Jenkins v. Missouri Brief of Appellant Kansas City Missouri Federation of Teachers Local 691

    UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 85-2077

KALIMA JENKINS, et al., 
Appellants, 

vs.

STATE OF MISSOURI, et al.. 
Appellees.

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

Honorable Russell G. Clark

BRIEF OF APPELLANT KANSAS CITY MISSOURI 
FEDERATION OF TEACHERS LOCAL 691

Michael D. Gordon, P.C.JOLLEY, MORAN, WALSH, HAGER & GORDON 
1125 Grand Avenue, Suite 1300 
Kansas City, Missouri 64106 
Tel: (816) 474-1240



UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 85-2077

KALIMA JENKINS, et al., 
Appellants, 

vs.

STATE OF MISSOURI, et al.. 
Appellees.

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

Honorable Russell G. Clark

BRIEF OF APPELLANT KANSAS CITY MISSOURI 
FEDERATION OF TEACHERS LOCAL 691

Michael D. Gordon, P.C.JOLLEY, MORAN, WALSH, HAGER & GORDON 
1125 Grand Avenue, Suite 1300 
Kansas City, Missouri 64106 
Tel: (816) 474-1240



SUMMARY AND REQUEST FOR ORAL ARGUMENT

On June 14, 1985, the District Court, as part of its 

remedial order, established a ten person monitoring committee to 

help it implement its desegregation plan. The Court's order 

required that monitoring committee members be independent of the 

parties. The order also structured the monitoring committee so 

that the chairperson of each of three subcommittees (whose 

members were selected from among nominees by the State, KCMSD and 

AFT 691) comprised an Executive Committee, together with a 

general chairperson (selected from among nominees by 

plaintiff) . This Executive Committee was granted substantial 

authority relative to the monitoring committee as a whole. On 

August 12, 1985, the Court appointed Eugene E. Eubanks general 

chair of the monitoring committee and failed to name any AFT 691 

nominee as chair of any of the monitoring subcommittees. By its 

actions, the Court violated the standards it set in its June 14, 

1985 order, deprived AFT 691 of a meaningful role on the 

monitoring committee and created a perception of unfairness that 

deprives the monitoring committee of a fair chance of success.

We request twenty minutes for oral argument.

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TABLE OF CONTENTS

Summary and Request for Oral Argument ........................  i

Table of Contents ................................................ ii

Table of Authorities ............................................  iii, iv

Preliminary Statement ...........................................  v

Statement of the Issues ......................................... vi

Statement of the Case ...........................................  1

Argument ........................................................... 7

I. The Trial Court Abused Its Discretion
By Selecting Dr. Eubanks As General
Chairperson Of The Monitoring Committee .............  7

II. The Trial Court Abused Its Discretion
By Failing To Name An AFT 691 Nominee As
Chair Of One Of The Subcommittees ..................  16

CONCLUSION ........................................................  18

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TABLE OF AUTHORITIES

Cases

Coca Cola v. Tropicana Products; Inc./
690 F .2d 312 (2nd Cir. 1982) .............................  8

Conway v. Chemical Leaman Tank Lines,
610 F . 2d 360 (5th Cir. 1980) ............................. 8

Dyas v. Lockhart, 705 F.2d 993 (8th Cir. 1983)  ..... 15

Home Owners' Loan Corp. v. Huffman, 134 F.2d 314
(8th Cir. 1943) ............................................  7

Kennedy v. Great Atlantic & Pacific Tea Co.,
551 F . 2d 593 (5th Cir. 1977) ............................. 15

McBee v. Bomar, 296 F.2d 235 (6th Cir. 1961) .............  8

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976) ........  13, 14

Springfield Crusher, Inc, v. Transcontinental
Insurance Co. , 372 F.2d 125 (5th Cir. 1967) ........  8

U.S. v. Dalfonso, 707 F.2d 757 (3rd Cir. 1983) ...........  15

U.S. v. Poludniak, 657 F.2d 948 (8th Cir. 1981) .......... 14

Withrow v. Larkin, 421 U.S. 35 (1975) ............. ...... . 15

Statutes

28 U.S.C. §144 .................................................... 14

28 U.S.C. §455 .................................................... 14

Other Authorities

Aronow, "The Special Master in School Desegregation Cases:
The Evolution of Roles in the Reformation of Public 
Institutions Through Litigation,"Hastings 
Constitutional Law Quarterly, 739 (1980) ...............  13

Carol and others, "Court Mandated Citizen
Participation In School Desegregation: Monitoring 
Commissions," (1977) ......................................... 17

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Carol, "Viewpoints and Guidelines on Court Appointed Citizens' 
Monitoring Commissions in School Desegregation", Community 
Relations Service, U.S. Department of Justice,
(1977) .......................................................  11, 16 , 17

Hochschild, "It Depends: Can Citizen Monitoring Groups Help 
Judges Implement Desegregation?", Integrated 
Education, 1982 ..........................................  11

King, "The Los Angeles Experience in Monitoring 
Desegregation: Progress and Prospects",
The Rand Paper Series, 1980 ............................ 11

Kirp and Babcock, "Judge and Company: Court Appointed
Masters, School Desegregation & Institutional Reform,"
32 Albama Law Review 313 (1981) ....................... 13

Stevens, "The School Monitors", XXI
Integrateducation 97 (1984) .............................  11

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PRELIMINARY STATEMENT

1. The decision appealed from was issued by the Honorable 

Russell G. Clark of the United States District Court for the 

Western District of Missouri, Western Division, on August 12, 

1985 and is unreported.

2. This is a school desegregation case. Jurisdiction of 

the District Court was based on 28 U.S.C. §1331 because the 

action arises under the Constitution and laws of the United 

States, and 28 U.S.C. §1343 because it seeks redress from 

deprivation, under color of state law, of rights secured by the 

Constitution and laws of the United States.

3. Jurisdiction of this Court is invoked pursuant to 

28 U.S.C. §1291. Appellant filed timely notice of appeal on 

August 26, 1985.

