Thomie v. Dennard Reply Brief for Defendant-Appellees

    No.

In The

Bviptmt GImtrt nf %  States
October Term, 1988

State of Missouri, et al.,
Petitioners,v. ’

Kalima Jenkins, et al,
Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

li

* Counsel of Record

H. Bartow Farr, III *
David R. Boyd 
Beth Heifetz 

Onek, Klein & Farr 
2550 M Street, N.W., Suite 350 
Washington, D.C. 20037 
(202) 775-0184

William Webster 
Attorney General

Terry Allen
Deputy Attorney General

Michael J. Fields 
Assistant Attorney General 
Broadway Building, 6th Floor 
P.O. Box 899 
Jefferson City, MO 65102 
(314) 751-0531 

Counsel for Petitioners

W il s o n  -  Ep e s  Pr in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  -  W a s h i n g t o n , d .C .  2 0 0 0 1



Page
TABLE OF CONTENTS

Appendix A Opinion of the Court of Appeals for the
Eighth Circuit...........................................  la

Appendix B Judgment of the Court of Appeals for the
Eighth Circuit...........................................  48a

Appendix C Denial of petitions for rehearing en banc 
by the Court of Appeals for the Eighth 
Circuit ............. „.......................................  53a

Appendix D Orders of the District Court for the West­
ern District of Missouri*.......................... 55a

* Charts summarizing costs of programs and capital improve­
ments ordered by the District Court, appended to its Orders of 
November 12, 1986 and September 15, 1987, are not included in this 
Appendix. Instead, ten copies of each chart have been lodged with 
the Clerk of this Court, along with copies of a lengthy order issued 
by the District Court on June 5, 1984.



la

APPENDIX A

UNITED STATES COURT OF APPEALS 
EIGHTH CIRCUIT

Nos. 86-1934, 86-2537, 87-1749, 87-2299, 87-2300, 
87-2588, 87-2565, 87-2589, 87-2659,

88-1073 and 88-1456
Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 

Dawson, by her next friend, Richard Dawson; 
Tufanza A. Byrd, by her next friend, Teresa Byrd; 
Derek A. Dydell, by his next friend, Maurice Dydell ; 
Terrance Cason, by his next friend, A ntoria Cason; 
Jonathan W iggins, by his next friend, Rosemary 
Jacobs Love; Kirk Allan Ward, by his next friend, 
Mary Ward; Robert M. Hall, by his next friend, 
Denise Hall ; Dwayne A. Turrentine, by his next 
friend, Shelia Turrentine; Gregory A. Pugh, by his 
next friend, Barbara Pugh ; Cynthia W inters, by her 
next friend, David W inters; on behalf of themselves 
and all others similarly situated, and A merican Fed­
eration of Teachers, Local 691,

Appellees,

The State of Missouri, Honorable John A shcroft, 
Governor of the State of Missouri, Wendell Bailey, 
Treasurer of the State of Missouri, Missouri State 
Board of Education, Roseann Bentley, Dan Black- 
well, Terry A. Bond, President, Delmar A. Cobble, 
Grover Gamm , Jimmy Robertson, Robert L. Welling, 
Donald E. West, Members of the Missouri State 
Board of Education, Arthur L. Mallory, Commis­
sioner of Education of the State of Missouri,

and Appellants,

School District of Kansas City, Missouri and 
Claude C. Perkins, Superintendent thereof,

Appellees.



2a

Kalima Jenkins, by her friend, Kamau A gyei, et al, 
and A merican Federation of Teachers, Local 691,

Appellees,
v.

The State of Missouri, et al., and 
School District of Kansas City, Missouri, et al,

Appellees,

Icelean Clark ; Bobby A nderton; Eleanor Graham ; 
John C. Howard; Craig Martin ; Gay D. W illiams; 
Kansas City Mantel & T ile Co.; Coulas & Griffin 
Insurance A gency, Inc.; Sharon Dunham ; Lindsay 
K. Kir k ; Linda Frazier; Rick Feierabend; Linda 
Hollenbeck; James Hollenbeck; Susan Horseman; 
and Clifford M. Horseman,

Appellants.

Kalima Jenkins, by her friend, Kamau Agyei, et al., 
and A merican Federation of Teachers, Local 691

v.

The State of Missouri, et al., and 
School District of Kansas City, Missouri, et al.,

Appellees,

Icelean Clark ; Bobby A nderton; Eleanor Graham ; 
John C. Howard; Craig Martin ; Gay D. Williams; 
Kansas City Mantel & T ile Co. ; Coulas & Griffin 
Insurance Agency, Inc.; Sharon Dunham ; Lindsay 
K. Kirk ; Linda Frazier; Rick Feierabend; Linda 
Hollenbeck; James Hollenbeck; Susan Horseman; 
and Clifford M. Horseman, Jackson County, Mis­
souri,

Appellants.



Kalima Jenkins, by her friend, Kamau Agyei, et al,
Appellants,

and

A merican Federation of Teachers, Local 691

3a

v.

The State of Missouri, et al., and 
School District of Kansas City, et al.,

Appellees.

Kalima Jenkins, by her friend, Kamau Agyei, et al.,
Appellees,

and

A merican Federation of Teachers, Local 691

v.

The State of Missouri, et al., and 
School District of Kansas City, Missouri, et al.,

Appellees,

Jackson County, Missouri; W illiam Waris; Bernice 
J, Conley; Gary Panetheire; Beverly 0. Ross; 
Michael Bendergast, their officials,

Appellants.

Kalima Jenkins, by her friend, Kamau Agyei, et al, 
and A merican Federation of Teachers, Local 691

v.
The State of Missouri, et al.,

Appellees,
and

School District of Kansas City, et al,
Appellants.



4a

Submitted March 21, 1988 
Decided Aug. 19, 1988

H. Bartow Farr, III, Washington, D.C. for State of Mo.
Roger Clegg, amicus for U.S.
Mark Bredemeier, Kansas City, Mo., amicus for Icelean 

Clark, et al.
John B. Williams, Kansas City, Mo., for Jackson 

County.
Robert T. Stephen, Topeka, Kan., amicus for State of 

Kan.
Allen Snyder, Washington, D.C., for Kansas City School 

Dist.
Arthur Benson, Washington, D.C., for Kalima Jenkins.
Before LAY, Chief Judge, HEANEY and JOHN R. 

GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The Kansas City School District desegregation case is 

before us again and we now must consider the scope of 
the remedies ordered by the district court,1 specifically 
with respect to magnet schools and capital improvements, 
and the tax increases authorized to generate the Kansas 
City, Missouri School District’s share of the costs of 
these programs,1 2 We affirm the judgment of the district 
court with respect to scope of the remedy as to magnet

1 The Honorable Bussell G. Clark, United States District Judge 
for the Western District of Missouri.

2 This appeal raises the propriety of some thirteen district court 
orders: those of June 16 and November 12, 1986, April 29, July 6, 
August 19, August 24, September 15, October 27, and November 13, 
16, and 23, 1987, January 7, 1988, and March 1, 1988.



5a

schools and capital improvements with some slight modi­
fications. While we approve the order and conclusions of 
the district court with respect to the property tax, we 
modify its future operation to more closely comport with 
limitations upon our judicial authority, and we reverse 
that part of the district court’s order establishing an in­
come tax surcharge.

In this case the district court dealt with undisputed 
constitutional violations and its series of orders were nec­
essary to remedy the lingering results of these violations, 
since local and state authorities had defaulted in their 
duty to correct them. See Swann v. Charlotte-Mecklen- 
burg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275- 
76, 28 L.Ed.2d 554 (1971) ; Brown v. Bd. of Educ., 349 
U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown 
II).

The Supreme Court has provided broad guidelines for 
the district courts in such cases. In Milliken v. Bradley, 
433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) {Mil­
liken II),  the Court set forth a three part analysis of 
the district court’s remedial power:

In the first place, like other equitable remedies, the 
nature of the desegregation remedy is to be deter­
mined by the nature and scope of the constitutional 
violation. The remedy must therefore be related to 
‘the co'ndition alleged to offend the Constitution. . . .’ 
Second, the decree must indeed be remedial in na­
ture, that is, it must be designed as nearly as pos­
sible ‘to restore the victims of discriminatory conduct 
to the position they would have occupied in the ab­
sence of such conduct.’ Third, the federal courts in 
devising a remedy must take into account the inter­
ests of state and local authorities in managing their 
own affairs, consistent with the Constitution.

433 U.S. at 280-81, 97 S.Ct. at 2757 (citations omitted).



6a

Our standard of review of the district court’s actions 
within these limiting legal principles is restricted: “ [T] he 
choice of remedies to redress racial discrimination is ‘a 
balancing process left, within appropriate constitutional 
or statutory limits, to the sound discretion of the trial 
court.’ ”  United States v. Paradise, 480 U.S. 149, 107 
S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Fulli- 
love v. Klutznick, 448 U.S. 508, 100 S.Ct. 2758, 2790, 65 
L.Ed.2d 902 (1980) (Powell, J., concurring)); United 
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1236 (2d
Cir.1987), cert, denied, ------  U.S. -------, 108 S.Ct. 2821,
100 L.Ed.2d 922 (1988). We have also recognized the im­
portance of the district court’s factual findings, which may 
not be disturbed unless clearly erroneous. Fed.R.Civ.P. 
52 (a ); Jenkins v. Missouri, 807 F.2d 657, 666-67 (8th
Cir.1986) (en banc) (Jenkins I ), cert, denied,------ U.S.
— — , 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).

Bearing in mind these limitations on the district court’s 
remedial power and on our scope of review, we turn to 
the constitutional violations identified by the district court.

The State has admitted and the district court judicially 
noticed that Missouri mandated segregated schools for 
black and white children before 1954. Jenkins v. Mis­
souri, 593 F.Supp. 1485, 1490 (W.D.Mo. Sept. 17, 1984). 
KCMSD established and maintained segregated facilities 
with segregated staffs. There are still vestiges of the dual 
school system lingering in KCMSD, and KCMSD and the 
State have not met their obligations to disestablish that 
system. 593 F.Supp. at 1504.

The district court further found that “ the inferior edu­
cation indigenous of the state-compelled dual school sys­
tem has lingering effects in the Kansas City, Missouri 
School District.”  593 F.Supp. at 1492. “ [Witnesses 
confirmed the conclusion reached by the Supreme Court 
in Brown 1 [Brown v. Bd. of Educ., 347 U.S. 483, 74 
S.Ct. 686, 98 L.Ed. 873 (1954)] that forced segregation



7a

ruins attitudes and is inherently unequal * * * . The 
general attitude of inferiority among blacks produces 
low achievement which ultimately limits employment op­
portunities and causes poverty.” 593 F.Supp. at 1492 
(citations to the record omitted). “Segregation has 
caused a system wide reduction in student achievement in 
the schools of the KCMSD.” Jenkins v. Missouri, 639 
F.Supp. 19, 24 (W.D.Mo.1985) (citations to record
omitted) (emphasis in original).

The district court found that segregation in KCMSD 
caused the departure of the whites in the system to private 
schools and to the suburbs. Order of Aug. 25, 1986, slip, 
op. at 1-2. See also Order of November 12, 1986, slip op. 
at 3. During the years between Brown I and trial, the 
enrollment of KCMSD shifted from predominantly white 
to predominantly black. In the 1958-59 school year, blacks 
constituted 22.5% of KCMSD enrollment, but by 1983-84 
enrollment was 67.7% black and white enrollment had 
dropped 80%. 593 F.Supp. at 1495. “ [A]s of 1974, 20 
years after Brown I, 39 schools were more than 90% 
black * * *. Eighty percent of all blacks in the District 
attended schools that were 90% black * * Id. at 1492- 
93. KCMSD later reduced the number of over-90 %- 
black-enrollment-schools, but the district court found in 
1984 that KCMSD had still not completely dismantled 
the dual system. Id.

In discussing KCMSD’s school buildings the district 
court made the stark finding that “ [KCMSD’s] physical 
facilities have literally rotted.” Jenkins v. Missouri, 672 
F.Supp. 400, 411 (W.D.Mo.1987). Specifically, the court 
found that “ the overall condition of the KCMSD school 
buildings, particularly the interiors, is generally depress­
ing and thus adversely affects the learning environment 
and continues to discourage parents who might otherwise 
enroll their children in the KCMSD.” Id. at 403 (cita­
tions to record omitted). The district court found that 
there were “numerous health and safety hazards, educa­



8a

tional environment hazards, functional impairments, and 
appearance impairments” in the KCMSD’s facilities, and 
catalogued examples of these problems and the evidence 
of them before the court. Id. at 403.

The district court made findings that both KCMSD and 
the State had caused the decay of the KCMSD’s buildings. 
The court specifically found that “ even if the State * * * 
did not directly cause the deterioration of the school fa­
cilities, it certainly contributed to, if not precipitated, an 
atmosphere which prevented the KCMSD from raising the 
necessary funds to maintain its schools.”  Order of No­
vember 12, 1986, slip op. at 4; accord, 672 F.Supp. at 403.

In response to these findings of vestiges of unconstitu­
tional segregation, the court ordered remedial programs 
involving magnet schools and capital improvements.

The magnet plan provided that by 1991-92 every high 
school and middle school in the KCMSD and about half 
the elementary schools would become magnet schools with 
one or more distinctive themes, such as foreign languages, 
performing arts, and math and science. Order of Nov. 
12, 1986, slip op. at 2. The elementary magnets were to 
be located at selected sites throughout KCMSD, with at 
least one magnet in each area of the KCMSD.3

The district court also ordered a capital improvements 
program for KCMSD totaling some $260 million.4 The

3 The principal orders instituting the magnet schools plan were 
that of June 16, 1986, calling for expenditure of $12,972,727, of 
which the state was liable for $6,665,634, slip op. at 19; and No­
vember 12, 1986, calling for expenditure of $142,736,025, of which 
the State was solely liable for $89,877,724 and jointly and severally 
liable with KCMSD for the remainder. Slip op. at 6.

4 The court ordered expenditure of $12,877,330 for capital im­
provements in its order of June 16, 1986, all of which was to be paid 
by the State, slip op. at 15; $52,858,301 in its order of November 12, 
1986, for which the State and KCMSD were jointly and severally 
liable, slip op. at 5; $7,376,135 in its order of April 29, 1987, for



9a

principal capital improvement plan called for the closing 
of some eighteen KCMSD school facilities, construction 
of seventeen new facilities and renovation of others. 672 
F.Supp. at 405. The portion of the plan the court ordered 
to be funded is scheduled for completion by the fall of 
1990. Id.

In considering its final capital improvement order the 
district court gave specific attention both to KCMSD’s 
proposal and the State’s alternate proposal calling for 
approximately $61 million in renovations. Id. at 403-05. 
It rejected the State’s recommendations as an inadequate 
“patch and repair” approach which would not serve the 
remedial goals established by the court, id. at 404, and 
concluded that the limited renovation the State proposed 
would result in the schools continuing to be “unattractive 
and substandard, and would certainly serve as a deterrent 
to parents considering enrolling their children in KCMSD 
schools.” Id. at 405.

To enable KCMSD to fund its share of the costs of the 
desegregation plan, the district court imposed a 1.5 per­
cent surcharge on income of residents and non-residents 
of KCMSD subject to the Missouri State income tax “ for 
work done, services rendered and business or other activi­
ties conducted within the KCMSD.” Jenkins, 672 F.Supp. 
at 412. The court also ordered the district’s property tax 
levy to be increased to $4 per $100 assessed valuation 
through the 1991-92 fiscal year, and authorized KCMSD 
to issue $150,000,000 in capital improvement bonds, to be 
retired within twenty years. Id. at 413.

which the State and KCMSD were jointly and severally liable, slip 
op. at 3; $353,061 in its order of July 7, 1987, slip op. at 12; and 
$187,450,334 in its order of September 15, 1987, for which the 
State and KCMSD were jointly and severally liable, with equal 
contribution, 672 F.Supp. at 408. Capital improvements ordered 
earlier have already been affirmed. Jenkins I, 807 F.2d at 685.



10a

I.

The district court’s remedial orders were based on the 
elementary principle that the victims of unconstitutional 
segregation must be made whole, and that to make them 
whole it will be necessary to improve their educational 
opportunities and reduce their racial isolation. The 
foundation of the plans adopted was the idea that im­
proving the KCMSD as a system would at the same time 
compensate the blacks for the education they had been 
denied and attract whites from within and without the 
KCMSD to formely black schools. See Order of June 16, 
1986, slip op. at 17. The long term goal of the district 
court’s effort was therefore:

to make available to all KCMSD students educa­
tional opportunities equal to or greater than those 
presently available in the average Kansas City, Mis­
souri metropolitan suburban school district, In 
achieving this goal the victims of unconstitutional 
segregation will be restored to the position they would 
have occupied absent such conduct, while establishing 
an environment designed to maintain and attract non­
minority enrollment.

Id. (emphasis added) ; accord, 639 F.Supp. at 54.
In later orders the district court explained how the 

magnet school and capital improvement plans would bring 
about these ultimate objectives. The court found “ that 
the proposed magnet plan would generate voluntary stu­
dent transfers resulting in greater desegregation in the 
district schools.”  Order of November 12, 1986, slip op. at 
3. The court specifically stated:

[T]he plan would provide both minority and non­
minority district students with many incentives to 
leave their neighborhoods and enroll in the magnet 
schools offering the distinctive themes of interest to 
them. Most importantly, the Court believes that the 
proposed magnet plan is so attractive that it would



11a

draw non-minority students from the private schools 
who have abandoned or avoided the KCMSD, and 
draw in additional non-minority students from the 
suburbs.

Id.

The district court thus articulated three remedial goals 
needed to restore the victims to the position they would 
have occupied without the State and KCMSD’s constitu­
tional violations: first, to improve the educational lot of 
the victims of unconstitutional segregation; second, to 
regain some portion of the white students who fled the 
district and retain those who are still there; and third, 
to redistribute the students within the KCMSD to achieve 
the maximum desegregation possible.

The State argues that the goal of attracting non­
minority students from private schools and suburban 
schools is not warranted by the nature of the constitu­
tional violation unless KCMSD and the State committed 
a specific violation causing students to withdraw from 
the system. The State argues that under Milliken v. 
Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 
(1974) (Milliken I ), a court remedying an intradistrict 
violation must simply strive to distribute students within 
the district evenly by race. But this court has held in 
Jenkins I, 807 F.2d at 683-84, and Liddell v. Missouri, 
731 F.2d 1294, 1302-08 (8th Cir.) (en banc) (Liddell 
VII), cert, denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 
30 (1984), that voluntary interdistrict remedies may be 
used to make meaningful integration possible in a pre­
dominantly minority district.

These holdings are bolstered by the district court’s 
findings that the preponderance of black students in the 
district was due to the State and KCMSD’s constitutional 
violations, which caused white flight. The district court 
found that the existence of segregated schools led to white 
flight from the KCMSD to suburban districts and to



12a

private schools.5 E.g., Order of Aug. 25, 1986, slip op. at 
1-2. See also Order of November 12, 1986, slip op. at 3. 
This finding is implicitly recognized in the court’s re­
medial orders with the express goal of attracting back the 
students who had left KCMSD schools.

These findings that the unconstitutional segregation 
caused the KCMSD to lose certain students form the 
basis for a remedy designed to attract such students back. 
Without regaining those students who have already fled, 
the desegregation effort in this case will take place in a 
school district with a preponderance (roughly 70%) of 
black students, despite its majority white population. 
Under such circumstances, the State’s position would 
effectively defeat any possibility of meaningful integra­
tion.

The State argues that any consideration of white flight 
to the suburban districts runs contrary to our earlier 
holdings and to earlier findings of the district court.

5 We asked the parties to provide agreed upon statistics for the 
number of children residing in the KCMSD who attend private 
schools, but they were unable to do so. Nevertheless, we are able 
to take notice of census figures on this subject for the City of 
Kansas City, though we realize its boundaries are not coterminous 
with those of the KCMSD. Census figures for 1980 show that about 
17 percent of the school age children in Kansas City, Missouri are in 
private schools. U.S. Dept, of Commerce, Bureau of the Census, 
1980 Census of Population, General Social and Economic Charac­
teristics, Missouri 27-12 (1983). They further indicate that about 
71 percent of the total Kansas City, Missouri population is white, 
U.S. Dept, of Commerce, Bureau of the Census, 1980 Census of 
Population and Housing, Advance Estimates of Social, Economic 
and Housing Characteristics, Missouri 27-61 (1983), and that 
about 60 percent (56,486) of the children ages 5-18 in Kansas 
City are white and about 37 percent (34,874) are black, see U.S. 
Dept, of Commerce, Bureau of the Census, 1980 Census of Popula­
tion, General Population Characteristics, Missouri 27-54 (1982). 
The record in this case indicates that the KCMSD enrollment was 
approximately 68.3 percent black in 1985. See Order of June 14, 
1985, slip op. at 31.



13a

These arguments simply miss the mark. Jenkins I dealt 
with white flight in the context of a claim for interdistrict 
relief. We first note that three judges of this court would 
have found an interdistrict violation, 807 F.2d at 696 
(Lay, C.J., dissenting), and that the four judges that 
concluded there was not such a violation concluded that 
KCMSD’s segregation had no substantial segregative effect 
in the SSD’s. See id. at 680-81. This finding concerning 
segregation in the SSD’s is not inconsistent with a further 
finding that KCMSD’s segregation caused it to lose sig­
nificant numbers of its white students and that regaining 
those students is a necessary part of restoring the victims 
to the condition they would have enjoyed had there been 
no constitutional violation.

The State further argues that it cannot be responsible 
for the voluntary departure of white students from the 
school district and that white flight “ is usually a reaction 
to just the sort of change that federal courts seek to im­
plement.” State’s Reply Brief at 9. This argument does 
not necessarily contradict the district court’s findings that 
state-imposed segregation caused white flight and that the 
failure to eliminate the vestiges of discrimination con­
tributed to the decline in the educational quality and 
physical plant of the KCMSD school system. In any event, 
such court-ordered integration would not have been neces­
sary had the State not unconstitutionally mandated a dual 
school system and then failed to eliminate the vestiges of 
segregation.

The State also attacks the goal of improving the educa­
tion of all KCMSD students, arguing that this remedial 
goal exceeds the scope of the violation, because it seeks 
to benefit all KCMSD students, not just those minority 
students who have suffered from the effects of the consti­
tutional violations. Careful reading of the district court’s 
order shows that the court did not view improving educa­
tion for all KCMSD students as an end in itself, but as 
a means to serve the goals of restoring to the victims the



14a

education they have been denied and of attracting and 
maintaining whites in the KCMSD. See Order of June 16, 
1986, slip op. at 17 (language quoted at p. 11, supra) ; 
639 F.Supp. at 54. We cannot say that the district court 
abused its discretion in using system-wide educational 
enhancements to accomplish its legitimate desegregative 
objectives. Moreover, this court has approved remedial 
programs for the benefit of all students in a district 
where the children have been deprived of the right to a 
desegregated education. See Little Rock School District 
v. Pulaski County Special School District No. 1, 839 
F.2d 1296, 1308 (8th Cir.1988).

The State next argues that the findings of the district 
court do not identify statistics for student enrollment that 
would indicate that KCMSD had become a unitary school 
district. The State argues that without such findings, 
there can be no objective evaluation of whether the plans 
ordered are well-crafted to achieve unitariness.

The State’s argument would have more force if we 
dealt only with a question of student assignment. We have 
before us a system-wide desegregation remedy involv­
ing magnet schools and capital improvements that is 
planned for completion over a five year period. One of the 
most complex questions in desegregation litigation is that 
of when a district has become unitary. We decline to 
give an advisory opinion on that issue, but leave it for 
consideration when the programs planned through the 
1991-92 year have been implemented.

Next, the State argues that the magnet school plan 
adopted by the district court does not serve the court’s 
avowed goals. These arguments attack the district court’s 
factual findings and therefore must be reviewed under the 
clearly erroneous standard.

First, the State contends that the extent of magnet 
schools ordered exceeds the amount necessary to achieve



15a

uniform distribution of minority and majority race stu­
dents at schools within the district, or even disserves the 
goal of uniform distribution.

The State argues that the plan simply includes too 
many magnet schools— that it is extravagant. The dis­
trict court specifically addressed the State’s concern over 
making magnet schools of all the senior high and middle 
schools and half the elementary schools. It observed that 
in the ordinary magnet plan, because of limitations on 
the number of students who may be enrolled, “ for each 
non-minority student who enrolls in the magnet school a 
minority student, who has been the victim of past dis­
crimination, is denied admittance.” Order of Nov. 
12, 1986, slip op. at 3. It found that “ [wjhile these 
plans may achieve a better racial mix in those few 
schools, the victims of racial segregation are denied the 
educational opportunity available to only those students 
enrolled in the few magnet schools. This results in a 
school system of two-tiers as it relates to the quality of 
education. This inequity is avoided by the KCMSD mag­
net school plan.” Id. The State in its filings with the 
district court cautioned about creation of a two-tiered 
system of schools in which “ existing schools are, or are 
perceived to be, markedly inferior.” Response of State 
to KCMSD motion for approval of 1986-87 magnet pro­
grams, p. 12. The State’s expert witness, Dr. Doyle, 
echoed this concern and suggested that one way to avoid 
the problem was to convert an entire school system to 
magnet schools. Tr. 376, 381-82, June 5, 1986. Another 
State’s witness, Dr. Cooper, also agreed on cross- 
examination that the comprehensiveness of the plan was 
a step in the right direction. Tr. 890, Sept. 18, 1986. 
The district court’s finding regarding the need for the 
number of magnet schools authorized by the plan is 
amply supported by the State’s own evidence.

The State also argues that by locating magnet schools 
within white neighborhoods as well as black neighbor­



16a

hoods, the plan will defeat integration by allowing chil­
dren to attend magnet schools within their own neighbor­
hoods. The plan was fashioned to prevent such a result. 
The plan offers different themes in numerous elementary 
schools in the district, some located close to suburban 
areas and others in heavily minority residential districts. 
The various schools should therefore draw students from 
all parts of the district and increase the desegregative 
opportunity. The plan builds upon this by providing mid­
dle and high school magnet programs, giving those attend­
ing elementary school magnets a strong incentive to stay 
in the district throughout their school years. The State’s 
expert, Dr. Doyle, agreed that this feeder pattern would 
be desegregative. Tr. 808, Sept. 18, 1986.

The State also attacks the district court’s findings that 
the magnet plan will provide schools that are attractive 
to whites not currently attending KCMSD schools. Order 
of Nov. 12, 1986, slip op. at 3. However, the State has 
pointed to no evidence in the record persuading us that 
this finding is clearly erroneous.

We conclude that the district court’s finding that the 
magnet plan was properly designed to achieve voluntary 
desegregation is not clearly erroneous.

II.
The State attacks the scope of the capital improve­

ments plan and argues that the plan was not fashioned 
to further the court’s remedial goals.8

The district court found that the capital improvements 
program “ is a proper remedy through which to remove 
the vestiges of racial segregation, and is needed to attract 
non-minority students back to the KCMSD.” Order of 
November 12, 1986, slip op. at 4. Moreover, because 6

6 The State also attacks the goals of the capital improvements 
plan. Since the capital improvements plan serves the same remedial 
goals as the magnet school plan, our magnet school discussion 
answers the State’s arguments.



17a

unconstitutional segregation was in part responsible for 
the decay of KCMSD’s buildings, capital improvements 
were necessary to restore the victims to their rightful 
place. Id,

The State argues that the district court strayed from 
the dictates of Milliken II by failing to show that the 
State’s constitutional violations caused the condition 
which the capital improvement programs were meant to 
remedy. It argues that the decay in KCMSD’s schools 
occurred because KCMSD was unable to raise funds for 
maintenance from its taxpayers, and the district court 
made no findings that the voting by KCMSD voters was 
discriminatory, or that the State is legally responsible 
for the voting patterns. Thus, according to the State, the 
district court required it to remedy problems of decay 
that were not caused by the State’s constitutional viola­
tions.

There are ample findings supporting the district court’s 
conclusion that the State is partly to blame for the decay 
of KCMSD’s facilities. The district court found that the 
State by its constitutional violations and failure to re­
move the vestiges of the dual school system “ contributed 
to, if not precipitated, an atmosphere which prevented the 
KCMSD from raising the necessary funds to maintain its 
schools.”  Order of November 12, 1986, slip op. at 4. 
It had earlier found that such lack of maintenance was 
“ further evidence of the detrimental effects that segre­
gation has had on this school district’s ability to raise 
adequate resources.” 639 F.Supp. at 41.

The State argues that the lack of funding of KCMSD 
is simply independent action of the voters of KCMSD for 
which the State may not be liable. But there is support 
in the record for the court’s findings that segregation 
and the failure to remove the vestiges of the dual school 
system contributed to the atmosphere preventing KCMSD 
from raising necessary funds. The findings of fact dem­



18a

onstrate a spiraling effect of white children leaving 
KCMSD schools and KCMSD’s white constituency with­
drawing its financial support from the system. This 
process eventually caused the decay of KCMSD’s school 
buildings, which in turn fed the cycle.'7

Further, this argument advanced by the State attacks 
an aspect of the court’s findings that was merely an alter­
native basis for its conclusion. The district court also 
found:

The improvement of school facilities is an impor­
tant factor in the overall success of this desegrega­
tion plan. Specifically, a school facility which pre­
sents safety and health hazards to its students and 
faculty serves both as an obstacle to education as 
well as to maintaining and attracting non-minority 
enrollment. Further, conditions which impede the 
creation of a good learning climate, such as heating 
deficiencies and leaking roofs, reduce the effective­
ness of the quality education components contained 
in this plan.

639 F.Supp. at 40. Even absent the findings that the 
State contributed to causing the decay, the capital im­
provements would still be required both to improve the 
education available to the victims of segregation as well 
as to attract whites to the schools.

In Jenkins /, we held that the district court’s findings 
were sufficient to support its conclusion that capital im­
provements are necessary for successful desegregation.

7 The Jenkins class argues that there was systematic refusal by 
taxpayers to vote levy increases or bond issues “ dating from pre­
cisely the moment when the school district became majority black.” 
Jenkins Brief at 20. They further argue that the black wards tended 
to give highest voter percentages in favor of revenue measures. 
The record tends to support these arguments, but as the district 
court did not base its findings of fact and conclusions of liability 
on this theory, we need say no more.



19a

807 F.2d at 685. We specifically recognized the findings 
that “ conditions which impede the creation of a good 
learning climate * * * reduce the effectiveness of the 
quality education components contained in this plan.” 
Id. (quoting Order of June 14, 1985 at 34).

Similarly, in Liddell VII, 731 F.2d at 1318-19, we af­
firmed an order requiring the State to pay one-half of 
the cost of a capital improvements program necessary to 
restore city facilities to a constitutionally acceptable level. 
The State filed a petition for certiorari directed to this 
issue, which was denied.8 See Petition for Certiorari at 
24-28, Missouri v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 
83 L.Ed.2d 30 (1984).

The State further argues that the facility improve­
ments are more than is necessary to carry out the educa­
tional components of the desegregation plan. However, 
the district court found that the overall condition of the 
school buildings “ adversely affects the learning environ­
ment and continues to discourage parents who might 
otherwise enroll their children in the KCMSD.” 672 F. 
Supp. at 403. The district court catalogued the poor 
conditions prevailing in KCMSD’s school buildings. Id.; 
639 F.Supp. at 39-40. Certainly defective lighting, in­
adequate heating, stench from toilet facilities, and other 
conditions affecting the appearance of the schools and 
comfort of the students affect not only the quality of 
education that may be obtained there, but also whether 
parents will withdraw their children from such schools 
or reenroll them there.

Finally, the State attacks certain aspects of the cap­
ital improvements plan as extravagent. We have exam­

8 We recognize that the Supreme Court has on a number of 
occasions commented on the lack of precedential value of such 
denials. See generally L. Stern, E. Gressman & S. Shapiro, Supreme 
Court Practice (6th ed. 1987) § 5.7. On the other hand, we have 
earlier commented that such denials “cannot be overlooked.”  Wells 
v. Meyer’s Bakery, 561 F.2d 1268, 1275 (8th Cir. 1977).



20a

ined the many instances the State points out and conclude 
there was substantial testimony demonstrating the justi­
fication for these portions of the plan. We mention only 
one example of the State’s objections. The State objected 
to a 25 acre farm and 25 acre wildland area that had 
been ordered for the magnet schools. State’s Brief at 56. 
However, a similar twenty-three acre museum and lab­
oratory in a science program at Shawnee Mission South 
High School in Shawnee Mission, Kansas (which lies 
approximately a mile to the west of the southern portion 
of KCMSD) was recently commended by Secretary of 
Education William J. Bennett. James Madison High 
School, A Curriculum for American Students 34 (1987). 
The findings of the district court demonstrate that the 
capital improvements program is essential to assure the 
quality of education and future success of the magnet 
schools necessary to remedy the constitutional violations 
in KCMSD.

From materials that have been filed with us concern­
ing the financial needs of the KCMSD, it is apparent 
that the capital improvements plan that we affirm today 
does not cover all expenditures that may be necessary 
between now and the 1991-92 school year, specifically 
some $16 million for land acquisition and asbestos re­
moval costs. We are informed by the post-argument fil­
ings that KCMSD’s bond issue has been sold, and that 
the net proceeds are in the: hands of the district. Pre­
sumably, these funds will produce substantial interest 
income before all will be expended in the renovation and 
construction program. The State is entitled to a deter­
mination of the extent of its liability through the 1991- 
92 fiscal year, and we conclude that the approximately 
$150,000,000 which is the State’s share of capital im­
provements should be the limit of its contribution for 
capital expenditures for that period. When the second 
phase of the capital improvements program is to be con­
sidered, we hope that the parties will be able to agree



21a

upon a further plan. If they are not, the district court 
will then be in position to evaluate the success of the 
program that we have affirmed today and determine what 
further steps are necessary to remedy the constitutional 
violations and what further contributions from the State 
may be required. We observe that the present estimate 
of the phase two capital improvement program is in the 
$200 to $300 million range. Any issues regarding this 
program will simply have to be resolved in the future, as 
more information is developed.

III.
The State also argues that the capital improvements 

ordered by the district court violate the eleventh amend­
ment, “by requiring payment measured by past activities.” 
In the State’s view, the orders measure liability and re­
quire payments on the basis of actions taken “ at a time 
when [the State] was under no court-imposed obligation 
to conform to a different standard.” Edelman v. Jordan, 
415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 
(1974). The State contends that the capital improve­
ments orders are therefore “ little different, in practical 
terms, from a requirement that the State pay over to the 
KCMSD all the funds that the district would have raised 
from successful [tax or bond] proposals,” State’s Brief 
at 50, or “ an order to pay the KCMSD for the lost value 
of the deteriorated buildings.”  State’s Brief at 26. Rely­
ing principally on Edelman, 415 U.S. at 668, 94 S.Ct, at 
1358; Papasan v. Attain, 478 U.S. 265, 106 S.Ct. 2932, 
2942, 92 L.Ed.2d 209 (1986) ; and Miener v. Missouri, 
673 F.2d 969, 982 (8th Cir.), cert, denied, 459 U.S. 909, 
103 S.Ct. 215, 74 L.Ed.2d 171 (1982), the State con­
cludes that the capital improvements orders are an award 
of retroactive relief, barred by the eleventh amendment.

This argument is without merit. The orders for capital 
improvements were made necessary in large part by the 
State’s past actions, e.g., Jenkins, 672 F.Supp. at 403,



22a

and the extent of relief ordered was “ determined by the 
nature and scope of the constitutional violation [s] 
Milliken II, 433 U.S. at 280, 97 S.Ct. at 2757, including 
the State’s past violations, e.g., Jenkins, 672 F.Supp. at 
403. The orders nonetheless operate prospectively “ to 
wipe out continuing conditions of inequality” produced 
by Kansas City’s dual school system and are therefore 
valid under the eleventh amendment. Milliken II, 433
U.S. at 290, 97 S.Ct. at 2762. Specifically, the capital 
improvements orders require the State to participate with 
the school district in funding planned renovation and 
construction projects which the district court determined, 
in findings we uphold today, to be necessary to remedy 
the continuing effects of state-imposed segregation in 
Kansas City. See id. at 289-90, 97 S.Ct. at 2761-62; 
Swann, 402 U.S. at 15, 91 S.Ct, at 1275-76. The relief 
granted to the school children in the form of improved 
physical facilities is wholly prospective in nature, requir­
ing “payment of state funds * * * as a necessary conse­
quence of compliance in the future with a substantive 
federal question determination * * Edelman, 415 U.S. 
at 668, 94 S.Ct. at 1358, quoted in Milliken II, 433 U.S. 
at 289, 97 S.Ct. at 2762. The relief is readily distin­
guishable from the award of retroactive payments for 
withheld disability benefits in Edelman, 415 U.S. at 663- 
64, 94 S.Ct. at 1355-56, the claim for restoration of a 
depleted trust corpus and lost income in Papasan, 106 
S.Ct. at 2942, or the claim for compensatory educational 
services under the Education of the Handicapped Act, 
20 U.S.C. §§ 1401-1485 (1982), in Miener, 673 F.2d at 
982. The eleventh amendment does not bar the capital 
improvements ordered by the district court.

An argument essentially identical to the State’s was 
rejected by the Supreme Court in Milliken II, 433 U.S. 
at 288-90, 97 S.Ct. at 2761-62. The State attempts to 
distinguish Milliken II by arguing that the program in­
volved there was “ narrowly tailored to the needs of par­



23a

ticular students and necessary to the successful movement 
of students from minority schools to desegregated 
schools,” whereas the programs involved here “ simply 
make up for all the cumulative effects of past neglect.” 
This argument is in essence a restatement of the State’s 
position that the capital improvements ordered by the dis­
trict court are not necessary to achieve desegregation—  
a position which we have already rejected on the basis 
of the district court’s findings.

IV.
The State also argues that the district court erred in 

its allocation of costs between KCMSD and the State. 
In Jenkins I, 807 F.2d at 684-86, we determined that the 
district court order apportioning costs should be modified 
to reflect our decision in Liddell VII that funding be 
equally divided between the State and the school district, 
because the order contained no findings regarding the 
relative responsibility of the State and KCMSD for these 
costs, 807 F.2d at 684, 685. The State argues that this 
determination of 50-50 responsibility should continue to 
govern.

Following our earlier decision, the district court gave 
further consideration to the allocation of costs, particu­
larly with reference to magnet schools. The district court 
recognized that the State had created the dual school 
system, and that KCMSD was required to implement this 
system under Missouri law. It observed that both the 
State and KCMSD had failed to eliminate the vestiges of 
this system. The court reasoned that “ the person who 
starts the fire has more responsibility for the damages 
caused than the person who fails to put it out.” Order 
of July 6, 1987, slip op. at 13. The court observed that 
the Missouri Supreme Court had adopted the Uniform 
Comparative Fault Act in Gustafson v. Benda, 661 S.W. 
2d 11 (Mo.1983) (en banc). Order of July 6, 1987, 
slip op. at 14. The district court also noted KCMSD’s



24a

inability to fund more than twenty-five percent of the 
costs of the entire remedial plan. Id. at 14. The court 
therefore concluded that the State was responsible for 
seventy-five percent of the costs of desegregation, and 
KCMSD for twenty-five percent.9

Allocation of costs is part of the remedial power of the 
district court. United States v. Bd. of School Commis­
sioners, 677 F.2d 1185, 1186 (7th Cir.) cert, denied, 459
U.S. 1086, 103 S.Ct. 568, 74 L.Ed.2d 931 (1982). Our 
earlier order did not foreclose the district court’s further 
consideration of the issue, and we are satisfied that the 
district court did not abuse its discretion in making this 
allocation, nor was its factual determination as to per­
centages. of fault clearly erroneous. We have in other 
desegregation cases approved varying percentages of con­
tribution, including allocating to the state 100 percent of 
the costs in certain portions of the plans. Little Rock 
School Dist. v. Pulaski County Special School Dist. No. 1, 
778 F.2d 404, 435-36 (8th Cir.1985) ; Little Rock School 
Dist., 839 F.2d at 1306-09. Other courts have similarly 
placed more than 50 percent of the cost on the State. 
See, e.g., Bradley v. Milliken, 540 F.2d 229, 246 (6th 
Cir.1976), aff’d, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 
745 (1977) (seventy-five percent of the cost of purchas­
ing school buses placed on state). The district court was 
aware of the serious limitations on KCMSD’s capability 
of raising revenue. Its observation that the State has 
adopted a comparative fault system had substantial rele­
vance in its determination. We affirm the allocation of 
costs based upon the further findings of the district 
court and conclude that our earlier decision en banc did 
not bar such determinations.

9 With respect to the capital improvement plan the district court 
found that because the improvements have a useful life of 30 to 50 
years, the costs should be shared evenly. 672 F.Supp. at 408.



25a

V.
The orders of the district court raising the KCMSD 

property tax levy and imposing a state income tax sur­
charge are targets of the State’s appeal and an appeal 
filed by Jackson County, Missouri. The county’s appeal 
is directed particularly to the temporary restraining or­
der and preliminary injunction requiring its officials to 
collect the property tax levy, and the permanent injunc­
tion entered on January 7, 1988. We have also accepted 
numerous amicus briefs on this issue.10

In addressing the funding of KCMSD’s share of the 
remedy, the district court found “ that the KCMSD is un­
able with its present resources to raise revenues to fund 
its share of the costs assessed under the desegregation 
orders.” Jenkins, 672 F.Supp. at 411. The court also 
found that “ [t]he KCMSD has exhausted all available 
means of raising additional revenue, including present­
ing a bond issue in 1987 and tax levy increase proposals 
to the voters in four separate elections in 1986 and 1987.” 
Id. The court noted that it had encouraged the Missouri 
General Assembly to consider legislation affording the 
district more versatility to raise funds to support a de­
segregation program, and found that such legislation had 
been introduced, was received unfavorably, and ulti­

10 Briefs opposing- the taxes were filed by the United States; a 
group of Kansas City area taxpayers who are paying the newly 
ordered taxes; the State of Kansas, whose argument was directed 
only to the income tax surcharge; the Washington Legal Founda­
tion, Senator John Danforth, and two members of the Missouri 
House of Representatives; 56 rural Missouri school districts; the 
Missouri Association of Rural Educators, whose argument attacked 
primarily the scope of the relief ordered and the amount of state 
funds diverted to the district by the court’s order; and the Na­
tional Association of Independent Insurers, which objected only to 
the income tax surcharge imposed on insurance premiums received 
from business conducted in the KCMSD area. Briefs supporting 
the taxes were filed by the Lawyers Committee for Civil Rights, 
the NAACP, and the Civic Council of Greater Kansas City.



26a

mately failed. Id. The court concluded that it had ex­
plored all the alternatives set forth in Liddell VII, 731 
F.2d at 1319-23, and that it was “ left with no choice but 
to exercise its broad equitable powers and enter a judg­
ment that will enable the KCMSD to raise its share of 
the cost of the plan * * Jenkins, 672 F.Supp. at 411.

The district court ordered the property tax levy to be 
increased to $4 per $100 assessed valuation through the 
1991-92 fiscal year, and authorized KCMSD to issue 
$150,000,000 in capital improvement bonds, to be retired 
within twenty years. Id. at 413.11 In its October 27, 1987 
order, it earmarked the proceeds of the property tax in­
crease for retirement of capital improvements bonds, with 
any excess to be used to fund other desegregation costs. 
At the end of the 1991-92 fiscal year, only that portion 
of the increase necessary to maintain payments on the 
bonds was to remain in effect until either the bonds were 
retired or other provisions were adopted to insure retire­
ment, Order of October 27, 1987, slip op. at 2.

The district court also imposed a 1.5 percent surcharge 
on income of residents and non-residents of KCMSD sub­
ject to the Missouri State Income Tax “ for work done, 
services rendered and business or other activities con­
ducted within the KCMSD.” Jenkins, 672 F.Supp. at 412. 
The State Department of Revenue was required to collect 
the tax, and KCMSD was required to publish legal notice 
of the increase. Those legally responsible for withholding 
the state income tax are also required to withhold the 
surcharge. The court initially designated the revenue for 
use to retire capital improvement bonds, but removed this 
limitation in its October 27 order.

The court based its power to order tax increases and 
bond issuances to remedy constitutional violations on 
Liddell VII, 731 F.2d at 1322, and Griffin v. School Bd., 11

11 The bonds require an annual debt service for principal and 
interest of approximately $14.9 million per year.



27a

377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 
(1964). Jenkins, 672 F.Supp. at 411-12.

The State and amici argue that the district court ex­
ceeded its judicial authority in imposing the property tax 
increase and income tax surcharge, invaded legislative 
authority in doing so, and violated the Tenth Amend­
ment, the doctrine of separation of powers, and principles 
of comity. In addition, they attack this court’s en banc 
decision in Liddell VII, argue that later decisions limit it, 
and urge distinctions between the issues presented in this 
case and the Supreme Court’s holding in Griffin.

A.
We first deal with a number of general arguments 

offered by the State and amici, based on the constitu­
tional foundations of judicial power. They first offer an 
historical argument, relying on a number of The Federal­
ist Papers, particularly number 78, which states that 
“ [t]he judiciary * * * has no influence over either the 
sword or the purse; no direction either of the strength or 
of the wealth of the society; and can take no active 
resolution whatever.”  The Federalist No. 78 (A. Hamil­
ton) (H. Lodge ed. 1888). While Hamilton stressed the 
weakness of the judiciary, we do not believe The Federal­
ist advocates judicial impotence. Hamilton also stated 
that the complementary limitations on legislative author­
ity “ can be preserved in practice no other way than 
through the medium of the courts of justice; whose duty 
it must be to declare all acts contrary to the manifest 
tenor of the Constitution void. Without this, all the res­
ervations of particular rights or privileges would amount 
to nothing.” Id.

For the most part the arguments of the State and 
amici either ignore the constitutional violations that the 
district court found and we have affirmed, or would ren­
der the courts powerless to redress such violations. The



28a

judiciary’s power to determine the rights and liabilities 
of parties in cases arising under the Constitution and 
laws of the United States is beyond question, and this 
power is without purpose if it does not carry with it the 
power to determine a remedy. See Marbury v. Madison, 
5 U.S. (1 Cranch.) 137, 162-63, 166-67, 176-80, 2 L.Ed. 
60 (1803).

We may also dismiss summarily the State’s related 
arguments based on the tenth amendment and the prin­
ciple of separation of powers. These doctrines simply 
have no bearing on the district court’s options in enforc­
ing its judgment. In Milliken II, 433 U.S. at 291, 97 
S.Ct. at 2762-63, the Supreme Court rejected the argu­
ment that a school desegregation remedy violated the 
tenth amendment, stating: “ The Tenth Amendment’s
reservation of non-delegated powers to the States is not 
implicated by a federal-court judgment enforcing the ex­
press prohibitions of unlawful state conduct enacted by 
the Fourteenth Amendment.” The Court has likewise 
stated that “ the separation-of-powers principle * * * has 
no applicability to the federal judiciary’s relationship to 
the States.” Elrod v. Bums, 427 U.S. 347, 352, 96 S.Ct. 
2673, 2679, 49 L.Ed.2d 547 (1976) (plurality opinion by 
Brennan, J.).

The State’s argument on principles of federal/state 
comity is a matter of more concern to us, but we will 
deal with it as we discuss the specific issues before us.

B.
This panel does not write on a clean slate with respect 

to the property tax issue. The court en banc has held 
that “ the district court’s broad equitable powers to rem­
edy the evils of segregation include a narrowly defined 
power to order increases in local tax levies on real estate. 
Limitations on this, power require that it be exercised 
only after exploration of every other fiscal alternative.”  
Liddell VII, 731 F.2d at 1320.



