Jenkins v. Missouri Brief of State Appellees/Cross-Appellants
Public Court Documents
January 1, 1985
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Brief Collection, LDF Court Filings. Jenkins v. Missouri Brief of State Appellees/Cross-Appellants, 1985. e00db5bf-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/acdfa15a-ba77-43ea-b2b7-159f6d3f5e3e/jenkins-v-missouri-brief-of-state-appelleescross-appellants. Accessed August 19, 2025.
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In The
Imtpfc Glourt of AppmlB
For the E ighth Circuit
No. 85-1765WM
No. 85-1949WM
No. 85-1974WM
Kalima Jenkins, et a l ,
Appellants and Cross-Appellees,
v.
State of Missouri, et al.,
Appellees and Cross-Appellants.
Appeals from the U nited S ta tes D istrict Court fo r the
W estern D istrict of M issouri, W estern Division,
Honorable Russell G. C lark, Chief Judge
BRIEF OF STATE APPELLEES CROSS-APPELLANTS
W illiam Webster
A ttorney General
Terry Allen
Deputy A ttorney General
Bruce Farmer
Georganne L. Wheeler
A ssistant A ttorneys General
Supreme Court Building
Jefferson City, MO 85102
(814) 751-3321
H. Bartow Farr, III
J oel I. Klein
Richard G. Taranto
Oner , Klein & B’arr
2550 M Street, N.W.
W ashington, D.C. 20037
(202) 775-0184
Counsel fo r S ta te Appellees/
Cross-Appellants
W il s o n - E p e s P r in t in g C o . . In c . - 7 8 9 - 0 0 9 6 - W a s h in g t o n . D .C . 2 0 0 0 1
SUMMARY AND REQ U EST FOR ORAL ARGUMENT
T his desegregation case involves both in te rd is tr ic t and
in tra d is tr ic t claim s, m ade by both the p lain tiffs and the
K ansas C ity M issouri School D is tr ic t (K CM SD ) a g a in s t
various S ta te agencies and officials, v arious federa l agen
cies, and v a rious school d is tr ic ts in the K ansas C ity
m etropo litan a rea . A f te r y e a rs of discovery and m onths
of tr ia l, th e d is tr ic t cou rt rejected the in te rd is tr ic t claim s,
m ak ing extensive findings abou t th e lack of any signifi
ca n t c u rre n t seg rega tive effect re su ltin g fro m th e alleged
d isc rim in a to ry acts. T he co u rt accepted the in tra d is tr ic t
claim s, how ever, find ing th a t vestiges of the fo rm e r dual
school system rem ained w ith in the KCM SD itself. In the
c o u rt’s view, th is find ing ju stified a rem edy fo r all s tu
den ts and all schools th ro u g h o u t th e KCM SD.
The co u rt’s rejection of th e in te rd is tr ic t claim s is cor
rec t u n d e r the govern ing law established by M illiken v.
B radley, 418 U.S. 717 (1974 ), and is overw helm ingly
supported by the c o u rt’s findings. T he c o u rt’s decision to
im pose a d istric t-w ide rem edy, by co n tra s t, is unsu p
po rted by adequate findings. In add ition , the rem edy
adopted by the d is tr ic t cou rt is u n ju stified in a num ber
of p a r t ic u la r respects.
The S ta te defendan ts request the sam e am oun t of tim e
fo r o ral a rg u m e n t as th a t g ran ted to the KCM SD or
p lain tiffs. T he S ta te defendan ts believe th a t 40 m inu tes
is a sufficient period.
(i)
Page
SUMMARY AND REQUEST FOR ORAL ARGU
M ENT ................................ ................ ..................................... i
TABLE OF AU THO RITIES ................. ........ ...... ........ . v
PRELIM IN A RY STA TEM EN T....................................... xi
STATEM ENT OF TH E ISSUES _________ ____ ______ xii
STATEM ENT OF TH E C A SE .............................. ........... 1
INTRODUCTION AND SUMMARY OF ARGU
M ENT ................................................................. ....... ........ ....... 7
ARGUM ENT ............................................................ ............ . 8
I. The D istrict Court Properly Found A gainst
Plaintiffs and the KCMSD on Their Claims of
In te rd is tric t L iab ility_________ 8
A. The Law Governing In te rd is tric t Claims Re
quires Proof of Intentionally D iscrim inatory
Acts and A Significant C urren t Condition of
Segregation Resulting From Those A c ts____ 8
B. The D istrict Court Correctly Found T hat
School Boundaries In the Kansas City M etro
politan A rea W ere Not Set or M aintained
W ith a D iscrim inatory Purpose .......... .......... 12
C. The D istrict Court Correctly Found th a t No
Racially D iscrim inatory Act of the S tate
Was a Substantial Cause of Significant Cur
ren t In te rd is tric t Segregation _______ _____ 14
1. Pre-1954 S tate School Policies ................ 15
2. Post-1954 School-Related A c tio n s______ 22
3. Housing Actions ........ ................................. . 26
D. The D istrict Court’s Findings Dispose of the
In te rd istric t Claims A gainst the State De
fendants ....... 29
TABLE OF CONTENTS
(iii)
IV
II. The D istric t Court Adopted an Im proper Rem
edy fo r the In trad is tric t Violation ......................... 40
A. The D istrict Court, in Developing a Remedy
for Segregation W ithin the KCMSD, Failed
to L im it the Remedy to Redress of the Con
ditions Caused by T hat S eg rega tion ........... 40
1. The F inding of Segregation in the 90+ %
Black Schools __________ ________ ___ __ 42
2. The F inding of Indigenous Inferiority.... 47
B. The D istrict Court Committed Several E r
ro rs W ith Regard to P articu la r Program s.... 53
1. The V oluntary In te rd is tric t Program .... 54
2. The General Addition of T eachers ........... 55
3. The School G rant P ro g ra m _________ __ 55
4. The Buildings Plan ........................ .............. 56
5. The Allocation of Funding Between the
S tate and the KCMSD _________________ 5g
CONCLUSION .................................................... ......... 63
TABLE OF CONTENTS—Continued
Page
V
TABLE OF AUTHORITIES
C A SE S Page
Adam s v. United States, 620 F.2d 1277 (8th C ir.),
cert, denied, 449 U.S. 826 (1980).......................... 15, 43
Alabama V. Pugh, 438 U.S. 781 (1978)__________ xii, 60
Alexander V. Youngstown Board o f Education,
675 F.2d 787 (6th Cir. 1982)..... .......... ......... ......... 42
Anderson v. C ity o f Bessemer City, N.C., 105
S.Ct. 1504 (1985) .... ........... ..................... ................ 30
A rm our v. N ix, No. 16,708 (N.D.Ga. 1979), aff’d,
446 U.S. 930 (1 9 8 0 )______________________ __ 14, 32
Arm strong v. Board of School Directors of the
City of M ilwaukee, 616 F.2d 305 (7th Cir.
1980) ____ ___ __________ ____________ ____ __ _ 42-43
A rth u r v. N yquist, 712 F.2d 809 (2d Cir. 1983),
cert, denied, 104 S.Ct. 1907 (1984)___ ________ 52
Barrows V. Jackson, 346 U.S. 249 (1953)________ 27
B erry v. School D istrict of the C ity of Benton
Harbor, 564 F. Supp. 617 (W.D.Mich. 1983).... 13
B erry v. School D istrict of the C ity of Benton
Harbor, 698 F.2d 813 (6th C ir.), cert, denied,
464 U.S. 892 (1 9 8 3 )___________ ___ _________ 13, 57
Bradley V. M illiken, 484 F.2d 215 (6th Cir. 1973),
rev’d, 418 U.S. 717 (1974)..... ..................... .......... 11
Bradley v. School Board of Richmond, 462 F.2d
1058 (4th Cir. 1972), aff’d, 412 U.S. 92 (1973).. 14
Brennan v. A rm strong, 433 U.S. 672 (1977)____ 42
Brown v. Board of Education, 349 U.S. 483
(1954) ............... passim
Columbus Board of Education V. Penick, 443 U.S.
449 (1979) .......... ......9 ,30,41
Cunningham v. Grayson, 541 F.2d 538 (6th Cir.
1976), cert, denied, 429 U.S. 1074 (1977)........ 14
Davis v. E ast Baton Rouge Parish School Board,
721 F.2d 1425 (5th Cir. 1983)_________ __ ____ 44
D ayton Board of Education v. Brinkm an, 433 U.S.
406 (1 9 7 7 )__________ 9 ,41 ,57
Edelman v. Jordan, 415 U.S. 651 (1974)_____xiii, 60, 61
Evans v. Buchanan, 393 F. Supp. 428 (D.Del.),
aff’d mem., 423 U.S. 963 (1 9 7 5 )________ _____ 11, 13
Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978),
cert, denied, 446 U.S. 923 (1980).............. ............. 13
VI
TABLE OF AUTHORITIES—Continued
Page
E x Parte Young, 209 U.S. 123 (1908)................ ...... 60
Ford M otor Company v. Dept, o f Treasury, 323
U.S. 459 (1945)...................................... .................. 60
General Building Contractors A ss ’n v. Pennsyl
vania, 458 U.S. 375 (1982) ........... ..... ................. 41
Goldsboro City Board of Education v. Wayne
County Board of Education, 745 F.2d 324 (4th
Cir. 1984) ...... .............................................. ........... .13, 30-32
Great N orthern L ife Insurance Co. v. Read, 322
U.S. 47 (1944) .... ................... ...... .................. ......... . 60
Haney v. County Board o f Education, 410 F.2d
920 (8th Cir. 1969) ........................... ......... ........ ,........ 13, 36
Hills v. Gautreaux, 425 U.S. 284 (1 9 7 6 )................. passim
Hoots v. Commonwealth of Pennsylvania, 672
F.2d 1107 (3rd C ir.), cert, denied, 459 U.S.
824 (1982) ________ ______ ______ ____________ 13
Jenkins v. State of Missouri, 593 F. Supp. 1485
(W.D.Mo. 1984) ............................ .............................. .
Keyes v. School D istrict No. 1, 413 U.S. 189
(1973) ........... ................................................... .............
Lee V. Lee County Board of Education, 639 F.2d
1243 (5th Cir. 1981).................... ................... ........
Liddell v. Missouri, 731 F.2d 1294 (8th C ir.), cert.
denied, 105 S.Ct. 82 (1984) ..................... ........
M iener v. M issouri, 673 F.2d 969 (8th C ir.), cert.
denied, 459 U.S. 909 (1982) _____ ____________
M illiken v. Bradley, 418 U.S. 717 (1974)_________
M illiken v. Bradley, 433 U.S. 267 (1977) .
Monell v. D epartm ent of Social Services, 436 U S
658 (1978) ________________ __ _______ ____ _
Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972)
Morgan v. Kerrigan, 530 F.2d 401 (1st C ir.), cert.
denied, 426 U.S. 935 (1976)
M orrilton School D istrict No. 32 v. United States,
606 F.2d 222 (8th Cir. 1979), cert, denied, 444
U.S. 1071 (1 9 8 0 )............. .................
M ount H ealthy City School D istrict v. Doyle 429
U.S. 274 (1 9 7 7 ).... ............................................’
Newburg Area Council, Inc. v. Board o f Education
of Jefferson County, 510 F.2d 1358 (6th Cir.
1974), cert, denied, 421 U.S. 931 (1975).............
passim
passim
11, 60
passim
passim
22
27
52
13, 39
11
11,13
V ll
Oliver v. Kalamazoo Board of Education, 640 F.2d
782 (6th Cir. 1 9 8 0 ).................................................... 52, 53
Parent Association of A ndrew Jackson H.S. V.
Am back, 598 F.2d 705 (2d Cir. 1979) ................. 57
Pasadena City Board of Education V. Spangler,
427 U.S. 424 (1 9 7 6 )................... .............................. 44
Penick V. Columbus Board of Education, 519 F.
Supp. 925 (S.D. Ohio), aff’d, 663 F.2d 24 (6th
Cir. 1981), cert, denied, 455 U.S. 1018 (1982).... 59
Pennhurst S ta te School and Hospital v. Halder-
man, 104 S.Ct. 900 (1984)........................................ 60
Plaquemines Parish School Board v. United
States, 415 F.2d 817 (5th Cir. 1969).... ................ 53
Pullm an-Standard V. Sw int, 456 U.S. 273 (1982).. 31
Reed v. Rhodes, 500 F. Supp. 404 (N.D. Ohio
1980), aff’d, 662 F.2d 1219 (6th Cir. 1981),
cert, denied, 455 U.S. 1018 (1982)..................... 59
School D istrict of Kansas City, M issouri v. State
of Missouri, 460 F. Supp. 421 (W.D.Mo. 1978)... 2, 38
School D istrict of Omaha v. United States, 433
U.S. 667 (1977) ..______ _________ _________ _ 41-42
Shelley v. Kraemer, 334 U.S. 1 (1948)...................... 27
Swann v. Charlotte-Mecklenburg Board of Educa
tion, 402 U.S. 1 (1971)............. ..............................passim
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978),
cert, granted, 440 U.S. 906 (1979), cert, dis
missed, 444 U.S. 437 (1980).................................... 18
Tasby v. Estes, 412 F. Supp. 1185 (N.D.Tex.
1975), aff’d on in terdistrict issues, 572 F.2d
1010 (5th Cir. 1978), cert, granted, 440 U.S.
906 (1979), cert, dismissed, 444 U.S. 437
(1980) .... ...... ..................... ........................................... 14,32
Taylor v. Ouachita Parish School Board, 648 F.2d
959 (5th Cir. 1981) ........... ........ ................... ............ 14
United States v. Board of Education of Valdosta,
Georgia, 576 F.2d 37 (5th Cir. 1978), cert, de
nied, 439 U.S. 1007 (1978).................... ................... 43
TABLE OF AUTHORITIES—Continued
Page
V ll l
United S ta tes v. Board o f School Commissioners
of the City o f Indianapolis, 456 F. Supp. 183
(S.D.Ind. 1978), aff’d in relevant part, 637 F.2d
1101 (7th Cir. 1980), cert, denied, 449 U.S. 838
(1980) ....... ............. ............................. ........................ 11,13
United States v. Jefferson County Board o f E du
cation, 380 F.2d 385 (5th C ir.), cert, denied,
389 U.S. 840 (1967 )........... ................. ..................... 53
United States V. Missouri, 515 F.2d 1365 (8th
C ir.), cert, denied, 423 U.S. 951 (1975)_______ 13
United States v. Texas, 447 F.2d 441 (5th Cir.
1971), cert, denied, 404 U.S. 1016 (1972)........... 53
United States v. Texas, 321 F. Supp. 1043 (E.D.
Tex. 1970), aff’d in relevant part, 447 F.2d 441
(5th Cir. 1971), cert, denied, 404 U.S. 1016
(1972) .................................................. .......................... 13
W ashington v. Davis, 426 U.S. 229 (1976) ................8, 9, 41
Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949).............. 27
S T A T U T E S
42U.S.C. § 1982 (1982)_________ _____ __________ 53-54
Act of July 6, 1957, § 1, 1957 Mo. Laws 542-53.... 16
Mo. Const, a rt. 3, § 40 (2 0 )______________________ 10-11
Mo. Const, a rt. IX, § 1 (a) (1 9 4 5 )............................ . 15
1865 Mo. Laws 177, § 20 ..___ ____________________ 17
1869 Mo. Laws 8 6 _________________ 17
1870 Mo. Laws 149, § 45, codified a t Mo. Rev. Stat.
Mo. a rt. 1, ch. 150, § 7052 ______ ______ _____ _ 16-17
1874 Mo. Laws 163-64, § 7 3 ............... ...... ................... 16-17
1887 Mo. Laws 264, codified a t Mo. Rev. Stat.
§§ 8003 & 8004 (1889) ............................................. 16-17
1893 Mo. Laws 247 ___ _____ __ ________________ 16-17
1909 Mo. Laws 790, § 42, codified a t Mo. Rev.
Stat. a rt. 2, ch. 102, §§ 11145 & 11146 (1919).. 16-17
1929 Mo. Laws 382-83, codified a t Mo. Rev. Stat.
ch. 72, § 10350 (1939) _____ ______ ____ ____ i 6_i7
1946 Mo. Laws 1699-1700______________ 16-17
Mo. Rev. Stat. §§ 162.222, 162.431, 162.441 (1978
& Supp. 1983)... ....... ..... ....... ...................................... 10
TABLE OF AUTHORITIES—Continued
Page
IX
Mo. Rev. Stat. § 165.563 (1943)........ 23
Mo. Rev. Stat. § 99.040 (1978) ........ 26
Mo. Rev. Stat. § 99.300 (1978).................................. 26
Mo. Rev. Stat. §§ 215.100, 213.105, 213.120 (1978).. 53-54
O TH ER A U T H O R IT IE S
Fed. R. Civ. P. 52 ( e ) ............. ..................................... . 30
Executive Order No. 11063........ ................................... 53-54
Effective Schools: A Sum m ary of Research (1983).. 57-58
M urnane, “In terp reting the Evidence on School
Effectiveness,” 83 Harv. Educ. Rev. 19 (1981).. 57-58
TABLE OF AUTHORITIES—Continued
Page
PRELIMINARY STATEMENT
1. The decisions appealed from by the State cross
appellants were rendered by Chief Judge Russell G. Clark
of the United States District Court for the Western Dis
trict of Missouri, Western Division, on June 1, 1981
(unreported) ; August 12, 1981 (unreported) ; September
17, 1984 (593 F. Supp. 1485) ; and June 14, 1985 (un
reported) .
