsibility for housing “which could have aided 
in the disestablishment of the dual school system which 
it created.” 4,15 In fact, government officials continued to 
record restrictive covenants in the Kansas City area until 
at least I960,47 and such covenants had the continuing 
effect of limiting housing opportunities for black citizens.48

45 Yet another change in State law in 1977 required that a pro­
posed consolidation of school districts be approved by a majority 
of voters in each district rather than a majority of the proposed 
combined district. Tr. 6,159-60 (Nystrand). The cumulative effect 
of these changes in State law was to make it more difficult for 
KCMSD to acquire and secure an adequate non-minority population 
to achieve meaningful desegregation. Id. Although KCMSD gen­
erally expanded along with Kansas City from 1887 to 1950 (see 
PX 35A-H), the city is now four times as large as KCMSD as a 
result of city annexations after Brown which were not followed 
by expansions of KCMSD. Id.

46 Jenkins, 593 F. Supp. at 1491, 1503. See Tr. 4,700-02 (Smith) 
(Kansas City Human Relations Comm’n without authority to act 
on block busting complaints) ; Tr. 5,104-14 (Brooks) (State fair 
housing statute discouraged complaints and was enforced by agency 
which was understaffed and had serious backlogs) ; Plummer dep. 
17-32 (same re statute) ; Tr. 13,141, 13,160, 13,163-64, 13,260-63 
(Tobin) (proffered testimony) (State Divisions of Savings and 
Loans and Finance failed to monitor on the basis of race and thus 
could not control redlining) ; 13,128-33, 13,157-60 (Tobin) (prof­
fered testimony) (same re Division of Insurance); 13,239-42 
(Tobin) (citing numerous governmental causes for dual housing 
market, including State location of subsidized housing).

47 See PX 1239A (last restrictive covenant recorded in Clay 
County in 1960).

48 See Tr. 13,023-37 (Tobin); 1,316 (Strickland). See also 
Wheeler dep. at 308-09 (race would have been a factor for blacks 
trying to get a loan to buy a home outside KCMSD as late as 
1970).



16
Both housing and schools in the Kansas City metropoli­

tan area remain today as they were before Brown—highly 
segregated. As of the 1980 census, 95% of the black 
residents of the three-county area including Kansas City 
lived in the city itself.49 In 1980, the three-county area 
excluding Kansas City was only 1.3% black, while 
Kansas City was 32.8% black.’50 Area schools reflect 
similar disparities : KCMSD’s student population is 68.3% 
black, while the SSDs are only 7% black.’51 52 * Over 88% of 
the black school children in the metropolitan area at­
tended school in KCMSD in 1980.5'2

C. Procedural History of This Litigation.
KCMSD initiated this lawsuit in 1977 because it recog­

nized that the continuing vestiges of the State-mandated 
dual system could not be effectively dismantled without 
the participation of the State and other school districts 
which were part of the area-wide dual system.®3 The

49 See PX  16B.
50 Id.
51 June 14, 1985 Order at 26; KCMSD Plan for Remedying 

Vestiges of the Segregated Public School System (January 18, 
1985 ) at 3-4.

52 PX 53G. Racial segregation is not the only vestige of the 
former dual system. As the District Court also concluded, the 
“inferior education indigenous of the [SJtate-compelled dual school 
system has lingering effects” in KCMSD. Jenkins, 593 F. Supp. at 
1492. See also, e.g., Order of June 14, 1985 at 4. Accord, Tr. 
16,414-16, 16,420-22, 16,424-31, 16,457-59 (Levine) (the dual sys­
tem had damaging effects on the attitudes, motivation, and socio­
economic status of blacks, which persist today, and contributed to 
a cycle of black poverty and poor achievement). See Addendum, 
Section B.5.

63 See Complaint (filed May 26, 1977). As the District Court 
found, KCMSD has undertaken significant desegregation efforts, 
including adoption of a plan approved in 1977 by the Office for Civil 
Rights of the U.S. Department of Health, Education, and Welfare 
(“HEW”). See Order of June 14, 1985 at 26. Despite these efforts, 
the District Court found that 24 KCMSD schools were “racially 
isolated ” as of 1983-84 “with 90+% black enrollment,” and that 
“[vjestiges of the dual system still remain.” Jenkins, 593 F. Supp. 
at 1493. See also Order of June 14, 1985 at 27-28 (25 KCMSD 
schools had 90+% black enrollment as of 1984-85). See Tr. 16,567- 
79 (Holmes).



original complaint contended that the State, surrounding 
school districts in Missouri and Kansas, and several fed­
eral agencies had helped cause or had been a, part of the 
system of racial segregation in the metropolitan area 
schools. KCMSD, its board members and superintendent, 
and school children in KCMSD schools brought the action 
on behalf of themselves and the children attending 
KCMSD schools.64

In 1978, the court below held that KCMSD lacked 
standing, dismissed it as a plaintiff, and realigned it as 
a defendant.5® After realignment, the remaining student 
plaintiffs obtained separate counsel and filed an amended 
complaint against KCMSD and the federal and Missouri 
defendants named in the original complaint.5'8 KCMSD 
sought to pursue its claims by filing a cross-claim against 
the State, contending, as in the original complaint, that 
the State failed to fulfill its duty to eliminate the vestiges 
of the dual system.67

At the close of plaintiffs’ evidence at trial, the State, 
the federal agency defendants, and the SSDs moved for 
dismissal under Fed. R. Civ. P. 41(b).'68 The District 54 55 * 57 58 * * * * *

17

54 Complaint at 6-8. The original federal agency defendants in­
cluded the Departments of Housing and Urban Development 
(“HUD”), HEW, and Transportation. The State of Kansas and 
suburban school districts in Kansas were also included as defend­
ants in the original complaint.

55 See School Dist. of Kansas City, Missouri v. Missouri, 460 
F. Supp. 421 (W.D. Mo. 1978). The 1978 order also dismissed the 
Kansas defendants as parties.

66 See Amended Complaint (filed May 18, 1979).
57 See Answer and Cross-Claim of KCMSD (filed July 3, 1979). 

KCMSD’s standing was challenged again, but this time the District 
Court held that KCMSD had standing. See Memorandum and 
Order of June 1, 1981 at 3-7. Prior to trial, the Department of 
Transportation and one of the Missouri SSDs were dismissed vol­
untarily. See Order of June 5, 1984 at 2.

58 Both the plaintiffs and KCMSD opposed the motion and argued,
inter alia, that the SSDs were part of and were affected by the
racially dual interdistrict system which the State created and failed
to dismantle. See KCMSD Memorandum in Opposition to Motions
for Dismissal (filed March 23, 1984) ; Plaintiffs’ Suggestions in
Response to Defendants’ Rule 41(b) Motions (filed May 26, 1984).



18
Court denied the motions of the State and HUD, but 
granted the motions filed by HEW and the SSDs.5® The 
court stated that plaintiffs had failed to show that each 
individual SSD had acted in a racially discriminatory 
manner that substantially caused racial segregation in 
another district.60

Trial proceeded against the remaining defendants. On 
September 17, 1984, after the close of all the evidence, 
the District Court, found in favor of plaintiffs against 
KCMSD and the State and in favor of KCMSD on its 
cross-claim against the State.61 The court concluded, as 
KCMSD itself contended, that vestiges of segregation re­
mained within KCMSD schools.®2 The court found spe­
cifically that the State had established the pre-1954 dual 
school system, that its conduct had fostered the area-wide 
dual housing market, that each school district had par­
ticipated in the State-mandated dual system, and that 
the State had failed to fulfill its duty to help dismantle 
the dual system.®3

The remedial plans filed by KCMSD and the State 
called for educational and other improvements to help al­
leviate the vestiges of segregation in KCMSD. The 
KCMSD plan also proposed that the court conduct pro­
ceedings involving the SSDs leading to consolidation of 
KCMSD with the surrounding school districts which were 
part of the State-sponsored racially dual system.84 A * * * * * 82 83 84

59 See Orders of June 5, 1984 and July 16, 1984.
^  Jenkins, 593 F. Supp. at 1488; June 5, 1984 Order at 45, 48,

51, 54, 59, 67, 74, 78, 83, 91, and 95.
el See Jenkins, 593 F. Supp. at 1488. The court also found for

HUD on plaintiffs’ claims against it. Id.
82 Id. at 1492,1493.
83 Id. at 1490,1491,1503-05.
84 KCMSD believes that an interdistrict consolidation plan in­

volving only the Missouri defendants could, at least for the time 
being, produce stable, effective desegregation and, accordingly, does 
not appeal the dismissal of the Kansas defendants. See KCMSD 
Plan for Remedying Vestiges of the Segregated Public School Sys-



19

single consolidated school district was proposed by KCMSD 
as the only stable and effective remedy for the State’s in­
terdistrict constitutional violations and for the school 
segregation within KCMSD and the metropolitan area.85

On January 25, 1985, the District Court rejected 
KCMSD’s plan on the basis of its previous rulings that 
“there was no unconstitutional action” or “constitutional 
violations by those [suburban] districts.” 188 Pursuant to 
the January 25 Order, KCMSD submitted a revised plan 
to be implemented with no change in school district 
boundaries, although it continued to contend that a plan 
limited to KCMSD was inadequate.