29a

We enumerated in Liddell VII three inquiries necessary 
in determining whether fiscal alternatives are unavail­
able or insufficient to finance a desegregation order: 
first, what amount of money is necessary to fund the 
order; second, whether the school board is able with its 
resources to fund its share of the costs; and third, 
whether the school board has considered alternative 
sources of revenue, such as the submission of a referen­
dum or legislative authorization for the board to impose 
other taxes. Finally, if such alternatives fail and the 
board and the State as joint tortfeasors are unable to 
agree on an alternative method of funding, then the dis­
trict court must conduct an evidentiary hearing and enter 
a judgment sufficient to cure the constitutional violations 
found. Id. at 1323.

The district court in this case carefully followed the 
requirements of Liddell VII. See Jenkins, 672 F.Supp. at 
411. Voluminous materials were filed with the court be­
fore entry of the order, and the parties specifically waived 
their right to an evidentiary hearing on this issue. In 
1986 and 1987 KCMSD submitted four levy increase and 
one bond referenda, all of which failed, and unsuccess­
fully sought legislative authorization for additional fund­
ing methods.12 This fully satisfies Liddell, and we should 
require no more. We do not agree with the dissent’s 
suggestion that we place the entire funding burden on 
the State under the principle of joint and several lia­
bility, leaving the State to its contribution remedy. This 
would simply prolong the controversy, rather than resolv­
ing this already lengthy litigation, and would, in the end, 
meet the same obstacle the district court faced—the fact 
that KCMSD’s contribution can only come from addi­
tional taxes or authorization of new sources of revenue.

Liddell VII explored in detail the support for its con­
clusion that a district court may order a property tax

12 See footnotes 16 and 20, infra.



30a

increase in such circumstances, including Griffin v. School 
Bd. and United States v. Missouri, 515 F.2d 1365 (8th 
Cir.) (en banc), cert, denied, 423 U.S. 951, 96 S.Ct. 374, 
46 L.Ed.2d 288 (1975). In Griffin, the Supreme Court 
held that a district court could enjoin county authorities 
from paying tuition grants and giving tax credits while 
its public schools remained closed to avoid desegregation 
and, “ if necessary to prevent further racial discrimina­
tion, require the Supervisors to exercise the power that 
is theirs to levy taxes to raise funds adequate to reopen, 
operate, and maintain without racial discrimination a 
public school system * * * like that operated in other 
counties in Virginia.” 377 U.S. at 233, 84 S.Ct. at 1234. 
In United States v. Missouri, three St. Louis suburban 
school districts were consolidated and the tax rate for the 
consolidated district was set at the rate of the higher of 
the three districts. 515 F.2d at 1371-73. There, we “ also 
acknowledged the district court’s remedial power to re­
quire a tax levy in excess of that authorized by the vot­
ers.” Liddell VII, 731 F.2d at 1320 (citing United States 
v. Missouri, 515 F.2d at 1371-72).13

The State and amici primarily attack Liddell VII by 
raising questions about its underpinnings, particularly by 
arguing that Griffin and United States v. Missouri only 
authorize a court to order the levy of taxes that have 
already been authorized by state law or to invalidate state 
action taken in resistance to a desegregation order.

The decision of the court en banc in Liddell VII is the 
law of this circuit, binding on this panel, and requires

13 The court in Liddell VII found further support for its reason­
ing in a number of Supreme Court decisions ordering municipali­
ties to levy and collect taxes for satisfying their contractual obliga­
tions, and rejecting arguments that state law restrictions on the 
power to tax prevented them from doing so. 731 F.2d at 1322. The 
court also relied on numerous decisions based on state law that 
municipalities may not avoid their liability in tort by pleading 
constitutional or statutory debt limitations. Id.



31a

that we affirm the district court’s order with respect to 
the property tax increase. Liddell VII analyzed decisions 
cited by the parties in support of their arguments that 
the district court lacks power to order a property tax in­
crease, including Evans v. Buchanan, 582 F.2d 750 (3d 
Cir.1978) (en banc), cert, denied, 446 U.S. 923, 100 
S.Ct. 1862, 64 L.Ed.2d 278, reh’g denied, 447 U.S. 916, 
100 S.Ct. 3004, 64 L.Ed.2d 865 (1980), which it deter­
mined to support its ruling,14 and San Antonio Inde­
pendent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 
1278, 36 L.Ed.2d 16 (1973), which it distinguished. Lid­
dell VII, 731 F.2d at 1321-22. Following the decision in 
Liddell VII, the State of Missouri filed a petition for cer­
tiorari raising the propriety of the holding on property 
taxes, and the petition was denied. Leggett v. Liddell, 
469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).

Judge Clark’s order may thus be affirmed solely on the 
basis of Liddell VII.15 It is not necessary, however, that 
we do so, for even without relying on Liddell VII, we 
believe that the district court’s property tax, as modified 
in this opinion, is within the proper limits on its re­
medial powers.

Among the several sources of funds available to KCMSD 
under Missouri law, only the tax on real and personal

14 Like Evans, 582 F.2d at 780, Plaquemines Parish School Bd. 
v. United States, 415 F.2d 817, 833-34 (5th Cir. 1969), which is 
also cited by the State, recognized and upheld the power of the 
district court to enter an injunction requiring the State to make 
funds available to the school board to pay for the desegregation 
plan drawn by the district court.

15 The amici point to the opinions of dissenting judges in Liddell 
VII. We must first observe that the entire court, including the 
dissenting judges, is bound by this court’s en banc decision in 
Liddell VII. Further, the dissents did not imply that a district 
court should be left powerless to enforce remedial orders, as the 
amici propose. See, e.g., 731 F.2d at 1332 (Gibson, J., concurring 
and dissenting).



32a

property located within the district is under the school 
board’s control. Substantial limitations are placed on this 
tax by the state constitution and statutes. The tax levy 
is limited to $1.25 per $100 of assessed valuation, but a 
majority of voters may approve a levy of $3.75 per $100. 
Mo. Const. Art. X, §§ 11(b), 11(c). Any increase above 
the rate of $3.75 requires approval by two-thirds of the 
voters. Mo. Const. Art. X, § 11(c). Any school construc­
tion or repair bonds must also be approved by two-thirds 
of the voters. Mo.Rev.Stat. § 164.151 (1986).

These requirements, particularly the two-thirds vote, 
have had substantial impact upon KCMSD’s financial re­
sources. On June 20, 1969, the district submitted a levy 
increase of $3.05 above the constitutional $1.25 limit, for 
a total of $4.30. This was approved by 53 percent of 
the voters, but failed as it lacked a two-thirds majority. 
Shortly thereafter, on July 1, 1969, the voters approved 
by a 63 percent vote a $2.50 increase to make a total 
levy of $3.75. This increase required only a simple ma­
jority and is the last to date approved by the necessary 
percentage of KCMSD voters. Some six levy increases 
were submitted between 1970 and 1983. Four received 
the approval of a simple majority, but all six failed to re­
ceive the required two-thirds approval.16

Exhibits before the district court in Jenkins I reveal 
that between 1974 and 1982 the levy varied between $4.05 
and $3.80. In Jenkins /, 807 F.2d at 686, we observed 
that the levy in KCMSD was $3.43 per $100. The dis­
trict court order presently before us finds that the levy 
has been reduced to $2.05. Jenkins, 672 F.Supp. at 413.

16 Levy increases were also submitted on February 4, 1986, 
August 5, 1986, November 4, 1986, and March 31, 1987, the last 
three containing separately submitted issues for earmarked usage 
such as salary increases, bond retirement, and desegregation ex­
penses. Only one of the eight submitted issues required approval 
by two-thirds, but all failed of passage.



33a

This substantial reduction of the levy is due to the op­
eration of additional restrictions imposed by state law.

Missouri’s Proposition C was adopted by initiative on 
November 2, 1982. Proposition C allocates one cent on 
the dollar of the state sales tax to the School District 
Trust Fund, Mo.Rev.Stat. §§ 144.700-.701 (1986), to be 
distributed in accordance with Mo.Rev.Stat. § 163.087 
(1986). It reduces the total operating levy in each school 
district to decrease the revenue received by an amount 
equal to 50 percent of the previous fiscal year’s sales tax 
receipts. Mo.Rev.Stat. §164.013 (Supp.1987).17 In ad­
dition, the Hancock Amendment, also adopted by initia­
tive, 1980 Mo.Laws 629, mandates revision of levy rates so 
that the same amount of tax revenue, adjusted for in­
flation, will be produced from existing property after re­
assessment as was produced in the previous year. Mo. 
Const, art. X, §§16-24; Mo.Rev.Stat, § 137.073 (1986). 
State-wide reassessment of real estate has been required 
under Mo.Rev.Stat. § 137.115 (Supp.1987), and the total 
assessed valuation of property in KCMSD increased from 
approximately $1.2 billion in 1983 to nearly $1.8 billion 
in 1987.

These changes in state law have imposed a unique fiscal 
disadvantage on KCMSD, depriving it of the benefit of 
increases in assessed valuation and diverting nearly one- 
half of the sales taxes collected in the district to other 
parts of the state. An exhibit before the district court 
demonstrated that sales tax collections within KCMSD 
were $31.2 million, of which only $14.6 million were al­
located to KCMSD for school use. As no other funding

17 The statute provides exclusions for sales tax revenue attribu­
table to pupils residing on federal lands, and an amount necessary 
to maintain the commissions of county officials and county funds 
under Mo.Rev.Stat. § 50.338 (1986). The statute also provides that 
if a district fails to reduce its operating levy in compliance with 
this section, state aid under Mo.Rev.Stat. § 163.031 (1986) will be 
reduced in an equivalent amount.



34a

has been forthcoming, the levy reductions mandated by 
the Proposition C sales tax and reassessment rollbacks 
have caused the dramatic reduction of KCMSD’s levy to 
its present level of $2.05. The laws of Missouri have thus 
erected a complicated structure restricting KCMSD’s 
ability to increase its levy and fund its share of the de­
segregation remedy.

Thus, state law so narrowly circumscribes KCMSD’s 
abiilty to raise money that, if forced to operate within 
these limits, the district court would lack power to im­
plement a remedy. The Supreme Court has made it clear 
that state law limitations cannot hinder a district court 
from remedying constitutional violations. In North Caro­
lina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 
S.Ct. 1284, 1285-86, 28 L.Ed.2d 586 (1971), Chief Jus­
tice Burger, writing for a unanimous Court, stated that 
“ if a state-imposed limitation on a school authority’s dis­
cretion operates to inhibit or obstruct the operation of a 
unitary school system or impede the disestablishing of a 
dual school system, it must fail; state policy must give 
way when it operates to hinder vindication of federal 
constitutional guarantees.”  See also Milliken I, 418 U.S. 
at 744, 94 S.Ct. at 3127. “ We have likewise held in or­
dering implementation of a school integration plan that 
The remedial power of the federal courts under the Four­
teenth Amendment is not limited by state law.’ ” United 
States v. Missouri, 515 F.2d at 1372-73 (quoting Haney 
v. County Bd. of Educ., 429 F.2d 364. 368 (8th Cir. 
1970)).

Moreover, this general supremacy principle applies in 
cases concerning state tax laws as well as any other type 
of state laws. The Supreme Court’s citation of Griffin to 
support this general principle shows that the Court does 
not view Griffin as limiting federal courts’ authority to 
order taxes to cases where no state law would be violated. 
In Washington v. Washington State Commercial Passen­
ger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055,



61 L.Ed.2d 823, modified on other grounds sub nom. 
Washington v. United States, 444 U.S. 816, 100 S.Ct. 
34, 62 L.Ed.2d 24 (1979), a district court’s decree con­
cerning an Indian treaty required state officials to act 
contrary to state law limitations on their powers. The 
Supreme Court cited Swann and Griffin in upholding the 
district court’s powers to order the state officials to take 
actions contrary to state law:

State-law prohibition against compliance with the 
District Court’s decree cannot survive the command 
of the Supremacy Clause of the United States Con­
stitution. It is also clear that [the state] parties to 
this litigation * * * may be ordered to prepare a set 
of rules that will implement the Court’s interpreta­
tion of the rights of the parties even if state law 
withholds from them the power to do so. E.g., North 
Carolina Board of Education v. Svjann, 402 U.S. 43 
[91 S.Ct. 1284]; Griffin v. County School Board, 377 
U.S. 218 [84 S.Ct. 1226].

Id. at 695 (other citations omitted). In Washington 
State, as in this case, there was no suggestion that state 
law restrictions had been adopted to evade the court’s 
remedial orders.

With these precedents, we must reject the State’s 
arguments that the district court’s power to raise prop­
erty taxes under Griffin is limited to cases in which the 
taxes have been authorized under state law or the state 
law limitations on a school district’s taxing authority are 
enacted to prevent implementation of a desegregation 
order.

KCMSD has admitted that it violated the Constitution 
by failing to remove the vestiges of the segregated school 
system. The district’s only method for raising funds is 
the property tax. Although KCMSD’s assessed property 
value per pupil is higher than that of any other school 
district in the area, Jenkins I, 807 F.2d at 686, its levy



36a

of $2.05 was the lowest in Jackson County. With these 
considerations and under the precedent of the Supreme 
Court in Griffin, Swann, and Washington State, and this 
court in Liddell VII and United States v. Missouri, the 
district court did not err or abuse its discretion in order­
ing that the KCMSD property tax levy be increased to 
allow the district to fund its share of the desegregation 
remedies. In doing so, it followed clear authority that 
restrictions and limitations of state law which impede 
the disestablishing of a dual school system may be set 
aside to remedy the constitutional violations.

The State and amici argue vigorously that the actions 
of the district court violate the right of the people to 
vote on an increase in their property taxes. Our holding 
in United States v. State of Missouri, 515 F.2d at 1372- 
73, rejected that argument. We have recently addressed 
similar concerns in Little Rock School List., where we 
stated that “ [t]he right most prominently involved here 
is the right to a public education free of racial discrim­
ination. That right ‘may not be submitted to vote; [it] 
depend[s] on the outcome of no elections.’ ”  839 F.2d at 
1303 (quoting West Virginia State Bd. of Educ. v. Bar­
nette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 
L.Ed. 1628 (1943)). In Haney v. County Bd. of Educ., 
410 F.2d 920 (8th Cir.1969), we specifically rejected the 
argument that orders in a desegregation case were lim­
ited by state law requiring consent of the electorate, stat­
ing that “ ‘ [a] citizen’s constitutional rights can hardly 
be infringed simply because a majority of the people 
choose that it be.’ ”  410 F.2d at 926 (quoting Lucas v. 
Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736- 
37, 84 S.Ct. 1459, 1473, 12 L.Ed.2d 632 (1964)).

While we affirm the actions that the court has taken 
to this point, as we deal with an on-going remedy we think 
it appropriate to consider the procedures which the district 
court should use in the future. It is here that the argu­



37a

ments of the State and amici concerning principles of 
federal/state comity have their proper application, as we 
have expressed a desire to use minimally obtrusive meth­
ods to remedy constitutional violations. See Liddell VII, 
731 F.2d at 1319-23; United States v. Missouri, 515 F.2d 
at 1372-73. State lav/ currently requires the KCMSD 
board to submit its proposed levy to the collection authori­
ties of Jackson County. Mo.Rev.Stat. § 164.011.2 (Supp. 
1987). Deference should be given to the views of con­
cerned state and local officials and to the working of local 
tax collection procedures to the extent that they appear 
compatible with the goals to be achieved. United States v. 
Missouri, 515 F.2d at 1373. We believe a preferable 
method for future funding of KCMSD’s obligation under 
the district court’s desegregation orders is to authorize 
the school board to submit a proposed levy to the collec­
tion authorities adequate to fund its budget, including 
its share of the cost of the desegregation programs or­
dered by the district court. County and state authorities 
should then be enjoined from applying those Missouri 
constitutional and statutory limitations that would limit 
or reduce the levy below the amount submitted by the 
school board.

However, the levy must be subject to some reasonable 
limitation, taking into consideration rates in neighboring 
areas. See United States v. Missouri, 515 F.2d at 1372- 
73. There are several possible approaches for such a 
limitation. One would be to allow the highest levy ap­
proved by any district in Jackson County, which in this 
case is Lee’s Summit with a levy of $4.77. Another ap­
proach would be to allow a combination of the highest 
levies for operating expenses and bonded indebtedness 
ever approved by KCMSD voters. A third approach would 
be to allow the average of the highest two or three levies 
in Jackson County. The levy must, of course, be sufficient 
to fund the necessary desegregation programs, and we



38a

believe that it is best to leave the selection of an appropri­
ate limitation to the district court’s discretion.1,8

Permitting the school board to determine the amount 
of its levy (subject to reasonable limits) will give maxi­
mum consideration to the views of state and local officials 
and is least disruptive of existing state laws and proce­
dures. The KCMSD board and county and state officials 
will be allowed to perform their functions as required by 
state law. In addition, the district court will be removed 
from the process of setting the levy, and limited solely to 
establishing the maximum limit and enjoining enforce­
ment of those provisions of Missouri law that prevent 
KCMSD from raising the money to remedy the constitu­
tional violations. Obviously, the parties can bring before 
the district court any objections or problems that may 
arise in implementing this plan.

Finally, we observe that the district court’s October 
27, 1987 order provided that the property tax increase 
would be reduced at the end of the 1991-92 fiscal year 
to generate only the amount necessary to retire the capital 
improvement bonds, approximately $14.9 million per year. 
In view of our reversal of the income tax surcharge (and 
unless new revenue sources are authorized), the increased 
property tax will be the only revenue source available to 
fund the desegregation expenses ordered by the district 
court. Accordingly, the ordered reduction of the property 
tax cannot be automatically implemented at the end of 
the 1991-92 fiscal year, and the district court must then 
evaluate further funding requirements. 18

18 We recognize that there may be some circumstances in which 
the district court could justifiably find that KCMSD did not have 
sufficient resources to fully fund the apportionment we have affirmed 
today of the desegregative costs, and if it so finds, we do not pre­
clude the district court from placing the remainder of the burden 
on the State. See Part V, Section D, supra, and footnote 21. It is 
our intent that KCMSD contribute its share, subject to these con­
siderations.



39a

One issue remains for determination, and that is Jack- 
son County’s appeal from the district court’s January 7, 
1988 order entering a permanent injunction against 
county officials to collect the property tax. On October 
17, 1987, the district court entered a preliminary injunc­
tion against the county, holding that it was necessary to 
carry out the purpose of its lawful authority, and citing 
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 
(1958), and Faubus v. United States, 254 F.2d 797 (8th 
C ir), cert, denied, 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68 
(1958). The court also rejected the county’s claim that 
the Tax Injunction Act, 28 U.S.C. § 1341 (1982), pre­
vented it from entering such an order.

This court has already rejected the county’s anti- 
injunction act argument in denying its petition for a writ 
of prohibition. In re Jackson County, 834 F.2d 150 (8th 
Cir. 1987). The county’s argument that it has no connec­
tion with the underlying controversy because it is not a 
party and therefore should not be subject to the injunction 
is without merit. County officials are entrusted by law 
with the collection of taxes levied by local school districts. 
Here the district court entered an order that such taxes 
be increased and the county refused to adjust the 1987 
school tax levy accordingly. The Supreme Court has made 
clear that “nonparties that interfere with the implementa­
tion of court orders establishing public rights may be en­
joined.” Washington State, 443 U.S. at 692 n. 32, 99 
S.Ct. at 3078 n. 32. The county’s arguments are utterly 
lacking in merit and the district court’s order enjoining 
county officials to collect the property tax is affirmed.

C.
The income tax surcharge ordered by the district court 

involves substantially different considerations. As we 
have seen, the property tax is the established source of 
revenue for Missouri school districts, and the basic effect 
of the district court’s order was to set aside levy limita­



40a

tions on this taxing authority. The order with respect to 
the income tax surcharge is an entirely different matter. 
The district court defined the precise scope of the sur­
charge, its effective date, and set forth procedures for its 
collection by the State and delivery to KCMSD. See 
Jenkins 672 F.Supp. at 412. We are satisfied that the 
district court invaded the province of the legislature in 
ordering this surcharge, and that the order is beyond the 
power of the district court as outlined in Sivann, 402 
U.S. at 45, 91 S.Ct. at 1285-86; Griffin, 377 U.S. at 233, 
84 S.Ct. at 1234; Liddell VII, 731 F.2d at 1319-23; and 
United States v. Missouri, 515 F.2d at 1371-73.

Those decisions authorize the district court to set aside 
restrictions or limitations imposed by state law that im­
pede the disestablishment of a dual school system, with 
appropriate deference to local tax collection procedures 
and the views of concerned state and local officials. The 
income tax surcharge fails on both counts. Rather than 
merely removing the levy limitation on an existing state 
or local taxing authority, the income tax surcharge re­
structures the State’s scheme of school financing and 
creates an entirely new form of taxing authority. We 
believe the district court has exceeded its authority in 
ordering the collection of school district revenue from an 
entirely new source, with all funds delivered to one dis­
trict for a specified pur-pose.1® While this income tax 
surcharge was part of the legislative program KCMSD 
developed and submitted to the State General Assembly,19 20

19 Heretofore the State of Missouri has seen fit to place no limi­
tations on its income tax revenue ; it is payable into the general 
treasury of the State.

20 Legislation was introduced in the 1987 session of the House of 
Kepresentatives, H.B. 757, to give school districts the authority to 
impose a sales tax up to x/2  cent on individual earnings and business 
profits tax on residents and non-residents earning income or profits 
within the district and/or a surcharge of up to 25 percent on resi­
dents’ state income tax, increasing the present tax rate from 6



41a

none of the parties to this litigation seriously urged the 
district court to adopt it as part of a judicial remedy.

We accordingly reverse that part of the district court’s 
order imposing the income tax surcharge. Any unex­
pended collections must be refunded and the district court 
is directed to take such action as it deems appropriate 
with respect to any further refunds. We caution that the 
constitutional violations must be remedied and the reme­
dies fully funded. Any refund orders must be crafted 
recognizing this fundamental principle.

D.
In our earlier en banc opinion we made clear that the 

remedy ordered by the district court must be fully funded. 
Jenkins I, 807 F.2d at 686. Should the funds that KCMSD 
can provide for desegregation expenses under today’s 
decision fall short, the remainder must be paid by the 
State, as the orders of the district court have imposed 
joint and several liability on the State and KCMSD.21 
See notes 3 & 4, supra. See also Edmonds v. Compagnie 
Generale Transatlantique, 443 U.S. 256, 260 & n. 8, 99 
S.Ct. 2753, 2756 & n. 8, 61 L.Ed.2d 521 (1979); Watts 
v. Laurent, 114= F.2d 168, 179 (7th Cir.1985), cert, de­
nied, 475 U.S. 1095, 106 S.Ct. 1466, 89 L.Ed.2d 722 
(1986).

The funding provisions that we have affirmed today 
will continue until further order by the district court, or 
until KCMSD is able to fund its share of the desegrega-

percent to 7.5 percent. Further, any such tax increases could be 
approved by a simple majority. The KCMSD board proposed and 
supported this legislation. The legislation failed.

21 While we have rejected the argument urged by a number of 
the amici and adopted by the dissent that under this principle all 
costs should be borne by the State, the State does have an obligation 
to pay any required sums which are beyond the capacity of the 
school district.



42a

tion remedy or the legislature has made other sources of 
revenue available for this purpose.

VI.
The Jenkins class and KCMSD appeal from the district 

court’s denial of the class’ motion to have Kansas students 
included as participants in the KCMSD magnet plan. The 
district court declined to order KCMSD to educate resi­
dents of another state, with the State of Missouri paying 
the costs. The court found that inclusion of Kansas 
students would be unduly complex. We find no abuse of 
the district court’s discretion in declining to order Mis­
souri to pay to educate residents of another state. As 
the district court noted, this ruling does not preclude 
Kansas school districts from participating in a voluntary 
interdistrict transfer agreement with KCMSD.

VII.
Jackson County, Missouri and Icelean Clark, et al, 

a group of individual corporate taxpayers, appeal the dis­
trict court’s October 27, 1987 order denying their applica­
tions to intervene as of right.22 The county filed a re­
newed motion to intervene on October 7, 1987 and the 
Clark group moved to intervene on September 25, 1987 
to challenge the funding orders of the district court. 
The district court denied the motions as untimely.

Rulings on the timeliness of applications to intervene 
are committed to the sound discretion of the district court 
and will not be disturbed on review absent an abuse of 
that discretion. NAACP v. New York, 413 U.S. 345, 365- 
66, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973); 
Arkansas Elec. Energy v. Middle South Energy, Inc., 
772 F.2d 401, 403 (8th Cir.1985). Timeliness is deter­

22 The district court also denied the applications of the county 
and the Clark group for permissive intervention, but these rulings 
have not been appealed.



43a

mined from all the circumstances, NAACP v. New York, 
413 U.S. at 366, 93 S.Ct. 2603, but three factors receive 
particular attention: “ ‘how far the proceedings have 
gone when the movant seeks to intervene, prejudice which 
resultant delay might cause to other parties, and the 
reason for the delay,’ ”  Arkansas Elec. Energy, 772 F.2d 
at 403 (quoting Nevilles v. EEOC, 511 F.2d 303, 305 
(8th Cir.1975) (per curiam) (citations omitted)).

Applying the analytical framework set forth in Nevilles, 
the district court ruled that the Clark group’s September 
25, 1987 motion and the county’s October 7, 1987 motion 
were untimely because the court had already determined 
how KCMSD’s portion of the desegregation plan would 
be funded in its September 15, 1987 order; the appellants 
had ample opportunity to file timely applications; and 
intervention at this late stage of the proceedings would 
unduly delay implementation of the remedy to which the 
members of the Jenkins class are entitled. Having care­
fully reviewed the record, we are satisfied that the 
district court did not err in so ruling.

The Clark group argues that their delay in seeking in­
tervention should be excused because they did not have 
“ actual or constructive notice of the District Court’s 
ultimate taxation scheme” before entry of the September 
15, 1987 order, and that dismissal of their motion to 
intervene in such circumstances constitutes a denial of 
due process. While “ absence of knowledge may, under 
certain circumstances, excuse delay in attempting to in­
tervene,” the burden of demonstrating lack of knowledge 
rests with the persons seeking intervention. EEOC v. 
Westinghouse Elec. Corp., 675 F.2d 164, 165 (8th Cir. 
1982) (per curiam) ; Nevilles, 511 F.2d at 305. The tax­
payers have not met this burden. In its June 14, 1985 
order, the district court discussed its power to raise 
taxes to fund the desegregation remedy and enjoined 
Missouri’s “ Proposition C” tax levy rollback. Jenkins, 
639 F.Supp. at 44-45. The court again enjoined the roll­



44a

back on August 25, 1985, and in its July 6, 1987 order 
the district court made clear its intention to fund 
KCMSD’s portion of the remedy through either an earn­
ings tax or state income tax surcharge. These orders 
were regularly reported by the local news media. Taken 
together, the orders were more than sufficient to inform 
the taxpayers of the status of the suit and put them on 
notice that their interests would be affected by the dis­
trict court’s funding orders. In particular, local property 
owners in the Clark group had already been affected by 
the orders enjoining the tax levy rollback. On this basis, 
the district court did not abuse its discretion in conclud­
ing that the taxpayers’ motion to intervene was untimely. 
Cf. NAACP v. New York, 413 U.S. at 366-67, 93 S.Ct. at 
2603-04; EEOC v. Westinghouse, 675 F.2d at 166; 
Nevilles, 511 F.2d at 306. As the taxpayers had fair 
notice of the action and were allowed to participate as 
amici curiae by the district court, their due process argu­
ment is also without merit.

Jackson County argues that its motion was timely be­
cause it originally sought to intervene in an application 
filed on April 15, 1985, which “made the district court 
aware of its interest in any order dealing with tax 
increases” well before the September 15, 1987 funding 
order. While the county’s April 15, 1985 motion was 
filed with the district court, there is no proof that the 
motion was served on the parties, as Fed.R.Civ.P. 24(c) 
requires. The certificate of service accompanying the 
motion is not signed and none of the parties filed re­
sponses to the motion or otherwise indicated that they 
had received it. Thereafter, for a period of nearly two 
and one-half years, the county failed to take any action 
to intervene until the filing of its October 7, 1987 motion. 
During this period, as we have said, the district court 
issued a series of highly publicized orders which gave 
the county, like the taxpayers, ample notice of the course 
of the action and the fact that the county’s interest as



45a

local property tax collector would be affected by the dis­
trict court’s funding orders. The county’s two and one- 
half year delay in pursuing its motion to intervene was 
sufficient to justify the district court in treating the mo­
tion as having been filed on October 7, 1987 and ruling 
it untimely on that basis. See McCarthy v. Kleindienst, 
741 F.2d 1406, 1415-16 (D.C.Cir.1984).

The district court did not err in denying the motions 
of the Clark group and Jackson County to intervene.23

VIII.
We affirm the judgment of the district court with 

respect to the scope of the remedy. We also affirm its 
orders with respect to the property tax, but remand for 
further modifications as provided in this opinion. We 
reverse the judgment of the district court with respect 
to the income tax surcharge and stay any further collec­
tion. Finally, we affirm the order of the district court 
denying the motions of the Clark group and Jackson 
County to intervene.

LAY, Chief Judge, concurring and dissenting.
I generally concur in the opinion of the court. I take 

one major exception to the opinion. The district court 
found that the liability of the parties should be appor­

23 We are also satisfied that if the district court erred in denying 
intervention, the error was harmless. The district court granted 
members of the Clark group permission to participate as amici, 
and they have filed an amicus brief with this court challenging the 
funding orders and have participated in oral argument. The tax­
payers have thus been granted the opportunity to challenge the 
funding orders, see Arkansas Elec. Energy, 772 F.2d at 404, and 
their challenge is based on questions of law which they can ade­
quately present as amici, see Blake v. Pallan, 554 F.2d 947, 955 
(9th Cir. 1977). The county has simply failed to overcome the pre­
sumption that its interests are adequately represented by the State. 
See, e.g., Environmental Defense Fund v. Higginson, 631 F.2d 738, 
740 (D.C.Cir. 1979) (per curiam).



46a

tioned seventy-five percent for the state and twenty-five 
percent for the school district, but specifically held that 
liability was based upon a finding of joint and several 
tortfeasors.

The state appealed the apportionment of liability to 
this court. However, it has never appealed the district 
court’s original judgment of joint and several liability. 
I do not fault counsel because it would be difficult absent 
a divisible injury under traditional legal principles to 
dispute the validity of such a holding.

This court’s opinion, has appropriately discussed how 
the state has “ so narrowly circumscribe [d] KCMSD’s 
duty to raise money” and that as a partial result there­
from it is a practical reality that the school district can­
not fully contribute to the funding of the remedial pro­
gram to meet constitutional compliance. Under the cir­
cumstances traditional legal principles apply. I would 
simply hold that under a judgment of joint and several 
liability that upon failure of one tortfeasor to comply 
with the judgment because of financial inability to fund 
the remedial plan that any other tortfeasor may be liable 
for the whole. As the Supreme Court indicated in Ed­
monds, cited in the court’s opinion, quoting from the Sec­
ond Restatement of Torts:

A tortfeasor is not relieved of liability for the entire 
harm he caused just because another’s negligence 
was also a factor in effecting the injury. “ Nor are 
the damages against him diminished.” Restatement, 
[Second] supra, § 879, Comment a. Likewise, under 
traditional tort law, a plaintiff obtaining a judgment 
against more than one concurrent tortfeasor may 
satisfy it against any one of them. Id., § 886. A 
concurrent tortfeasor generally may seek contribu­
tion from another, id., § 886A, but he is not relieved 
from liability for the entire damages even when the 
nondefendant tortfeasor is immune from liability.



47a

Id., § 880. Thes principles, of course, are inappli­
cable where the injury is divisible and the causation 
of each part can be separately assigned to each tort­
feasor. Id., §§ 433A(l j  and 881.

Edmonds, 443 U.S. at 260-61 n. 8, 99 S.Ct. at 2756 n. 8.
I do not doubt the constitutional authority of the dis­

trict court as approved in Liddell VII to exercise the 
remedial order necessary to bring about constitutional 
compliance. However, a judicial decree requiring increase 
in local levies on real estate and the imposition of a 
property tax should “be exercised only after exploration 
of every other fiscal alternative.”  Liddell VII, 731 F.2d 
at 1320. Thus, I do not feel that it was necessary for 
the district court or feasible for this court to approve 
a property tax levy by KCMSD to meet its fiscal respon­
sibility. Where other alternatives remain, it is the very 
essence of judicial restraint not to go beyond the relief 
necessary. The State of Missouri should therefore pay 
for any amount KCMSD is unable to contribute, failing 
existing means by KCMSD to raise the monies in order 
to effectuate constitutional compliance. The state may 
under existing law seek contributions from the KCMSD 
but this problem is between the parties and not for the 
court. I therefore would set aside the property tax levy 
ordered by the district court and use existing legal prin­
ciples to effect constitutional compliance by holding the 
state liable for any deficiency KCMSD cannot contribute 
under the plan.



48a

APPENDIX B

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

No. 86-1934 
No. 86-2537 
No. 87-1749 
No. 87-2299 
No. 87-2300 
No. 87-2588

Kalima Jenkins, by her friend, Kamau Agyei; Carolyn 
Dawson, by her next friend, Richard Dawson; 
Tufanza A. Byrd, by her next friend, Teresa Byrd; 
Derek A. Dydell, by his next friend, Maurice Dy- 
dell; Terrance Cason, by his next friend, Antoria 
Cason; Jonathan W iggins, by his next friend, Rose­
mary Jacobs Love; Kirk Allan Ward, by his next 
friend, Mary Ward; Robert M. Hall, by his next 
friend, Denise Hall ; Dwayne A. Turrentine, by his 
next friend, Shelia Turrentine; Gregory A. Pugh, 
by his next friend, Barbara Pugh ; Cynthia W inters, 
by her next friend, David W inters; on behalf of them­
selves and all others similarly situated,

and

American Federation of Teachers, Local 691,
Appellees,

v.

The State of Missouri, Honorable John Ashcroft, 
Governor of the State of Missouri, Wendell Bailey, 
Treasurer of the State of Missouri, Missouri State 
Board of Education, Roseann Bentley, Dan Black­



49a

well, Terry A. Bond, President, Delmar A. Cobble, 
Grover Gamm , Jimmy Robertson, Robert L. Well­
ing, Donald E. W est, Members of the Missouri State 
Board of Education,

A rthur L. Mallory, Commissioner of Education
of the State of Missouri,

, Appellants,and
School District of Kansas City, Missouri and 

Claude C. Perkins, Superintendent thereof,
Appellees.

No. 87-2565

Kali.ua Jenkins, by her friend, Kamau Agyei, et a l ,

and

A merican Federation of Teachers, Local 691,
Appellees,

v.

The State of Missouri, et a l , 

and

School District of Kansas City, Missouri, et a l ,

Appellees.

Icelean Clark ; Bobby Anderton; Eleanor Graham ; 
John C. Howard; Craig Martin; Gay D. W illiams; 
Kansas City Mantel & Tile Co.; Coulas & Griffin 
Insurance Agency, Inc.; Sharon Dunham ; Lindsay 
K. Kirk ; Linda Frazier; Rick Feierabend; Linda 
Hollenbeck; James Hollenbeck; Susan Horseman; 
and Clifford M. Horseman,

Appellants.



50a

No. 87-2589

Kalima Jenkins, by her friend, Kamau Agyei, et al,

and
A merican Federation op Teachers, Local 691

v.
The State of Missouri, et al, 

and
School District op Kansas City, Missouri, et al,

Appellees.

Icelean Clark ; Bobby Anderton; Eleanor Graham ; 
John C. Howard; Craig Martin; Gay D. W illiams; 
Kansas City Mantel &  Tile Co.; Coulas & Griffin 
Insurance Agency, Inc.; Sharon Dunham ; Lindsay 
K. Kirk ; Linda Frazier; Rick Feierabend; Linda 
Hollenbeck; James Hollenbeck; Susan Horseman; 
and Clifford M. Horseman,

Jackson County, Missouri;
_________ Appellants.

No. 87-2659

Kalima Jenkins, by her friend, Kamau Agyei, et al,
and Appellants,

A merican Federation of Teachers, Local 691
v.

The State of Missouri, et al,
and Appellees,

School District of Kansas City, Missouri, et al., 
__________________________ Appellees.



51a

No, 88-1073

Kalima Jenkins, by her friend, Kamau Agyei, et al,
and Appellees,

A merican Federation of Teachers, Local 691
v.

The State of Missouri, et al., 
and

School District of Kansas City, Missouri, et al.,
Appellees,

Jackson County, Missouri; W illiam Waris; Bernice 
J. Conley; Gary Panetheire; Beverly 0. Ross; 
Michael Bendergast, their officials,

_________ Appellants.

No. 88-1456

Kalima Jenkins, by her friend, Kamau Agyei, et al.,

and
A merican Federation of Teachers, Local 691

v.
The State of Missouri, et al,

an(j Appellees,

School District of Kansas City, et al., 
____  Appellants.

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



52a

JUDGMENT
This appeal from the United States District Court was 

submitted on the record of the district court, briefs of 
the parties and was argued by counsel.

After consideration, it is ordered and adjudged that 
the judgment of the district court is affirmed with re­
spect to the scope of the remedy. We also affirm its or­
der with respect to the property tax, but remand for 
further modifications as provided in this opinion. We re­
verse the judgment of the district court with respect to 
the income tax surcharge and stay any further collec­
tion. Finally, we affirm the order of the district court 
denying the motions of the Clark group and Jackson 
County to intervene.

August 19, 1988
A True Copy.

A ttest :

/s,/ Robert D. St. Vrain
Clerk, U.S. Court of Appeals, 
Eighth Circuit



APPENDIX C

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Nos. 86-1934/2537 
87-1479/2299/2300/2565/2588/2589 

88-1073-WM

Kalima Jenkins, etc., et ai,
Appellees,

v.

The State of Missouri, et al.,
Appellants.

Appeals from the United States District Court 
for the Western District of Missouri

There are now three petitions for rehearing en banc 
pending before the Court. It is hereby ordered that all 
petitions for rehearing en banc are denied.

Judge Pasco M. Bowman and Judge Roger L. Wollman 
would have granted the petitions. Judge Frank J. Magill 
did not participate.

The Court’s mandate shall issue forthwith.

BOWMAN, Circuit Judge, joined by WOLLMAN, Cir­
cuit Judge, dissenting from the denial of rehearing en 
banc.



54a

This is a case of exceptional importance. The remedies 
ordered go far beyond anything previously seen in a 
school desegregation case. The sheer immensity of the 
programs encompassed by the district court’s order— the 
large number of magnet schools and the quantity of capi­
tal renovations and new construction— are concededly 
without parallel in any other school district in the coun­
try. Similarly, in no other case has federal judicial 
power been used to impose a tax increase in order to 
provide funding for a desegregation remedy.

In addition, the case presents the overarching question 
of whether these court-ordered programs and court-or­
dered taxes are Constitutionally required in order to 
rectify the vestigial effects of legally mandated segrega­
tion (dead now for over thirty years) or instead rep­
resent an unsupportable exercise of judicial power in a 
legislative-style attempt to solve social problems that 
have their origins in other causes.

In over five years on the bench, I have not seen a case 
more deserving than this one of thoughtful consideration 
by the entire Court. The decision as it stands appears 
to arrogate to the federal judicial vast powers that un­
der the Tenth Amendment are reserved to the states or 
to the people. I therefore regret that a majority of the 
Court has voted to deny the petitions for rehearing en 
banc.

A True Copy.
A ttest :

Clerk, U.S. Court of Appeals, Eighth Circuit.



APPENDIX D

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

v.

State of Missouri, et al.,
Defendants

ORDER
Pursuant to Rule 60(a),  F.R.C.P., the Court hereby 

amends its order of November 13, 1987 to state that 
penalties for nonpayment of the increased tax shall only 
be assessed on amounts delinquent as of January 1 , 1988. 
The November 13, 1987 order mistakenly reflected a date 
of January 1, 1987.

IT IS SO ORDERED.

/ s /  Russell G. Clark 
Russell G. Clark 
United States District Judge

Nov. 16, 1987



56a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et at.,
Plaintiffs,

v.

State of Missouri, et al,
Defendants.

ORDER
Presently before the Court is plaintiffs’ motion to 

amend the Court’s orders of September 15 and October 
27, 1987 in which it provided for an increase in tax 
revenues to fund KCMSD’s share of the desegregation 
remedies. The KCMSD does not oppose this motion and 
the State of Missouri has notified the Court that it will 
not file a response. Pursuant to Rule 59(e),  F.R.C.P., 
the Court will amend the subject orders as set forth in 
this order.

The plaintiffs claim that the Court failed to include 
savings and loan institutions, estates, trusts, and bene­
ficiaries in its list of entities whose income is subject to 
the income tax surcharge ordered by the Court. On the 
contrary, these entities are subject to the surcharge as 
explained in paragraph 1 of the Court’s October 27, 1987 
order. The Court notes that paragraphs 2 and 3 on page 
2 of the October 27th order simply provide examples of 
the entities which are subject to the income tax sur­
charge and were not intended to be an exhaustive list.



57a

The plaintiffs correctly point out an error on page 2 of 
the Court’s October 27, 1987 order in which it stated that 
the income tax surcharge would increase the current tax 
rate on the net income of “ credit unions” from 7% to 
8 %% .  The order should read “ credit institutions” in­
stead of “ credit unions” and the Court amends the order 
accordingly.

The plaintiffs also ask the Court to clarify the collec­
tion and enforcement procedures regarding the income 
tax surcharge. It is the Court’s intent that the income 
tax surcharge be administered and collected under, and 
subject to, existing statutes and regulations which im­
pose the Missouri income tax except to the extent where 
such statutes and regulations are in conflict with the 
Court’s order. In addition, the income tax surcharge 
shall be collected by the Missouri Department of Revenue 
by means of all existing statutory and regulatory mecha­
nisms including the imposition of interest and penalty 
for nonpayment and the referral to county prosecutors 
for the collection under the existing statutory scheme. 
However, penalties for nonpayment of the increased tax 
shall only be assessed on amounts delinquent as of Jan­
uary 1, 1987. This provision will allow employers with 
ample opportunity to modify their current withholding 
mechanisms.

Finally, regarding the Court’s authorizing the State of 
Missouri to withhold its actual cost of collection from the 
revenues received, the plaintiffs request that the term 
“ Missouri Department of Revenue” be substituted for the 
State of Missouri. The basis for this request is that the 
present language would require the amount withheld for 
actual costs to be paid to the general revenues of the 
State of Missouri, and thus the Department of Revenue 
would be reimbursed only by appropriations from the 
General Assembly. Accordingly, the Court amends its 
previous order to authorize the Missouri Department of



58a

Revenue to withhold from the tax revenues its expenses 
incurred in collecting and distributing the tax. For these 
reasons, it is hereby

ORDERED that the Court’s orders of September 15 
and October 27, 1987 are amended as set forth in this 
order.

/ s /  Russell G. Clark 
Russell G. Clark 
United States District Judge

Nov. 13, 1987



59a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

v.

The State of Missouri, et al,
Defendants.

ORDER
Presently before the Court are applications to inter­

vene filed by Jackson County, Missouri, and Icelean 
Clark, et al, a group of individual and corporate tax­
payers. After careful consideration, the Court will deny 
the taxpayers’ motion for leave to intervene but will per­
mit them to participate in amici curiae. The Court will 
deny the motion of Jackson County, Missouri for leave 
to intervene.

Applicants Icelean Clark, et al. seek leave to intervene 
as a matter of right, or in the alternative, permissive in­
tervention, to challenge the Court’s order of September 
15, 1987 in which it increased taxes to fund KCMSD’s 
obligation for the desegregation program. Pursuant to 
Rule 24, Federal Rules of Civil Procedure, intervention, 
whether as a matter of right or permissive, is only ap­
propriate if the application is timely. The determination 
of whether an application to intervene is timely is within 
the discretion of the trial court. NAACP v. New York, 
413 U.S. 345, 366 (1973). The three factors usually



60a

considered in making this determination are: (1) how
far the proceeding has gone when the movant seeks to in­
tervene, (2) prejudice which resultant delay might cause 
to the other parties, and (3) the reason for the delay. 
Nevilles v. EEOC, 511 F.2d 303, 305 (8th Cir. 1975). 
For the following reasons, the Court finds that the tax­
payers’ motion to intervene is not timely.

First, the Court has already considered and passed on 
the issue of how KCMSD’s portion of the desegregation 
plan shall be funded. Secondly, the taxpayers have had 
ample opportunity to file a timely application. In June, 
1985 the Court discussed at length the ability of the 
Court to raise taxes to fund its desegregation remedy 
and actually enjoined the tax levy rollback required by 
§ 164.013, Mo.Rev.Stat. to raise revenues to fund the 
year one desegregation costs for which KCMSD was obli­
gated. Jenkins v. State of Missouri, 639 F.Supp. 19, 44- 
45 (W.D.Mo. 1985). On August 25, 1985, the Court 
again enjoined the tax levy rollback to raise revenues to 
fund KCMSD’s desegregation costs in year two of the 
desegregation plan. In its order dated July 6, 1987 the 
Court stated its intention “ to generate KCMSD’s portion 
of the desegregation funding through imposition of either 
an earnings tax or a state income tax surcharge.” Order 
at p. 16.

For these reasons, the Court finds that the taxpayers 
are not entitled to intervene pursuant to Rule 24, Federal 
Rules of Civil Procedure. However, the Court will permit 
Icelean Clark, et al. to proceed in this case as amici 
curiae. Penick v. Columbus Education Association, 574 
F.2d 889, 890 (6th Cir. 1978).

Jackson County, Missouri has also moved the Court 
for leave to intervene to challenge the tax increases or­
dered by the Court. Jackson County is already before 
the Court on the issue of whether it is obligated to ad­
just and collect the property tax as ordered by the Court 
on September 15, 1987. Therefore, a motion to intervene



61a

on that issue is unnecessary. Regarding all other issues 
in this case, including the specific remedy ordered by the 
Court, Jackson County is not entitled to intervene pur­
suant to Rule 24, Federal Rules of Civil Procedure, be­
cause its renewed application is untimely for the same 
reasons set forth in the Court’s analysis of the taxpayers’ 
motion to intervene. Furthermore, the Court finds that 
intervention at this late stage in the proceedings would 
unduly delay the implementation of the remedy to which 
the plaintiffs are entitled.

Accordingly, it is hereby
ORDERED that the motion of Icelean Clark, et al. to 

intervene is denied; and it is further
ORDERED that Icelean Clark, et al. are permitted to 

proceed in the case as amici curiae; and it is further
ORDERED that the motion of Jackson County, Mis­

souri to intervene is denied.

/ s /  Russell G. Clark 
Russell G. Clark 
United States District Judge

Oct. 27, 1987



62 a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al. ,

Plaintiffs,

v.

The State of Missouri, et a l ,

Defendants.

ORDER

[Filed Oct. 27, 1987]

The plaintiffs and KCMSD have moved the Court to 
alter and amend its order of September 15, 1987 to re­
quire that the revenues from the property tax increase 
and not the income tax surcharge be used to retire the 
capital improvement bonds, and to clarify the income 
tax surcharge. In response, the State defendants claim 
that the Court’s tax remedy is an abuse of discretion 
but request that the Court’s order be clarified so that 
effective administration of the taxes as imposed can be 
accomplished. Pursuant to Rule 59, Federal Rules of 
Civil Procedure, the Court will amend its order of Sep­
tember 15, 1987 to clarify the income tax surcharge and 
to require that the revenues from the property tax in-



63a

crease and not the income tax surcharge be used to re­
tire the capital improvement bonds.

