Latimore v. County of Contra Costa Plaintiffs' Reply Brief in Opposition to Motion for a Preliminary Injunction

    No. 93-1823

In  tlje Supreme Court of tfieUmteb States?
O cto b e r  T e r m , 1994

Sta t e  of M isso u r i, e t  a l ., p e t it io n e r s

v.
K a l im a  J e n k in s , e t  a l .

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Drew S. Days, III 
Solicitor General

Deval L. Patrick 
Assistant Attorney General

Paul Bender 
Deputy Solicitor General

Irving L. Gornstein 
Assistant to the Solicitor General

Dennis J. Dimsey 
Mark L. Gross 

Attorneys
Department o f Justice 
Washington, D.C. 20530 
(202) 5U-2217



QUESTION PRESENTED
The United States will address the question whether 

the court of appeals applied the proper legal standards in 
deciding that court-ordered remedial education programs 
should not be terminated. We leave to the parties the 
more narrow, fact-bound question whether the district 
court abused its discretion in ordering salary increases 
for non-instructional personnel.

(I)



TABLE OF CONTENTS

Page
Interest of the United States ........ .................... ..................  1
Statement ........................................................ ............................ 1
Summary of argument ............................... ......... ................. 10
Argument:

The court of appeals properly approved the continua­
tion of the Milliken II  programs ................... ................  13

A. The Court should not consider petitioners’ 
challenge to the propriety of the original
remedy ...................................................   13

B. The court of appeals properly held that the
Milliken II  programs should not be terminated 
until petitioners show that the educational 
deficiencies caused by prior segregation have been 
eliminated to the extent practicable .......................  14

C. The court of appeals properly held that test
scores can be relevant in deciding whether the 
the deficiencies in basic skills caused by prior 
segregation have been eliminated to the extent 
practicable ....................      22

Conclusion ..................................................................................  27

TABLE OF AUTHORITIES
Cases:

Board o f Edue. v. Dowell, 498 U.S. 237 (1991) ........  2, 11, 15
20, 21, 26

Columbus Bd. o f Educ. v. Penick, 443 U.S. 449 (1979) .... 22, 25
Dayton Bd. o f Educ. v. Brinkman, 442 U.S. 526 (1979). 24-25
Freeman v. Pitts, 112 S. Ct. 1430 (1992).................  2, 7, 15, 16

19, 20, 21, 26
Green v. County Sch. Bd., 391 U.S. 430 (1968)................  16
International Bhd. of Teamsters v. United States, 431 

U.S. 324 (1977) ....................................................................  23

( H I )



IV

Cases—Continuted: Page
Jenkins v. Missouri:

593 F. Supp. 1485 (W.D. Mo. 1984) ............................ 2, 3, 17, 21
639 F. Supp. 19 (W.D. Mo. 1985) ................. . 3, 4, 15, 18, 19, 25

Milliken v. Bradley, 433 U.S 267 (1977)..............  4, n ,  17, 20, 25
Missouri v. Jenkins:

490 U.S. 1034 (1989) ............................................................ 7
495 U.S. 33 (1990) ............................................................... 7

Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402
U.S. 1 (1971) .....................................................................  16,24

Taylor v. Freeland & Kronz, 112 S. Ct. 1644 (1992) ...........  14
Fee v. City of Escondido, 112 S. Ct. 1522 (1992) ................  14

Statutes and rule:
Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:

Tit. IV, 42 U.S.C. 2000c-6 ..............      1
Tit. V, 42 U.S.C. 2000d ..................................................  1
Tit. IX, 42 U.S.C. 2000h-2 ........    1

Equal Educational Opportunities Act of 1974, 20 U.S.C.
1701 et seq............................................................................  1

Sup. Ct. R. 14.1(a)..............................................................  14



In  tljr Supreme Court of tfje Umteb States
O ctober  T e r m , 1994

No. 93-1823

S ta te  of M isso u r i, e t  a l ., pe t it io n e r s  

v.

K a l im a  J e n k in s , et  a l .

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES
This case concerns the proper legal standards for 

deciding when court-ordered remedial education pro­
grams should be terminated. The United States has a 
direct interest in the proper resolution of that question. 
The United States has responsibility for enforcing 
school desegregation under Titles IV, VI, and IX of the 
Civil Rights Act of 1964, 42 U.S.C. 2000c~6, 2000d, and 
2000h-2, and the Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1701 et seq., and is a party in several 
hundred desegregation cases. Consistent with that re­
sponsibility, the United States has participated in most 
of this Court’s school desegregation cases, including the

(1)



2

recent cases of Freeman v. Pitts, 112 S. Ct. 1430 (1992), 
and Board of Edue. v. Dowell, 498 U.S. 237 (1991).

STATEMENT
1. a. In 1977, the Kansas City, Missouri, School Dis­

trict (KCMSD) and KCMSD students filed suit against 
the State of Missouri and various state officials 
(petitioners), several suburban school districts, and sev­
eral federal agencies. After the district court realigned 
the KCMSD as a defendant, an amended complaint was 
filed alleging that the State, the suburban districts, and 
the federal agencies had caused interdistrict segregation 
among the school districts in the Kansas City metropoli­
tan area. The amended complaint also alleged that the 
State and the KCMSD had caused segregation within 
the KCMSD schools.

In 1984, the district court issued two opinions on 
liability. In the first opinion, the court found that there 
was no interdistrict violation committed by the suburban 
defendants warranting interdistrict relief. J.A. A721- 
A820. In the second opinion, however, the court found 
that the State and the KCMSD had caused and had legal 
responsibility for racial segregation within the KCMSD. 
Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984).