Following additional hearings, the District Court is­
sued its remedial order on June 14, 1985.* 65 * 67 The Order 
required the State and KCMSD to fund compensatory 
and remedial educational programs and necessary capital 
improvements in KCMSD schools. The State was also

tem (filed January 18, 1985). As the District Court specifically 
noted, the Kansas defendants could be added at a later time if  their 
inclusion in a remedial order becomes necessary. See 460 F. Supp. 
at 436.

65 See KCMSD Plan for Remedying Vestiges of the Segregated 
Public School System (January 18, 1985) at 1-12. KCMSD pro­
posed consolidation of KCMSD with the 11 surrounding districts. 
The result would be to minimize the risk of “white flight.” Id. 
at 17-18, 29-30. The plan included a feasibility study which 
demonstrated that such consolidation could result in minority per­
centages in almost all Kansas City area schools of 20-40%, thus 
eliminating the racial identifiability of schools and school districts 
in the Kansas City area. Id. at 39-40. The plan also included pro­
visions for faculty desegregation, fair and equitable treatment of 
students, financing and administration,

68 Order of January 25,1985 at 2.
67 KCMSD believes that the District Court’s June 14, 1985 Order 

was erroneous in several respects. Of major concern is the inade­
quacy of the amount of financing for desegregation. Because the 
interdistrict relief requested by KCMSD in this appeal will afford 
complete relief, however, KCMSD does not press herein its objec­
tions to the June 14 Order.



20

ordered to fund voluntary interdistrict transfers between 
KCMSD and any SSDs choosing to participate.68

SUMMARY OF ARGUMENT

The District Court dismissed the suburban school dis­
trict defendants and rejected interdistrict desegregation 
relief because it erroneously believed that each suburban 
district must be found to have committed an independent, 
intentional act of racial discrimination before it could be 
included in an interdistrict remedy. Under Supreme 
Court and Eighth Circuit case law, however, interdis­
trict relief is warranted if the SSDs were part of, and 
were affected by, the State’s intentionally discriminatory 
interdistrict system of segregated schools for black stu­
dents. See Milliken v. Bradley, 418 U.S. 717, 745 (1974).

The evidence below established that, prior to the Su­
preme Court’s decision in Brown, the State created a 
racially dual metropolitan-wide system of public educa­
tion for blacks, which disregarded school district bound­
aries. The evidence further demonstrated that the inter­
district racially dual school system for blacks involved 
the SSDs’ participation and affected their racial composi­
tion.

The evidence also established that the State-mandated 
dual school system prompted blacks living in the SSDs to 
move into KCMSD where there were good black schools. 
For the same reason, many more blacks moving to the 
metropolitan area avoided the SSDs altogether and chose 
to live in KCMSD. State-enforced racially restrictive 
covenants also prevented black families from moving into

68 See Order of June 14, 1985. The District Court order also 
approved the State’s request that a study be conducted of possible 
additional intradistrict pupil reassignments within KCMSD, but the 
court specifically noted that the “evidence is clear” that such re- 
assignments at this time “will only serve to increase the instability 
of the KCMSD and reduce the potential for desegregation.” Id. 
at 31.



2 1

the SSDs. By the time of Brown, the public schools in 
the Kansas City metropolitan area were rigidly segre­
gated: Regardless of where black students lived in the 
metropolitan area, most attended all black schools in 
KCMSD; those few that did not attended one-race, in­
ferior schools in the suburbs. In contrast, white students 
throughout the metropolitan area attended white schools 
where they lived.

The evidence further demonstrated that the State took 
no action to dismantle the pre-1954 metropolitan-wide 
racially dual system. To the contrary, the evidence 
demonstrated that State action in the areas of education 
and housing reinforced and perpetuated racial segrega­
tion in the public schools. As a consequence, the vestiges 
of the pre-1954 interdistrict dual system—racial identi- 
fiability of Kansas City area school districts—remain to­
day. Because of this, and because the District Court’s 
June 14 Order does not provide a full and complete rem­
edy for the segregated conditions created by the State, 
it was error for the District Court to dismiss the SSDs 
and to reject interdistrict relief.

The District Court also erred in dismissing KCMSD 
as a plaintiff for lack of standing and realigning it as 
a defendant because KCMSD has been injured by the 
State’s unconstitutional conduct and may sue to fulfill its 
affirmative duty to provide, and its students’ right to re­
ceive, a non-segregated education.



2 2

ARGUMENT

I. THE DISTRICT COURT’S REJECTION OF INTER­
DISTRICT RELIEF AND DISMISSAL OF THE 
SUBURBAN SCHOOL DISTRICT DEFENDANTS 
WAS BASED ON THE ERRONEOUS LEGAL CON­
CLUSION THAT INTERDISTRICT RELIEF RE­
QUIRES PROOF OF INDEPENDENT CONSTITU­
TIONAL VIOLATIONS BY EACH AND EVERY 
SUBURBAN DISTRICT PARTICIPATING IN AND 
AFFECTED BY THE STATE’S INTERDISTRICT 
CONSTITUTIONAL VIOLATIONS.

The District Court properly held the State of Missouri 
defendants liable for the intentional creation of the 
racially dual school system in the Kansas City metropol­
itan area and for their failure to eradicate the vestiges 
of that system after Brown.™ The District Court, how­
ever, erroneously dismissed the SSDs and refused to 
order interdistrict relief because it misapprehended the 
legal standard applicable to interdistrict constitutional 
violations and relief, as established by the Supreme Court 
in Milliken v. Bradley, 418 U.S. 717 (1974) (“Milliken 
I ”).

The District Court believed that “ [t] he linchpin of 
an interdistrict case, as declared by the Supreme Court, 
is whether there has been a racially discriminatory act 
by each defendant that substantially caused segregation 
in another district. Milliken v. Bradley, 418 U.S. 717, 69

69 Jenkins, 593 F. Supp. at 1503-06. The Supreme Court has 
left no doubt that the creators of de jure segregation are “ ‘clearly 
charged with the affirmative duty to take whatever steps might be 
necessary to convert to a unitary system in which racial discrimina­
tion would be eliminated root and branch,’ ” Columbus Bd. of Educ. 
v. Penick, 443 U.S. 449, 458-59 (1979), quoting Green v. County 
School Bd., 391 U.S. 430, 437-38 (1968). The obligation to dis­
mantle dual systems extends to the State as well as to school dis­
tricts. Cooper v. Aaron, 358 U.S. 1, 15-17 (1958) ; United States 
v. Missouri, 363 F. Supp. 739, 747 (E.D. Mo. 1973), aff’d in rele­
vant part, 515 F.2d 1365 (8th Cir.), cert, denied, 423 U.S. 951 
(1975). Accord, Liddell v. Bd. of Educ. of St. Louis, 677 F.2d 
626, 630 (8th Cir.), cert, denied, 459 U.S. 877 (1982).



23

745 . . . 70 This reading of Milliken I  is wrong. There 
is no requirement in Milliken I  or its progeny that each 
suburban district must be found to have committed an in­
dependent, intentional act of racial discrimination. Under 
Supreme Court and Eighth Circuit case law, interdistrict 
relief is warranted if, as in this case, the SSDs were 
part of, and were affected by, the State’s intentionally 
discriminatory interdistrict system of segregated schools 
for black students.