2. The jurisdiction of the District Court was based on
28 U.S.C. §§ 1331, 1343 (1982).
3. The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. § 1291 (1982). The State cross-appellants
filed a timely notice of appeal on August 1, 1985.
(xi)
XU
STATEMENT OF THE ISSUES
1. Whether the district court properly rejected the
claims of interdistrict liability against the State defend
ants, where there was no racial gerrymandering and no
significant current segregative effects of any discrimina
tory acts.
Milliken V. Bradley, 418 U.S. 717 (1974).
Lee v. Lee County Board of Education, 639 F.2d
1243 (5th Cir. 1981).
2. Whether the district court acted within its equitable
discretion in declining to include the proposed elaborate
housing program in its school desegregation remedy.
3. Whether the Kansas City Missouri School District
should be realigned as a plaintiff after it has been found
liable for a constitutional violation.
4. Whether the district court erred in ordering exten
sive remedial programs for every school in the KCMSD,
without adequate findings regarding the extent of injury
caused by the intradistrict violation.
Milliken v. Bradley, 433 U.S. 263 (1977).
Hills v. Gautreaux, 425 U.S. 284 (1976).
5. Whether the Eleventh Amendment requires dismis
sal of the State and the State Board of Education as
parties to this case.
Alabama v. Pugh, 438 U.S. 781 (1978).
6. Whether the district court erred in the following
respects in its remedial order: (a) in requiring the State
to continue making full Foundation Formula payments
to the KCMSD, a constitutional violator, for students who
are attending school elsewhere under a transfer program;
(b) in ordering the addition of numerous teachers to the
KCMSD staff throughout the district, over and above
those needed to bring the KCMSD to AAA status; (c)
in awarding block grants to every school in the KCMSD,
without any designation of the money for programs
tailored to injury from segregation; (d) in ordering a
$37 million general capital improvements plan, without
xiii
any finding that current facility problems were related to
segregation; and (e) in allocating more than 77 percent
of the overall costs of the remedial plan to the State and
only 23 percent to the KCMSD, though both were found
jointly liable for the intradistrict violation.
Edelman V. Jordan, 415 U.S. 651 (1974).
Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984),
cert, denied, 105 S.Ct. 82 (1984).
I n T he
States GJmtrt itf Appeal#
F or th e E ig h th Circuit
No. 85-1765WM
No. 85-1949WM
No. 85-1974WM
Kalima J e n k in s , et al.,
Appellants and Cross-Appellees,
v.
State of Missouri, et al,
Appellees and Cross-Appellants.
Appeals from the United States District Court for the
Western District of Missouri, Western Division,
Honorable Russell G. Clark, Chief Judge
BRIEF OF STATE APPELLEES/CROSS-APPELLANTS
STATEMENT OF THE CASE
This lawsuit involves claims regarding the racial com
position of the schools in the Kansas City metropolitan
area. The suit was originally filed in 1977 by the KCMSD
through its superintendent and its school board, and by
students in the district. The named defendants included
the State of Missouri, the Missouri State Board of Edu
cation and various Missouri officials, the State of Kansas,
the Kansas State Board of Education and various Kan
sas officials, several Kansas school districts in the Kansas
City metropolitan area, twelve Missouri school districts
in the area, the United States Department of Health,
Education, and Welfare (HEW), the United States De
partment of Housing and Urban Development (HUD),
and the United States Department of Transportation
(DOT). The lawsuit alleged unconstitutional interdis
2
trict segregation caused by acts of the defendants and
sought a sweeping remedy involving reassignment of
students across district and state lines.
In October 1978, the district court dismissed all of the
Kansas defendants. School District of Kansas City, Mis
souri v. State of Missouri, 460 F. Supp. 421 (W.D.Mo.
1978). The court also realigned the KCMSD as a de
fendant, a ruling that is before this Court in the appeal
brought by the KCMSD (No. 85-1949WM). Thereafter,
in May 1979, students in the KCMSD and in several of
the defendant Missouri school districts filed an amended
complaint.1 All of the non-Kansas defendants originally
named were named again as defendants, and the KCMSD
was added as a new defendant.
The amended complaint, at least as construed by the
district court, made two distinct claims: it realleged the
interdistrict violation alleged in the original complaint;
and it alleged an intradistrict violation, committed by
the KCMSD and by the State defendants, within the
KCMSD. In July 1979, the KCMSD asserted a similarly
dual cross-claim against the State defendants2; it sought
indemnification for its intradistrict liability, and it made
the same allegation of an interdistrict violation as that
made by the plaintiffs.
Before trial began in 1983, the United States Depart
ment of Transportation and one of the Missouri school
districts were dismissed by stipulation, leaving the
KCMSD, eleven suburban school districts (SSDs), the
1 The named plaintiffs were replaced at various times during the
litigation. In February 1985, the court certified a class of all
present and future KCMSD students. The named plaintiffs and the
class are the appellants in No. 85-1765WM and the cross-appellees in
No. 85-1974WM.
2 The State defendants were the State of Missouri, the Governor
of Missouri, the Missouri State Board of Education and its mem
bers, and the Commissioner of Education of the State of Missouri.
In March 1985, the Treasurer of the State of Missouri was added
as a defendant necessary for relief. All of the State defendants are
cross-appellants in No. 85-1974WM and appellees in No. 85-1765WM
and No. 85-1949WM.
3
State defendants, HUD, and HEW (later dismissed) as
defendants. The district court refused to grant the State
of Missouri’s motion to dismiss the State on Eleventh
Amendment grounds. See Order of June 1, 1981 at
13-14; Order of August 12, 1981 at 5-6. The court also
refused to grant, this time upholding an Eleventh Amend
ment defense, a 1980 request by the KCMSD that the
State be ordered to contribute 50 percent of the future
costs of the intradistrict desegregation plan adopted by
the KCMSD in 1977 (Plan 6C) under agreement with
the Office of Civil Rights of HEW. See Order of June 1,
1981 at 17-31.
After hearing months of evidence by the plaintiffs and
KCMSD, and before hearing evidence in response, the
district court dismissed all of the suburban school dis
tricts from the case. Order of April 2, 1984. As de
scribed more fully below, the court found, in accordance
with Milliken v. Bradley, 418 U.S. 717 (1974) [Milliken
I], that school districts in Missouri were autonomous and
that none of the districts had committed any interdistrict
violation. Further, in extensive and detailed fact find
ings, the court found that none of the discriminatory
governmental actions advanced by plaintiffs or the
KCMSD to support their interdistrict claims had any
significant current interdistrict segregative effect. See
generally June 5 Order (June 5, 1984, opinion setting
out findings and conclusions underlying April 2, 1984,
dismissal).
The findings of fact in the June 5 Order addressed
each of the theories for finding interdistrict liability.
First, the court held that there had been no manipulation
of district boundaries for racial reasons, finding a “ [l]ack
of proof of discriminatory intent in the establishment or
changing of any school district boundary lines.” Id. at 6.
Second, the court held that the pre-1954 State segrega
tion policy had no significant current interdistrict effects,
finding plaintiffs’ proof on this point to be “weak, specu
lative, and in any event de minim[i]s.” Id. at 12. Third,
the court determined that the pre-1948 State enforcement
4
of racially restrictive covenants had no significant cur
rent interdistrict effects. Id. at 39.8 Taking these matters
together, the district court concluded that “ [a]t most,
plaintiffs’ evidence is de minim[i]s and is therefore
insufficient” to support relief involving the SSDs, Id.
at 98.
The court then heard further evidence and, on Septem
ber 17, 1984, issued its final liability ruling. Jenkins v.
State of Missouri, 593 F. Supp. 1485 (W.D.Mo. 1984)
[“Jenkins”]. In that order, the court first rejected plain
tiffs’ arguments that certain specific pre- and post-1954
actions by the KCMSD and various state agencies were
an adequate basis for finding liability. Thus, the court
denied relief based on practices of the KCMSD such as
allowing liberal transfers and undertaking “intact bus
ing.” Furthermore, it found no basis for liability in
post-1954 State actions concerning vocational schools,
highway location and relocation assistance, and Missouri
Housing Development Commission programs. See id. at
1501-03 (“none of the aforementioned agencies com
mitted any constitutional violation” ).
The court nevertheless did find liability for segregation
within the KCMSD on the part of both the State de
fendants and the KCMSD. The court first noted the un
disputed fact that, prior to 1954, the State and the
KCMSD had imposed a mandatory dual school system
upon the students in the KCMSD. The court stated that,
“having created a dual system, the State and KCMSD
had and continue to have an obligation to disestablish
the system.” Id. at 1504. The court then found that
“there are still vestiges of the State’s dual school system
still lingering in the KCMSD [and that] the obligations
of the KCMSD and the State have not been met.” Id.3 4
3 The court also found that no challenged post-1954 school actions
of the State or the SSDs were racially discriminatory. The inter-
district claims and findings of fact are discussed in much greater
detail in the Argument section below.
4 See also id. at 1505 (“Having found that there are still vestiges
of the dual school system in the KCMSD, the Court finds the issues
5
The court identified two such “vestiges” in its opinion.
Of particular importance was the fact that “24 schools
. . . are racially isolated with 90+% black enrollment.”
Id. at 1493. The court specifically found that, in light
of this condition, “the District did not and has not en
tirely dismantled the dual school system.” Id. The court
also found that “the inferior education indigenous of the
State-compelled dual school system has lingering effects
in the Kansas City, Missouri School District.” Id. at
1492.* 5
The court ordered the State and the KCMSD to de
velop a remedial plan to “establish a unitary school
system within the KCMSD.” Id. at 1506. The KCMSD’s
initial plan proposed consolidation of the KCMSD with
the SSDs. See KCMSD Plan for Remedying Vestiges of
the Segregated Public School System (January 18, 1985).
Because of its earlier rulings against the claims of inter-
district violation, however, the district court rejected
this plan and ordered the KCMSD to prepare an amended
plan “to be implemented within the existing boundaries
of the [KCMSD], which would have the effect of remov
ing the vestiges of the dual school system as it presently
exists in the KCMSD.” Order of January 25, 1985 at 3.
After submission of a new remedial plan by the
KCMSD, and submission of alternative plans by the
State defendants, see note 52 infra, the court held a
two-week hearing on the scope of appropriate relief. On
June 14, 1985, the court issued an order establishing a
multi-faceted district-wide remedial plan. Remedy Order
(June 14, 1985). The plan contemplates a broad upgrad
ing of conditions throughout the KCMSD, at a projected
in favor of plaintiffs against the KCMSD and the State of Missouri
and it further finds the issues in favor of the KCMSD against the
State of Missouri.”)
5 Although the court found that certain actions by the State,
largely the passing of now-superceded statutes, had “encouraged
racial discrimination by private individuals,” it did not rest any
determination of liability on such grounds. Id. at 1503.
cost of at least 87 million dollars during the next three
years.
The plan provides numerous additional teachers, coun
selors, and resources to raise the KCMSD rating to AAA
status. Id. at 7-11. Class sizes will be reduced across the
entire district. Id. at 11-15. Summer school will be made
available to all interested students. Id. at 16-17. So,
too', will all-day kindergarten. Id. at 17-18. Before and
after school tutoring will be made available in certain
elementary schools. Id. at 18-19. An elaborate early
childhood development program will be implemented. Id.
at 19-20. Each school will be given a fixed amount of
money ($50,000-$75,000 in the first year, $100,000-
$125,000 in the third year, with the 90+% black schools
receiving the higher amount) to implement an “effective
schools” program, the specifics to be determined by the
KCMSD. Id. at 20-23. Funding will be provided for
both current and future magnet schools in the KCMSD.
Id. at 23-24. Funding will also be provided for staff
development as well as for a public information specialist.
Id. at 24-25, 37. In addition, the State will ask—indeed,
already has asked—the suburban school districts to par
ticipate in a voluntary interdistrict transfer plan. Id.
at 31-33.6 Finally, a $37 million capital improvements
program—to include the correction of safety, comfort,
and aesthetic problems—will be undertaken. Id. at 33-37.
Of the three-year cost of the remedial plan, the district
court assigned more than 77% to the State, less than
23% to the KCMSD. Id. at 41-42.
Judgment in the case was entered on June 18, 1985,
and three separate appeals were taken. Implementation
of the desegregation remedy is now under way.
6
,8 The court indicated that, in its view, further involuntary stu
dent movement would be highly unlikely to result in additional
stable integration. See Remedy Order at 31. The court did, how
ever, adopt the State defendants’ suggestion that a study be con
ducted of the feasibility of further student reassignment within
the KCMSD. Id. at 26-31.
INTRODUCTION AND SUMMARY OF ARGUMENT
This desegregation case, involving both interdistrict
and intradistrict claims, has had a long and complicated
history. After several years of discovery and months of
trial, the district court rejected the interdistrict claims,
making extensive findings about the lack of any signifi
cant current segregative effect resulting from the alleged
discriminatory acts. The court did find, however, that
vestiges of the former dual school system remained
within the KCMSD itself, justifying, in its view, a rem
edy for all students and all schools throughout the
KCMSD. It is those various findings, and the law appli
cable to them, that frame the issues on this appeal.
I. The Interdistrict Claims. The district court, in care
ful findings of fact, determined that the plaintiffs and
KCMSD had failed to prove an essential element of
their interdistrict claims: i.e., that any unlawful acts
of the defendants had a significant current segregative
effect on an interdistrict basis. See pages 12-29 infra.
Those findings, largely ignored by the plaintiffs and
KCMSD on appeal, are not clearly erroneous, but mani
festly correct. The court was also correct in holding
that the presumption regarding intradistrict racial dis
parities, recognized in Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971) [Swann], does
not- apply to interdistrict cases like this one. See pages
31-36 infra. Finally, contrary to the suggestion of the
plaintiffs and KCMSD, the court did not mistakenly deny
interdistrict relief because of an erroneous interpreta
tion of Milliken I.
II. The Intradistrict Claims. The district court found
that the existence of 24 largely-black schools in the
KCMSD was a vestige of the former dual school system
in the district, a questionable finding that the State
nonetheless does not challenge on this appeal. See pages
42-45 infra. But neither that finding, nor a second find
ing about inferior education indigenous to segregation,
can support a remedy of the dimensions imposed by
7
8
the court. Thus, as a general matter, the remedy does
not relate only to conditions properly found to have been
caused by the constitutional violation. See Milliken v.
Bradley, 433 U.S. 263 (1977) [Milliken II]. Further
more, and in any event, particular portions of the rem
edy are inconsistent with Liddell v. Missouri, 731 F.2d
1294 (8th Cir. 1984), cert, denied, 105 S.Ct. 82 (1984)
[.Liddell VII], governing remedial principles, and, in the
case of the allocation of financial responsibility between
the State and KCMSD, the Eleventh Amendment as well.
ARGUMENT
I. The District Court Properly Found Against Plaintiffs
and the KCMSD on Their Claims of Interdistrict
Liability.
The plaintiffs and the KCMSD have labored in their
briefs to obscure both the legal standards applicable to
their interdistrict claims and the district court’s findings
of fact. Indeed, both of their briefs are written almost
as though trial court findings had never been made, and
both seek to introduce legal standards that are unsup-
portable as well as wholly unprecedented in school deseg
regation cases. The reasons for this approach are appar
ent. The governing legal standards are simple and clear,
and the district court entered detailed findings of fact
showing that plaintiffs and the KCMSD failed at every
turn to prove the elements of their interdistrict claims.
A. The Law Governing Interdistrict Claims Requires
Proof of Intentionally Discriminatory Acts and A
Significant Current Condition of Segregation Re
sulting From Those Acts.
A violation of the Equal Protection Clause in a school
desegregation case requires “ ‘a current condition of seg
regation resulting from intentional state action.’ ” Wash
ington v. Davis, 426 U.S. 229, 240 (1976) [Davis] (quot
ing Keyes v. School District No. 1, 413 U.S. 189, 205
(1973)). This standard thus requires proof of three
elements: (1) a current condition of racial segregation
(2) caused by (3) the defendant’s purposeful discrim
9
ination. These elements must be proved in any school
desegregation case, whether the alleged violation is inter-
district or intradistrict.
Two aspects of these proof requirements, obvious on
the face of the standard, bear emphasis in analyzing both
of the claims—the interdistrict claim as well as the in
tradistrict claim—in this case. First, the condition of
segregation that must be traced to some unlawful gov
ernmental act is a current condition, not some segrega
tive condition of the past. This being an injunctive ac
tion, it is not enough that an unlawfully caused condi
tion of segregation have existed in 1954; what must be
shown is an unlawfully caused condition of segregation
that exists today.7 8 Second, it is not enough that there
be, on the one hand, current racial disparities and, on
the other hand, some discriminatory acts: the acts must
have caused the disparities before a violation may be
found.®
These general standards take on a special shape where
the segregation alleged is interdistrict in nature—that is,
segregation between districts—and the school districts ex
hibit a marked degree of local control. In that circum
stance, the three basic elements of a constitutional viola
tion must still be proved, but the proof requirements for
the three elements apply differently and are heightened.
The Supreme Court set out the standards governing a
claim for interdistrict relief in Milliken I :
Before the boundaries of separate and autonomous
school districts may be set aside by consolidating the
separate units for remedial purposes or by imposing
a cross-district remedy, it must first be shown that
there has been a constitutional violation within one
district that produces a significant segregative effect
7 See, e.g., Columbus Board of Education v. Penick, 443 U.S. 449,
458-68 (1979) [Columbus]; Milliken II, 433 U.S. at 280-88; Swann,
402 U.S. at 15-16.
8 See, e.g., Dayton Board of Education v. Brinkman, 433 U.S.
406, 413 (1977) [Dayton 7]; Milliken II, 433 U.S. at 282; Davis,
426 U.S. at 239.
10
in another district. Specifically, it must be shown
that racially discriminatory acts of the state or local
school districts, or of a single school district have
been a substantial cause of interdistrict segregation.