The Court is concerned that the income tax surcharge 
will not support the sale of either the general obligation 
or lease hold bonds ordered by the Court because these 
bonds fail to satisfy Article VI, Section 26(f) of the 
Missouri Constitution which requires a school district, 
before incurring any indebtedness, to “provide for the 
collection of an annual tax on all taxable property there­
in sufficient to pay the interest and principal of the in­
debtedness as they fall due, and to retire the same within 
twenty years from the date contracted.” The revenue from 
the sale of these bonds is necessary to fund KCMSD’s 
portion of the cost of the capital improvements and the 
confidence of potential purchasers in these bonds is es­
sential to their sale. Therefore, the Court orders that 
revenues generated from the $1.95 property tax increase 
ordered by the Court on September 15, 1987 shall be 
used to retire the bonds within twenty (20) years from 
their date of issuance. Any excess revenue generated by 
the $1.95 increase shall be used to fund desegregation 
costs other than capital improvements for which the 
IvCMSD is obligated through the 1991-1992 fiscal year. 
Therefore, the entire $1.95 property tax increase shall 
remain in effect through the 1991-1992 fiscal year. How­
ever, only that portion of the $1.95 increase that is re­
quired to pay the interest and principal of the bond in­
debtedness shall remain in effect until such time as the 
bonds are retired or until other provisions are adopted 
to insure their retirement.

The plaintiffs, the KCMSD, and the State defendants 
have also requested clarification of the income tax sur­
charge ordered by the Court. The income tax surcharge 
increases by 25% the Missouri State Income Tax rate 
on residents and non-residents of the KCMSD, including 
business associations, partnerships and corporations who 
earn income that is subject to Missouri State Income Tax



64a

for work done, services rendered and business or other 
activities conducted within the KCMSD.

For example, pursuant to § 143.011, R.S.Mo., a resi­
dent individual who has a Missouri taxable income of 
$1,500 currently pays an income tax of $15.00 plus 2% 
of the excess over $1,000, for a total tax of $25.00. The 
Court’s income tax surcharge increases this individual’s 
tax by 25% to $18.75 plus 2.5% of the excess over 
$1,000, for a total tax of $31.25. Similarly, the Court’s 
order increases the current income tax on corporations, 
as that term is defined in § 143.441, R.S.Mo., from 5% to 
614%. The current tax rate on the net income of bank­
ing institutions and credit unions as those terms are de­
fined in § 148.020 and § 148.130, R.S.Mo., is increased 
from 7% to 8% % .

In regard to entities which under Missouri law are 
not subject to a net income tax, i.e., insurance companies, 
the Court’s order increases by 25% the tax rate levied on 
the amount taxable per Missouri law. For example, in­
surance companies organized under § 379.010 to 379.203, 
R.S.Mo., currently pay a tax of 2% of the gross premiums 
received. The Court’s order increases that tax by 25% 
from 2% to 2.5%.

The Court also amends its order to make the income 
tax surcharge effective for all income earned after Octo­
ber 1, 1987 to simplify the reporting requirements for 
employers who report withholding on a quarterly basis 
as well as for individuals who file estimated quarterly 
tax returns.

The income tax surcharge shall remain in effect 
through the 1991-1992 fiscal year and the revenues gen­
erated from this increase shall be used to finance the 
desegregation costs other than capital improvements for 
which the KCMSD is obligated. The State, through its 
Department of Revenue, shall collect the increased tax 
and may invest these additional revenues as long as it



65a

remits these revenues plus any interest earned to the 
KCMSD by the 15th day of the month following the 
month in which the payment is made. In addition, the 
Court recognizes that the State of Missouri will incur 
additional costs in collecting the surcharge and therefore 
authorizes the State to withhold from the tax collected 
its actual costs incurred in collecting and distributing the 
tax revenues to the KCMSD. All tax returns and infor­
mation regarding the income tax surcharge are subject 
to the existing confidentiality requirements imposed by 
Missouri statutes. However, the Court reserves the right 
to order occasional audits to insure that the surtax is 
being effectively collected.

The plaintiffs and the KCMSD have also requested the 
Court to adopt their proposed income surtax regulations 
as the initial regulations governing the collection of the 
tax. The Court suggests that the State of Missouri con­
sider these proposed regulations but will not order their 
adoption because the State and not the Court is qualified 
to develop the proper regulations.

The plaintiffs and the KCMSD have also moved the 
Court to clarify its basis for imposing an increase in the 
Missouri State Income Tax upon income earned within 
the boundaries of the KCMSD. The Court finds that this 
information was sufficiently stated in its order of Sep­
tember 15, 1987, and therefore will deny the request.

Accordingly, it is hereby
ORDERED that plaintiffs’ and KCMSD’s motion to 

amend the Court’s order of September 15, 1987, is 
granted in part and denied in part as set forth in this 
order.

/ s /  Russell G. Clark 
Russell G. Clark 
United States District Judge

Oct. 27, 1987



66a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

vs.

State of Missouri, et al,
Defendants.

ORDER
[Filed Sept. 15, 1987]

On August 3-6, and 10-12, 1987, this Court conducted 
a hearing on KCMSD’s motion for approval of its long- 
range capital improvement plan. After careful consid­
eration, the Court approves the plan as modified in this 
order and orders funding of those projects scheduled for 
completion by the fall of 1990. The KCMSD also sub­
mitted for the Court’s approval a student transportation 
plan for the long-range magnet school plan in 1987-88. 
The State objects to the plan and suggests that a hear­
ing on the plan may be required. The Court will defer 
ruling on the motion at this time and will give the parties 
an opportunity to confer in an attempt to reach an agree­
ment on a plan and if necessary to engage in discovery. 
If a hearing is necessary, it is hereby set to commence 
on December 14, 1987 at 9:00 a.m. In addition, KCMSD



67a

had also moved the Court for funding of its projected 
operating and desegregation budget deficits through 
1987-88. The Court will deny the specific relief requested 
by the KCMSD but will provide KCMSD with additional 
resources to fund the share of its known and projected 
costs of the desegregation plan through 1992. Finally, 
AFT 691’s motion for alternate funding relief regarding 
KCMSD teacher salaries will be denied as a specific part 
of this remedial order as the Court is of the opinion that 
any salary increases should be left to the discretion of 
the school board.

Before addressing KCMSD’s request for the Court’s 
approval of its long-range capital improvement plan, a 
brief review of the capital improvements previously or­
dered by the Court is in order. In its original remedy 
order of June 14, 1985, the Court approved $37,000,000 
to be applied toward the most critical capital improve­
ment needs of the KCMSD and reserved judgment as to 
whether additional capital improvements would be 
needed. Jenkins v. State of Missouri, 639 F.Supp. 19, 41 
(W.D. Mo. 1985). On June 16, 1986, the Court author­
ized an additional $12,877,330 in capital improvement 
expenditures for the six schools that became magnets in 
1986-87 under the desegregation plan. Jenkins, 639 F. 
Supp. at 53. At that time the Court also ordered the 
KCMSD to submit a long-range capital improvement plan 
by January 5, 1987. Id.

Next, the Court approved $52,858,301 for capital im­
provements to eleven KCMSD schools that are to become 
magnets in the fall of 1987 under the court-ordered long- 
range magnet school plan. Order of November 12, 1986 
at p. 5. Most recently, the Court approved $7,376,135 for 
the purchase and renovation of the Jewish Community 
Center for use as a temporary performing arts middle 
school magnet in 1987-88. Order of April 29, 1987 at 
p. 3.



68a

Turning to the matter presently before the Court, the 
KCMSD has submitted a $265,000,000 long-range capital 
improvement plan calling for the renovation and con­
struction of approximately 72 schools and six other facili­
ties through the fall of 1996. The Desegregation Moni­
toring Committee unanimously approved the plan on Feb­
ruary 2, 1987. The plaintiffs and AFT 691 are generally 
in favor of KCMSD’s plan. On the contrary, the State 
strongly opposes the plan and has submitted an alternate 
proposal calling for approximately $61,000,000 in renova­
tions to existing KCMSD schools.

The present conditions of the KCMSD schools have 
been improved by the $37,000,000 in capital improve­
ments undertaken pursuant to the Court’s order of June 
14, 1985 (testimony of Dr. R. Hunter, KCMSD Exh. 7). 
This work has primarily been on the exteriors of the 
school buildings and the surrounding playgrounds which 
has resulted in making them weatherproof and thus pre­
venting further deterioration. The improved exterior ap­
pearance of these schools serves as an increased incentive 
for parents to enroll their children in the KCMSD. How­
ever, the overall condition of the KCMSD school build­
ings, particularly the interiors, is generally depressing 
and thus adversely affects the learning environment and 
continues to discourage parents who might otherwise en­
roll their children in the KCMSD (testimony of Dr. 
Hunter, C. Eppes, D. Osbourn, KCMSD Exh. 6).

The KCMSD facilities still have numerous health and 
safety hazards, educational environment hazards, func­
tional impairments, and appearance impairments (testi­
mony of Dr. Hunter, KCMSD Exh. 6). The specific prob­
lems include: inadequate lighting; peeling paint and
crumbling plaster on ceilings, walls and corridors; loose 
tiles, torn floor coverings; odors resulting from unven­
tilated restrooms with rotted, corroded toilet fixtures; 
noisy classrooms due to lack of adequate accoustical 
treatment; lack of off street parking and bus loading for



69a

parents, teachers and students; lack of appropriate space 
for many cafeterias, libraries, and classrooms; faulty 
and antiquated heating and electrical systems; damaged 
and inoperable lockers; and inadequate fire safety sys­
tems (testimony of Dr. Hunter, C. Eppes, D. Osbourn, 
C. DesMoineaux, KCMSD Exh. 6). The conditions at 
Paseo High School are such that even the principal stated 
that he would not send his own child to that facility 
(testimony of R. Meadows).

Unquestionably, the deterioration of the KCMSD fa­
cilities is due to deferred maintenance by the KCMSD. 
However, as the Court found in its order of November 
12, 1986, the State of Missouri by its constitutional viola­
tions and subsequent failure to affirmatively act to re­
move the vestiges of the dual school system certainly 
contributed to an atmosphere which prevented the 
KCMSD from raising the funds to maintain its schools. 
Order at p. 4. Furthermore, the Court has the responsi­
bility of providing the victims of unlawful segregation 
with the educational facilities that they have been un­
constitutionally denied. Therefore, a long-range capital 
improvement plan aimed at eliminating the substandard 
conditions present in KCMSD schools is properly a de­
segregation expense and is crucial to the overall success 
of the desegregation plan.

STATE’S CAPITAL IMPROVEMENT PROPOSAL
The State of Missouri has submitted a capital improve­

ment plan to remedy what it perceives as the substandard 
conditions present in the KCMSD (State Exh. 8). The 
scope of the work contained in the State’s plan is esti­
mated to cost $61,074,565, approximately $200,000,000 
less than the estimated cost of KCMSD’s long-range capi­
tal improvement plan. For the following reasons, the 
Court finds that the State’s proposal is unsatisfactory be­
cause it fails to remedy the substandard conditions in 
the KCMSD schools.



70a

First, the State failed to consider the criteria of sub­
urban comparability in evaluating the capital improve­
ments to be made to the KCMSD schools. The Court in 
its order of June 14, 1985 specifically stated that capital 
improvements needed to bring KCMSD’s facilities to a 
point comparable with the facilities in the neighboring 
suburban districts should be reviewed. Notwithstanding, 
Dr. Robert Bartman, Acting Commissioner of Education 
for the State of Missouri, instructed its architect, David 
Pearce, to only estimate the capital improvements neces­
sary to eliminate health and safety hazards and to provide 
a good learning environment. Mr. Pearce testified that 
he compiled his estimates before he visited any suburban 
schools.

Specifically, the State’s proposal does include funds for 
work needed on the electrical, mechanical, and ventilating 
systems to meet code requirements. However, the State’s 
proposal does not provide sufficient funds for the updat­
ing of those systems to insure that the equipment does 
not suffer frequent breakdowns (testimony of D. Os­
bourn, C. DesMoineaux). In addition, the State proposes 
to paint only those specific areas on walls and ceilings 
which are repaired (testimony of D. Pearce). With re­
gard to floor coverings, the State proposes to replace only 
those tiles which are loose or damaged with a new tile of 
similar color and style. Likewise, only the sections of 
carpeting which are worn or torn would be replaced un­
der the State’s plan. This “patch and repair” approach 
proposed by the State would not achieve suburban com­
parability or the visual attractiveness sought by the 
Court as it would result in floor coverings with unsightly 
sections of mismatched carpeting and tile, and individual 
walls possessing different shades of paint.

The Court also questions whether the State has budg­
eted sufficient funds to perform the limited scope of work 
that it proposes. For example, the State budgeted only 
$5,000 for plastering at Paseo High School, unquestion­



71a

ably one of KCMSD’s facilities most in need of renova­
tion or reconstruction (testimony of Dr. Hunter, D. 
Pearce, D. Osbourn). KCMSD has budgeted approxi­
mately $211,000 for plastering and $230,000 for interior 
painting at the same institution.

Other deficiencies in the State’s proposal are a lack of 
funds for accoustical treatment in classrooms, or for floor 
covering on the bare concrete floors found in many rest­
rooms. Such covering would eliminate one of the primary 
causes of the stench in these toilet areas (testimony of 
D. Osbourn). Furthermore, the State’s proposal only 
provides, handicap access, to one level of each KCMSD 
school, thereby restricting handicapped students’ access 
to many of the facilities and special programs offered by 
the KCMSD (testimony of C. Eppes). The State does 
not provide any funds for locker repair despite testimony 
by its own architect that many of the lockers are dam­
aged, rusted, and missing doors. The State’s plan does 
not include funding to reconfigure spaces within the 
KCMSD schools to provide adequate classrooms, library, 
cafeteria, and administrative areas.

The Court also notes that the State failed to estimate 
the cost necessary to provide magnet facilities needed to 
implement the long-range manget school plan approved 
by the Court on November 12, 1986. The State argues 
that the broad contours of the magnet relief ordered are 
uncertain at best and suggests that the Court “ reserve 
judgment on magnet related projects to a time when the 
scope of the magnet relief is more certain.” State’s Al­
ternative Proposals Concerning Remaining Capital Im­
provements Funding for KCMSD, 6/3/87 pp. 29-30. The 
Court is certainly not surprised by the State’s “wait and 
see” position but finds that such an approach would seri­
ously damage the prospects of true desegregation in the 
KCMSD. The magnet plan is working as evidenced by 
the large number of applications for the magnet pro­
grams from students new to the KCMSD, and this Court



72a

is committed to its full implementation and will order 
the construction of the magnet facilities as part of the 
long-range capital improvement plan.

In conclusion, if the KCMSD schools underwent the 
limited renovation proposed by the State, the schools 
would continue to be unattractive and substandard, and 
would certainly serve as a deterrent to parents consider­
ing enrolling their children in KCMSD schools. There­
fore, the Court rejects the State’s plan and will next con­
sider the long-range plan submitted by the KCMSD.

KCMSD’S LONG-RANGE CAPITAL 
IMPROVEMENT PLAN

The KCMSD has submitted for the Court’s approval a 
long-range capital improvement plan which calls for the 
renovation of approximately 55 schools, the closure of 18 
facilities, and the construction of 17 new schools by the 
fall of 1996. However, the KCMSD is presently seeking 
funding for only that portion of the plan which is sched­
uled for completion by the fall of 1990. KCMSD esti­
mates the cost of these renovations and new facilities at 
$194,328,578.

The KCMSD employed three architectural firms to re­
view all its school facilities and determine what work 
was necessary to renovate the buildings. These architects 
applied the criteria set forth by the Court in estimating 
the scope of the work required to remedy the deteriorat­
ing conditions that exist in the KCMSD as a result of 
unlawful segregation. The result of their evaluations are 
contained in the 1985 capital improvement study 
(KCMSD Exh. 23). These architects have amended these 
estimates to reflect work which has been completed, or 
will be completed pursuant to previous court orders and 
to reflect inflation (KCMSD Exh. 13, 14, 15 and 18). 
These renovations will eliminate the existing health and 
safety hazards identified by the Court and will correct 
the conditions which impede the level of comfort needed



73a

for the creation of a good learning environment. Equally 
important, these renovations proposed by the KCMSD, 
unlike those contained in the State’s plan, will make the 
KCMSD visually attractive and reasonably comparable to 
the suburban Kansas City, Missouri schools (testimony 
of Dr. Hunter, D. Osbourn, C. Eppes). The remedy pro­
posed by the KCMSD is not a “patch and repair”  ap­
proach, but rather a comprehensive plan to restore 
KCMSD school facilities to an environment in which chil­
dren can learn. The Court finds that the capital improve­
ments proposed by the KCMSD to eliminate health and 
safety hazards and to improve the visual attractiveness 
and comfort level of the KCMSD schools are necessary 
and that their costs are reasonable.

The remaining portions of KCMSD’s long-range capi­
tal improvement plan primarily consist of the expansion 
of existing facilities and the construction of new facili­
ties. Before addressing these specific proposals, the Court 
must first review the enrollment projections on which 
KCMSD’s long-range capital improvement plan is based.

The Court acknowledges that it is very difficult to pre­
dict what the enrollment will be in the KCMSD over the 
next ten years. Student enrollment in the KCMSD de­
clined from 70,756 students in 1970-71 to 39,078 students 
in 1980-81 (KCMSD Exh. 19). Enrollment has continued 
to decline since 1980-81 but at a lesser rate with signs of 
a leveling off. If approved, the KCMSD long-range capi­
tal improvement plan will produce capacity for 44,890 by 
1995, with a capacity of 22,183 in the elementary schools, 
10,499 in the middle schools, and 12,210 in the high 
schools (testimony of Dr. Hunter, KCMSD Exhs. 13, 14 
and 15). This plan provides capacity for an enrollment 
greater than the enrollments projected by the1 State of 
Missouri and the KCMSD using the cohort survival 
method which is based on the presumption that past en­
rollment trends will continue (State Exh. 19, KCMSD 
Exh. 24 at Tab A, Appendix 1, Table 26). However, the



74a

Court finds that the long-range capital improvement plan 
should not be based upon this presumption because it is 
very likely that enrollment in the KCMSD will increase 
due to the court-ordered upgrading of the regular school 
curriculum, the implementation of the long-range magnet 
school plan, and the improvements in capital facilities 
which have been completed and which will be made as a 
result of this order.

Because of the inadequacy of the cohort survival en­
rollment projection, Dr. Hunter, the educational expert 
who developed the long-range capital improvement plan, 
requested the Mid-America Regional Council to estimate 
the future enrollment of the KCMSD using a “ capture 
rate” analysis. The capture rate is simply the percent­
age of students who live in the KCMSD who actually 
attend KCMSD schools. The study concluded that if the 
capture rate attained by the KCMSD in 1970 were re­
achieved in 1995, the student population would total 
47,898 (testimony of Dr. Hunter, KCMSD Exh. 24 at 
Tab A, KCMSD Exh. 19). The Court finds that this 
estimate is more accurate than that calculated using the 
cohort survival method and yet KCMSD’s plan is con­
servative because it does not provide for all the capacity 
necessary to accommodate a 1995 enrollment based on 
the 1970 capture rate. Therefore, the Court finds that 
KCMSD’s long-range capital improvement plan is based 
upon appropriate enrollment projections and will now 
address the expansions and new construction proposed in 
the plan.

KCMSD’s proposal provides funds for the expansion 
of certain classrooms, learning resource centers, cafe­
terias, art and music rooms, and administrative areas. 
Dr. Hunter testified that these facilities were deficient in 
size and prepared specifications for standard facilities 
needed to house adequate educational programs (KCMSD 
Exhs. 2, 3 and 4). His recommendations are comparable 
to those made by the Missouri State Department of Ele­



75a

mentary arid Secondary Education (KCMSD Exh. 11). 
Furthermore, Dr. Hunter’s recommendations were made 
only after he had visited each of the KCMSD schools and 
eleven of the suburban schools (testimony of Dr. 
Hunter). The Court finds that the expansion of these 
facilities is necessary to provide a good learning environ­
ment and that the costs of such expenditures are reason­
able.

KCMSD’s proposal also includes funding for the con­
struction of specialized facilities needed for implementa­
tion of the long-range magnet school plan approved by 
the Court. Phale Hale, a magnet school expert who co­
authored the long-range magnet school plan approved by 
the Court, developed the facilities requirements for the 
long-range magnet school plan (KCMSD Exh. 5). These 
improvements are in addition to the approximately 
$53,000,000 in capital improvements approved by the 
Court for the schools scheduled to become magnets in 
1987. The magnet school plan is crucial to the success 
of the Court’s total desegregation plan and the KCMSD 
cannot effectively implement the magnet programs with­
out special facilities. The question before the Court is 
whether the improvements proposed are necessary to 
carry out the magnet programs approved by the Court.

One example is the Kansas City Technical Center, a 
four year vocational and technical magnet high school 
which is designed to prepare students upon graduation 
to either enter college, obtain entry level employment, or 
both. This magnet will offer programs ranging from 
heating and air conditioning to cosmetology to robotics. 
Consequently, these programs require special equipment 
and spacious work areas in which to instruct the stu­
dents. The estimated cost for Kansas City Tech is 
$13,278,603, which also includes funds for an expanded 
cafeteria, athletic facilities, and other facilities essential 
for the operation of a regular high school. The Court 
finds that all of the facilities proposed for the Kansas



76a

City Technical Center and all the special facilities re­
quested for the other magnet programs are necessary to 
implement the long-range plan and that the estimated 
costs of these additional facilities are reasonable.

The long-range capital improvement plan also calls for 
the closure of eighteen KCMSD school facilities, 15 of 
which are currently operating as schools, and the con­
struction of seventeen new schools, the last of which is 
a new middle school III scheduled for completion by the 
fall of 1993. The criteria used by the KCMSD to deter­
mine whether to renovate a school or build a new facility 
was that buildings with renovation costs, of $45 per 
square foot or more should be replaced (testimony of Dr. 
Hunter). The estimated cost of construction of the new 
schools ranges from $61.80 per square foot for middle 
schools I and III to $95.70 per square foot for the new 
Attacks Elementary School. Both the architects for the 
KCMSD and the State of Missouri stated that buildings 
with renovation costs of more than 50% of the cost of 
new construction are candidates for replacement (testi­
mony of D. Osbourn, D. Pearce).

The most expensive of the proposed new constructions 
is Paseo High School at an estimated cost of $13,991,375, 
excluding architectural fees and inflation (KCMSD Exh. 
15). The renovation of the existing facility which in­
cludes the addition of special magnet facilities would cost 
an estimated $8,033,100 (KCMSD Exh. 15). The Court 
finds that it would be imprudent to renovate Paseo High 
School rather than build a new facility because both the 
architects for the KCMSD and the State stated that 
Paseo High School is near the end of its useful life (testi­
mony of D. Osbourn, D. Pearce). In addition, it is essen­
tial to the success of the magnet school plan that Paseo 
High School be one of the most attractive magnet pro­
grams because it is located in an area which is consid­
ered difficult to desegregate (testimony of Dr. Hunter). 
Therefore, the Court approves the construction of a new



77a

Paseo High School and the sixteen other new facilities 
proposed in the long-range capital improvement plan. 
However, the Court approves funding of only those facili­
ties scheduled for completion by the fall of 1990, and re­
serves final judgment on the remaining schools until a 
time when more current enrollment figures are available.

The Court also approves the closure of Attucks, Faxon, 
Gladstone, Greenwood, Holmes, Knots, Kumpf, Manches­
ter, Pershing, Pitcher, Switser, Thatcher, Willard, Wood­
land, Linwood West, and Norman Elementary Schools. 
The Court will not establish closing dates at this time 
so that these schools may be used to house students while 
other facilities are being renovated or constructed under 
the long-range capital improvement plan.

KCMSD’s plan also requests funding for the renova­
tion of East Stadium, Southeast High Stadium and 
Arena, the Norman Administrative Center, Linwood, and 
Linwood West. The Court finds that these additional fa­
cilities are in need of renovation but finds that the 8% 
amount allotted for architectural and engineering fees, 
which is included in the total cost of their renovation, is 
excessive. The State’s expert David Pearce testified that 
6% is a customary architectural fee in school capital im­
provement projects. Therefore, the Court approves these 
renovations but in a lesser amount to reflect architec­
tural fees of 6%. Similarly, the Court will only approve 
a 6% architectural fee for all the other renovations and 
new constructions approved by the Court as part of the 
long-range capital improvement plan.

In addition, the KCMSD did not present any evidence 
regarding its request for a furniture budget for schools 
to be renovated under the plan and for schools previously 
renovated. The Court simply cannot consider such re­
quests without knowing the quantity and quality of the 
furniture that is presently available in the KCMSD.



78a

The KCMSD has adjusted the estimated costs of its 
long-range capital improvement plan by 5% a year to 
reflect inflation. The Court finds that this percentage is 
reasonable and will apply it to the estimated costs of the 
plan as modified by this Court.

Finally, the KCMSD has also requested funding for a 
project management team which would oversee the im­
plementation of the long-range capital improvement plan. 
The team, a joint venture of J.E. Dunn Construction 
Company and the Allied Companies, would utilize the 
architects, engineers and other specialists from these four 
firms in acting as KCMSD’s agent in supervising the 
architects and contractors who are hired to perform the 
renovations and new construction set forth in the plan. 
In addition, the project management team will provide 
other professional services including project scheduling, 
cost control, quality control, and site selection (testimony 
of Robert Barrett, KCMSD Exh. 22). The KCMSD has 
negotiated a contract, pending this Court’s approval, with 
this project management team which provides that the 
team will receive compensation of $12,750,000 or 4% of 
the total capital improvements program expenditures for 
phases IV through VIII of the capital improvements pro­
gram, whichever is less (KCMSD Exh. 22).

The Court finds that it is not feasible for the KCMSD 
to manage internally a program of the magnitude of the 
proposed long-range capital improvement plan. It is es­
sential that the renovations and construction are com­
pleted on schedule and at costs within the budget ap­
proved by the Court. The Court finds that the project 
management team is necessary to effectively implement 
the plan and the Court is confident that the team will 
effect cost savings considerably more than the cost of the 
project management team. Accordingly, the Court ap­
proves the contract entered into between the KCMSD



79a

and the project management team (KCMSD Exh. 22) 
but approves the budget for the supervision and planning 
for only the first three years of the long-range capital 
improvement plan.

For the reasons set forth, the Court approves KCMSD’s 
long-range capital improvement plan as modified in this 
order and orders the funding of those projects scheduled 
for completion by the fall of 1990 in accordance with 
Attachment A. [*]

The plan approved by the Court does not include costs 
of acquiring or preparing sites for the new facilities. In 
addition, the Court acknowledges that the KCMSD will 
incur additional costs in relocating students while the 
approved capital improvements are completed. Accord­
ingly, KCMSD is directed to submit these costs to the 
Court for approval and funding as soon as they become 
known.

The total amount of funding approved by the Court 
for those projects scheduled for completion by the fall of 
1990 is $187,450,334. The State of Missouri and the 
KCMSD are jointly and severally liable for this amount 
with contribution between the two constitutional violators 
to be $93,725,167 each.

These capital improvements will have a service life of 
at least 30 to 50 years and the KCMSD will continue to 
benefit from them long after the hopeful success of the 
desegregation plan has been realized. For this reason the 
Court departs from the 3 to 1 apportionment generally 
set forth in previous remedial orders.

[* The charts comprising Attachment A, as well as those com­
prising Attachment B, Pet. App. 85a, are not included in this 
Appendix. Instead, ten copies of the attachments have been lodged 
with the Clerk of this Court.]



80a
KCMSD’S 1987-88 MAGNET SCHOOL 

TRANSPORTATION PLAN
Also before the Court is KCMSD’s motion for approval 

and funding of the 1987-88 incremental transportation 
costs attributable to the long-range magnet school plan 
ordered by the Court. KCMSD states that in 1986-87 it 
expended $1.4 Million to transport students to the three 
magnet programs at the Lincoln College Preparatory, 
the Southwest Cluster, and the Westport Community Ap­
plied Learning Magnet. KCMSD projects that the im­
plementation of the 13 new magnet programs in 1987-88 
will increase the total transportation costs for the mag­
net schools to $4,490,836. However, approximately $2.2 
Million of this amount represents the cost that would 
have been incurred in operating traditional transporta­
tion routes at these schools even if there had been no 
magnet school program. Thus, KCMSD requests the 
Court to order the State to pay 75% of the remaining 
$2,294,075 cost of transportation required by the mag­
net program.

In response, the State requests that the plan be denied 
in its entirety or in the alternative that a hearing should 
be held at a future date to allow adequate discovery as 
to how and by whom the plan was developed and whether 
it is adequate and cost effective. As stated earlier, the 
parties should confer and see if they can reach an agree­
ment on a plan. If needed, the parties may engage in 
discovery and if necessary a hearing will be held during 
the week of December 14, 1987. The KCMSD may imple­
ment the plan if it desires with the understanding that 
the Court has not approved the plan or ordered the State 
to fund any portion of the plan over and above the regu­
lar State aid under the standard formula.

KCMSD’S MOTION FOR FUNDING RELIEF
In its order of July 6, 1987, the Court deferred ruling 

on KCMSD’s motion for funding relief until after the 
Court had ruled on the long-range capital improvement



81a
plan. The Court did so because it wanted an accurate 
estimate of not only KCMSD’s deficit through fiscal year 
1987-88, but also KCMSD’s financial obligations under 
the overall desegregation plan through 1991-92.

Before setting forth the financial obligations of the 
KCMSD under the remedial plan, the Court must correct 
its order of July 6, 1987 which approved the year 3 de­
segregation budget. The Court, pursuant to the request 
of the KCMSD, included the 1987-88 implementation 
cost of the long-range magnet school plan in the 1987-88 
desegregation budget. The total implementation cost for 
the 1987-88 magnets is $17,137,993, of which $13,946,729 
was previously approved by the Court in its order of 
November 12, 1986. In that previous order, the Court 
found the State of Missouri and the KCMSD jointly and 
severally liable for $8,908,406 of this amount, with the 
State solely liable for $5,038,323. This apportionment of 
liability for the $13,946,729 remains unchanged as will 
the Court’s apportionment for the remaining implemen­
tation costs approved in the November 12, 1986 order. 
While the Court’s apportionment for the KCMSD is more 
than 25% in year 1987-88 under the November 12, 1986 
order, the percentage of liability for the implementation 
costs decreases to approximately 13% in 1991-92 under 
the plan. The KCMSD’s total portion of the implemen­
tation costs and capital expenditures for the long-range 
magnet school plan approved in the November 12, 1986 
order is approximately 25%, and thus is consistent with 
the Court’s previous orders.

Therefore, in determining KCMSD’s contribution to 
the year 3 desegregation budget, the Court mistakenly 
applied 25% to the entire 1987-88 implementation cost 
of the long-range magnets when the liability for $13,946,- 
729 of that amount had already been apportioned. The 
25% should only have been applied to the $3,191,264 
in additional magnet base costs that the Court approved 
in its July 6, 1987 order. Therefore, the Court corrects 
page 12 of the order to reflect the following apportion­
ment :



82a

1987-88 Desegregation Budget

KCMSD’S State’s
Total Contribution Contribution

Public Information 30,000.00 7,500.00 22,500.00
Desegregation Monitoring 

Office
Program Evaluation 
Desegregation Monitoring 

Committee

— 0 —  

— 0 —

256,228.00 64,057.00 192,171.00
Effective Schools 6,555,000.00 1,638,750.00 4,916,250.00
Reduction in Class Sizes 

Total 8,450,135.00 2,112,534.00 6,337,601.00
Summer School 1,295,764.00 323,941.00 971,823.00
Full Day Kindergarten 1,826,964.00 456,741.00 1,370,223.00
Before and After School 

Tutoring 233,759.00 58,440.00 175,319.00
Early Childhood Education 3,102,178.00 775,545.00 2,326,633.00
Long-Range Magnet School 

Plans 17,137,993.00 5,252,019.00 11,885,974.00
1986-87 Magnets 12,257,529.00 3,064,383.00 9,193,147.00
AAA Achievement 6,340,614.00 1,585,154.00 4,755,460.00
SWAS, DRP and STEPS 
Facilities Improvements 

(interest)

— 0 —

353,061.00 88,265.00 264,796.00
Totals 57,839,225.00 15,427,329.00 42,411,897.00

In calculating the financial obligations of the KCMSD 
under the Court’s overall plan for which the district lacks 
funding, the Court finds that the KCMSD suffered a 
deficit of $1,092,365 in 1986-87 in implementing the 
long-range magnet school plan based on its obligation of 
$4,158,136 and expenditures of $3,065,771. In addition, 
the Court approved a total of $60,234,436 in capital im­
provements for the long-range magnet plan in its orders 
of November 12, 1986 and April 29, 1987, with KCMSD’s 
share set at $30,117,218. KCMSD has currently ex­
pended $3,027,413 for these improvements in 1986-87 
but is without revenues to fund the balance of its share 
of these capital improvements, or $27,089,805.



83a

For fiscal year 1987-88, KCMSD projects an operating 
budget of $121,342,253 and total revenues of $110,558,418, 
creating a deficit of $10,783,835. Included in the op­
erating budget is approximately $7.15 Million for addi­
tional teachers and for salary increases for present 
teachers, $2,240,000 for facilities maintenance, and 
$869,189 for special education students. The AFT 691 
has moved the Court to order a teacher’s salary schedule 
larger than that included in the KCMSD 1987-88 oper­
ating budget.

The Court finds that the KCMSD has an obligation not 
only to eliminate the effects of unlawful segregation but 
also to insure that there is no diminution in the quality 
of its regular academic program. Bradley v. Milliken, 
540 F.2d 229, 245 (6th Cir. 1976), aff’d, 433 U.S. 267 
(1977), citing Hart v. Community School of Brooklyn, 
383 F.Supp. 699, 741 (E.D. N.Y. 1974), aff’d, 512 F.2d 
37 (2d Cir. 1975). Therefore, it is essential that the 
KCMSD have sufficient revenues to fund an operating 
budget which can provide quality education, including a 
high quality faculty. The Court is quite aware that the 
KCMSD’s teacher salary position, in comparison with 
the surrounding school districts, has deteriorated signifi­
cantly because of KCMSD’s failure to obtain passage of 
a tax levy to fund teacher salary raises. Consequently, 
KCMSD’s ability to attract new teachers and retain pres­
ent teachers has been restricted. While the revised sal­
ary schedule proposed by the KCMSD would not equal 
those in suburban districts, it will certainly make the 
KCMSD more attractive to new teachers and more pleas­
ing to its present teachers. As stated at the beginning 
of the order, the Court will not order either of the salary 
proposals submitted by the KCMSD and AFT 691 be­
cause this decision properly lies within the discretion of 
the school board. However, the Court will provide KCMSD 
with revenues of $7,147 Million per fiscal year through 
1991-92 to fund teacher salary increases, and revenues



84a
of $3,109,189 per year to fund the costs of facilities 
maintenance and special education students.

The KCMSD is also without resources to finance its 
portion of the 1987-88 desegregation budget, $15,427,329, 
which includes the 1987-88 implementation cost of the 
long-range magnet school plan. In addition, the KCMSD 
is without the funds to pay its proposed share of the 
1987-88 transportation costs of the magnet plan, esti­
mated by it to be $573,518. KCMSD is also obligated in 
1987-88 to fund $6,069,801 in capital improvements pur­
suant to the long-range capital improvement plan ap­
proved by the Court. Finally, the Court estimates that 
site selection and student relocation costs associated with 
the long-range capital improvement plan will be approx­
imately $4 Million per year, with KCMSD’s portion to be 
$2 Million per year (affidavit of Roger Gaunt). In sum­
mation, the KCMSD has financial obligations under the 
Court’s overall desegregation plan for 1986-87 and 1987- 
88 of $62,509,653 for which it lacks resources to fund.

In fiscal year 1988-89, the KCMSD is obligated to fund 
an estimated $4,454,203 for implementation of the long- 
range magnet school plan and $27,399,873 in capital im­
provements pursuant to the long-range capital improve­
ment plan. The Court projects that KCMSD’s portion of 
the magnet school transportation costs for each of the 
next four fiscal years will be $573,518. The Court also 
projects that the KCMSD will have an operating budget 
deficit of $10,256,835 for fiscal years 1988-89 through 
1991-92 due to expenditures needed for teacher salary 
increases, facilities maintenance, and special education 
students. In addition, the Court estimates that the 1988- 
89, 1989-90, 1990-91, and 1991-92 desegregation budgets 
at approximately $44,000,000 per fiscal year, excluding 
the long-range magnet costs approved by the Court in 
its November 12, 1986 order, because of the continuing 
cost of the remedial programs previously ordered by the 
Court. Therefore, the Court finds that the KCMSD will 
experience a deficit of approximately $11,000,000, or 25%



85a
of the desegregation budget, in each of those fiscal years. 
In summation, the Court projects a total deficit of 
$53,684,429 for the KCMSD for 1988-89.

Similarly in 1989-90, the Court projects that the 
KCMSD will experience a deficit of $5,027,721 in long- 
range magnet costs, $63,555,647 in capital improvement 
costs, $10,256,835 in operating budget, and $11,000,000 
in desegregation budget, totaling $89,840,203. Using the 
same method of calculation, the projected deficits for years 
1990-91, and 1991-92 are $42,543,837 and $33,823,793 
respectively, bringing the total deficit to $282,401,915. 
A summary of the KCMSD’s known and projected obliga­
tions through 1991-92 under the Court’s desegregation 
plan is set forth in Attachment B.[*]

In its motion for funding relief, the KCMSD requested 
the Court to enjoin the rollback in the real estate tax 
levy otherwise required under Proposition C (R.S. Mo. 
§§ 163.050 and 164.013). The KCMSD also requested 
the Court to order the State of Missouri to advance to it 
funds for its desegregation and operating expenses that 
it is unable to fund. The KCMSD would then repay the 
State when resources were available.

The Court will not require the State of Missouri to 
fund any of KCMSD’s financial obligations under the 
court-ordered desegregation programs. However, the 
United States Court of Appeals for the Eighth Circuit 
stated clearly that the desegregation remedy ordered by 
this Court shall be fully funded. Jenkins v. State of 
Missouri, 807 F.2d 657, 686 (8th Cir. 1986), and has 
discussed in detail the procedure the district court is to 
follow in achieving this goal. Liddell v. State of Missouri, 
731 F.2d 1294, 1319-23 (8th Cir. 1984).

The record clearly shows that the KCMSD is unable 
with its present resources to raise revenues to fund its

[* Attachment B is not included in this Appendix. Instead, ten 
copies of Attachment B have been lodged with the Clerk of this 
Court.]



86a
share of the costs assessed under the desegregation or­
ders, The KCMSD has exhausted all available means of 
raising additional revenue, including presenting a bond 
issue in 1987 and tax levy increase proposals to the voters 
in four separate elections in 1986 and 1987. The KCMSD 
has not had a bond passage or a levy increase since 
1969. As a result, its physical facilities have literally 
rotted.

Because of KCMSD’s inability to raise additional 
funds under the present system, the Court encouraged 
the Missouri General Assembly to “ explore the possibility 
of enacting legislation that would permit a district in­
volved in a desegregation plan more versatility than it 
presently has to raise funds with which to support the 
program.” November 12, 1986 Order at p. 7. Such leg­
islation was introduced but was received unfavorably and 
ultimately failed. In addition, the State of Missouri and 
the KCMSD have been unable to agree on an alternate 
method of raising KCMSD’s share of the desegregation 
costs. Therefore, the Court has explored all the alterna­
tives set forth by the Eighth Circuit and is left with no 
choice but to exercise its broad equitable powers and en­
ter a judgment that will enable the KCMSD to raise its 
share of the cost of the plan and therefore insure that 
the constitutional violations committed by the KCMSD 
and the State of Missouri are cured.

The United States Court of Appeals for the Eighth 
Circuit has stated that such relief may only be granted 
after the Court has conducted an evidentiary hearing. 
Liddell v. State of Missouri, 731 F.2d 1294, 1323 (8th 
Cir. 1984). However, the plaintiffs, the KCMSD, and the 
State of Missouri have stated that they do not request an 
evidentiary hearing on this issue, and consent to the 
Court’s entry of a judgment based on the record devel­
oped in this case.

A district court’s broad equitable power to remedy the 
evils of segregation includes the power to order tax in-



87a
creases and bond issuances. Liddell v. State of Missouri, 
731 F.2d at 1322. The United States Supreme Court 
has stated that a tax may be increased if “necessary to 
raise funds adequate to . . . operate and maintain with­
out racial discrimination a public school system.” Griffin
V. School Board of Prince Edward County, 377 U.S. 218, 
233, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

A studied estimate of the additional revenues needed 
by the KCMSD to meet its share of the desegregation 
costs during the next five years reveals the sum of ap­
proximately $150,000,000 for capital improvements and 
$135,000,000 for other desegregation costs.

In its order of June 14, 1985, this Court stated that it 
was reluctant to take any action to increase taxes. The 
Court now affirms the statement made in its order of 
August 25, 1986 that it is not insensitive to the fact that 
those patrons of the KCMSD who voted in previous elec­
tions have refused to approve a tax levy increase and a 
bond issue. However, a majority has no right to deny 
others the constitutional guarantees to which they are en­
titled. This Court, having found that vestiges of uncon­
stitutional discrimination still exist in the KCMSD, is 
not so callous as to accept the proposition that it is help­
less to enforce a remedy to correct the past violations. 
Failure of the KCMSD to come forward with its share of 
funds to implement the remedial plan would certainly 
operate to hinder vindication of federal constitutional 
guarantees to which the school children in the KCMSD 
are entitled. This Court cannot shrink its sworn duty to 
uphold the Constitution of the United States (p. 4). The 
Court must weigh the constitutional rights of the tax­
payers against the constitutional rights of plaintiff stu­
dents in this case. The Court is of the opinion that the 
balance is clearly in favor of the students who are help­
less without the aid of this Court.

The Court is of the firm conclusion that it has no alter­
native but to impose tax measures which will enable



88a

KCMSD to meet its share of the cost of the desegregation 
plan. At the Court’s request the parties have submitted 
estimates on revenues which would be generated through 
various tax measures.

The plaintiffs have moved the Court to require KCMSD 
to issue $144,175,000 in general obligation bonds, to add 
a $1.78 property tax levy in the KCMSD, and to impose 
a :1/2 % sales tax effective January 1, 1989 within the 
KCMSD to permit KCMSD to fund its share of the costs 
of the desegregation orders.

During the hearing on the liability issue in this case 
there was an abundance of evidence that many residents 
of the KCMSD left the district and moved to the suburbs 
because of the district’s efforts to integrate its schools 
but continue to be employed in the district. After care­
ful consideration, the Court has determined that it would 
be equitable to involve these people in a plan to help 
defray the district’s desegregation expense.

The Court will impose a 1.5% increase as a surcharge 
on the Missouri State Income Tax (raising the present 
rate on individuals from 6% to 7.5%) on residents and 
nonresidents of the KCMSD, including business associa­
tions, partnerships and corporations who earn salaries, 
wages, commissions and all other compensation and in­
come subject to the Missouri State Income Tax for work 
done, services rendered and business or other activities 
conducted within the KCMSD. This surcharge shall be­
come effective for all income earned after September 25, 
1987. All employers and persons presently legally re­
sponsible for withholding the Missouri State Income Tax 
shall have the same responsibility for withholding the 
1.5% increase. The State through its Department of 
Revenue shall collect the increased tax and remit it to 
the KCMSD within thirty days after its receipt of same. 
KCMSD shall promptly prepare and publish a legal no­
tice of this income tax increase (surcharge) giving no­



89a

tice to all employers within the district and to all per­
sons and entities who receive an income for activities 
performed within the district.

Revenue generated by the income tax surcharge shall 
be used to retire capital improvement bonds which are 
herein authorized. It is anticipated that the surcharge 
will create sufficient revenue for the KCMSD to meet its 
portion of the cost of the capital improvement plan. The 
surcharge shall remain in effect until such time as the 
bonds are retired or until other provisions are adopted 
to insure their retirement.

The KCMSD presently has a tax levy of $2.05 per 
$100.00 assessed valuation. This is much less than the 
tax levy of any neighboring school district. In order to 
fund the other desegregation costs other than capital im­
provements for which it is obligated the district needs 
approximately $27,000,000 additional per year through 
the 1991-92 school year. A property tax increase of 
$1.95 per $100 assessed valuation would generate about 
$27,000,000 annually. Therefore the Court will order the 
property tax levy to be increased to $4.00 per $100 as­
sessed valuation through the 1991-92 fiscal year.

The KCMSD is directed to issue capital improvement 
bonds in the total amount of $150,000,000 to be retired 
within 20 years from, the date of issue. The board is au­
thorized to issue credit enhanced leasehold revenue bonds 
and general obligation bonds in such proportion as the 
school board, in its discretion, determines to be most ad­
vantageous to the district.

In accordance with the foregoing memorandum, it is
ORDERED that the motion of the KCMSD for the 

approval of its capital improvement plan is approved as 
modified herein; and it is further

ORDERED that the motion of the KCMSD for ap­
proval of its student transportation plan for the long-



90a

range- magnet school plan is deferred and if a hearing is 
necessary on the plan it is set to commence on Monday, 
December 14, 1987 at 9:00 a.m.; and it is further

ORDERED that the motion of AFT 691 for alternate 
funding relief regarding the salaries of the KCMSD 
teachers is denied; and it is further

ORDERED that the motion of KCMSD for funding is 
granted in part in that it is ordered that in order to 
fund the obligation of the KCMSD for the desegregation 
program, a surtax of 1.5% is added to the Missouri State 
Income Tax for all persons and entities receiving income 
for work done, services rendered, and income received 
from activities within the KCMSD and the tax levy for 
the KCMSD is raised to $4.00 per $100 assessed valua­
tion ; and it is further

ORDERED that said increased revenue shall be ap­
plied to satisfy the obligations of the KCMSD as set forth 
in this memorandum.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: September 15, 1987



91a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

vs.

State op Missouri, et al,
Defendants.

ORDER
Pursuant to Rule 60, Fed. R. Civ. P., the Court amends 

its August 19, 1987 order to include Franklin Elementary- 
School on the list of magnet schools which are to receive 
effective schools funding in 1987-88. Franklin shall re­
ceive funding of $125,000.00. In addition, the $125,000.00 
amount allotted Longan School in the August 19, 1987 
order is in error and is amended to read $100,000.00. 
The above revisions result in a total effective schools 
budget for 1987-88 of $6,555,000.00.

Finally, the Court wishes to clarify effective schools 
funding with respect to North Rock Creek and Korte 
Schools. The Court mistakenly treated these schools as 
one institution for purposes of effective schools funding 
in both its July 6, 1987 and August 19, 1987 orders on 
the Year 3 desegregation budget. These schools had each 
received effective schools funding in past years and will 
do so in 1987-88. However, it is unnecessary to order 
an additional $100,000.00 in effective schools funding for 
North Rock Creek/Korte in 1987-88 because the Court’s



92a

July 6, 1987 order only eliminated $100,000.00 of the 
total $200,000.00 that the KCMSD had requested for 
these schools. The $100,000.00 eliminated by the Court 
was reawarded in its August 19, 1987 order.

Accordingly, it is hereby
ORDERED that the Court’s August 19, 1987 order is 

amended as set forth in this order.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: August 24, 1987



93a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

vs.