The court found that Missouri law required the 
KCMSD to segregate students on the basis of race 
before 1954. 593 F. Supp. at 1490. In 1954, the State 
Attorney General issued an opinion declaring the state 
statutes requiring segregation unenforceable. However, 
the State did not repeal its constitutional provision 
mandating racially segregated schools until 1976. Ibid.

The court found that, after 1954, the KCMSD “chose 
to operate some completely segregated schools and some 
integrated ones.” Jenkins, 593 F. Supp. at 1492. At the 
time of the district court’s 1984 decision, 24 schools



3

remained more than 90% black. Id. at 1493. The court 
found that these overwhelmingly black schools were 
vestiges of the dual system. Ibid.

The court also found that “ inferior education 
indigenous [to] the state-compelled dual school system 
has lingering effects in the [KCMSD].” Jenkins, 593 F. 
Supp. at 1492. The court noted that “ [sjeveral witnesses 
confirmed * * * that forced segregation ruins atti­
tudes” and that “ [t]he general attitude of inferiority 
among blacks produces low achievement.” Ibid, (citation 
omitted).

The court rejected the State’s argument that it should 
not be held liable for the segregation in the KCMSD 
because state law precluded it from requiring the 
KCMSD to desegregate in the post-1954 period. 
Jenkins, 593 F. Supp. at 1504-1505. The court explained 
that “ [t]he state executive and its agencies as well as the 
State’s General Assembly had and continue to have the 
constitutional obligation to affirmatively dismantle any 
system of de jure segregation, root and branch. •* * * 
This case is before this Court simply because the 
KCMSD and the State have defaulted in their obligation 
to uphold the Constitution.” Id. at 1505.

b. The court issued its first remedial order in 1985. 
639 F. Supp. 19. In its opinion, the court elaborated on 
the harm to educational achievement caused by the 
State’s and the KCMSD’s failure to eliminate the dual 
system. The court found that “ [segregation has caused 
a system wide reduction in student achievement in the 
schools of the KCMSD.” Id. at 24. The court cited test 
results showing that only a few elementary schools in 
the KCMSD were performing at or above national norms 
in math and reading. Ibid. The court also found that the 
“education process has been * * * ‘ bogged down’ in the 
KCMSD by a history of segregated education,” and that



4

“ [t]oo often, as a result, a higher percentage of black 
students are among the lower achievers.” Id. at 28. The 
court concluded that its remedy should include 
educational programs designed to “remedy the ill effects 
of the unconstitutional segregation and to attract and 
maintain non-minority enrollment.” Id. at 24.

Both the State and the KCMSD agreed that the court 
should order into effect programs “designed to increase 
student achievement at the elementary and secondary 
levels.” 639 F. Supp. at 25. They also agreed that such 
programs should include “achieving AAA status,1 
reducing class size at the elementary and secondary 
level, summer school, full day kindergarten, before and 
after school tutoring and early childhood development 
programs.” Id. at 26. The court adopted those sug­
gestions and several others. Id. at 26-32. These student 
achievement programs are referred to by the parties as 
Milliken II  programs because they are the kinds of 
programs this Court approved in Milliken v. Bradley, 
433 U.S. 267 (1977) (Milliken II), to overcome the 
educational deficiencies caused by racial segregation. In 
addition to ordering the Milliken II  programs into 
effect, the district court also ordered the development of 
a magnet school program, a program for voluntary 
interdistrict transfers, and a capital improvements pro­
gram. 639 F. Supp. at 34-35, 38-41.

c. In 1986, the court of appeals issued a single opinion 
on liability and remedy. 807 F.2d 657 (en banc). The 
court upheld the district court’s rejection of a mandatory

1 The Missouri State Department of Elementary and Secondary 
Education classifies school districts according to the quality of 
their programs. The highest classification is AAA, which means 
that the school system “has the resources necessary to provide 
minimum basic education to its students.” 639 F. Supp. at 26.



5

interdistrict remedy and affirmed the remedies ordered 
by the district court with several modifications.

The State did not appeal the finding of liability or the 
remedial imposition of most of the Milliken II programs. 
807 F.2d at 662, 682-683. The State challenged only the 
requirements that it pay for the increase in the number 
of teachers beyond that necessary to achieve AAA 
status, that it pay for an “effective schools program,” 
that it establish a program for voluntary interdistrict 
transfers, and that it pay for capital improvements. Id. 
at 683-686. The court of appeals held that the costs for 
increasing the number of teachers and for the effective 
schools program should be divided equally between the 
State and the KCMSD. Id. at 684-685. It held that a 
program of voluntary interdistrict transfers was a valid 
remedy for the State’s violation. Id. at 683-684. And it 
held that capital improvements were necessary for 
successful desegregation. Id. at 685. This Court denied 
certiorari. 484 U.S. 816 (1987).

2. Between 1986 and 1988, the district court issued a 
series of additional remedial orders relating to magnet 
schools, Milliken II programs, and capital improve­
ments. The district court also issued an order raising 
property taxes to assist the KCMSD in funding its share 
of the remedy. The State appealed from a number of 
those orders. In 1988, the court of appeals resolved those 
appeals in a single opinion. 855 F.2d 1295 (1988).