In Milliken I  itself, the Supreme Court held that it 
is sufficient to show “that racially discriminatory acts 
of the state or local school districts, or of a single school 
district have been a substantial cause of interdistrict 
segregation” ; although the Court in Milliken I  recog­
nized that proof of racially discriminatory acts by local 
school districts is one way to establish a basis for an 
interdistrict remedy, proof that “discriminatory acts of 
the state . . . have been a substantial cause of interdis­
trict segregation” is clearly stated as an alternate basis 
for interdistrict relief.71 This Court similarly ex­
pressed the standard for such relief in the St. Louis de­
segregation case where it explained that “to the extent 
any such segregation was imposed by the State or other

70 Order of June 5, 1984 at 5-6 (emphasis added). The District 
Court reiterated its requirement of an intentional violation by each 
SSD throughout its orders. For example, the court concluded at 
the end of its findings with respect to each SSD that it would grant 
the district’s motion to dismiss since the plaintiffs had “failed to 
establish any intentional racially discriminatory act or omission 
by these defendants which has had a substantial segregative effect 
in any other school district,” Id. at 45 (Blue Springs), 48 (Center), 
51 (Fort Osage), 54 (Grandview), 59 (Hickman Mills), 67 (Inde­
pendence), 74 (Lee’s Summit), 78 (Liberty), 83 (North Kansas 
City), 91 (Park Hill), and 95 (Raytown). In its order finding 
liability against the State, the District Court similarly explained 
that it dismissed the SSDs because “ [p]laintiffs simply failed to 
show that those defendants had acted in a racially discriminatory 
manner that substantially caused racial segregation in another 
district.” Jenkins, 593 F. Supp. at 1488.

71 Milliken I, 418 U.S. at 745 (emphasis added).



24

defendants, and to the extent those defendants have the 
power to remedy the violation, it is proper for the dis­
trict court to order them to take steps to do so.” 72

In applying Milliken I, this Court has recognized that 
school districts may be included in an interdistrict rem­
edy if they participated in and were affected by inter- 
district segregation, even if they themselves had not 
committed independent, intentionally discriminatory acts. 
In Morrilton School District No. 32 v. United States, 
606 F.2d 222 (8th Cir. 1979) {en banc), cert, denied, 
444 U.S. 1071 (1980), the Court reviewed an interdis­
trict remedy for the public schools of Conway County, 
Arkansas. The district court had concluded that one of 
the six school districts in the County (the East Side 
School District) and a school in a second district (the 
Center School in the Conway County District) “were 
established by the State of Arkansas as black compo­
nents of a dual school system in Conway County and 
had been maintained as all-black vestiges of that [dual] 
system.” 78 The district court ordered consolidation of 
the East Side District with the Morrilton and Plumer- 
ville Districts. These two outlying districts appealed, 
arguing that, even assuming discriminatory action by 
someone else had been shown, “since the government 
made no showing that either Morrilton or Plumerville 
participated in the development of the East Side District 
as a segregated district, the District Court’s imposition 
of interdistrict relief was unwarranted.” 74 75

This Court unanimously rejected the outlying districts’ 
argument “that- since there was no evidence implicating 
them in a direct way with the establishment of the East 
Side District, the court has no authority to order them 
to remedy the state’s wrong” : 73

72 Liddell v. Bd. of Educ. of St. Louis, 667 F.2d 643, 651 (8th 
Cir.), cert, denied, 454 U.S. 1081, 1091 (1981) (emphasis added).

73 Morrilton, 606 F.2d at 225.
74 Id.
75 Id. at 228 (footnote omitted).



25

This argument is clearly without merit since the 
effects of the unconstitutional state action are felt 
in both districts. As the Court stated in United 
States v. Board of School Commissioners, 573 F.2d 
400, 410 (7th Cir.), cert, denied sub nom. Bowen 
v. United States, 439 U.S. 824 (1978) :

[Sjchool officials may not maintain that their 
districts should be excluded from any interdis­
trict remedy if they are found innocent of com­
mitting any constitutional violations because 
they should not be held responsible for the acts 
of the state legislators or other state subdi­
visions such as a local housing authority or a 
zoning board. The commands of the Fourteenth 
Amendment are directed at the state and can­
not be avoided by a fragmentation of responsi­
bility among various agents. Cooper v. Aaron, 
358 U.S. 1, 15-17 (1958). If the state has con­
tributed to the separation of the races, it has 
the obligation to remedy the constitutional vio­
lations. That remedy may include school dis­
tricts which are its instrumentalities and which 
were the product of the violation.78

The Court did not insist, as did the District Court here, 
on “a racially discriminatory act by each defendant that 
substantially caused segregation in another district.” 76 77 
Accord, United States v. Missouri, 515 F.2d 1365, 1369 
(8th Cir.) (en banc), cert, denied, 423 U.S. 951 (1975) 
(rejecting argument that a school district should be ex­
cluded from an interdistrict remedy because “it has in 
no way participated as a separate school district” in the 
establishment of the boundaries creating a neighboring 
segregated black district).

Courts in other circuits also have included school dis­
tricts in interdistrict remedies without proof of inten­

76 Id. at 228-29.
77 Order of June 5, 1984 at 5-6.



2 6

tional segregation by each district. In Evans v. Buchan­
an, 393 F. Supp. 428 (D. Del.), aff’d, 423 U.S. 963 
(1975), the Supreme Court affirmed a decision by a 
three-judge court that consideration of interdistrict relief 
for the Wilmington schools was appropriate under Mil- 
liken I, even though the suburban districts had not com­
mitted any independent, intentional constitutional viola­
tions. The three-judge court concluded that interdistrict 
relief is appropriate if “there have been racially dis­
criminatory acts of the state or local school districts caus­
ing inter-district segregation.” 393 F. Supp. at 432 (em­
phasis added). Accord, e.g., Hoots v. Pennsylvania, 672 
F.2d 1107, 1119-20 (3d Cir.), cert, denied, 459 U.S. 824 
(1982) (multidistrict remedy ordered which affected 
boundaries of surrounding districts because County and 
State Boards of Education had intentionally created 
identifiably black and white districts.) ; United States v. 
Board of School Commissioners of Indianapolis, Indiana, 
573 F.2d 400, 410 (7th Cir.), cert, denied, 439 U.S. 824 
(1978) (“suburban school officials may not maintain that 
their districts should be excluded from any interdistrict 
remedy if they are found innocent of committing any 
constitutional violations . . . .  If the state has contributed 
to the separation of the races . . . .  [the] remedy may 
include school districts which are its instrumentalities and 
which were the product of the violation” ).

The court below ignored these well-established prin­
ciples. It apparently believed that proof of independent 
constitutional violations by each SSD was necessary be­
cause of the SSDs’ purported local autonomy, even 
though there was proof of an interdistrict constitutional 
violation by the State involving and affecting the SSDs. 
This view was specifically rejected in Milliken I, in 
which the Court concluded that where an interdistrict 
violation has been shown, “the boundaries of separate and 
autonomous school districts may be set aside by consoli­
dating the separate units for remedial purposes or by



27
imposing a cross-district remedy. . . 78 79 This Court has
also made clear on three separate occasions that school 
district lines will not stand in the way of an appropriate 
interdistrict remedy for interdistrict school segregation. 
As this Court explained in Haney v. County Board of 
Education of Sevier County, Arkansas, 410 F.2d 920, 
924-25 (8th Cir. 1969) :

State legislative district lines, congressional dis­
tricts and other state political subdivisions have long 
ago lost their mastery over the more desired effect 
of protecting the equal rights of all citizens . . . . 
Political subdivisions of the state are mere lines of 
convenience for exercising divided governmental re­
sponsibilities. They cannot serve to deny federal 
rights.

This principle was applied to Missouri school districts in 
United States v. Missouri.™

“Local autonomy” thus is irrelevant to the propriety 
of an interdistrict remedy where, as here, an interdistrict 
constitutional violation has been established as a matter 
of law.80 The court below erred by requiring proof of

78 Milliken I, 418 U.S. at 744 (emphasis added).
79 515 F.2d 1365. See also Morrilton, 606 F.2d 222. The District 

Court itself recognized, in its September 17, 1984 Order, that there 
is nothing in Missouri law that would bar an interdistrict remedy, 
such as consolidation of school districts:

There is nothing in the State Constitution which would prevent 
the General Assembly from enacting legislation which would 
give the State sole authority to establish school districts as it 
sees fit. If such legislation is the only means by which the 
State can fulfill its 14th Amendment obligations, then such 
legislation is mandatory.

Jenkins, 593 F. Supp. at 1504.
80 The District Court’s conclusion that school districts in Mis­

souri are highly autonomous is a dubious legal proposition in any 
event. Local school districts in Missouri are creatures and instru­
mentalities of the State, and school district boards may exercise 
only the authority expressly conferred by State statute or neces­
sarily implied therefrom. Cape Girardeau School Dist. No. 63 v. 
Frye, 225 S.W.2d 484, 488 (Mo. App. 1949). Of even greater



28

independent constitutional violations by each SSD.* 81 In­
stead, it should have determined whether the SSDs were 
part of or were affected by the State’s intentionally dis­
criminatory areawide system of segregated schools for 
black students. Had it done so, it would have concluded, 
on the basis of the record and as discussed in Section II 
below, that the State of Missouri’s constitutional viola­
tions mandate interdistrict relief.