Thus an interdistrict remedy might be in order
where the racially discriminatory acts of one or
more school districts caused racial segregation in an
adjacent district, or where district lines have been
deliberately drawn on the basis of race. In such cir
cumstances an interdistrict remedy would be appro
priate to eliminate the interdistrict segregation di
rectly caused by the constitutional violation. Con
versely, without an interdistrict violation and inter
district effect, there is no constitutional wrong call
ing for an interdistrict remedy.
418 U.S. at 744-45. Thus, in any case in which a state
school system exhibits a large measure of local control,
Milliken I requires that parties seeking an interdistrict
remedy prove either (a) that the school district boun
daries were manipulated for racial reasons or (b) that
some intentionally discriminatory action by the govern
mental defendants—the State or the local school dis
tricts—was a “substantial cause” of “significant” current
interdistrict segregation. Id.; see Hills v. Gautreaux, 425
U.S. 284, 294 & n. 11 (1976) [Hills] (Milliken I re
quires demonstration of “significant” interdistrict segre
gative effects caused by unlawful governmental a c t);
Lee v. Lee County Board of Education, 639 F.2d 1243,
1254-56 (5th Cir. 1981).
These Milliken I standards apply to the interdistrict
claims in this case because education in Missouri ex
hibits the requisite degree of local control. As the dis
trict court found below, “each of the school districts is a
locally autonomous and independent entity.” June 5
Order at 12. Thus, Missouri school districts have the
power to establish their own boundaries by local initia
tive, Mo. Rev. Stat. §§ 162.222, 162.431, 162.441 (1978
& Supp, 1983), and indeed the Missouri Constitution pro
hibits the legislature from passing any “special law”
affecting school district boundaries, Mo. Const, art. 3,
11
§ 40(20). See June 5 Order at 8, 11. School districts
are governed by locally elected boards of education and
have sweeping or plenary authority to make decisions
regarding curriculum, finance, personnel, student assign
ment, transportation, and administration. Id. at 8-11;
see Lowell Dep. at 6 (transportation); PL Exh. 2267
(student assignment); PL Exh. 1737 (finance) ; Tr.
6179-80 (locally elected boards, personnel, finance). For
these and other reasons,® the district court found that
“the SSDs are more autonomous than those [districts]
discussed in Milliken and numerous other desegregation
cases.” Id. at 7-8.w Hence, due regard for the tradition
of local control in education requires that the Milliken I
standards be applied to the interdistrict claims in this
case.* 10 11
0 The district court also found that, before 1954, local school
districts had substantial autonomy in deciding whether to provide
schools for their black students or to transfer them to other dis
tricts. June 5 Order at 11; see Tr. 335-36, 372, 378, 622-24, 696-97,
871-72, 1084-86, 1124-26, 1136-38, 1154, 1199, 5837; PI. Exh. 1814;
see notes 18, 19 infra. The court further noted that the federal
Office of Civil Rights in HEW (now Department of Education) has
always considered Missouri school districts autonomous and that
school boards must be sued in their own names and do not share
the State’s Eleventh Amendment immunity. Id . ; see High Dep. vol.
1 at 65, 70, 110-11; Ward Dep. vol. 1 at 30; Mount Healthy City
School District v. Doyle, 429 U.S. 274, 280 (1977) ; Miener v.
Missouri, 673 F.2d 969, 980-81 (8th Cir.), cert, denied, 459 U.S.
909 (1982).
10 The court found at least as much local control in the Missouri
schools as that found in Alabama in Lee v, Lee County Board of
Education, supra, and more local control of boundaries or other
matters than in Michigan, see Bradley v. Milliken, 484 F.2d 215,
247-48 (6th Cir. 1973), rev’d, Milliken I, 418 U.S. 717 (1974), in
Indiana, see United States v. Board of School Commissioners of the
City of Indianapolis, 637 F.2d 1101, 1124-25 (7th Cir. 1980), cert,
denied, 449 U.S. 838 (1980), in Delaware, see Evans v. Buchanan,
393 F. Supp. 428, 438 (D.Del.), aff’d, mem., 423 U.S. 963 (1975),
and in Kentucky, see Newburg Area Council, Inc. v. Board of Edu
cation of Jefferson County, 510 F.2d 1358 (6th Cir. 1974), cert,
denied, 421 U.S. 931 (1975).
11 The KCMSD seeks to get around these standards by suggesting
that the autonomy of local school districts in Missouri is “a dubious
legal proposition.” KCMSD Brief at 27 n. 80. The treatment of local
school districts as mere “instrumentalities of the State” is, how
12
To make out their claim for interdistrict relief against
the State defendants, the plaintiffs and the KCMSD were
accordingly required to show either (a) that the State
had engaged in the racially motivated manipulation of
the boundaries of the KCMSD or the SSDs or (b) that
some discriminatory State action other than racial gerry
mandering was a substantial cause of significant current
interdistrict segregation. They failed on both counts.
B. The District Court Correctly Found That School
Boundaries In the Kansas City Metropolitan Area
Were Not Set or Maintained With a Discriminatory
Purpose.
The district court expressly found an utter “ [l]ack of
proof of discriminatory intent in the establishment or
changing of any school district boundary lines.” June 5
Order at 6. The court stated: “There was no credible
evidence that any of the boundaries of any defendant
school district were established or maintained with any
racially discriminatory intent.” Id. at 9. Indeed, the
district court made this specific finding with respect to
every one of the SSDs except Grandview, about which no
boundary issue had ever been raised. See id. at 43 (Blue
Springs), 45 (Center), 48 (Fort Osage), 54-55 (Hick
man Mills), 59-61 (Independence), 67 (Lee’s Summit),
74 (Liberty), 78 (North Kansas City), 83-84 (Park
Hill), 91 (Raytown).
The importance of these findings can best be under
stood by reference to the caselaw on which plaintiffs and
the KCMSD exclusively depend. For, in failing to prove
any governmental manipulation of school district bound
aries for racial reasons, the plaintiffs and the KCMSD
distinguished their claim for interdistrict liability from
the interdistrict claims in every school desegregation case
in which such a claim has prevailed. All of these cases
ever, just the sort of treatment rejected by the Supreme Court in
Milliken I in the face of similar claims of ultimate state authority.
418 U.S. at 726 n. 5, 741-43. The argument that “no significant
local autonomy existed with respect to the pre-1954 interdistrict
school system for blacks” is simply incorrect. See notes 18, 19 infra.
13
involved racially motivated governmental decisions about
the drawing or maintaining of school district boundaries.
This is true, as the district court recognized, see June 5
Order at 6-7, of the three cases from this Circuit involv
ing findings of interdistrict liability—MorrUton School
District No. 32 v. United States, 606 F.2d 222, 225-28
(8th Cir. 1979), cert, denied, 444 U.S. 1071 (1980);
United States v. Missouri, 515 F.2d 1365, 1367-70 (8th
Cir.), cert, denied, 423 U.S. 951 (1975); and Haney v.
County Board of Education, 410 F.2d 920, 923-24 (8th
Cir. 1969). It is equally true, as the district court also
recognized, see June 5 Order at 9-10, of the Wilmington
case,1'2 the Indianapolis case,12 13 the Louisville case,14 and
the Allegheny County case.15 See also Berry v. School
District of the City of Benton Harbor, 564 F. Supp. 617,
625 (W.D. Mich. 1983) ; United States v. Texas, 321
F. Supp. 1043, 1048-50 (E.D. Tex. 1970), aff’d in rele
vant part, 447 F.2d 441 (5th Cir. 1971), cert, denied,
404 U.S. 1016 (1972). By contrast, in case after case
that did not involve some kind of racial gerrymandering,
the courts have repeatedly rejected the claims of inter-
district liability.16
12 Evans v. Buchanan, 393 F. Supp. 428, 438-45 (D.Del), aff’d
mem., 423 U.S. 963 (1975); see Evans V. Buchanan, 582 F.2d 750,
762-63 n. 11 (3d Cir. 1978), cert, denied, 446 U.S. 923 (1980) (not
ing state legislation regarding boundaries as basis for interdistrict
liability).
13 United States v. Board of School Commissioners of the City of
Indianapolis, 456 F. Supp. 183, 188 (S.D.Ind. 1978), aff’d in rele
vant part, 637 F.2d 1101, 1108 (7th Cir. 1980), cert, denied, 449
U.S. 838 (1980).
14 Newburg Area Council, Inc. v. Board of Education of Jefferson
County, Kentucky, 510 F.2d 1358 (6th Cir. 1974), cert, denied, 421
U. S. 931 (1975) ; see Lee v. Lee County Board of Education, supra,
639 F.2d at 1257-58 (in Newburg, “school district boundaries had
been artificially maintained in order to preserve the racial charac
teristics of the school districts involved”) .
15 Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107, 1116,
1120 (3rd Cir.), cert, denied, 459 U.S. 824 (1982).
16 See, e.g., Milliken I, supra-, Goldsboro City Board of Education
V. Wayne County Board of Education, 745 F.2d 324 (4th Cir. 1984);
Berry v. School District of the City of Benton Harbor, 698 F.2d
813, 818-19 (6th Cir.), cert, denied, 464 U.S. 892 (1983); Lee V. Lee
14
The plaintiffs and the KCMSD were therefore left
with a claim for interdistrict relief unique in the annals
of school desegregation law. Unable to establish any un
lawful creation or maintenance of school district bound
aries by the State or by any of the local school districts,
the plaintiffs and the KCMSD were consigned to proving
their interdistrict claims indirectly. They were required
to show, as no proponents of interdistrict relief in any
case have yet succeeded in showing, that some racially
discriminatory act other than gerrymandering was a
substantial cause of significant current interdistrict seg
regation. The district court below found that plaintiffs
and the KCMSD had made no such showing.
C. The District Court Correctly Found That No
Racially Discriminatory Act of the State Was a
Substantial Cause of Significant Current Inter
district Segregation.
In trying to overcome the finding that current racial
disparities among the SSDs and the KCMSD are not the
result of a constitutional violation, the plaintiffs and the
KCMSD have chosen to emphasize the one element most
favorable to them: the fact of current racial disparities.
It is undisputed, of course, that there is a much heavier
concentration of black students in the urban KCMSD
than in the suburban SSDs.17 No interdistrict violation
is shown, however, by the mere fact that one school dis
trict is largely black while neighboring districts are
largely white: the contention to the contrary is precisely
County Board of Education, swpra; Taylor v. Ouachita Parish
School Board, 648 F.2d 959 (5th Cir. 1981) ; Cunningham, v. Grayson,
541 F.2d 538 (6th Cir. 1976), cert, denied, 429 U.S. 1074 (1977) ;
Bradley v. School Board of Richmond, 462 F.2d 1058 (4th Cir. 1972)'
aff’d by equally divided court, 412 U.S. 92 (1973); Tasby v. Estes,
412 F. Supp. 1185 (N.D.Tex. 1975), aff’d on interdistrict issues, 572
F.2d 1010 (5th Cir. 1978), cert, granted, 440 U.S. 906 (1979), cert,
dismissed, 444 U.S. 437 (1980); Armour v. Nix, No. 16,708 (N D
Ga. 1979), aff’d, 446 U.S. 930 (1980).
17 In 1982, approximately 68% of the KCMSD’s student population
was black, whereas approximately 5% of the SSD’s student popula
tion was black. The percentage of black students in the SSDs, how
ever, varies greatly from district to district. See PL Exh.’ 53G.
15
what Milliken I rejected. Indeed, the situation in Kansas
City—the concentration of blacks in an urban area with
predominantly white suburbs—is the situation in most
cities in the United States today. See Tr. 16,486-88 (tes
timony of KCMSD witness, Dr. Daniel Levine) (Kansas
City typical of big cities in evolution of racial patterns);
Tr. 19,082 (testimony of Dr. William Clark) (same) ;
Columbus, 443 U.S. at 485 (Powell, J., dissenting).
Appellants thus had to show something more than the
existence of racial disparities to establish interdistrict
liability on the part of the State defendants: i.e., that
racially discriminatory acts of the State were a substan
tial cause of the current disparities. In attempting to
meet this burden, the plaintiffs and the KCMSD identi
fied three bases for interdistrict liability on the part of
the State defendants—the pre-1954 State school-segrega
tion policy; certain post-1954 State school-related actions;
and certain housing-related actions. The district court,
however, unscrambled the jumbled allegations of unlaw
ful conduct, carefully analyzed the evidence to determine
whether they were in fact discriminatory acts causing
significant current segregation, and found on every spe
cific basis for interdistrict liability that the plaintiffs and
the KCMSD had failed in their proof.
1. Pre-1954 S ta te School Policies.
The first, and by far the most important, asserted
basis for interdistrict liability on the part of the State
is the pre-1954 policy of mandatory segregation. As the
State defendants have conceded throughout this litiga
tion, the State of Missouri unconstitutionally mandated
separate schools for black and white children prior to the
1954 decision by the United States Supreme Court in
Brown v. Board of Education, 349 U.S. 483 (1954)
[Brown]. Mo. Const, art. IX, § l ( a ) (1945). See
Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.),
cert, denied, 449 U.S. 826 (1980). That policy, although
not formally removed from the State Constitution until
1976, was declared unenforceable by the Attorney Gen
16
era! of Missouri in 1954 and removed from the statute
books by 1957. Act of July 6, 1957, § 1, 1957 Mo. Laws
452-53; PI. Exh. 2232. Nevertheless, the plaintiffs and
the KCMSD sought to prove in the district court that
the interdistrict racial disparities today, more than thirty
years later, were substantially caused by the pre-1954
mandatory segregation. Their theory was that the segre
gation policy caused a dearth of black schools outside the
KCMSD, which in turn caused today’s concentration of
blacks in the KCMSD. The district court found to the
contrary: as the court said, “ [plaintiffs’ proof was
weak, speculative, and in any event de minim[i]s.” June
5 Order at 12.
To begin with, even when the segregation laws were in
effect more than thirty years ago, they did not mandate
interdistrict segregation. The policy of the State of Mis
souri was to require separate schools for black and white
children; the State “did not require separate school dis
tricts.” June 5 Order at 15. State law, moreover, at
least after 1887, did not prohibit the maintenance of black
schools in the SSDs or their predecessors. Although State
law had varying provisions over the years for the edu
cation of black students in districts with a very small
black enrollment (roughly 8 to 25), the manner in which
districts educated resident black students—whether a
black school was maintained or black students were trans
ferred to other districts—was generally a matter for lo
cal decision. See id.; Tr. 5837 (testimony of plaintiffs’
witness, Dr. Anderson); PL Exh. 116A, 1814.1® In fact, 18
18 Both the plaintiffs and the KCMSD assert that State law long
prohibited the maintenance of black schools in districts with less
than a certain minimum number of black students. KCMSD Brief
at 3, 6; Plaintiffs Brief at 5. The plaintiffs’ and the KCMSD’s read
ing of the statutes is simply wrong. Although such a prohibition
existed before 1887, Missouri law has contained no such prohibition
for nearly 100 years.
In 1887, the Missouri legislature repealed the requirement of
1870 Mo. Laws 149, § 45, and 1874 Mo. Laws 163-64, § 73, codified
at Mo. Rev. Stat. art. 1, ch. 150, § 7052, that districts with fewer
than 10 black students close their black school. See 1887 Mo. Laws
17
for many years, Missouri law required black schools in
small districts.19 And there were black schools in some of
the SSDs and their predecessors before 1954. See June 5
Order at 61-62 (black school in Independence), 74-75
(black school in Liberty), 79 (black school in North Kan
sas City), 84-86 (black school in Park H ill); PI. Exh. 39.
In any event, the plaintiffs and the KCMSD simply
failed to prove that, whatever the conditions in the SSDs
may have been, a significant number of black students
from the SSDs moved to, or transferred to school in, the
KCMSD. The absolute numbers, the district court found,
themselves show that insignificance. Thus, with respect
to moves, the court below, looking at the two critical pe
riods of 1910-1920 and 1930-1960 (i.e., extending even
beyond Brown), found: “ [ejven assuming the entire de
crease in the three-county area can be accounted for
264, codified at Mo. Rev. Stat. §§ 8003 & 8004 (1889) . In 1893, a
proviso was added to the 1887 statute that permitted, but did not
require, a school district with fewer than eight black students to
discontinue its black school. 1893 Mo. Laws 247 (district “may
discontinue” black school). The statute, as thus amended, was
carried forward in 1909 Mo. Laws 790, § 42, and codified at Mo.
Rev. Stat. art. 2, ch. 102, §§ 11145 & 11146 (1919). See Plaintiffs
& KCMSD Jt. Addendum A at A81-A82. The 1929 revision of the
statute likewise contained no prohibition on maintaining a black
school without a minimum number of black students. 1929 Mo.
Laws 382-83, codified at Mo. Rev. Stat. ch. 72, § 10350 (1939) ; see
1946 Mo. Laws 1699-1700 (reenacting statute without modification
in any relevant respect). See also PI. Exh. 116A (collecting statutes).