The district court had ordered magnet programs into 
effect, in part, in an attempt to attract white students 
from private schools and the suburbs into the KCMSD 
schools and to retain those white students who were still 
in the system. The State argued that this goal was 
unrelated to the violation. The court of appeals rejected 
that argument, noting that the district court had found 
that “the existence of segregated schools led to white



6

flight from the KCMSD to suburban districts and to 
private schools.” 855 F.2d at 1302.

The court also rejected the State’s argument that the 
district court had erred in establishing a goal of 
improving the education for all students in the KCMSD 
system. The court held that the district court “did not 
view improving education for all KCMSD students as an 
end in itself, but as a means to serve the goals of 
restoring to the victims the education they have been 
denied and of attracting and maintaining whites in the 
KCMSD.” 855 F.2d at 1303. The court therefore con­
cluded that the district court did not “abus[e] its dis­
cretion in using system-wide educational enhancements 
to accomplish its legitimate desegregative objectives.” 
Ibid.

The court also rejected the State’s argument that the 
capital improvement program exceeded the scope of the 
State’s violation. The court found ample support for the 
district court’s finding that “ the State by its 
constitutional violations and failure to remove the 
vestiges of the dual school system ‘contributed to, if not 
precipitated, an atmosphere which prevented the 
KCMSD from raising the necessary funds to maintain 
its schools.’ ” 855 F.2d at 1305. The court concluded that 
the findings “demonstrate a spiraling effect of white 
children leaving KCMSD schools and KCMSD’s white 
constituency withdrawing its financial support from the 
system. This process eventually caused the decay of 
KCMSD’s school buildings, which in turn fed the cycle.” 
Ibid. The court added that “ [e]ven absent the findings 
that the State contributed to causing the decay, the 
capital improvements would still be required both to 
improve the education available to the victims of 
segregation as well as to attract whites to the schools.” 
Ibid.



7

Finally, the court of appeals affirmed the order 
requiring an increase in property taxes. The court held, 
however, that any future orders affecting taxes should 
permit the KCMSD to impose the tax, with the court’s 
role limited to enjoining any state law that would 
prevent the tax from taking effect. 855 F.2d at 1308-1315.

This Court granted certiorari on the property tax 
issue, but denied certiorari on the scope of the remedy. 
See 490 U.S. 1034 (1989). On the merits of the property 
tax issue, this Court held that the district court lacked 
authority to order property tax increases itself. The 
Court agreed with the court of appeals, however, that the 
district court could order the KCMSD to set a tax levy 
and enjoin any state laws that would prevent the tax 
from taking effect. 495 U.S. 333 (1990).

3. The issues before this Court now arise from two 
orders issued by the district court in June, 1992. One 
required funding of the Milliken II  programs for the 
1992-1993 school year. Pet. App. A69-A75. The other 
approved the KCMSD’s proposed schedule for salary 
increases for the 1992-1993 year. Id. at A76-A93. The 
court of appeals affirmed those orders in November, 1993. 
Id. at A1-A42.

a. Relying on Freeman v. Pitts, 112 S. Ct. 1430 (1992), 
the State argued in the district court that the Milliken 
II  programs had been fully implemented and that this 
aspect of the KCMSD’s operations should therefore be 
declared unitary. The district court required the funding 
of those programs, without expressly addressing the 
State’s unitariness argument. Pet. App. A9-A10.

On appeal, the State argued that the district court had 
erred in failing to address the unitariness issue. The 
court of appeals held that the district court’s approval of 
the continuation of the programs constituted a rejection 
of the State’s argument and was necessarily based on a



8

finding that “the goals of the desegregation programs, 
the elimination of the vestiges of past discrimination to 
the extent practicable, had not yet been achieved.” Pet. 
App. A10-A11.

The court of appeals then held that the district court 
did not err in refusing to grant the State’s request for a 
declaration of partial unitariness. The court char­
acterized the State as arguing that because the Milliken 
II  programs had been fully implemented, the State was 
entitled to a declaration of partial unitariness. Pet. App. 
A14. The court of appeals rejected that argument on the 
ground that Freeman required the State to show that 
the “vestiges of segregation, here the system-wide 
reduction in student achievement, have been eliminated 
to the greatest extent practicable.” Id. at A20-A21. The 
court concluded that the “ only evidence before the 
district court with respect to the degree of progress on 
elimination of vestiges of past discrimination was at best 
that a start had been made.” Id. at A19. The court 
explained that while the State’s Assistant Commissioner 
of Education described how the Milliken II programs 
had been established, he did not indicate whether they 
had succeeded in improving student achievement. Pet. 
App. A18. The court also observed that KCMSD’s 
witnesses stated that while the Milliken II programs 
were making progress, more could be achieved. Ibid. 
A18.

The court then provided additional guidance to assist 
the district court in further proceedings on unitariness. 
The court stated that “careful factfinding and detailed 
articulation of findings will be required,” that “ [t]he 
success of quality of education programs must be 
measured by their effect on the students, particularly 
those who have been the victims of segregation,” and 
that “ [i]t will take time to remedy the system-wide



9

reduction in student achievement in the KCMSD 
schools.” Pet. App. A20-A21. The court also noted with 
approval that the district court had ordered the KCMSD 
to prepare plans based on the assumption that court- 
ordered funding would be withdrawn in three to ten 
years. Id. at A13.

b. The court of appeals also affirmed the salary 
increase order. The court relied upon the district 
court’s finding that such salary increases were nec­
essary to retain the personnel necessary to implement 
the required quality educational programs and the mag­
net schools. Pet. App. A23-A24.