II. WHEN REVIEWED UNDER THE PROPER LEGAL 
STANDARDS, THE EVIDENCE AND FINDINGS 
CONCERNING THE STATE’S CONSTITUTIONAL 
VIOLATIONS MANDATE INTERDISTRICT RE­
LIEF.

The propriety of interdistrict relief in this case, as 
discussed in Section I, does not depend upon whether 
each SSD committed separate constitutional violations. 
Instead, as in any desegregation case, the scope of the 
remedy depends upon the overall nature and scope of the 
violation.82 If the constitutional violation is interdistrict

importance, no significant local autonomy existed with respect to 
the pre-1954 interdistrict school system for blacks. The school dis­
tricts operated separate schools for blacks or sent black students 
outside the district, at the command of the State, and receiving 
districts were required to accept black transfer students. See 
note 12, supra. Even the details of transfer funding and the 
mechanics of consolidation were provided by the State.

81 The District Court relied on Lee v. Lee County Bd. of Educ., 
639 F.2d 1243 (5th Cir. 1981), and Taylor v. Ouachita Parish 
School Bd., 648 F.2d 959 (5th Cir. 1981), for the proposition that 
proof was required of intentional constitutional violations by each 
suburban district. Order of June 5, 1984 at 96-97. Neither Lee nor 
Taylor supports that proposition. In Lee, the Court found that the 
evidence failed to demonstrate that the interdistrict conduct had 
any “current segregative effect,” 639 F.2d at 1260. In Taylor, 
the court found that the interdistrict transfers and related conduct 
in that case were done with no discriminatory intent. 648 F.2d at 
966. In the instant case, by contrast, both racial motivation and cur­
rent segregative effect of the interdistrict dual system were shown. 
See Section II, infra.

82 Swann, 402 U.S. at 16; accord, Milliken I, 418 U.S. at 744.



29

in scope, as in this case, then the remedy must be inter- 
district as well.*3

The evidence below established area-wide, interdistrict 
constitutional violations by the State in which the subur­
ban districts participated and which affected them. Most 
area school districts failed to provide schools for blacks, 
and State law provided for transportation of black stu­
dents in such districts to black schools in other districts. 
Eestrictive covenants and other racially discriminatory 
State policies prohibited blacks from living in many parts 
of the metropolitan area. As a consequence, by the time 
the Supreme Court rendered its decision in Brown in 
1954, the public schools in the Kansas City metropolitan 
area were rigidly segregated.83 84 The evidence further shows 
that, following Brown, the State took no action to dis­
mantle the pre-1954, metropolitan-wide interdistrict sys­
tem, and that its vestiges remain today: More than
three-quarters of the black students in the Kansas City 
metropolitan area attend predominantly black schools in 
KCMSD, while most white students attend predominantly 
white schools in the SSDs.85

It was thus error to dismiss the SSDs and to reject 
interdistrict relief. The District Court should be directed 
to: 1) rejoin the SSDs as defendants; 2) conduct inter­
district remedial proceedings, in which the SSDs will have 
the opportunity to rebut the evidence in the record that 
they participated in and were affected by the State’s vio­
lations and are needed in a remedy to correct those viola­
tions; and 3) order an interdistrict remedy designed to 
eliminate all vestiges of the former dual system in the 
Kansas City area.

83 See Milliken I, 418 U.S. at 744-45.

84 <See PX 53H (for the 1953-54 school year, 29,058 children at­
tended school in the SSDs; 242 were black).

85 See notes 126 and 127, infra.



30
A. The Evidence and Findings Below Established that 

the State of Missouri Created and Maintained 
a Metropolitan-Wide Dual School System in the 
Kansas City Area.

The District Court judicially noticed, and uncontro­
verted evidence established, that the State of Missouri 
mandated racially segregated schools at the time of 
Brown.8'6 The statutes that created the separate black 
school system made it interdistrict in scope through such 
devices as State-required and funded interdistrict trans­
fers, State and suburban school district cooperation, and 
school district consolidations.187 The District Court ac­
knowledged that the SSD defendants which it dismissed 
participated in the interdistrict dual system:

Each school district in Missouri participated in 
this dual school system before it was declared un­
constitutional in Brown I. Districts with an insuffi­
cient number of blacks to maintain the state-required 
separate school made interdistrict arrangements to 
educate those children. Undeniably, some blacks 
moved to districts, including the KCMSD, that pro­
vided black schools.88

The evidence below showed that school district lines 
were systematically ignored for purposes of the separate 
school system for blacks which existed in the Kansas City 
metropolitan area before 1954. As Dr. Gary Orfield 
testified at trial, this system “operated on a regional 
basis to force black students to transfer wherever they 
were permitted to go to school within the metropolitan 
area.” 189 The establishment and maintenance of this 86 87 88

86 See p. 1, supra.
87 See Adams, 620 F.2d at 1280 (“[Missouri] [statutes imple­

menting- the constitutionally mandated segregation provided for 
separate funding, separate enumerations, separate consolidated 
‘colored’ school districts, and the interdistrict transfer of black 
students”) . See pp. 3-4, supra.

88 Jenkins, 593 F. Supp. at 1490.
88 Tr. 14,817 (Orfield). In contrast, Dr. Orfield explained, the 

system of education for whites was “locally-based,” since schools



31

separate school system for blacks was thus the functional 
equivalent of the boundary changes which this Court 
relied upon to support interdistrict relief in Morrilton, 
United States v. Missouri, and Haney. Before 1954, 
black students in the Kansas City area were assigned 
to school not on the basis of the boundary lines that the 
State and SSDs now fight so hard to defend, but instead 
on the basis of an area-wide set of boundaries that ap­
plied to blacks only.

Where school district boundaries have been circum­
vented for the purpose of maintaining an interdistrict 
system of segregation, such as through interdistrict 
transfers, courts repeatedly have held that interdistrict 
desegregation relief is fully appropriate. For example, 
Justice Stewart, in his concurring opinion in Milliken I, 
cited United States v. Texas, 321 F. Supp. 1043 (E.D. 
Tex. 1970), aff’d, in relevant part, 447 F.2d 441 (5th 
Cir. 1971), cert, denied, 404 U.S. 1016 (1972), in which 
the court found that a pattern of interdistrict transfers, 
along with boundary changes, was instrumental in main­
taining a dual school system and ordered development of 
an interdistrict desegregation plan.* 90 Similarly, in New­
bury Area Council, Inc. v. Board of Education of Louis­
ville, Kentucky, 510 F.2d 1358, 1360 (6th Cir. 1974), 
cert, denied, 421 U.S. 931 (1975), the court distin­
guished Milliken I  in part because, unlike the situation 
in Detroit, “school district lines in Kentucky have been 
ignored in the past for the purpose of aiding and imple-

for whites were available in all districts. Id. Accord, e.g., Tr. 4,205 
(Anderson) (“the school districts chose to operate [an] intra­
district system for white kids and sent the black kids out of the 
district”) .

®'° In his concurring opinion, Justice Stewart observed that 
“[w]ere it to be shown, for example, that state officials had con­
tributed to the separation of the races . . .  by transfer of school 
units between districts . . . then a decree calling for transfer of 
pupils across district lines or for restructuring of district lines 
might well be appropriate.” Milliken I, 418 U.S. at 755 (Stewart, J., 
concurring).



32

meriting continued segregation.” 91 * The court in New- 
burg relied on interdistrict transfers which perpetuated 
segregation as a basis for consideration of an interdistrict 
remedy.83

The State’s interdistrict dual school system was rein­
forced through its promotion of a racially dual housing 
market in the metropolitan area. The District Court 
found that the dual housing market in the Kansas City 
area, which was fostered by the State and “still exists 
to a large degree today,” has

impacted blacks in the KCMSD and consequently 
caused the public schools to swell in black enroll­
ment. The Court finds there is an inextricable con­
nection between schools and housing.93

91 Newburg, 510 F.2d at 1360. The Court in Milliken I, by con­
trast, concluded that the record in that case contained “evidence of 
de jure segregated conditions only in the Detroit schools,” and 
that interdistrict relief thus was not appropriate. Milliken I, 418 
U.S. at 745.

9:2 Id. Accord, Adams, 620 F.2d at 1294 n.27 ('“the assignment 
and transportation of black students living in the suburbs to black 
schools in the City” was an instance of collaboration of the suburbs 
“with each other and with the City of St. Louis to ensure the main­
tenance of segregated schools”) ; Evans, 393 F. Supp. at 433-34; 
United States v. Missouri, 363 F. Supp. 739, 745 (E.D. Mo. 1973), 
affd in relevant part, 515 F.2d 1365 (8th Cir.), cert, denied, 423 
U.S. 951 (1975).