19 Replacing similar statutes enacted in 1865 and 1869, see 1865
Mo. Laws 177, § 20; 1869 Mo. Laws 86, the Missouri legislature in
1870 required the provision of a black school in any district with
at least 16 black students. 1870 Mo. Laws 149, § 45. This provision
was repeated in § 73 of 1874 Mo. Laws 163-64, while § 74 added a
requirement that, if two adjoining districts each had less, but
together had more, than 16 black students, they must jointly estab
lish a black school. The minimum number was changed to 15 in
1887. See 1887 Mo. Laws 264, codified at Mo. Rev. Stat. §§ 8003 &
8004 (1889) and Mo. Rev. Stat. art. 2, ch. 102, §■§ 11145 & 11146
(1919). This law was not significantly modified until 1929. See
1929 Mo. Laws 382-83. Thereafter, a school district with 8 black
children was required either to maintain a black school or to pay
the transportation and tuition for black students to attend in
another district. See PI. Exh. 116A (collecting statutes).
18
only by people leaving and going to Kansas City because
of the dual school system, . . . the impact of that move
ment on the KCMSD enumeration [is] insignificant.”
June 5 Order at 16.2<> With respect to transfers, the
court found the pre-1954 totals equally insignificant: in
1954, less that 0.5% of the KCMSD black enrollment
consisted of transfers, and that number included trans
fers from districts other than the SSDs, Ibid.20 21 Moreover,
the evidence showed that many of the transferees did
not move to where they transferred to school. Id. at 18
(citing Tr. 372, 565, 632-36, 676-80, 714, 719, 841, 1216-
17, 1334-35, 1358-60, 1664-65, 2587-88, 2699-2704, 3170-
73).22 Thus, the impact of transfers and moves even
20 In 1910-1920, the black enumeration in the three-county area
outside the KCMSD decreased by 287 while the black enumeration
in the KCMSD increased by 6,676. In 1930-1960, the decrease out
side the KCMSD was 550 while the increase in the KCMSD was
45,000. June 5 Order at 15-16.
21 The district court found that, over the half-century from 1900
to 1954, only 251 students transferred into the KCMSD from the
SSDs. June 5 Order a t 16. This amounted to only 4,6 students
per year. Even assuming, arguendo, that all of the roughly 600
student transfers recorded on PI. Exh. 40 came from predecessors of
the SSDs—an assumption clearly unwarranted by the evidence, see
Tr. 4557-59—the figure would amount to only 11.1 students per
year. In either event, the numbers are insignificant. See Tasby v.
Estes, supra, 572 F.2d at 1015 n. 19 (eleven transfers insignificant).
In addition, the district court noted the insignificance of the number
of transfers to Lincoln High School (the black high school) in the
KCMSD prior to 1954. June 5 Order at 16-17 (citing Tr. 1773).
Of course, none of these numbers reflects the reasons for the
transfers. In particular, none reveals whether black schools were
available in the districts from which the students transferred or
whether the absence of a black school was the cause of the transfer.
22 The plaintiffs submitted a list of 44 names of students who
allegedly transferred to Lincoln High School before 1954 and
moved to the KCMSD after transferring. Of the people on this
list, however, a number now live outside the KCMSD, some lived
in the KCMSD only briefly, and some did not transfer until after
1954, when the State’s segregation policy was no longer in effect.
For these reasons, and both because there was no “credible evidence
as to why these 44 people moved to Kansas City” and because the
total is “insignificant in any event,” the district court concluded
that the list “does not show a connection between black schools in
Kansas City and the movement of blacks into Kansas City.” June 5
Order at 17.
19
before 1954 was wholly insubstantial.23
Having failed to show any significant numbers of
moves to the KCMSD from the SSDs or their predeces
sors, plaintiffs and the KCMSD also failed to show that
even the limited number of moves were motivated by the
unavailability of black schools outside the KCMSD. Nor
did they demonstrate that a lack of available suburban
schools was the reason for the substantial migration of
blacks into the KCMSD from outside the metropolitan
Kansas City area. Indeed, the district court specifically
found to the contrary. To whatever extent schools were
in fact unavailable, the court found that “the absence of
black schools in any of the defendant districts did not
discourage black families from outside (or from within)
Missouri from moving to and living in those districts.”
June 5 Order at 18 (citing Tr. 1153-54, 1213-14, 1252-
54). The motivation for the migration into the KCMSD
(not just of blacks, but of whites as well) was primarily
the economic opportunities available there.
The findings on this point are comprehensive. Thus,
the court found that the largest pre-1954 black population
increases in the KCMSD occurred during the two world
war periods and, as was true all over the country, were
“in large part due to the unusual economic and employ
ment ramifications of the world wars and intervening
depression.” Id. at 17 (citing Tr. 5932-34, 9988-90).
Outside Kansas City, Liberty, Independence, and Excelsior
Springs, blacks in the three-county area were “mostly
rural, farm-dependent families,” id. at 16 (citing Tr. 331,
454, 526, 796, 901-06, 935, 952, 1008, 1052, 1089, 1100-
05, 3139, 3165-66), and the increase in black population
in the KCMSD was due to the availability of jobs and
economic opportunities in the city.24 By contrast, the
23 See June 5 Order at 43 (Blue Springs) ; 45-46 (Center) ; 49
(Ft. Osage) ; 51 (Grandview) ; 55 (Hickman Mills) ; 61-62 (Inde
pendence) ; 67-70 (Lee’s Summit); 74-75 (Liberty) ; 78-79 (North
Kansas C ity); 84-87 (Park Hill) ; 91 (Raytown).
24 The period from 1910 to 1960 is well-recognized as the period
of massive emigration of blacks from rural to urban areas all over
20
movement of blacks into communities within the SSDs or
their predecessors did not vary according to whether the
particular community had a black school, thus refuting
the suggestion that the availability of schools was what
attracted blacks to the KCMSD rather than to the outly
ing districts.25 As the district court found, “jobs and eco
nomic opportunity were primary motivators for blacks
leaving the three-county area and moving to Kansas City
and elsewhere, and . . . any motivation resulting from
segregated schools was de minimis and insignificant when
compared to those primary motivating factors.” Id. at
18. See Tr. 595, 600, 676-78, 713, 796, 911, 1052, 1089,
1103, 1111, 1163, 1307-18, 1552, 1579-80, 1680-81, 1728,
2781, 3214, 3267.
Of course, the effect that plaintiffs and the KCMSD
must trace to the pre-1954 segregation policy is a current
effect, not an effect in 1954. Thus, the failure to prove
that the pre-1954 segregation policy was a substantial
cause of interdistrict disparities before 1954 translates
into an even clearer failure to prove that the pre-1954
policy was a substantial cause of interdistrict disparities
today. If the pre-1954 interdistrict effects were negligi
ble, the effects are even more negligible after thirty years
in a “dynamic” and “fluid” society in which “myriad
factors produce a multitude of simultaneous decisions and
consequent effects” and in which “many events have in
tervened, reshaping earlier actions.” June 5 Order at 98-
the country. See Milliken I, 418 U.S. at 759 n. 9 (Douglas, J.,
dissenting) (citing Hauser, “Demographic Factors in the Integra
tion of the Negro,” Daedalus 847-77 (fall 1965), and U.S. Dep’t of
HEW, J. Coleman et al., Equality of Educational Opportunity 39-40
(1966)).
25 Thus, not one of those areas that had black schools experienced
any appreciable increase in its black population, while blacks moved
into some areas that did not have black schools. See June 5 Order
at 61-62 (black school in Independence, but no increase in black
population) ; 69 (black families moved into Lee’s Summit even
though no black school) ; 74-75 (black school in Liberty, but no
increase in black enumeration, see PI. Exh. 49) ; 79 (black school in
North Kansas City, but no increase in black enumeration) ; 84-86
(black school in Park Hill, but no increase in enumeration).
21
99; see also id. at 18 (“The Court further finds that
transferring blacks to the KCMSD under the prior segre
ga ted school system is not a cause of the present racial
distribution of the population in the three-county area”) ;
(“plaintiffs have not persuaded the Court that any
vestiges or significant effects of the pre-1954 dual school
system remain in any of the SSDs”) .
Indeed, a brief look at the post-1954 history shows
just how patent was the plaintiffs’ and the KCMSD’s
failure of proof. The critical fact is that the massive
increase in the KCMSD’s black population occurred after
1954, when the segregation policy had already been de
clared void, and not in the years when the segregation
policy was in effect. Thus, in 1955-56, the black enroll
ment in the KCMSD was only 11,625; by 1971-72, it had
increased to 35,620 (from which it then declined to 24,803
in 1983-84). KCMSD Exh. K2. Moreover, from 1881 to
1954, the percentage of black students in the KCMSD was
virtually unchanged—13.6% of the total student popula
tion in 1881, and 14.0% in 1954. PL Exh. 53E [sub] ;
June 5 Order at 16.26 By contrast, after 1954, the per
centage of blacks in the KCMSD increased steadily—from
18.9% in the 1955-56 school year to 50.2% in the 1970-
71 school year to 67.7% in the 1983-84 school year.
KCMSD Exh. K2.
These numbers have an obvious significance for two
reasons. First, they show that the greatest increase in
black population in the KCMSD occurred at a time when
the pre-1954 segregation policy was not operative, a time
when the availability of schools could not have been a
reason for residential decisions. Second, the growth in
black population after 1954—for reasons largely unrelated
to schools—reinforces the finding that the movement of
blacks to Kansas City before 1954 was also for reasons
26 Further, after 1910, the percentage of blacks in the enumera
tion of the three-county area outside the KCMSD was never more
than 4.4%, and the total number was never more than 859. The
figures for 1920 are 3.1% and 572, highs for the period 1920-1954.
PI. Ex. 53E[sub],
22
unrelated to schools. The numbers thus confirm the dis
trict court’s finding that all but an insignificant portion
of today’s black KCMSD population is not in the KCMSD
because of the pre-1954 policy but for other—namely,
economic—reasons.
2. Post-1954 School-Related Actions.
All of the suburban school districts, the court below
found, became unitary school districts soon after Brown.
See June 5 Order at 19, 99. Black enrollments in the
SSDs have steadily increased at least since 1968. Id. at
36; PL Exh. 53G, 53H. Since shortly after Brown, as
the district court found, “school district boundaries have
not constrained black movement in any way.” Id. at 39.
Nevertheless, the plaintiffs and the KCMSD have
pointed to a number of post-1954 school-related actions as
a second alleged basis for interdistrict liability. Most of
the identified actions were taken solely by the suburban
school districts, however; only a few were actions of the
State.27 Of these few State actions, the district court
found that none was racially discriminatory.
The first allegation involved the Area Vocational Tech
nical School program. The district court found, however,
that the State committed no violation in this program.
Although the State distributed the federal funds for the
program, “ [e]ach district, in its discretion, determined
whether or not to participate in the program and in what
manner.” June 5 Order at 23. In any event, the district
court, after reviewing the evidence concerning the voca
tional schools in each district, id. at 23-26, found that
“ [t]he area schools were established without discrimina
tory intent and there was no credible evidence that their
operation had the effect of segregating students on the
27 Neither plaintiffs nor the KCMSD has sought to impose
vicarious liability on the State defendants for acts of local school
districts not taken pursuant to State policy. This is hardly surpris
ing given that there is no principal-agent relationship between the
State defendants and autonomous school districts and* that there is
no vicarious liability under 42 U.S.C. § 1983 (1982). See Monell
V. Department of Social Services, 436 U.S. 658, 690-691 (1978).
23
basis of race.” Id. at 26. The court also found “no evi
dence that vocational educational monies have been dis
tributed with a purposefully discriminatory motive or
effect.” Id. Thus, on two counts—the absence of either
discriminatory purpose or effect—“the operation of voca
tional education in the Kansas City metropolitan area
is not an interdistrict constitutional violation.” Id. See
also Jenkins, at 1495.28
The plaintiffs and the KCMSD also alleged that the
enactment of House Bill 171 in 1957 was a constitutional
violation. The bill amended Mo. Rev. Stat. § 165.563
(1943), which had declared that any city of over 500,000
was to be a single school district, to apply thereafter only
to cities of over 700,000. The district court found that
H.B. 171 “was not discriminatorily enacted.” June 5 Or
der at 27. Among the articulated bases for this finding
of fact were the following: that neither the original 1897
law (setting the level at 300,000) nor its 1909 revision
(raising it to 500,000) was enacted for racial reasons;
that H.B. 171 was passed unanimously and counted
among its supporters a black representative from the
KCMSD who had long been a promoter of civil rights;
that there were racially neutral administrative reasons
for passage of the bill as well as for its having been sup
ported even by the KCMSD; and that the bill did not
affect the KCMSD in 1957 and, since then, several an
nexations to the KCMSD have increased its white popula
tion. Id. at 27-29.29
w Plaintiffs do not appear to allege on appeal that any State
action concerning the vocational-technical schools was racially dis
criminatory. Plaintiffs’ Brief at 28-29. Indeed, plaintiffs assert that,
when the State initiated the program, it did so “without considering
[the schools’] impact on racial isolation.” Ibid.
29 Although both the plaintiffs and the KCMSD point to H.B. 171
as a basis for State interdistrict liability, the KCMSD does not
allege racial motivation in the passage of H.B. 171 (which the
KCMSD itself supported), and the plaintiffs do not challenge the
district court’s finding as clearly erroneous, the finding clearly
being amply supported by the record. See KCMSD Brief at 14;
Plaintiffs’ Brief at 27.
24
The plaintiffs and the KCMSD further pointed to the
State’s inaction on the Spainhower Commission proposals
as a basis of interdistrict liability. The Spainhower pro
posals—made in 1979, after this lawsuit was filed and
after the KCMSD’s Plan 6C was in place-—contained
wide-ranging recommendations for the restructuring of
school financing, boundaries, and local control. But, to
begin with, the failure to act upon proposals that might
increase integration is itself not a constitutional violation
unless there is a preexisting duty to take such action,
which was not the situation here. Furthermore, as the
district court found, the reason that the Legislature did
not enact these proposals was simply that “it desired to
maintain Missouri’s strong tradition of local control over
public education.” June 5 Order at 29. Reviewing the
evidence, the court found that any race-motivated opposi
tion by particular legislators or private individuals was
insignificant and not adopted by or an influence on any
government entity. See id. at 29-31. Thus, the court
specifically found, “ [t]here was no credible evidence . . .
that racial concerns led to the defeat of the Spainhower
recommendations.” Ibid.50
In addition, the plaintiffs and the KCMSD pointed to the
State’s failure to adopt the “Milwaukee Plan” proposal,
embodied in H.B. 1717 in 1979, to provide State money
to school districts as an incentive for participating in
interdistrict transfer programs akin to the one in Mil
waukee. The court noted that the State Department of
Elementary and Secondary Education opposed the meas
ure as too expensive. See June 5 Order at 31. It identi
fied no evidence that the State or any SSD opposed the
measure for reasons related to race. Ibid.30 31
30 Neither the plaintiffs nor the KCMSD contends on appeal that
the district court’s finding of no discriminatory purpose in the
non-adoption of the Spainhower proposals is clearly erroneous.
See KCMSD Brief at 13; Plaintiffs’ Brief at 27-28.
31 Neither plaintiffs nor the KCMSD alleges on appeal that re
jection of the Milwaukee Plan was for racial reasons. See KCMSD
Brief at 14 n.41; Plaintiffs’ Brief at 28.
25
In sum, none of the post-1954 actions for which the
plaintiffs and the KCMSD seek to hold the State defend
ants liable for an interdistrict violation was a purpose
fully discriminatory act causing significant interdistrict
segregation.32 Because the autonomy of local districts
means that their acts cannot form a basis of State lia
bility, the plaintiffs and the KCMSD do not seek to base
State interdistrict liability on the defendant school dis
tricts’ allegedly unconstitutional post-1954 acts. See
KCMSD Brief at 12-16; Plaintiffs’ Brief at 26-29. In
any event, the district court found that each of the local
districts’ alleged violations was not in fact an interdistrict
violation.33
82 In the district court, the plaintiffs also advanced arguments
about juvenile homes as a basis for State interdistrict liability.
The district court found that “there is absolutely no showing that
the schools have had a racial impact on the KCMSD or any SSD.”
June 5 Order at 21. Apparently, neither the plaintiffs nor the
KCMSD challenges this finding on appeal.
83 The district court found that the Cooperating School Districts
Association of Suburban Kansas City had not been racially moti
vated in any of its actions and that no SSD joined with racial
animus. June 5 Order a t 19. The court also found that there was
no racial motivation, or any discriminatory result, in any of the
SSDs’ roles in sharing the revenues from the Kansas City y2%
sales tax approved in 1974. Id. at 20-21. In addition, the court
found, after carefully analyzing the evidence, that there was no
credible evidence either that the SSDs had engaged in any dis
criminatory hiring or that the disproportionately small number of
black faculty in the SSDs was a cause of the disproportionately
small number of black students. See id. at 31-34. Finally, the
district court found that the SSDs’ joint arrangements in the
area of special education (e.g., for handicapped children) were not
racially discriminatory. Id. at 22.
With respect to the actions of the KCMSD advanced by plain
tiffs as a basis of interdistrict liability, only one (intact busing)
was found by the district court to have been intentionally discrimi
natory. See Jenkins, at 1493-95. More important, the court
found that the plaintiffs’ evidence on “racial transition within the
KCMSD has only intradistrict implications.” June 5 Order at 35.
