Jenkins v. Missouri Reply and Response Brief of Kalima Jenkins

    Unitei States Court of Appeals
FOR THE EIGHTH CIRCUIT

IN THE

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM 
No. 85-2077WM

KALIMA JENKINS, et al,
Appellants and Cross-Appellees,

vs.

STATE OF MISSOURI, et al,
Appellees and Cross-Appellants.

Appeals From the United States District Court for the 
Western District of Missouri, Western Division 

the Honorable Russell G. Clark, Judge

REPLY AND RESPONSE BRIEF OF KALIMA JENKINS, et al., 
Plaintiffs/Appellants/Cross-Appellees

Arthur A. Benson II 
Benson & McKay 

911 Main Street 
1430 Commerce Tower 
Kansas City, MO 64105 
816/842-7603

Julius LeVonne Chambers 
James M. Nabrit III 
James S. Liebman 
Theodore M. Shaw 

99 Hudson Street,
16th Floor

New York, NY 10013 
212/219-1900

Attorneys for Kalima Jenkins, etal.

R. C. Printing Service, Inc., 1134 W. 152 Hwy„ Liberty, Mo 64068 (816) 781-6112



lEmteir States (SLa art nf Appeals
FOR THE EIGHTH CIRCUIT

IN THE

No. 85-1765WM 
No. 85-1949WM 
No. 85-1974WM 
No. 85-2077WM

KALIMA JENKINS, et al,
Appellants and Cross-Appellees,

vs.

STATE OF MISSOURI, et al,
Appellees and Cross-Appellants.

Appeals From the United States District Court for the 
Western District of Missouri, Western Division 

the Honorable Russell G. Clark, Judge

REPLY AND RESPONSE BRIEF OF KALIMA JENKINS, et al., 
Plaintiffs/Appellants/CrossAppellees

Arthur A. Benson II 
Benson & McKay 

911 Main Street 
1430 Commerce Tower 
Kansas City, MO 64105 
816/842-7603

Julius LeVonne Chambers 
James M. Nabrit III 
James S. Liebman 
Theodore M. Shaw 

99 Hudson Street,
16th Floor

New York, NY 10013 
212/219-1900

Attorneys for Kalima Jenkins, etal.



TABLE OF CONTENTS

LIST OF PARTIES AND OF THE ABBRE­
VIATIONS USED IN THIS AND PLAINTIFFS’
OPENING B R IE F ................................................................. (iii)
TABLE OF AUTHORITIES.............................................  (vi)

INTRODUCTION, SUMMARY, AND STATEMENT 
OF THE REMAINING CONTESTED ISSUES ...........  1
STATEMENT OF UNCONTESTED FACTS.................  3

ARGUM ENT.......................................................................  13

I. BECAUSE THE DISTRICT COURT’S FINDINGS 
ESTABLISH THAT THE STATE AND OTHER 
PARTIES COMMITTED INTERDISTRICT VIO­
LATIONS WITH SIGNIFICANT CONTINUING 
METROPOLITAN-WIDE EFFECTS, THE 
DISTRICT COURT ERRED IN DENYING 
INTERDISTRICT RELIEF BASED ON THE 
SSDS’ ALLEGED INNOCENCE OF THOSE
VIOLATIONS ...............................................................  13

II. IGNORING THE “SIGNIFICANT CONTINU­
ING EFFECTS” FINDINGS IN THE DISTRICT 
COURT’S SEPTEMBER 1984 JUDGMENT 
ON LIABILITY AFFORDS NO BASIS FOR 
AFFIRMANCE..............................................................  20

III. THE INTRADISTRICT REMEDY ORDERED BE­
LOW FALLS SHORT OF THE SCOPE OF THE 
VIOLATION AND SHOULD BE EXTENDED,
NOT SCALED B A C K .................................................. 30

CONCLUSION 33

ADDENDUM 34

(i)



(ii)



LIST OF PARTIES AND OF THE ABBREVIATIONS 
USED IN THIS AND PLAINTIFFS’ 