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STATEMENT OF THE ISSUES

!• Whether the trial court abused its discretion by 

appointing Eugene E. Eubanks general chair of the 

monitoring committee.

(D Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976)

(2) McBee v. Bomar, 296 F.2d 235 (6th Cir. 1961)

(3) U.S. v. Poludniak, 657 F.2d 948 (8th Cir. 1981)

2. Whether the trial court abused its discretion by failing 

to appoint an AFT 691 nominee as chair of one of the 

monitoring subcommittees.

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STATEMENT OF THE CASE

This is a school desegregation case. The course of the 

proceedings below are, or soon will be, known to this Court from 

the appeals filed by the Kansas City Missouri School District 

("KCMSD"), the State of Missouri ("State") and plaintiffs in 

Appeal Numbers 85-1765WM, 85-1949WM and 85-1974WM. We are Kansas 

City Missouri Federation of Teachers Local 691 ("AFT 691"), a 

labor organization representing KCMSD's teachers, counselors, 

school librarians, home school coordinators and other certifi­

cated employees who perform similar tasks and its full-time non- 

supervisory paraprofessionals, nurses, accompanists, security 

employees and miscellaneous compensatory education employees.— /

On November 4, 1984, our Motion to Intervene for the purpose of 

determining remedy was granted by the District Court.

On June 14, 1985, following a hearing on the remedy and 

briefing by all parties, Judge Clark issued his Memorandum 

Opinion setting forth his remedial order. At pages 37 through 

40, the trial court created a monitoring committee. The purpose

— / See our June 20, 1983, Suggestions in Support of Kansas 
City Missouri Federation of Teachers Local 691 to Intervene. 
Because the entire record prior to the Court's June 14, 1985 
order has been designated for appeal in the three other appeals 
presently before the Court, we have restricted our designation of 
the record on appeal to relevant items subsequent to June 14,
1985 to avoid unnecessary duplication of the voluminous record.
To the extent we refer to matters not designated in the clerk's 
record prepared at our request, we ask the Court to reference the 
record in the companion appeals.



of the monitoring committee was "to oversee the implementation of 

[the remedial] plan" with "the responsibility for conducting 

evaluations and collecting information and making recommendations 

for any modifications concerning the implementation of the 

plan." The monitoring committee consisted of ten members, four 

Blacks, four Whites and two Hispanics. It was subdivided into 

three subcommittees composed of three members each: (1) a Budget 

Committee; (2) a Desegregation Committee; and (3) an Education 

Committee. One person on each subcommittee was to be chairperson 

of the subcommittee. Each chairperson served on a four-person 

Executive Committee together with a General Chairman who also was 

an ex officio member of the three subcommittees.

The Executive Committee was charged with responsibility

(1) to specify the duties of the other three subcommittees;

(2) to make such investigations as it deems necessary; (3) to 

report to the Court concerning progress or problems of plan 

implementation annually before July 1 and at such other times it 

feels necessary; and (4) to receive all decisions and recommenda­

tions of the other three subcommittees "for final review and 

action." Each Executive Committee member has one vote; but in 

the event of a tie, the General Chairperson has two votes. The 

Court expressly noted, "The general chairperson's role will be a 

pivotal one." In addition to his other functions, the General 

Chairperson bore responsibility for (1) insuring that subcommit­

tees functioned responsibly and efficiently; (2) insuring that

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the Court is properly and timely informed; and (3) assisting all 

parties to reconcile differences.

Monitoring committee members for the three subcommittees 

were to be selected by the Court from a twenty-seven person panel 

—  nine persons nominated by each of the two defendants and AFT 

691. In this manner, one person submitted by KCMSD, the State 

and AFT 691 was to be appointed to serve on each subcommittee.

The General Chairperson was to be selected from among three 

nominees named by plaintiffs. All committee appointments were 

for two years subject to removal for cause by the Court.

In defining the qualifications for monitoring committee 

eligibility, the Court said three times that members should be 

independent. Thus, the Court wrote:

(1) The monitoring function is one which 
should be conducted by individuals or 
organizations independent of the parties 
involved, to enable the Court to have an 
objective assessment of the progress and 
problems encountered in implementing the 
desegregation plan (p. 37-38);

(2) The criteria this Court will use in 
selecting the general chairperson will 
include, among other things, the individual's 
independence from the parties in this case
. . . (p. 39); and

(3) Nominees submitted for each of the 
committees shall . . .  be independent from any 
of the parties involved in the case . . .
(p. 39).

In addition to the requirement that the person be independent, 

the Court listed the following criteria for general chairperson;

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(1) "the individual's commitment to the implementation of the 

desegregation plan"; (2) the availability of sufficient time to 

perform the required functions; and (3) appropriate "background" 

in the community, education "and other related matters."

Nominees to the subcommittees, in addition to their independence 

from the parties, were to be (1) experienced and expert in the 

areas for which they were nominated; (2) committed to the 

successful implementation of the plan; and (3) able to spend 

sufficient time to fulfill their committee responsibilities.

Pursuant to the Court's June 14, 1985 order, the parties 

submitted their nominees on or before July 15, 1985.1/ KCMSD 

proposed Dr. Eugene E. Eubanks ("Dr. Eubanks") for the 

Desegregation Committee. Plaintiffs nominated Dr. Eubanks for 

General Chairperson.

Dr. Eubanks, Dean of the UMKC School of Education, was then, 

and until August 1, 1985 continued to be, Deputy Superintendent 

for Instruction for KCMSD, a position he had held for one year. 

Prior to these duties, Dr. Eubanks had a long relationship with 

KCMSD as a consultant and advisor, including service as 

consultant to the Kansas City Desegregation Task Force in 1976 

and as Educational Consultant to the KCMSD from 1975-1978

1/ The state listed no Hispanics. (See its July 12, 1985 
Recommendations). KCMSD named one Hispanic, Michael Sancho (See 
its July 15, 1985 Nominations) and AFT 691 submitted two 
Hispanics, Flores and Perez (See our July 12, 1985 List of 
Nominees).