Although “ [ajctions of the KCMSD in assigning children to par
ticular schools may have had an intradistrict effect, . . . those ac
tions [did not] have any significant effect on the enrollment of any
other SSD.” Id. at 38; see id. at 38-39 (chart showing 1958-1973
KCMSD-SSD transfers) (PL Exh. 1775B, C, D, E, 53G). Further,
3. Housing Actions.
The plaintiffs have sought to rest interdistriet liability
on the part of the State, not only directly on school pol
icies, but also indirectly on various housing actions. Vir
tually all of plaintiffs’ housing allegations, however, apply
only to governmental entities other than the State of
Missouri, such as HUD and local government agencies.34
With respect to those few actions that are those of the
State, the evidence and findings below demonstrate that
no significant interdistriet school segregation today was
to the extent that KCMSD policies were responsible for the exten
sion of the “black corridor,” that extension has moved into Ray
town, Hickman Mills, Center, and Grandview, thus decreasing ra
cial disparities between the SSDs and the KCMSD. See id. at 39.
And there is no evidence in the record to support the implausible
suggestion that segregative policies within the KCMSD were a
cause of “white flight.” See Hills, 425 U.S. at 294 n .ll (rejecting
as “speculative” similar allegation of basis for interdistriet viola
tion) .
84 Plaintiffs have pointed to the racial considerations embodied
in the appraisal manual used by the Federal Housing Administra
tion from 1934 to 1947 in deciding which private mortgages to in
sure. Plaintiffs’ Brief a t 16-17. This allegation, of course, con
cerns only the Federal Government and not the State of Missouri.
In any event, the district court found the present effect of pre-
1950 appraisal practices to be de minimis. Jenkins, at 1497.
Plaintiffs have further pointed to the relocation policies of the
Land Clearance for Redevelopment Authority (LCRA). See Plain
tiffs’ Brief at 18-20. As is evident from the fact that the district
court considered plaintiffs’ allegations regarding the LCRA as
bearing solely on the liability of HUD, the LCRA is not a State
agency. Rather, it was created by the City of Kansas City and
functions independently of the State—though not of the City of
Kansas City or of HUD—in carrying out HUD-funded urban re
newal projects. See Jenkins, at 1497-98; Mo. Rev. Stat. §§99.300
etseq. (1978).
In addition, plaintiffs have pointed to certain actions of the
Housing Authority of Kansas City (HAKC). See Plaintiffs’ Brief
at 24-26. Like the LCRA, however, the HAKC is not a State
agency but is instead a municipal corporation whose functioning
required approval of the City of Kansas City and which carries out
federal programs. See Mo. Rev. Stat. § 99.040 (1978). Indeed, the
district court considered the allegations against the HAKC as bear
ing solely on HUD’s liability, see Jenkins, at 1498-99, and plaintiffs
apparently did not contend below that the alleged HAKC violations
directly supported liability on the part of the State.
26
27
substantially caused by any discriminatory State housing
actions.
The one discriminatory housing-related action by the
State concerns privately created racially restrictive cove
nants.35 These were enforced by the courts of Missouri
until the Supreme Court declared them unenforceable in
1948. As the district court found, however, this pre-1948
enforcement has no significant segregative effects today.
The reasons are apparent. “There is no evidence [that]
such covenants were enforced by the state courts follow
ing Shelley v. Kraemer, 334 U.S. 1 (1948).” June 5
Order at 39.36 There has been more than thirty years of * 38
®5 Although plaintiffs also point to various forms of private dis
crimination in the real estate, banking, and insurance industries,
Plaintiffs’ Brief at 17-18, the district court recognized that this dis
crimination did not constitute state action under the Fourteenth
Amendment for which State agencies can be liable. See Jenkins, at
1502-03. The court did find that former discriminatory provisions
in Missouri’s law “encouraged racial discrimination by private
individuals in the real estate, banking and insurance industries,”
but expressly refrained from imposing liability on the State on
that general ground. Id. at 1503. Under the principles established
in Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972), and subse
quent cases, a finding of liability on that sort of indirect “encour
agement” would be error.
38 The only suggestion by the KCMSD to the contrary is evidence
that the last restrictive covenant in Clay County was recorded in
1960. KCMSD Brief at 15 n.47. Of course, recording of a cove
nant by a county official is not enforcement by the State of Mis
souri. In any event, there is no evidence to suggest that this was
anything other than an isolated instance.
The plaintiffs suggest that the district court found that the
Missouri courts enforced restrictive covenants until 1953. Plain
tiffs’ Brief at 15. The suggestion is incorrect. See June 5 Order at
39; Jenkins, a t 1497. The most that can be said is that the Missouri
courts, though refusing to grant specific performance to enforce
restrictive covenants (in accordance with the holding of Shelley v.
Kraemer), apparently entertained suits for damages for their
breach until the Supreme Court declared the award of damages in
such suits unconstitutional in Barrows v. Jackson, 346 U.S. 249
(1953). See Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949). There is
no evidence, however, that any damages were ever awarded after
1948. In any event, any such actions in the period of five years
from 1948 to 1953 would do little to undermine the district court’s
finding of no significant effect thirty-two years later.
2 8
“tremendous housing growth” in the suburban areas since
these covenants became a nullity, and there has been a
nearly complete turnover of property, so that a negligibly
small portion of today’s houses are pre-1948 (or even
pre-1953) houses that have not been sold in the interim.
Id . ; see Tr. 18,616. Moreover, there was never a sub
stantial number of such covenants located in the SSDs,
and as soon as “the covenants were no longer enforce
able,” “the areas most affected by these covenants soon
were occupied by blacks.” Jenkins, at 1497. See also
June 5 Order at 39. Thus, specifically rejecting the testi
mony of plaintiffs’ expert witness, Dr. Gary Tobin, see
June 5 Order at 37, 39,37 the district court found, after
reviewing the evidence in each of the SSDs, that the pre-
1948 enforcement of restrictive covenants, like the pre-
1954 school segregation policy, has “negligible present ef
fects” more than three decades later on interdistrict racial
disparities in school enrollments. June 5 Order at 99.3S
The other State housing-related actions challenged by
the plaintiffs provide no better a basis for interdistrict
liability on the part of the State, because all were found
not to have been discriminatory. First, the actions of the
Missouri Department of Highway and Transportation in
choosing the location of highways (notably, Interstate 70
and the South Midtown Freeway) and in relocating persons
displaced by these highway projects were found not dis
criminatory: indeed, with respect to relocations, the re-
locatees selected their own new locations, and the De
partment asked to be notified of any discrimination en- 38
87 Plaintiffs have relied heavily, in the court below and in this
Court, on the testimony of Professor Gary Tobin, one of their
leading experts on housing. With respect to his testimony, the
court below stated: “The Court has considered carefully Dr. Tobin’s
presentation, and finds . . . that none of Dr. Tobin’s opinions dem
onstrated any significant effect on the racial makeup of any of the
SSDs.” June 5 Order at 37.
38 For specific findings about each of the SSDs, see June 5 Order
at 44-45 (Blue Springs), 48 (Center), 51 (Ft. Osage), 53 (Grand
view), 59 (Hickman Mills), 66 (Independence), 73 (Lee’s Summit),
77-78 (Liberty), 82-83 (North Kansas City), 90 (Park Hill), and
94 (Raytown).
29
countered but never received any complaints. See Jenkins,
at 1501-02; Tr. 18,031, 18,043, 18,050. Similarly, the
Missouri Housing Development Commission was found to
have engaged in no discrimination in its provision of
financing for middle and low income housing, chiefly un
der federal programs. See Jenkins, at 1502. Finally, the
Missouri Real Estate Commission, at least since the
1940s,39 has not engaged in any discriminatory acts: in
deed, “ [t]he only complaint involving illegal activities of
realtors which was filed with the Missouri Real Estate
Commission led to the permanent revocation of the real
estate license of the agent involved.” Jenkins, at 1503.
It is true, as the plaintiffs and the KCMSD repeatedly
state in their briefs, that the district court found that a
“dual housing market . . . still exists to a large degree
today.” Jenkins, at 1491. It is also true that the court
below found that the residential concentration of blacks
in the KCMSD has “caused the public schools to swell in
black enrollment.” Ibid. But it is one thing to note the
existence of racial disparities in housing, quite another to
hold that the disparities are the result of unlawful dis
crimination by a particular defendant. Here, the find
ings of fact, specifically addressing each claim advanced
by the plaintiffs and the KCMSD, make it clear that the
State is not legally responsible for the “dual housing
market” identified by the court.
D. The District Court’s Findings Dispose of the Inter
district Claims Against the State Defendants.
In these appeals, the plaintiffs and the KCMSD have
adopted what amount to three lines of attack against the
refusal of the district court to find no interdistrict lia
39 The only evidence of discrimination by the Commission is its
endorsement in the early 1940s of a realtor Code of Ethics that
embodied racial considerations and its apparent enforcement of
racially restrictive covenants. See PI. Exh. 316, 1386. Not even
plaintiffs, however, claim that these actions have any significant
effect on housing, let alone on schools, forty years later, and there
is no evidence suggesting such an effect. Indeed, to suggest such
an effect would squarely conflict with the district court’s finding
that the State’s enforcement of restrictive covenants before 1948/
53 has no significant current effects.
30
bility on the part of the State defendants. First, they
have sought to reargue the underlying facts, trying in
effect to treat this Court as a successor trial court. Sec
ond, they have sought to introduce into the law governing
claims of interdistrict segregation a burden-shifting pre
sumption that derives from the one used in intradistrict
cases. Third, they have sought to portray the decision
below as infected with legal error. None of these attacks
on the district court’s rejection of the interdistrict claims
has any merit.
1. The district court’s findings cannot be overturned
unless they are clearly erroneous. See Fed. R. Civ. P.
52(e). This is so even with respect to findings that de
pend entirely on documentary evidence, let alone on the
mixture of documentary and testimonial evidence that
was presented in this case. Anderson v. City of Bes
semer City, N.C., 105 S.Ct. 1504, 1512 (1985).40 The
clearly erroneous standard, of course, requires great def
erence to the trial court’s findings:
If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.
Where there are two permissible views of the evi
dence, the factfinder’s choice between them cannot be
clearly erroneous.
Id. at 1512. Moreover, deference to the trial court’s view
of the evidence is especially important in a school desegre
gation case like this, where discriminatory intent regard
ing numerous acts must be determined (often from cir
cumstantial evidence) and various alleged unlawful
causes of racial disparities must be sifted from among
the myriad causes that do not give rise to liability on the
part of a particular defendant. See Columbus, 443 U.S.
at 457 n.6; Goldsboro City Board of Education v. Wayne
40 The clearly erroneous standard applies equally to findings of
fact that are taken from proposed findings submitted by one of the
parties to the case. 105 S.Ct. at 1511.
31
County Board of Education, supra, 745 F.2d at 327-28;
see also Pullman-Standard v. Swint, 456 U.S. 273 (1982).
We think it clear from the record, as recounted in de
tail above, that the district court’s findings of fact on the
interdistrict claims would stand under any standard of
review, because those findings are, in all crucial respects,
virtually demanded by the evidence in the case. All the
more apparent is it that those findings must stand under
the “clearly erroneous” rule. As shown above, there is
ample support in the record for the district court’s find
ings that the local school districts are independent and
autonomous, that there has been no racial gerrymander
ing, that the pre-1954 segregation policy was not a sig
nificant cause of today’s interdistrict racial disparities,
that none of the challenged post-1954 State school-related
actions was racially discriminatory, that the enforcement
of racially restrictive covenants more than 30 years ago
has at most a de minimis effect on school enrollments
today, and that none of the other challenged housing-
related actions of the State was racially discriminatory.
It can scarcely be said that these findings, entered by a
judge who managed the case for seven years and presided
over eight months of trial, are not plausible in light of
the record as a whole. Indeed, by their careful avoidance,
throughout their briefs, of the contention that the court’s
findings are clearly erroneous, the plaintiffs and the
KCMSD have effectively conceded that these findings can
not be overturned. Accordingly, the district court’s find
ings must be accepted by this Court.
2. As the district court’s factual findings make clear,
none of the discriminatory acts alleged as a basis for in
terdistrict relief (including the pre-1954 segregation pol
icy and the pre-1948/53 enforcement of racially restric
tive covenants) has more than de minimis effects on
school enrollments today. Not surprisingly, no case has
ever rested interdistrict liability on findings of negligible
current effects of thirty-year old actions, even where
there have been a greater number and more recent cross
district transfers than those shown here. See, e.g., Milli-
32
ken I, supra, 418 U.S. at 750; Goldsboro City Board of
Education V. Wayne County Board of Education, supra,
745 F.2d at 330-31; Lee v. Lee County Board of Educa
tion, supra, 639 F.2d at 1257-60; 41 Tasby v. Estes, supra,
412 F. Supp. at 1188-92, aff’d, 572 F.2d at 1015-16 &
n.19; Armour v. Nix, supra [discussed in Lee v. Lee
County Board of Education, 639 F.2d a t 1259]. Recog
nizing as much, the plaintiffs and the KCMSD have
tried to avoid their failure of proof by proposing—with
out admitting that they are proposing—a novel and un
warranted modification of existing law.
The plaintiffs and the KCMSD suggest that interdis
trict liability on the part of the State may be based on
two simple facts: that the State had once engaged in
unlawful segregation that had no more than the de
minimis interdistrict effects found here; and that inter
district racial disparities exist today. According to plain
tiffs and the KCMSD, nothing further need be shown to
shift the burden to the State and SSD defendants to
demonstrate that current interdistrict disparities are not
in fact traceable to the thirty-year old State policies.
Plaintiffs and the KCMSD seek to borrow for the anal- 41
41 The Fifth Circuit in Lee v. Lee County Board of Education
concluded that even where, unlike this case, “an interdistrict trans
fer program was formerly used in order to maintain racial segre
gation,” an interdistrict remedy cannot be justified “unless it is
established that these transfer programs have a substantial, direct
and current segregative effect.” 639 F.2d at 1260. With respect to
the allegation, similar to the one that is the centerpiece of plain
tiffs’ and the KCMSD’s claim here, that the transfer practices had
a current effect because they contributed to the development of
housing patterns, the Court of Appeals stated:
This assertion is vague and speculative. . . . The possible
causes of residential segregation are myriad. In the absence
of some more compelling logic or more convincing evidence to
support the conclusion that current demographic patterns in
Western Lee County are directly caused by the practice of
inter-district student transfers employed prior to 1970, we
cannot conclude that such transfers support an inter-district
desegregation order under Milliken.
Ibid. This reasoning applies with even greater strength when the
challenged transfer practices occurred, not 11 years ago, but more
than thirty years ago.
33
ysis of their interdistrict claim a modified version of the
presumption from intradistrict cases that the Supreme
Court articulated in Swann, 402 U.S. at 26. See, e.g.,
Plaintiffs’ Brief at 52; KCMSD Brief at 42-43. The
Court should reject this attempt to alter the law.
First of all, even if the Swann presumption could be
extrapolated into interdistrict cases, it would not apply
unless the prior policy created separate black and white
districts. The very premise of the Swann presumption
(applied, within a single district, to schools) is that the
separation of white and black students that exists now is
the same as the separation that existed at a time of man
datory segregation. But, as the record in this case openly
shows, the present condition of 1 majority-black district
and 11 majority-white districts is not the same as the
condition prevailing in 1954: then, the KCMSD was a
majority white district. Furthermore, no State policy re
quired the education of black students in the KCMSD or
generally required their exclusion from the SSDs.
Moreover, even if the Swann presumption were to ap
ply other than to specifically mandated segregation among
districts, its rationale could not be extended to cases
where the impact of the prior segregative policy was in
significant. The presumption thus would not apply
where, as here, the trial court specifically found that,
when the State policy was in effect, it made at most a
negligible contribution to interdistrict segregation. Were
it otherwise—and this is apparently what plaintiffs and
the KCMSD suggest—the defendants would bear the bur
den of disproving a causal nexus between the segregation
policy and interdistrict disparities thirty years later even
if only one student transferred before 1954 because no
black school existed where that student lived. This sit
uation is not the same as the complete, forced segrega
tion that the Swann Court had in mind. Thus, the Swann
presumption would not apply to this case even if it could
justifiably be extended from the intra- to the interdistrict
context.
34
In fact, however, there is no justification for applying
the Swann presumption to claims of interdistrict segre
gation. No court has ever applied it in such circum
stances or even suggested that it should apply.42 Indeed,
the proposed extension was specifically rejected by the
Fifth Circuit in Lee v. Lee County Board of Education,
supra, 639 F.2d at 1254-55. The reasons are evident
from the fact, which Milliken I so heavily stressed, that
there is a tremendous difference between an intradistrict
claim and an interdistrict claim involving autonomous
districts.
The Swann presumption applies “within an autonomous
school district as a signal which operates simply to shift
the burden of proof” on the question whether current
racial disparities are in fact discriminatory. Milliken I,
418 U.S. at 741 n.19. Thus, if a single district had once
assigned students to schools on the basis of race, and at
a later date racial disparities still exist in the district’s
assignment of students to schools, it makes sense to re
quire the school authorities to show that the present dis
parities do not exist for the same reason that the earlier
ones did. After all, within a single district, it is a single
entity that has been doing the assigning at both the
earlier and later times, and if there is continuity of re
sult, the district may be held to the task of demonstrat
ing that there is no continuity of reason for the result.