4. The Eighth Circuit denied rehearing en banc. Pet. 
App. A43-A68. Three of the six judges who voted to deny 
rehearing en banc, including two of the judges from the 
original panel, explained their reasoning. They stated 
that the State had misread the panel opinion as holding 
that student achievement is the sole basis for deter­
mining whether the effects of past discrimination have 
been remedied. The three judges explained that wThile 
“test results must be considered,” they “must be only 
one factor in the equation.” Id. at A48. (Gibson, J., joined 
by McMillian, J., and Magill, J.).

Five judges dissented from the denial of rehearing en 
banc. They concluded that “ [t]he district court has, with 
the approbation of the panel, imbedded a student 
achievement goal measured by annual standardized tests 
into its test of whether the KCMSD has built a high- 
quality educational system sufficient to remedy past 
discrimination” and “ [t]he Constitution requires no such 
standard.” Pet. App. A58. The dissenting judges added 
that while there was “no question that the reduced 
educational attainment discerned by the district court in 
1984 resulted from acts of racial discrimination and 
represented ‘vestiges’ of past unlawful segregation,



10

* * * [t]o require achievement test scores at or above 
the national norm is to require the school system to be 
responsible for circumstances beyond its control.” Id. at 
A63-A64. The dissenting judges also concluded that the 
district court’s salary order was not tailored to the 
violation insofar as it required salary increases for non- 
instructional personnel. Id. at A57.

SUMMARY OF ARGUMENT

A. Petitioners sought certiorari on two questions: 
whether the court of appeals erred in considering test 
scores in deciding that the Milliken II programs should 
not be terminated, and whether the court of appeals erred 
in approving salary increases for non-instructional 
personnel. Most of petitioners’ brief, however, is devoted 
to the very different question of whether the original 
remedial plan exceeded the scope of the violation. That 
issue was finally resolved years ago, petitioners did not 
seek to reopen it below, and it is not fairly included 
within either of the questions presented. Petitioners’ 
challenge to the original remedy is therefore not 
properly before this Court.

Petitioners’ assertion that their challenge to the 
remedy should be considered because the orders under 
review are inextricable products of that remedy is 
unpersuasive. Petitioners argued in the district court, 
in the court of appeals, and at the petition stage that the 
original remedy did not justify either of the orders under 
review. If petitioners now believe that the only way to 
attack the orders under review is to attack the original 
remedy, we suggest that the proper response is not for 
the Court to review a question on which it did not grant 
certiorari and which was not raised below. Instead, the 
Court may wish to consider dismissing the writ of 
certiorari.



11

B. The court of appeals properly rejected petitioners’ 
request to terminate their obligation to fund the 
Milliken II  programs. This Court’s decisions in Board 
of Educ. v. Dowell, 498 U.S. 237 (1991), and Freeman v. 
Pitts, 112 S. Ct. 1430 (1992), establish the framework for 
resolving that issue. Under Dowell and Freem an, a 
party seeking partial termination of a decree must show 
both that it has complied with the part of the decree it 
seeks to terminate and. that the effects of the violation 
sought to be remedied by that part of the decree have 
been eliminated to the extent practical. Petitioners 
made only the first showing. They made no effort to 
show that the deficiencies in basic educational skills that 
the Milliken II programs were designed to remedy had 
been eliminated to the extent practical.

Petitioners seek to escape the consequences of their 
failure by arguing that educational deficiencies can 
never be viewed as a vestige of a racially segregated 
school system. That argument is foreclosed by this 
Court’s decision in Milliken  v. Bradley, 433 U.S. 267 
(1977). In that case, the Court held that where racial 
segregation has depressed educational achievement, 
federal courts may require state and local school 
officials to implement programs designed to raise the 
level of student achievement. The district court in this 
case found that racial segregation had caused just such 
educational deficiencies and it properly ordered remedial 
programs designed to correct those deficiencies.

Nor does the passage of time since the Milliken II 
programs were fully implemented establish that there is 
no link between past segregation and current 
educational deficiencies. At the time of the district 
court’s decision, the Milliken II programs had been fully 
implemented for three years. In Milliken II, the Court 
noted that curing educational deficiencies caused by



12

segregation would necessarily take time. It would be 
inappropriate to presume, without any further factual 
support, that the educational deficiencies caused by 
petitioners’ lengthy constitutional violation have been 
fully remedied in three years. In Dowell and Freeman, 
where the remedies had been implemented for a much 
longer period of time, the Court rejected the view that 
the passage of time alone conclusively established that 
current conditions were not traceable to prior segre­
gation. Instead, the Court insisted upon a fact-intensive 
inquiry into that issue.

School desegregation remedies are intended to be 
temporary and the courts below are aware of that. They 
have consequently asked the parties to prepare for the 
elimination of court-ordered funding in three to ten 
years. This Court should not intervene in that process.

C. The court of appeals did not impose a requirement 
that student test scores reach a certain level before the 
Milliken II programs could be terminated. Instead, it 
held that test scores were one relevant factor bearing on 
that issue. That holding is correct. Since the relevant 
inquiry is whether a systemwide reduction in achieve­
ment attributable to segregation has been remedied to 
the extent practicable, it would be improper to ignore 
test scores altogether. The court considered test scores 
when it found that racial segregation had depressed 
educational achievement. It is logical that test scores 
should also be considered in deciding whether that 
violation has been remedied. Proof that test scores 
remain substantially behind levels achieved by students 
who have not been subjected to segregation could be a 
sign that the deficiencies caused by prior segregation 
have not, in fact, been remedied to the extent practicable.