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(Ex. K85; App. p. 7-8). Moreover, Dr. Eubanks, while working for 

KCMSD, was a primary author of KCMSD's proposed intradistrict 

remedial plan and "worked with vigor" on the KCMSD's rejected 

metropolitan consolidated interdistrict plan (Tr. 22,352;

App. 10). He attended meetings with the Court in chambers on 

behalf of KCMSD, he sat with KCMSD at their counsel table during 

the trial and he participated in settlement discussions with 

various parties on behalf of KCMSD. We must assume he assisted 

KCMSD in its trial preparation and in its appeals. At the 

liability and remedy hearings, he testified on behalf of KCMSD.

At the remedy hearing he testified, under oath:

Q. All right. And with regard to your own preference 
as to the preferable plan, which is it between [the 
intradistrict and consolidated interdistrict plans].

A. My preference is the Consolidated Plan because it 
offers the only excellent probability of effective, 
meaningful and permanent desegregation for the kids 
that reside presently in the Kansas City School 
District (Tr. 22,352; App. 10).

On July 24, 1985, AFT 691 filed Objections To Certain 

Monitoring Committee N o m i n a t i o n s / We requested the Court to 

require KCMSD and plaintiffs to submit a nominee in place of Dr. 

Eubanks or, in the alternative, to decline selection of Dr. 

Eubanks.

— / In addition to Dr. Eubanks, we also objected to the 
KCMSD's nomination of Dr. Daniel U. Levine for many of the same 
reasons. Since Dr. Levine was not selected by the Court, we make 
no further comment regarding him.

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On August 1, 1985, the District Court met with the 

individuals nominated by the parties except six nominees who 

could not attend. The meeting was conducted in a courtroom and 

counsel were present. Judge Clark called those nominees who were 

present to the witness chair and asked each several questions.

No nominee was put under oath. Counsel were not allowed to 

inquire. Dr. Eubanks, in response to the Court's informal 

questioning, stated that he did not believe his prior relation­

ship to KCMSD would interfere with his service on the monitoring 

committee and that, while he favored the rejected consolidation 

plan over the Court's intradistrict plan, he did not think he 

would have a problem implementing the Court's plan. Dr. Eubanks 

thanked the Court for not placing him under oath.

At the conclusion of this meeting, Judge Clark announced his 

selection to the monitoring committee. On August 12, 1985, the 

Court formalized its decision by written order. According to the 

order, the Court based its decision "upon the criteria 

established by this Court in its June 14, 1985 order, the 

information provided by the parties regarding their nominees, and 

the interviews conducted during the August 1, 1985 hearing." The 

Court appointed Dr. Eubanks as General Chairman. The Desegrega­

tion Committee consisted of Dr. James R. Oglesby (Chair), Dr.

Joan Mahoney and Javier M. Perez, Jr. The Budget Committee 

contained Kenneth Craft (Chair), Herman A. Johnson and Louis A. 

Wright. Dr. Michael Sancho (Chair), Ed Drake and Dr. Edward 

Fields were selected for the Education Committee. None of the 

chairpersons were AFT 691 nominees (August 12, 1985 Order; App. 1-2).

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ARGUMENT

I. The Trial Court Abused Its Discretion By Selecting Dr. Eubanks 
As General Chairperson Of The Monitoring Committee

We begin, as we must, by acknowledging our heavy burden. 

Selection of monitoring committee members is a matter within the 

sound discretion of the Court because it involves decisions "to 

which no strict rule of law is applicable but which, from their 

nature, and the circumstances of the case, are controlled by the 

personal judgment of the court," Home Owners' Loan Corp. v.

Huffman, 134 F.2d 314 (8th Cir. 1943). Therefore, to reverse the 

trial court's decision, we must show that it abused its 

discretion. This is a big order, especially in view of the 

thoughtfulness running through Judge Clark’s other actions in 

this case. (See our separate Brief of Appellee/Intervenor filed 

today). Our task is made no easier by the paucity of legal 

precedent concerning selection of monitoring personnel in school 

desegregation cases.

However, we are able to meet our burden because in this 

instance the District Court failed "to apply the appropriate 

equitable and legal principles to the established or conceded 

facts and circumstances." Home Owners' Loan Corp. v. Huffman, 

id. More specifically, the selection of Dr. Eubanks violated the 

standards the District Court set for itself and, in addition, 

created an appearance of impropriety that can be measured 

objectively.

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The term "abuse of discretion" is unfortunate. The phrase 

"has no pejorative content. It means to us no more than the 

court has clearly erred." Conway v. Chemical Leaman Tank Lines, 

610 F.2d 360 (5th Cir. 1980). Also, Springfield Crusher, Inc, v. 

Transcontinental Insurance C o . , 372 F.2d 125 (5th Cir. 1967). 

("There is an abuse of discretion . . . when the action of the 

trial judge is clearly contrary to reason and not justified by 

the evidence"). As the Sixth Circuit noted in McBee v. Bomar,

296 F .2d 235 (6th Cir. 1961),

"Abuse of discretion" is a phrase which 
sounds worse than it really is. All it need 
mean is that, when judicial action is taken in 
a discretionary matter, such action cannot be 
set aside by a reviewing court unless it has a 
definite and firm conviction that the court 
below committed a clear error of judgment in 
the conclusion it reached upon a weighing of 
the relevant factors.

An appellate court "is not limited to reversing only when the 

lower court's action exceeds any reasonable bounds and to rubber 

stamping with the imprimatur of an affirmance when it does 

n°t." Coca Cola v. Tropicana Products, Inc., 690 F.2d 312 

(2nd Cir. 1982).