9:3 Jenkins, 593 F. Supp. at 1491, 1503. See pp. 8-10, supra. As the 
court below noted, this inextricable connection has been recognized 
by the Supreme Court. Id. at 1491 (quoting Swann: “[pleople 
gravitate toward school facilities” and the “location of schools may 
thus influence the patterns of residential development of a metro­
politan area and have important impact on composition of inner 
city neighborhoods”). Accord, Keyes v. School District No. 1 , 413 
U.S. 189, 198 (1973) (government actions that effectively earmark 
schools “according to their racial composition” may have a “pro­
found reciprocal effect on the racial composition of residential 
neighborhoods within a metropolitan area”). The District Court 
thus correctly rejected the State’s contention that housing patterns 
for which government officials are not responsible caused the racial 
disparities in schools. Jenkins, 593 F. Supp. at 1491.



33
The record amply supports the District Court’s findings. 

From the early 1900’s until the 1950’s, the State of 
Missouri enforced racially restrictive covenants which 
barred blacks from buying, renting or occupying prop­
erty in all but one of the SSDs.94 95 * 97 Even after Shelley v. 
Kraemer, 334 U.S. 1 (1948), held that state enforce­
ment of restrictive covenants through injunctions was 
unconstitutional, the Missouri courts entertained damage 
actions for breach of such covenants.’9'6 Overall, “the 
widespread use of restrictive covenants and their enforce­
ment and regulation on the part of the State of Missouri 
played an inextricable role in the creation of the dual 
housing market and the segregation of whites and blacks 
in the Kansas City metropolitan area.” 9a

The record also supports the court’s findings that the 
dual housing market contributed to racial segregation in 
Kansas City area school districts.07 The number and 
percentage of blacks in the three counties outside Kansas 
City dropped dramatically between 1900 and 1950, while 
the number of blacks in Kansas City more than tripled.98 
Both individual and expert witnesses testified that blacks

94 The District Court found in its June 5, 1984 Order, on the basis 
of the testimony and evidence presented by Dr. Gary Tobin, one of 
plaintiffs’ experts, that racially restrictive covenants existed in 
Blue Springs (page 44), Center (48), Grandview (53), Hickman 
Mills (58), Independence (66), Lee’s Summit (73), Liberty (77-78), 
North Kansas City (83), Park Hill (90) and Raytown (94). The 
only exception was Ft. Osage (51). See Tr. 13,024-32 (Tobin).

95 See, e.g., Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949). See also 
Tr. 13,005 (District Court took judicial notice that racially restric­
tive covenants “were in effect and were enforced in Missouri until 
in the 1950s”) .

88 Tr. 13,040-41 (Tobin). Accord, Tr. 14,878-89 (Orfield) (prof­
fered testimony). State involvement with restrictve convenants 
was not limited to enforcement but included State appraisers’ not­
ing of such covenants on appraisals (O’Flagherty dep. 48-49), and 
State agencies’ allowing breaches of the covenants in areas that 
were changing from white to black. Tr. 13,419 (Tobin).

97 See Jenkins, 593 F. Supp. at 1491.
08 See p. 11, supra.



34

were excluded from the suburbs and thus settled in the 
city because of the dual housing market, significantly 
reinforcing and enhancing segregation in area schools, 
which in turn contributed to further residential segrega­
tion."

Such State-sponsored housing discrimination through­
out a metropolitan area like Kansas City operates to 
“lock the school system into the mold of separation of the 
races” and supports an interdistrict remedy, as numer­
ous courts have held.* 100 For example, in United States 
v. Board of School Commissioners of Indianapolis, Indi­
ana, 637 F.2d 1101, 1108-11 (7th Cir.), cert, denied, 449 
U.S. 838 (1980), the court relied on a city housing 
agency’s failure to locate public housing outside of the 
city school district as a deliberate segregative act that 
helped perpetuate interdistrict school segregation. Sim­
ilarly, in Evans, 393 F. Supp. 428, the court relied on 
“assistance, encouragement, and authorization by govern­
mental policies” of housing discrimination to support an 
interdistrict remedy.101 In MiUiken I  itself, Justice Stew­
art’s concurring opinion explained that “ [w]ere it to 
be shown, for example, that state officials had contributed 
to the separation of the races . . .  by purposeful racially

"  See pp, 8-10, supra. One witness testified that race would have 
made it difficult for a black to get a loan to buy a home in the 
Kansas City suburbs as late as 1970. Wheeler dep. 308-09. The 
State’s official approval of segregation in schools and housing fueled 
such private bias. Jenkins, 593 F. Supp. at 1503; Tr. 12,974 (Tobin) 
(“there exists in the Kansas City area a dual housing market, one 
for blacks and one for whites . . . .  Formation of the dual housing 
market is an evolutionary process that has its seeds, in my opinion, 
in the segregative policies of the State of Missouri, for example, 
the de jure school system”) ; Tr. 7,819, 7,846 (Kain) (blacks are 
“intensely segregated” in Kansas City area, and “a major de­
terminant of that segregation is the past and continuing actions 
and inactions on the part of the government”).

100 Swann, 402 U.S. at 21. As the Court in Swann went on to 
explain, “[u]pon a proper showing, a district court may consider 
this in fashioning a remedy.” Id.

101 Evans, 393 F. Supp. at 434.



35

discriminatory use of State housing or zoning laws, then 
a decree calling for transfer of pupils across district 
lines . . . might well be appropriate.” 102 *

The District Court ignored these well-established legal 
principles and instead refused to consider the evidence of 
housing violations, based on its finding that the SSDs 
themselves did not act intentionally “to prevent blacks 
from obtaining housing in the district.” 108 Because the 
State’s deliberately segregative housing policies through­
out the metropolitan area perpetuated its interdistrict 
racially dual school system, the lower court erred in fail­
ing to consider those housing violations as part of the 
interdistrict violation here.

The evidence below thus demonstrated that prior to 
1954, the State used its powers in education and housing 
to create a separate school system for blacks which oper­
ated throughout the entire metropolitan area and with­
out regard to school district boundaries. The District 
Court failed to recognize the impact of this interdistrict 
violation, however, because it viewed the documented 
number of black students who were transferred out of 
the SSDs or whose families moved from an SSD to 
KCMSD as “insignificant when compared to the total 
black enrollment in the KCMSD.” 104 * * * The District Court 
apparently assumed that the transfers and relocations 
were without significance unless the number of students 
who could be shown to have transferred or moved from 
a particular suburb to the city was so great that this

102 MiUiken I, 418 U.S. at 755 (Stewart, J., concurring). See
Adams, 620 F.2d at 1294 n.27 (referring to “discriminatory re­
strictions against blacks,” including Missouri’s enforcement of
racially restrictive covenants, which “may have intensified segrega­
tion of the St. Louis area,” in discussing possibility of interdistrict
relief in St. Louis).

108 Order of June 5, 1984 at 44. Accord, id. at 47-48, 50-51, 53, 58, 
66, 73, 77. See Section I, supra.

Jenkins, 593 F. Supp. at 1490. See Order of June 5, 1984 at 
43-95.



36

number alone had a significant segregative effect on 
KCMSD.105 106

The District Court’s assumption was wrong for sev­
eral reasons. First, the State’s segregative practices in 
education and housing had an impact far beyond prompt­
ing black families actually living in the SSDs to move 
into KCMSD. The evidence and findings below clearly 
demonstrate that the State-sponsored racially dual sys­
tems of education and housing were important factors in 
causing many black families to settle initially within 
KCMSD and not in the suburbs.108 For black families 
moving to the Kansas City metropolitan area before 1954, 
settling in an SSD, even assuming that housing avail­
able to blacks could have been found, would have meant 
either sending their children long distances to school in 
KCMSD, or providing their children with no education

105 An argument very similar to the District Court’s narrow 
approach to causation was rejected by this Court in its most recent 
en banc decision in the St. Louis case, Liddell v. Missouri, 731 F.2d 
1294 (8th Cir.), cert, denied, 105 S. Ct. 82 (1984). The State 
argued in Liddell that it could not be required 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.” Liddell, 731 F.2d at 1306 (footnote omitted). The 
Court rejected this claim and concluded that the district court had 
not abused its discretion when it required the State to fund voluntary 
in ter district transfers because “the remedy should correct condi­
tions that ‘flow from such a violation’ and should return victims ‘to 
the position they would have enjoyed in terms of education’ but for 
the violation.” Liddell, 731 F.2d at 1307, quoting Milliken v. 
Bradley, 433 U.S. 267, 282 (1977). The Court concluded that State 
funding of interdistrict transfers was appropriate because the 
“violation scarred every student in St. Louis for over five genera­
tions,” not just those particular students who were transferred to 
maintain the dual system. Liddell, 731 F.2d at 1308.