OPENING BRIEF*
I. P lain tiffs, K alim a Jenk ins, et al., are appellan ts in 

85-1765WM and 85-1949WM and appellees in 85-1974WM 
and 85-2077WM

II. Defendant-Appellees in 85-1765WM and 85-1949WM:
Abbreviation Party
BS Blue Springs School District
CE Center School District
FO Fort Osage School District
GV Grandview School District
HM Hickman Mills School District
HUD United States Department of 

Housing and Urban Development
IN Independence School District
LI Liberty School District
LS Lee’s Summit School District
NK North Kansas City School 

District
PH Park Hill School District
RT Raytown School District
SSDs The 11 suburban school districts 

listed above
St State of Missouri (also cross­

appellant in 85-1974WM)
III. Intervenor-Appellee in 85-1765WM and 85-1949WM; Ap­

pellant in 85-2077WM:
AFT Kansas City Missouri Federa­

tion of Teachers, AFT Local 691
*When these abbreviations are set forth in parentheses 

following a citation (a g. , “T1000 (C E, HM)’ ’), they indicate that 
the cited portion of the record illustrates the liability of the 
referenced appellees. Predecessor districts to whose rights and 
liabilities the SSDs succeeded via reorganizations are re­
ferred to using the  abbreviation for the  d istric ts  which 
absorbed them.

(iii)



IV. Defendant-Appellant in 85-1765WM and 85-1949WM; Ap
pellee in 85-1974WM and 85-2077WM:
KCM Kansas City, Missouri School 

District
V. Record and Brief Citation Forms:

A Joint Addendum of Plain- 
tiffs-Appellants and KCM

T Trial transcript
X Trial exhibit
Doe D Deposition of Doe
___Brf Opening brief of indicated party
P Brf Plaintiffs’ opening brief

VI. Other Abbreviations:
HAKC Housing Authority of 

Kansas City
LCRA Land Clearance for Redevelop­

ment Authority
MDHT Missouri Departm ent of 

Highways and Transportation
MHDC Missouri Housing Development 

Commission
VII. Short Form Case Citations:

The short form case citations a t P Brf ix-x are also 
used in this brief; in addition, the following short forms
are used here:
[Armour] Armour v. Nix, No. 16708 (N.D. 

Ga 1979), affcL, 446 U.S. 931 
(1980)

[Bronson] Bronson v. Board o f Education, 
578 F. Supp. 1091 (S.D. Ohio 1984)

[Emporia] Wright v. Council o f the City of 
Emporia, 407 U.S. 451 (1972)

[Goldsboro] Goldsboro City Board o f Educa­
tion v. Wayne County Board of 
Education, 745 F.2d 324 (4th 
Cir. 1984)

(iv)



[Lee]

[Louisville]

[Milliken II] 

[Richmond]

[Scotland Neck] 

[Tasby]

[Taylor]

[Texas]

Newhurg Area Council, Inc. v. 
Board o f Education, 510 F.2d 
1358 (6th Cir. 1974)
Milliken v. Bradley, 433 U.S. 267 
(1977)
Bradley v. School Board, 462 F.2d 
1058 (1972), af fd by an equally 
divided court, 412 U.S. 92 (1973) 
United States v. Scotland Neck, 
407 U.S. 484 (1972)
Tasby v. Estes, 572 F.2d 1010 (5th 
Cir. 1978)
Taylor v. Ouachita Parish School 
Board, 648 F.2d 959 (5th Cir. 
1981)
United States v. Texas, 321 F. 
Supp. 1043 (E.D. Tex. 1970), affd,  
447 F.2d 441 (5th Cir. 1971)

Lee v. Lee County Board o f Educa­
tion, 639 F.2d 1243 (5th Cir. 1981)

(v)



TABLE OF AUTHORITIES

Cases

Adams v. United States, 620 F.2d 1277 (8th Cir. 1977)
[Adams]...........................................   10,14,17,31

Akron  v. State Board, 490 F.2d 1285 (6th Cir. 1974) . . .  .25
Anderson v. City o f Bessemer,_____U.S._____,