State of Missouri, et al,
Defendants.

ORDER
[Filed Aug. 19, 1987]

This case comes before the Court on KCMSD’s motion 
to amend the Court’s July 6, 1987 order on the 1987-88 
desegregation budget. KCMSD’s request for continuation! 
of effective schools funding for the new magnet schools 
will be granted. KCMSD’s request for additional effec­
tive schools funding will be denied. KCMSD’s request 
that the Court recognize the cost of relocating students 
during court ordered capital facilities work at Lincoln 
Academy and Lincoln South Middle School will be granted. 
Finally, KCMSD’s request for funding of evaluation ex­
penses will be denied.

Effective Schools Funding

In its order of July 6, 1987, the Court eliminated effec­
tive schools funding for thirteen schools scheduled to be-



94a

come magnets under the long-range magnet school plan 
in 1987-88. The Court did so because one purpose of the 
magnet program is to achieve the same goal of increased 
student achievement sought by the effective schools pro­
gram. However, after reconsidering the testimony given 
by Dr. Daniel Levine at the September 16, 1986 hearing 
on the long-range magnet school plan (Tr. 234-235), the 
Court finds that the effective schools funding is needed to 
ensure that the basic curriculum in the magnet schools 
is equal to that in the nonmagnets. This equality is nec­
essary to attract students from private schools and sub­
urban districts and to provide all students, presently in 
the KCMSD with the strong basic education that they 
have been unconstitutionally denied. Accordingly, the 
Court continues effective schools funding in the follow­
ing amounts for the schools which are scheduled to be­
come magnets under the long-range magnet school plan 
in 1987-88.

Elementary

Longan $125,000.00
Moore $100,000.00
Mt. Washington $100,000.00
North Rock Creek/Korte $100,000.00
Fairmont $100,000.00
Sugar Creek $100,000.00

Middle Schools

New Paseo $100,000.00
Lincoln South $20,000.00
Bingham $20,000.00
Central $20,000.00
Southeast $20,000.00

High Schools

Northeast $100,000.00
Total $905,000.00



95a

This additional funding increases the total effective 
schools budget for 1987-88 to $6,455,000.00. As stated in 
the Court’s July 6, 1987 order, the State of Missouri and 
the KCMSD are jointly and severally liable for this 
amount with contribution between the two constitutional 
violators to be 75% State and 25% KCMSD.

The KCMSD also moves the Court to reconsider its 
request for additional funds to finance the central co­
ordination and expansion of the SWAS, DRP, and STEPS 
programs as part of the effective schools component. The 
Court finds that funds for the central coordination of 
these programs is inconsistent with the original purpose 
of the effective schools program. As the Court stated in 
its original remedy order of June 14, 1985, the effective 
schools program is a “bottom up” program in which local 
school administrators, teachers, and parents determine 
the needs of their particular school and target the funds 
accordingly. Therefore, the Court does not recognize as 
a desegregation expense any funds for the central co­
ordination of these programs.

Regarding the expansion of these programs, the Court 
acknowledges that the DRP, SWAS, and STEPS pro­
grams are innovative educational programs but finds 
that the KCMSD evaluation reports on these programs 
do not warrant additional court-ordered funding for their 
expansion at this time. For the reasons stated, KCMSD’s 
request for an additional $659,919.00 in effective schools 
funding is denied.

Relocation Costs

In its order of July 6, 1987, the Court refused to rec­
ognize as a desegregation expense costs incurred by the 
KCMSD in relocating students while the court ordered 
capital improvements on the 1986-87 magnets were in 
progress because the Court had previously approved 
$480,000.00 for the purchase of classroom modules to 
house students during the renovations. However, the



96a

KCMSD in its present motion has demonstrated that the 
module classrooms are not sufficient to house the students 
at Lincoln Academy while the court ordered improvements 
are being completed. The KCMSD has decided to tem­
porarily house these students at the Lincoln South Mid­
dle School facility which is scheduled to become a math/ 
science magnet in the fall of 1987. The KCMSD pres­
ently asks the Court to reconsider approving $454,687.00 
to modify the Ashland School as a temporary site for the 
Lincoln South magnet. The KCMSD has filed an item­
ized estimate of these expenditures and the Court finds 
them necessary and their amount reasonable and will 
recognize them as desegregation expenses. However, be­
cause the KCMSD did not present this itemized estimate 
at the 1987-88 budget hearing, the Court approves them 
subject to the State’s right to challenge the amount of 
the estimated costs of the relocation. The State of Mis­
souri and the KCMSD are jointly and severally liable 
for these costs with contribution to be 75% State and 
25% KCMSD.

Evaluation Expenses

The Court in its July 6, 1987 order denied KCMSD’s 
request for $362,355.00 to fund the evaluation of the 
desegregation programs because the Court simply could 
not determine whether these programs could be evaluated 
with current KCMSD staff. The KCMSD had failed to 
provide a breakdown of the resources and personnel avail­
able in its current evaluation office. In the present mo­
tion, the KCMSD submitted its estimated evaluation 
budget for 1987-88 and its actual budget for 1984-85, 
the year prior to the implementation of the initial deseg­
regation programs. Even with this information, the 
Court is in no position to conclude that the current de­
segregation programs can not be evaluated with the 
KCMSD evaluation office as it existed prior to the court 
ordered desegregation programs. The Court simply re­
fuses to approve additional administrative personnel and



97a

resources unless it is shown that they are absolutely nec­
essary. Therefore, KCMSD’s request for $137,643.00 to 
fund an expansion of the evaluation office and $85,000.00 
for contracted evaluation services is denied.

In addition, the KCMSD seeks $45,504.00 to update its 
student evaluation program to an ITBS system. KCMSD 
is required to conduct student evaluations in its basic 
educational program and would administer these tests 
even absent a court ordered desegregation program. 
Therefore, this expense is to be borne solely by the 
KCMSD and is not recognized as a desegregation expense.

Accordingly, it is hereby
ORDERED that KCMSD’s motion to modify the Court’s 

July 6, 1987 order is granted in part and denied in part 
as set forth in this order.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: August 19, 1987



98a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al,
Plaintiffs,

vs.

State of Missouri, et al,
Defe'ndants.

ORDER
[Filed July 6, 1987]

Several matters in this case are presently before the 
Court. The KCMSD has moved the Court to approve the 
desegregation budget for fiscal year 1987-88. A hearing 
was conducted on this proposal on May 11 and 12, 1987. 
The Court will approve a modified budget as set forth 
in this order. The KCMSD has also moved the Court 
for funding of estimated deficits for its 1986-87 and 
1987-88 fiscal years. Intervenor AFT Local 691 moved 
the Court for alternate funding relief regarding teacher’s 
wages. The Court will defer ruling on the motions re­
garding funding relief until after the August, 1987 hear­
ing on the proposed long range capital improvement plan. 
The Eighth Circuit has remanded this Court’s magnet 
school orders to permit this Court to set forth its facts 
and equitable reasons for placing the higher cost burden



99a

on the State of Missouri for funding of the magnet 
school plan. The Court will set forth its findings in this 
regard which shall be construed as an addendum to its 
orders of June 16, 1986 and November 12, 1986 in re­
gard to the magnet school program.

PUBLIC INFORMATION
The KCMSD proposes a consolidation of the public 

information functions of the long range magnet school 
plan, the KCMSD regular desegregation program, and 
the KCMSD regular programs into one office operating 
under a single budget of $419,680.00. The Court ap­
proves the consolidation because it would provide a more 
effective and cost efficient communication medium.

The KCMSD acknowledges that $218,250.00 of the 
requested budget is provided in the long range magnet 
plan and thus requests the approval of the balance of 
$201,430.00. The Court has approved a public informa­
tion budget of $30,000.00 for each of the first two years 
of the desegregation plan. The Court will continue the 
$30,000.00 budget for year three but will not approve 
the additional $201,430.00 requested by the KCMSD. As 
acknowledged by the KCMSD, the long term magnet 
public information office provides for nearly 1/2 of the 
funding requested for a consolidated office. The Court 
finds that the $201,430.00 contained in the magnet 
school budget plus an additional $30,000.00 will supply 
the KCMSD with the resources needed to provide the 
public with information on all programs.

PROGRAM EVALUATION
The KCMSD has requested funding of $362,355.00 for 

evaluation of the desegregation programs, excluding the 
long range magnet plan, for the first three years of the 
remedial plan. The Court agrees that these programs 
should be evaluated. However, a continuing complaint 
against the KCMSD is that it employs an excessive num-



100a

ber of administrative personnel. In this particular in­
stance, the Court is in no position to conclude that the 
desegregation programs could not be evaluated with the 
current KCMSD staff. The KCMSD has not provided 
the Court with a breakdown of the resources and per­
sonnel available in its current evaluation office. Accord­
ingly, the Court will deny KCMSD’s request for funding 
for program evaluation for failure to meet its burden 
of proof.

DESEGREGATION MONITORING OFFICE
The KCMSD has requested funding of $208,130.00 for 

the 1987-88 cost of a desegregation monitoring office. 
KCMSD states that it established this office to coordinate 
communication between the KCMSD and the desegrega­
tion monitoring committee and the other parties to the 
lawsuit. While this monitoring office may better facili­
tate these communications, the Court does not find that it 
is a necessary desegregation expense. In addition, it is 
the obligation of the KCMSD administrative staff to 
understand the remedial plan and to see that it is ful­
filled. The Court finds that it would be beneficial if the 
administrators communicated directly with the Desegre­
gation Monitoring Committee and the parties rather than 
providing requested information to a conduit office. 
Therefore, the Court will not approve this funding as 
part of the 1987-88 desegregation budget.

DESEGREGATION MONITORING COMMITTEE
The Desegregation Monitoring Committee is an arm 

of this Court and has shown itself to be an effective and 
impartial group committed to achieving the goals out­
lined in this Court’s plan. In order to continue the func­
tions outlined by the Court in the June 14, 1985 order, 
the budget for the monitoring office will be increased 
from its present level of $187,950.00 to $256,228.00. This 
$68,278.00 increase consists of a $1,500.00 increase in



101a

operating budget, a 5% increase in salaries and fringe 
benefits, a $46,191.00 increase in research funds, and a 
$17,000.00 increase in per diem payments. The research 
pool budget of $86,191.00 includes $31,191.00 in unex­
pended funds from the 1986-87 budget. Furthermore, 
$15,000.00 of the 1987-88 research budget will be used 
to contract with an independent CPA firm to audit the 
desegregation program for year two. The increase in the 
per diem budget includes funds for payments to the mem­
bers of the newly created voluntary interdistrict trans­
fer subcommittee as well as an increase in the number 
of compensable hours of the four subcommittee chair­
persons from 100 to 110 hours per year.

IMPROVING STUDENT ACHIEVEMENT

Effective Schools

The KCMSD has proposed a budget of $6,925,000.00 
for the effective schools program for 1987-88. This 
amount consists of $125,000.00 for each of the 25 
KCMSD schools with enrollments of 90% or more min­
ority in 1987-88, $100,000.00 for each of the remaining 
schools, and $100,000.00 to be shared by students at four 
special schools.

The Court notes that the KCMSD has included Switzer 
Elementary in the 90% or more minority category. 
Switzer’s enrollment in 1987-88 is estimated to be 37% 
black and 51% hispanic. The State argues that Switzer 
should not be included in this category because the Court 
in its order of June 14, 1985 allocated effective schools 
funding based upon the percentage of blacks enrolled in 
the particular schools, not their percentage of minorities. 
Jenkins v. State of Missouri, 639 F.Supp. 19, 33 (W.D. 
Mo. 1985). While the Court did indeed use the language 
cited by the State, the Court has treated the hispanic 
race as a minority throughout the remedial plan as evi­
denced by the Court’s selection of hispanics to serve on



102a

the Desegregation Monitoring Committee. Therefore, the 
Court approves of Switzer being included in the 90% or 
more category.

KCMSD has also requested effective schools funding 
for those schools which are scheduled to become magnets 
in 1987-88 under the long term magnet school plan ap­
proved by this Court. In its order of June 16, 1986, this 
Court eliminated effective schools funding for the initial 
six magnet schools it had approved because the magnet 
components were intended to achieve the same goals of 
increased student achievement sought by the effective 
schools program. The Court believes that the magnet 
programs will make schools truly effective. Therefore, 
the Court will also eliminate effective schools funding for 
those schools scheduled to offer magnet programs in 1987- 
88. Included in the list of the 62 schools for which the 
KCMSD requests effective schools funding are thirteen 
schools scheduled to become magnet under the long range 
magnet school plan in 1987-88. Accordingly, the effective 
schools funding requested for these schools, $1,375,000.00, 
will not be approved by the Court.

Finally, the KCMSD requests $100,000.00 to be shared 
by four schools which have specialized programs and are 
attended by students from other schools throughout the 
KCMSD. The Court allowed a total of $75,000.00 for 
these schools in 1986-87, and finds that the continuation 
of these programs is beneficial and will approve KCMSD’s 
funding request for 1987-88.

For the reasons stated above, the Court will approve 
funding for the effective schools program in 1987-88 in 
the amount of $5,550,000.00.

Reduction In Class Size

The KCMSD has requested funding of $8,360,705.00 
for the 1987-88 cost of teachers required to meet the 
class size levels ordered by this Court. In addition,



103a
KCMSD asks that $89,430.00 in moving costs incurred 
by KCMSD in reallocating space to reach these court 
ordered goals be recognized as a desegregation expense.

The $8,360,705.00 requested includes an amount for 
160 additional teachers that KCMSD projects are re­
quired to finally achieve the class size levels ordered by 
this Court. The Court finds that the 160 teachers are in 
addition to the 45 teachers the KCMSD had intended to 
furlough in 1985-86 and which the Court instructed the 
KCMSD to retain since they would be needed for the 
desegregation plan in 1985-86. The State argues that the 
KCMSD’s estimate of additional teachers needed is ex­
cessive because it will result in some classes having con­
siderably fewer students than the maximum levels or­
dered by the Court. Based upon the evidence presented 
at the hearing, the Court finds that there will be rela­
tively few such classes, that they are inevitable, and 
they are necessary to insure that other classes do not ex­
ceed the Court ordered levels.

In addition, the State argues that the class size reduc­
tion should only be implemented in schools 90% or more 
black. The Court rejects this argument because the 
Court’s remedial plan is intended to improve the quality 
of education of all KCMSD students. Furthermore, the 
State’s plan would likely create a two-tier system which 
the Court is feverishly trying to avoid.

Finally, the Court will approve the $89,430.00 in relo­
cation costs incurred by the KCMSD in achieving the 
Court ordered levels as a desegregation expense.

Accordingly, the Court will approve funding for the 
class size reduction component in 1987-88 in the amount 
of $8,450,135.00.

Summer School

The KCMSD has requested $1,295,764.00 for the sum­
mer school component for 1987-88, an increase of ap­
proximately $100,000.00 from 1986-87. The State argues



104a

that the budget is excessive because the KCMSD did not 
meet its projected enrollments on which the Court’s 1986- 
87 funding was based, and yet projects the same enroll­
ments for 1987-88. The KCMSD did in fact meet its 
enrollment projections at the elementary level while it 
admittedly fell short at the junior and senior high school 
levels. The proposed budget provides money for addi­
tional transportation and includes a new position of co­
ordinator of instruction. These additional components 
will certainly improve the summer school program and 
will likely attract additional students. Therefore, the 
Court will give the KCMSD another year to meet the 
projected enrollments. Accordingly, the Court will ap­
prove the requested summer school budget in the amount 
of $1,295,764.00.

In a related matter, the KCMSD claims that the State 
has refused to include the KCMSD summer school stu­
dents in its foundation formula payment calculations for 
years 1985 and 1986. The State claims that to do so 
would effect a double payment since it is already paying 
50% of the summer school component under the deseg­
regation budget. The Court finds the State’s argument 
to be without merit because the desegregation budget only 
includes funds for the added expenditures required under 
the Court’s desegregation orders. The base operating 
costs of the KCMSD summer school program are funded 
through the KCMSD operating budget for which it relies 
on the State’s foundation formula payments for a por­
tion of its revenues. Therefore, the State is directed to 
include the KCMSD summer school students in its foun­
dation formula calculations.

Full Day Kindergarten

The KCMSD has requested funding of $1,826,964.00 
for this program in 1987-88, an increase of $232,468.00 
over 1986-87. Pursuant to this Court’s orders, the 
KCMSD has hired 58 additional teachers to facilitate a



105a

full day kindergarten program in the KCMSD. These 
additional teachers increase the total number of kinder­
garten teachers in the KCMSD to 158. The KCMSD 
states that no additional teachers are needed for 1987- 
88. However, the proposed budget includes funds for 
three resource teachers to train and assist the regular 
kindergarten teachers in making effective use of the ad­
ditional class time through new learning activities in the 
kindergarten curriculum. The budget also requests fund­
ing for additional supplies and equipment needed for a 
full day program and for a clerical position to assist in 
preparation of these materials. The budget also includes 
$54,000.00 in workshop stipends for the 158 regular 
teachers. The Court finds that these requests are reason­
able and will enhance the quality of education provided 
kindergarten students within the KCMSD.

The State argues that only 58 of the 158 teachers were 
hired under the desegregation budget and only the work­
shop stipends of those 58 teachers should be a desegrega­
tion expense. The Court finds the State’s argument to be 
without merit. The Court’s remedial plan required all 
KCMSD kindergarten schools to become full day pro­
grams. Thus, the cost of training all the kindergarten 
teachers to instruct a full day program, regardless of 
whether their salary comes from the KCMSD operating 
or desegregation budget, are desegregation expenses.

Accordingly, the Court will approve funding for the 
full day kindergarten program for 1987-88 in the amount 
of $1,826,964.00.

Before and After School Tutoring
The KCMSD has proposed a budget of $233,759.00 for 

the before and after school tutoring program for 1987- 
88. This represents an increase of $129,359.00 over the 
1986-87 budget.

The increase primarily consists of funding for trans­
portation and the addition of certified teachers to replace



106a
the teachers aides and volunteers presently used. The 
State argues that the KCMSD has not justified doubling 
the budget for a program which has not succeeded in 
terms of projected enrollments. While the State is cor­
rect in stating that the program has not succeeded as 
anticipated, the Court finds that the lack of transporta­
tion was the primary reason why many students were 
not able to participate in the program. Moreover, the 
addition of certified teachers will certainly improve the 
quality of the tutoring and may attract additional stu­
dents, Therefore, the Court will approve the funding 
by the KCMSD, thereby giving the KCMSD another year 
to meet its projected enrollments.

Early Childhood Education
The KCMSD has requested funding of $3,102,178.00 

for this program in 1987-88, an increase of $1,550,392.00 
over 1986-87. The State supports the expansion of this 
program with the exception of the addition of a specialist 
position at a salary of $41,544.00. During the hearing, 
Mr. Mike Jones, coordinator of both the full day kinder­
garten and early childhood programs, testified that the 
KCMSD’s proposal promotes him to the position of spec­
ialist for which he would retain responsibility of both 
programs, and adds the position of coordinator for the 
early childhood program. This new coordinator would 
be in charge of the day to day operations of the early 
childhood program. The 1987-88 budget also eliminates 
the position of a resource teacher. The Court finds that 
this proposal is very reasonable as it would provide more 
effective operation of both the early childhood and full 
day kindergarten programs. Furthermore, the net budget 
increase created by the upgrading of Mr. Jones, the 
addition of a new coordinator, and the elimination of a 
resource teacher is only $15,227.00 over 1986-87.

For the reasons stated, the Court will approve fund­
ing for the early childhood program in the amount of 
$3,102,178.00 for 1987-88.



107a

Long Range Magnet Schools

The KCMSD has requested approval of $17,137,993.00 
for the implementation costs of the long range magnet 
plan in 1987-88. This figure includes the $13,946,729.00 
cost of implementation of the long range magnet plan for 
1987-88 previously approved by the Court, $8.9 million 
of which the KCMSD and the State are jointly and 
severally liable, with the State solely liable for the bal­
ance. The KCMSD states that the balance of the total 
$17.1 million requested is for the cost of the base per­
sonnel and resources of two new magnets scheduled to 
open in 1987-88 (Lincoln South and New Paseo Middle 
School). These base costs include salaries for a principal, 
teachers, librarian, custodians and other support per­
sonnel, as well as nonsalary items including textbooks 
and various supplies. (These costs were not included in 
the long range magnet budget approved by the Court). 
The Court finds that these expenditures are desegrega­
tion expenses. However, the establishment of these two 
new magnet schools will result in costs avoided elsewhere 
within the KCMSD since nearly all of the students trans­
ferring to these new magnets are presently KCMSD stu­
dents. Therefore, the Court will approve the proposed 
base personnel and resources costs in 1987-88 of these 
two new magnet schools as desegregation costs, but will 
reduce the approved amount by the costs avoided else­
where in the KCMSD as their amount becomes available.

Accordingly, the Court will approve $17,137,993.00 for 
the implementation of the long range magnet school plan 
as part of the 1987-88 desegregation budget.

1986-87 Magnet Schools

The KCMSD has submitted an operating budget of 
$12,257,529.00 for the six magnet schools implemented 
in September, 1986 pursuant to the Court’s June 16, 1986 
order. The budget represents a $615,198.00 decrease



108a

from the 1986-87 budget. After carefully reviewing the 
submitted budget, the Court finds that these expendi­
tures are reasonable in cost and necessary for the effec­
tive operation of these magnets. Accordingly, the Court 
will approve the funding requested.

AAA Achievement

The KCMSD has requested funding of $6,340,614.00 
for the AAA achievement component in 1987-88, a de­
crease of $2,450,083.00 from 1986-87. The proposed bud­
get consists of $4,057,383.00 for professional staff and 
teachers’ aides with the balance for library resources 
needed to maintain the AAA level in 1987-88. The Court 
finds that- these expenditures are reasonable in cost and 
necessary to maintain AAA level and will approve the 
requested funding in the amount of $6,340,614.00.

SWAR, DRP and STEPS

The KCMSD proposes a separate budget of $1,205,558.00 
for the SWAS, DRP, and STEPS programs that are 
presently funded from the effective schools budget. The 
Court agrees with the KCMSD that these programs are 
innovative programs which offer realistic prospects for 
progress in dealing with the problem of urban education. 
However, the Court finds that since these programs are 
aimed at improving student achievement that they should 
remain under the effective schools component of the 
remedial plan, and should continue to obtain their fund­
ing from the effective schools budget approved by the 
Court. If the KCMSD believes there is insufficient funds 
in the effective schools budget to support these programs, 
then the KCMSD should ask the Court to increase the 
effective schools funding.

Accordingly, the Court will not approve the KCMSD’s 
proposed separate budget for the SWAS, DRP and 
STEPS programs.



109a

Capital Improvements

The KCMSD has requested that the Court recognize 
approximately $3.5 million in capital improvement re­
lated costs incurred by the KCMSD as desegregation ex­
penses of the district.

This amount includes $811,584.00 in costs to be in­
curred by the KCMSD in relocating students to other 
facilities while the Court ordered capital improvements 
on the 1986-87 magnets are in process. In its order of 
June 16, 1986, the Court stated that the KCMSD may 
use up to $480,000.00 of the $12.8 million approved for 
capital improvement expenditures on these magnets to 
purchase classroom modules if necessary to complete 
these improvements without displacing the students from 
their present schools. Jenkins v. State of Missouri, 639 
F.Supp. 19, 53 (W.D. Mo. 1986). The Court maintains 
this position and thus will not recognize expenses in­
curred by the KCMSD in relocating these students as a 
desegregation expense.

The KCMSD also requests that the Court recognize 
as a desegregation expense approximately $2.24 million 
that it will spend in 1987-88 to maintain the $37 million 
in capital improvements ordered by the Court in its June 
14, 1985 order. This request will be denied because the 
maintenance of these improved facilities is the sole .re­
sponsibility of the KCMSD. In its order of June 14, 
1985, the Court stated:

After the capital improvements have been made, it 
will be incumbent upon KCMSD to include in its 
budget funds for the maintenance of the improved 
facilities.

Jenkins v. State of Missouri, 639 F.Supp. 19, 41 (W.D. 
Mo. 1985).

The KCMSD has also requested the Court to recognize 
the cost of obtaining its share of funding for capital



improvements as a desegregation expense of the KCMSD. 
In its order of June 14, 1985, the Court required KCMSD 
to contribute $10,000,000.00, and the State $27,000,000.00, 
for improvements to KCMSD’s facilities. In raising its 
portion of the funding, KCMSD claims that it will incur 
costs of approximately $6,000,000.00 over a ten year pe­
riod, with the 1987-88 costs estimated at $353,061.00. 
The Court finds that because these interest costs will be 
incurred in fulfilling KCMSD’s obligation under the re­
medial plan, they are properly desegregation expendi­
tures, Therefore, the Court will recognize the estimated 
interests costs for 1987-88 of $353,061.00 as a desegrega­
tion expense.

110a

Summary of 1987-88 Desegregation Budget

Public information $30,000.00
Desegregation Monitoring Office —0—

Program Evaluation — 0 —

Desegregation Monitoring Committee $256,228.00
Effective Schools $5,550,000.00
Reduction in Class Sizes $8,450,135.00
Summer School $1,295,764.00
Full Day Kindergarten $1,826,964.00
Before and After School Tutoring $233,759.00
Early Childhood Education $3,102,178.00
Long Range Magnet Schools $17,137,993.00
1986-87 Magnets $12,257,529.00
AAA Achievement $6,340,614.00
SWAS, DRP and STEPS —0—
Capital Improvements (Interest) $353,061.00
Total $56,834,225.00

FUNDING OF 1987-88 DESEGREGATION BUDGET/ 
REMAND OF THE COURT’S MAGNET 

SCHOOL ORDERS
In its opinion of December 5, 1986, the United States 

Court of Appeals for the Eighth Circuit concluded that 
this Court made no findings which substantiate placing a



111a

greater financial burden on the State than that placed 
on the KCMSD for funding of the effective schools, capi­
tal improvements, and achievement- of AAA standards. 
At the time this Court entered its orders of June 16, 
1986 and November 12, 1986 requiring the State and 
the KCMSD to fund and implement a comprehensive 
magnet school plan, the Court did not have the privilege 
of having the Eighth Circuit’s opinion. Subsequently, 
this Court was granted leave to modify its magnet school 
orders to set forth its facts and equitable reasons for 
placing the higher cost burden on the State for funding 
of the magnet school plan. The Court’s reasoning is set 
forth below and also provides the basis for the Court’s 
apportionment of the funding responsibility of the KCMSD 
and the State of Missouri for the 1987-88 desegrega­
tion budget.

This Court need not specify the various acts that pre­
cipitated the Court’s finding of liability on the part of the 
State and the KCMSD because those acts are set forth 
in this Court’s original liability order and are well sum­
marized in the dissent of Judge Lay in Jenkins v. State 
of Missouri 807 F.2d 657, 700-702 (8th Cir. 1986). 
There is no question that the State of Missouri solely 
created separate schools for black and white children in 
Missouri through legislation and constitutional mandate. 
Furthermore, the State and the KCMSD both failed in 
their obligation which commenced in 1954 to eliminate 
the vestiges of unlawful discrimination caused by the 
dual school system. In determining the proportionate re­
sponsibility of these two constitutional violators to find 
the remedial plan, the Court applied the simple principle 
that “ the person who starts the fire has more respon­
sibility for the damages caused than the person who 
fails to put it out.”  In the instant case, the State, the 
entity which started the fire, i.e. the unlawful segrega­
tion, also shared the responsibility with the KCMSD to 
put it out.



112a

The creation of a dual system was mandated by the 
State and the KCMSD had no choice but to operate a 
dual school system until May, 1954. For this reason the 
State should be required to shoulder more of the costs 
for the removal of the vestiges of its unconstitutional 
mandates than the KCMSD, which was required by Mis­
souri law to follow the State’s mandate. In addition, 
since the victims of the vestiges of discrimination are 
residents of the KCMSD, those victims should not be 
required to share equally the costs of removing the ves­
tiges with the entity that mandated the conditions creat­
ing them.

In addition, the population of Kansas City, Missouri 
in 1980 constituted 9.1% of the total population of the 
State of Missouri. Assuming that the KCMSD popula­
tion is equal to that of Kansas City, Missouri, the Court 
finds that it is clearly inequitable to require 9% of the 
State’s population to pay 50% of the desegregation costs 
ordered in the remedial plan. Such a situation would be 
even more inequitable in the present case where the 
KCMSD residents are also contributing to the State’s 
portion of the desegregation costs through payment of 
state taxes.

While the Court does not have an exact estimate of the 
ultimate cost of implementing the entire remedial plan, 
it does know that the ultimate cost will be in the hun­
dreds of millions of dollars. The Court is of the opinion 
and finds that even with Court help it would be very 
difficult for the KCMSD to fund more than 25% of the 
costs of the entire remedial plan.

It is well settled that a district court has wide discre­
tion in allocating damages among nonsettling defendants 
in civil rights cases. Parson v. Kaiser Aluminum and 
Chemical Corporation, 583 F.2d 132, 133-34 (5th Cir. 
1978) cert, denied, 441 U.S. 968, 99 S.Ct. 2417, 60 
L.Ed.2d 1073 (1979). Apportionment of damages accord-



113a

ing to fault is further supported by the Uniform Com­
parative Fault Act as adopted by the Missouri Supreme 
Court in Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). 
In addition, the Supreme Court has stated that a court 
of equity may go much further in giving relief in fur­
therance of a public interest than they are accustomed 
to go when only private interests are involved. United 
States v. First National City Bank, 379 U.S. 378, 85 
S.Ct. 528, 13 L.Ed.2d 365 (1965). With these considera­
tions in mind, this Court concluded that the relative fault 
of the State of Missouri in this action was 75% and the 
KCMSD 25%. The Court has consistently applied these 
percentages of fault determinations in assessing dam­
ages in all phases of its remedial plan, including its com­
prehensive magnet school orders of June 16, 1986 and 
November 12, 1986. Funding responsibility for the 1986- 
87 magnets, approximately 50% for both parties, may 
appear to be inconsistent with the fault assessments de­
termined by the Court. However, the funding for the 
1986-87 magnet schools was included in the overall 1986- 
87 desegregation budget for which the Court ordered the 
KCMSD to fund approximately 25% of the entire budget.

Regarding the 1987-88 desegregation budget, the Court 
will order that the State and the KCMSD will be jointly 
and severally liable for the entire budget with contribu­
tion between the two constitutional violators to be 75% 
or $42,825,668.00 by the State, and 25%, or $14,208,557.00 
by the KCMSD. The joint and several liability will be 
ordered pursuant to the Eighth Circuit’s mandate that 
“ the remedy ordered by the Court be fully funded.” 
Jenkins v. State of Missouri, 807 F.2d 657, 686 (8th Cir. 
1986). Furthermore, in the event that this Court is 
found to be incorrect in its apportionment of damages, 
the joint and several liability finding will insure that the 
remedial plan will be fully funded and guarantee to the 
plaintiffs the programs to which they are entitled.



114a

The Court notes that its funding apportionment for 
the 1987-88 desegregation budget, which includes the im­
plementation costs of the long term magnet plan for 
1987-88, appears inconsistent with the Court’s previous 
funding allocation in its order approving the long range 
magnet plan. The Court’s order of November 12, 1986 
apportioned funding for the 1987-88 implementation costs 
of the long range magnet plan at approximately 33% 
KCMSD and 66% the State of Missouri. However, the 
KCMSD’s portion of the total implementation costs of 
the long range magnet plan plus the $53 million in capi­
tal improvements approved in the November 12, 1986 
order is approximately 25%, and is therefore consistent 
with the Court’s present action.

KCMSD’S MOTION FOR FUNDING OF DEFICITS

KCMSD projects that it will have a deficit of $7.3 
million in fiscal year 1986-87 and $52.2 million in 1987- 
88 due to its funding obligations under the desegregation 
plan. The estimated deficit for 1987-88 is based on the 
proposed 1987-88 budget which the Court is modifying. 
Therefore, the estimated deficit for 1987-88 will be less 
than projected by the KCMSD. Notwithstanding, the 
KCMSD has asked the Court to enjoin the tax levy roll­
back required by R. S. Mo. § 164.013 for fiscal year 1988 
and to require the State of Missouri to advance KCMSD’s 
portion of the desegregation funding for fiscal years 1987- 
88 with the understanding that the KCMSD would repay 
the State when such funds are available.

The Court will defer ruling on this motion until after 
the August 3, 1987 hearing on the long range capital 
improvement plan submitted by the parties. However, it 
is the Court’s intention to generate KCMSD’s portion of 
the desegregation funding through imposition of either 
an earnings tax or a state income tax surcharge.



115a

Accordingly, it is hereby
ORDERED that the Court approves the 1987-88 de­

segregation budget as set forth in this opinion; and it 
is further

ORDERED that the State and the KCMSD are jointly 
and severally liable for the 1987-88 desegregation budget 
totalling $56,834,225.00 and the State of Missouri and 
the KCMSD are directed to contribute $42,625,668.00 and 
$14,208,557.00 respectively; and it is further

ORDERED that the Court defers ruling on the mo­
tions of KCMSD and AFT Local 961 regarding funding 
of estimated budget deficits until after the August 3, 
1987 hearing on the long range capital improvement 
plan; and it is further

ORDERED that the Court has modified its June 16, 
1986 and November 12, 1986 orders as set forth in this 
opinion.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: July 6, 1987



116a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al.,
Plaintiffs,

v.

State of Missouri, et al.,
Defendants.

ORDER
[Filed April 29, 1987]

On February 20, 1987, KCMSD moved the Court for 
approval of the acquisition and renovation of the Jewish 
Community Center for use as a temporary middle school 
performing arts magnet. On March 25, 1987, the Court 
denied the motion without prejudice because the motion 
lacked sufficient information to enable the Court to prop­
erly consider the request. In response, KCMSD filed a 
second motion for approval of the acquisition and reno­
vation of the JCC as a temporary home for the New 
Paseo Middle School for the Performing Arts and re­
quested that the State be ordered to fully fund the esti­
mated cost of renovation. The State of Missouri opposes 
the motion. The plaintiffs support the motion but oppose 
any use of the JCC as a permanent site for the middle 
school performing arts magnet. Having carefully con­



sidered the matter, the Court will grant the motion in 
part and deny it in part.

In its order of March 25, 1987, the Court stated that 
it “ cannot consider the purchase of the JCC without 
knowledge of the estimated cost of rehabilitating the JCC 
for use as a performing arts magnet.”  In the present 
motion, the KCMSD estimates the cost for renovation of 
the facility to be $4,687,635.00, including $511,815.00 for 
asbestos removal. This cost, added to the purchase price 
of $2,688,500.00, represents a total estimated expenditure 
of $7,376,135.00, or approximately $79.00 per square foot 
of building. In addition, the purchase price includes 18.7 
acres of land surrounding the facility. After careful 
consideration, the Court finds that the total cost of the 
acquisition and renovation of the JCC is reasonable and 
that the specific renovations requested are necessary to 
transform the JCC into a temporary site for the perform­
ing arts middle school magnet.

The Court also noted in its previous order that the 
KCMSD had not specified the specific use to be made of 
the JCC after serving as a temporary site for the per­
forming arts middle school magnet. In its present mo­
tion, the KCMSD states that it would use the renovated 
JCC as a new middle school with a different magnet 
emphasis commencing in September of 1990. This use 
would be made possible because the facilities work re­
quested for the JCC will also renovate the building for 
use as a general school, regardless of its magnet focus. 
KCMSD asserts that such use will obviate the need for
funding and approval of the construction of one new
middle school included in its long-range capital improve­
ment plan that was submitted to the Court on February 
26, 1987. The estimated cost of this proposed middle 
school which is scheduled to open in 1990 is 7.3 million 
dollars, excluding the cost of site acquisition.

The Court also noted in its March 25, 1987 order the
KCMSD had not shown that other facilities, including

117a



118a

those presently owned by the KCMSD, were considered 
but were found unsuitable for use as a temporary site 
for the performing arts middle school magnet. The pres­
ent motion and accompanying affidavits clearly establish 
that the KCMSD has explored numerous alternative sites 
located inside and outside the KCMSD. However, each 
facility considered was dilapidated, too small, or already 
under lease agreement. In addition, the KCMSD strongly 
considered using one of its surplus schools for the tem­
porary site. However, it concluded that these facilities 
were desperately needed for their intended purpose, i.e., 
to house KCMSD students who have been displaced by 
construction at their regular schools.

Consequently, the Court finds that the acquisition and 
renovation of the JCC is the only feasible alternative for 
opening a temporary performing arts middle school mag­
net in the fall of 1987. Moreover, the Court finds that 
it is imperative that this performing arts middle school 
magnet open this fall. Recruitment of students for the 
1987-88 magnet programs has been underway and, as 
anticipated, the middle school for the performing arts is 
one of the most attractive programs. Failure to open 
this school in the fall of 1987 would seriously damage 
the credibility of the KCMSD in its implementation of 
the comprehensive magnet plan. Therefore, the Court 
will approve the acquisition and renovation of the JCC 
for use as a temporary middle school performing arts 
magnet.

KCMSD has also moved the Court to order that the 
State of Missouri and the KCMSD are jointly and sev­
erally liable for the $2,686,500.00 purchase price and 
that the State is solely liable for the estimated 
$4,687,625.00 renovation cost. In its magnet school order 
of November 12, 1986, the Court found that the “ KCMSD 
and the State of Missouri are also jointly and severally 
liable for . . . the cost, of rehabilitation of the Jewish 
Community Center or a comparable facility for use as a



119a

performing arts magnet in 1987-88.” Accordingly, the 
KCMSD’s request that the State be solely liable for the 
cost of renovation of the JCC will be denied.

KCMSD also requested the Court to order the State 
to pay one-half of the purchase price for the JCC on the 
date of the closing for the acquisition. This request will 
De granted.

Accordingly, it is hereby
ORDERED that KCMSD’s motion for approval of the 

acquisition and renovation of the JCC for use as a tem­
porary site of the New Paseo Middle School for the 
Performing Arts is granted; and it is further

ORDERED that the KCMSD and the State of Mis­
souri are jointly and severally liable for the $2,688,500.00 
purchase price of the facility and the estimated 
$4,687,635.00 cost of the renovation of the facility; and 
it is further

ORDERED that the State of Missouri shall pay one- 
half of the purchase price of the facility on the date of 
the closing for the acquisition.

/ s /  Russell G. Clark 
Russell G. Clark 
United States District Judge

Apr. 29, 1987



120a

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

WESTERN DIVISION

No, 77-0420-CV-W-4

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

vs.

State of Missouri, et al,
Defendants.

ORDER
[Filed Nov. 12, 1986]

On June 16, 1986, this Court directed the Kansas City, 
Missouri School District (KCMSD) to submit a proposal 
for a comprehensive magnet school program by August 1, 
1986. The KCMSD filed its proposal on August 13, 1986 
along with its motion requesting approval and funding 
of the plan. The Court conducted hearings on KCMSD’s 
motion during the week of September 15, 1986 and again 
on October 9 and 10, 1986. After careful consideration 
of the evidence presented, the Court will grant the motion 
in part and deny it in part. The Court will order imple­
mentation of the magnet plan as submitted and will 
approve the proposed budget to fund the plan. The Court 
will approve the capital improvements and new construc­
tion requested for magnet schools at the cost estimated 
by the KCMSD. The Court will find the State of Mis­



121a

souri and the KCMSD jointly and severally for approxi­
mately $53,000,000 of the estimated $143,000,000 budget 
approved for implementation of the magnet school plan. 
The State of Missouri will be solely liable for the remain­
ing costs of the implementation. The Court will find the 
State of Missouri and the KCMSD jointly and severally 
liable for costs, of the capital improvements and new con­
struction estimated at $53,000,000.

Magnet School Plan

The Court requested the KCMSD to submit a compre­
hensive magnet school proposal for consideration as part 
of the Court’s overall plan to eliminate the vestiges of 
unlawful segregation in the KCMSD and to avoid future 
constitutional violations. The implementation of magnet 
schools as a tool to desegregate is within the equitable 
powers of a Court in fashioning a remedy in a school 
desegregation case. In its order dated June 14, 1985, the 
Court reviewed these equitable powers and will not do 
so here. In response to the Court’s request, the KCMSD 
submitted a long-term magnet school plan that was the 
product of extensive research, experience and planning 
of nationally respected experts on magnet schools. The 
plan proposes that every senior high school, every middle 
school, and approximately one-half of the elementary 
schools in the KCMSD will become magnet schools by the 
school year 1991-92. The plan proposes numerous magnet 
themes ranging from foreign languages to performing 
arts to science and math. Each magnet school would, 
however, retain the basic academic curriculum offered in 
the district.

The State of Missouri contends that the proposed mag­
net plan was hastily drafted and that it magnetizes too 
many schools over too short a time period. The State 
suggests that magnet schools should be implemented more 
gradually, based upon the experience of earlier schools. 
While the Court is mindful of the State’s position, it is



122a

convinced that the students who are presently enrolled 
in the KCMSD are entitled to a vindication of past denial 
of constitutional rights now.

The Court finds that the proposed plan would serve the 
objectives, of its overall desegregation program. First, 
the carefully chosen magnet themes would provide a 
greater educational opportunity to all KCMSD students. 
The plan magnetizes such a large number of schools that 
every high school and middle school student will attend 
a magnet school. At the elementary level, there would be 
a sufficient number of magnets to permit every student 
desiring to attend a magnet school to do so. The Court 
is opposed to magnetizing only a limited number of 
schools in a district even though such plans have been 
approved by the Eighth Circuit Court of Appeals and the 
United States Supreme Court. The philosophy of a mag­
net school is to attract non-minority students into a school 
which is predominantly minority. It does so by offering 
a higher quality of education than the schools which are 
being attended by the non-minority students. In each 
school there is a limitation as to the number of students 
who may be enrolled. Thus, for each non-minority stu­
dent who enrolls in the magnet school a minority student, 
who has been the victim of past discrimination, is denied 
admittance. While these plans may achieve a better racial 
mix in those few schools, the victims of racial segregation 
are denied the educational opportunity available to only 
those students enrolled in the few magnet schools. This 
results in a school system of two-tiers as it relates to the 
quality of education. This inequity is avoided by the 
KCMSD magnet school plan.

The Court also finds that the proposed magnet plan 
would generate voluntary student transfers resulting in 
greater desegregation in the district schools. The sug­
gested magnet themes include those which rated high in 
the Court ordered surveys and themes that have been 
successful in other cities. Therefore, the plan would



123a
provide both minority and non-minority district students 
with many incentives to leave their neighborhoods and 
enroll in the magnet schools offering the distinctive 
themes of interest to them. Most importantly, the Court 
believes that the proposed magnet plan is so attractive 
that it would draw non-minority students from the pri­
vate schools who have abandoned or avoided the KCMSD, 
and draw in additional non-minority students from the 
suburbs.

The KCMSD proposes a budget of $142,736,025 for im­
plementation of its comprehensive magnet school plan over 
a six-year period. See Attachment A. [*] The KCMSD 
admits that the proposed budget consists of studied esti­
mates which would be adjusted as actual costs are ascer­
tained. While the resources requested are substantial, 
the constitutional violations committed were also substan­
tial. The Court has carefully reviewed the proposed 
budget and finds that the estimated costs are reasonable. 
The long-term benefit to all KCMSD students of a greater 
educational opportunity in an integrated environment is 
worthy of such an investment.

For the reasons stated, the Court orders the implemen­
tation of the proposed magnet school plan as a funda­
mental component of its overall desegregation remedy and 
approves the budget at the cost estimated by the KCMSD.

Capital Facilities Program
The KCMSD also requests approval and funding of 

capital improvements to eleven of the district schools 
that it proposes to become magnets in September 1987, 
and for the construction of four new school facilities 
to be used as magnets beginning September 1988. The 
specific schools and the cost estimates for the work re­
quested are listed in Attachment B. In response to 
KCMSD’s request, the State of Missouri argues that the

[* Attachments A and B to this opinion are not included in this 
Appendix. Ten copies of each attachment have instead been lodged 
with the Clerk of this Court.]



124a
present condition of the district school facilities is not 
traceable to unlawful segregation but is due to a lack of 
maintenance by the KCMSD. The Court finds that even 
if the State by its constitutional violations and subse­
quent failure to affirmatively act to remove the vestiges 
of the dual school system did not directly cause the 
deterioration of the school facilities, it certainly con­
tributed to, if not precipitated, an atmosphere which 
prevented the KCMSD from raising the necessary funds 
to maintain its schools. Furthermore, the capital facili­
ties program requested by the KCMSD is a proper 
remedy through which to remove the vestiges of racial 
segregation, and is needed to attract non-minority stu­
dents back to the KCMSD.

The KCMSD proposes a budget of $52,858,301 for the 
capital improvements to the eleven existing schools and 
the construction of four new facilities. The budget con­
sists of studied estimates which would be adjusted as 
actual costs are ascertained. After careful consideration 
of the capital facilities work requested, the Court finds 
that the estimated costs are reasonable.

For the reasons stated, this Court orders that the 
requested capital improvements be made to the eleven 
existing schools and that four new facilities be con­
structed at the costs estimated by the KCMSD. The 
Court orders that sites be acquired for Central High 
School, New Paseo Middle School, and New West Ele­
mentary School. The Court approves the rehabilitation 
of the Jewish Community Center or a comparable facility 
for use as a performing arts school in 1987-88 until the 
New Paseo Middle School is constructed.

In its motion filed August 13, 1986, the KCMSD also 
requested that the State of Missouri be required to fund 
the construction of the New Northeast and New South­
east Elementary Schools, and site expansions to facilitate 
magnet themes at Pitcher Elementary, Garfield Elemen­
tary, Northeast Middle School, Central Senior High 
School, and East Senior High School. The Court denies



125a
these requests at this time because these magnet pro­
grams are not scheduled for implementation before 1989- 
90.

Funding
In its order of September 17, 1984, this Court found 

that the State of Missouri and the KCMSD had violated 
the constitutional rights of the plaintiffs. To date, the 
State of Missouri has borne most of the costs of the 
Court’s overall plan to remove the vestiges of uncon­
stitutional segregation from the KCMSD. This was 
based on the Court’s earlier determination that the 
State had the “primary responsibility for insuring that 
the public education systems in the State comport with 
the United States Constitution.” Jenkins v. State of 
Missouri, 593 F.Supp. 1485, 1506 (W.D. Mo. 1984). 
The KCMSD, which includes its citizens, must be called 
to help remedy the conditions for which it is partially 
responsible. Accordingly, the Court orders that the 
KCMSD and the State of Missouri are jointly and sever­
ally liable for the cost of the capital facilities program 
estimated at $52,858,301. The KCMSD and the State 
of Missouri are also jointly and severally liable for the 
cost of site acquisitions for Central High School, New 
Paseo Middle School, New West Elementary School and 
the cost of rehabilitation of the Jewish Community Cen­
ter or a comparable facility for use as a performing arts 
magnet in 1987-88. These costs were not included in the 
KCMSD’s capital facilities estimate.

It is further ordered that the KCMSD and the State 
of Missouri are jointly and severally liable for the fol­
lowing costs of the implementation of the magnet school 
plan approved by the Court:

$8,316,272 in 1986-87 
$8,908,406 in 1987-88 
$8,908,406 in 1988-89 
$8,908,406 in 1989-90 
$8,908,406 in 1990-91 
$8,908,405 in 1991-92



126a

The result is that the KCMSD and the .State of Missouri 
are jointly and severally liable for $52,858,801 of the 
$142,736,025 that the KCMSD estimates is required to 
implement its magnet school plan. The Court further 
orders that the State of Missouri is solely liable for the 
balance of the costs of implementation, or $89,877,724.