106 The evidence established and the District Court found that 
the large increase in black concentration and enrollment in KCMSD 
after 1900 was attributable primarily to black families moving into 
the Kansas City area. See June 5, 1984 Order at 15; Jenkins, 593 
F. Supp. at 1490.



37

or an inferior education (even by pre-1954 standards) in 
a substandard, poorly equipped black school.1'07 In con­
trast, the relatively good quality black schools in KCMSD 
served as a “magnet” to attract black families and busi­
nesses to KCMSD and other city districts, as the State 
itself acknowledged.1'08 This channeling of black fam­
ilies into KCMSD was a powerful factor in creating the 
residential segregation that characterizes the Kansas 
City area today.10'9

A second reason why the District Court was wrong in 
its assessment of the significance of interdistrict trans­
fers and relocations is that, as the District Court itself 
found, restrictive covenants, subject to State enforce­
ment, were in place in virtually all the SSDs.11'0 These 107 * * 110

107 See pp. 4-8, supra. The burden on black families was increased 
by the fact that school districts often failed to pay tuition and 
transportation costs for interdistrict transfers, forcing parents to 
do so. See Tr. 4,298-99, 4,302-03, 4,328 (Anderson) ; 3,187, 3,189-90 
(Jackson) ; 3,244-45 (Williams) ; 802 (Porter).

1,018 See note 25, supra. The District Court thus correctly concluded 
that “there is an inextricable connection between schools and hous­
ing,” and that the State was simply wrong in claiming that the 
dual school system did not affect black concentration in KCMSD. 
Jenkins, 593 F. Supp. at 1491. See also id. at 1490; pp. 8-10, supra.

we This effect of the interdistrict dual school system held true 
even for the three SSDs—Grandview, Hickman Mills, and Raytown 
—which the District Court held did not have black residents and 
for the SSDs which transferred only a few black students before 
1954. See Order of June 5, 1984 at 51 (Grandview), 55 (Hickman 
Mills), and 91 (Raytown). The risk to black parents considering 
moving into these SSDs that their children would not be educated 
at all or only at a considerable distance from home (and potentially 
at considerable cost to the parents) could not have been anything 
other than a strong disincentive for blacks to settle there. See 
note 31, supra.

110 See note 94, supra. Although the District Court believed that 
the number of such covenants in some SSDs was not shown to be 
large, restrictive covenants were undercounted in the evidence 
presented at trial because of poor record keeping by government 
agencies during some time periods and because the evidence omitted 
illegible records and those that referred to dark-skinned people gen­
erally rather than blacks specifically. Tr. 13,011-15 (Tobin). More-



38

restrictive covenants, coupled with State-encouraged dis­
crimination by realtors and others, formed a significant 
part of the racially dual housing market in the Kansas 
City area, as the District Court found.* 111 112 113 As a result, 
black families could not find housing in the suburbs; 
instead, they had no choice but to live in the City. As 
the District Court concluded, the dual housing market 
“impacted blacks in the KCMSD and consequently caused 
the public schools to swell in black enrollment.” 11:2

Third, the District Court also erred because it com­
pared the number of students who moved or were trans­
ferred to the student population of KCMSD alone, with­
out considering the impact of that number on the racial 
composition of the SSDs, where the black population is— 
and always has been—very small, largely because of the 
factors discussed above.118 Transfers of even a handful 
of black students out of one of the SSDs could represent 
a transfer of literally its entire black student popula­
tion.114 The segregative effect of such transfers on the

over, a black family looking for housing in the Kansas City area 
would need to encounter only one or two such covenants in an area 
before concluding that it was not hospitable to blacks. See Tr. 
13,023-24, 13,432-33 (Tobin) (racially-restrictive covenants were 
“widespread throughout the three-county area,” such that “[w]her- 
ever there iŝ  residential development, there is some proximity to 
racially restricted areas” ; restrictive covenants accordingly exerted 
a “minefield effect” which made them “an effective barrier to black 
population movements” throughout the area) ; Tr. 1,316 (Strick­
land) (black resident testifying about a move in 1961: “The neigh­
borhood had covenants. You couldn’t move into a, white neighborhood 
if you wanted to”).

111 Jenkins, 593 F. Supp. at 1503.

112 Id. at 1491.

113 The total black population of three-county Kansas City area, 
outside Kansas City itself, was 3,687 in 1900 and had dropped to 
2,038 by 1950, while the white population of the area had more 
than doubled from 62,850 to 142,569. See PX 16B, 16G.

114 See PX 49.



39

SSDs, and thus on the distribution of blacks in the metro­
politan area, was highly significant.

Finally, the extent of black movement to KCMSD was 
undercounted by the statistics on which the District Court 
relied. The evidence demonstrated that black families 
sent children to live with, or gave the addresses of, rela­
tives in KCMSD so their children could attend KCMSD 
schools without having to travel long distances.110 Such 
children do not appear in transfer statistics and such 
families do not appear in relocation statistics. More­
over, transfer records were not well kept, particularly 
before tuition and transportation costs were required to 
be reimbursed.115 116 As black education historian James 
Anderson testified, recorded interdistrict transfers repre­
sented “only a fraction of the numbers of school children 
that commuted, moved [and] relocated during that 
period.” 117

For all of these reasons, the court below erred in re­
jecting evidence of interdistrict transfers as one of the 
bases for finding an interdistrict violation. Interdistrict 
transfers and relocations were important symptoms of 
the condition of State-created racial segregation of school 
districts. It is the vestiges of that condition of State- 
created interdistrict segregation—which continue to char­
acterize the Kansas City metropolitan area—that are the 
predicate for interdistrict relief. The court below erred 
by refusing to look beyond the symptoms and to consider 
interdistrict relief to cure the condition of interdistrict 
segregation.

115 See note 15, supra.

116 See note 15, supra. Accord, PX 185 (September, 1931 State 
Department of Education Bulletin) (“Many districts with colored 
pupils have been sending these pupils to other districts without any 
provision for having attendance reported back to the district.”) .

117 Tr. 4,314 (Anderson). Accord, note 15, supra.



40
B. Because the State of Missouri Has Failed to Fulfill 

Its Affirmative Duty to Dismantle Its Pre-1954 
Metropolitan-Wide Dual School System, and Be­
cause the Vestiges of that System Will Remain 
After Implementation of the District Court’s Re­
medial Order, It Was Error for the Court to Reject 
Interdistrict Relief.

Having thus created a metropolitan-wide, racially dual 
system of education in the Kansas City area, the State 
has a constitutional duty to eliminate its vestiges.118 
The record demonstrates that the State has not fulfilled 
its responsibility.

The State had numerous opportunities to take affirma­
tive steps to dismantle completely the racially dual sys­
tem, but failed to do so. Following Brown, the State 
could have required that school districts take prompt and 
effective action to desegregate; instead, it declared that 
the issue was a local and not a State responsibility, and 
ignored the districts that failed to desegregate or con­
tinued to transfer students pursuant to the pre-1954 in­
terdistrict system for blacks.119 The State could have 
adopted school district reorganization proposals such as 
the Spainhower plan which would have significantly de­
creased racial isolation in the Kansas City area; instead, 
it rejected such proposals and enacted legislation that

118 See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-59 
(1979); Green v. County School Bd., 391 U.S. at 437-38. As the 
District Court explained, where “a current condition of segregated 
schooling exists” in a system where segregation was formerly 
“compelled or authorized by statute,” governmental authorities 
“continue to have an obligation to disestablish that system.” 
Jenkins, 593 F. Supp. at 1504. The court properly recognized that 
intent is not a factor in determining whether the duty to eliminate 
all vestiges of segregation has been fulfilled. Instead, relying on 
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979), the 
District Court held that the appropriate measure “is the effective­
ness, not the purpose, of the actions in decreasing or increasing the 
segregation caused by the dual system.” Jenkins, 593 F Sudd 
at 1504.