The trial court's June 14, 1985 order repeatedly stressed 

the need for independence of the Monitoring Committee in general 

and of the General Chairperson in particular. At least three 

times in three pages the Court properly emphasized that indepen­

dence of the parties was an essential qualification. The Court 

also wisely concluded that the monitoring committee chairperson

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should be committed to the implementation of the Court's intra­

district remedy. We have no quarrel with the Court's criteria. 

Indeed, for the very reasons stated by Judge Clark, we now 

believe they are crucial to the monitoring committee's success.

We do object to the Court's refusal to abide by the standards it 

set for itself.— /

Dr. Eubanks had worked closely with KCMSD over many years as 

a consultant and advisor since 1975. During the desegregation 

litigation, he had great visibility as spokesperson for KCMSD.

He testified in both the liability and remedy stages, sat with 

KCMSD at its counsel table, participated in settlement 

discussions and other meetings with the parties and the Court. 

Indeed, at the time of his appointment, he was finishing a one 

year contract with KCMSD as Deputy Superintendent. Moreover, he 

helped author both KCMSD's consolidated and intradistrict plans 

and preferred the rejected consolidated plan as "the only 

excellent probability of effective, meaningful and permanent 

desegregation." There is no question that Dr. Eubanks, in act

— / Like the other parties, we had originally proposed a 
different form of monitoring committee. We contemplated a larger 
committee with direct participation by the parties. However, 
after the Court defined its concept of the committee, including 
its desire that all members be independent, we proceeded to make 
our nominations in conformance with the Court's directives.
After taking into account the Court's requirements, including 
both racial make-up and independence, it is little wonder we felt 
distressed when the State listed no Hispanics and KCMSD listed 
only one Hispanic to fill the two Hispanic slots created by the 
Court's order and again when both KCMSD and plaintiffs nominated 
Dr. Eubanks. After all, it was KCMSD and plaintiffs who pushed 
for independent monitoring members at the remedial hearing. (See 
Fulson testimony).

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and public perception, allied himself with plaintiffs as part of 

the "friendly adversary" relationship between KCMSD and 

plaintiffs (September 17, 1984 Order, p. 1) and his common 

interest with them in achieving a consolidated, metropolitan 

remedy. Accordingly, Dr. Eubanks failed to satisfy the criteria 

established by the Court that he be independent and be committed 

to the Court's intradistrict remedy.

Dr. Eubanks unsworn statements on August 1, 1985, that he 

could separate himself from his relationship with the KCMSD and 

that he could commit himself to the Court's remedial plan are 

worth little. Even if made in good faith, the statements cannot 

counterbalance Dr. Eubank's sworn statements to the contrary, his 

substantial past association with KCMSD or, most important, the 

perception of the other parties and the public that he is an 

alter ego of KCMSD and an unalterable friend of plaintiffs. 

Moreover, even if Dr. Eubanks sincerely meant to exercise 

independence and wholehearted commitment to the Court's plan, no 

human can completely divorce himself from years of partisanship 

to become a neutral player in the very matter in which he had so 

effectively functioned as an advocate.

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Judicial use of a monitoring committee is relatively new.

It has been used in numerous school desegregation cases although 

there appears to be no consistent pattern.!/ In Stevens, "The 

School Monitors", XXI Integrateducation 97 (1984), the author 

notes "No two monitoring bodies are quite alike." Moreover, 

according to another commentator, the success of monitoring 

committees turns, in large part, on "the responses of the 

community to monitoring activity." Carol, "Viewpoints and 

Guidelines on Court Appointed Citizens' Monitoring Commissions in 

School Desegregation", Community Relations Service, U.S. 

Department of Justice p. 4 (1977). Furthermore, real or 

perceived conflicts of interest threaten the success of the 

desegregation effort. In King, "The Los Angeles Experience in 

Monitoring Desegregation: Progress and Prospects", The Rand Paper 

Series, 1980, a monitoring committee member in Los Angeles

— / In, Hochschild, "It Depends: Can Citizen Monitoring 
Groups Help Judges Implement Desegregation?", Integrated 
Education, 1982, pp. 22-31, the author examines fifteen school 
districts where from 3 to 100 members had been named to 
monitoring committees with budgets between $0 and $800,000. The 
dangers of an improper selection were summarized:

Thus monitoring can be worse than useless if 
not done well. If the group lacks power or 
backing, if its structure gets in the way of 
its functioning, if its members are not suited 
to its mandate, if it does not accept its 
limited role, a judge might even be better off 
without it. A poorly-functioning monitoring 
body embitters public-spirited citizens; it 
teaches the schools that they can ignore court 
orders with impunity; it creates new work and 
headaches for its sponsoring judge; it 
demonstrates once again to minorities that the 
white power structure does not really intend 
to change anything.

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assessed her experiences and wrote, at page 13, that "The 

committee's court-ordered neutrality was never accepted by any of 

the parties in the case, and, as time went on, it became very 

difficult for some of the committee members to maintain a neutral 

stance." She lamented the failure to achieve neutrality and, at. 

page 21, described the counter-productive results:

Conflict of interest is a more difficult 
problem to solve and no adequate solution was 
ever reached. The members of the committee 
were selected because of their accomplishments 
and visibility in the Los Angeles community. 
This visibility existed because several of the 
committee members were active in the schools 
or in community organizations that were 
involved with the schools. Some of these 
organizations were strong supporters of school 
desegregation. The judge took no clear 
position about committee members' continued 
membership in the organizations unless the 
attorneys for the school board or the dominant 
anti-desegregation group objected. This 
position seemed to indicate tacit approval to 
committee members. In fact, the judge's 
position was more pragmatic: committee members 
could be active in any organizations as long 
as the judge did not get any pressure about it 
from the school district. This resulted in 
some committee members being challenged far 
more often than others, because they received 
more scrutiny by the district or by the anti­
desegregation group. Not surprisingly, only 
minority members of the committee were asked 
to disassociate themselves from various 
organizations, possibly because they were 
subject to the greatest scrutiny.