Of course, there could be a variety of other explana­
tions for continuing deficiencies in performance by



13

students who have been subjected to segregation. These 
include poverty, crime, and lack of parental involvement. 
Under Dowell and Freeman, however, petitioners have 
the burden to show that such factors, rather than segre­
gation, account for continuing deficiencies. Petitioners 
have not attempted to make such a showing. The mere 
assertion that factors besides segregation are entirely 
responsible for current deficiencies is no substitute for 
proof.

ARGUMENT

THE COURT OF APPEALS COR R ECTLY  
APPROVED THE CONTINUATION OF THE  
MILLIKEN II  PROGRAMS

A. The Court Should Not Consider Petitioners’ 
Challenge To The Propriety Of The Original 
Remedy

In their petition for certiorari, petitioners raised two 
issues: (1) whether the court of appeals erred in 
considering test scores in determining that remedial 
educational programs should not be terminated; and (2) 
whether the court of appeals erred in approving salary 
increases for school district employees. Most of 
petitioners’ brief on the merits, however, is directed to a 
much different question: Whether the original remedial 
plan imposed by the district court in 1985 exceeded the 
scope of the constitutional violation. That issue was 
finally resolved years ago, and this Court has denied 
certiorari on it two times. Petitioners did not attempt to 
reopen that issue in either the district court or the court 
of appeals. Nor is that issue fairly included within either 
of the questions presented in the certiorari petition.

Except in unusual circumstances, this Court will “not 
consider questions outside those presented in the



14

petition for certiorari.” Yee v. City of Escondido, 112 S. 
Ct. 1522, 1532-1533 (1992); Taylor v. Freeland & Kronz, 
112 S. Ct. 1644, 1649 (1992); see also Sup. Ct. R. 14.1(a). 
Because there are no such unusual circumstances here, 
the Court should not consider petitioners’ challenge to 
the original remedy.

Petitioners candidly admit that they seek to reopen 
the question of the propriety of the original remedy. Br. 
18-19. To justify that request, petitioners contend that 
the orders at issue here are “inseparable products” of 
the lower courts’ remedy. Br. 27 n.17. As petitioners 
elsewhere acknowledge, however, “each question can be 
dealt with on its own terms.” Br. 18. And until now, 
petitioners have done exactly that. In the district court, 
in the court of appeals, and at the petition stage, 
petitioners argued that the court’s original remedy 
provided no justification for the orders under review. If 
petitioners have now come to the conclusion that the 
only way to attack the current orders is to attack the 
original remedy, the proper response is not for this 
Court to review a question that has already been settled, 
that was not raised below, and on which it did not grant 
certiorari. Instead, the Court may wish to dismiss the 
writ of certiorari.

B. The Court Of Appeals Correctly Held That The 
M illiken II  Programs Should Not Be 
Terminated Until Petitioners Show That The 
Educational Deficiencies Caused By Prior 
Racial Segregation Have Been Eliminated To 
The Extent Practicable

Before evaluating petitioners’ current arguments 
concerning the Milliken II programs, it is important to 
begin with an understanding of what the court of appeals 
actually decided. Petitioners argued below that, because



15

the Milliken II programs had been fully implemented, 
they were automatically entitled to be relieved of their 
responsibility to fund those programs. Drawing on this 
Court’s decisions in Dowell and Freeman, the court of 
appeals rejected that contention. That holding was 
correct.

In Dowell, this Court held that a desegregation decree 
may be terminated only upon proof by the party seeking 
termination that it has “complied in good faith with the 
desegregation decree since it was entered,” and that 
“the vestiges of past discrimination ha[ve] been elimin­
ated to the extent practicable.” 498 U.S. at 249-250. In 
Freeman, the Court held that a district court also has 
discretion to order partial termination of a decree when a 
party makes similar showings with respect to the part of 
the decree sought to be terminated. 112 S. Ct. at 1445- 
1446. Under Freeman, the burden of proof is on the 
party seeking partial termination. If racial segregation 
has previously been found to have caused a particular 
condition, the party seeking a declaration of partial 
unitariness must show that any current manifestation of 
that condition “is not traceable, in a proximate way, to 
the prior violation.” Id. at 1447.

Thus, Dowell and Freem an  establish that a party 
seeking to terminate part of a decree cannot rest merely 
on a showing that the party has implemented that part of 
the decree. Such a party must also show that the effects 
of the violation sought to be remedied by that part of the 
decree have been eliminated to the extent practicable. In 
this case, the Milliken II  programs that petitioners 
sought to terminate were designed to remedy a system- 
wide reduction in achievement attributable to prior 
unlawful racial segregation. 639 F. Supp. 19 (W.D. Mo. 
1985). To obtain the relief they sought, petitioners were 
required to show initially, not only that the Milliken II



16

programs had been fully implemented, but also that the 
systemwide reduction in achievement attributable to 
prior segregation had, as a result, been eliminated to the 
extent practicable. Because petitioners did not attempt 
to make that showing, and instead rested solely on a 
showing that the programs had been implemented, the 
court of appeals properly refused to terminate the 
Milliken II programs.