118 See pp. 12-16, supra.



41

made desegregative reorganization even more difficult than 
before.120 The State could have enacted proposals calling 
for state financial assistance for voluntary interdistrict 
transfers to promote desegregation; instead, it rejected 
such proposals.121 The State could have granted authority 
and direction to State agencies to help dismantle the dual 
housing market which it helped to create in the Kansas 
City area and which has caused increased black enroll­
ment in KCMSD; instead, as the record indicates, the 
State took no effective action, restrictive covenants con­
tinued to be recorded in the Kansas City area until at 
least 1960, and the dual housing market “still exists to a 
large degree today.” 122

As a result, vestiges of the State-sponsored dual system 
remain in KCMSD and the SSDs today. Specifically, the 
racial identifiability of school districts in the Kansas City 
area today mirrors the situation in 1954.123 In the 1984-

120 See pp. 13-15, supra (discussing defeat of Spainhower plan and 
enactment of HE 171 and SB 29). The District Court’s statement 
that there was “no showing by plaintiffs that the KCMSD’s present 
racial composition would have been different” had HB 171 not been 
passed (June 5, 1984 Order at 28) is simply wrong. The court relied 
on the fact that Kansas City did not reach a population of 500,000 
in the 1960 census, which automatically would have converted the 
city to a single school district before HB 171. Kansas City ex­
ceeded 500,000 at the 1970 census, however, and expansion of 
KCMSD at that time would have brought significant numbers of 
additional white children into the district. See Statistical Abstract 
of the United States 24 (1985).

121 See note 41, supra.

122 Jenkins, 593 F. Supp. at 1491, 1503. See PX 1239A; pp. 15- 
16, supra. See Tr. 14,911-12 (Orfield). The District Court con­
cluded that those facts were legally irrelevant because of its hold­
ing that there was no evidence of racial motivation. See June 5, 
1984 Order at 43-95. As the District Court recognized, however, 
the proper standard under Dayton is whether the post-1954 actions 
were effective in dismantling the dual system. There is thus no 
need to prove post-1954 intent on the part of the State, or indeed 
on the part of the SSDs, which participated in and were affected by 
the State’s pre-1954 intentional violations.

1:2:3 See p. 16, supra. Residential racial concentrations tend to 
perpetuate themselves, in part because others of the same race will



42

85 school year, KCMSD’s student enrollment was 68.3% 
black, while the combined black percentage of the SSDs 
was less than 7%.124 125 As of 1983-84, over 75% of all 
black students in the metropolitan area attended predomi­
nantly black schools 126 in KCMSD.120 At the same time, 
approximately 75,000 white students, more than 80% of 
the white students in the metropolitan area, attended vir­
tually all-white schools in the suburbs.127 Moreover, the 
District Court itself found that the poor quality of the 
schools black students attend in KCMSD is a vestige of 
the former dual system.128

The District Court also erred by failing to apply 
the presumption established by Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1 (1971). 
The Court held in Swann that segregation existing today 
in a school district affected by a prior constitutional viola­
tion is presumed to be the consequence of that violation. 
Thus, where an entire school system had been segregated 
by state law, any school within that system which there­
after remains substantially disproportionate in racial 
composition was presumed to be a vestige of the dual sys­
tem.129 In such a case “the burden upon the school au­

be drawn to that area. See Tr. 16,686-88, 16,749-50 (Olson). One 
of the State’s own witnesses agreed that residential patterns such 
as the black concentration in KCMSD have “long-lasting effects.” 
Tr. 19,259 (Clark). Accord, PX 3003A (showing high percentages 
of homes in the metropolitan area owned by same owner since 
1959 and 1969).

124 KCMSD Plan for Remedying Vestiges of the Segregated Pub­
lic School System (filed January 18, 1985) at 3-4.

125 Predominantly black schools are defined here as those having 
a black population greater than 60%.

126 Ex. K2; PX 53G.

127 p x  53G, PX 1875. These figures are estimates based on the 
available data in the record.

128 Jenkins, 593 F. Supp. at 1492. See note 52, supra.
129 Swann, 402 U.S. at 26.



43

thorities will be to satisfy the court that their racial 
composition is not the result of present or past discrimina­
tory action.” 130 Here, the Swann presumption applies on 
an interdistrict basis because the State mandated an inter­
district, separate school system for blacks before Brown, 
and significant racial disparities among districts partici­
pating in that system remain today.131

It is thus clear that here, as in Dayton Board of Edu­
cation v. Brinkman, 443 U.S. 526, 538 (1979), the State 
is “under an unsatisfied duty to liquidate [the] dual sys­
tem.” Moreover, the record demonstrates that the limited 
remedy ordered by the District Court will leave substan­
tial vestiges of segregation remaining in KCMSD and the 
suburbs. Although the educational enhancements ordered 
by the court below will help relieve the educational harm 
caused by the dual system, the racial identifiability of 
school districts resulting from the State-sponsored dual 
system will persist, particularly for the approximately 
13,000 black children remaining in one-race schools in 
KCMSD. KCMSD’s January 18, 1985 consolidation plan 
would have desegregated schools throughout the metro­
politan area, thus providing a complete and lasting rem­
edy for the State’s metropolitan violation. Yet, the Dis­
trict Court summarily rejected that plan, despite recogni­
tion of its obligation to “make every effort to achieve the 
greatest possible degree of desegregation,” 132 The Dis­

190 Id. Accord, Keyes v. School Dist. No. 1, 413 U.S. 189, 200 
(1973) (holding that where a “current condition of segregated 
schooling exists within a school district [which] was compelled or 
authorized by statute . . . the State automatically assumes an 
affirmative duty” to eliminate all vestiges of segregation).

131 This does not mean, of course, that a constitutional violation 
can be established by nothing more than proof that racial isolation 
exists. It does mean, however, that where an interdistrict constitu­
tional violation is independently proven, as in this case, the Swann 
presumption can be utilized in determining the effects of the viola­
tion which remain to be remedied.

132 Davis v. Bd. of School Comm’rs, 402 U.S. 33, 37 (1971).



44

trict Court’s dismissal of the SSDs and refusal to order 
interdistrict relief thus was erroneous.133

III. KCMSD HAS STANDING TO BRING THIS ACTION 
AS A PARTY PLAINTIFF AND SHOULD NOT 
HAVE BEEN REALIGNED AS A DEFENDANT.

As discussed above, KCMSD initiated this action as a 
party plaintiff in order to secure full desegregation relief 
for itself and its students.134 In 1978, however, the court 
below dismissed KCMSD as a plaintiff for lack of standing 
and realigned it as a defendant, even though the court 
held three years later that KCMSD did have standing to 
pursue its cross-claim for desegregation relief against the 
State.135

The District Court’s 1978 decision was erroneous. 
KCMSD has standing as a party plaintiff in this action on 
three separate and independent bases. First, KCMSD is a 
proper plaintiff based upon its allegation of direct eco­
nomic injury to itself. The trial court admitted as much 
in its 1981 opinion which held that KCMSD has standing 
to assert a cross-claim against the State defendants, em­
phasizing that its prior opinion denying standing did not 
mean that KCMSD “should not be permitted to seek relief 
in federal court for the State’s alleged violations of con­
stitutional commands which have affected the District’s 
own rights.” 136 Similarly, in Board of School Directors 
of Milwaukee v. Wisconsin, No. 84-C-877 (E.D. Wis. Apr.

1:33 See June 14, 1985 Order at 30. Accord, Green, 391 U.S. at 
437-38 (government’s duty is to “take whatever steps might be 
necessary to convert to a unitary system in which racial discrimina­
tion would be eliminated root and branch”) ; Swann, 402 U.S. at 15 
(the constitutionally-required “objective today remains to eliminate 
from the public schools all vestiges of state-imposed segregation”).

134 See p. 16, swpra.
135 See p. 17, supra.

1:36 Black v. Missouri, No. 77-0420-CV-W-3, slip op. at 6 (W.D. 
Mo. June 1, 1981) (emphasis in original).



45

29, 1985), the court upheld the standing of a school board 
as a named plaintiff in the action, with board members 
and district students as co-plaintiffs: “ [Bjecause the
Board has alleged a distinct injury to itself, its standing 
need not depend on asserting third-party rights.” 137

KCMSD also has standing because the named defend­
ants have prevented it from carrying out its constitutional 
duty to desegregate the public schools. This Court first 
recognized this basis for school board standing in Brewer 
v. Hoxie School District No. 46, 238 F.2d 91 (8th Cir. 
1956). In Brewer, the court upheld the standing of the 
school board, the board members, and the superintendent 
to bring an action against individuals and organizations 
who were obstructing the board “from securing the equal 
protection of the laws in the operation of the public 
schools to all persons within the district.” 138 In lan­
guage directly applicable to the KCMSD plaintiffs, the 
Brewer court stated,

Plaintiffs are under a duty to obey the Constitu­
tion. . . .  It follows as a necessary corollary that 
they have a federal right to be free from direct and 
deliberate interference with the performance of the 
constitutionally imposed duty. The right arises by 
necessary implication from the imposition of the 
duty as clearly as though it had been specifically 
stated in the Constitution.139

1,37 Slip op. at 19. See also Pierce v. Society of Sisters, 268 U.S. 
510, 535 (1925) (upholding standing of private school as plaintiff, 
based upon direct economic injury to school, to enjoin enforcement 
of statute requiring all parents to send their children to public 
schools).