In our case, the General Chairperson's independence, like 

the chastity of Caesar's wife, should be beyond reproach. This 

is because the role of General Chairperson is "pivotal" and

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because the monitoring committee is so small that each member is 

spotlighted more than if the committee contained many members 

with diffuse responsibilities. Whether he wants to or not, Dr. 

Eubanks cannot exercise independence and cannot be perceived as 

independent.

Perhaps because of the recent development of monitoring 

committees and the variance in their structure, we have been 

unable to find court precedent directly on point. To the extent 

there was sparse precedent for the District Court, there is more 

reason for this Court to provide direction. The closest case is 

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976). There, court 

appointed masters in the Boston desegregation case were 

challenged because of their alleged relationship to two institu­

tions related to the litigation: (1) employment by the Harvard

University Graduate School of Education which was associated with 

the Harvard Center for Law and Education (which employed three 

attorneys representing plaintiffs); and (2) membership in the 

NAACP (which had provided financial assistance and counsel to 

plaintiffs). While the role of masters in desegregation cases is 

distinguishable from the function of monitoring committee 

members,— / Morgan inferentially supports our position.

— / See, Aronow, "The Special Master in School Desegregation 
Cases: The Evolution of Roles in the Reformation of Public 
Institutions Through Litigation," 7 Hastings Constitutional Law 
Quarterly. 739 (1980) and Kirp and Babcock, "Judge and Company: 
Court Appointed Masters, School Desegregation and Institutional 
Reform," 32 Alabama Law Review 313 (1981). The latter article, 
at 322, contains a conclusion applicable to our case, "A 
politically unsuccessful master will exacerbate tensions among 
the parties. To the extent that a master's expertise or 
neutrality is seriously called into question his effectiveness 
may be undermined . . .".

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The First Circuit rejected the challenge to the court appointed 

masters. However, the court found that the masters' relation­

ships to plaintiffs were attenuated because the Harvard Center 

for Law and Education "is completely independent of the Graduate 

School of Education." Therefore, unlike our case in which Dr. 

Eubanks is directly associated with KCMSD, there could be no 

"reasonable inference of a possible bias." Moreover, the 

masters' memberships in the NAACP, again unlike Dr. Eubanks' 

activities here and his sworn preference for a consolidated plan, 

"hardly provide a reasonable basis for concluding that these 

individuals would be biased in the plaintiffs' favor with respect 

to the breadth of the desegregation remedy." Additionally, in 

Morgan the challenged masters had some relationship with the School 

Committee which appealed their selection. Morgan, at pp. 425-427.

Analogous to our case are decisions involving the appearance 

of impropriety arising from alleged bias or prejudice by a court 

and/or the role of court personnel. See, 28 U.S.C. §144 and 28 

U.S.C. §455. In U.S. v. Poludniak, 657 F.2d 948 (8th Cir. 1981), 

this Court held that whenever a justice, judge or magistrate 

considers disqualifying himself in any proceeding "in which his 

impartiality might reasonably be questioned", "it is not 

necessary that actual bias or prejudice be present before 

disqualification is required" because the purpose of 28 U.S.C.

§455 (a) "is to ensure not only actual impartiality, but also the 

appearance of impartiality" (original emphasis). The test turns

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on "an objective standard of reasonableness in a judge's disqual­

ification decision." In U.S. v. Dalfonso, 707 F.2d 757 (3rd Cir. 

1983), the Court indicated that disqualification is in order 

where there is a "fear that the judge had become so emotionally 

involved . . . that his ability to preside impartially might 

reasonably be questioned." The Court said that a judge should 

recuse himself " . . .  where a reasonable man knowing all the 

circumstances would harbor doubts concerning the judge's 

impartiality." These same considerations were applied to non­

judges in Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d 

593 (5th Cir. 1977). There the fact that the Court's law clerk 

was called as a witness placed in question the "imprimature of 

character, credibility and reliability" of the court. So in this 

case, Dr. Eubanks activities prior to his selection as General 

Chairperson so tainted the perception of his independence and 

impartiality that his function on the monitoring committee is 

incapable of being perceived as neutral. "Not only is a biased 

decisionmaker constitutionally unacceptable, but 'our system of 

law has always endeavored to prevent even the probability of 

unfairness.'" Withrow v. Larkin, 421 U.S. 35 (1975), quoted with 

approval, Dyas v. Lockhart, 705 F.2d 993 (8th Cir. 1983).

For the good of the District Court's remedial plan, the 

monitoring committee must consist of people who are able to work 

without an agenda of their own and, more importantly, they must 

be people perceived as independent actors fully committed to the 

Court's plan. Dr. Eubanks objectively fails to satisfy these

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requirements. For these reasons, and because Dr. Eubanks is not 

"independent" as required by the Court's own order, he should be 

replaced on the monitoring committee.

II. The Trial Court Abused Its Discretion By Failing To Appoint An
AFT 691 Nominee As Chair Of One Of The Monitoring Subcommittees

We incorporate here our discussion in the preceding 

section. Also, we note that the District Court, in failing to 

select an AFT 691 nominee as a subcommittee chair, did not —  as 

it did in its selection of Dr. Eubanks —  contravene a standard 

clearly stated in its June 14, 1985 Order. Nevertheless, the 

District Court's failure to name an AFT 691 nominee as a 

chairperson should be set aside.

By allowing AFT 691 to participate in selection of 

monitoring committee members, the trial court wisely recognized 

the need to call upon the resources of all interested parties and 

obtain the support of all segments of society. In Carol,

"Viewpoints and Guidelines on Court Appointed Citizens Monitoring 

Commissions in School Desegregation", supra, at 11, the author 

concluded, "Monitoring commissions have to build the broadest 

possible coalition of support within their communities.