The interdistrict context is radically different. In that
context, if districts are autonomous, as they have long
been in Missouri, there is no single “system” assigning
42 The cases on this issue that plaintiffs point to all involve ra
cial gerrymandering. See Plaintiffs’ Brief at 52-53. In such cases,
there is no occasion to employ a Swann-type presumption, because
the only issue is whether particular boundary decisions were ra
cially motivated. There is no gap between a segregated condition
and a prior discriminatory act that must be causally bridged, and
hence there is no call for any presumption: once racially motivated
boundary manipulation has been shown, boundary lines are no
longer entitled to the same degree of respect. Thus, the cases cited
by plaintiffs are not precedent for application of the Swann pre
sumption in interdistrict cases.
35
students to schools across district lines. Student assign
ment is a district-by-district matter, and where students
reside is not controlled by any governmental entity
(State or SSD). Accordingly, there is no interdistrict
assigner of students whose motives are suspect, and thus
no call for the Swann presumption. This is so, of course,
even if, as is plainly not the case here, a single entity
assigning students across district lines did exist at one
time, for in the absence of a current entity assigning
students, there is simply no entity to which a presump
tion of unlawful motive in assigning can now be ap
plied.43 This is doubly so when, as here, there was never
any interdistrict assignment system.44
Not only does the Swann presumption make no sense
in the interdistrict context, but application of it to an
interdistrict claim would run afoul of the principles artic
ulated in MUliken I. That case establishes “fundamental
limitations on the remedial powers of the federal courts
to restructure the operation of local and state govern
mental entities.” Hills, 425 U.S. at 293. The whole
point of MUliken I was to require a distinctively strong
showing before the deeply rooted tradition of local con
trol is cast aside and the “established geographic and
administrative school system” is overridden. MUliken I,
418 U.S. at 746. Even assuming it made sense to do so,
importing the Swann presumption into the interdistrict
43 Thus, even if the few pre-1954 transfers that existed in this
case were to be mischaracterized as a “system,” as the KCMSD
does throughout its brief, that “system” has in fact been disman
tled: there is today no interdistrict assignment “system.”
44 In Milliken I, supra, the Supreme Court repeatedly pointed
out that Swann concerned only intradistrict segregation. See, e.g.,
418 U.S. at 740, 741 (interdistrict remedy issue “not presented in
Swann”) , 741 n.19. Indeed, the Court specifically stated: ‘‘Brown,
supra-, Green, supra; Swann, supra; Scotland Neck, supra; and
Emporia, supra, each addressed the issue of constitutional wrong
in terms of an established geographic and administrative system
populated by both Negro and white children. In such a context,
terms such as ‘unitary’ and ‘dual’ systems, and ‘racially identifiable
schools,’ have meaning, and the necessary federal authority to rem
edy the constitutional wrong is firmly established.” 418 U.S. at 746.
36
context would fly directly in the face of the Court’s
rejection of the “notion that school district lines may be
casually ignored or treated as a mere administrative
convenience.” 418 U.S. at 741.4’5
3. The third line of attack taken by the plaintiffs and
the KCMSD is to suggest that the district court com
mitted a legal error by misinterpreting Milliken I. Thus,
according to the KCMSD, the district court found the
State liable for creating and for failing to eradicate
“the racially dual school system in the Kansas City Met
ropolitan area” but did not order correction of this “sys
tem” because the court “misapprehended the legal stand
ard applicable to interdistrict violations and relief.”
KCMSD Brief at 22. This argument is wrong on sev
eral counts.
The first error is that the entire argument depends
on a false premise: that the district court found the
State defendants responsible for a dual school system in
the “Kansas City Metropolitan area.” Throughout its
opinion (including at the very pages that the KCMSD
cites to support its theory), the district court said again
and again, in almost the same terms, that the violation
was the failure to eliminate the “vestiges of the dual
school system in the KCMSD.” Jenkins, at 1505 (em
phasis added). See id. at 1504 (“vestiges of the State’s
dual school system still lingering in the KCMSD”)
(emphasis added); id. (failure to “dismantle the
KCMSD’s dual school system”) (emphasis added); id.
at 1492 (“inferior education indigenous of the state-
compelled dual school system has lingering effects in the
Kansas City Missouri School District”) (emphasis add
ed) ; id. {“the District did not and has not entirely dis- 45
45 Given this plain statement by the Supreme Court, it is some
what startling that the KCMSD’s brief quotes, as if Milliken I had
not later held to the contrary, the assertion from Haney v. County
Board of Education of Sevier County, Arkansas, suyra, 410 F.2d
at 925, that “ [political subdivisions of the state are mere lines
of convenience for exercising divided governmental responsibilities.”
KCMSD Brief at 27.
37
mantled the dual school system. Vestiges of that dual
system still remain.” ) (emphasis added) ; see also id.
at 1492 (“Court . . . will focus on the anatomy of the
KCMSD”) (emphasis added). Having found a violation
“in the KCMSD,” the court then set out to remedy just
that violation.46 The court thus specifically directed the
parties “to prepare a plan which would establish a
unitary school system within the KCMSD” Id. at 1506
(emphasis added). The court described that plan as
one “to dismantle the vestiges of a dual school system
in the KCMSD.” Ibid, (emphasis added).
This series of findings and instructions is the natural
corollary to the extensive findings of the district court
that the plaintiffs and KCMSD did not show any signifi
cant current interdistrict effects from unconstitutional
behavior. Thus, the court concluded that plaintiffs and
the KCMSD had proved only a violation “in the KCMSD”
calling for a remedy “in the KCMSD.” That conclusion,
far from being inconsistent with Milliken I, is compelled
by Milliken I. The contrary suggestion of the plaintiffs
and KCMSD owes more to their misreading of the de
cision below than to any misreading of Milliken I by the
district court.
The plaintiffs and KCMSD are also somewhat mis
leading in their selection of quotes regarding the legal
standards applied by the district court. Thus, the dis
trict court repeatedly and correctly recited the governing
standard from Milliken I. See, e.g., June 5 Order at 14;
Order of June 1, 1981 at 17. Moreover, the court on
several occasions clearly expressed the view of that stand
ard that plaintiffs and the KCMSD insist is the correct
one. See, e.g., Order of Jan. 25, 1985 at 2 (interdistrict
remedy may not extend to SSDs “in which no constitu
46 As we discuss in part II of this brief, we disagree with por
tions of the remedy on the ground that they are not supported by
adequate findings about conditions caused by the violation. But
there is no question that, whatever the scope of those findings may
be, they relate at most to conditions within the KCMSD, not
throughout the entire metropolitan area.
38
tional violation or significant segregative effect has been
found” ) ; Order of June 1, 1981 at 16-17; Order of
August 12, 1981 at 8 (“If the evidence later developed
in this case demonstrates that these outlying school dis
tricts have been ‘neither [1] involved in nor [2] affected
by [a] constitutional violation, Milliken v. Bradley, 433
U.S. 267, 282, 97 S.Ct. 2749, 53 L.E.2d 745, 757 (1977)
(brackets added), then those districts could not properly
be included in any remedial plan which this Court might
fashion.” ) ; School District of Kansas City v. State of
Missouri, supra, 460 F. Supp. at 429-31 (interdistrict
relief barred only for districts “ ‘neither involved in nor
affected by’ ” violation).
To their selective reading of the orders below, the
plaintiffs and KCMSD add a similarly selective reading
of Milliken I. Although certain language in Milliken 1
can be read to suggest that a remedy may involve in
dependent school districts merely upon a showing that
they were affected by an interdistrict violation, the
plaintiffs and KCMSD too readily skip over the parts
of Milliken I that express serious concern about imposing
a remedy on essentially innocent parties. The Milliken
Court, for example, shortly after reviewing the standards
that plaintiffs and the KCMSD cite, stated: “To approve
the remedy ordered by the court would impose on those
outlying [suburban] districts, not shown to have com
mitted any constitutional violation, a wholly impermis
sible remedy based on a standard not hinted at in Brown
I and II or any holding of this Court.” 418 U.S. at 745
(emphasis added). This statement followed repeated
references by the Court to the absence of “any finding
that the included districts committed acts which effected
segregation within the other school districts,” id. at
722, the lack of any “claim that these outlying districts
had committed constitutional violations,” id. at 730, the
failure of the district court to address “the claim that a
finding of a constitutional violation by the intervenor
[suburban] districts was an essential predicate to any
remedy involving them,” id. at 733, and the failure of
39
the Court of Appeals to acknowledge “that no constitu
tional violation by the outlying districts had been
shown,” id. at 735-36.
The opinion in Milliken I is thus an unreliable place
to look for clear authority that a court can abolish inde
pendent, autonomous school districts in the absence of
any indication that they are responsible for an existing
unconstitutional condition. On the contrary, the emphasis
in Milliken I on local autonomy strongly suggests that
a federal court may not undertake to do away with a
school district simply on a showing that it was somehow
affected by the constitutional violation of another party.
That situation is very different from a situation in
which the boundaries of the district have been drawn
with discriminatory purpose (and may thus be suspect
from the start) or in which the district committed acts
causing significant current segregation somewhere else.
Only in the latter cases can a school district properly be
said to have forfeited the right to assert its independence.47
In any event, in a case like this one where the court
found no interdistrict effects, the issue is a red herring.
The assumed legal error would make a difference only
if the district court had declined to consider the inter
district claim against the State defendants or if the court
had not made findings on the elements of that claim in
dependent of the idea that the SSDs must have discrim
inated. The record makes clear that neither is the case.
As shown in detail above, the district court plainly con
sidered every single basis for interdistrict liability
47 Holdings in the lower courts are not on point, because the
only cases finding interdistrict liability involve racial gerrymander
ing : where discrimination is found in the very existence or shape
of a school district, it is a remedy precisely tailored to the viola
tion, and it hardly offends the tradition of local control, to re
vise or override the discriminatorily manipulated boundaries. See
Morrilton School District No. 32 V. United States, supra, 606 F.2d
at 228-29.
See also Liddell VII, supra, 731 F.2d at 1308 (“The Supreme
Court in Hills . . . has interpreted Milliken I to mean that district
courts may not restructure or coerce local governments or their
subdivisions.”)
40
against the State that the plaintiffs or the KCMSD put
forth. Moreover, with respect to every such basis, the
district court entered findings, wholly separate from
whether the SSDs had discriminated, that the State’s act
was either not racially motivated or, in the case of the
pre-1954 segregation policy and the pre-1948/53 enforce
ment of racially restrictive covenants, had at best a
de minimis effect on current interdistrict segregation.
The plaintiffs and the KCMSD have pointed to not a
single instance in which, and not even suggested how,
these were affected by the reading of Milliken I that they
attribute to the court below. Plainly, they were not.
See pages 10-29 supra.
II. The District Court Adopted an Improper Remedy for
the Intradistrict Violation.
Although the plaintiffs and the KCMSD principally
sought to prove segregation on an interdistrict basis, the
district court found that they had alleged, and proved,
segregation within the KCMSD itself. The court thus
devised an elaborate remedy—applying to every school
within the district and costing a minimum of 87 million
dollars over a three-year period—to redress the “vestiges
of the dual school system in the KCMSD.” Jenkins, at
1505.
It should be made clear at the outset that the State
does not in any way seek to justify or excuse the “dual
school system” once required by State law. Moreover,
the State does not challenge, as such, the finding of in
tradistrict liability. Our appeal in this case is simply
over what the vestiges of that dual school system are
30 years after it was declared void and what constitutes
a proper remedy to eliminate those vestiges.
A. The District Court, in Developing a Remedy for
Segregation Within the KCMSD, Failed to Limit the
Remedy to Redress of the Conditions Caused by
That Segregation.
The legal standards governing the fashioning of deseg
regation relief are, by now, well-known. The Supreme
41
Court eight years ago set out the essential finding that
must be made before any remedy is appropriate in a
school desegregation case: “that the constitutional vio
lation caused the condition for which remedial programs
are mandated.” Milliken II, 433 U.S. at 286 n. 17.
Once the conditions caused by the violation have been
identified, a court must then “tailor ‘the scope of the
remedy’ to fit ‘the nature and extent’ of the constitu
tional violation.” Hills, 425 U.S. at 293-94.
The first obligation in following these principles is
thus to identify the dimensions of the violation—i.e.,
the “current conditions of segregation resulting from
intentional state action.” Davis, 426 U.S. at 240. That
obligation is a necessary antecedent to all that follows
because federal equitable powers “ [can] be exercised
only on the basis of a violation of the law and [can]
extend no further than required by the nature and extent
of that violation.” General Building Contractors Ass’n
v. Pennsylvania, 458 U.S. 375, 399 (1982). Stated an
other way, “federal-court decrees exceed appropriate
limits if they are aimed at eliminating a condition that
does not violate the Constitution or does not flow from
such a violation . . . .” Milliken II, 433 U.S. at 282.
The definition of a constitutional violation—i.e., iden
tifying the acts of discrimination and the present con
ditions resulting therefrom'—is not a matter for judicial
discretion. On the contrary, the Supreme Court has
emphasized that the existence and extent of a constitu
tional violation “must be satisfactorily established by
factual proof and justified by a reasoned statement of
legal principles.” Dayton I, 433 U.S. at 410. See also
Columbus, 443 U.S. at 470 (Stewart, J., concurring in
result) (“ [t] he development of the law concerning school
desegregation has not reduced the need for sound fact
finding by the district courts” ). Indeed, the Supreme
Court in several instances has remanded school cases on
the ground that the factual findings regarding the scope
of the violation were inadequate. See School District of
42
Omaha v. United States, 433 U.S. 667 (1977); Brennan
V. Armstrong, 433 U.S. 672 (1977).
In this case, the district court made only two direct
findings about the conditions resulting from (or the
“vestiges” of) the “dual school system” : one relating to
the existence of 24 largely-black schools in the KCMSD
and the other to “inferior education indigenous of the
state-compelled dual school system.” Jenkins, at 1492,
1493. As we discuss below, the first finding (which the
State does not challenge for purposes of this appeal) is
simply too narrow to support a remedy reaching every
school and every student throughout the KCMSD. See
pages 42-47 infra. The second finding, the scope of
which is uncertain on its face, likewise cannot justify
improvements throughout the KCMSD in light of, first,
the lack of proof actually linking general conditions in
the KCMSD to the prior dual system and, second, the
clear evidence of other causes (including declining local
support) of those conditions. See pages 47-53 infra.
The remedy thus goes well beyond the violation at issue
in this case.
1. The Finding of Segregation in the 90+% Black
Schools. The district court here was clearly of the view
that the primary “vestige of the dual school system”
was the presence of 24 schools found to be “racially iso
lated with 90+% black enrollment.” Jenkins, at 1493.
But the fact of a current racial disparity, even in a
district that was previously segregated by law, does not
automatically establish the existence of a continuing con
stitutional violation. As the Supreme Court has ob
served, the Constitution is not violated by racial im
balance in the schools, without more.” Milliken II, 433
U.S. at 280 n. 14. The district court thus was required
to do more than merely “equal [e] racial imbalance with
a constitutional violation calling for a remedy.” Milliken
I, 418 U.S. at 741 n. 14.48
See also Alexander v. Youngstown Board of Education
.2d 787, 791 (6th Cir. 1982) ; Armstrong v. Board of School
4,8
43
The Supreme Court in Swann, of course, while not re
moving the need to establish proper causation, did adopt
a presumption linking the existence of largely one-race
schools to a prior dual system in the absence of evidence
to the contrary.* 49 In such cases, where schools of pre
dominantly one race are present at the time of trial, “the
burden [is] upon the school authorities . . . to satisfy the
court that their racial composition is not the result of
present or past discrimination.” Swann, 402 U.S. at 26.
But, even giving full weight to that presumption here,
there is good reason to doubt that the former dual school
system caused the present condition of 24 largely-black
schools within the KCMSD,
To begin with, the district court seemingly gave no
weight to the fact that the overall student population
within the KCMSD is approximately 70i% black. Under
such circumstances, the existence of 90~H% black schools
is plainly less indicative of current or lingering discrimi
nation than it would be in a district with a black popula
tion of, for example, 43% (Dayton) or 32% {Columbus).
This fact is reinforced by the absence in the KCMSD of
any school that is set aside primarily for white students.
(The KCMSD has only one school that is more than 70%
white.) Compare Adams v. United States, supra, 620
F.2d at 1285. In light of these percentages, it is not self-
evident that the distribution of students would now be
markedly different if the schools had not been segregated
before.80
The history of these- particular schools, about which the
district court also had little to say, raises further con
rectors of the City of Milwaukee, 616 F.2d 305, 321 (7th Cir.
1980) ; United States v. Board of Education of Valdosta, Georgia,
576 F.2d 37, 39 (5th Cir.), cert, denied, 439 U.S. 1007 (1978).
49 As we have discussed above, this presumption applies to segre
gation within a single district, not to racial disparities among
several districts. See pages 31-36 supra.
59 Indeed, when the court below addressed the issue of racial
distribution for purposes of determining the proper remedy, it
expressed scepticism that any further desegregation could be
achieved by pupil reassignment. Remedy Order at 31.
44
cerns. Unlike the situation prevailing in many formerly
de jure districts, the largely-black schools in the KCMSD
are not lineal descendants of once all-black schools. To
the contrary, of the 24 schools cited by the district court,
17 were white schools prior to Brown. (Another, South
east, opened later with a more than 90% white enroll
ment.) KCMSD Exh. K2. Thus, each of these schools
underwent a complete racial transition in the years fol
lowing Brown, a transition that is consistent with the
trend of population in general within the KCMSD and
in many other urban school districts as well. See page
15 supra. At the very least, this pattern lessens the
force of the Swann presumption since it is not reason
able to assume that, in the absence of strong evidence to
the contrary, the existence of a black school in 1984 was
caused by its standing as a white school in 1954.