138 Brewer, 238 F.2d at 93.
139 Id. at 99. This Court reiterated the vitality of Brewer in 

Regents of the University of Minnesota v. National Collegiate 
Athletic Ass’n, 560 F.2d 352 (8th Cir. 1977), determining that when 
an adjudication of the third parties’ rights is necessary to an 
adjudication of the constitutional controversy raised by the plain­
tiff—as is the case with KCMSD and the rights of its students— 
the plaintiff is not deprived of standing. Id. at 364.



46

Numerous courts have similarly upheld the standing of 
school boards to pursue constitutional claims of the type 
involved in this case.140

Finally, KCMSD also has standing to challenge actions 
by others that violate the Fourteenth Amendment rights 
of its students, particularly since the same actions also 
have caused direct injury to KCMSD. In the Akron case, 
the Sixth Circuit held that the plaintiff school board had 
standing to litigate the rights of its students to receive 
a non-segregated education. KCMSD similarly has stand­
ing to litigate its students’ rights because of the “close 
relationship between the plaintiffs who seek to bring an

140 See, e.g., Akron Bd. of Educ. v. State Bd. of Educ. of Ohio, 490 
F.2d 1285, 1290-91 (6th Cir.), cert, denied, 417 U.S. 932 (1974), 
citing Brewer and Bd. of Educ. v. Allen, 392 U.S. 236, 241 n.5 
(1968) (explicitly adopting the legal conclusions set forth in Brewer 
with regard to standing of municipal board of education to enjoin 
action of state board that would have segregative effects); Bd. of 
School Directors of Milwaukee v. Wisconsin, slip op. at 16-18, 20 
(city school board has standing to sue suburban school board de­
fendants based upon allegations that defendants thwarted city 
board’s desegregation efforts) ; Little Rock School District v. Pulaski 
County School District No. 1, 584 F. Supp. 328, 352 (E.D. Ark. 
1984), appeal pending, No. 85-1078-EA (8th Cir.) (city school 
district has standing as plaintiff to bring desegregation action 
against suburban districts “in furtherance of its affirmative duty 
to eliminate all vestiges of segregation root and branch”) ; Liddell 
v. Bd. of Educ. of St. Louis, No. 72-100C(4), slip op. at 1-2 (E.D. 
Mo. Sept. 24, 1981) (granting motion of St. Louis Board of Educa­
tion for realignment as plaintiff as to claims of interdistrict consti­
tutional violations) ; Bradley v. School Bd. of Richmond, 338 
F. Supp. 67, 230 (E.D. Va.) (city school board has standing to 
maintain cross-claim against state in support of plaintiff-students’ 
desegregation action arising out of the board’s constitutional obli­
gation to afford its pupils equal educational opportunities), rev’d 
on other grounds, 462 F.2d 1058 (4th Cir. 1972), aff’d by equally 
divided court, 412 U.S. 92 (1973) (per curiam). The District Court 
in the Bradley case recently granted the motion of the city school 
board, its members, and its superintendent to be realigned as 
parties plaintiff for the purpose of seeking relief from the state 
pursuant to Milliken II. Bradley v. School Bd. of Richmond, No. 
3353-R, slip op. at 1 (E.D. Va. Aug. 31, 1984).



47

action and the class of persons whose constitutional 
rights are claimed to be violated . . . 141

Despite its own recognition that KCMSD suffered in­
jury sufficient for standing purposes, the trial court de­
nied KCMSD standing based on the mistaken belief 
that KCMSD was required to demonstrate that the re­
lief which would be obtained would inevitably remove 
completely all the harm alleged by KCMSD.142 As the 
Supreme Court has explained, however, such a holding 
constitutes a “draconic interpretation” of standing law 
“that is justified by neither precedent nor principle.” 
Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). The 
proper standard, the Supreme Court instead has held, 
is that a plaintiff must show that its injury is “likely to 
be redressed” by a favorable decision. Simon v. Eastern 
Kentucky Welfare Rights Organization, 426 U.S. 26, 41 
(1976). KCMSD’s standing to request interdistrict re­
lief and State financial support clearly passes constitu­
tional muster under this standard. Indeed, the trial court 
itself later conceded that KCMSD, in its cross-claim 
against the State defendants (which was no different in 
substance from the original complaint), had demon­
strated a “substantial likelihood that the judicial relief 
requested will prevent or redress the claimed injury.” 
Black v. Missouri, No. 77-0420-CV-W-3, slip op. at 5 
(W.D. Mo. June 1, 1971), quoting Duke Power Co. v. 
Carolina Environmental Study Group, Inc., 438 U.S. 59, 
79 (1978).

The trial court was also apparently concerned that hy­
pothetical conflicting interests between KCMSD and the 
plaintiff-students constituted a “prudential” considera­
tion requiring a safeguard.143 This concern was ad­

141 See Akron, 490 F.2d at 1291. Accord, Brewer, 238 F.2d at 104.

142 See 460 F. Supp. at 438.

M3 Beyond the constitutional requirements for standing, the 
Supreme Court has identified several prudential principles that



48

dressed, however, by requiring separate counsel for the 
students. That was all the safeguard that was needed.144 
To further order the realignment of KCMSD as a de­
fendant was both unnecessary and unjustified under the 
great weight of authority. The trial court’s ruling can 
only discourage other school districts who wish to ac­
knowledge and discharge their constitutional responsibil­
ities with respect to school desegregation.145 This Court 
accordingly should reverse the order of the trial court 
and reinstate KCMSD, its board members, and its super­
intendent as parties plaintiff in this action, so as to re­
flect the true alignment of the parties throughout this 
litigation.

bear upon the question. Valley Forge Christian College v. Americans 
United for Separation of Church and State, Inc., 454 U.S. 464, 
474-75 (1982). The trial court misapplied these prudential princi­
ples and also failed to heed the Supreme Court’s underlying warn­
ing: The prudential considerations simply should not be applied 
where their underlying justifications, i.e., the avoidance of unneces­
sary adjudication of rights and the assurance that the “best pro­
ponents” of the rights are before the court, Singleton v. Wulff, 428 
U.S. 106, 113-14 (1976), are absent, as they are in this action. As 
demonstrated at pp. 44-46, supra, the courts that have examined the 
standing of a school board to litigate desegregation actions, includ­
ing courts in this Circuit, clearly confirm the validity of all three 
bases for standing asserted by KCMSD, thus refuting the trial 
court’s prudential consideration analysis.

144 KCMSD does not challenge the trial court’s decision to require 
separate counsel, nor does it believe that the court’s error regarding 
KCMSD’s standing vitiates any of the proceedings below. This 
Court simply should realign KCMSD as a plaintiff to reflect the 
reality of the role it has in fact played in this action.

145 See Washington v. Seattle School District No. 1, 458 U.S. 
457, 487 n.31 (1982) (holding that Seattle School Board, which 
had prevailed in lawsuit challenging State law which burdened 
local desegregation efforts, was properly awarded attorneys’ fees in 
order, inter alia, to “encourage . . . [school board] compliance with 
and enforcement of the civil rights laws”).



49

CONCLUSION

For all the foregoing reasons, KCMSD respectfully 
submits that: (1) the District Court’s Orders of June 5, 
1984, September 17, 1984, January 25, 1985, and June 
14, 1985, should be reversed insofar as they dismissed 
the SSDs and denied interdistrict relief; (2) this matter 
should be remanded to the District Court for interdistrict 
remedial proceedings in which the SSDs will have the 
opportunity to try to rebut the evidence in the record 
that they participated in and were affected by the State’s 
interdistrict violations and are needed in a remedy to 
correct those violations; (3) the District Court should be 
directed to order an interdistrict consolidation remedy de­
signed to eliminate the vestiges of the State-created ra­
cially dual school system in the Kansas City area; and 
(4) the District Court’s Order of October 6, 1978, dis­
missing KCMSD as a plaintiff for lack of standing, should 
be reversed and KCMSD should be realigned as a plain­
tiff.

Respectfully submitted,

James B orthwick 
Shirley W. Keeler 
Blackwell, Sanders, Matheny, 

Weary & Lombardi 
Five Crown Center 
2480 Pershing Road 
Kansas City, Missouri 64108 
(816) 474-5700

David S. Tatel 
Allen R. Snyder 
Elliot M. Mincberg 
Patricia A. Brannan 
Hogan & Hartson 
815 Connecticut Ave., N.W. 
Washington, D.C. 20006 
(202) 331-4500 
Attorneys for Appellant 

Kansas City, Missouri 
School District