1. Petitioners seek to escape the consequences of 
their failure to meet the burden imposed by Dowell and 
Freeman  by arguing (Br. 28-30) that the systemwide 
reduction in achievement found by the district court 
cannot be viewed as a vestige of segregation because it is 
not one of the six facets of school operations set forth in 
Green v. County Sch. Bd., 391 U.S. 430 (1968). In Green, 
the Court held that vestiges of segregation may be found 
to exist in student assignment, faculty, staff, trans­
portation, extracurricular activities, and facilities. Id. 
at 435. Neither Green nor any other decision, however, 
suggests that this list was intended to be exclusive. In 
Swann v. Charlotte-Mecklenburg Bd. of Edue., 402 U.S. 
1, 18 (1971), this Court characterized the Green factors 
as “among the most important indicia of a segregated 
system,” not as the only indicia. In Freeman, the Court 
noted that the district court had considered impaired 
quality of education as one vestige of segregation. 112 S. 
Ct. at 1446. While the correctness of that aspect of the 
district court’s decision was not at issue, the Court com­
mented that the district court’s approach “ illustrates 
that the Green factors need not be a rigid framework.” 
112 S. Ct. at 1446-1447.

More fundamentally, petitioners’ argument that a 
reduction in student achievement cannot be a vestige of 
segregation is foreclosed by this Court’s decision in 
Milliken II. In that case, the Court upheld a district



17

court order requiring compensatory education programs 
to remedy deficiencies in basic skills caused by segre­
gation. The Court explicitly rejected the argument that, 
because “the constitutional violation found by the 
District Court was the unlawful segregation of students 
on the basis of race, the court’s decree must be limited to 
remedying unlawful pupil assignments.” 433 U.S. at 281. 
The Court explained that a remedy may seek to 
eliminate not only a condition that itself violates the 
Constitution, but also harms that “ flow from such a 
violation.” Id. at 282. Because the segregated system 
had caused minority school children to suffer significant 
deficiencies in basic educational skills, the Court held 
that the remedial educational programs were properly 
tailored to cure a condition resulting from the violation. 
Id. at 290.

Milliken II  thus squarely holds that educational 
deficiencies caused by segregation constitute a vestige 
of a segregated school system that a court may properly 
seek to eliminate. Despite petitioners’ assertions to the 
contrary (Br. 41), acceptance of their argument that 
educational deficiencies cannot be a vestige of a segre­
gated school system would require this Court to over­
rule Milliken II.

2. Petitioners contend (Br. 21) that the district court 
never made a finding tying educational deficiencies to 
racially identifiable schools. That contention is in­
correct.

In its initial liability decision, the court expressly 
found that the “inferior education indigenous [to] the 
state-compelled dual school system has lingering effects 
in the Kansas City, Missouri School District.” 593 F. 
Supp. at 1492. The court specifically relied on testimony 
that “forced segregation ruins attitudes” and that the 
“general attitude of inferiority among blacks produces



18

low achievement.” Ibid, (citation omitted). In its 
remedial order, the court elaborated that “ [segregation 
has caused a system wide red u ction  in student 
achievement in the schools of the KCMSD.” 639 F. Supp. 
at 24. The court further found that the “education 
process has been * * * ‘ bogged down’ in the KCMSD by 
a history of segregated education,” and that “ [t]oo often, 
as a result, a higher percentage of black students are 
among the lower achievers.” Id. at 28. In recognition of 
this fact, petitioners themselves “proposed program 
components designed to increase student achievement at 
the elementary and secondary levels” (id. at 25), in­
cluding most of the programs ultimately ordered into 
effect by the district court (id. at 26). Thus, as even the 
judges dissenting from the denial of rehearing en banc in 
this case stated, “ [tjhere is no question that the reduced 
educational attainment discerned by the district court in 
1984 resulted from acts of racial discrimination and 
represented ‘vestiges’ of past unlawful segregation.” 
Pet. App. A63.

3. Petitioners argue (Br. 27-32, 40) that the Milliken 
II programs exceeded the scope of the violation because 
they were designed to attract white students from the 
suburbs to the KCMSD schools and that purpose is 
incompatible with the district court’s earlier finding 
that there was no interdistrict violation. As the findings 
discussed above demonstrate, however, the principal 
purpose of the Milliken II programs was not to attract 
white students from the suburbs, but, as their name 
implies, to remedy the effect that racial segregation has 
had on student achievement. 639 F. Supp. at 24-34. The



19

Milliken II programs are fully justified as a remedy for 
that violation.2

4. Petitioners contend (Br. 35) that the passage of 
time since the time of the violation shows that there is 
no causal link between prior segregation and current 
deficiencies in academic achievement. This Court noted 
in Freeman that “with the passage of time the degree to 
which racial imbalances continue to represent vestiges 
of a constitutional violation may diminish.” 112 S. Ct. at 
1446. The same is true of educational deficiencies. The 
longer that remedial educational programs are in place, 
the less likely it is that any remaining achievement 
deficiencies can be traced to segregation. But that 
common sense proposition does not justify a conclusive 
presumption that, because a certain period of time has 
passed, the link between prior segregation and current 
educational deficits must have been broken.

Nothing in Freeman supports such a conclusion. To 
the contrary, that decision points in exactly the opposite 
direction. In Freeman, one issue was whether existing 
residential segregation could be attributed to prior 
school segregation, thereby warranting further remedial 
student assignments. Although the student assignment 
remedy in Freeman had been in effect for 17 years, the 
Court did not rely on a conclusive presumption that,

2 In ordering the Milliken II programs into effect, the district 
court also found that they would help to attract suburban and 
private school students to the KCMSD schools and to retain white 
students who remained in the system. 639 F. Supp. at 24-34. 
Those goals were justified by the district court’s finding that de 
jure segregation in the KCMSD caused white students to leave the 
system. 855 F.2d at 1302. That finding is not inconsistent with the 
district court’s earlier conclusion that the suburban districts did 
nothing to cause this white flight and therefore could not be 
included in a mandatory interdistrict remedy.