Organized labor, for example, particularly in urban areas, can be 

a major and singularly important supporter of monitoring 

efforts." Another study noted, "The membership of the citizens 

group usually includes a broad spectrum —  business and labor 

leaders, professionals from many fields, technical 'experts', 

community leaders, and members of the general public. The groups

-16-



have varied in size, but all sought to have some diversity of 

opinion among the membership and to have some claim to be 

representative of the community at large." Carol and others, 

"Court Mandated Citizen Participation In School Desegregation: 

Monitoring Commissions", p. 3 (1977).

However, by failing to name any AFT 691 nominee to a 

subcommittee chair, the Court effectively gerrymandered AFT 691"s 

nominees out of an effective role in the monitoring committee. 

This is not to say that a nominator is always entitled to have 

one of its nominees in a chair. But here the committee is 

structured so that ultimate responsibility and disproportionate 

power resides in an Executive Committee. Therefore, AFT 691's 

nominees cannot be locked out of the most important committee 

without creating the impression that they are second-class 

members and that the deck has been stacked against them. The 

monitoring committee must serve an important function, bringing 

together all community elements to resolve complex problems. The 

committee cannot serve effectively if a large and active segment 

of the community is disadvantaged by its exclusion from a 

meaningful role.

Accordingly, we ask that the District Court be required to 

name one of AFT 691's nominees to chair one of the monitoring 

subcommittees.

-17-



CONCLUSION
For all the foregoing reasons, we ask that the court mandate

(1) the removal of Dr. Eubanks from the monitoring committee and

(2) the selection of an AFT 691 nominee to the chair of one of 

the monitoring subcommittees.

Michael D. Gordon, P.C.
JOLLEY, MORAN, WALSH, HAGER & GORDON 
1125 Grand Avenue, Suite 1300 
Kansas City, Missouri 64106 Tel: (816) 474-1240

-18-



KALIMA JENKINS, et aL,

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF MISSOURI

Plaintiffs, )

WESTERN DIVISION

vs. ) No. 77-0420-CV-W-4

STATE OF MISSOURI, e t al., )

Defendants.

ORDER

On August 1, 1985, this Court held a hearing to review the nominations for the 

desegregation remedy monitoring com m ittee. Based upon the c rite ria  established by this 

Court in its  June 14, 1985 order, the inform ation provided by the parties regarding their 

nominees, and the interviews conducted during the August 1, 1985 hearing, the Court will 

appoint the monitoring com m ittee as outlined below.

As chairman of the monitoring com m ittee this Court appoints Dr. Eugene E. 

Eubanks. For the desegregation com m ittee this Court will appoint Dr. Jam es R. Oglesby 

as chairman of the desegregation com m ittee, and Dr. Joan Mahoney and Mr. Jav ier M. 

Perez, J r. as members of the desegregation com m ittee.

Mr. Kenneth C raft will be appointed to serve as chairman of the budget 

com m ittee. Members of the budget com m ittee will include Mr. Herman A. Johnson, and 

Mr. Louie A. Wright.

Serving on the education com m ittee as chairman will be Dr. Miguel Sancho. 

Members of the education com m ittee will be Mr. Ed Drake and Dr. Edward Fields.

A m eeting of the en tire  monitoring com m ittee and this Court shall be held a t 10:00 

a.m ., Tuesday, Septem ber 3, 1985.

% • /



Accordingly, it is hereby

ORDERED that the monitoring com m ittee for the Kansas C ity Missouri School 

D istrict desegregation rem edial plan is appointed with membership as outlined in this 

order, e ffective  as of August 1, 1985.

Dated: August 12, 1985

RUSSELL G. CLARK, DISTRICT JUDGE 
UNITED STATES DISTRICT COURT

2

App. 2.



Eugene E. Eubanks

dfx Ker

Profess ional 
Educat ion:

Sept.1979“ 
June,1980

Sept.1970— 
July,1972

Sept.1967“ 
July,1970

Sept.I960- 
Aug. 1963

Profess ional 
Societies and 
Organizations:

Profess ional 
Experience:

March 1, 1980-
present

J u ly ,1979“ 
Feb.29,1980

June,197^" 
June,1979

Sep t.1972- 
June,197^

Feb.1968- 
Sept. 1970

American Council of Education - Washington,.D.C.
Selected in National competition as a Fellow in Academic 
Administration.

MICHIGAN STATE UNIVERSITY East Lansing, Mich.
Doctor of Philosophy, July. 1972...Majored in Education 
Administration with a cognate in mathematics...Graduate 
Fellow in Michigan State University Inner-City Mathematics 
Project...Title of dissertation: Teacher Job Satisfaction
in De Facto Segregated High Schools.

JOHN CARROLL UNIVERSITY Cleveland, Ohio
Majored in

Secondary School Administration...Work on the Master's was 
xompleted while working full-time as a teacher and an admin­
istrator in an urban public high school.

EDINBQRO STATE COLLEGE _ Edinboro, Pa.
Bachelor of Science Degree. August, i963...Majored in 
Mathematics with' a- minor- in Ecdhpmjcs^:

Phi Delta Kappa
National Conference Professors of Education Administration 
National Alliance of Black School Educators 
American Education Research Association
UNIVERSITY OF MISSOURI-KANSAS CITY Kansas City, Mo.
Dean. School of Education...Responsibi1ity for providing 
leadership and administration of all programs and activities 
in the School of Education.

UNIVERSITY OF MISSOURI-KANSAS CITY Kansas City, Mo.
interim Dean, School of Education...

UNIVERSITY OF MISSOURI-KANSAS CITY Kansas City, Mo.
Assistant Dean and Associate Professor, School of Education... 
Responsibilities include teaching graduate courses in School 
Administration; principal graduate advisor; Director of 
Student Services; Fiscal officer for E S E Expenditures; 
supervisor of the schedule of classes and preparation of 
catalogs for undergraduate and graduate programs and other 
administrative duties assigned by the Dean.

UNIVERSITY OF DELAWARE Newark, Delaware
Assistant Professor, College of Education...Responsibi111 ies 
include teaching graduate courses in Education Administration 
(Business management, finance and theories of organizations)... 
Consultant to Cooperative Center for Educational Development 
and Services...Director of Winterim Project placing 220 
undergraduate students in inner-city schools for a three-week 
experiment.