Although the district court did note in passing the
“racial change in the schools and housing patterns, usu
ally changing from predominantly white to predominantly
black,” it went on to hold that the evidence of such
“resegregation” had “no legal significance.” Jenkins, at
1492. This conclusion, however, mistakenly merges two
distinct concepts. This case does not involve “resegrega
tion” as that term is properly understood: i.e., the return
of once-black schools to a predominantly black student
body after an unsuccessful period of attempted integra
tion. In that situation, the courts have held that a failed
effort to desegregate does not necessarily discharge a con
stitutional violator of his duty to break down what he
once created. See, e.g., Davis v. East Baton Rouge Parish
School Board, 721 F.2d 1425, 1435 (5th Cir. 1983).* 51
Here, by contrast, most of the schools in question have
gone, not from black to black, but from white to black.
Since the original condition of segregation in those schools
o1 On the other hand, it is well-established that, having once
eradicated the effects of prior segregation, a school district does
not have a constitutional obligation to maintain any particular
level of racial balance. Pasadena City Board of Education v.
Spangler, 427 U.S. 424, 435-37 (1976).
45
(i.e., their exclusively white character) has been broken
down, the court must undertake a further inquiry into
whether the current condition of racial identifiability is
nonetheless the product of unlawful discrimination. The
district court made no such effort here.
Despite the questions raised by this analysis, the State
has decided not to challenge the finding for two reasons.
First, as a practical matter, the combination of the
Swann presumption and the “clearly erroneous” standard
makes such a challenge difficult to sustain even on a rec
ord like the one in this case. Second, and in any event,
the State is not opposed to a properly-tailored remedy to
aid the students in those schools. But, even if this finding
is taken at face value, it is sufficient only to support re
lief for the particular students harmed by such racial
isolation, not the school-by-school improvements contem
plated by the district court. As the Supreme Court ob
served in Milliken II, a remedy must be designed “ ‘to
restore the victims of discriminatory conduct to the posi
tion they would have occupied in the absence of such con
duct.’ ” 433 U.S. at 280, quoting Milliken I, 418 U.S. at
746 (emphasis added).
The definition of the “victims of discrimination” ap
pears to have been the source of some confusion in the
district court. Initially, having found a violation on the
part of the State and the KCMSD, the court in its order
of September 17th directed the parties to “concentrate
on the schools in which the student enrollment is more
than 90% black.” Jenkins, at 1506.52 That directive,
52 The State defendants initially submitted a plan (January 18,
1985) that followed that admonition. The State defendants’ second
plan (March 26, 1985), an elaboration of the first, followed the
same principle. When, however, in conferences held prior to the
remedy hearing, Judge Clark made it clear that he would consider
only a district-wide remedy, the State defendants submitted an
alternative plan (April 29, 1985) that proposed remedial programs
for all the schools in the KCMSD. See Memorandum of the State
of Missouri Regarding the Remedy Hearing and Alternate District-
Wide Plan (April 29, 1985) at 2. The State in its submission ex
pressly reserved the right to challenge the requirement of a plan
reaching all schools in the KCMSD. Id. at 2.
46
taken together with the emphasis placed upon the “racial
isolation” of those schools, seemed to indicate that the
harms caused by such racial isolation fell primarily upon
those students. But, shortly thereafter, in its order cer
tifying the class of plaintiffs in this case, the court or
dered that the class consist of all students in the KCMSD,
regardless of race or school of attendance. Subsequently,
the court stated that “the minority students in the
KCMSD are the victims of racial discrimination which
was mandated by the Constitution and statutes of the
State of Missouri . . . .” Remedy Order at 3. Finally,
of course, the court decided to impose a remedy that
applies in virtually the same fashion to all students in
the KCMSD.
A finding of racial isolation in some schools does not,
however, justify a series of general improvements aimed
at all students in all schools. To the extent that the stu
dents in the 24 largely-black schools have been unlawfully
segregated, as the district court specifically found, they
stand in a different constitutional posture from the stu
dents in other schools throughout the district. As Brown
made clear, the “inherent inferiority” of a deliberately
segregated school burdens the students of that school in
ways not felt by black students in a non-segregated
school, and certainly not by white students within the
same system. See Brown, 347 U.S. 493 (finding that
“segregation of children in public schools solely on the
basis of race, even though the physical facilities and other
‘tangible’ factors may be equal, deprive[s] the children
of the minority race of equal educational opportunity”).
In fact, the very premise of a remedial program is to
redress the disadvantages experienced by particular stu
dents as a result of forced segregation, a premise that
assumes, and logically depends on, the existence of other
students not similarly disadvantaged.
The record is undisputed that, at the time of trial, the
KCMSD did not have a system of completely all-white
and all-black schools as it had maintained 30 years ear
lier. To the contrary, many of the KCMSD schools had
47
then, and have now, substantial numbers of black and
white students in every grade. For example, during the
1984-85 school year, 20 elementary schools (out of 50)
had a student body that was at least 40% white. Two
more were between 39 and 40 percent white, while an
other 7 schools had a student body that was at least 20%
white. KCMSD Exh. K74. In such circumstances, a find
ing that 24 schools are still racially isolated is not either
the legal or factual equivalent of a finding that students
in all other schools are also the victims of continuing dis
crimination.
2. The Finding of Indigenous Inferiority. The district
court made only one other express finding about vestiges
of the dual system: that “the inferior education in
digenous of the state-compelled dual school system has
lingering effects in the Kansas City, Missouri School Dis
trict.” Jenkins, at 1492. That finding also is insufficient
to support the broad relief in this case.
In the first place, the scope of the finding itself is
unclear. The court does not identify what the dimensions
of the “lingering effects” might be or what students are
subjected to those effects. The finding, read in context,
may thus describe only the conditions in those schools that
are deemed themselves to be vestiges of the prior dual
system. Taken that way, the finding would reinforce the
finding that the students in those 24 schools are still
suffering the effects of once-compelled segregation, defin
ing more specifically what the additional effects (beyond
racial isolation) presently are.
If the finding is intended to be read more expansively
—to identify a causal connection between general condi
tions throughout the KCMSD and the “dual school sys
tem”—it stands essentially unsupported. The court of
fered two bases for its finding. The first, resting on the
Brown theory about the inferiority endemic to segregated
schools, is, as we have just discussed, too narrow a ground
to explain extending programs to unsegregated schools.
The second, depending on a chain of reasoning about
achievement, poverty, and race, is far too broad to be
sustained on this record.
The discussion of the relationship among poverty, race,
and achievement is remarkably brief for so complex and
controversial a subject. In its discussion, the court first
indicates that “ [t]he general attitude of inferiority
among blacks produces low achievement which ultimately
limits employment opportunities and causes poverty.”
Jenkins, at 1492. Then, however, the court goes on to
acknowledge that “poverty results in low achievement re
gardless of race.” Ibid. Finally, after stating that it is
“undeniable that most poverty-level families are black,”
ibid., the court proceeds to a conclusion that “the inferior
education indigenous of the state-compelled dual school
system has lingering effects.” Ibid.
This loose analysis reveals little about the real nature
of cause and effect in this case. To begin with, we ques
tion whether an assertion of such sweeping generality
could ever support a finding of segregation-caused injury
in a particular case. Putting that aside, however, it is
clear, first of all, that the generalization does not readily
apply to the roughly 10,000 white students in the KCMSD
or to black students who do not fit the pattern so quickly
sketched by the court. Even more importantly, the record
simply will not support the sequence of conclusions essen
tial to the proposition that, because it produced attitudes of
inferiority among blacks that in turn caused low achieve
ment among blacks that in turn caused poverty among
blacks, the prior dual school system now causes low
achievement among black students in the KCMSD. While
it may well be possible to correlate socioeconomic status
and school achievement, see Tr. 16,507-08 (testimony of
Dr. Daniel Levine, witness for the KCMSD), it is a
wholly different matter of proof to demonstrate that pres
ent conditions of black poverty in the KCMSD (and, con
sequently, low achievement among poorer students) are
the result of the prior “state-compelled dual school sys
tem.” The citation of a dozen pages of testimony, pulled
from the record of months of trial, is, by no reasonable
48
49
standard, a sound basis for concluding that unlawful
segregation in the KCMSD has caused educational defi
ciencies throughout the district.
In our view, the finding regarding inferior education
ultimately rests upon nothing much more definite than an
assumption about the causes of below-average achievement
in the KCMSD. For that reason, it is important to recog
nize that the Swann presumption does not apply to shift
the burden of proof where the condition at issue is not
racial disparity but a more general condition like poor
achievement. Apart from the fact that the Swann pre
sumption is expressly stated in terms of racial disparities,
see 402 U.S. at 26, the logic of the presumption applies
only to that situation. While it is reasonable to presume,
absent contrary evidence, that racial disparities within
a district are the residue of a time when racial disparities
were intentional, it does not stand to reason that any and
all problems in a particular school system have their
origin in past segregation. To the contrary, both com
mon sense and a familiarity with other school systems
would suggest that the overall level of conditions in a
particular school district is typically determined by many
forces other than policies regarding racial assignments.
That suggestion is fully borne out in this case. For,
although the district court did not discuss it, the history
of the KCMSD reveals unmistakably that the current
status of AA classification and the poorer quality of its
facilities are not conditions prevailing constantly since
1954 or at any time thereabouts. To the contrary, for a
period long after 1954, the KCMSD was rated AAA and
had facilities among the best, if not the best, in the State.
The decline in the conditions of the KCMSD is thus an
event of very recent origin, occurring for the most part
more than two decades after the State ended its require
ment of mandatory segregation.
Had the district court looked into the reasons for that
decline, it could not have reasonably concluded that seg
regation was the cause. Rather, the decline in conditions
from the late 1970s to the present tracks closely a pat
50
tern of decisions by the KCMSD taxpayers regarding
support of their school system. Contrary to the impres
sion given by plaintiffs and the KCMSD, and unlike the
situation prevailing in St. Louis, the KCMSD is not a
poor district surrounded by richer suburban districts: as
measured by property wealth within the district (the
basis on which school funds are raised), it is a rich dis
trict surrounded by poorer suburban districts. Moreover,
the suburban districts, without exception, have imposed
upon themselves a higher rate of tax levy than the tax
payers of the KCMSD.
The record is unequivocal on this point. While the
average district in the State had an assessed valuation of
$24,946 per pupil in 1983-84, the KCMSD had a far
higher valuation of $37,918 per pupil. But this differ
ence in property value, notable in itself, is considerably
understated. The distortion is caused by the fact that
Jackson County (in which the KCMSD is located) dis
counts its assessments far more than other counties.
State Exh. 6. If the State equalization formula is ap
plied to these assessments, the valuation per pupil in the
KCMSD rises to $60,371, compared to averages of ap
proximately $40,000 in the suburban districts and state
wide. State Exh. 4.
Upon its assessment base, the KCMSD has chosen
to impose a below-average rate of tax levy. In 1983-
84, the average adjusted levy for all districts in the State
was $3.89 per $100 of assessed valuation, wThile the rate
in the KCMSD was only $3.43. State Exh. 3.53 Even
more importantly for present purposes, the other districts
in the Kansas City metropolitan area (with which the
KCMSD has sought enforced parity) have a current av
erage levy, on an adjusted basis, of $4.28 per $100 of
5:3 By way of comparison, the adjusted levy in St. Louis in
1983-84 was $3.50. Ibid. In St. Louis, however, the equalized
assessed valuation per pupil was only $39,559—less than two-thirds
the figure in the KCMSD ($60,731). Furthermore, St. Louis
assesses its property at 25.5% of value (the second highest in the
state) compared to 14.5% in Jackson County (the second lowest).
assessed valuation. The present adjusted rate for the
KCMSD is $3.26 per $100.
An historical analysis is even more striking. As we
have noted, the KCMSD maintained a AAA classification
in every year from 1954 through 1977. In that year, the
KCMSD imposed a tax levy slightly higher than the av
erage levy in districts throughout the State; after 1977,
however, its levy declined every year at a time when the
average levy statewide increased every year. State Exh.
3. During this same period, the tax levy of the KCMSD
each year was approximately $1.25 per $100 of valuation
below the average of the suburban districts in this case.
Ibid.6i
The district court, in its remedial order, did note the
declining support from KCMSD taxpayers, but dismissed
it as a further indication of the effects of a segregated
system. Remedy Order at 35-36. This treatment, how
ever, wrongly equates the condition of a majority-black
school system with the condition of a segregated school
system. See Milliken I, 418 U.S. at 747 n.22. As the
record plainly shows, the KCMSD taxpayers have not
withdrawn support from the district because it was be
coming more segregated: there is no dispute, in fact,
that they provided more than an adequate level of fund
ing in the years when segregation was at its most
pervasive. The decline in support has come only in
recent years when the percentage of black students has
risen. In those years, moreover, as a result of Plan 6C,
the number of nearly all-black schools has gone down.
See Jenkins, at 1492-93. Thus, assuming arguendo that
the level of support was dependent at all upon racial
factors, it cannot be tied as an evidentiary matter to the
51
64 Although a local sales tax provides same additional revenue,
it does not make up for the huge sums lost by the lower rate of
levy. If the KCMSD had maintained a tax rate equal to the average
throughout the Kansas City area, it would have raised more than
100 million additional dollars in the past ten years, enough to pay
for many of the general programs ordered by the court.
52
degree of segregation within the KCMSD but only to the
overall percentage of black students within the district.
The attempt to use a school desegregation case as a
means of redressing general problems is not a new one.
Eight years ago, Justice Powell noted a similar strategy
in the Detroit case, pointing out that the plaintiffs and
local school board had “joined forces . . . for the purpose
of extracting funds from the state treasury.” Milliken
II, 433 U.S. at 292 (Powell, J., concurring in the
judgment). See also Oliver v. Kalamazoo Board of Edu
cation, 640 F.2d 782, 810 (6th Cir. 1980). Similarly, the
Second Circuit has warned that “a court must be alert
not to permit a school board to use a court’s broad power
to remedy constitutional violations as a means of up
grading an educational system in ways only remotely
related to desegregation.” Arthur v. Nyquist, 712 F.2d
809, 813 (1983), cert, denied, 104 S. Ct. 1907 (1984).55
As the First Circuit has put it, “better quality education
as a general goal is beyond the proper concern of the
desegregation court.” Morgan v. Kerrigan, 530 F.2d 401,
429 (1st Cir.), cert, denied, 426 U.S. 935 (1976).
The line between programs aimed at the effects of seg
regation and programs aimed at improving conditions
generally is not always a bright one. See Arthur v.
Nyquist, 712 F.2d at 813. But a broad educational
plan making almost no distinctions among students—re
gardless of whether they are white or black, or whether
or not they attend a school that deviates from racial per
centages obtaining in the district as a whole—is a very
great distance from the sort of plans noted by the Su
preme Court in Milliken II or approved in many other
school cases throughout the country.56 At the very least,
05 In Arthur, the Second Circuit noted that counsel for plaintiffs
(Thomas I. Atkins of the NAACP) had criticized “the attempts
of school boards throughout the country, operating under desegrega
tion decrees, secure additional funding ostensibly but, in his
view, not realistically needed to carry out court-ordered remedies.”
Ibid.
56 The usual emphasis in desegregation plans has been upon pro
grams for black students in, or just moving from, segregated black
53
to support such a program, a federal court should draw
a clear connection between the overall conditions to be
remedied and persuasive evidence that the conditions re
sulted from deliberate segregation. The record in this
case contains no such evidence.
B. The District Court Committed Several Errors With
Regard to Particular Programs.
As we have discussed, our principal objection to the
remedy is that it is directed largely at conditions caused
by factors other than the mandatory dual school system.
Even if the Court should disagree with that position,
however, there are errors with regard to particular pro
grams that require correction. As this Court noted in
Liddell VII, the fact that programs may be “desirable”
does not mean that they are “necessary to provide equal
educational opportunities to the children of St. Louis . . .
or . . . otherwise essential as remedial or compensatory
programs.” 731 F.2d at 1318. Rather, the record must
show that the programs, particularly those applicable in
all schools, “are closely related to the integration proc
ess.” Id. at 1317.57
schools. See, e.g., Milliken II, 433 U.S. at 287 (programs for “chil
dren who, as a group, are isolated by force of law from the main
stream”) ; United States v. Jefferson County Board of Education,
380 F.2d 385, 394 (5th Cir.), cert, denied, 389 U.S. 840 (1967)
(“remedial education programs” for “students attending or who
have previously attended segregated schools”) ; Plaquemines Parish
School Board v. United States, 415 F.2d 817, 831 (5th Cir. 1969)
(“remedial programs to assist students who previously attended
all-Negro schools”) ; United States v. Texas, 447 F.2d 441, 448
(5th Cir. 1971), cert, denied, 404 U.S. 1016 (1972) (“specific edu
cational programs designed to compensate minority group children
for unequal educational opportunities resulting from past or present
racial and ethnic isolation”) ; Oliver v. Kalamazoo Board of Educa
tion, supra, 640 F.2d at 789 (power to order “ancillary programs to
enhance the achievement of black children if such is necessary to
cure the effect on the black children of unconstitutional school
segregation”) .
57 The district court did not abuse its discretion in not adopting
the plaintiffs’ proposed housing component. As the court was aware,
the State and federal governments have extensive provisions to
combat discrimination in general and housing discrimination in
particular. See, e.g., Mo. Rev. Stat. §§ 215.100, 213.105, 213.120
54
1. The Voluntary Interdistrict Program. The State
continues to believe that an order requiring support of
an exchange program between numerous school districts,
based solely upon a violation in one of those districts, im
poses an interdistrict remedy for an intradistrict viola
tion. This Court, however, rejected that argument in
Liddell VII. 731 F.2d at 1306-08. While we wish to pre
serve the point for purposes of the record, we will not
otherwise pursue it at this time.