20

because of the passage of time alone, residential 
segregation could not be traced to prior school segre­
gation. Instead, the Court noted that the district court 
had “examined the interaction between [the school 
system] policy and demographic shifts” and had found on 
the basis of that examination that current residential 
segregation was caused by factors factually unrelated to 
past school segregation. 112 S. Ct. at 1439, 1447.

The Court applied that same fact-intensive approach in 
Dowell. There, the school board sought a declaration of 
unitary status to permit the termination of a busing 
remedy and a return to neighborhood schools. The Court 
noted that one issue bearing on whether such relief 
should be granted was whether continuing residential 
segregation was the product of past school segregation 
or was instead the result of recent private decision­
making and economics. 498 U.S. at 250 n.2. Although the 
school district had complied with the desegregation plan 
for 13 years, the Court made no assumptions about the 
proper resolution of that issue based on the passage of 
time or the school district’s compliance. Instead, the 
Court remanded the case to the lower courts for a 
finding on whether residential segregation was, in fact, 
still a vestige of prior segregation. Ibid.

A conclusive presumption that the passage of time 
alone has eliminated the effects that segregation has had 
on student achievement is equally inappropriate. In 
Milliken II, this Court recognized that compensatory 
programs cannot be expected “to wipe the slate clean by 
one bold stroke.” 433 U.S. at 290. Because segregation 
can cause serious deficiencies in basic skills, remedying 
those deficiencies can “require time, patience, and the 
skill of specially trained teachers.” Ibid. At the time of 
the district court’s decision in this case, the Milliken II 
programs have been completely in place for three years.



21

Pet. 12. It would be inappropriate to assume, without any 
specific factual support, that serious educational de­
ficiencies caused by children having been educated in a 
segregated environment have been fully remedied in that 
time.

This does not mean that the programs at issue here 
should go on forever. Remedies in school desegregation 
cases are temporary. Dowell, 498 U.S. at 247. The 
“ultimate objective [is] to return school districts to the 
control of local authorities.” Freem an, 112 S. Ct. at 
1445. The courts below are fully aware of that. The 
district court has already asked the parties to submit 
proposals for the elimination of court-ordered funding 
after three, five, seven, or ten years. The court of 
appeals has expressly approved that time-limited 
approach. Pet. App. A12-A13. The lower courts are 
“ looking forward to the day when a gradual phase-out 
would be considered.” Id. at A13.

5. Petitioners contend (Br. 36, 42) that their 
responsibilities should be terminated now because their 
involvement in segregation in Kansas City was limited 
to actions taken by them before 1954, when segregation 
was mandated by state law. Accordingly, petitioners 
contend, the students in the system today could not have 
suffered from any constitutional violation committed by 
them.

The district court did not, however, premise 
petitioners’ liability entirely on the pre-1954 state 
statute mandating segregated schools. The court also 
relied on the fact that petitioners had taken no action 
since 1954 to eliminate the vestiges of segregation in the 
KCMSD. 593 F. Supp. at 1504-1505. Petitioners’ failure 
to fulfill their affirmative constitutional duty to “take 
whatever steps might be necessary to convert [the 
KCMSD] to a unitary system * * * continue[d] the



22

violation of the Fourteenth Amendment.” Columbus Bd. 
ofEduc. v. Penick, 443 U.S. 449, 459 (1979).

That additional post-1954 basis for liability is 
significant. The district court found in 1984 that, 
because petitioners had failed to take steps to eliminate 
the dual system, black children continued to attend one- 
race schools and continued to suffer educational harm 
through 1984. 593 F. Supp. at 1492-1493, 1504-1505. 
Students harmed by that violation remain in the school 
system today.

Nor did the effects of petitioners’ violation end even in 
1984. The magnet school program ordered by the district 
court as a means to desegregate the one-race schools 
was not fully implemented until 1994. Many students 
thus continued to attend one-race schools that were 
vestiges of the State’s violations. And the district court 
recently found that the magnet program has still not 
eliminated segregated schooling to the extent practi­
cable. Pet. App. A129-A132. Thus, according to the 
district court’s unchallenged findings, students in the 
system today have been and continue to be subjected to 
segregated schooling as a result of petitioners’ consti­
tutional violations.

C. The Court Of Appeals Correctly Held That 
Test Scores Can Be Relevant In Deciding 
Whether Deficiencies in Basic Skills Caused 
By Prior Segregation Have Been Eliminated To 
The Extent Practicable

1. Petitioners contend (Pet. 45) that the court of 
appeals has imposed a requirement that student test 
scores increase to a particular level as a precondition to 
unitary status. The court of appeals, however, has im­
posed no such requirement. As the author of the panel 
opinion explained in voting to deny rehearing en banc,



23

the decision stands for the more limited proposition that 
test results should be considered as “one factor” when 
deciding whether educational deficiencies resulting from 
prior segregation has been adequately remedied. Pet. 
App. A48.

That holding is correct. The district court considered 
test scores in finding that racial segregation had caused 
lowered achievement. It is logical to consider test 
scores in deciding whether that violation has been 
remedied. Test scores could be relevant in a number of 
ways. For example, proof that test scores improved at 
first, but then leveled off over time, might suggest that 
further improvement is impractical. Proof that test 
scores have risen to the same level as otherwise 
comparable student populations that have not been 
exposed to de jure segregation might suggest that any 
remaining educational deficiencies are not attributable 
to prior segregation. On the other hand, proof that test 
scores remain substantially below levels achieved by 
students who have not been subjected to segregation 
could be a significant indication that the deficiencies 
caused by prior unlawful racial segregation have not yet 
been eliminated.