All judgment amounts are based upon studied esti­
mates provided by the KCMSD and may be adjusted 
when the actual costs of the capital facilities work and 
the magnet school plan ordered by the Court are ascer­
tained. The State of Missouri will not be permitted to 
withhold foundation formula payments or state transpor­
tation funds due the KCMSD in order to recover any 
contribution for money paid by the State on the joint 
and several judgments.

The Court is aware that the magnet plan will require 
a more extensive program for the transportation of stu­
dents than presently exists. The KCMSD has not sub­
mitted a budget for the actual cost of transportation 
required by the plan claiming the costs cannot be pre­
dicted with accuracy until the District gains experience 
in determining from where the students attending the 
particular magnet schools will come. The Court will 
defer its assessment as to the extent of the need for 
transportation and the liability for the cost of same 
until such time as realistic estimates for the needs and 
cost are available. The KCMSD is ordered to provide 
this Court with estimated costs of the transportation 
required for implementation of the plan in 1987-88 on 
or before August 15, 1987.

The KCMSD may extinguish its liability for the 
$52,858,301 portion of the implementation cost of the 
magnet school plan by passing a $53,000,000 school cap­
ital improvement bond issue. If this should occur, the 
State of Missouri would no longer be liable for the 
$52,858,301 in capital facilities work ordered by the 
Court.



127a

The Court also wishes to point out that during the 
course of this lawsuit the Court has not been informed of 
one affirmative act voluntarily taken by the Executive 
Department of the State of Missouri or the Missouri 
General Assembly to aid a school district that is involved 
in a desegregation program. By making approximately 
$105,000,000 of the judgments joint and several, the 
General Assembly may be encouraged to explore the pos­
sibility of enacting legislation that would permit a dis­
trict involved in a desegregation plan more versatility 
than it presently has to raise funds with which to sup­
port the program.

For the reasons stated, it is hereby
ORDERED that the KCMSD’s motion for approval of 

its long-range magnet school plan is granted in part and 
denied in part as set forth in this memorandum.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: November 12, 1986



128a

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

WESTERN DIVISION

No. 77-0420-CV-W-4

Kalima Jenkins, et al.,
Plaintiffs,

vs.

State of Missouri, et at.,
Defendants.

ORDER

[Filed June 16, 1986]

Several motions are pending in this case including 
KCMSD’s motion to amend the budget for the full-day 
kindergarten program, KCMSD’s motion for an order 
permitting personnel hired for the desegregation programs 
to be paid according to salary schedule, KCMSD’s motion 
for adjustment of the 1986/87 desegregation plan budget, 
KCMSD’s motion for approval of the 1986/87 magnet 
programs. In addition, plaintiffs filed a motion seeking 
to clarify whether Kansas suburban schools are a part 
of the voluntary interdistrict transfer program. Inter- 
venor AFT Local 691 filed a motion for an order for 
additional funds to finance the desegregation plan. The 
motions will be granted in part and denied in part as 
outlined below in the following order.



129a

Public Information

This Court allocated $30,000 to allow KCMSD to hire 
an additional public information specialist whose respon­
sibility was to develop and implement a public informa­
tion program regarding the KCMSD desegregation plan. 
The main focus of that public information effort was to 
solicit community support and involvement in the plan. 
There is little evidence that the District has fulfilled the 
intended goals of the Court’s mandate in this area. 
Therefore, KCMSD shall develop and submit by August 
1, 1986 a plan to the Desegregation Monitoring Com­
mittee detailing how the District plans to accomplish the 
public information goals for 1986/87.

IMPROVING STUDENT ACHIEVEMENT
Triple AAA Achievement

The Missouri Department of Elementary and Second­
ary Education’s fDESE) annual evaluation of KCMSD 
revealed that the District had reached AAA status in all 
areas except one. KCMSD needs additional resources to 
meet the library or “ school learning resource center” 
standards. The original library assessment was not con­
ducted by trained library personnel (Testimony of Cas- 
ner, p. 91). After KCMSD hired additional professional 
librarians under the desegregation remedial plan a new 
evaluation was conducted and presented to DESE for 
review. The DESE and KCMSD’s analysis as to mate­
rials needed is identical (Testimony of Casner, p. 93).

Further, a projected increase in student enrollment for 
school term 1986/87 will require the hiring of one (1) 
additional librarian in order to continue to meet AAA 
standards in this area.

Finally, due to the KCMSD’s established salary sched­
ule many of the 125 professional staff and 31 teacher 
aides hired during year one of the desegregation program 
are eligible for increased compensation. Thus, actual



130a

year two costs, incorporating the increase in compensa­
tion, for 125 professional staff members and 31 teacher 
aides will be $3,821,786 (Testimony of Gaunt, p. 170).

The hiring of art, music, physical education and plan­
ning time teachers, as well as teachers aides, has brought 
the District from AA to AAA rating in the areas of 
teaching load and curriculum. The District now meets 
AAA standards for pupil personnel services through the 
hiring of additional counselors. And while additional 
library staffing may eventually be necessary to improve 
reading performance at low achieving elementary schools 
where a high proportion of economically disadvantaged 
minority students attend, KCMSD is now in compliance 
with AAA standards for librarians.

KCMSD is ordered to take those steps necessary to 
reach a AAA rating in all component areas during the 
spring 1987 DESE evaluation. Only one area lacks AAA 
rating: library resources. Sufficient funds will be pro­
vided to purchase, inventory and distribute the needed 
books and materials. The State of Missouri shall not 
grant AAA status to KCMSD based upon a plan to 
acquire the needed resources. A student cannot read a 
book until it is on the library shelf, or use a globe until 
it is at the school. Thus, the achievement of AAA rank­
ing will be based upon the District’s actual resource 
inventory.

KCMSD is to budget $8,790,697 in order to become 
a AAA ranked district by the end of the 1986/87 school 
term. The State of Missouri will pay a maximum of 
$4,737,380 of this total amount, with KCMSD paying the 
balance of $4,053,317. Any carryover from year one of 
the desegregation remedial plan will be used to reduce 
the State’s and the KCMSD’s contribution in 1986/87. 
That carryover shall include any unexpended funds from 
the $950,000 originally allocated for library resources 
during year one.



131a

For the 125 professionals and 31 teacher aides, the 
State will pay a maximum of $1,910,893 and KCMSD 
shall pay an equal amount. For one additional librarian, 
the State of Missouri and KCMSD shall split the $32,750 
maximum cost of salary and fringe benefits equally. The 
KCMSD will continue to charge the least expensive per­
sonnel to the desegregation budget when multiple hirings 
occur.

For shelving required for the additional library re­
sources, the State of Missouri and KCMSD shall share 
equally the maximum cost of $90,225. In the area of 
library resources the State shall pay no more than 
$2,725,000 and KCMSD shall pay the projected balance 
of $2,040,936, bringing the projected total to $4,765,936 
(including the $950,000 originally allocated in year one 
budget). The State’s amount shall be a one time expendi­
ture. KCMSD’s amount, $2,040,936, slightly higher than 
that amount needed to maintain the AAA library re­
sources on an ongoing basis (Testimony of Casner at 
p. 95) shall be used annually to insure maintenance of 
AAA standard library resources in the remaining years 
of this desegregation plan.

In order to achieve AAA ranking KCMSD will be 
allowed $80,000 in additional personnel costs on a one 
time basis in order to purchase, inventory and distribute 
library resources. KCMSD shall submit a budget for 
review and recommendation to the Monitoring Commit­
tee on or before July 3, 1986 for these funds, which shall 
be evenly divided between the State of Missouri and 
KCMSD.

KCMSD shall report to the Monitoring Committee at 
least every 60 days, beginning not later than August 1, 
1986, on their progress towards reaching district-wide 
AAA ranking. The report shall be detailed and include 
a specific analysis of progress being made by the District 
towards the purchase and distribution of the required 
resources.



132a

The Court is firmly convinced that AAA status can be 
attained by the next evaluation by the DESE. The 
KCMSD Board of Education, superintendent, and all ad­
ministrative personnel must take whatever steps are 
necessary in order for the District to achieve AAA status 
before the end of the 1986/87 school term. Such an 
achievement is the cornerstone in the District’s efforts 
toward improving student achievement. Substantial and 
sufficient resources are available for laying this corner­
stone. When those resources are coupled with a commit­
ment on the part of the Board of Education and admin­
istrators to reach this goal, then KCMSD will once again 
take its place among the AAA rated schools of this state. 
This Court, through its Monitoring Committee, will 
closely monitor the progress of the District toward achiev­
ing this goal, and looks forward to next spring when the 
patrons, all parties, and the District can share in the 
pride of regaining the AAA rating for the first time 
since 1977.

Summer School

The summer school program for the summer of 1986 
is presently budgeted at a cost of $909,00, evenly divided 
between the State of Missouri and KCMSD. KCMSD has 
requested a budget expansion to $1,434,649 and the re­
moval of caps which were contained in the June 14, 1985 
order relating to per student costs. While the per student 
caps will be removed, the total budget for the summer 
school program for the summer of 1986 shall be $996,000. 
In addition to the operating expenditures of $996,000, the 
summer school budget shall include a maximum of 
$200,000 for transportation. These costs, will be evenly 
divided between KCMSD and the State. These figures 
are based upon projected enrollment at the elementary 
level of 1,480, 1,200 students at the junior high level 
and 1,000 students at the senior high level. A modified 
budget shall be submitted to the Monitoring Committee’s 
Executive Committee as soon as possible but no later



133a

than July 3, 1986. Detailed explanations shall be required 
in regard to the expenditures outlined in the proposed 
budget for the categories of awards, food, repair and 
maintenance, tuition and fees, and workshops. Further­
more, a detailed transportation budget shall be presented 
to the Monitoring Committee for review and recommen­
dation within the same time frame. The enrichment and 
cooperation program which was approved in the June 14, 
1985 order of this Court shall be deleted from that order 
and the KCMSD will not be required to operate such a 
program during the summer of 1985.

By January 9, 1987, the District shall report to the 
Monitoring Committee providing a detailed plan for the 
1987 summer school program. This plan shall address 
the need to have continuity between the regular academic 
year and the summer school program as well as problem 
areas which have been identified in the December, 1985 
summer school evaluation report and those identified in 
the next evaluation conducted by the KCMSD evaluation 
office. The report submitted to the Monitoring Committee 
shall address the specific recommendations for improving 
summer school contained in these evaluations, with spe­
cific attention being paid to the marketing of a summer 
school program to parents, improved communications with 
regular schools regarding the selection of students to 
attend summer school, reviewing the promotion/retention 
policy as it relates to summer school, and providing more 
planning time for teachers.

Full Day Kindergarten

The full day kindergarten program is projected to have 
a student enrollment of 3,482 for the upcoming 1986/87 
school term. In addition, federal funds from Chapter I 
programs which were used during year one of the de­
segregation plan to pay for 21 full day kindergarten 
teachers will not be available for that purpose in year 
two. This is due to federal regulations which govern the



134a

Chapter I program. The increase in enrollment and the 
decrease in federal funding available for full day kinder­
garten teachers requires that changes be made in the 
June 14, 1985 order of this Court. In addition, KCMSD’s 
established salary schedule requires that full day kinder­
garten teachers who taught during year one of the de­
segregation program, and will remain on staff for year 
two, are eligible for an increase in compensation.

KCMSD needs 158 kindergarten teachers for its pro­
jected enrollment of 3,482 kindergarten students. Prior 
to the remedial plan KCMSD had 100 non-Chapter I 
kindergarten teachers. Forty-one additional teachers 
were hired under year one of the desegregation plan. 
Thus an additional seventeen kindergarten teachers will 
be needed for 1986/87 school term. The increase in com­
pensation for year one kindergarten teachers is $26,496 
(Testimony of Giles at p. 31). Therefore, the KCMSD 
shall be allowed a maximum of 58 teachers, in addition 
to the 100 non-Chapter I kindergarten teachers in place 
prior to the remedial plan, at an average cost of $28,000. 
In addition, the District shall be allowed $26,496 to cover 
an increase in compensation for those teachers hired dur­
ing year one of the desegregation remedial plan. Since 
a portion of these funds are being utilized to replace 
kindergarten teachers who were compensated from Chap­
ter I federal funds, then the District shall report to the 
Monitoring Committee for review and recommendation, 
on or before August 1, 1986 concerning how the District 
plans to expend the Chapter I funds which are freed up 
by this additional expenditure. The Court will require 
that Chapter I funds freed up as a result of this order 
to be spent in a manner compatible with the desegrega­
tion remedial plan.

Finally, the public relations staff member hired as a 
part of this desegregation remedial plan shall report to 
the Monitoring Committee on or before August 1, 1986 
concerning what strategies the District has in place to



135a

inform and recruit students to its full day kindergarten 
program.

Before and After School Program

The before and after school program was operated in 
ten schools in the District, However only one of the ten 
schools had a before school component. Present funding 
is at $104,400. KCMSD has requested to expand the 
program to 20 schools with a budget of $275,433. Because 
of the plans to incorporate a before and after school 
component in the magnet school plan and because the 
District has only implemented a before school component 
in one of the ten schools, the District’s request for expan­
sion will be denied at this time. The before and after 
school program, as envisioned by this Court, based upon 
evidence presented during the remedial hearing in May 
of 1985, is a program which has the opportunity for 
recruiting non-minority students. It is not exclusively 
a tutoring program but can serve as a program for 
before and after school supervision. Therefore, any 
tutoring which may be a part of this program need not 
be done by certified instructors but rather can be accom­
plished, as pointed out in the June 14, 1985 order by 
cross-age instruction or peer tutoring and parental in­
volvement, Therefore KCMSD shall redesign its before 
and after school program to expand the before school 
component to more sites and shall analyze the present 
sites to determine whether or not they are the best sites 
for attracting desegregated enrollment. A revised 
budget, program sites, and a program synopsis shall be 
provided to the Monitoring Committee for review and 
recommendation on or before August 1, 1986.

Early Childhood Development Program

The present budget for the year two early childhood 
development program is $1,233,348. KCMSD proposes an 
increase in the budget to $1,551,787 as well as approval 
for the expansion of the opportunity classrooms in an



136a

amount equal to the carryover from the year one budget. 
The Court will approve the $1,551,786 budget but will 
require that any carryover from the year one budget be 
incorporated into that amount. Costs will be shared 
equally by KCMSD and the State.

The District shall report to the Monitoring Committee 
for review and recommendation on or before July 3, 1986 
on its revised budget for the upcoming school term. Spe­
cifically, the District shall provide additional information 
concerning the following budget category areas: tuition 
and fees, membership dues, supplies and materials under 
both the parent education and parent involvement com­
ponent, contractual services under the opportunity class­
rooms component, equipment and furniture (since the 
testimony was that these items had been purchased dur­
ing year one of the program).

In addition, KCMSD shall provide ongoing reports on 
the progress of this program to the Monitoring Commit­
tee. The District shall provide these reports at least 
quarterly, beginning August 1, 1986, and the reports shall 
include, at a minimum, information concerning enroll­
ment, location site, staffing and budget expenditures.

Effective Schools

The effective schools component of the desegregation 
remedial plan seeks to foster parental, patron, teacher 
and field administration staff involvement in the improve­
ment of student achievement. The Court sought that in­
volvement because effective changes in schools comes from 
the “bottom up” and not from the “ top down.”  The 
District has requested an increase of $250,000 in this 
program component area for four alternative schools. 
These schools are alternative schools with specialized pro­
grams and their enrollment is made up of 549 students 
from other schools throughout the District. The Court 
will expand the program to allow an allotment of $75,000 
to be divided among these four schools on the basis of



137a

student population. In addition, this Court will reduce 
the overall expenditure for the effective schools prog-ram 
by the amount equal to those funds which were to be 
received by the seven magnet schools. Therefore, $525,000 
will be subtracted from the overall allocation and $75,000 
will be added to the balance, coming up with a total of 
$5,275,000 to be paid entirely by the State of Missouri. 
KCMSD will provide a budget for these funds to the 
Monitoring Committee for review and recommendation 
on or before August 1, 1986.

In order to achieve the goals of this program KCMSD 
shall not institute any procedures or strategies which 
would result in normal district level activities being paid 
for by the effective schools component. Nor shall KCMSD 
reduce any present district level activities and place the 
financial burden on individual schools to purchase these 
services utilizing effective school resources.

One of the critical areas in elementary schools identi­
fied in the May, 1985 remedial hearing was that of 
elementary reading alignment. Several components of 
this Court’s order of June 14, 1985 were intended in part 
to support a major reading alignment effort. These com­
ponents included effective schools, reductions in class size, 
staff development, and summer school. While some prog­
ress appears to have been made with respect to ele­
mentary reading alignment, the KCMSD’s formative re­
port of February, 1986 indicates that implementation 
problems have been encountered. The report states that 
some schools were continuing to “teach all the objectives 
in the Houghton Mifflin text, rather than the reduced 
number,” that this decision may have had a negative 
impact on staff development, that the majority of the 
reading resource teacher’s time was being devoted to cur­
riculum development rather than assistance to schools 
regarding alignment and that the reading coordinator 
was hampered by a split assignment. The evaluation 
indicated that there was confusion surrounding the status



138a

of the alignment manual and that this confusion should 
be resolved as soon as possible.

In view of the importance of elementary reading 
alignment, an evaluation report will be prepared during 
September of 1986. The report’s purpose will be to deter­
mine how well teachers are implementing alignment and 
identify what problems are being encountered through­
out the district. The report shall include identification of 
critical actions, time schedules, deadlines, resource allo­
cations, and other recommendations for solving problems 
encountered with respect to reading alignment. The eval­
uation will be conducted by an external evaluator as 
provided in the Monitoring Committee portion of this 
order.

At the secondary level, reading comprehension is of 
central importance in improving student achievement. 
The degrees of reading power program (DRP) was in­
tended to be a tool to assist in improving student achieve­
ment and producing independent learners. It appears, 
however, that problems have been encountered in imple­
menting the DRP program. Based on the formative eval­
uation report submitted to the Monitoring Committee in 
February of 1986 there is uncertainty about the pro­
gram’s leadership, a lack of teacher involvement outside 
the areas of English and reading, lack of instructional 
support, missing computer hardware and a lack of clarity 
regarding the program’s philosophy and district commit­
ment.

In view of the importance of reading comprehension 
at the secondary level, an additional progress report on 
the DRP program will be prepared and submitted by 
KCMSD to the Monitoring Committee on or before July 
15, 1986 describing critical actions, time schedules, dead­
lines, resource allocations and other details of a plan for 
solving problems encountered with respect to the DRP 
program.



139a

Another major intervention program designed to im­
prove secondary school student’s performance in the 
school within a school (SWAS) program. A February, 
1986 evaluation made numerous recommendations regard­
ing the effective implementation of SWAS including the 
development of a coordinated curriculum for each of the 
SWAS areas; improvement in policies and procedures, 
provision of adequate materials, supplies and equipment, 
and improvement of staff development, KCMSD is or­
dered to submit a detailed plan for improved implemen­
tation of the SWAS program in 1986/87. This report 
should be submitted to the Monitoring Committee on or 
before August 1, 1986. The report shall include details 
concerning how much time of individual personnel in­
volved will be devoted to SWAS program, as well as 
details on funding, staffing, staff development and time 
schedules for 1986/87.

Voluntary Interdistrict Transfer

The State of Missouri was given the responsibility for 
actively seeking the cooperation of each school district in 
the Kansas City, Missouri metropolitan area in a volun­
tary interdistrict transfer program (VIDT). On June 
4, 1986, the State of Missouri provided this Court with 
written responses from eleven suburban school districts. 
All school districts stated that they were not interested 
in becoming involved in a transfer program at this time. 
Several of the districts stated that their refusal to par­
ticipate was based upon the pending litigation between 
KCMSD and themselves.

Some communication between the State and the Mis­
souri suburban districts must be conducted confidentially. 
However, as an arm of the Court, the Monitoring Com­
mittee has the responsibility for overseeing what progress 
is being made in each of the components of the desegrega­
tion remedial plan including VIDT. The Committee can­
not function, and thus the Court cannot properly re­



140a

spend, unless the parties provide it with sufficient in­
formation.

Beginning immediately, the State of Missouri shall re­
new contacts with the Board of Education of the individ­
ual Missouri suburban school districts in the Kansas 
City, Missouri metropolitan area concerning a voluntary 
interdistrict transfer program. The State will actively 
seek the cooperation of those districts in establishing such 
a program. In addition, the State shall seek to identify 
the present policy of each district in regard to accept­
ing students on a tuition basis from outside their dis­
trict, the conditions under which the district would con­
sider participation in a voluntary transfer program, the 
number of students the District will be interested in ac­
cepting from KCMSD and the number of students who 
may transfer to the KCMSD. Furthermore, the State of 
Missouri shall report on the effort that has been made 
with each district and the results of those efforts. The 
reports will be due on or before October 1, 1986, January 
9, 1987 and a final report will be due by May 29, 1987. 
Communication between the State and the districts will 
be kept in the strictest confidence by all parties to the 
communication and by all members of the Monitoring 
Committee.

Since the voluntary interdistrict transfer program could 
provide a significant opportunity for additional desegre­
gation of KCMSD schools as wmll as desergegative educa­
tional experiences for KCMSD students, the State of 
Missouri must demonstrate that they are seriously com­
mitted to seeking the cooperation of each suburban school 
district in the Kansas City, Missouri metropolitan area. 
If the State does not demonstrate its commitment, then 
this Court will seek other methods of accomplishing this 
task at the State’s expense. While recognizing that pend­
ing litigation does impact upon the suburban District’s 
decision, the State should explore with suburban districts



141a

the conditions under which they would consider par­
ticipation in order to reap the educational and financial 
benefits that are a part of this program.

Desegregation Monitoring Committee

The Desegregation Monitoring Committee is an arm of 
this Court. A request for information from the Com­
mittee should be treated by all parties as a request for 
information from this Court. Upon receipt of a request 
for information a party will respond in a prompt and 
thorough manner. If additional time is needed, an im­
mediate request for such should be made to the Com­
mittee and the Committee is instructed to grant exten­
sions of time when reasonable. However, if a party de­
termines that it will not respond to a request for in­
formation from the Committee, for whatever reason, the 
party should immediately inform the Court of its inten­
tion, specifically stating the reasons.

The Committee has shown itself to be an effective and 
impartial group committed to achieving the goals out­
lined in this Court’s plan. Cooperation by all parties 
with the Committee will assist everyone in achieving the 
goals of the plan and is viewed by this Court as a 
responsibility which every party has.

In order to continue the functions outlined by this 
Court in the June 14, 1985 order the budget for the 
Monitoring Office will be increased from its present level 
of $142,200 to a total of $187,950. Funds for the budget 
will come exclusively from the State of Missouri. This 
$45,750 increase represents a $4,000 increase in the 
operating budget, a 2%% increase in salaries and fringe 
benefits, and a $40,000 increase in research funds. The 
$40,000 research pool may be utilized by the Committee 
for the purpose of completing specific research projects. 
There will be no change in the per diem budget for 
Monitoring Committee members; the Court is aware that



142a

there may be a variation in the amount of time spent 
by members of the different committees, therefore during 
the budget year, which begins July 1, 1986, if the Execu­
tive Committee deems necessary, it may request from this 
Court approval of a reallocation of funds in order to in­
sure that sufficient per diem allocations are made for in­
dividual committee members.

REALLOCATION OF YEAR ONE BUDGET
KCMSD has requested authorization from this Court 

for reallocation of funds under the full day kindergarten 
component. Enrollment in the full day kindergarten pro­
gram was greater than originally anticipated resulting in 
a number of class sizes in excess of 25 students. KCMSD 
had 3,308 students enrolled in kindergarten as of Jan­
uary, 1985. In January of 1986 this number had in­
creased to 3,363. Additional kindergarten teachers were 
needed because of this enrollment increase. As a result, 
the KCMSD hired 41 additional teachers, rather than the 
39 additional teachers included in the June 14, 1985 
order. KCMSD will be allowed to reallocate funds in the 
year one budget and pay for the two additional teachers 
hired for the full day kindergarten program out of the 
desegregation plan. In addition any remaining unallo­
cated funds from the year one budget may be used to 
purchase furnishings and equipment for the added kin­
dergarten rooms. However, the total amount of funds 
to be spent during the year one budget shall not exceed 
$1,092,000 with KCMSD and the State of Missouri pay­
ing equal shares of the total amount expended.

SALARY SCHEDULE
The June 14, 1985 order stated that in hiring per­

sonnel the KCMSD would be limited to a maximum cost 
of $28,000 for professional staff including fringe bene­
fits. The maximum cost for individual teacher aides was 
to be $9,500 including fringe benefits. KCMSD is re­



143a

quired to pay new personnel according to existing salary 
schedules. The District is now seeking a change in the 
June 14, 1985 order which would remove the cap on 
salaries set at $28,000 for professionals and $9,500 for 
teacher’s aides and instead utilize those figures as aver­
ages. KCMSD’s request will be granted and the District 
will be limited to an average cost of $28,000 for profes­
sionals including fringe benefits and $9,500 for teachers 
aides including fringe benefits. However, the total 
amount of funds which were budgeted for the affected 
components will not be increased. The KCMSD shall 
continue to charge the least expensive personnel to the 
desegregation budget when multiple hirings occur.

CAPITAL IMPROVEMENTS
A comprehensive capital improvement study has been 

completed by KCMSD and a report presented to the 
Monitoring Committee and this Court, detailing specific 
capital improvement needs by school. The original 
$37,000,000 budgeted in year one of the desegregation 
plan has been allocated toward the most critical capital 
improvement needs of the District. In the June 14, 1985 
order this Court took note of the deteriorating conditions 
of the District facilities including safety and health haz­
ards, educational environment impairments, functional 
impairments as well as impairments in the appearance 
of the facilities. This Court also found that improvement 
of school facilities is an important factor in the overall 
success of this desegregation plan and ordered the Dis­
trict to complete a study to determine what needed to 
be done in order to bring its facilities to a point rela­
tively equal with the facilities in neighboring suburban 
school districts. This Court reserved judgment in the 
June 14th order as to whether additional expenditures 
for capital improvements beyond the initial $37,000,000 
would be required to be made by the State of Missouri. 
At that time the Court also stated that after the capital



144a

improvements have been made it would be incumbent 
upon KCMSD to include in its budget funds for the main­
tenance of those improved facilities.

This Court will order additional capital improvements 
to be made. The State of Missouri will pay for these 
additional improvements. The Court authorizes the ex­
penditure of up to $4,063,154 for capital improvements 
as outlined in the capital improvement study for schools 
in the Southwest Cluster. The Court authorizes the ex­
penditure of up to $3,468,004 for the Swinney and 
Volker Elementary Schools, Finally, the Court authorizes 
the expenditure of up to $5,346,172 at the Lincoln North 
Academy. Total capital improvement expenditures to be 
paid for by the State are $12,877,330. In order to com­
plete these capital improvements without displacing stu­
dents from those schools the District is authorized to use 
up to a maximum of $480,000 of these funds for the 
purchase of classroom modules, if absolutely necessary. 
The District will be required to provide reports on at 
least a quarterly basis, beginning August 1, 1986, to the 
Monitoring Committee on progress being made in com­
pleting the capital improvements at the designated 
schools. Specifically these reports should detail the
amount of work completed, the amount of funds expended, 
and the balance of work to be done. In addition, the 
District shall present on or before January 5, 1987 a 
plan to the Monitoring Committee detailing how the Dis­
trict will maintain the capital improvements made as a 
result of the desegregation plan, including last year’s 
work. This report will include budget estimates and how 
the District plans to raise sufficient funds for the main­
tenance of the improved facilities. The District shall also 
report to the Monitoring Committee on or before January 
5, 1987 on the need for future capital improvements. 
Specifically the District shall present a report outlining 
what capital improvements remain to be done, the amount 
of funds required to achieve these improvements and a



145a

timetable. The report shall specifically detail what com­
ponents of the capital improvements plan are considered 
by the District to be related to eliminating safety and 
health hazards, what portions are related to correcting 
conditions existing in the facilities which impede the level 
of comfort needed for creating a good learning climate, 
and what portions of the improvements relate to making 
the facilities visually more attractive.

MAGNET SCHOOLS
Magnet schools can be utilized to assist in expanding 

the desegregative educational experience for KCMSD 
students. A key to success is the commitment of the 
Board of Education, the superintendent, the administra­
tion, the staff of the schools, and the parents and patrons. 
That commitment, when coupled with quality planning 
and sufficient resources can result in the establishment 
of magnet schools which can attract non-minority enroll­
ment as well as be an integral part of district-wide im­
proved student achievement.

KCMSD has presented to the Court a magnet school 
proposal for school term 1986/87. This proposal would 
include the three schools of the Southwest Cluster Inves­
tigative Learning Magnet, the Westport Community 
Applied Learning Magnet and the Lincoln College Pre­
paratory Magnet. The themes, staffing, curriculum and 
budget are based upon thorough area-wide surveying in 
compliance with this Court’s June 14, 1985 order. The 
plan incorporates input from parents, patrons and pro­
fessionals from throughout the District. It has substan­
tial support within the KCMSD and has the potential 
for demonstrating the central administration’s ability to 
effectively implement and manage substantial educational 
improvements within the District.

The long term goal of this Court’s remedial order is 
to make available to all KCMSD students educational 
opportunities equal to or greater than those presently



146a

available in the average Kansas City, Missouri metro­
politan suburban school district. In achieving this goal 
the victims of unconstitutional segregation will be re­
stored to the position they would have occupied absent 
such conduct, while establishing an environment designed 
to maintain and attract non-minority enrollment. A re­
view of this magnet school plan has been conducted in 
light of this goal. While the resources requested are sub­
stantial, the constitutional violations found to exist were 
also substantial. While the number of individual students 
benefited during the first year of the magnet school pro­
gram will not be large, the individual benefit for each 
of those students will be very large and the long term 
benefit to the District is worthy of such an investment. 
Therefore, this Court is ordering the implementation of 
the Kansas City, Missouri School District’s magnet school 
plan with specific modifications.

At the Southwest Cluster KCMSD shall institute a 
fully magnetized school program in school term 1986/87. 
This program will include an extended year program with 
a budget of $423,500. The budget for nonsalary items 
will be $497,820. The personnel budget will be 
$3,777,116. This is a reduction in the amount of funds 
requested for personnel. The goals established for student 
teacher ratios within the magnet school plans will be 
deleted from the plan. The goals established for reduced 
class size in the June 14, 1985 order will be substituted 
in their place. In order to meet the goals established for 
student teacher ratios in the June 14, 1985 order the 
District wall use funds over the next two school terms 
made available from the reduced class size component of 
the desegregation plan. However, the reduced class size 
component of the plan is a district wide component and 
the goals established shall be reached throughout the 
District without preference to magnet schools. These 
reduced class sizes, ones which were presented for adop­
tion by KCMSD are more than sufficient to provide 
quality educational opportunities, individualized atten­



147a

tion, and attract both minority and non-minority enroll­
ment. Enrollment shall be as outlined in the magnet 
school plan. Therefore, the total operating budget for 
the Southwest Cluster Investigative Learning Magnet 
will be $4,698,436. The District will be required to pay 
for $2,590,598 and the State will be required to pay 
$2,107,838.

The Court will order the implementation of the West- 
port Community Applied Learning Magnet consisting of 
Swinney and Volker Elementary Schools. Total budget 
for the Westport Magnet School will be $3,522,031. Non- 
salary items will be budgeted at a maximum of $357,082 
with the extended year program budget being $423,500. 
Personnel costs shall be limited to $2,741,449 with the 
same limitations on student teacher ratios as outlined 
previously in regard to the Southwest Cluster. The goals 
established for student teacher ratios in the June 14, 1985 
order will be used for the magnet schools and funds from 
the reduced class size component over the next two school 
terms shall be utilized in order to reach those goals. 
KCMSD will be required to fund a total of $1,703,259 
for Swinney Volker with the State paying $1,818,772.

The Court will order the implementation of the Lin­
coln College Preparatory Magnet Program in the school 
term of 1986/87. The total budget for this program will 
be $4,152,260. The non-salary component of the budget 
will be $1,318,493 and the extended year program will 
have a budget of $90,000. Personnel costs will be no 
more than $2,743,767 with the same limitations placed on 
personnel as outlined for the previous magnet schools. 
That is, that the goals established in the June 14, 1985 
order in regard to reduced class sizes shall be inserted in 
place of the goals established in the proposed magnet 
school plan. Funds shall be made available from the 
reduced class size component over the next two school 
terms in order to reach those goals. KCMSD will be 
required to pay $1,723,246 of the total Lincoln Magnet



148a
School budget with the State being required to pay a 
maximum of $2,429,024.

Quality planning, commitment of the superintendent 
and administrators, and responsible management, are ab­
solutely necessary to insure that the resources approved 
by this Court for magnet schools are effectively and 
efficiently used to reach the goals of the remedial plan. 
Therefore, this Court will authorize a budget of $600,000 
for administration of the magnet school program. Spe­
cifically, $164,835 will be allowed for central administra­
tion with $435,165 being made available for marketing 
and for planning to avert resegregaiton. This cost will 
be evenly borne by the State and the District.

The total amount of funds budgeted for the magnet 
school program will be $12,972,727 with the District pay­
ing $6,317,093 and the State paying $6,665,634.

In implementing the magnet school program in school 
term 1986/87 the District shall utilize the same desegre­
gation goals for kindergarten that have been established 
for other grades and schools. The goal established for 
desegregative enrollment of 50% minority and 50% non­
minority shall be measured on the grade and school level 
and not only on the elementary cluster level. The train­
ing provided for the staff of these magnet schools is ex­
tremely important and at least 70 hours of the total 
training package shall be conducted prior to the begin­
ning of the school term with the total training package 
being approved by the Monitoring Committee prior to its 
implementation. Therefore, the training program shall 
be submitted for review and action by the Committee on 
or before July 25, 1986. Furthermore, the District shall 
utilize its standard involuntary transfer policy and pro­
cedures in regard to the vacated positions at these schools 
and shall adhere to the work day length agreement 
reached between the District and the AFT Local 691.

Further development of the magnet school program 
must be based upon making magnet schools an integral



149a

part of an overall effort to improve educational achieve­
ment. The magnet plan must be geared toward both 
remedial and desegregative goals and should maximize 
achievement of desegregation with a minimum amount of 
resources. The magnet program should provide long term 
stability in terms of future financing as well as incor­
porate a carefully designed marketing program based 
upon a clearly defined themes and currieulums. Finally, 
a quality magnet program should be based upon a careful 
analysis of the plans’ impact upon other components of 
the desegregation plan. Thus, future development of a 
magnet school program need not duplicate this initial 
phase of the magnet school effort. The District should 
provide to the Monitoring Committee and all parties a 
copy of their comprehensive magnet school program pro­
posal on or before August 1, 1986. It will be measured 
against the criteria as outlined in this order.

FINANCING SUMMARY
Following is an outline of the year two desegregation 

budget:
KCMSD STATE TOTAL

All Day Kindergarten 797,248 797,248 1,594,496
AAA 4,053,317 4,737,380 8,790,697
Before & After School 52,200 52,200 104,400
Effective Schools 5,275,000 5,275,000
Summer School 598,000 598,000 1,196,000
Reduced Class Size 4,000,000 4,000,000
Capital Improvements 12,877,330 12,877,330
Administration 30,000 30,000
Monitoring Committee 187,950 187,950
Magnet Schools 6,317,093 6,655,634 12,972,727
Voluntary Interdistrict Transfer open open open
Student Reassignment open open open
Early Childhood Development 775,893 775,893 1,551,786

TOTAL 12,593,751 35,986,635 48,580,386



150a

Except in the full day kindergarten component, any 
carryover from year one shall be used to fulfill year two 
budget requirements within the component.

CONCLUSION
All parties, and all persons delegated with the respon­

sibility for implementation of any portion of this plan, 
should clearly understand that this Court expects the plan 
to be implemented in a thorough and efficient manner. 
Whether agreeing or disagreeing with its individual com­
ponents, the parties must comply with this plan as much 
as any statute and this Court will require each party and 
all individuals delegated with responsibilities for imple­
mentation to make a diligent effort, to carry out this 
plan. Failure to make a diligent effort may result in 
sanctions against a party or individual.

/ s /  Russell G. Clark 
Russell G. Clark 
District Judge 
United States District Court

Dated: June 16, 1986



151a

APPENDIX E

UNITED STATES DISTRICT COURT
W.D. MISSOURI, W.D.

No. 77-0420-CV-W-4

Kalima Jenkins, et al.,
Plaintiffs,

v.

State of Missouri, et al.,
Defendants.

June 14, 1985

Arthur A. Benson, II, Benson & McKay, Kansas City, 
Mo., and James S. Liebman, and Theodore M. Shaw, 
NAACP Legal Defense & Education Fund, New York 
City, for plaintiffs.

James Borthwick, Shirley Keeler, Blackwell, Sanders, 
Matheny, Weary & Lombardi, Kansas City, Mo., and 
Allen R. Snyder, Hogan & Hartson, Washington, D.C., 
for defendant KCMSD.

Bartow Farr, III, Onek, Klein & Parr, Washington, 
D.C. and Ann Wheeler, Asst. Atty. Gen., Jefferson City, 
Mo., for defendant State of Mo.

Michael Gordon, Kansas City, Mo., for intervenor 
Amer. Fed. of Teachers.



152a

MEMORANDUM OPINION

RUSSELL G. CLARK, Chief Judge.

INTRODUCTION
The function of a remedial plan in a school desegrega­

tion setting is to make the constitutional ideal of equal 
justice under the law a “ living truth.” Cooper v. Aaron, 
358 U.S. 1, 20, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958). The 
basic remedial principle, repeatedly articulated by the 
courts in school desegregation cases, is that “ the scope 
of the remedy is determined by the nature and extent of 
the constitutional violation.” MilliJcen v. Bradley, 418 
U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 
(1974) (Milliken I ) ;  Columbus Board of Education v. 
Penick, 443 U.S. 449, 465, 99 S.Ct. 2941, 2950, 61 
L.Ed.2d 666 (1979) ; Dayton Board of Education v. 
Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 
L.Ed.2d 851 (1976) ; Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 
1275-76, 28 L.Ed.2d 554 (1971). Further, the goal of 
the remedy is to prohibit new violations and eliminate 
the continuing effects of prior violations. Louisiana v. 
United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 
L.Ed.2d 709 (1965) ; Keyes v. School District No. 1, 413 
U.S. 189, 200, 93 S.Ct. 2686, 2693, 37 L.Ed.2d 548 
(1973); Green v. County School Board, 391 U.S. 430, 
437-38 and n. 4, 88 S.Ct. 1689, 1693-94 and n. 4 20 
L.Ed.2d 716 (1968).

The principles that have guided this Court in imple­
menting a desegregation plan for the KCMSD are clear. 

In fashioning, and effectuating (desegregation) . . . de­
crees, the courts will be guided by equitable principles. 
Traditionally, equity has been characterized by a practi­
cal flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private needs.” 
Brown v. Board of Education, 349 U.S. 294, 300 75



153a

S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II). However, 
a consideration of those practicalities does not mean that 
the vindication of constitutional rights can be denied on 
“ any theory that it is less expensive to deny than afford 
them.” Watson v. Memphis, 373 U.S. 526, 83 S.Ct, 1314, 
10 L.Ed.2d 529 (1963).

Further, the goal of a desegregation decree is clear. 
The goal is the elimination of all vestiges of state im­
posed segregation. In achieving this goal, the district 
court may use its broad equitable powers, recognizing 
that these powers do have limits. Those limits include 
the nature and scope of the constitutional violation, the 
interests of state and local authorities in managing their 
own affairs consistent with the constitution, and insur­
ing that the remedy is designed to restore the victims of 
discriminatory conduct to the position they would have 
occupied in the absence of such conduct. Morrilton School 
District No. 32 v. U.S., 606 F.2d 222, 229 (8th Cir. 
1979), cert, denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 
L.Ed.2d 753 (1980).

In reviewing the plans presented by the parties, the 
evidence presented during the hearing, and this Court’s 
findings of constitutional violations, it is clear that 
“ [t]he remedial portion of a school desegregation case 
is unlike that of any other variety of litigation and con­
ceivably can surpass the liability portion in terms of com­
plexity and duration.” Armstrong v. Board of School 
Directors of City of Milwaukee, 616 F.2d 305, 324 (7th 
Cir.1980). Therefore, the establishment of liability is 
only the beginning. “ The precise remedy does not fol­
low logically from the determination of liability, but 
rather reflects a careful reconciliation of the interests of 
many affected members of the community and a choice 
among a wide range of possibilities. The nature of the 
litigation does not lend itself to complete success by one 
side or the other.”  United States and South End Educa­



154a

tion Committee v. Board of Education of Waterbury, 605 
F.2d 573, 576-77 (2d Cir.1979).

This Court recognizes that implementation of this plan 
will be difficult. “The pain of transition is an unfor­
tunate, but inevitable result of deliberate policies which 
have isolated black Americans from the schools . . .  of 
white Americans.” United States v. School District of 
Omaha, 521 F.2d 530, 546 (8th Cir.), cert, denied, 423 
U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975).

Since 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, 
it is only equitable to place the greatest burden of re­
moving the vestiges of such discrimination and the con­
tinuing effects of same on the State rather than on those 
who are the victims.

“All, regardless of race or class or economic status, 
are entitled to a fair chance and to the tools for develop­
ing their individual powers of mind and spirit to the 
utmost, This promise means that all children by virtue 
of their own efforts, competently guided, can hope to 
attain the mature and informed judgment needed to 
secure gainful employment, and to manage their own 
lives, thereby serving not only their own interests but 
also the progress of society itself.” A Nation At Risk: 
The Imperative for Educational Reform.i at p. 1 (1983) 
(hereinafter cited as A Nation at Risk). Segregation in 
the KCMSD has resulted in this promise going unkept.

Measures requiring educational improvements have 
been incorporated into many desegregation remedies. 
Milliken v. Bradley, 433 U.S. 267, 279-88, 97 S.Ct. 2749, 
2756-61, 53 L.Ed.2d 745 (1977) (Milliken II)', Morgan 
v. Kerrigan, 530 F.2d 401, 427-30 (1st Cir.), cert, denied, 
426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); 
Tasby v. Wright, 520 F.Supp. 683, 741-43 (N.D.Tex. 
1981) ; Oliver v. Kalamazoo Board of Education, 640 F.2d



155a

782, 787 (6th Cir.1980) ; United States v. Board of School 
Commissioners, 506 F.Supp. 657, 671-72 (S.D.Ind.1979), 
ajf’d in part, reversed in part, 637 F.2d 1101 (7th Cir.), 
cert, denied, 449 U.S. 838, 101 S.Ct, 114, 66 L.Ed.2d 45
(1980) ; Liddell v. Board of Education, 491 F.Supp. 351, 
357 (E.D.Mo.1980), aff’d, 677 F.2d 643 (8th Cir.). cert, 
denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 629
(1981) (Liddell III).  The use of ancillary programs to 
improve the educational quality of a school district in 
desegregation remedy is based upon the federal district’s 
“ duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past. . . .” 
Haney v. County Board of Education, 429 F.2d 364 (8th 
Cir.1970), quoting, Louisiana v. United States, 380 U.S. 
145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). No 
party to this case has suggested that this plan should 
not contain components designed to improve educational 
achievement. In fact, it is “ appropriate to include a 
number of properly targeted educational programs in a 
desegregation plan” (State Plan at 5). This is true be­
cause “ individuals in our society who do not possess the 
levels of skill, literacy, and training essential to this 
new era will be effectively disenfranchised, not simply 
from the material rewards that accompany competent 
performance, but also from the chance to participate fully 
in our national life.”  A National at Risk at p. 7. The 
difficult question which remains is, which programs are 
appropriate to remedy the ill effects of the unconstitu­
tional segregation and to attract and maintain non-mi­
nority enrollment.

Segregation has caused a system wide reduction in stu­
dent achievement in the schools of the KCMSD (testi­
mony of Dr. Daniel Levine, testimony of Dr. Eugene 
Eubanks at pp. 22,376-79). Test results from the Iowa 
Test of Basic Skills in grades 1 through 6 show that 
there are only a few elementary schools of the 50 in 
the KCMSD which are presently performing at or above



156a

the national norm in reading and mathematics. This is 
especially true in regard to the basic skill of reading 
(P.Ex.3781). (The Court is aware that there may be 
substantial improvement on the tests for the current 
year.) The testimony of all the educational experts in­
cluding Dr. Daniel Levine, Dr. Eugene Eubanks, Dr. 
Herb Walberg, Dr. Joan Abrams, Carla Santorno, Dr. 
Joseph Barderick, and Dr. Willis D. Hawley, confirm 
that this situation is correctable and that the schools in 
KCMSD, when provided with adequate resources, suf­
ficient staff development, and proper teaching methods, 
can attain educational achievement results more in keep­
ing with the national norms (see specifically the rebuttal 
testimony of Dr. Daniel Levine stating that the goal of 
the KCMSD Plan was to raise the average achievement 
level for elementary students in the area of reading to 
the national norms within 4 to 5 years and to bring the 
passing rate at the secondary level for the BEST test 
from 51% to a 90 to 95% pass rate).

Both the State of Missouri and the KCMSD have pro­
posed program components designed to increase student 
achievement at the elementary and secondary levels 
(KCMSD Plan at pp. 19-33; State Plan at pp. 16-43, 
and 108-09). The approach taken by KCMSD on the 
elementary level includes the implementation of an early 
language development program (KCMSD Plan p. 22, 23), 
24 transition rooms in elementary schools for students 
who would normally be retained in kindergarten or third 
grade (KCMSD Plan p. 23, 24), the hiring of additional 
elementary school counselors and home school liaison of­
ficers in all low achieving elementary schools (KCMSD 
Plan at p. 21), the expansion of computer assisted and 
computer managed instruction (KCMSD Plan p. 31-34), 
the implementation of a “ Writing to Read” project (a 
computer program designed for kindergarteners) (KCMSD 
Plan p. 32), the implementation of a computer home loan 
program (KCMSD Plan p. 33) and what KCMSD calls



157a
an “ Effective School” project which would make available 
up to $100,000 for each elementary school with reading 
levels below national average (KCMSD Plan p. 21). 
This means that 41 of the 50 elementary schools in the 
KCMSD would be receiving these funds (KCMSD Exh. 
K-95). The Effective School project attempts to ad­
dress the individual needs of the elementary schools on 
the school level. Local parents, patrons, teachers and 
principals would be involved in determining how these 
resources may be spent in order to increase the student 
achievement level in that school, especially in regard to 
reading. A similar program has been implemented in 
six predominantly minority schools in the KCMSD. It 
has shown significant promise as a means of remedying 
many of the educational problems which go hand in hand 
with racially isolated minority student populations (tes­
timony of Dr. Daniel Levine at pp. 22,132-49, testimony 
of Dr. Eugene Eubanks at pp. 22,376-79).

The State proposal for improving student achievement 
on the elementary level is the implementation of an “ In­
structional Management System.”  This system is a modi­
fication of a teaching approach entitled “ Mastery Learn­
ing” (State Plan at p. 43). Mastery learning, as de­
fined by Dr. Joan Abrams and Carla Santorno, in testi­
mony during the remedial hearing, is an instructional 
technique in which the teacher prepares a lesson plan and 
presents material to the class, following presentation of 
the material the teacher conducts testing or evaluation 
to determine which students have mastered the material, 
then the teacher establishes lesson plans which are more 
individualized with one group of students receiving en­
richment, while the other group of students, who have 
not yet mastered the material, will receive remedial les­
sons until they do master the material. This technique 
has proven successful in school districts undergoing de­
segregation as well as those which were not (testimony 
of Dr. Daniel Levine, Dr. Herb Walberg, Dr. Joan 
Abrams, Carla Santorno).