JOHN HAY HIGH SCHOOL Cleveland, Ohio
Unit Principal of John Hay School...Responsib?1ities included 
supervision and authority over 600 students in a senior high _
school. Afr- $



Sept.1963" 
Feb.1968

Part-Time 
Profess ional 
Experience: 

Summer 1967. 
1968 & 1969

Selected
Pub 1 i cations:

GLENV1LLE HIGH SCHOOL Cleveland, Ohio
High School Mathematics Teacher...Taught senior high school 
mathematics...Assistant coach basketball team.

DARTMOUTH COLLEGE Hanover, N.H.
Teacher in A.B.C. Project...Taught mathematics to academically 
talented students who had been awarded scholarships to private 
academies.

"A Study of Teachers' Perception of Teacher Attributes in 
DeFacto Segregated High Schools," Education, Vol.93, No.4,
1974, pp.373-378.

"A Study of Perceptions of Black and White Teachers in 
DeFacto Segregated High Schools," Education, Winter, 1974, 
pp.35-41.

"Big-City Desegregation Since Detroit," (with Daniel U.
Levine) Phi Delta Kappan, April, 1975, pp. 521-523.

"The Push Program for Excellence in Big-City Schools," (with 
Daniel U. Levine) Phi Delta Kappan, January, 1977, pp.383-388.

"Jessee Jackson's Push Program for Excellence in Big-City 
Schools," (with Daniel Levine). Chapter in book: Future of 
Big-City Schools, Desegregation Policies and Magnet School 
A1 tematives, Edited by Robt. Havighurst and Daniel U. Levine, 
McCutchan Publishing Corporation, Berkeley, California, May, 
1977.

"Metropolitan Desegregation," Chapter in Urban Manual, State 
Department Education - Missouri, Fall, 1977.

"Full Employment Possible in United States Policy" (with 
Beth Noble) Kansas City Times, September 4, 1977.

'The Push Program for Excellence in Big-City Schools" (with 
Daniel U. Levine) Focus: Urban Society, Annual Edition 
(Anthology), 1978, pp. 201-206.

"Financial Aspects of Interdistrict Approaches to School 
Desegregation in Metropolitan St. Lcis and Metropolitan 
Kansas City" (with Dave Colton and Uan Levine) United States 
Commission on Civil Rights, Fall, 1979.

"Attracting Non-Minority Students to Magnet Schools in 
Minority Neighborhoods" (with Dan Levine) Integrated Education, 
Spring, 198I, pp.52-58.

"Attracting Mon-Minority Students to Magnet Schools" (with Dan 
Levine) The Education Digest, December 1981, pp. 18-21.

App.'-f



Pub1ications: 
fcont inued)

Research Support:

Selected Papers 
Presented at Profes 
signal Conferences, 
T975-1983

"Mastery Learning Can Boost Achievement at Inner-City Schools, 
(with Dan Levine) Missouri Schools, November 1982, pp. 18-20.

"A First Look at Effective School Projects at Inner City 
Elementary Schools," (with Dan Levine) Phi Delta Kappan, June 
1983.

(Source agency, project, years, amounts - funded, non-funded) 

Funded Grant Proposals:

University of Delaware, Summer Science and Mathematics 
Programs for Minority Students, Summer, 1973, $4,000.

NIE Education Equity Research Grant, A Study of Selected 
Issues Involving Magnet Schools in Big-City School Districts. 
1978, $29-950.00.

Kansas City School District, UMKC/KCSD Planning Proposal, 1983 
$19,578.00.

Non-Funded Grant Proposals:

HEW Title IV Grant: Special Student Concerns Project for 
Southeast High School (with Daniel U. Levine), 1975.
$124,462.

HEW Title IV Grant: Institute for Desegregated Schools in 
Kansas City School District (with Daniel U. Levine).1976. 
*T37,'684. ----------------

HEW Title IV Grant: Summer Institute for Desegregated 
Schools in K.C. School District (with Daniel U. Levine 
and Connie Campbell), 1977, $95,823.

HEW Title IV Grant: Institute for Desegregated Schools in 
K.C. School District, Academic Year 1977~78 (with Daniel 
U. Levine and Connie Campbell), 1977, $155,765.

National Alliance for Black School Educators (New Orleans, 
Nov. 20-22, 1975) presented paper entitlied "Is Detroit the 
End of the Line for School Desegregation?"

Urban Education Conference (Kansas City, Mo., Nov. 24-26, 
1975). Chai red and reacted ti session entitled "Desegrega­
tion of American Schools."

Association of College Unions-lntemational (Kansas City, 
Mo., March 29-31, 1976H Cha i red a session and presented 
a paper entitled "Minorities Within Higher Education: Is
There a Lessening of Commitment? A Status Report."

National Alliance for Black School Educators (Miami. Fla., 
Nov. 11-14, 1976). Chaired, moderated and presented a 
paper on "A Look at Education from a Different Perspective."



Urban Education Conference (Milwaukee, Wise., Nov. 22-24,
1976). Chaired session on "The Urban University."

National Alliance for Black School Educators (Chicago, 111., 
Nov.I977). Chaired, moderated and presented a paper on 
"Metropolitan Desegregation."

National Organization of Black Law Enforcement Executives 
(St. Louis, Mo., June, 1978). Presented Paper on "Status 
Report-School Desegregation."

"School Desegregation in the State of Missouri" - Missouri 
State Department of Education and Missouri Association of 
Superintendents, Jefferson City. Mo.. August. 1978. '

"P.U.S.H. Program for Excellence." Buffalo, Black Educators 
Association, Buffalo, New York, October, 197$.

"School Desegregation - Urban Manual Report" - St. Louis 
League of Women Voters, St. Louis, Mo., January, 1979.