L.Ed.2d 518 (1985). . ..........................................................23
Arlington Heights v. Metropolitan Housing Devel. Corp.,

429 U.S. 252 (1977)......................................................... 8,27
Armour x. Nix, No. 16708 (N.D. Ga. 1979), aff’d,

446 U.S. 931 (1980) [Armour] ..........................  15
Askew v. United States, 680 F.2d 1206 (8th Cir. 1982) . . .  23 
Bell v. Board o f Education, 683 F.2d 963

(6th Cir. 1 9 8 2 ).................................................................... 14
Berry v. School Dist., 564 F. Supp. 617 (W.D. Mich.), affd,

698 F.2d 813 (6th Cir. 1 9 8 3 )............................................ 25
Board o f Directors v. City o f Milwaukee, 408 F. Supp. 765

(E.D. Wis. 1976)...............................................   15
Bose Corp v. Consumer’s Union,_ ___ U.S._____ ,

80 L.Ed.2d 502 (1984) .................................................22,23
Bradley v. School Board, 462 F.2d 1058 (1972),

aff’d by an equally divided Court, 412 U.S. 92 (1973)
[Richmond] ......................................................  15

Bronson v. Board o f Education, 578 F. Supp. 1091 (1984)
[Bronson]................................................................. 15

Brown v. Board o f Education, 347 U.S. 483 (1954)
[Brown I] ......................................................................passim

Brown v. Board o f Education, 349 U.S. 753 (1955)
[Brown II] ...............................................................................9

Castaneda v. Partida, 430 U.S. 482 (1977) .........................27
Client’s Council v. Pierce, 711 F.2d 1406

(8th Cir. 1983)................................................................11,12
Columbus Board o f Education v. Penick, 443 U.S. 449

(1979) [Columbus]............................................................. 26
Craik v. Minnesota State University Board, 731 F.2d 465 

(8th Cir. 1984)................................................................24,27

(vi)



Cunningham  v. Grayson, 541 F.2d 538 (6th Cir. 1976)
[Louisville I I ] ...................................................................... 27

Days v. Matthews, 530 F.2d 1083 (D.C. Cir. 1976).............28
Dayton Board o f Education, v. Brinkman, 443 U.S. 528

(1979) [Dayton I I \ ....................................8,9,17,18,23,26,31
Evans v. Buchanan, 393 F. Supp. 428 (D. Del.) affd,  423

U.S. 963 (1975) [Wilmington I \ .............. 14,15,16,17,22,25
Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976), affd,

555 F.2d 373 (3d Cir. 1977) [Wilmington I I \ .................. 16
Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978)

[Wilmington IV ] ........ ..............................................27,28,29
Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976)........................................................... 28
Goldsboro City Board of Education v. Wayne County Board 

o f Education, 745 F.2d 324 (4th Cir. 1984)
[Goldsboro]...........................................................................15

Green v. County School Board, 391 U.S. 430 (1968)............. 9
Haney v. County Board o f Education, 410 F.2d 920

(8th Cir. 1969) [Haney]......................................16,17,25,27
Hart v. Community School Board, 383 F. Supp. 699

(E.D. N.Y. 1974) [Hart]......................................................12
Hazlewood School District v. United States, 433 U.S. 299

(1977)................................................................................... 27
Hills v. Gautreaux, 425 U.S. 284 (1977)

[Gautreaux] ..............................................................14,15,17
Hoots v. Pennsylvania, 510 F. Supp. 615 (W.D. Pa. 1981)

affd,  672 F,2d 1107 (3d Cir. 1982) ..................................24
Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir. 1982)

[Hoots]........................................   22,27
In re Martin, 761 F.2d 472 (8th Cir. 1 9 8 5 )........................ 23
InternT Brotherhood o f Teamsters v. United States,

431 U.S. 324 (1977).......................................................27,28
Jenkins v. State o f Missouri, 593 F. Supp. 1485

(W.D. Mo. 1984) .........................................................passim
Kelley v. Southern Pacific, 419 U.S. 318 (1974)....................23
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)

[Keyes]....................................................................8,15,17,27

(vii)