158a

The KCMSD proposal for improving achievement on 
the secondary levels includes: the implementation of pre- 
collegiate courses and career counseling (KCMSD Plan 
pp. 25-27, 29-30) ; the implementation of alternative sec­
ondary education programs (KCMSD Plan at 27-28), in­
cluding in-school suspension rooms, transition rooms for 
the ninth grade, alternative schools for alienated youth, 
computer laboratories and a reform and reorganization 
demonstration project similar to the effective elementary 
school project in which the 18 secondary schools would be 
budgeted approximately $100,000 per school with the de­
termination as to how those funds should be allocated 
based upon recommendations of patrons, parents, teach­
ers and the local principal.

The State proposes to implement pre-collegiate courses 
and an occupational and career education program in the 
90% plus black schools (State Plan at 109). No other 
specific proposals are made by the State as part of an 
attempt to improve achievement at the secondary educa­
tion level, however, other components in its plan, as in 
the KCMSD Plan, allow for programs which would be 
aimed at improving achievement.

In addition to these programs to increase student 
achievement, both the State of Missouri and the KCMSD 
endorse achieving AAA status, reducing class size at the 
elementary and secondary level, summer school, full day 
kindergarten, before and after school tutoring and early 
childhood development programs.

IMPROVING STUDENT ACHIEVEMENT 
AAA Achievement

The Missouri State Department of Elementary and 
Secondary Education (DESE) conducts an annual evalu­
ation of school districts as a part of its ongoing classi­
fication and accreditation program. The objective of this 
program is to provide direction and assistance in the



159a

development of quality education in Missouri’s public 
schools (KCMSD Exh. K-69). Under this program Mis­
souri’s school districts are classified according to the 
quality and quantity of the educational programs and 
services they offer, including such items as teacher quali­
fications, class size, instructional equipment, library re­
sources, and instructional materials. The highest classi­
fication is “ AAA.” A AAA rating is a designation which 
communicates to the public that a school system quanti­
tatively and qualitatively has the resources necessary to 
provide minimum basic education to its students (Dr. 
Eubanks’ testimony at 22,360).

Presently KCMSD is rated AA and has been so rated 
since 1977. All other school districts in the Kansas City 
area are rated AAA (testimony of Dr. Larry Keisker). 
KCMSD’s eligibility for AAA rating is dependent upon 
improvement in library personnel and resources among 
KCMSD’s elementary schools and secondary schools. Fur­
thermore, the elementary school system is lacking in a 
minimum number of art, music, and physical education 
teachers. There is also a need for additional counselors 
at the elementary and secondary levels in order to reach 
AAA classification and finally, KCMSD elementary 
teachers do not have adequate planning time (KCMSD 
Exh. K-68).

Specifically, the following improvements must be made 
in order for KCMSD to meet or barely exceed AAA clas­
sification standards:

1. Library Improvement. KCMSD must hire 13 certi­
fied librarians for the elementary school libraries (KCMSD 
Exh. K-69, testimony of Dr. Eugene Eubanks at p. 
22,363, testimony of Dr. Larry Keisker).

KCMSD needs an additional 9 senior high librarians 
(testimony of Dr. Larry Keisker, KCMSD Exh. K-68, 
testimony of Dr. Eugene Eubanks at 22,362).



160a

Additional media and library resources are needed at 
the elementary, junior and senior high school libraries. 
The total amount of additional resources needed to raise 
the library and media resources to a AAA standard is 
$950,000 (testimony of Dr. Larry Keisker, testimony of 
Dr. Eugene Eubanks at pp. 22,361-362, KCMSD Exh. 
K-68, State Plan at p. 97, KCMSD Exh. K-95 at p. 6).

2. Teaching Load and Curriculum. The AAA stand­
ard for elementary teaching load is that “ (a) 11 teachers 
shall have planning time scheduled within the school day 
and shall devote no more than an average of 310 min­
utes of the six hour day to teaching except that full-time 
librarians and guidance counselors may devote 360 min­
utes of the six hour day to those duties.” (Handbook for 
Classification and Accreditation of Public School Dis­
tricts in Missouri at p. 18). Presently KCMSD is not in 
compliance with this minimum standard (testimony of 
Dr. Larry Keisker, testimony of Dr. Eugene Eubanks at 
pp. 22,367-74, KCMSD Exh. K-68). Furthermore, the 
AAA standard for elementary school curriculum includes 
a requirement that art and music shall be scheduled and 
taught at least 60 minutes per week by teachers with the 
proper subject matter certification or teachers with regu­
lar elementary certificates who are supervised by teach­
ers with proper subject matter certification and that phy­
sical education shall be scheduled and taught at least two 
30 minute periods per week by teachers with certificates 
in physical education or by teachers with regular elemen­
tary certificates who are supervised by teachers with cer­
tificates in physical education. (Handbook for Classifica­
tion and Accreditation of Public School Distmcts in Mis­
souri at p. 20). KCMSD is presently not in compliance 
with this AAA standard (KCMSD Exh. K-68, testimony 
of Dr. Eugene Eubanks at pp. 22,367-68, testimony of 
Dr. Larry Keisker).

Both the State and KCMSD propose using additional 
art/PE/music specialty teachers on the elementary level



161a

in order to obtain additional planning periods for exist­
ing elementary teachers. Presently KCMSD has 48 spe­
cialty curriculum teachers with each student receiving 1 
art/PE/music session every ten days. There are 20,245 
elementary students in KCMSD (KCMSD Exh. K-74). 
In order to meet the AAA curriculum standards for these 
three specialty areas, 34 teachers are needed in each of 
the three areas. Thus there is a need for 102 teachers. 
Since KCMSD presently employs 48 of these teachers, 
then a total of 54 additional art/PE/music teachers are 
needed in order to comply with AAA teaching load stand­
ards at the elementary level (testimony of Dr. Eugene 
Eubanks at p. 22,368-9).

The hiring of 54 additional specialty curriculum teach­
ers would also provide 180 minutes per week of planning 
time for elementary school teachers. Seventy minutes of 
planning time per week would still be needed by elemen­
tary school teachers in order to reach AAA standards 
(Handbook at p. 18). The State recommends that this 
additional time could be achieved through shared recess 
supervision loads. That is, since there are two 15 min­
ute recess periods each day, there is a total of 150 min­
utes of recess time each week. If two teachers would 
trade off responsibilities for supervising these recess pe­
riods, then each teacher would be given an additional 75 
minutes per week of planning time, enough to meet AAA 
standards when combined with the 180 minutes of plan­
ning time provided by the art/PE/music teachers (testi­
mony of Dr. Larry Keisker).

The KCMSD proposes to hire 62 additional teachers in 
order to fill the planning time remaining.

In order to meet the AAA classification requirements 
for teaching load at the elementary school level, KCMSD 
shall hire an additional 31 certified teachers and 31 
teacher’s aides in order to insure that all teachers have 
planning time scheduled within the school day and that



162a

all teachers should devote no more than an average of 
310 minutes of the six hour day to teaching.

3. Counselors. The AAA standard for elementary 
counselors is 1 counselor for every 1,500 students, plus 
for every major fraction above the 1,500 student level, 
an additional half-time counselor (Handbook at p. 19). 
Presently KCMSD has no elementary counselors (testi­
mony of Dr. Eugene Eubanks, p. 22,366). Fourteen ad­
ditional counselors are needed in order to meet AAA 
standards.

At the secondary level AAA standards require one 
full-time counselor for every 390 students (Handbook 
at pp. 27, 33). The KCMSD needs an additional four 
counselors to meet AAA standards (testimony of Dr. 
Keisker).

The patrons of a school district, especially the parents 
of potential students of that school district, view a AAA 
rating as an important factor in measuring the school’s 
ability to educate its students. Achieving AAA classifi­
cation could be the first step in KCMSD’s journey to re­
gain and maintain a quality education program and could 
serve to assist in attracting and maintaining non-minority 
student enrollment. Achieving AAA status has been rec­
ognized by the Eighth Circuit as a proper component of 
a desegregation plan. Liddell v. State of Missouri (Lid­
dell VII), 731 F.2d 1294, 1318, cert, denied,, 469 U.S. 
816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), Liddell v. State 
of Missouri, (Liddell VIII), 758 F.2d 290, 294 (1985). 
Therefore, KCMSD shall hire 13 certified librarians for 
its elementary school libraries, 9 certified librarians for 
the senior high school libraries, and purchase $950,000 
in additional media and library resources at the elemen­
tary, junior and senior high library levels. Furthermore, 
KCMSD shall hire 18 art certified elementary school 
teachers, 18 music certified elementary school teachers, 
and 18 physical education certified elementary school



163a
teachers for the purpose of achieving AAA standards 
in the area of elementary curriculum and assisting in 
reaching AAA standards in the area of teaching loads. 
KCMSD shall also hire 31 additional certified elementary 
school teachers and 31 teachers’ aides who shall be used 
to free up planning time for existing elementary school 
teachers in order to insure that all teachers have plan­
ning time scheduled within the school day and that all 
teachers should devote no more than an average of 310 
minutes of the six hour day to teaching. KCMSD shall 
hire 14 additional elementary school counselors in order 
to have one elementary school counselor for every 1,500 
students presently enrolled at KCMSD elementary level. 
KCMSD shall hire an additional four certified counselors 
at the secondary level. All additional hirings and addi­
tional resources purchased under this order which shall 
enable KCMSD to reach AAA classification status shall 
be done before and during the 1985/86 school year in 
order that the new classification ratings issued by the 
State in the spring of 1986 will reflect the results of this 
effort. The maximum funds available for achieving AAA 
status shall be $4,738,500. No more than $950,000 shall 
be spent on additional library and media resources. The 
maximum cost for individual librarians, counselors and 
teachers, including fringe benefits, shall be $28,000. The 
maximum cost for individual teacher’s aides, including 
fringe benefits, shall be $9,500. The cost for achieving 
AAA status, in the maximum amount of $4,738,500, shall 
be borne equally by the KCMSD and the State of Mis­
souri.

Reducing Elementary and Secondary School Class Size

The Missouri State Board of Education in 1984 stated 
that “ [tjoday, in many schools, the entire educational 
process is bogged down because so many students have 
not mastered requisite skills thoroughly and because 
teachers must spend so much time helping them “ catch 
up.” Until we elevate the “ floor of achievement” for all



164a

students— at least in terms of basic school skills— the 
slowest learners will continue to dictate the pace and 
content of instruction for all the rest.”  Reaching for 
Excellence at p. 18 (KCMSD’s Exh. K-75). That educa­
tion process has been further “bogged down” in the 
KCMSD by a history of segregated education. Too often, 
as a result, a higher percentage of black students are 
among the lower achievers. The cost of this under­
education is enormous.

When thousands of our citizens are afforded only 
inferior educational opportunities, they suffer a loss 
which can never be compensated and the whole coun­
try is subjected to unnecessary social and economic 
waste.

Robert F. Kennedy, The Pursuit of Justice, p. 73 (1964). 
The Missouri State Board of Education has made a num­
ber of recommendations to improve educational oppor­
tunities for all Missouri students, including “ [increas­
ing the individual attention and instruction available to 
students by providing funds to enable school districts to 
maintain classes no larger than 15 students in kinder­
garten to grade 3 and no larger than 20 students in basic 
skill classes in grades 4 through 6.” Reaching For Ex­
cellence, supra, at 21. All of the hearing testimony by 
experts, board members, and patrons, supports the con­
clusion that increasing individual attention and instruc­
tion will result in giving teachers more manageable teach­
ing loads. Further, if the more manageable teaching 
loads are accompanied by changes in curriculum mate­
rials and methods and adequate staff development, then 
significant gains in student achievement should result 
(testimony of Dr. Daniel Levine at pp. 22,333-35, testi­
mony of Dr. Eugene Eubanks at 22,379, 22,400-02, 
22,494-505, testimony of Dr. Herb Walberg, testimony 
of Joan Abrams, testimony of Dr. Gene Glass, testimony 
of William Alexander, testimony of Marie Toffey, testi­
mony of Dr. Willis D. Hawley). Reduced class size also



165a

serves to increase the likelihood that the KCMSD could 
maintain and attract non-minority enrollment in the fu­
ture (testimony of Sue Fulson, testimony of Katherine 
Rush Thompson). Finally, reduced class size will assist 
the KCMSD in implementing the quality education com­
ponents contained in this plan.

Therefore, it is this Court’s finding that achieving re­
duced class size is an essential part of any plan to rem­
edy the vestiges of segregation in the KCMSD. Reducing 
class size will serve to remedy the vestiges of past segre­
gation by increasing individual attention and instruction, 
as well as increasing the potential for desegregative ed­
ucational experiences for KCMSD students by maintain­
ing and attracting non-minority enrollment.

There are 3,081 students in kindergarten sessions with 
some duplicates due to the all day kindergarten program. 
There are 100 kindergarten teachers, (a figure which 
should be multiplied times two in order to account for 
the morning and afternoon session) (State’s Exh. 55). 
The average student-teacher ratio is 18.9 to 1. There 
are 41 sessions of Chapter I all day kindergarten, each 
with 15 students, equaling 1,615 students total. Sub­
tracting those students and teachers, a student-teacher 
ratio average of 19.9 to 1 is reached. There are 1,413 
students in kindergarten classes that have more than 22 
students for every teacher, the goal established by the 
KCMSD. Thus, KCMSD must have 64.23 teachers in 
order to reach the KCMSD reduced class size goal in kin­
dergarten. Since KCMSD presently has 53 teachers, it 
means an additional 12 teachers are needed at the kin­
dergarten level to reach the KCMSD’s reasonable goal of 
no more than 22 students in kindergarten classes.

There are 8,603 students taught by 388% teachers in 
grades 1 through 3 resulting in a student-teacher ratio of 
22.14 to 1 (KCMSD Exh. K-56). Of those students 1,369 
are in 58 Chapter 1 special classes. Subtracting the



166a

Chapter 1 students and teachers from the total number 
of students and teachers, there are 7,234 students and 
272% teachers, equaling a 26.55 to 1 student-teacher 
ratio average in grades 1 through 3 (KCMSD Exh. K-
56) . Of the 50 elementary schools in KCMSD, 22 of 
these schools have an average student-teacher ratio above 
the 22 to 1 goal (44% ). Furthermore, 240 of the 338 
elementary school classrooms have student-teacher ratios 
in excess of the 22 to 1 student ratio goal (71%) 
(KCMSD Exh. K-56, testimony of Dr. Eugene Eubanks). 
Thus, in order for the 7,234 elementary students in 
grades 1 through 3 who are not in special Chapter 1 
classes, to have a reduced class size of 22 students, there 
is a need for 328.8 teachers. Presently, KCMSD has 
272.5 teachers in grades 1 through 3 (KCMSD Exh. K- 
56, testimony of Dr. Eugene Eubanks). In order to 
achieve the goal of having no more than 22 students in 
any classroom in grades 1 through 3, KCMSD will need 
an additional 56 teachers.

In grades 4 through 6 there are 6,625 students who are 
taught by 274.5 teachers, equaling an average of 24.1 to 
1 student-teacher ratio (KCMSD Exh. K-57). 875 of 
those students are in 33 special two-teacher classes (K-
57) . When those students and teachers who are in special 
classes are subtracted from the totals, there are 5,750 
students being taught by 208.5 teachers in grades 4 
through 6, yielding a student-teacher ratio of 27.6 to 1. 
There are 3,102 students in grades 4 through 6 who are 
presently in classes that exceed the 27 to 1 reasonable 
student-teacher ratio goal established by KCMSD (K- 
57). Thus in order to reduce all classes to the 27 to 1 
goal established by KCMSD, the district will need 115 
teachers. Presently they have 100 teachers teaching those 
3,102 students. Therefore, KCMSD needs an additional 
15 teachers in order to reduce class size.

There are 5,351 students in the junior high schools of 
KCMSD. There are 243 teachers at the junior high level.



167a

This yields a student-teacher ratio average of 22.02 to 1 
(KCMSD Exh. K-58). There are 37,457 student classes 
at the junior high level. This figure relates to the 1,376 
teacher assignments which exist at the junior high level. 
This means that the student-teacher ratio is 27.2 to 1. 
However, the more meaningful figure relates to the num­
ber of student classes and the number of teachers avail­
able. Presently, during an average school day a teacher 
will have classes in which a total of 154 students are 
present. There are nine junior highs in KCMSD and in 
seven of those junior high schools the average teacher 
has more than 125 students during the day. KCMSD 
will need an additional 22 junior high teachers in order 
that no teacher will have more than 125 students total 
in all classes per day.

There are 8,727 students at the senior high level and 
352 teachers. (KCMSD Exh. K-59). This means that 
the average class size is 24.8 to 1. There are 52,362 
student classes and 1,824 teaching assignments which 
yields a student-teacher ratio of 28.7 to 1. However, the 
more revealing figure is that there are 52,362 student 
classes, when divided by the 352 teachers it shows that 
each teacher, on the average, has 148.76 students each 
day enrolled in classes they teach during that day (K- 
59). Furthermore, 8 of the 9 (89%) senior high schools 
have ratios which are in excess of the 125 student per 
day goal established by KCMSD. In order to reach that 
goal KCMSD needs an additional 78 senior high teachers.

Thus, in order to reach the reasonable class size goals 
established by the KCMSD of no more than 22 students 
in grades kindergarten through third grade, no more 
than 27 students in grades four through six and on the 
secondary level, no more than 125 students per teacher 
per day, a total of 183 additional teachers will need to be 
hired. Therefore, it is ordered that beginning with the 
school year 1987/88 there will be no kindergarten, first, 
second, or third grade classes in the KCMSD with more



168a

than 22 students. Further, it is ordered that by the 
school year 1987/88 there will be no more than 27 stu­
dents in any classroom in grades four through six in the 
KCMSD. In addition, it is ordered that by the school 
year 1987/88 no secondary education teacher in the 
KCMSD, with the exception of physical education and 
music teachers, shall be required to teach more than 125 
students per day.

Costs for reaching this goal shall be paid for by the 
State of Missouri. The total costs shall not exceed 
$12,000,000, with no more than $2,000,000 the first year, 
$4,000,000 the second year and $6,000,000 the third year. 
While every effort should be made by the KCMSD to 
reach these minimal goals as quickly as possible, the goals 
should not be reached at the expense of hiring less than 
fully qualified and well trained teachers.

The goals established by this Court are only minimal 
goals. As the State of Missouri has noted in its pamph­
let, Reaching for Excellence (KCMSD Exh. K-75), the 
ideal goal would be to have kindergarten through third 
grade classes no larger than 15 students and grades four 
through six with no more than twenty students. The 
patrons, parents, administration and board of directors 
of the KCMSD are encouraged by this Court to take 
whatever actions are necessary to reach for excellence 
and reduce class size even further than the goals estab­
lished by this Court. While the funds allocated by this 
Court for the purpose of reducing class size will provide 
significant assistance, the financial responsibility for 
reaching beyond these minimal goals and reaching to­
ward educational excellence must be borne by the patrons 
of the KCMSD.

Summer School

Both the State of Missouri and the KCMSD propose 
the implementation of a summer school program as a 
part of a desegregation plan. The KCMSD Plan (p. 34- 
35) for summer school has three basic goals. First, it



169a

seeks to provide remedial and developmental learning 
experiences for elementary and secondary education level 
students. Next, it seeks to provide reinforcement and en­
richment for secondary education students and finally, 
it seeks to provide a desegregative learning experience 
at both elementary and secondary levels. The State Plan 
(p. 88) is strictly a remedial plan in which the KCMSD 
would continue to operate the elementary summer school 
program and, in addition, would implement summer 
school in one junior high and one senior high at a facil­
ity which would insure the highest maximum racial mix.

Additional learning time is a key component of any 
effort to improve the quality of education in a public 
school system (testimony of Herbert Walberg). Summer 
school expands the amount of learning time available. 
Therefore, as a part of an overall effort to improve the 
academic achievement of students within KCMSD, both 
as a remedial measure and to maintain and attract non­
minority enrollment, a well planned and carefully imple­
mented summer school program at the elementary and 
secondary levels can be an important component in an 
overall desegregation plan. In addition, summer school 
can serve as a means to increase the opportunities for 
desegregative learning experiences. In the past the 
KCMSD has operated successful summer school learning 
experiences in which non-minority enrollment from sur­
rounding school districts, participating with minority en­
rollment from the KCMSD, were involved (testimony of 
Dr. Daniel Levine at p. 22,203).

The KCMSD is therefore ordered to conduct a summer 
school program, beginning in the summer of 1985, for 
elementary level students who would otherwise have been 
retained in their present elementary grade, at a cost not 
to exceed $300 per student, with a maximum total cost 
of $445,000. KCMSD shall also implement a summer 
school program at the junior high school level in the 
summer of 1985, at a cost not to exceed $250 per stu­



170a

dent with the total cost not to exceed $301,000. This 
summer school program shall be expanded to include 
senior high school students and enrichment and coopera­
tive programs in the summer of 1986 with, those items 
being budgeted at $63,000 for senior high summer school 
programs and $100,000 for the enrichment and coopera­
tion program. These three programs shall involve at least 
1,000 different senior high school students. Costs shall 
be divided equally between the State of Missouri and the 
KCMSD.

Full Day Kindergarten

Both the State Plan (State Plan at p. 85) and the 
KCMSD Plan (KCMSD Plan at p. 18) propose a full day 
kindergarten program. All day kindergartens are pres­
ently serving 1,229 KCMSD students in 61 classes (test­
imony of Dr. Eugene Eubanks at p. 22,441, KCMSD 
Exh. K-55). The goal under the KCMSD Plan is to pro­
vide all day kindergarten throughout the district for all 
willing to participate. The State Plan would implement 
all day kindergarten in elementary schools which pres­
ently have it but do not serve all students, expand it to 
all students not presently served in 7 primarily black 
elementary schools, and further expand it to 8 elemen­
tary schools but only for those children who rate at or 
below the 45th percentile in certain areas of the Mis­
souri Kindergarten Inventory of Development Skills 
(KIDS).

Present experience in KCMSD with the full day kin­
dergarten shows that such a program cannot only pro­
vide remediation to those who are victims of past segre­
gation, but will also assist the school district in main­
taining and attracting desegregated enrollment and pro­
viding integrative experiences at an early age (testimony 
of Dr. Eugene Eubanks at p. 22,443, testimony of Dr. 
Daniel Levine at pp. 22,179-181).

As a part of this desegregation plan all day kinder­
garten shall be offered to all students. In order to imple­



171a

ment this program, a program which has been approved 
by the Eighth Circuit in the St. Louis desegregation case, 
Liddell VII, 731 F.2d at 1317, the district is ordered to 
hire for the 1985/86 school year up to a total of 39 ad­
ditional certified kindergarten teachers at a maximum 
individual cost, including fringe benefits, of no more than 
$28,000 annually, for a total cost of not more than 
$1,092,000. Costs shall be borne equally by the State of 
Missouri and the KCMSD.

Before and A fter School Tutoring

Both the State Plan (p. 107) and the KCMSD Plan 
(pp. 17 and 22) propose the implementation of elemen­
tary after school tutoring programs of roughly $104,400. 
While the State and KCMSD agree on the approximate 
cost of such a program, the parties disagree over the 
components which make up such a program.

The State indicates that such a program should be im­
plemented in up to a maximum of 20 of the elementary 
schools where the enrollment remains 90% or more black 
after any student reassignment is conducted. The State 
further limits this program to after school and incorpo­
rates into it cross-age instruction or peer tutoring, par­
ental instruction, participation by community volunteers, 
specialized instruction by KCMSD teachers and enrich­
ment programs that will supplement and build upon reg­
ular day programs.

The KCMSD program proposes before and after school 
tutoring for kindergarten through sixth grade, imple­
mented in any elementary school in the district where 
there is sufficient number of students to warrant such a 
program (KCMSD Plan pp. 17 and 22).

Similar programs have been found to be a way to not 
only remedy the vestiges of past segregation but also a 
means to attract and retain enrollment from non­
minority families where both parents work (testimony



172a

of Dr. Daniel Levine at pp. 22-163). Further, cross-age 
instruction or peer tutoring and parental involvement in 
the education process are elements which have been suc­
cessful in other school districts when used to improve aca­
demic achievement (testimony of Dr. Gene Glass, testi­
mony of Dr. Willis D. Hawley). Therefore, KCMSD 
shall implement a before and after school tutoring pro­
gram in at least ten schools where participation is of a 
sufficient level to operate the program efficiently, eco­
nomically and effectively. This program should be oper­
ated in grades kindergarten through six and should 
utilize cross-age instruction, parental instruction, and 
community volunteers under the overall supervision of 
certified teachers. Costs for this program shall not ex­
ceed $104,400. A proposed budget shall be filed by the 
KCMSD no later than August 15, 1985. Costs shall be 
borne equally by the State of Missouri and the KCMSD.

Early Childhood Development Programs

Both the State Plan (p. 44-83) and the KCMSD Intra­
district Plan (p. 17) propose early childhood development 
programs. The KCMSD’s proposal lacks any degree of 
specificity as to what services will actually be delivered. 
The State’s proposal is very specific in terms of the 
services to be delivered, and the steps to be taken in im­
plementing each part of the early childhood development 
program (testimony of Dr. Daniel Levine at pp. 22,167- 
68) .

The State’s proposal refers to but does not specifically 
incorporate an early language development component. 
An early language development program is a “keystone 
to eventual successful academic achievement.”  (testimony 
of Dr. Eugene Eubanks at p. 22,419). Early language 
development programs have been shown to be extremely 
successful in Los Angeles and San Diego, California in 
assuring that a student will be able to make the most of 
the educational opportunities offered in public schools



173a

(testimony of Dr. Daniel Levine at p. 22,169-70, Dr.
Eugene Eubanks at 22,419).

The State Plan provides a carefully defined and com­
prehensive program. Therefore, the State of Missouri’s 
program will be implemented as a part of this desegrega­
tion plan. Officials from the State of Missouri and from 
the KCMSD shall cooperate to implement the basic com­
ponents of the State Plan with modifications of the State 
Plan in order to insure that it includes an early childhood 
language development program and that the State Plan 
realistically reflects the time constraints and realities of 
implementing such a program within the KCMSD. Total 
budget shall not exceed $1,223,348. Costs shall be borne 
equally by the State of Missouri and the KCMSD.

Effective Schools

To be effective, changes in the KCMSD aimed at im­
proving student achievement must be planned and imple­
mented at the school level (testimony of Dr. Daniel Le­
vine, Dr. Eugene Eubanks, Sue Fulson, Herbert Walberg, 
Dr. Joan Abrams, Carla Santomo, Dr. Willis D. Haw­
ley ). In fact, if a district and its personnel lack a strong 
commitment to a program, then the likely result is that 
the program, if it is implemented at all, will be imple­
mented ineffectively. See, e.g., Yol. VIII P. Berman and 
M. McLaughlin, Federal Program Supporting Educa­
tional Change, Factors Affecting Implementation and 
Continwation, 12-21, 30-31 (1977). Thus, effective
change in schools comes from the “ bottom up” and not 
from the “ top down.” Real educational change takes 
place only after school administrators and staff, and 
patrons and parents, have been involved in the planning 
process and are committed to achieving this change. See, 
e.g., Fullan and Pomfret, Research on Curriculum and 
Instructional Implementation, 47 Rev.Educ. Research 
335, 391 (1977). The effective school project on the 
elementary level and the reform and reorganization



174a

demonstration project on the secondary level, proposals 
of the KCMSD, serve as clear examples of the growing 
awareness that public educational institutions are a dy­
namic system and it is only with the input and commit­
ment of the many groups who have interest and influ­
ence in our schools— school board, administration, prin­
cipal, teacher, parent, patron, and student— that effective 
change is realized. See, e.g., Oliver v. Donovan, 293 
F.Supp. 958 (E.D.N.Y.1968) (where the teachers’ union 
resisted the educational components of a desegregation 
plan because they felt the nature of the components 
threatened the teachers’ vested interests in traditional 
policies).

Therefore, since the effectiveness of any program wdiich 
seeks to improve student achievement is directly related 
to the degree of involvement of patrons, parents, teachers 
and administrators at the local school level and since the 
measure of any desegregation plan is its effectiveness, 
Davis v. Board of School Commissioners, 402 U.S. 33, 37, 
91 S.Ct. 1289, 1291, 28 L.Ed.2d 577 (1971), rather than 
the Court ordering that any additional specific program 
components designed to improve academic achievement 
be implemented, the KCMSD shall make a determination 
as to the specific programs to be added. The State of 
Missouri shall fund such programs aimed at increasing 
student achievement in the following amounts:

1. For each of the 25 schools with enrollments of 90%
or more black:
a. 1985/86 school year $75,000 each school
b. 1986/87 school year $100,000 each school
c. 1987/88 school year $125,000 each school

2. For each of the remaining 43 schools;
a. 1985/86 school year $50,000 each school
b. 1986/87 school year $75,000 each school
c. 1987/88 school year $100,000 each school.



175a

The first year these funds shall be spent on components 
contained in the intradistrict plan submitted by the 
KCMSD in response to this Court’s January 25, 1985 
order, such as mastery learning, elementary counselors 
and home school liaisons, transition rooms, pre-collegiate 
curriculum, alternative secondary school units and ar­
rangements, occupational and career education, compu­
ter labs and computer assisted and managed instruction. 
Decisions on how the first year funds shall be spent will 
be made by the KCMSD school board of directors. How­
ever, in subsequent years the decisions will be based upon 
a plan developed by the existing school advisory commit­
tees. These committees, made up of parents, teachers 
and the principal at each school (testimony of Sue Ful- 
son), shall make recommendations to the Board of Edu­
cation in regard to how these funds should be spent at 
the school which they represent. The Board of Educa­
tion shall review and take action as to the appropriate­
ness of these expenditures and ways in which costs can 
be reduced by integrating common efforts among the 
schools. Criteria governing these funds are as follows:

1. These funds may only be spent to expand or im­
plement educational improvement components pres­
ently contained in the intradistrict plan submitted 
by the KCMSD in response to this Court’s order of 
January 25, 1985; and
2. The programs upon which these funds may be 
spent must be for the sole purpose of improving 
student achievement as measured by the Iowa Test 
of Basic Skills and the Basic Essential Skills Test 
(BEST).

In this way the responsibility for determining what 
educational efforts are best suited to individual schools 
will be in the hands of those individuals with the knowl­
edge, expertise and information necessary to make the 
best judgments. By October 15, 1985, in a cooperative 
effort between the KCMSD and the desegregation plan



176a

Monitoring Committee established by this Court, specific 
student achievement goals will be established. These 
goals should be similar to, but more specific than, those 
expressed in rebuttal testimony by Dr. Daniel Levine 
(reaching national norms on the elementary level in the 
area of reading in four years and improving the passing 
rate on the BEST test on the secondary level to a 95% 
pass rate). These accountability standards should in­
clude a time line showing how the KCMSD will progres­
sively move toward achievement of the overall goals. 
Continued funding, both overall and of specific programs, 
will depend upon the school’s successful efforts at making 
reasonable progress toward achieving the overall goals, 
as well as the incremental steps toward those goals.

Improvement in student achievement to remedy the 
ills of segregation will take disciplined efforts. It will 
require schools with genuinely high standards and ex­
pectations, parents who support and encourage their 
children to fulfill their potential, and a school district in 
which teachers are considered valuable professionals. 
With these resources, and the commitment of the dis­
trict, improvement can and will be made.

Magnet Schools

Magnet schools can be utilized to assist the State of 
Missouri and the KCMSD in expanding desegregative 
educational experiences for its students (testimony of 
Dr. Daniel Levine at pp. 22,214, testimony of Dr. Eugene 
Eubanks at 22,445, testimony of Dr. Gary Orfield, testi­
mony of Dr. Willis Hawley). However, to be a valuable 
and effective technique for increasing student desegrega­
tion, the themes for the magnet schools must be carefully 
chosen and based upon a survey of the target enrollment 
population. There must also be extensive planning con­
cerning the implementation of the magnet programs 
(testimony of Dr. Susan Uchitelle, and Dr. Gary Or­
field).



177a
KCMSD currently operates one magnet secondary 

school (Lincoln Academy) and two magnet elementary 
complexes (Southwest Cluster and Swinney-Volker). Re­
duced levels of federal funding under the Emergency 
School Aid Act (ESAA) has meant that the KCMSD 
has not been able to provide the level of funding which 
these magnet schools originally received, and as such, 
these programs have not realized their full potential in 
drawing non-minority enrollment (testimony of Paul 
Holmes, KCMSD Exh. K-79).

Therefore, the KCMSD is ordered to submit a budget 
by October 15, 1985, to the Monitoring Committee for the 
existing magnet schools of Lincoln, Swinney-Volker and 
Southwest Cluster. This budget shall be both comprehen­
sive and detailed and shall be limited to budget items 
which are directly related to enhancing the full desegre- 
gative drawing power of these schools. Furthermore, 
KCMSD shall conduct extensive surveys within the 
KCMSD and throughout the Kansas City, Missouri met­
ropolitan area in order to determine what magnet themes 
appear to be most likely to attract non-minority enroll­
ment. This survey shall be completed by January 15, 
1986, and a report filed with the Monitoring Committee, 
accompanied by a proposed marketing and recruitment 
plan. The marketing and recruitment plan shall include 
a budget. The State of Missouri shall pay for all costs in 
conducting the area wide survey and presentation of the 
report incurred by KCMSD, with such costs not to ex­
ceed $60,000. The KCMSD shall also submit to the Com­
mittee on or before April 15, 1986, its plan for imple­
mentation of additional magnet programs within 
KCMSD, including a detailed budget. Total costs for 
preparation of this report shall not exceed $25,000 and 
shall be paid for by the State of Missouri.

Staff Development
Staff development is an essential element in any at­

tempt to improve student achievement as a part of a



178a

desegregation plan (testimony of Willis D. Hawley). The 
KCMSD Plan calls for extensive staff development 
(KCMSD Plan p. 36-38). The District’s Plan would pro­
vide training to administrative personnel and teachers on 
the principles and goals of a desegregation plan, the im­
plementation of effective instructional programs, effective 
methods for transmitting information to parents and 
community about desegregation, methods of enforcing a 
fair, equitable discipline program in a desegregated set­
ting, and methods of dealing with transportation prob­
lems as well as familiarity with available community and 
school resources and a knowledge of applicable federal 
and state laws. Most of the training described in the 
KCMSD Plan is aimed at assisting in the desegregation 
of KCMSD and not aimed directly at the quality edu­
cation components of this plan.

The State Plan incorporates staff development as a 
part of the individual components, such as the instruc­
tional management system component. It relies upon a 
train-the-trainer approach in which selected key personnel 
in each school would be provided extra training and those 
individuals would go back to that school and provide 
training to the remaining teachers.

KCMSD is ordered to establish a staff development 
program. This program will be developed in conjunction 
with the public relations programs to be implemented by 
the District. The desegregation public relations program, 
which is aimed at informing and soliciting the support of 
community members, shall use the KCMSD staff in 
spreading the word throughout the community about the 
desegregation plan.

In addition, following decisions made by the school 
advisory committees and the school board as to the ex­
penditures of funds in the effort to improve student 
achievement throughout the district, specific training 
needs of the individual teachers and principals shall be



179a

determined and a staff development program planned and 
implemented. Stipends for after school, weekend and 
summer staff development sessions, shall be available only 
when it is impossible to conduct the training and de­
velopment within the normal work schedule. A fund of 
$500,000 shall be provided to the KCMSD by the State 
of Missouri for the payment of stipends.

Mandatory Student Reassignment

In 1977 the KCMSD implemented a desegregation plan 
developed by approximately 65 community members chosen 
to represent parents, students, teachers and various 
Kansas City groups and organizations (testimony of 
Sue Fulson). A number of alternative proposals were 
submitted to the KCMSD School Board and the version 
eventually approved was designated “ 6C” (testimony of 
Dr. Paul Holmes, Sue Fulson). The goal of Plan 6C was 
to have a minimum of 30% minority enrollment, with 
the exception of kindergarten classes, in every KCMSD 
school. Prior to implementation of this plan the enroll­
ment in KCMSD was 65.6% minority students. Twenty 
of the district’s schools were from 30 to 80% minority, 25 
were less than 30% minority, and 41 were more than 
80% minority (KCMSD Exh. K-2). Following the imple­
mentation of Plan 6C, boundary lines were changed, 
elementary schools were paired and clustered, enlarged 
secondary attendance zones were created, allowing two- 
way reassignment of students, noncontiguous zoning was 
implemented, and as a result, more than 16,000 KCMSD 
students had their school assignments changed (testimony 
of Dr. Paul Holmes, KCMSD Exh. K-70-74, 76). Follow­
ing Plan 6C implementation, no KCMSD school enrolled 
less than 30 % minority students in grades 1 through 12. 
Enrollment since that time has decreased by almost 30%, 
while white enrollment has decreased by more than 44% 
(KCMSD Exh. K-2). In 1979-80 the United States Of­
fice of Civil Rights classified KCMSD as being “ in com­



180a

pliance” with federal requirements for school desegrega­
tion under Title VI of the Civil Rights Act of 1964 (tes­
timony of Ward). The 1984-85 assignment patterns are 
the same assignment patterns which were approved by 
the Office of Civil Rights in 1978 except for adjustments 
made due to school closings (testimony of Paul Holmes). 
The KCMSD enrollment for 1984/85 was 36,259 total 
students with 68.3% of them being Black, 26.7% being 
non-minority, 3.7% Hispanic, and 1.3% other minority 
groups (KCMSD Exh. K-74).

The KCMSD proposes to continue the existing student 
assignment plan, with appropriate modifications for any 
school closings (KCMSD Plan pp. 2-5). This proposal 
would require that any modifications for school closings 
be conducted so that the highest level of desegregation 
feasible will be achieved and so that each school in the 
KCMSD will achieve an enrollment of no less than 30% 
minority for grades 1 throgh 12. Furthermore, KCMSD’s 
plan would continue to restrict transfers which inhibit 
desegregation and permit voluntary transfers of students 
from schools in which they are in the racial majority to 
a school in which they would be in the racial minority 
(KCMSD Plan p. 6).

The State Plan proposes to “ reduce the percentage of 
black students in schools where they represent a dis­
proportionate share of the students (compared to the 
enrollment of the District as a whole). . . .” (State Plan 
pp. 9-13). The State estimates that in order to achieve 
this goal and obtain an enrollment more proportionate to 
the district’s percentages as a whole, approximately 4,270 
students would need to be transferred at a cost in excess 
of $5,000,000. Initially, however, the State proposes to 
conduct computer simulations in order to determine the 
feasibility of additional transfers to achieve a more pro­
portionate enrollment in each school in the district (testi­
mony of Dr. Terry Stewart). In conducting this study 
the State proposes to take into account all practical limits



181a

on actually achieving greater intradistrict racial integra­
tion. These limits include the importance of a student 
attending a school as near his home as possible, the im­
portant role that parent and student choice can play in 
making any reassignment plan work, and any other po­
tential barrier to an effective reassignment plan (testi­
mony of Dr. Terry Stewart, State Plan at p. 9).

Nineteen of the 50 elementary schools in the KCMSD 
presently have an enrollment of 90% or more black 
students. The enrollment in three of the eight junior 
high schools in the KCMSD is presently 90% or more 
black. Three of the eight senior high schools have en­
rollments which are 90% or more black (excluding Lin­
coln Academy South and North). (KCMSD Exh. K-74).

The KCMSD and the plaintiffs oppose any further 
mandatory student reassignment at this time. KCMSD’s 
witnesses expressed the opinion that generally mandatory 
student reassignment would result in further white with­
drawal from the school district and specifically that, if 
the State’s plan was implemented, it could result in 
moving more blacks into racial isolation (testimony of 
Dr. Daniel Levine at 22,224, testimony of Dr. Eugene 
Eubanks at 22,447, testimony of Dr. Paul Holmes). In 
regard to the State plan, Dr. Holmes testified that if 
racial isolation is defined as a school with 50% or more 
minority, then in attempting to achieve student body 
ratios in each school which are proportionate to the 
district wide ratios, the State’s Plan could result in mov­
ing a black student from a less racially isolated environ­
ment to one which is much more racially isolated. In 
addition to Dr. Eubanks and Dr. Levine, there was ex­
tensive testimony provided by other witnesses that imple­
mentation of any further mandatory student reassign­
ment would result in what is known as “white flight.” 
(the withdrawal of white student enrollment to private 
schools or the exodus of white families to the suburbs).



182a

(testimony of Sue Fulson, testimony of Dr. Gary Or- 
field, testimony of Dr. Willis D. Hawley).

White flight is no excuse for school officials to avoid 
the implementation of a reasonable desegregation plan. 
Monroe v. Board, of Commissioners, 391 U.S. 450, 459, 
88 S.Ct. 1700, 1704, 20 L.Ed.2d 733 (1968). Further, 
concern over white flight cannot justify any decision to do 
less than what is necessary to secure the constitutional 
rights of the students of the KCMSD. Wright v. Council 
of the City of Emporia, 407 U.S. 451, 456-57, 92 S.Ct. 
2196, 2200-01, 33 L.Ed.2d 51 (1972). Therefore, while 
white flight may be “ cause for deep concern,” it cannot 
be accepted for achieving anything less than the “ com­
plete uprooting of the dual public school system.” United 
States v. Scotland Neck City Board of Education, 407 
U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 UEd.2d 75 (1972).

However, “ [t]he constitutional command to desegregate 
schools does not mean that every school in every com­
munity must always reflect the racial composition of the 
school system as a whole.” Swann v. Charlotte Mecklen­
burg Board of Education, 402 U.S. at 24, 91 S.Ct. at 
1280. Nor is the existence of a small number of one-race 
or virtually one-race schools within a school district “ in 
and of itself the mark of a system that still practices 
segregation.” Id. at 26, 91 S.Ct. at 1281. “ The criterion 
for determining the validity of provisions in a desegrega­
tion plan is whether they are reasonably related to the 
ultimate objective.” Tasby v. Wright, 713 F.2d 90, 97 
(5th Cir.1983). Therefore, “ [w]hile the fear of white 
flight cannot be accepted as a reason for not acting [cita­
tions omitted] the Court may elect a constitutionally per­
missible plan calculated to minimize white boycotts.”  Id. 
at 99. That is why the concern over white flight may 
be taken into account “when it is not advanced to thwart 
mandatory desegregation (or to perpetuate segregation), 
but rather to promote a wider integration.” Parent Hs- 
sociation of Andrew Jackson High School v. Ambach, 598



183a

F.2d 705, 720 (2d Cir.1979). In fact, situations in which 
the United States Supreme Court has rejected use of 
white flight as a factor in determining or limiting a 
desegregation remedy were all cases in which a school 
board had invoked white flight in order to avoid real 
integration. Monroe v. Board of Commissioners, supra 
391 U.S. at 450, 88 S.Ct. at 1700; Wright v. Council of 
the City of Emporia, supra 407 U.S. at 451, 92 S.Ct. at 
2196; United States v. Scotland Neck City Board of Ed­
ucation, supra 407 U.S. at 484, 92 S.Ct. at 2214. Thus, 
while the concern over white flight cannot be accepted 
as a reason for achieving anything less than the “ com­
plete uprooting of the dual public school system,” United 
States v. Scotland Neck City Board of Education, supra 
at 491, 92 S.Ct. at 2218, the failure to include remedial 
measures to prevent such flight could itself be a reason 
why a desegregation plan could achieve something less 
than “ complete uprooting.” See, Paul Gewirtz, Remedies 
and Resistance, 92 Yale Law Journal 585, 642 (1983). 
Recognizing the impact white flight can have on the 
effectiveness of a remedial plan is nothing more than rec­
ognizing that there is a difference between “ catering to 
bias” and seeking to minimize patron resistance. United 
States v. Board of Education, 554 F.Supp. 912, 924-25 
(N.D.I11. 1983). This difference has been recognized by 
the Eighth Circuit in Clark v. Board of Education, 705 
F.2d 265, 269-72 (8th Cir. 1983) (in order to prevent 
white flight and stabilize the integration process in a 
system that was 65% black a district court may reduce 
the black population in some integrated schools and 
thereby maintain a number of all black schools); and in 
Adams v. United States, 620 F.2d 1277, 1291-97 (8th 
Cir.) (to prevent white flight in a school system with 
75% black enrollment, a desegregation plan need not 
reassign additional black children to schools with at least 
30% black enrollment even though all-black schools re­
main), cert, denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.



184a

2d 29 (1980), on remand sub nom., Liddell v. Board of 
Education, 491 F.Supp. 351, 356 (E.D.Mo. 1980) (adopt­
ing plan), aff’d 667 F.2d 643 (8th Cir.), cert, denied, 
454 U.S. 1081, 102 S.Ct. 656, 70 L.Ed.2d 629 (1981).

“ Having once found a violation, the district judge or 
school authority should make every effort to achieve the 
greatest possible degree of desegregation, taking into 
account the practicalities of the situation.” Davis v. 
Board of School Commissioners, supra 402 U.S. at 37, 91 
S.Ct. at 1292. Therefore, it is incumbent upon this Court 
to further explore any reasonable potential for achiev­
ing further desegregation. As such, the State’s proposal 
for further study, modified in its goal, must proceed. In 
proceeding the study should revise its goal. Instead of 
seeking to reassign students in order to achieve the same 
ratio of minority students to non-minority students in 
each school that exists in the enrollment of the district as 
a whole, the study should seek to determine the feasibility 
of further reductions in the percentage of black students 
in the 25 schools where the enrollment remains 90% or 
more black, while recognizing the need for students to 
attend schools as close to home as possible. Total cost for 
this study should not exceed $175,000 and it shall be 
completed by the end of the 1985/86 school year. KC- 
MSD’s Plan 6C shall remain in full force and effect with 
any modification of the Plan being implemented only 
after review by the Monitoring Committee and approval 
by the Court.

The evidence is clear, further mandatory student re­
assignment at this time will only serve to increase the 
instability of the KCMSD and reduce the potential for 
desegregation. Unless and until this or other studies 
show that further mandatory student reassignment can 
achieve additional desegregation without destabilizing the 
desegregation which presently exists, then realization of 
further desegregation of the district must depend upon 
other components of this plan.



185a

Volunteer Interdistrict Transfers

To accomplish desegregation within the boundary lines 
of a school district whose enrollment remains 68.3% 
black is a difficult task. As this Court stated in its Jan­
uary 25, 1985 order, “because of restrictions on this 
Court’s remedial powers in restructuring the operations 
of local and state government entities,” any mandatory 
plan which would go beyond the boundary lines of KCMSD 
goes far beyond the nature and extent of the constitu­
tional violation this Court found existed. However, there 
are avenues available to the State of Missouri and the 
KCMSD which present the opportunity for increasing 
the desegregative educational experiences of the students 
within the Kansas City metropolitan area.

Achievement of AAA status, improvement of the qual­
ity of education being offered at the KCMSD schools, 
magnet schools, as well as other components of this 
desegregation plan can serve to maintain and hopefully 
attract non-minority student enrollment. In addition, 
voluntary interdistrict transfers may serve to provide 
additional opportunities for desegregated schools as wTell 
as desegregative educational experiences for KCMSD stu­
dents. Such plans have received encouragement from the 
Eighth Circuit in similar situations, Liddell VII, 731 
F.2d 1294 (8th Cir.1984) (en banc), cert, denied, 469 
U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984). In St. 
Louis voluntary interdistrict transfers have resulted 
in increased desegregation (testimony of Dr. Susan 
Uchitelle).