"A Study of Selected Issues Involving Magnet Schools in 
Big City Schools," American Education Research Association, 
San Francisco, Calif., April, 1979 (with Daniel U. Levine).

"Attracting Non-minority Students to Magnet Schools in 
Minority Neighborhoods." American Education Research 
Association, San Francisco, Calif. April , 1979 (with Daniel 
U. Levine).

"The Intended and Unintended Consequences of P.U.S.H.: 
Implications for Black School Failure." American Education 
Research Association, San Francisco, Calif., April, 1979..

"Brown, Twenty-Five Years Later." American Civil Liberties 
Union, Kansas City, April, 1979-

"Attracting Non-minority Students to Magnet Schools in 
Minority Neighborhoods." (Milwaukee, Wise., July, 1979) 
CEMREL National Conference on Desegregation (with Daniel 
U. Levine and Connie Campbell).

"Minorities Assess the Future of School Integration 26 
Years after Brown." (Discussant) American Education Research 
Association, Los Angeles, Calif., Apr!1, 1981.

"Social Influences in Higher Education." (Chair) American 
Education Research Association, Los Angeles, Calif., April,
JW.

"Blacks in Predominately White Institutions of Higher 
Education." National Alliance of Black School Educators, 
Memphis, Tenn., November, 1982.



Papers Presented: 
(continued]

Selected Local, 
State and National 
Service:
1975-1983

"A First Look at Effective School Projects at Inner City 
Elementary Schools." American Educational Studies Association, 
Nashville, Tenn., February 1983 (with Dan Levine).

"A First Look at Effective School Projects at Inner City 
Elementary Schools." American Education Research Association, 
Montreal, April 1983 (with Dan Levine).

"Instructional and Organizational Arrangements at an Unusually 
Effective Inner City Elementary School in Chicago." American 
Education Research Association, Montreal, April 1983 (with 
Dan Levine).

Numerous other presentations on education and desegregation.

Member, Education Conference Committee (Council of Education 
Deans at the University of Missouri and Presidents of State 
Universities and Colleges in the State of Missouri).

Member, State Department Urban Manual Committee (Chairman 
of Desegregation Committee).

Education Consultant to Cleveland Foundation, Cleveland, 
Ohio, 1975-

Editorial Board Capstone Journal of Education, University 
of Alabama, 1982—

Chairperson, Nominating Committee of Land Grant Deans of 
Education

Education Consultant to Danforth Foundation, 1979.

Education Consultant, Kansas City, Mo., School District 
Metropolitan Desegregation Suit.

Reader, American Education Research Association, 1979.

Consultant to NAACP Desegregation Suit, Cleveland, Ohio,
Reed vs. Rhodes et al.

Reader, N.i.E. Proposals, 1978 and 1979.

Member, Coordinating Committee UMKC and Kansas City, Mo. 
Public School District.

Consultant to United States Commission on Civil Rights.

Consultant to Kansas City Desegregation Task Force, 1976.

Education Consultant to CEMREL (Regional Lab), 1979*

Consultant to Unity Center, Meadville, Pa., 197^-1978.

Education Consultant, Kansas City, Missouri School District, 
Kansas City, Mo., 1975*1978.



Selected Loca l,  
State and Nationa l 
Service;

Mid-Continent Girl Scouts Nominating Committee, I98Q-I983. 

Curriculum Chairperson of West Side Community School.

{continued) Member N.l.E. National Desegregation Study Group, 1979*1982.

Consultant, Urban Education Program at Harris Stowe College, 
St. Louis, Mo.

Consultant and 'Writer of Desegregation Plan for National 
Office of NAACP, St. Louis, Mo.

Court-ordered Evaluator of instruction Improvement Efforts 
in Detroit Public Schools under Mil liken li Remedy, 1982.

Board Member Missouri Association of Colleges of Teacher 
Education.

Board Member Genesis School.

Member, Promotion and Tenure Committee, School of Education.

Member, Graduate Academic Programs and Standards Committee.

Member, Undergraduate Academic Programs and Standards 
Committee.

Member, Dean of the School of Education Long-Range Planning 
Comnri ttee.

Member, Provost's Council Recruitment and Retention Minority 
Students Committee.

Member, Doctoral Faculty, University of Missouri.

Dean's Representative on School of Education Student Council.

Principal Graduate Advisor, School of Education.

Chairperson, UMKC Campus Barriers to Enrollment Committee.

Member, Campus Committee on the University College.

Computer Science Program Steering Committee.

Numerous search committees and/or other ad hoc campus and 
university committees.

Board of Directors, Operation PUSH, Kansas City Chapter. 

Research Council, National Urban League, Kansas City Chapter. 

Membership Chairperson, National Black Child Development

Selected Univer­
sity Service:

Member, Faculty Senate.

1975-1983 Member, Provost Council.

Institute, Kansas City Chapter.



Selected
Honors:

1970-72 Michigan State University Fellow in Mathematics.

1979-80 American Council of Education Fellowship in Academic 
Administration.

1982 Michigan State University Distinguished Alumnus Award from 
Faculty of School Administration at Michigan State Univer­
sity.

AfP- f



THE COURT: He'll be received as such,

g (By Mr. Borthwick) Now, to get back to where I was,

I'm going to be asking you a series of questions 

about the components of the plan submitted by the 

Kansas City District and in the budget that has 

been developed. First, did you work on the 

development of the intradistrict plan that has been 

submitted?

A Yes, I did work along with a number of other persons 

in development of intradistrict desegregation plan.

q How about the Consolidation Plan?

Did you work on that?

A I worked with vigor on that plan.

Q All right. And with regard to your own preference 

as to the preferable plan, which is it between 

those two?

A My preference is the Consolidation Plan because

it offers the only excellent probability of effective, 

meaningful and permanent desegregation for the kids 

that reside presently in the Kansas City School 

District.

Q In developing the intradistrict plan, did you

also work with the budget items of that plan?

A Yes, I did.

Q And how about the educational components, the programs

10