The program ordered by the district court nevertheless
oversteps legitimate bounds. In addition to providing
that the State must extend substantial payments to any
suburban districts electing to receive KCMSD students,
the court ordered that the State “shall continue to pay to
the KCMSD the full student foundation allotment for
each student who transfers from the KCMSD to a sub
urban school district . . . .” Remedy Order at 32. This
requirement is excessive for several reasons:
First, it is a windfall for a violator of the Constitu
tion. The district court made clear that, to the extent
that unlawful segregation still exists within the KCMSD,
the State and KCMSD are jointly responsible for it.
Jenkins, at 1505. Second, it is totally unnecessary. As
the lead witness for the KCMSD itself testified, the
KCMSD hardly needs to be bribed in this fashion to allow
its students to attend school in suburban districts. Tr.
22,233. Third, it is at odds with the practice in Liddell.
There, even a settlement agreement negotiated by the
(1978); 42 U.S.C. § 1982 (1982); Executive Order No. 11063
(1962), reprinted at ibid., Note. Moreover, the testimony regarding
the component showed that it was lifted in great part from reme
dies in housing rather than school cases, was extremely costly in
comparison to the likely benefits, and could well lead to disputes
requiring the further attention of the court. See, e.g., Tr. 24,080-82
(similar to remedies in housing cases); 24,085 ($1,000 or more to
place single family) ; 24,095 (families need not have children) ;
24,099-103 (court oversight necessary). The court thus could have
rationally concluded that “ [t)he elimination of racial discrimina
tion in public schools . . . should not be retarded by efforts to achieve
broader purposes lying beyond the jurisdiction of school authori
ties.” Swann, 402 U.S. at 22.
55
school districts themselves provided only for a payment of
one-half of the per-pupil allotment. 731 F.2d at 1302.58
There is no reason here to insist upon a gratuitous
doubled payment to the KCMSD.
2. The General Addition of Teachers. The district
court, having already provided for the addition of 48 art,
music, and physical education teachers as part of the
plan to restore a AAA rating to the KCMSD, went on
to order the addition of 183 regular teachers at an
annual cost of as much as 6 million dollars. Remedy
Order at 11-16. This requirement plainly substitutes the
“desirable” for the “necessary.”
It is undisputed that the KCMSD already has more
than enough regular teachers to meet AAA standards.
Indeed, of the 50 largest school districts in Missouri,
nearly one-half have either the same overall pupil-teacher
ratio as does the KCMSD or a higher one, even before
addition of the specialized teachers needed to meet AAA
standards. State Exh. 18 (1983-84 data). By contrast,
the KCMSD has more administrators per pupil than
any other district in the entire State and more than 1%
times the rate of many other districts. Ibid.
The effort by the KCMSD to gain still more teachers
throughout its system is the same sort of effort rebuffed
by this Court in Liddell. There, this Court reversed the
district court order insofar as it generally lowered pupil-
teacher ratios below the requirements for AAA standing.
731 F.2d 1318. (The Court affirmed the order as it ap
plied to the nonintegrated schools.) Again, there is no
reason for a different result here.
S. The School Grant Program. The district court, seek
ing to improve test scores throughout the KCMSD, in es
sence provided each school with a cash grant to be used
for this purpose. The grant in year 3 for schools that
are more than 90% black is $125,000 per school. The
grant for every other school in the district in that year is
BS An alternative formula based upon the pupil count “for the
second prior year’’ was also provided. See 731 F.2d at 1302.
56
$100,000. The overall cost in the first three years is
more than 17 million dollars, all of which is borne by the
State. Remedy Order at 20-23.
This sort of general funding seems at almost the oppo
site end of the spectrum from a tailored remedy to aid
particular victims of segregation. See pages 40-42 supra.
But, even apart from that problem, the order requires
State funds to be committed to any one or all of a hotch
pot of programs, in the discretion of the KCMSD, without
any real assurance that the programs selected will serve
their intended purpose. Indeed, in making the proposal
for an “effective schools” program on which the district
court grants are loosely based, the KCMSD itself was
unable to provide even a tentative budget until the last
day of hearing. This sort of hit-or-miss approach is no
basis for a remedial program.
b- The Buildings Plan. The district court also ordered a
37 million dollar capital program in the face of undisputed
evidence that KCMSD voters had refused to approve bond
issues for this purpose for more than 15 years. See Tr.
22,752-53. In addition, the KCMSD’s own architect read
ily agreed that “the buildings in the Kansas City School
District are in need of repair because of deferred main
tenance and failure to maintain the buildings.” Tr.
22,752. It could not be clearer, therefore, that the cause
of the present conditions is not any unlawful action by
the State, but the neglect of the KCMSD taxpayers and
officials. See pages 49-51 supra.
The district court gave no weight to these facts, reject
ing the “argument that the present condition of the
facilities is not traceable to unlawful segregation” as
“irrelevant.” Remedy Order at 35. This flat disregard
for the principles of causation, on its face, is incon
sistent with the basic idea that remedies must relate
to, and be limited by, the conditions caused by uncon
stitutional action. The district court apparently saw
no inconsistency, however, because it believed that the
lack of maintenance by the KCMSD was itself “fur
57
ther evidence of the detrimental effects that segregation
has had on this school district’s ability to raise adequate
resources,” id. at 36, and that, in any event, it could
order anything helpful in carrying out “the educational
components of a desegregation plan,” ibid. Neither view
is correct.
As we have said, the district court simply erred in
treating the failure of the KCMSD taxpayers to com
mit funds as evidence of the “detrimental effects” of
segregation. See pages 51-52 supra. It likewise erred
in its belief that it could order the State to contribute to
improvement of the buildings merely because that ex
traordinarily costly action might complement other por
tions of the remedy. Taken literally, of course, that notion
would make the standards applicable to equitable rem
edies largely meaningless. Where there is clear evidence
that a shortcoming is the result of actions by other
entities, a defendant cannot be saddled with the cost of
correcting it merely on the ground that it would be an
aid to correcting the conditions for which he is respon
sible. See Dayton I, 433 U.S. at 420.59 That principle
applies even more strongly when the cost of the program
is wholly out of proportion to the cost of the programs
that it is supposed to assist. Thus, while the court may
well have the power to order the KCMSD to repair the
buildings that it neglected, that power does not extend to
other parties, such as the State, merely because it would
be convenient to have it do so.00
69 The Sixth Circuit has said that, having found “intentional dis
criminatory actions on the part of a defendant,” a federal court
must then “ [relate] them directly to redress only those segregative
effects which had been caused by the intentional segregative acts.”
Berry v. School District of City of Benton Harbor, supra, 698 F.2d
at 819. See also Parent Association of Andrew Jackson H.S. V.
Amback, 598 F.2d 705, 715 (2d Cir. 1979).
'60 In any event, there is no persuasive evidence of any correlation
between the condition of facilities in the KCMSD and the level of
achievement: some schools like Swinney have consistently high test
scores despite studies showing that they need a greater than aver
age amount of repairs. Compare State Exhibit 62 (test scores)
58
5. The Allocation of Funding Between the State and
the KCMSD. The remedial order in this case calls for
the State to pay approximately 80 percent of the cost
of the programs (roughly 40 out of 50 million dollars
over three years) and nearly 75 percent of the capital
improvement costs (27 out of 87 million dollars). This
effort to saddle the State with a disproportionate bur
den, and correspondingly exempt the KCMSD from its
proper share, is both erroneous and unfair.
The State recognizes that it has been found liable for
failing to eradicate the vestiges of de jure segregation, a
finding that carries with it a clear responsibility to
contribute to a remedy addressed to those vestiges. At
the same time, however, it cannot be forgotten that the
KCMSD played an unmistakable role in perpetuating
segregation long after State compulsion had ceased. In
the 1960s, it was the KCMSD (under no compulsion from
the State) that “made frequent shifts in the attendance
areas of elementary and secondary schools . . . .” See
Jenkins, at 1493-94. The court concluded that “the use
of these optional zones, coupled with the liberal transfer
policy, did not aid to integrate the District; to the con
trary, it allowed attendance patterns to continue on a
segregated basis.” Ibid. Again, from the mid-1950s until
the 1960s, it was the KCMSD (under no compulsion from
the State) that adopted the “intact busing” program.
The court found that “the District’s use of intact busing
had a segregative intent and effect.” Id. at 1494. As we
previously have noted, of the many school districts in- * 59
with KCMSD Exhibit 81 (Devine-James repair estimates). This
lack of correlation is not surprising in view of the experiences na
tionwide. Thus, the Educational Research Service concluded after
surveying the available literature that “student learning depended
more on the people providing educational services than on school
facilities and supplies.” Effective Schools: A Summary of Research
59 (1983). See also Murnane, “Interpreting the Evidence on School
Effectiveness,” 83 Harv. Educ. Rev. 19, 25 (1981) (“ [t]he current
conclusion is that the physical resources available in a school in a
particular year are not systematically related to the achievement
of the students in that year”) .
59
volved in this case, only the KCMSD had failed to estab
lish a unitary school district by the time of trial.61 * * * * *
Where joint liability has been found in other desegre
gation cases, it is common practice to require equal con
tributions to the remedy. In Millilcen II, for example, the
Supreme Court approved a plan under which costs were
divided equally between the Detroit School Board and
the State of Michigan. 433 U.S. at 277. In Columbus,
the district court directed that “the state defendants
[shall] share equally with the Columbus defendants all
expenses incurred.” PenicJc v. Columbus Board of Edu
cation, 519 F. Supp 924, 942 (S.D. Ohio), aff’d, 633
F.2d 24 (6th Cir. 1981), cert, denied, 455 U.S. 1018
(1982). In Cleveland, after the court ruled that the
state must “share jointly and severally in the cost of
implementation of desegregation,” the costs have been
shared equally by the State and City. Reed v. Rhodes,
500 F. Supp. 404, 424-26 (N.D. Ohio 1980), aff’d, 662
F.2d 1219 (6th Cir. 1981), cert, denied, 455 U.S. 1018
(1982).
An equal division was also the course followed in the
St. Louis case for virtually all intradistrict components.
Although the State bears the cost of transportation for
students crossing district lines and of magnet schools
aimed at further interdistrict transfers, a different rule
applies for programs confined to the St. Louis district
itself. The State and City Board share equally the
costs of intradistrict magnet schools, educational pro
61 Although the KCMSD insists that it had a right to be a
plaintiff in this ease, the decision of the court to realign the dis
trict as a defendant was correct when taken and even more ob
viously correct in retrospect. As a party found to have violated
and still to be violating the rights of its students, the KCMSD has
no absolute right to represent their interests as a plaintiff. Nor
has it pointed to any reason to believe that the plaintiffs have not
done all that the KCMSD could have done in that role. The court
thus correctly determined that the appearance of the KCMSD as a
plaintiff was inappropriate and redolent of potential conflicts.
grams, capital improvements, and the like. See Liddell
VII, 731 F.2d at 1300.62
Although the district court sought to justify its de
parture from these precedents by pointing to past ex
penditures by the KCMSD, that explanation is insuffi
cient on several grounds. First, the order violates the
Eleventh Amendment by imposing an additional future
obligation on the State for not making payments in the
past. That sort of retroactive penalty is plainly barred.
See Edelman v. Jordan, 415 U.S. 651 (1974).63 Second,
even if it were permissible to credit the KCMSD and
penalize the State for past actions, the court has allowed
the KCMSD an extravagant credit for what amounts
to normal operations. Thus, even by its own standard,
the order is inequitable.
The basic principle of the Eleventh Amendment is
that “a suit by private parties seeking to impose a
liability which must be paid from public funds in the
state treasury is barred by the Eleventh Amendment.”
See Edelman v. Jordan, 415 U.S. at 663. Although
there is a well-recognized exception to that doctrine
stemming from Ex Parte Young, 209 U.S. 123 (1908),
it only allows federal courts to enjoin State officials
to future compliance with the Constitution or fed
eral law. See Pennhurst State School and Hospital v.
Halderman, 104 S.Ct. 904 (1984). It does not allow a
federal court to make an exaction based upon past acts
(or failures to act) on the part of the State or its
officials. Edelman v. Jordan, supra-, Ford Motor Com
pany v. Dept, of Treasury, 323 U.S. 459 (1945); Great
Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944). * 68
6 0
63 The sole exception is the “part-time integrative programs.”
68 As a separate matter, we note that the district court also erred
by refusing to dismiss the State itself and the State Board of
Education on Eleventh Amendment grounds. See Alabama V. Pugh,
438 U.S. 781 (1978) (state entitled to dismissal) ; Miener v. Mis
souri, supra, 673 F.2d at 980-81 (State Board of Education en
titled to immunity). This Court should reverse that ruling. Order
of June 1, 1981 at 14; Order of August 12, 1981 at 5-6.
61
That constitutional limitation on federal judicial power
cannot be circumvented by overloading future obligations
as a back-door method of obtaining relief for past ones.
Indeed, the Supreme Court rejected precisely that ap
proach in Edelman v. Jordan, swpra. There, the lower
federal courts had imposed on the State an obligation
to make “equitable restitution” in the future for pay
ments found to have been unlawfully withheld in the past.
Id. at 666. The Court held that the Eleventh Amendment
prohibited such an order, despite the attempt to charac
terize it as a future obligation, saying that it was based
upon a failure to act “at a time when [the State] was
under no court-imposed obligation to conform to a dif
ferent standard.” Id. at 668. The Court concluded that
the order thus was “indistinguishable in many respects
from an award of damages against the State.” Ibid.
It is clear, therefore, that the district court could not
have directly ordered the State to reimburse the KCMSD
for past expenses incurred by the district. Its power to
obtain the same result indirectly is no greater. As the
Court emphasized in Edelman, it is not the form of the
order, but the effect of the order, that is controlling. See
id. at 665 (court must look to “award actually made”
not “form”) . This order simply goes too far.84
Even if the Eleventh Amendment were not a barrier,
however, the order would be objectionable.85 In partieu- 64 65
64 The failure of the district court to observe the limitation
imposed by the Eleventh Amendment is especially surprising in
light of its earlier order denying the KCMSD’s request for partial
summary judgment and a preliminary injunction. There, the Court
rejected the argument that an injunction should issue because,
otherwise, the Eleventh Amendment would bar retroactive recovery
of Plan 6C costs if the State defendants were subsequently found
liable. In its order, the court held that the motion was “plainly an
attempt to circumvent the Eleventh Amendment’s prohibition of
retroactive money awards.” Order of June 1,1981 at 30.
65 Before the KCMSD made its effort to obtain credit for “deseg
regation costs,” it had advised the district court that its spending
under Plan 6C (the only recognized desegregation plan) was in
the neighborhood of $5 million. Motion for a Preliminary Order
62
lar, the KCMSD has received a credit of $4,918,233 for
Lincoln Academy, although the KCMSD has admitted
that the cost of the magnet component is only $247,363.
For the Swinney and Volker schools, the KCMSD was
awarded a credit of $1,450,636, although the cost of the
magnet component is $37,988. The credit for the Hart
man, Cook, and Marlborough schools is $2,085,790, al
though the magnet programs cost $36,349. In each case,
the amount credited represents the total building cost,
including all costs for non-magnet programs, and makes
no reduction whatever for the fact that roughly half of
the total cost is paid by funds from the State and federal
governments. In short, the relation between these sums
and desegregation efforts by the KCMSD is mostly fanci
ful.66
Finally, we note the stated reluctance of the district
court to impose a full share on the KCMSD because it
would burden the “victims” of discrimination. Remedy
Order at 3. In our view, it is a curious doctrine that al
lows a governmental entity to reduce its liability on the
ground that it discriminated against its own citizens.
But, in any event, the bulk of the 1.1 billion dollars of
property within the KCMSD is highly developed commer
cial real estate, not single family homes occupied by stu
dents in the KCMSD. Those taxpayers, who have for
years declined to provide the funding about which the
district court expressed particular concern, do not merit
a judicial reward.
Providing a Partial Remedy Without Hearing at 3 (filed April 4,
1985). The principal cost of Plan 6C, however, is for transportation,
of which the State pays more than 62%. See KCMSD Exh. K78.
Yet, within a few weeks, it had decided that its desegregation costs
were more than $17 million without even including transportation
costs.
66 The other so-called “desegregation expenditures” include items
such as Instructional Assistants (the equivalent of Assistant Prin
cipals) in all elementary schools and Coordinators of Instruction in
Secondary Schools. The KCMSD also included a “Bilingual Edu
cation” program despite the absence of any finding regarding dis
crimination against non-English speaking students.
63
An equal sharing of costs is thus consistent with his
torical practice and more equitable to the parties. That
course should have been followed here.
CONCLUSION
For all of the above reasons, we respectfully request
that the judgment of the district court be affirmed in
part and reversed in part.
Respectfully submitted,
W illiam Webster
A ttorney General
Terry Allen
Deputy A ttorney General
Bruce Farmer
Georganne L. Wheeler
A ssistant Attorneys General
Supreme Court Building
Jefferson City, MO 65102
(314) 751-3321
H. Bartow Farr, III
J oel I. Klein
Richard G. Taranto
Onek, Klein & Farr
2550 M Street, N.W.
W ashington, D.C. 20037
(202) 775-0184
Counsel for State Appellees/
Cross-Appellants
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