Other evidence might rebut any of these inferences. 
But that simply proves that test-score evidence should 
never be viewed as conclusive. It does not show that test 
scores must be ignored. Here, as elsewhere, “statistics 
are not irrefutable; they come in infinite variety and, like 
any other kind of evidence, they may be rebutted. In 
short their usefulness depends on all of the surrounding 
facts and circumstances.” International Bhd. of Team­
sters v. United States, 431 U.S. 324, 340 (1977).

The court of appeals’ holding that outcome measures 
should be considered, but that they should not be the sole 
criterion of whether discrimination has been remedied,



24

is consistent with this Court’s decision in Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). 
There, the Court held that the Constitution does not 
compel any particular level of racial balance in the 
schools. The Court went on to hold, however, that 
because a remedial plan must be measured by its 
effectiveness, numerical objectives can serve as a useful 
starting point in shaping relief. Id. at 24-25. In 
particular, in places in which there is a history of racial 
segregation, school boards must show that schools that 
remain substantially disproportionate in their racial 
composition are not the product of past or present 
discrimination on their part. Id. at 25-26. A similar 
approach is appropriate in the context of remedying the 
impact of segregation on educational achievement. 
There is no requirement that students must reach a 
fixed or comparative achievement level before Milliken 
II programs may end. But when segregation has caused 
impaired educational achievement, evidence that 
students in the system continue to perform poorly when 
compared to others can be an important indication that 
the effects of discrimination persist.

2. Petitioners argue (Pet. 46-47) that because the 
Constitution requires equal opportunity, not equal re­
sults, focusing on student achievement is inappropriate. 
The question here, however, is not what the Consti­
tution requires as an initial matter. Rather, the 
question is what the Constitution requires as a remedy 
once a violation has been proven to have caused impaired 
educational achievement. When a State violates its duty 
to provide equal educational opportunity, and that 
violation results in lowered achievement, the State has 
an affirmative constitutional responsibility to remedy 
the consequences of that violation insofar as it practi­
cally can. Dayton Bd. of Educ. v. Brinkman, 443 U.S.



25

526, 537-538 (1979); Penick, 443 U.S. at 458-459. That 
standard does not mean that the State must guarantee 
equal results. It does mean, however, that the State 
must make good faith efforts to raise the skill levels of 
students subjected to segregation to the levels those 
students would have reached had there been no 
discrimination. Milliken II, 433 U.S. at 280-281. Peti­
tioners appeared to recognize that in 1985 when they 
urged the district court to institute educational pro­
grams “designed to increase student achievement at the 
elementary and secondary levels.'’ 639 F. Supp. at 25.

3. Finally, petitioners argue (Pet. 48) that any 
consideration of achievement levels necessarily holds 
petitioners accountable for factors beyond their control, 
such as poverty, crime, drug use, and lack of parental 
involvement. Under the court of appeals’ decision, 
however, petitioners are responsible for continued 
funding of the Milliken II  programs only if lingering 
educational deficiencies are attributable to segregation 
and only if further progress in eliminating those 
deficiencies is practical. If petitioners show that the 
deficiencies that exist today are the product of socio­
economic factors unrelated to segregation, they would be 
entitled to the declaration of partial unitariness that 
they seek. Similarly, if petitioners show that further 
steps to address deficiencies in basic skills are unlikely 
to be successful or that the possible gains are marginal 
in comparison with their costs, the relief they seek 
would also be appropriate. Petitioners, however, have 
not offered evidence to that effect. Their assertion that 
factors besides segregation are entirely responsible for 
any continuing educational deficiencies is no substitute 
for proof.

Sorting out the extent to which poor achievement 
levels reflect the lingering effects of discrimination and



26

the extent to which such deficiencies result from other 
independent causes is not an easy task. That is also true 
of other inquiries in the school desegregation context. 
For example, in Dowell and Freeman, the Court made 
clear that, notwithstanding the difficulty of the inquiry, 
a district court must decide to what extent residential 
segregation is attributable to prior segregation rather 
than other known causes of that phenomenon, such as 
economics and private choice. Dowell, 498 U.S. at 250 
n.2; Freeman, 112 S. Ct. at 1447-1448. With the assis­
tance of the parties and the exercise of judgment, courts 
have the capacity to decide also whether current 
educational deficiencies have been substantially caused 
by prior segregation.

The only apparent alternative is to select an arbitrary 
period of time for the remedy to operate before it is term­
inated. That approach, however, would in some cases 
extend the remedy longer than necessary to remedy the 
effects of segregation, and in other cases halt the remedy 
before it has accomplished its purpose. The mechanical 
quality of that course makes it an unsuitable alternative 
in an area where judgment and sensitivity to factual 
differences are especially called for. This Court rejected 
such an approach in Dowell and in Freeman. It should 
also reject it here. Dowell and Freeman have provided 
an orderly and understandable framework for resolving 
when school desegregation remedies should be term­
inated. The Court should not disturb that framework.



27

CONCLUSION

The court of appeals’ judgment with respect to the 
Milliken II programs should be affirmed.

December 1994

Drew S. Days, III 
Solicitor General

Deval L. Patrick 
Assistant Attorney General 

Paul Bender 
Deputy Solicitor General 

Irving L. Gornstein 
Assistant to the Solicitor General

Dennis J. Dimsey 
Mark L. Gross 

Attorneys