Therefore, the State of Missouri shall actively seek 
the cooperation of each school district in the Kansas 
City, Missouri metropolitan area in a voluntary inter­
district transfer program. On or before the end of the 
1985/86 school year the State of Missouri shall report 
to the Monitoring Committee listing the suburban dis­
tricts which have agreed to participate, stating how many



186a

students each district has agreed to accept as well as the 
number of students which would transfer to the KCMSD. 
KCMSD shall also report to the Monitoring Committee 
the number of its students which would transfer to a 
suburban district. If any of the suburban districts vol­
unteer to participate in inter-district transfers, the pro­
gram shall begin with the 1986/87 school year.

The State will be required to pay for the transportation 
and tuition costs of any KCMSD black student who 
wishes to transfer from a school within KCMSD in which 
their race is in the majority, (with preferences for stu­
dents from schools with enrollments of 90% or more 
black students), to a school where space is available in 
another school district in the Kansas City metropolitan 
area in which their race is in the minority. In addition, 
the State shall pay for all transportation costs and the 
foundation allotment for non-minority students living 
in other school districts, who transfer to schools in the 
KCMSD, having a minority enrollment of 50% or more. 
Furthermore, the State shall continue to pay to the 
KCMSD the full student foundation allotment for each 
student who transfers from the KCMSD to a suburban 
school district and to each suburban school district for 
each student who transfers from a suburban district to 
KCMSD. The receiving district will agree not to reject 
individual applicants unless there is a history of serious 
disciplinary problems, will allow the transfer student 
to remain in attendance until such student graduates or 
returns to the student’s home district, as long as that 
student satisfies all academic and other standards ap­
plicable to all resident students, will treat interdistrict 
transfer students in the same manner, in all regards, as 
they treat resident students, and will permit KCMSD 
to recruit applicants for interdistrict transfers within its 
district. Any additional agreements between KCMSD and 
any participating metropolitan area school district shall 
be presented to the Monitoring Committee for review and



187a

action. Furthermore, the State of Missouri will be re­
quired to provide a full-time counselor for every 100 
students who transfer from KCMSD to a Kansas City, 
Missouri area metropolitan school district. This counselor 
shall be in the employment of KCMSD and shall spend 
a proportionate amount of time at the suburban schools 
in which the KCMSD transfer students are enrolled.

Finally, upon submission of its report to the Monitoring 
Committee concerning the willingness of other school 
districts to participate in such a voluntary program, the 
State shall include an estimated budget for the potential 
transfers.

Capital Improvements

KCMSD is currently utilizing 50 elementary school 
buildings, 9 junior high buildings, and 9 senior high 
buildings (testimony of E. Allen Roth). The average 
age of the 68 school buildings utilized by the KCMSD 
is 58 years (testimony of E. Allen Roth).

The current condition of the 68 school facilities ad­
versely affects the learning environment and serves to 
discourage parents who might otherwise enroll their 
children in the KCMSD (testimony of Dr. Levine, Dr. 
Eubanks, Sue Fulson, E. Allen Roth). The deterioration 
of the facilities is due to a deferred maintenance pro­
gram which has extended over the past 10 to 15 years 
(testimony of E. Allen Roth). The deferred maintenance 
is a result of KCMSD’s lack of financial resources as 
evidenced by its inability to pass a capital improvements 
bond issue, although several attempts have been made 
since 1965 (testimony of Carl Struby).

The deteriorating conditions of the facilities include 
safety and health hazards, educational environment im­
pairments, functional impairments, and appearance im­
pairments (testimony of E. Allen Roth, KCMSD Exhibit 
K-81, Devine James Study). The problems include ex­
tremes of heat and cold due to faulty heating systems,



188a

peeling paint, broken windows, odors resulting from in­
adequate and deteriorating ventilation systems, improper 
lighting, wiring problems, inadequate storage, lack of ap­
propriate space for library and resource rooms, crumbling 
playground equipment installed over hard surfaces, water 
damage due to roof leakage, and deterioration of steps 
in school access areas (KCMSD Exhibit K-87, 67 slides 
of schools).

The improvement of school facilities is an important 
factor in the overall success of this desegregation plan. 
Specifically, a school facility which presents safety and 
health hazards to its students and faculty serves both as 
an obstacle to education as well as to maintaining and 
attracting non-minority enrollment. Further, conditions 
which impede the creation of a good learning climate, 
such as heating deficiencies and leaking roofs, reduce the 
effectiveness of the quality education components con­
tained in this plan.

During fiscal year 1985, under a Missouri statute per­
mitting the organization of a not-for-profit corporation 
which would issue bonds for capital improvements to 
school buildings, the KCMSD raised $10,000,000 to per­
mit correction of some of the more extreme problems 
within the school building facilities presently being used. 
Under that statute KCMSD makes rental payments to 
the not-for-profit corporation, which has been granted 
title to these buildings, out of its operating budget in the 
amount of approximately $1,300,000 annually. These 
funds are utilized to pay the bond obligations (testimony 
of Carl Struby).

At the request of the KCMSD, E. Allen Roth, a li­
censed architect, examined 19 of the 68 school buildings 
and for four of the school buildings prepared a detailed 
cost estimate and specifications for correcting facility 
deficiencies. Based upon these visits, the 1980 Devine 
James study, and taking of bids for the partial work,



189a

Mr. Roth concluded that total costs for building rehabili­
tation in the KCMSD, to return the buildings to a point 
where they could be safe and appropriate for educational 
programs, would be between $55,000,000 and $70,000,000. 
Mr. Roth further estimated that the work could be com­
pleted within a three to four year time period (testimony 
of E. Allen Roth).

The State (State Plan p. I l l )  proposes a $20,000,000 
facilities improvement program with the state making a 
one time contribution not to exceed $10,000,000. The 
purpose of this facility improvement program would be 
to promote and encourage the KCMSD to “strive for ex­
cellence in the care, maintenance, and upkeep of its fa­
cilities.” (State Plan at p. 11). The State indicated 
that first priority should be given to those schools in 
which the student population was 90% or more black. 
These funds would be to correct safety hazards at the 
most severe level of inadequacies. The State argues 
against the adoption of a more comprehensive facility 
improvement program as a part of the desegregation 
plan for four reasons. First, the present condition of 
the facilities, according to the State, is not traceable to 
the unlawful segregation found to have existed by this 
Court. Second, the present condition of facilities is due 
to the lack of maintenance on the part of the KCMSD 
and its failure to appropriate adequate funds to correct 
these problems. Third, the improvements are not necessary 
in order to carry out the quality education components 
of the desegregation plan (testimony of Carla Santorno). 
Finally, the State contends that the $55,000,000 to 
$70,000,000 estimates made by the KCMSD and its archi­
tect E. Allen Roth, are excessive and that $20,000,000 
would be sufficient to cover the health and safety prob­
lems which exist in the school district.

The State does not dispute that there are serious 
structural and environmental problems throughout the 
facilities utilized by the KCMSD. The State’s argument



190a

that the present condition of the facilities is not traceable 
to unlawful segregation is irrelevant. Tasby v. Wright, 
supra at 97; Haycraft v. Board of Ed%ication, 585 F.2d 
803, 805 (6th Cir.1978) ; Clark v. Board of Educ. of 
Little Rock School District, 465 F.2d 1044 (8th 
Cir.1972). Further, the State’s argument that the pres­
ent problems are due to a lack of maintenance on the 
part of the KCMSD is simply further evidence of the 
detrimental effects that segregation has had on this 
school district’s ability to raise adequate resources. The 
State’s argument that the facility improvements are not 
necessary in order to carry out the educational com­
ponents of a desegregation plan fails to address this 
Court’s responsibility in remedying the vestiges of segre­
gation or in implementing a desegregation plan which 
will maintain and attract non-minority enrollment.

The Court finds that in order for other components 
of this plan to be effective, it is imperative that improve­
ments be made in the KCMSD’s facilities. In arriving at 
an equitable apportionment for the cost of facility im­
provements, the Court takes into consideration that 
KCMSD has spent somewhere between $15,000,000 and 
$18,000,000 in the implementation of Plan 6C for which 
it was not reimbursed and for the 1986 fiscal year has 
budgeted approximately $17,000,000 for desegregation 
programs which are not covered in this plan. KCMSD 
has available the sum of $10,000,000 for capital improve­
ments. The Court is of the opinion that the State should 
match this figure plus an additional $17,000,000 for im­
mediate facility improvements. It will not be possible 
nor prudent to attempt to make all necessary facility im­
provements simultaneously. Therefore, as soon as pos­
sible, the KCMSD shall submit a $37,000,000 capital im­
provements plan developed by architects and engineers 
to the Monitoring Committee to be implemented as expe­
ditiously as possible under a cost effective improvement 
program. After capital improvements have been made,



191a

it will be incumbent upon KCMSD to include in its bud­
get funds for the maintenance of the improved facilities.

These initial improvements shall focus on the following 
three priorities: (1) eliminating safety and health haz­
ards; (2) correcting those conditions existing in the 
KCMSD school facilities which impede the level of com­
fort needed for the creation of a good learning climate; 
and (3) improving the facilities to make them visually 
attractive. After the submission of the $37,000,000 im­
provement plan, KCMSD shall then review other capital 
improvements needed in order to bring its facilities to a 
point comparable with the facilities in neighboring subur­
ban school districts. At this time the Court reserves 
judgment as to whether the State will be required to 
make any additional expenditures for capital improve­
ments beyond the $37,000,000 set forth above.

Plan Administration

The success of this desegregation plan depends upon 
the KCMSD’s ability to integrate this plan’s components 
into ongoing district activities. Some administrative ex­
penses are built into the component’s budget, such as 
early childhood development, effective schools, voluntary 
interdistrict transfers, magnet schools and summer 
school. Some components will generate little, if any, ad­
ministrative overhead, such as before and after school 
tutoring.

The Court, however, will order the KCMSD to hire an 
additional public information specialist at a total cost 
of $25,000 with supplies and related expenses of $5,000 
for a maximum expenditure of $30,000. This individual 
shall be responsible for developing and implementing a 
public information program regarding the KCMSD de­
segregation plan. The main focus of the public informa­
tion effort shall be to solicit community support and in­
volvement in the plan. Costs will be paid by the State 
of Missouri.



192a

Beyond the public information program and the ad­
ministrative expenditures built into the individual deseg­
regation plan components, the KCMSD shall provide for 
administration of this plan with existing administrative 
personnel.

Monitoring Committee

Monitoring of the desegregation plan is an essential 
function to the success of the plan (testimony of Dr. 
Daniel Levine, Sue Fulson, Dr. Willis D. Hawley). The 
monitoring function is one which should be conducted by 
individuals or organizations independent of the parties 
involved, to enable the Court to have an objective assess­
ment of the progress and problems encountered in imple­
menting the desegregation plan.

There shall be a Monitoring Committee to oversee the 
implementation of this plan. The Committee shall be 
composed of ten individual members, four of whom shall 
be Black, four White and two Hispanic. It shall be or­
ganized as follows: A Budget Committee with three
members, one of whom shall be the chairperson; a De­
segregation Committee with three members, one of whom 
shall be the chairperson; an Education Committee with 
three members, one of whom shall be the chairperson; a 
general chairperson of the ten member committee who 
shall be an ex officio member of each of the three sub­
committees; and an Executive Committee comprised of 
the general chairperson and the chairpersons of each of 
the three subcommittees.

The overall Monitoring Committee shall have the re­
sponsibility for conducting evaluations and collecting in­
formation and making recommendations for any modifi­
cations concerning the implementation of the plan.

At the outset, the Executive Committee should set out 
with specificity the areas of responsibility of each of the 
other three subcommittees. The Executive Committee 
shall have the responsibility of making all reports to the



193a

Court concerning progress or problems in the implemen­
tation of the plan. Each person on the Executive Com­
mittee shall have one vote. If however the Executive 
Committee is evenly divided on any issue, the general 
chairperson shall have the tie breaking vote. All deci­
sions or recommendations of the Budget, Desegregation 
and Education Committees shall be referred to the Exec­
utive Committee for final review and action. Every at­
tempt should be made by all members of the overall 
committee and each member of the subcommittees to 
reach an agreement on all isues and recommendations 
which will avoid bringing matters before this Court.

The members of the overall Monitoring Committee 
shall be selected by the Court. The State of Missouri, 
KCMSD and the American Federation of Teachers Local 
691 (AFT 691) shall each submit the names of nine 
nominees for appointment to the Committees— three each 
for the Budget Committee, the Desegregation Committee 
and the Education Committee. One nominee submitted 
by each party will be appointed by the Court to serve on 
the committee for which the nominee was named. The 
plaintiffs shall submit the names of three nominees, one 
of whom will be appointed by the Court as the general 
chairperson of the Monitoring Committee. The nominees 
shall be submitted to the Court on or before Monday, 
July 15, 1985. Each nominee shall be prepared to attend 
a hearing to be held August 1, 1985 commencing at 10:00 
a.m. The criteria this Court will use in selecting the gen­
eral chairperson will include, among other things, the 
individual’s independence from the parties in this case, 
the individual’s commitment to the implementation of 
the desegregation plan, the ability of the individual to 
spend the required amount of time in directing the com­
mittee’s overall activities, and the individual’s back­
ground as it relates to community involvement, education 
and other related matters. The general chairperson’s role 
will be a pivotal one. The responsibilities will include



194a

insuring that the subcommittees are carrying out their 
functions in a responsible and efficient manner, that the 
Court is properly informed in a timely manner concern­
ing problems and recommendations in regard to the de­
segregation plan and attempting to assist all parties in­
volved in reconciling differences that might arise among 
themselves rather than presenting disputes for resolu­
tion by this Court.

Nominees submitted for each of the committees shall 
have experience and expertise in the areas of general 
responsibility of the committee for which they are nomi­
nated, they should be independent from any of the par­
ties involved in the case, they should be committed to the 
successful implementation of the plan and have the abil­
ity to spend the time required to respond to the obliga­
tions of the committee.

Each member of the overall Monitoring Committee 
shall be appointed to serve a two year term. Any mem­
ber of the Committee whose continued service is not in 
the best interests of the function of the committee may 
be removed by the Court for cause. Any vacancies shall 
be filled by the Court in the same manner in which the 
original appointment was made.

The Committee shall report to the Court at such times 
as it feels necessary concerning problems involved in the 
implementation of the plan except that it shall make an 
annual report on or before the first day of July of each 
year. The Committee shall have authority to make such 
investigations as it deems necessary in fulfilling its re­
sponsibilities for the monitoring of the plan.

To aid the Monitoring Committee in carrying out its 
function the Court establishes a monitoring office com­
posed of an executive secretary with appropriate profes­
sional training and experience to be appointed by the 
Executive Committee of the general Monitoring Commit­



195a

tee, along with a clerical employee with an annual budget 
of $142,200, the cost of which shall be borne solely by 
the State. The budget shall be composed of the annual 
salary for the executive secretary, including fringe bene­
fits, not to exceed $50,000; the clerical employee’s maxi­
mum salary, including fringe benefits, of $20,000; and 
there shall be $20,000 for equipment, supplies and other 
expenses for operation of the monitoring office. Office 
space for the monitoring office shall be furnished free of 
charge by KCMSD.

There shall be $52,200 made available for per diem 
payments to members of the Monitoring Committee. The 
general chairperson shall be paid $60 per hour for up 
to a maximum of 120 hours annually as per diem for 
that individual’s efforts on behalf of the committee. The 
other committee members shall receive $50 per hour for 
up to a maximum of 100 hours per year as per diem 
for their efforts on behalf of the committee. Expenses 
incurred by members of the committee shall be paid out 
of the $20,000 budgeted for equipment, supplies and other 
expenses.

Financing Summary

In its September 17, 1984 order this Court stated that 
“much of the costs for preparing and implementing a 
plan to dismantle the vestiges of a dual school system 
in the KCMSD should be borne by the State.” Jenkins v. 
State of Missouri, 593 F.Supp. 1485, 1506 (W.D.Mo. 
1984). This determination was based upon the Court’s 
earlier finding that the State had the “primary respon­
sibility for insuring that the public education systems 
in the State comport with the United States Constitu­
tion.” Id. at 1506. However, as a defendant found to 
be liable, KCMSD should pay for part of the costs in­
volved in the implementation of this Plan.



196a

The KCMSD has spent considerable funds on pro­
grams supporting desegregation within the district. (See, 
KCMSD Exh. K-80, K-95, K-78, K-78A). In the upcom­
ing year KCMSD has budgeted between $15,000,000 and 
$17,000,000 for programs directly or indirectly related 
to desegregation and has provided approximately $15,- 
000,000 to $18,000,000 in funding for implementation of 
desegregation Plan 6C since 1977.

The State of Missouri shall bear the estimated costs 
involved for a period of three years in the following com­
ponents :

1st Year 2nd Year 3rd Year TOTAL
Improved Student 

Achievement 4,025,000 5,725,000 7,425,000 17,175,000
Voluntary Inter- 

District Transfers open open open open
Magnet Schools 85,000 open open 85,000 (open)
Student

Reassignment 175,000 open open 175,000 (open)
Reducing Class Size 2,000,000 4,000,000 6,000,000 12,000,000
Administrative Costs 30,000 30,000 30,000 90,000
Staff Development 500,000 — 0— — 0— 500,000
Summer School 222,500 454,500 454,500 1,131,500
AAA Status 2,369,250 1,419,250 1,419,250 5,207,750
All Day Kindergarten 546,000 546,000 546,000 1,638,000
Before and After 

School Tutoring 104,400 104,400 104,400 313,200
Early Childhood 

Development 616,674 616,674 616,674 1,850,022
Monitoring Office and 

Committee 142,200 142,200 142,200 426,600
Capital

Improvements 27,000,000 open open 27,000,000 (open)

$37,816,024 $13,038,024 $16,738,024 $67,592,072TOTAL



197a

The KCMSD shall bear the estimated costs in the 
following components, many of which will be for a mini­
mum of three years :

1st Year 2nd Year 3rd Year TOTAL
Summer School 222,500 454,500 454,500 1,131,500
AAA Status 2,369,250 1,419,250 1,419,250 5,207,750
All day Kindergarten 546,000 546,000 546,000 1,638,000
Before and After 

School Tutoring 104,400 104,400 104,400 313,200
Early Childhood 

Development 616,674 616,674 616,674 1,850,022
Capital

Improvements 10,000,000 open open 10,000,000 (open)
TOTAL $13,858,824 $3,140,824 $3,140,824 $20,140,472

The current operating levy for the KCMSD is $3.75 
(State Exh. 18, testimony of Carl Struby). However, the 
$3.75 levy when, adjusted under § 164.013 of the Mo. 
Rev. Stat. (the proposition C rollback), results in the 
KCMSD having an operating levy of $3.26 (testimony of 
Carl Struby, KCMSD Exh. K-97). The $3.26 actual op­
erating levy will be further reduced as a result of the 
state-wide reassessment (§ 137.073 Mo.Rev.Stat., testi­
mony of Carl Struby). The uncontradieted testimony of 
KCMSD Board of Education treasurer Carl Struby is 
that the budget for the upcoming school year is presently 
$3,000,000 short of revenue and the only unallocated 
funds are an $850,000 to $1,000,000 contingency fund. 
Therefore, the KCMSD is presently unable to finance its 
portion of this school desegregation plan.

It is noted that legislation recently signed by the gov­
ernor will permit the KCMSD to raise its reduced levy 
up to the pre-assessment level by a simple majority vote. 
Thus, after reassessment, local revenues will be able to 
be increased by a majority vote instead of the two-thirds 
vote which is presently required.



198a

The presentation of a tax levy to the voters prior to 
the upcoming school year would be impossible because of 
the time constraints under which the school district is 
operating. Furthermore, it is extremely unlikely that 
such a proposal would receive the two-thirds majority 
presently required (testimony of Carl Struby, testimony 
of Sue Fulson).

The Eighth Circuit in the St. Louis desegregation plan 
recognized that “ the district court’s equitable power in­
cludes the remedial power to order tax increases or the 
issuance of bonds. . . .” Liddell VII at 1322. Further, 
the Eighth Circuit upheld the district court’s increase 
of a tax levy when there was “ no reasonable probability 
that such a tax levy would be approved by the required 
two-thirds vote in the aftermath of a desegregation 
order.” United States v. Missouri, 363 F.Supp. 739 (E.D. 
Mo.1973), aff’d, 515 F.2d 1365, 1372 (8th Cir.), cert, de­
nied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975). 
See also, Griffin v. School Board, 377 U.S. 218, 233, 84 
S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964) (where the 
Supreme Court upheld a district court’s order that the 
supervisors exercise their power to levy taxes to raise 
funds adequate to reopen, operate and maintain without 
racial discrimination a public school system).

While this Court has the necessary authority to order 
a tax increase to finance that portion of the desegregation 
plan for which the KCMSD has responsibility, this Court 
hesitates to take such action. When a Court considers 
the possibility of imposing a tax rate as an aspect of its 
desegregation decree, “ there occurs a tension between two 
venerable maxims of the American tradition: ‘Taxation 
without representation is tyranny’ becomes the banner of 
some of those who are to be taxed, while the district 
court, safeguarding the effective implementation of its 
order, is deeply cognizant of the venerable phrase that 
“ the power to tax involves the power to destroy.”  Mc­
Cullough v. Maryland, 17 U.S. (4 Wheat), 316, 427, 4



199a

L.Ed. 579 (1819) ; Evans v. Buchanan, 582 F.2d 750, 
777 (3d Cir.1978), cert, denied, 446 U.S. 923, 100 S.Ct, 
1862, 64 L.Ed.2d 278 (1980).

However, because the present financial resources of 
the KCMSD makes it impossible for it to appropriate 
funds necessary to implement the school desegregation 
order of this Court, and because of the extreme unlike­
lihood, due to the recent history of tax levy defeats and 
time constraints, that a tax levy proposal would be re­
ceived favorably by two-thirds of the voting patrons of 
the KCMSD, it is hereby ordered that the tax levy roll­
back required by § 164.013 Mo.Rev.Stat., (the Propo­
sition C rollback) shall be enjoined to the extent neces­
sary to raise an additional $4,000,000 for the coming 
fiscal year. This one year procedure was utilized by the 
federal district court in the Eastern District of Mis­
souri in Liddell v. State of Missouri, 567 F.Supp. 1037, 
1056 (1983), and upheld by the Eighth Circuit Court of 
Appeals in Liddell v. State of Missmiri, 731 F.2d 1294 
(8th Cir.) (en banc), cert, denied, 469 U.S. 816, 105 
S.Ct. 82, 83 L.Ed.2d 30 (1984) (Liddell VII).

This rollback will be in effect for one year only. It 
will provide the KCMSD with an opportunity to present 
a tax levy proposal to its patrons at the next regularly 
scheduled school election. Therefore, it is ordered that 
the KCMSD shall submit a tax levy increase proposal to 
its patrons at the next regularly scheduled school elec­
tion which, if approved, will provide funds sufficient to 
pay for its cost of the desegregation plan as previously 
outlined.

The implementation of a school desegregation plan must 
deal with constitutional law, state and local politics, ed­
ucational theory and social relations, and do so all at 
the same time. Thus, a school desegregation plan is more 
than a legal principle implemented through this Court 
within the KCMSD, but a process which requires the co-



200a

operation of all parties, and general acceptance by KC- 
MSD patrons as well as the citizens of the State of Mis­
souri, in order to be truly successful. The plan adopted 
by this Court represents an effort to give meaning to the 
constitutional mandate expressed by the Supreme Court 
thirty years ago, while seeking to be effective in the 
real world. The plan seeks to be supportive of those high 
principles which separate our society from those which 
lack a commitment to human dignity. But the success 
of this plan rests in others’ hands, for to have a society 
where equal justice under the law is a “ living truth” 
requires commitment of more than this nation’s courts, 
but of the citizenry which those courts serve.

While jurisdiction is retained by this Court for certain 
matters as set forth in the foregoing order, the Court con­
siders this order together with previous orders entered 
by this Court to be a final appealable judgment in this 
case. The Clerk is therefore directed to remove this case 
from the Court’s docket.



201a

APPENDIX F

UNITED STATES DISTRICT COURT
W.D. MISSOURI, W.D.

No. 77-042O-CV-W-4

Kalima Jenkins, et al.

v.

State of Missouri,
Kansas City, Missouri School District, and 

Department of Housing and Urban Development

Sept. 17, 1984

Arthur A. Benson, II, Benson & McKay, Kansas City, 
Mo., Deborah Fins, NAACP Legal Defense & Education 
Fund, New York City, for plaintiffs.

James Borthwick, Shirley Keeler, Blackwell, Sanders, 
Matheny, Weary & Lombardi, Kansas City, Mo., for 
defendant Kansas City, Missouri School Dist.

Larry R. Marshall, Sp. Asst. Atty. Gen., Columbia, 
Mo., for defendant State of Mo.

Marta Berkley, Merril Hirsh, Civ. Div., Washington, 
D.C., and Richard C. Stearns, Dept, of HUD, Washing­
ton, D.C., for defendant Dept, of HUD.



202a

ORDER
RUSSELL G. CLARK, Chief Judge.
Originally, plaintiffs and the KCMSD filed this action 

jointly alleging various federal and state agencies and 
surrounding school district officials caused or contributed 
to cause the racial segregation existing in the metropoli­
tan schools. In 1978 when the KCMSD was realigned 
as a defendant, plaintiffs made similar allegations against 
it, although there has been, during the course of this 
litigation, a “ friendly adversary” relationship between 
them. (See, e.g., stipulations of fact, filed February 21, 
1984).

The KCMSD cross-claimed only against the state for 
its failure to eliminate the vestiges of its prior dual 
school system. For additional background, see this Court’s 
orders of June 5, and July 16, 1984.

Jurisdiction is premised on 28 U.S.C. §§ 1331, 1343(3) 
and (4), 136, 2201 and 2202. Plaintiffs also allege claims 
under 42 U.S.C. §§ 1983 and 20Q0d and under the United 
States Constitution, 14th Amendment. Declaratory and 
injunctive relief was sought against all defendants.

After hearing the presentation of plaintiffs’ evidence 
and before any defense, the Court dismissed the suburban 
school districts. Plaintiffs simply failed to show that 
those defendants had acted in a racially discriminatory 
manner that substantially caused racial segregation in 
another district. Milliken v. Bradley, 418 U.S. 717, 745, 
94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). See order 
filed June 5, 1984.

HEW was also dismissed for plaintiffs’ failure to 
prove the agency acted with racial animus or abused its 
discretion in the enforcement of Title VI. See order filed 
July 16, 1984. The KCMSD presented its cross-claim, 
Missouri and HUD defended, plaintiffs and the KCMSD 
rebutted, Missouri presented surrebuttal and, on the 92nd



203a

day of trial, the Court refused to hear sur-surrebuttal. 
Thus, on June 13, 1984, the evidence ended.

The claims addressed by this order are plaintiffs’ claims 
against the KCMSD, the State of Missouri and HUD 
and the cross-claim of KCMSD against the State of Mis­
souri. For the reasons that follow, the Court finds in 
favor of plaintiffs against the KCMSD and the State of 
Missouri; in favor of KCMSD against the State of Mis­
souri; and against plaintiffs and in favor of HUD.

THEORIES AND DEFENSES
Plaintiffs allege, and Missouri has admitted, it man­

dated racially segregated schools before 1954. It is plain­
tiffs’ position that after 1954 Missouri failed to take 
affirmative steps to eliminate the vestiges of its prior 
dual school system. In fact, plaintiffs argue, Missouri 
acted to perpetuate racial segregation by enforcing re­
strictive covenants and other unfair housing practices, 
by diseriminatorily relocating blacks who were displaced 
bv highway development and urban renewal, and by 
supporting racially-identifiable interdistrict arrangements 
(e.g. vocational and special education area schools).

Against the KCMSD, plaintiffs claim district officials 
adopted ineffective policies to change the segregative pat­
terns that were developed or developing. In an excul­
patory allegation plaintiffs allege the KCMSD could not 
balance the racial population of students in its district 
due to impaction of minorities, white flight, housing pol­
icies of other agencies and “ other factors beyond the 
capacity of that district to manage.” (Amended com­
plaint, May 18, 1979 U 20).

Regarding HUD, plaintiffs allege the agency abrogated 
its affirmative duty to prevent and reduce racial segrega­
tion and instead intentionally increased segregation by 
failing to consider racial isolation in its site location for 
low income projects and locating most of the projects



204a

within the KCMSD; establishing express guidelines be­
fore 1948 requiring racial segregation and permitting 
such practices after that date; funding local housing 
agencies which did not prevent segregation in their pol­
ices or practices; and providing funds and insurance to 
suburban areas where access to blacks was restricted. 
These policies and practices, plaintiffs claim, racially im­
pacted the KCMSD schools.

In its cross-claim against Missouri1 the District alleges 
the State has not fulfilled its constitutional obligation to 
take action to dismantle its prior dual school system and 
is primarily liable for the existing segregation in the 
KCMSD. Not only has Missouri failed to take neces­
sary remedial measures to eliminate past segregation but 
the District charges the state has acted to perpetuate seg­
regation. To the extent the Court might find the KCMSD 
to be internally segregated, the District alleges the State 
is largely responsible for such a condition and should 
be required to contribute financially to any remedial plan 
the Court might order as relief against the KCMSD. 
Further, the District charges the State has caused a high 
concentration of economically and socially disadvantaged 
minority students within its boundaries, a condition which 
increased student expenses and decreased the District’s 
tax base. Concomitantly, the KCMSD alleges the State’s 
actions or omissions caused the surrounding districts to 
be predominantly white.

For relief, therefore, the KCMSD seeks a court order 
requiring the State to propose and assist (financially and 
otherwise) in the implementation of a plan which will 
eradicate any vestiges of the State’s past dual school 
system which includes the racially identifiable character 
of the KCMSD and the surrounding suburban districts.

1 The collective designation of “ Missouri” or “ State” is intended 
to include the governor, the Missouri State Board of Education 
and its officers, and Arthur L. Mallory, the state Commissioner of 
Education.



205a

Plaintiffs claim the only effective way to “protect and 
preserve”  the constitutional rights of plaintiffs is to ju­
dicially mandate the “ reassignment of students among all 
districts in the metropolitan area and/or to realign or 
reconstitute the defendant school districts,” with com­
pensatory payments made by the State to fund the re­
constituted districts. (Plaintiffs’ amended complaint, May 
18, 1979 'H 25). Plaintiffs request defendants submit a 
plan to eliminate the racial identifiability of the KCMSD 
and other school districts in the metropolitan area. To 
facilitate adoption of such a plan, plaintiffs seek to en­
join federal agencies from, funding state and local en­
tities until the plan is submitted. Plaintiffs seek declara­
tory and injunctive relief against the federal defendants 
and statements from all defendants on their future plans 
to reduce and eradicate segregative conditions.

Missouri has argued in defense that it has met its 
affirmative duty to the extent of its statutory power and 
that local entities have the sole authority to effect the 
changes plainiffs seek, e.g. redrawing district lines. More­
over, Missouri charges the racial isolation that exists 
is not vestiges but is the product of resegregation from 
natural demographic trends. Finally, Missouri argues 
the Kansas City area is typical of cities nationwide that 
had no dual school system; therefore the racial patterns 
cannot be attributed to the State’s past conduct.

Proeedurally, Missouri argues that plaintiffs and the 
KCMSD pleaded only interdistrict claims and seek only 
interdistrict relief, which claims were denied by this 
Court’s order dismissing the suburban school districts. 
The Court disagrees. In its order of June 1, 1981, the 
Court addressed both the inter and intra-district claims 
raised by the KCMSD’s cross-claim. Neither plaintiffs 
nor the KCMSD’s pleadings are defective in this regard. 
In any event, and contrary to Missouri’s allegations, 
plaintiffs moved to amend their complaint to conform 
to their contention interrogatories (filed October 17, 1983



206a

Doc. No. 351). The Court deferred ruling the motion 
preferring to address the contentions individually as they 
arose during the trial. (Tr. 35). Insofar as plaintiffs’ 
evidence (adopted by the KCMSD Tr. 17,275) stated 
intradistrict claims, the motion is hereby granted.

On February 21, 1984, plaintiffs and the KCMSD en­
tered into a stipulation of fact which the Court holds is 
only binding between them; however, the stipulations will 
be controlling, unless otherwise stated by the Court, re­
garding the racial composition and enrollment in the Dis­
trict past and present, its 1955 through 1977 “ desegre­
gation” plans, its transfer policy, the Havighurst and 
Hazlett reports and faculty composition. The District 
stipulated, inter alia, that before 1977 it was not a uni­
tary district or in compliance with federal regulations. 
{See, also, Tr. 24). Nor does the District contest the 
HEW findings of noncompliance. It does state, however, 
contrary to plaintiffs’ contentions, that it did not operate 
with discriminatory intent after 1954.

HUD argues in defense that it does not select the sites 
for low income projects and that said projects are dis­
persed throughout the metropolitan area in any event. 
HUD also maintains it does not relocate people, but merely 
monitors the relocation activities of other agencies and 
has made adjustments where necessary. Regarding FHA, 
the government insists there are no vestiges of its past 
practices and moreover that FHA’s involvement in the 
context of all housing transactions is de minimis. HUD 
concludes it has not abused its discretion and that plain­
tiff’s evidence fails to show a causal link between schools 
and HUD’s activities.

FINDINGS OF FACT
The State admitted, and the Court judicially noticed 

that Missouri mandated segregated schools for black and 
white children before 1954. See Mo. Const. Art. IX, Sec-



207a

tion 1(a) (1945) (rescinded 1976) and §§ 163.130,
165.117 R.S.Mo. (repealed 1957). These provisions were 
not immediately and formally abrogated after the Broivn 
decision was announced; however, the State’s Attorney 
General issued an Opinion in 1954 declaring them unen­
forceable. (P. Ex. 2232). The statutes were repealed 
in 1957 and the constitutional provision was finally re­
scinded in 1976. This historical background is recounted 
in more detail by the courts in Adams v. United States, 
620 F.2d 1277, 1280-81 (8th Cir.) cert, denied, 449 U.S. 
826, 101 S.Ct. 88, 66 L.Ed,2d 29 (1980); and United 
States v. Missouri, 363 F.Supp. 739, 746-47 (E.D.Mo. 
1973) aifd  515 F.2d 1365 (8th Cir.) cert, denied, 423 
U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975).

Each school district in Missouri participated in this 
dual school system before it was declared unconstitu­
tional in Brown I. Districts with an insufficient number 
of blacks to maintain the state-required separate school 
made interdistrict arrangements to educate those chil­
dren. Undeniably, some blacks moved to districts, includ­
ing the KCMSD, that provided black schools. (Tr. 2043, 
4557-59). As the Court previously noted, however, this 
movement was insignificant when compared to the total 
black enrollment in the KCMSD. (Tr. 1773, D.Ex. K2). 
Accordingly, no interdistrict constitutional violation by 
any suburban school district was shown. (See order filed 
June 5, 1984).

Dr. James Anderson, plaintiffs’ expert historian, opined 
the black migration into Kansas City was from a de­
population of blacks in the surrounding three-county 
area moving to the city primarily for schools. In its 
opinion of June 5, the Court rejected Dr. Anderson’s 
opinions as contrary to the weight of the evidence and as 
being without sufficient foundation. The Court finds the 
greatest influx of blacks came from southern and border 
states and that they migrated because of a host of factors.



208a

This in-migration coupled with a high birth rate (Tr. 
16,509-510) resulted in the Kansas City black population 
doubling from 41,574 in 1940 to 83,740 in 1960. {Id.)

Before 1954, access to schools was one of many reasons 
some blacks chose to move into the KCMSD. (Tr. 16,688, 
14,793-94, 16,691-93, 16,835). Economics and job oppor­
tunities were also major factors in black migration. (Tr. 
595, 600, 676-78, 713, 796, 911, 914, 1052, 1089, 1103, 
1111, 1163, 1307, 1312, 1318, 1552, 1579-80, 1680-81, 
1728, 2781, 3214, 3267, 18,527, 18,550, 16,842). Often 
jobs would pull migrants to the city and then availability 
of schools would influence, more specifically, what housing 
choice would be made within the city. (Tr. 16,688).

Dr. John Kain, plaintiffs’ expert on the determinants 
of residential location, predicted dispersed racial residen­
tial patterns would exist in Kansas City if race were not 
a factor in housing choices. (Tr. 7515-7529). Dr. Kain 
used three indicators to predict housing choice: income, 
type of family, and whether there were school-aged chil­
dren. (Tr. 7489, P. Ex. 1265 series). His conclusion 
was that absent housing discrimination blacks would be 
dispersed throughout the metropolitan area. (Tr. 7719, 
P. Ex. 1265G). Dr. Kain discounted or rejected other 
factors such as job location, ethnic clustering and per­
sonal preference. (Tr. 7473-76, 7846). The Court dis­
agrees to the extent Dr. Kain rejected the possible in­
fluence of other factors in his analysis.

The intensity of segregation is demonstrated by the 
fact that the average black family lives in a census tract 
that is 85% black while the average white family lives 
in a census tract that is 99% white. (Tr. 14,739, 14,745). 
Regardless of their motivation for coming, once here, 
blacks settled in the inner city or, the “principal black 
contiguous area.” (Tr. 10,837-38, 10,847-49). Plaintiffs’ 
witnesses blame this black concentration (and ensuing 
white flight from it) on the dual school system, the en­



209a

forcement of restrictive covenants, site and tenant selec­
tion policies for low income housing and other govern­
ment practices and policies as well as on private discrimi­
nation. (Tr. 12,974, 12,976, 13,024, 13,032-13,035, 13,040- 
41, 13,043, 13,046-47, 13,058-62, and 13,123-24).

Not surprisingly Missouri defended with experts whose 
opinions declared economics, accessibility to jobs, special 
barriers, personal preference and private discrimination 
were the factors affecting black movement. (Tr. 19,102, 
19,104-05). They all discounted or totally rejected schools 
and the dual school system as having any effect. (Tr. 
18,620-24, 18,627-28). To the extent those experts deny 
the influence of schools in housing patterns, particularly 
in the context of Missouri’s legacy, their opinions are 
rejected.

The Court finds the dual housing market (Tr. 12,974- 
76), which still exists to a large degree today (Tr. 
12,008-09, 12,339), impacted blacks in the KCMSD and 
consequently caused the public schools to swell in black 
enrollment. The Court finds there is an inextricable con­
nection between schools and housing. “ People gravitate 
toward school facilities, just as schools are located in 
response to the needs of the people. The location of 
schools may thus influence the patterns of residential 
development of a metropolitan area and have important 
impact on composition of inner city neighborhoods,” 
Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278-1279, 28 L.Ed.2d 
554 (1971).

There were many witnesses called and literally weeks 
of testimony concerning the cause of blacks settling in 
the inner city of Kansas City and within the KCMSD. 
This testimony was relevant as to the suburban school 
districts and HUD. It was not relevant on the claims of 
plaintiffs against the KCMSD and the State of Missouri 
because those defendants had an obligation to the black 
students regardless of why they settled in the school dis­



210a

trict. As will hereafter be pointed out, the Kansas City 
District school system had never been totally integrated. 
In Davis v. East Baton Rouge Parish School Bd., 721 
F.2d 1425 (5th Cir. 1983), the school board tried to 
justify its one-race schools on the basis that they resulted 
from demographic patterns for which the school officials 
had no responsibility. The Court held that the Board’s 
argument failed, stating:

The Board’s reliance on housing patterns as jus­
tification for the continued existence of one-race 
schools is not only factually but legally unsound. . . .

Until it has achieved the greatest degree of de­
segregation possible under the circumstances, the 
Board bears the continuing duty to do all in its 
power to eradicate the vestiges of the dual system. 
That duty includes the responsibility to adjust for 
demographic patterns and changes that predate the 
advent of a unitary system, [citations omitted]. The 
racial isolation of some schools, whether existing be­
fore or developing during the desegregation effort, 
may render disestablishment of certain one-race 
schools difficult or even impossible. Until all reason­
able steps have been taken to eliminate remaining 
one-race schools, however, ethnic housing patterns 
are but an important factor to be considered in de­
termining what further desegregation can reason­
ably be achieved; they do not work to relieve the 
Board of its constitutional responsibilities.

Davis, 721 F.2d at 1435. The Court, therefore, will focus 
on the anatomy of the KCMSD.

Plaintiffs allege the KCMSD could have done more 
than it did to stably integrate its schools. (Tr. 14,892- 
93). Plaintiffs are quick to point out, however, that the 
District was faced with a pervasive system of segregation 
and would more than likely end up “ resegregated” like 
all major cities. Id.



211a

The Court notes that several witnesses used the term 
“ resegregated”  when describing racial change in the 
schools and housing patterns, usually changing from pre­
dominantly white to predominantly black. That may be 
correct terminology in the context of their testimony but 
the Court finds it has no legal significance. A segregated 
District cannot become resegregated until it is first inte­
grated. The KCMSD has not yet become integrated on a 
system-wide basis.

As a consequence of their failure to do more, plaintiffs 
allege there are lingering effects of the dual school sys­
tem. The District also blames the prior dual system for 
its present status, maintaining the State did nothing to 
relieve the conditions it created. Several witnesses con­
firmed the conclusion reached by the Supreme Court in 
Brown I that forced segregation ruins attitudes and is 
inherently unequal: “ [Segregation] may affect their
hearts and minds in a way unlikely ever to be undone.” 
347 U.S. at 494, 74 S.Ct. at 691. (Tr. 16,414, 16,416,
16.422) . The general attitude of inferiority among 
blacks (Tr. 1,920-21) produces low achievement (Tr. 
16,573) which ultimately limits employment opportuni­
ties and causes poverty. (Tr. 2,453-56, 16,414, 16,457- 
58). While it may be true that poverty results in lowT 
achievement regardless of race, (Tr. 16,508), it is un­
deniable that most poverty-level families are black. (Tr.
16.422) . The District stipulated that as of 1977 they 
had not eliminated all the vestiges of the prior dual sys­
tem. (Stipulation introduction filed 2 /21/84). The Court 
finds the inferior education indigenous of the state- 
compelled dual school system has lingering effects in the 
Kansas City, Missouri School District.

Racial Composition of the School District: In the 1954- 
55 school year, 18.9% of the District’s 63,487 students 
were black (stipulation 2, Def. Ex. K-2). Because the 
State compelled separate schools for blacks, the District 
established and maintained segregated facilities with seg-



212a

regated staffs. In 1954, the KCMSD operated 90 schools 
of which 14 elementary, 1 junior-high vocational school 
and 1 high school-junior college were for black students, 
(Stipulation 5, Def. Ex. K-2). Those schools were located 
in the black-concentrated areas (Stipulation 6) and as 
that community expanded in a southeast direction so 
did the black schools, (P. Ex. 20, 740, 741, 742 map 
series, 1653; Tr. 3,577-78, 12,990-92).

The white students in the District during this period 
attended one of the 62 elementary schools, 3 junior high 
schools, eight high schools (1 with a vocational school) or 
the junior college. (Stipulation 10, Def. Ex. K2).

The KCMSD was majority white in enrollment until 
1970 (Def. Ex. K-2, Tr. 17,009), and could have achieved 
a mathematical racial balance in its schools until that 
year. (Tr. 17,010-12). Instead, the District chose to op­
erate some completely segregated schools and some inte­
grated ones, (Def. Ex. K-2). Regardless of some school 
officials’ feelings that a more mathematically oriented 
plan would be less stable Tr. 17,205-207, the District’s 
chosen path was ineffective in integrating its school sys­
tem.

As of 1977, 25 one-race schools under the pre-1954 
system remained 90% or more of the same race. (Def. 
Ex. K54, Stipulation 85, 86; Tr. 16,980). In addition, 
there were four black schools from the dual system that 
were still predominantly black when they closed in 1968. 
(Tr. 16,999-17,001). In summary, as of 1974, 20 years 
after Broivn I, 39 schools were more than 90% black; 
another 38 had 10 to 90% black enrollment. Eighty per­
cent of all blacks in the District attended schools that 
were 90% black; only 19% of the blacks attended a 
school that was 10 to 90% black. (Stipulation 84).

With the adoption of Plan 6C (discussed infra,) in 
1977, the District eliminated the 16 entirely white schools 
and reduced the number of 90+%  black schools to 28. 
(Tr. 16,567). During the 1983-84 year, no school had



213a

less than 30% black enrollment; 24 schools however are 
racially isolated with 90 +  % black enrollment. (Tr. 16,568, 
Def. Ex. K-2). The Court finds the District did not and 
has not entirely dismantled the dual school system. Ves­
tiges of that dual system still remain.

Liberal Transfers. During the pre-1954 days, the Dis­
trict utilized a liberal transfer policy within each system, 
(Stipulation 11), allowing students to transfer to any 
open (uncrowded) school. (Stipulation 23, 24, 56; Tr. 
16,940). Blacks did not use the liberal transfer policy 
as frequently as whites. (Tr. 2,010, 3,544; Stipulation 
61). The Court finds the liberal transfer policy was not 
adopted or maintained to foster segregation even though 
it allowed whites living in racially transitional neighbor­
hoods to transfer within the District to whiter schools. 
(Stipulation 57, Tr. 16,941-42).

Critics of the transfer policy blame its liberality for 
the racial turnover in schools by not compelling whites 
in that attendance area to attend that school. (Tr. 6,604- 
05; Stipulation 50, 56; P. Ex. 2780). Others, however, 
attribute the policy with fostering stabilization in transi­
tional neighborhoods, slowing white flight and thus aiding 
integration. (Stipulation 56; Tr. 3,025-26, 13,663-64).

In the years following Brown, the District attempted 
to accommodate varying views regarding the effect of the 
transfer policy. (Stipulation 58, 59, 60, 61 and 62) and 
made adjustments in both the liberality and review of the 
proposed transfers. (Tr. 16,556-57). When the District 
proposed abandoning the liberal transfer policy in order 
to satisfy federal OCR officials and retain federal funds, 
an integrated neighborhood organization sough to enjoin 
the abandonment fearing it would produce more white 
flight. (Tr. 13,662-64). The District did however revoke 
the policy pursuant to OCR directives (Tr. 13,667). In 
1973, race was considered in transfer requests, giving 
preference to transfers that would promote integration.



214a

(Tr. 13,738). The Court finds the evolution of the trans­
fer policy was motivated by racial animus.

Neighborhood Schools: In response to the Brown II 
decision in 1955, the District adopted an assignment sys­
tem known as the neighborhood school plan. (Stipulation 
12, 13). Pursuant to this plan, the separate racial zones 
were eliminated and attendance areas were drawn 
around each school based on the buildings’ capacity, dis­
tances involved, and other factors like safety, transporta­
tion and terrain. Id. By calculating the number of stu­
dents in each attendance area, the District projected en­
rollment and expected racial composition for its various 
schools. Contrary to its predictions, many of the previ­
ously black schools opened with more than 92.5% black 
enrollment; 921 whites were predicted at these schools 
yet only 117 were present during the official census taken 
that fall. (Stipulation 22). White enrollment in the Dis­
trict decreased by approximately 1,200 between 1954-55 
and 1955-56. Id. (P. Ex. 582, 584, 584B, 585, 586, 740, 
743, 744). Because most of the schools were in racially 
segregated neighborhoods before 1954, the Court finds 
adoption of the neighborhood school concept did not sub­
stantially change the segregated school system.

Attendance Zones: Following Brown, the District
made frequent shifts in the attendance areas of elemen­
tary and secondary schools as the population shifted, de­
pending upon the capacity of various buildings. (Tr. 
3,028; Stipulation 16 through 20, 29 through 31, 34, 37, 
41, 43, and 48). In June, 1963, the District’s proposed 
attendance zone changes were challenged by a group of 
residents who charged the changes would resegregate the 
schools and neighborhoods. (Stipulation 49). The Board 
in response, modified its plans and adopted a policy state­
ment recognizing that integration was an important fac­
tor to be considered in the District’s decisions. (Stipula­
tion 50 through 52). Nevertheless, the attendance zone 
changes did not achieve system-wide integration.



215a

In addition to the regular attendance zones, various 
“ optional” zones were utilized to allow students in those 
areas to choose among several schools. (Stipulation 31, 
34, 51). Many of those optional zones existed before 
1954, (see P. Ex. 739, 740; maps) and continued there­
after. (Stipulation 34). Regardless of the intent, e.g. to 
relieve overcrowding, (Tr. 2,011-13, 16,937-38), the 
Court finds the use of these optional zones, coupled with 
the liberal transfer policy, did not aid to integrate the 
District; to the contrary, it allowed attendance patterns 
to continue on a segregated basis.

Intact Busing: From the mid-1950’s through the
1970’s the District was faced with overcrowded condi­
tions, (Tr. 16,948-49; 6,583, 6,548-49, 7,305-06). Be­
sides adjustments to attendance zones, in the mid-1960’s, 
the District also adopted a busing program. The Board 
declared that the busing program was not for integration 
but was required to relieve overcrowded conditions at 
some schools. (Stipulation 53). While the Board added 
it would aid integration when possible, it chose to bus 
entire classrooms of black students to predominantly 
white schools but to keep them as an insular group, not 
allowing them to be mixed with the receiving population. 
(Tr. 7146-47, 8,612). In the face of civil rights protests, 
in 1965, the bused students were integrated into the reg­
ular enrollment. The Court finds the District’s use of 
intact busing had a segregative intent and effect. Be­
cause the practice was stopped in the 1960’s, however, 
no continuing violation exists. Certainly black children 
subjected to that experience well remember the feelings 
of isolation and inferiority obviously produced by the 
practice.

Middle School: In 1965, a. bond issue was passed to 
build three new schools in order to relieve the overcrowd­
ing in the Central area. (Stipulation 63). Because local 
civil rights groups protested the proposed site locations 
as being segregative and ineffective to relieve overcrowd-



216a
ing, the District hired a consultant, Dr. Havighurst, to 
make a report and recommendation for the new sites. 
(Stipulation 64). His final report proposed, inter alia, 
a middle school at the Paseo and Brush Creek to stabilize 
a transitional neighborhood and retain its integrated 
character. (Stipulation 64, 67). After iy 2 years of de­
bate, the Board rejected this portion of Dr. Havighurst’s 
recommendations stating there was a lack of funds and 
it did not appear that integration could be maintained. 
(Stipulation 67). Some blacks viewed the District’s fail­
ure to adopt the middle school as a step toward continu­
ing the segregated school conditions. (Tr. 3017-20). The 
Court finds that reasonable minds could differ as to the 
effect and ability of the middle school to help integrate. 
(Tr. 16,478-79).

Concepts for Changing Times: At the instance of sev­
eral community and civil rights groups, Superintendent 
Hazlett, in 1968, presented a document “ Concepts for 
Changing Times,” in which various proposals for district­
wide integration and stabilization were suggested. (P. 
Ex. 414, 414A, 2603; Stipulation 69). The Board ap­
pointed a bi-racial committee (committee of 30) to study 
the “ Concepts” and make recommendations. The Com­
mittee generally endorsed the ideas (P. Ex. 414E through 
K, 2780U and V) however, the Board never voted on the 
proposals and none were otherwise acted upon. (Stipula­
tion 69). In fact there was no district-wide desegrega­
tion plan adopted by the KCMSD until Plan 8C was 
implemented in 1977-78. Id.

As indicated supra, as the black population expanded 
from the central city in a southeast direction, neighbor­
hoods and schools experienced a racial transition. As 
blacks moved, or were bused to the schools, in the area, 
whites moved out. (Tr. 8715-16, 8721-30, 9228-32, 9235). 
Several community groups attempted unsuccessfully, to 
maintain an integrated neighborhood and stabilize the 
often rapid transition. (Tr. 9,347-48, 9,395-96, 13,631- 
32).



217a
In 1965, the Kansas City Commission on Human Rela­

tions issued proposals to stabilize the southeast area. 
(Stipulation 70). Many of which were adopted by the 
KCMSD. Racial turnover continued unabated, however, 
with the efforts proving to be little more than a thumb in 
the dike. (Stipulation 71).

It is interesting to note that in the 1958-59 school year 
there were 52,491 white students in KCMSD. It had 
14,952 black students which comprised 22.5% of the total 
enrollment. The highest enrollment in the past 30 years 
occurred in 1967-68 when there was a total enrollment 
of 74,997 students. The largest enrollment of blacks oc­
curred in the 1971-72 school year when there was a total 
of 35,620 black students enrolled. In the 1983-84 school 
year the total enrollment in the KCMSD was 36,650 stu­
dents, 10,022 whites and 24,803 blacks with a percentage 
of 67.7% black. The total enrollment from 1967-68 to 
1983-84 has been reduced more than 50%. Enrollment of 
whites between 1958-59 and 1983-84 has been reduced by 
80%. The black enrollment from 1971-72 to 1983-84 has 
been reduced by approximately 30%.

Plaintiffs contend that the State established a system 
of area vocational schools that effectively segregated stu­
dents on the basis of their race and that the methods of 
funding these schools were racially discriminatory. The 
Court addressed this issue in its June 5 order dismissing 
the suburban defendants.

The Kansas City Technical Center is an AVTS for all 
high schools in KCMSD. It was the first AVTS formed 
in the Kansas City area. It served all students in the 
KCMSD regardless of race. There is no proof that the 
formation of this school has prolonged or contributed to 
the segregation in the schools in the KCMSD. DESE 
administers vocational educational funds without regard 
to race and all districts are treated alike. (Tr. 17,939).

The State has been of some aid to school districts in 
the State which have segregation problems. When a



218a

Missouri school district received an OCR complaint, the 
DESE sent a letter to the district offering the depart­
ment’s assistance. (Tr. 17,464). A Technical Assistance 
Unit (TAU) was established, funded by federal funds, 
which provides assistance to school districts involved in 
voluntary or court ordered desegregation upon a dis­
trict’s request. (Tr. 17,667). It also notifies the eligible 
districts of other services which can be provided under 
the conditions of the federal grants. The TAU proposal 
for funding to the federal government explicitly names 
St. Louis and Kansas City school districts as priority 
areas for technical assistance. (Tr. 17,684). KCMSD 
has requested and been provided TAU assistance. (Tr. 
17,682, 17,785; St. Def. Ex. M-2).

The DESE also provides valuable assistance to urban 
school districts through its Urban Education Section. 
(Tr. 17,592-604).

Claims Against HUD

Plaintiffs have made numerous claims that the Depart­
ment of Housing and Urban Development (HUD) vio­
lated its responsibilities under the Fifth Amendment of 
the United States Constitution, Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000d, et seq., Title VIII 
of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq., 
and the applicable housing laws and regulations.

Title VI, § 601 of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d provides “no person in the United States 
shall, on the grounds of race, color or national origin, be 
excluded from participation in, be denied the benefits of, 
or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.” Title 
VIII, 42 U.S.C. § 3601 (known as the Fair Housing Act) 
declares that “ it is the policy of the United States to pro­
vide, within constitutional limitations, for fair housing 
throughout the United States.” The Act contains a num­
ber of detailed provisions banning discrimination on the



219a

basis of race, color, religion, sex or national origin in the 
sale or rental of housing, the financing of housing and 
the provision of brokerage services. See, 42 U.S.C. 
§§ 3604, 3605, 3606. The Act further makes it unlawful 
to interfere with any person’s exercise of enjoyment of 
these rights. 42 U.S.C. § 3617.

Before analyzing some of the myriad claims made by 
plaintiffs it may be helpful to briefly summarize the 
basic goals of the federal housing programs. The United 
States Housing Act of 1937, 42 U.S.C. §§ 1437-1437j, 
was originally enacted to remedy the unsafe and unsan­
itary housing conditions and the acute shortage of hous­
ing for families of low income. It authorized HUD to 
make loans and annual contributions to local public hous­
ing agencies (PHAs) to develop, operate and maintain 
low rent public housing projects for families with low 
income. 42 U.S.C. §§ 1437b-1437c. Congress sought to 
achieve this goal by vesting the responsibilities of the 
administration of these housing programs in local housing 
agencies.

Under the 1934 Act, FHA guaranteed or insured pay­
ment of residential mortgage loans for those of low in­
come who qualified, making it possible for low income 
people to purchase homes with very low down payments 
and interest rates below the national average. In 1954 
the Act was amended under 12 U.S.C. § 1751(d) (3) and 
(4) to provide mortgage insurance to developers, includ­
ing public bodies, of multi-family rental or cooperating 
housing for moderate income or displaced families. The 
Housing Act was again amended in 1959, 12 U.S.C.
§ 1715v to make mortgage insurance available to facili­
tate the financing of rental housing for the elderly or 
handicapped.

The Act was amended in 1974 by the Housing and 
Community Act of 1974 which had as part of its objec­
tives the elimination of slums and the renewal of older



220a

urban areas, 42 U.S.C. § 5301. It specifically recognized 
that the concentration of persons of low income in the 
central cities was creating social, economic and environ­
mental problems. In 1977, 42 U.S.C. § 1439 was amended 
to place greater emphasis on local housing assistance 
plans. The primary goal of the federal housing program 
is to provide decent housing for the poor; however, its 
secondary concern is to develop and maintain stable, de­
sirable urban communities.

The § 235 program [12 U.S.C. § 1715z 1968] combined 
mortgage insurance with HUD mortgage subsidy pay­
ments to the lender in amounts determined by the buyer’s 
income. The § 236 program was authorized in 1968, 12 
U.S.C. § 1715z-l. In addition to mortgage insurance 
HUD provided interest subsidies to nonprofit, limited 
dividend or cooperative programs to reduce interest rates 
to an extremely low level.

Section 8, 42 U.S.C. I 1437f, (Housing and Community 
Development Act of 1974) provided for rental subsidies 
to lower income persons by payments directly from HUD 
to landlords including public bodies. Under § 8 the rental 
subsidy is tied to the tenant not to the property. In 
other words the § 8 certificates are HUD’s guarantee 
of the rental subsidy. The tenants are responsible for 
finding their own housing although the administering 
housing authority may be able to direct the certificate 
holder to landlords who have indicated a desire to have 
§ 8 tenants. If the prospective landlord does not agree 
to participate in the program, the tenant must take the 
certificate somewhere else or forego the subsidy. Also 
if the certificate holder moves from one qualified apart­
ment to another, the lessee takes the certificate along.

Scope of Judicial Review

Plaintiffs have not alleged nor have they met the 
statutory prerequisites for filing a private action under



221a

Title VI, § 2000d et seq., nor under Title VIII, 42 U.S.C. 
§§ 3610 or 3612, requiring such complaint to be filed 
within 180 days of the alleged discrimination.

Plaintiffs have properly proceeded on the basis that 
HUD has violated their rights to “ the equal protection 
of the laws” as guaranteed by the Fifth Amendment of 
the United States Constitution. Davis v. Passman, 442 
U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), Bivens 
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The standard of review for HUD’s actions are the 
same as those for HEW which were set forth in this 
Court’s order of July 16, 1984 (pp. 21 and 22). Briefly, 
there must be a showing that in administering the fed­
eral housing programs in the Kansas City area its actions 
were arbitrary and capricious, without a rational basis, 
it did so with discriminatory intent or purpose, and there 
is a causal connection between the violation and the 
injury, the segregated schools in the KCMSD. City of 
Memphis v. Greene, 451 U.S. 100, 119, 101 S.Ct. 1584, 
1596, 67 L.Ed.2d 769 (1981) ; Washington v. Davis, 426 
U.S. 229, 239-241, 96 S.Ct. 2040, 2047-2048, 48 L.Ed.2d 
597 (1976) ; Alschuler v. Dept, of Housing and Urban 
Development, 686 F.2d 472 (7th Cir.1982) ; Clients Coun­
cil v. Pierce, 711 F.2d 1406 (8th Cir. 1983). Discrimina­
tory purpose “ implies that the decisionmaker . . . selected 
or reaffirmed a particular course of action at least in 
part ‘because of’ not merely ‘in spite of’ its adverse 
effects upon an identifiable group.” Personnel Adminis­
trator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 
2282, 2296, 60 L.Ed.2d 870 (1979).

Plaintiffs claim that FHA’s appraisal practices prior 
to 1949, and even thereafter, contributed to segregated 
housing in the Kansas City area. Clearly, FHA’s ap­
praisal manuals for 1936 (P. Ex. 1303) and 1938 indi­
cated racial restrictive covenants would tend to insure



222a

a stable community thus enhancing the value of the 
property. In 1947 and thereafter emphasis was placed 
on such considerations as to whether there was a prob­
ability of a change in occupancy, that in a change from 
one user group to another the successor group exhibits 
a lower income level. The manual also pointed out that 
a neighborhood would probably remain more stable where 
there was compatibility among the neighborhood occu­
pants. (P. Ex. 1305). By 1947 reference to racial re­
strictive covenants was deleted from its manual and it 
has refused to insure the mortgage on any property which 
contained such restrictions. Insurance of mortgages by 
FHA incurs a risk of loss of federal funds. Racial re­
strictive covenants were intended to cause housing segre­
gation. While such covenants were brought about by 
private action they were enforced by the courts of Mis­
souri until after the case of Shelly v. Kraemer, 334 U.S. 
1, 68 S. Ct. 836, 92 L.Ed. 1161 was decided in 1948. Even 
though such covenants were discriminatory without a 
doubt they did have an effect on the market value of 
residential property. FHA did not enforce the covenants; 
however, it accepted the fact that Missouri courts did 
enforce them. FHA was faced with this reality and 
could not ignore it in making a determination as to the 
maximum risk which should be incurred with funds of a 
federal agency. In view of this FHA did not act arbi­
trarily nor capriciously in giving these covenants con­
sideration in arriving at an appraisal. As demonstrated 
by Ex. P. 22, the areas most affected by these covenants 
soon were occupied by blacks after the covenants were 
no longer enforceable. There was no evidence showing 
the number of FHA insured mortgages in the restricted 
areas.

Prior to 1950 FHA insured approximately 15,000 
homes in the KCMSD. (Ex. FD37A). Between 1950 
and 1980 there were in excess of 2,000,000 housing turn­
overs in this area. If FHA’s appraisal practices prior to



223a

1950 had any effect on present racial housing patterns, 
it would, at most be de minimus.

Plaintiffs claim that HUD violated its Title VI and 
VIII obligations when it continued to fund the Kansas 
City Land Clearance for Redevelopment Authority 
(LCRA) after it knew that the LCRA was following 
racially discriminatory practices. In 1953 the LCRA 
was established by Kansas City, Missouri to administer 
urban renewal programs under the Housing Act of 1949. 
HUD provided federal funds to assist in urban renewal 
and neighborhood development activities. (Ex. FD204C). 
After receiving the complaint that LCRA was practicing 
racial discrimination in its relocation activites, HUD 
made a Title VI complaint investigation. In that investi­
gation HUD found that blacks were being located pri­
marily in the southeast part of Kansas City while whites 
were relocated throughout the Kansas City area. (P. 
Ex. 2913A). As a result of the Title VI investigation, 
LCRA was required immediately to cease such discrim­
inating practices and to file reports with HUD so that 
HUD could monitor their referrals. The reports were 
to be filed with HUD every 90 days (Ex. P2913A). 
LCRA failed to file its reports in a timely fashion. (Tr. 
11,601). The reports that were filed showed no sig­
nificant improvements in LCRA’s referral practices. As 
a result in June, 1973, HUD refused to fund the 1974 
Neighborhood Development Program (NDP) unless the 
city assumed the responsibility for all relocation services. 
(Ex. FD204C). In June, 1973, HUD, LCRA and the 
City of Kansas City entered into a cooperation agree­
ment by which the City assumed the responsibility for 
relocation under the urban renewal and neighborhood 
development plan. As part of this agreement each re- 
locatee was to receive at least one referral outside of 
the “ inner city.” (Ex. FD239). The cooperation agree­
ment required the City to file reports at least twice a 
month with reports to include the race of each displaced



224a
person, the number of dependents and the address of 
housing referrals. (Ex. FD239). Following this agree­
ment, approximately %  of the housing referrals provided 
to black relocatees were outside of the inner city areas. 
(Ex. P322A, Tr. 10,991). The relocation reports show 
that between 1971 and 1976 only 174 black households 
were relocated during the six year period. (Ex. P622B). 
The Court finds that in working out the cooperation 
agreement between the LCRA and the City of Kansas 
City, Missouri, HUD acted in a reasonable and responsive 
manner. To have cut off funds would have penalized 
those most in need of housing, that is the people of low 
income, and could not have been done absent a lengthy 
Title VI investigation. The Court finds that by entering 
into the cooperation agreement between HUD, LCRA and 
the City of Kansas City, their actions were not arbitrary 
or capricious and did not violate plaintiffs’ fifth amend­
ment rights.

Title VIII. Plaintiffs contend that within the KCMSD, 
§ 8 certificate holders are segregated by race. The Hous­
ing Authority of Kansas City (HAKC) administers the 
§ 8 assistance program in Kansas City, Missouri in which 
HUD provides housing assistance payments to HAKC for 
§ 8 participating tenants. (Tr. 12,197, 12,364). HAKC’s 
§ 8 program presently has 1,458 certificates in use with 
16% white and 84% nonwhite. (Ex. P1481B). There 
are public housing authorities administering the § 8 as­
sistance housing programs in Independence, Liberty and 
Lee’s Summit, Missouri. These PHA’s presently have 
619 certificates in use with the racial composition 98% 
white and 2% nonwhite. (Ex. P1481A). By the nature 
of the § 8 program, participants may request a certifi­
cate from any issuing jurisdiction and then locate hous­
ing of their own choosing within the jurisdiction issuing 
the certificate. (Tr. 20,455). There was no evidence 
that HUD or the PHAs attempted to direct § 8 certifi­
cate holders as to the location of the housing which they 
chose.



225a

Under the Public Housing Act of 1949, P.L, 81-171, 
63 Stat. 413, Congress recognized that the problem of 
providing decent housing for low income families was 
“ clearly related and practically inseparable from the 
problem of clearing urban slums,”  In other words, the 
1949 Act created a slum clearance program. Congress 
provided loans and capital grants to clear the land and 
then make it available for redevelopment in accordance 
with locally devised plans for the area. This was re­
affirmed by Congress in the 1954 Housing Act, P.L. 
83-560, 68 Stat, 590. The urban renewal projects were 
required to be located in areas for which the community 
had a plan for both slum clearance and redevelopment. 
HAKC has nine projects for family occupancy under 
management containing a total of 2,270 units. (Ex. 
P1609). HAKC constructed seven family projects be­
tween 1952 and 1963 all either within the model cities 
or urban renewal areas, (Ex. P2917). The Housing 
Authority had two other family projects containing 50 
units each consisting of single family homes located 
throughout Kansas City, Missouri. (Ex. P1609).

At the outset HAKC followed the “ freedom of choice 
plan.” In 1968 HAKC adopted a new assignment plan 
in accordance with HUD regulations which required ap­
plicants to select a suitable vacant unit from among the 
three development locations with the highest vacancy 
rate or be removed to the bottom of the waiting list. (Ex. 
P1596FFF). In 1976 HUD made a Title VI investigation 
of HAKC’s assignment practices. It found that HAKC 
was allowing applicants to choose a suitable vacant unit 
in any development rather than giving a choice only of 
a unit among the three developments with the highest va­
cancy rate. (Ex. P1596FFF). Following the investiga­
tion, HAKC and HUD entered into a compliance agree­
ment in which HAKC adopted a new tenant assignment 
policy. This policy required that applicants be assigned 
to suitable units at one of the three developments with



226a

the highest vacancy rate. In addition it provided for a 
minority preference housing option. This feature of the 
plan allowed for the immediate placement of any appli­
cant or transfer of any resident to a development in 
which the applicants or tenants racial group comprised 
33%% or less of the development’s population. (Tr. 
12,225, Ex. P1596GGG). The Court finds that the loca­
tion of the public housing was in accordance with the 
congressional acts and that HUD’s monitoring of the 
program was neither arbitrary nor capricious and that 
the compliance agreement entered into between HAKC 
and HUD was reasonable.

Plaintiffs also contend that HUD assisted multi-family 
housing caused the overwhelming majority of these units 
to be located within the KCMSD. The Court finds that 
HUD followed a balanced housing policy and attempted 
to insure that assisted housing located in the inner city 
area was balanced by assisted housing projects in the 
suburban areas. (Tr. 20,657). HUD reviewed all pro­
posals for multi-family housing projects to include racial 
characteristics of the project area. (Tr. 20,408-09). HUD 
had disapproved some proposed projects because they 
were located in areas of minority concentration. (Tr. 
20,563-68). The evidence indicates that there has not 
been a lack of balance between federally assisted hous­
ing within the KCMSD and the suburban areas. Plain­
tiffs’ Exhibit 27B reflects that there were 6,832 HUD 
insured or subsidized multi-family units within KCMSD 
and 9,872 such units in the 11 suburban school districts 
(which have been dismissed in this action). This indi­
cates that HUD did follow a balanced housing policy. 
HUD published site selection regulations known as “ Proj­
ect Selection Criteria” , 24 C.F.R. § 200.700 et seq. With­
out setting forth the criteria, they were sufficient to 
enable HUD to make a reasonable determination that a 
particular project was in compliance with Titles VI and 
VIII. There was no evidence in the case that the prac­



227a

tices of HUD in site selection and approval for federally 
subsidized multi-family housing had a substantial effect 
upon the racial makeup of schools within the KCMSD. 
A good example is the East Hills Village located in the 
Knotts Elementary School attendance zone. The East 
Hills Village project was approved by HUD in 1971. (Ex. 
P27B). In 1971 when the project was approved by HUD, 
Knotts School was 84% black and in 1973 when the East 
Hills Village project was opened, Knotts School was 
91.9% black. (Ex. K-2). When East Hills Village opened 
there were 30 elementary school age children, 27 black 
and 3 white. (Ex. P1199). Ten percent of the children 
were white, ninety percent were black. The black per­
centage was higher in Knotts School than that reflected 
in the East Hills Village project.

Although the evidence showed that HUD assisted 
housing was not concentrated within KCMSD, plaintiffs 
nevertheless asserted that most blacks who resided in as­
sisted housing lived within the KCMSD. Even assuming 
that this is true, it does not show a Title VIII violation 
on the part of HUD. HUD established affirmative mar­
keting regulations, 24 C.F.R. §§ 200.600, 841.202 and 
880.206, and the evidence reflects that the Kansas City 
HUD office monitored these affirmative fair housing and 
marketing plans very closely. A detailed description of 
HUD’s review and monitoring of the affirmative fair 
housing marketing plans was provided by Elaine Owens. 
(Tr. 20,413-431; 20,516-521). Each project sponsor was 
required to establish an “ anticipated occupancy goal” for 
tenants which was both realistic for the project area and 
which would provide greater integration than the cur­
rent racial mix of the area. (Tr. 20,419, 20,516-17). The 
review also assured that advertising and contact with 
the community groups were adequate to reach persons 
who would not otherwise be expected to apply for such 
housing. (Tr. 20,415-19). Its review involved a pre- 
occupancy conference with the sponsor to discuss the pro­



228a

visions of each marketing plan and how the plan was to 
be implemented as well as an appraisal of the sponsor’s 
past affirmative marketing experience. (Tr. 20,420-23). 
With respect to HUD’s monitoring of the plans, sponsors 
were required to submit monthly occupancy reports until 
the project was 95% occupied. Thereafter, occupancy 
reports were to be submitted annually. (Tr. 20,423-24). 
HUD also monitored the Equal Housing Opportunity 
Plans under § 8 housing programs. (Tr. 20,431-33). Gen­
erally its efforts were designed to insure that partici­
pating § 8 certificate holders were made aware what 
affordable housing was available to them throughout the 
entire community and that the public housing authorities 
informed them of their rights under the fair housing 
laws. HUD made annual monitoring visits to all PHAs 
in the Kansas City area that administered § 8 programs. 
(Tr. 20,453-54). Undoubtedly the affirmative fair hous­
ing marketing plans did not result in the integration 
which HUD desired; however, this was not the result of 
the lack of affirmative marketing efforts. A good ex­
ample was the evidence concerning Parvin Estates which 
was located in predominantly white north Kansas City. 
(Tr. 12,542-43). Mrs. Ruth Seehter testified at length 
concerning the marketing plans imposed in the develop­
ment of Parvin Estates. She stated that the plan had 
been successful in making blacks aware of the openings 
at Parvin Estates but they were unsuccessful in attract­
ing the expected number of black families to the project. 
She attributed this to reasons that were beyond the spon­
sor’s control and not the fault of the plan. (Tr. 12,582). 
This project contained 300 units; however; in spite of 
the affirmative marketing efforts, they were never able 
to attract more than 12% minorities. The occupancy 
rate for blacks was actually lower. (Tr. 12,562). Cer­
tainly there was nothing about the marketing regulations 
or the manner in which they were implemented and mon­
itored which was arbitrary or capricious.



229a

Plaintiffs also asserted that blacks were routinely de­
nied FHA mortgage insurance well past 1954. There was 
no evidence whatsoever to support plaintiffs’ contentions 
in this regard. Mr. Newsome, with 23 years experience 
as a real estate agent, was not aware of a single in­
stance in which FHA had refused to insure a mortgage 
loan because of race. (Tr. 9,439, 9,517). The only evi­
dence on the issue was to the effect that race was not a 
factor in HUD’s decision to insure a home mortgage loan. 
(Tr. 19,925-26, Treu Depo. at 60; James Depo. at 15). 
Since 1962 FHA has required a certification of compli­
ance with its nondiscrimination policy by all lenders, 
buyers and sellers. (Ex. FD45A & B, 46A & B, and 350 
[see 24 C.F.R. § 200.300 et seq. ] ).

Plaintiffs also claimed that there was racial discrimi­
nation in the sale of homes in which the FHA insured 
mortgage had been foreclosed. Plaintiffs maintain that 
many management brokers maintained separate lists of 
these homes, one for whites and one for blacks, and pre­
sold homes in white areas to whites to avoid the possible 
purchase by blacks. The evidence reflected only one in­
stance in which this occurred. Ms. Dorothy Davis testi­
fied that in 1966 Mr. Homer Ritch, a management broker 
agreed to sell property to her several days before it 
was advertised to the general public. (Tr. 11,730). HUD 
investigated Mr. Riteh’s conduct which resulted in an 
official reprimand by HUD and a nonrenewal of his con­
tract to manage HUD properties. (Tr. 11,746). HUD 
immediately altered the manner in which such homes 
were sold to prevent any future occurrences of preselling. 
(Tr. 11,732-33). Under the new procedure, all proposals 
for the sale of HUD owned properties had to be sub­
mitted directly to HUD not to management brokers and 
no proposals were received until the Monday following 
the Thursday advertisement of the property. (Tr. 11,732- 
33). The most detailed evidence concerning HUD’s prop­
erty disposition was in the deposition testimony of Jaspar



230a

Levine, the Director of HUD’s property disposition branch 
between 1965 and 1979. Summarily, he testified that 
HUD maintained the property in good condition so that 
they would not blight the neighborhoods. (Levine Depo. 
at 26). When title to the property was acquired by HUD, 
a repair list was prepared, contracts were let for the 
repair, and the repair work was performed. (Levine 
Depo. at 27,31). If property remained unsold for a pe­
riod of 30 to 60 days, it was normally taken off the mar­
ket, further repaired and re-advertised for sale. (Le­
vine Depo. at 28). Homes that needed only minor re­
pairs were offered for sale in an “ as is” condition. (Le­
vine Depo. at 26). The evidence showed that HUD held 
properties were available for sale to all members of the 
general public regardless of race. (Tr. 11,726, Levine 
Depo. at 79). Properties held for sale were advertised 
in the Kansas City Call, a black newspaper, and the 
Kansas City Star and Times. (Tr. 11,726-27). A list 
of HUD held homes that were ready for sale was regu­
larly mailed to all interested persons. (Tr. 11,727). The 
evidence does not support plaintiffs’ contention that 
HUD’s practices in the sale of homes on which its in­
sured mortgages had been foreclosed was racially 
discriminatory.

There was evidence that some HUD held homes in the 
Southeast Corridor were allowed to deteriorate and fall 
in disrepair. Assuming the accuracy of this testimony 
there was an absence of any evidence to support a finding 
that such neglect of the property by HUD was because 
of racially discriminatory intent or purpose.

Various State Agencies

Plaintiffs contend that the following state agencies had 
an opportunity to reduce the impaction of blacks and 
minorities in the inner city of Kansas City: the Missouri 
Housing Development Commission, the Division of Fi­
nance, Division of Savings and Loan Supervision, the Di-



231a

vision of Insurance, the Missouri Real Estate Commis­
sion, and the Missouri Commission on Human Rights. 
In view of this Court’s finding that the State had an 
obligation under the fourteenth amendment to assure that 
blacks within the KCMSD were not denied the equal pro­
tection of the laws regardless of why they settled within 
the KCMSD, the evidence concerning the aforementioned 
state agencies will be addressed only very briefly.

Plaintiffs contend that the State and particularly the 
Missouri Department of Highway and Transportation 
(MDHT) have managed its relocation program for per­
sons displaced by highway projects in a manner that had 
a racially segregative effect. Their main complaint was 
the location of the 1-70 route which was first chosen in 
1956 when the interstate system took effect. (Tr. 18,243) 
and at a time when the KCMSD was overwhelmingly 
white. (Def. Ex. K-2). 1-70 was financed by both fed­
eral and state funds (Tr. 18,243). 1-70 generally fol­
lowed the route of what was previously U.S. Route 40 
(Tr. 18,248) and was chosen to serve the existing traffic 
patterns as they then existed and were anticipated to con­
tinue. The 1-70 project had to be approved by the Fed­
eral Highway Administration. (Tr. 18,246). Planning 
for this project was generally approved by various agen­
cies of the city government. (Tr. 18,246-47). It goes 
without saying that the location of a highway and partic­
ularly an interstate highway through a residential area 
will displace a certain number of residents in that area. 
There is no proof whatever that the State’s action as it 
related to the construction of the 1-70 project amounted 
to any constitutional violation.

Plaintiffs contend that in its relocation program for 
the South Midtown Freeway (SMF), MDHT managed 
its program in a manner which resulted with blacks 
who were displaced being located in areas which were 
predominantly black and the whites being located in 
suburban areas which were predominantly white. The



232a

Court finds that the location for the SMF generally fol­
lowed existing patterns of traffic and was probably the 
most feasible and reasonable location for the freeway 
and insofar as the freeway location was concerned, there 
was no constitutional violation on the part of the State. 
(Tr. 18,258). Again, the plans for the freeway had to 
be approved by the federal government. (Tr. 18,298). 
It was necessary for a relocation plan to be prepared and 
submitted to the U.S. Department of Transportation for 
approval for funding. (Tr. 18,032-33). Relocatees who 
requested assistance from MDHT were assisted in finding 
replacement housing. (Tr. 18,028). Relocation payments 
were authorized by the Uniform Relocation Act of 1970. 
(Tr. 18,019). On the initial contact, the relocatees com­
pleted a questionnaire which included the relocatee’s pref­
erence for relocation. (Tr. 18,019-20). The relocatees did 
receive financial assistance dependent upon their circum­
stances. (Tr. 18,021-27). Relocatees were told to contact 
MDHT if at any time they felt they were the victims of 
discrimination but no such complaints were ever received 
by MDHT. (Tr. 18,031, 18,043). Generally, MDHT ad­
vised relocatees of the availability of housing and did not 
refer them to relators for this purpose. (Tr. 18,032, 
18,041,18,042).

The State contended that plaintiffs’ claims that the 
State’s location of highways and its management of its 
relocation programs were racially discriminatory should 
have been dismissed and no evidence on these issued ad­
mitted because the United States Department of Trans­
portation was dismissed and the Highway Department 
for the State of Missouri was not a party. Without 
deciding the issue as to whether these claims should have 
been dismissed, the Court finds that there was nothing in 
the location of the highways nor in the operation of the 
MDHT’s relocation program which amounted to a con­
stitutional violation and for which the State of Missouri 
would be liable.



233a

Plaintiffs claim that the State through the Missouri 
Housing Development Commission (MHDC) engaged in 
the implementation of federal housing programs which 
contributed to the creation and perpetuation of a dual 
housing market in the metropolitan Kansas City area. 
MHDC was created by the Missouri legislature in 1969 
to provide loans to middle and low income persons. (Tr. 
18,306-07). MHDC does not build or manage any devel­
opments but simply provides financing. (Tr. 18,307).

Its first financial commitment was on December 15, 
1971 which was for three developments including Parvin 
Estates located in the North Kansas City Missouri School 
District. (Tr. 18,309). MHDC funds come from a sale 
of tax exempt bonds which provide the necessary proceeds 
for making loans to developers or in the case of single 
family programs to individuals to purchase mortgages 
under the single family home loan program. (Tr. 18,310- 
11). MHDC received no federal funding but has been 
requested to administer certain section 8 housing assist­
ance contracts and as a result receives funding directly 
from HUD in which MHDC acts as a conduit to dis­
tribute these funds to eligible mortgagors who in turn 
make principal and interest payments to MHDC. (Tr. 
18,310-13). Nearly all projects in which MHDC partici­
pated are federally insured, either FHA or VA, and in 
some instances private mortgage insurance guarantees. 
(Tr. 18,315). There was considerable evidence concern­
ing the type of federally insured projects in which MHDC 
was involved; however, the Court sees no particular ad­
vantage in reviewing those projects in detail. State Exh. 
C-12 reflects the projects in which MHDC was involved 
and the location of those projects. It clearly appears that 
the majority of the units in which it was involved were 
located outside the KCMSD.

Plaintiffs and the KCMSD offered evidence of the al­
leged past racially discriminatory practices of private 
individuals in the fields of real estate, residential and



234a

commercial, financing, insurance and public accommoda­
tions. They seek to hold the state responsible for these 
activities because real estate brokers, banks, savings and 
loan institutions, insurance companies and other entities 
claimed to have been engaged in this practice receive 
licenses from and are subject to regulation by the State 
of Missouri. There is no doubt that private entities did 
engage in discriminatory practices such as red lining, 
steering and blockbusting. As stated the discriminatory 
acts were committed by private individuals or entities. 
The only complaint involving illegal activities of realtors 
which was filed with the Missouri Real Estate Commis­
sion led to the permanent revocation of the real estate 
license of the agent involved. (Tr. 12,257-58). Other 
complaints were filed with the Kansas City Human Rela­
tions Committee which did receive an affirmative response 
from that committee. (Tr. 4721 and 4711-12). The mere 
fact that activities of these private individuals or entities 
were either licensed by or subject to regulation by a state 
agency does not convert the private action into state ac­
tion for which the State of Missouri would be liable. 
However, private action may, in law, become state action 
when the state has exercised coercive power or has pro­
vided significant encouragement for the private discrimi­
natory activity. This is clearly the teaching of the fol­
lowing cases without any further discussion concerning 
the holding in those cases: Moose Lodge No. 107 v. Irvis, 
407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); 
Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct, 2777, 73 
L.Ed.2d 534 (1982) and Rendell-Baker v. Kohn, 457 U.S. 
830, 102 S.Ct. 2764, 73 L,Ed.2d 418 (1982). There was 
no evidence whatsoever that the state agencies exercised 
coercive power or significantly encouraged the private 
individuals or entities in their discriminatory practices 
so as to make their actions the actions of the State. 
While these agencies, acting within the authority granted 
them by the General Assembly, committed no constitu­
tional violation, the State could have given those agencies



235a

obligations and authority which could have aided in the 
disestablishment of the dual school system which it cre­
ated. This Court cannot say what precise course the 
State should have taken at any particular stage in meet­
ing its affirmative duty to disestablish the dual system; 
however, by acting through these agencies, it could have 
at least partially met that duty. A finding that none of 
the aforementioned agencies committed any constitutional 
violation entitling plaintiffs to relief does not dispose of 
the question concerning the State’s liability.

In the past the State has taken positive actions which 
were discriminatory against blacks. As previously stated, 
it mandated separate schools for blacks and whites; it 
established separate institutions for teaching black school 
teachers, § 10632 R.S. Mo. (1939) ; it established and 
maintained a separate institution for higher education 
for blacks at Lincoln University, § 175.050 R.S. Mo. 
(1949) ; it provided that school boards in any town, city 
or consolidated school district could establish separate 
libraries, public parks and playgrounds for blacks and 
whites, § 165.327, R.S. Mo. (1959); it made it a crime 
for a person of % Negro blood to marry a white person, 
§ 563.240 R.S. Mo. (1959) ; and its courts enforced 
racially restrictive covenants. These actions had the ef­
fect of placing the State’s imprimatur on racial discrimi­
nation. It created an atmospshere in which the private 
white individuals could justify their bias and prejudice 
against blacks. A large percentage of whites do not want 
blacks to reside in their neighborhood and a large per­
centage of blacks do not want to reside within a neighbor­
hood in which they are not wanted. This has and con­
tinues to have a significant effect on the dual housing 
market in the Kansas City area. Thus, the Court finds 
that the State has encouraged racial discrimination by 
private individuals in the real estate, banking and in­
surance industries. Liability on the part of the State 
might be a very close question if it hinged solely on its



236a

encouragement of private discrimination. There is a 
much more salient reason for finding liability on the part 
of the State.

The KCMSD did not mandate separate schools for 
blacks and whites. The people of the State of Missouri 
through constitutional provision and the General Assem­
bly through legislative enactments mandated that all 
schools for blacks and whites in this State were to be 
separate. There is no room for doubt but what the State 
of Missouri intentionally created the dual school system. 
Under Brown 7, Brown v. Board of Education, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), this constituted 
a violation of the 14th amendment of the United States 
Constitution and no further proof of segregative intent 
is required. Brown v. Board of Education, 349 U.S. 294, 
75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II),  Swann 
v. Charlotte-Mechlenburg Bd. of Education, 402 U.S. 1, 
91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. School 
Board of New Kent Co., 391 U.S. 430, 88 S.Ct. 1689, 20 
L.Ed.2d 716 (1968) ; Liddell v. State of Missouri, 731 
F.2d 1294 (8th Cir. 1984) and other cases decided by 
the Supreme Court and the various circuit courts clearly 
demonstrate that having created a dual system, the State 
and the KCMSD had and continue to have an obligation 
to disestablish that system. In Keyes v. School District 
No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 
L.Ed.2d 548 (1973), the Court stated:

[W ]e have held that where plaintiffs prove that a 
current condition of segregated schooling exists 
within a school district where a dual system was 
compelled or authorized by statute at the time of 
our decision in Brown v. Board of Education, 347 
U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (1954)
(Brown I ), the State automatically assumes an af­
firmative duty To effectuate a transition to a racially 
nondiseriminatory school system.’ Brown v. Board



237a

of Education, 349 U.S. 294, 301 [75 S.Ct. 753, 756, 
99L.Ed. 1083] (1955) {Brown I I ) .

Keyes, 413 U.S. at 200, 93 S.Ct. at 2693. In Dayton 
Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 
2971, 61 L.Ed.2d 720 (1979), the Court stated:

But the measure of the post-Brown I conduct, of a 
school board under an unsatisfied duty to liquidate a 
dual system is the effectiveness, not the purpose, of 
the actions in decreasing or increasing the segrega­
tion caused by the dual system.

Dasyton, 443 U.S. at 538, 99 S.Ct. at 2979. Having found 
that there are still vestiges of the State’s dual school 
system still lingering in the KCMSD, the obligations of 
the KCMSD and the State have not been met.

The State argues that under the Constitution of the 
State of Missouri and the statutes of the State, it was 
unable to take any affirmative action to dismantle the 
KCMSD’s dual school system. In the general memoran­
dum and order filed June 5, 1984, in discussing the local 
autonomy of public schools within the State of Missouri, 
it was stated at page 8: “ The State of Missouri does 
not have the power to require a merger or consolidation 
of school districts.”  This statement by the Court was in­
tended to reflect that the state statutes had vested that 
power in the school districts and had not retained it for 
the State. It is the conclusion of this Court that none of 
the provisions of the Constitution nor statutes of the 
State of Missouri would have prevented the State of Mis­
souri from fulfilling its affirmative duty of disestablish­
ing a dual school system subsequent to 1954. Article 9, 
§ 1(a) of the Missouri Constitution requires the General 
Assembly to establish and maintain free public schools; 
Article 9, § 1(b) provides that schools for any contiguous 
territory may be established by law. Article 3, § 40(20) 
provides that the General Assembly shall not pass any 
local or special law “ creating new townships or changing



238a
the boundaries of townships or school districts.”  There 
is nothing in the State Constitution which would prevent 
the General Assembly from enacting legislation which 
would give the State sole authority to establish school dis­
tricts as it sees fit. If such legislation is the only means 
by which the State can fulfill its 14th amendment obliga­
tions, then such legislation is mandatory. It is clear that 
school districts in the State exist pursuant to the State 
Constitution and it is also clear that the General Assem­
bly for the State of Missouri may abolish or create dis­
tricts subject only to the requirement that the territory 
within the district must be contiguous and subject only 
to the provision that such may not be done except by 
general legislation as opposed to special legislation. The 
General Assembly established the school districts and if 
it deems necessary, can change them even though to do 
so might require amendments of some of the present 
statutes. In this regard the General Assembly has au­
thority which this Court does not have. The teachings of 
Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 
L.Ed.2d 1069, as analyzed in Hills v. Geautreaux, 425 
U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976) were to 
the effect that a federal court had no power to restruc­
ture the operation of local and state government entities 
absent a constitutional violation by those entities. Article 
1, § 3 of the Missouri Constitution provides that the peo­
ple of the State have the inherent, sole and exclusive 
right to alter or reform government whenever they deem 
it necessary. Article 1, § 4 of the Constitution acknowl­
edges that it is a free and independent state subject only 
to the Constitution of the United States. Thus it recog­
nizes that its laws must conform to the United States 
Constitution. As stated in Milliken I, “no state law is 
above the Constitution.”

In Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct, 1401, 
1410, 3 L.Ed.2d 5 (1958), it was stated :

It is, of course, quite true that the responsibility 
for public education is primarily the concern of the



239a

States, but it is equally true that such responsibili­
ties, like all other state activity, must be exercised 
consistently with federal constitutional requirements 
as they apply to state action. The Constitution cre­
ated a government dedicated to equal justice under 
law. The Fourteenth Amendment embodied and em­
phasized that ideal. State support of segregated 
schools through any arrangement, management, 
funds, or property cannot be squared with the 
Amendment’s command that no State shall deny to 
any person within its jurisdiction the equal protec­
tion of the laws.

In Board of Education v. Swann, 402 U.S. 43, 45, 91 
S.Ct. 1284, 1286, 28 L,Ed.2d 586 (1971), the Court 
stated:

fI] f  a state-imposed limitation on a school author­
ity’s discretion operates to inhibit or obstruct the 
operation of a unitary school system or impede the 
disestablishing of a dual system, it must fall; state 
policy must give way when it operates to hinder 
vindication of federal constitutional guarantees.

Even if the hands of state administrators such as the 
Commissioner of Education, the State Board of Educa­
tion, or other agencies were “tied” by state statutes, the 
State as a collective entity cannot defend its failure to 
affirmatively act to eliminate the structure and effects of 
its past dual system on the basis of restrictive state law. 
The State executive and its agencies as well as the State’s 
General Assembly had and continue to have the constitu­
tional obligation to affirmatively dismantle any system of 
de jure segregation, root and branch. This obligation is 
parallel with the obligation of the KCMSD. This case is 
before this Court simply because the KCMSD and the 
State have defaulted in their obligation to uphold the 
Constitution.



240a

Having found that there are still vestiges of the dual 
school system in the KCMSD, the Court finds the issues 
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. Since these de­
fendants have failed to comply with their constitutional 
obligations, this Court not only has the power but the 
duty to enter a decree which will correct the continuing 
effects of past discrimination as well as bar discrimina­
tion against blacks in the future. Louisiana v. United 
States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 
(1965).

The issues of liability and remedy have previously 
been bifurcated by this Court. Therefore at this time 
the Court makes no determination as to what remedy 
should be decreed nor a determination at this point 
whether or not the case should be opened for additional 
discovery and later a trial on the remedy issue. The 
Court is of the opinion that the initial step which should 
be taken in regard to remedy would be the preparation 
and submission of a plan which might obtain the ap­
proval of the parties involved as well as the approval 
of this Court.

Since the State under its Constitution has the duty to 
establish and maintain free public schools, it has the 
primary responsibility for insuring that the public edu­
cation systems in the State comport with the United 
States Constitution. The State Board of Education and 
the KCMSD Board of Education have much more exper­
tise than this Court in the operation and management 
of public schools within this State. The KCMSD Board 
more clearly understands the facilities which are avail­
able within its system, the extent to which some school 
facilities are overcrowded while others are not or may 
even be vacant. It understands the problems of the trans­
portation of students to and from the various school 
facilities and it more fully understands the administrative



241a

problems with which it is faced than this Court does; 
therefore, the State Board of Education and the KCMSD 
Board of Education are hereby directed to prepare a 
plan which would establish a unitary school system within 
the KCMSD. In doing so, they should concentrate on the 
schools in which the student enrollment is more than 
90% black. They should also, to the extent possible, see 
that students are permitted to attend a school nearest the 
student’s home so long as by so doing it does not deter 
from properly integrating the students in the KCMSD. 
They should also bear in mind cost factors as well as 
the purpose of the public schools in this state, that is to 
furnish quality education to its students. While the Court 
does not intend to limit matters which should be con­
sidered to those enumerated above, it does suggest that 
the above are some considerations which should be kept 
in mind. It is also the Court’s opinion that much of the 
cost for preparing and implementing a plan to dismantle 
the vestiges of a dual school system in the KCMSD should 
be borne by the State. The Court would invite the two 
Boards to follow the teachings of the United States Su­
preme Court in regard to appropriate remedies as set 
forth in Keyes v. School District No. 1, Denver, Colo., 
supra-. Green v. School Board of Neiv Kent Co., supra-, 
and Swann v. Charlotte-Mechlenburg Bd. of Education, 
supra. The Court further directs that such a plan be 
submitted to the Court within ninety 190) days from 
the date of this order. Plaintiffs will be given thirty 
days after the plan is filed in which to file any written 
objections to it. Upon the submission of such a plan, 
it may be determined at that time whether or not an 
additional hearing should be held and evidence received 
in regard to a remedy.

Accordingly, it is hereby
ORDERED that the Clerk is directed to enter judg­

ment on the issue of liability in favor of HUD and



242a

against plaintiffs; in favor of plaintiffs and against the 
State defendants and the KCMSD; and in favor of the 
KCMSD and against the State defendants on its cross- 
claim ; and it is further

ORDERED that within ninety (90) days from the 
date of this order, the State Board of Education and the 
KCMSD Board of Education are directed to submit a 
proposed plan which will have the effect of removing the 
vestiges of the dual school system as it presently exists 
in the KCMSD; and it is further

ORDERED that plaintiffs shall have thirty (30) days 
after the proposed plan is filed in which to file objections 
to it.