Liddell v. Board o f Education, 731 F.2d 1294
(8th Cir. 1984) (en banc) [Liddell V II] ........................9,32

Mathews v. Mills, 178 N.W.2d 841 (Minn. 1970)............... 28
Milliken v. Bradley, 418 U.S. 717 (1974) [Milliken]. .passim
Milliken v. Bradley, 433 U.S. 267 (1977) [Milliken II]___ 13
Mitchell v. Volkswagenwerk, 669 F.2d 1199

(8th Cir. 1 9 8 2 ).................................................................... 28
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976)............... 3
Morrilton School Dist. No. 32 v. United States,

606 F.2d 222 (8th Cir. 1979) (en banc)
[Morrilton]..................................1,13,14,16,17,18,23,27,30

National Black Police Ass’n v. Velde, 712 F.2d 569
(D.C. Cir. 1983)...........................................   11

Newburg Area Council v. Board of Education, 510 F.2d
1358 (6th Cir. 1974) [Louisville]................. .. . 16,17,22,25

Newburg Area Council v. Board o f Education, 489 F.2d 925
(6th Cir. 1973) [Louisville I] .............................................16

Northcross v. Board o f Education, 312 F. Supp. 1150
(W.D. Tenn. 1970)................................................................25

Norwood v. Harrison, 413 U.S. 455 (1 9 7 3 ).........................11
Penick v. Columbus, 429 F. Supp. 229, 266 (S.D. Ohio 1977), 

aff’d, 583 F.2d 787 (6th Cir. 1978), affd,  443 U.S. 449
(1979)....................................................................................14

Raney v. Board o f Education, 391 U.S. 443 (1968)...........32
Shelley v. Kraemer, 334 U.S. 1 (1948) . ............. ...................6
Swann  v. Charlotte-Mecklenburg Board o f Education, 402

U.S. 1 (1971) [Swann] ................................1,6,8,9,14,27,32
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) [Tasby] . . . .  15 
Taylor v. Ouachita Parish School Board, 648 F.2d 959

(5th Cir. 1981) [Taylor] ..................................................... 15
United States v. Board o f School Comm’rs, 573 F.2d 400

(7th Cir. 1980) [Indianapolis]........................... 14,16,17,18
United States v. Board o f School Comm’rs, 637 F.2d 1101 

(7th Cir. 1978) [Indianapolis 77]. . ................... 14,16,17,27

Lee v. Lee County Board o f Education, 639 F.2d 1243
(5th Cir. 1981) [Lee]...................................................15,17,27

(viii)



United States v. Missouri, 515 F.2d 1365 (8th Cir. 1975)
[.Missouri I I I ] .......................................................... 16,17,27

United States v. School District, 521 F.2d 530
(8th Cir. 1975) [Omaha].......................................... 14,17,25

United States v. Scotland Neck, 407 U.S. 484 (1972)
[Scotland Neck]..............................................................16,18

United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970),
aff’d, 447 F.2d 441 (5th Cir. 1971) [Texas]............... 16,17

Vaughn v. Board o f Education, 758 F.2d 983
(4th Cir. 1 9 8 5 )....................................................................27

Washington v. Davis, 426 U.S. 229 (1976) .................... 11,18
Williams v. Anderson, 562 F.2d 1081

(8th Cir. 1977)................................................................27,28
Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972) 

[Em poria] ......................................................................16,18

Statutes and Rules

Mo.Rev.Stat. §165.263 (1959)
Rule 52(a), Federal Rules of Civil Procedure................22,23

Other Authorities

Am. Jur. 1st Evidence §207 ...................................................27
29 Am Jr. 2d Evidence §237 ................................................ 27
Annot., Presumption o f Continuance, 7 A.L.R.3d 1303

(1966) ..................................................   27
Restatement (second) of Torts §§433(BX2), ( 3 ) .................. 27

(ix)



INTRODUCTION, SUMMARY, AND STATEMENT OF 
THE REMAINING CONTESTED ISSUES

In its September 1984 order on liability, the district court 
expressly found that, by discriminatorily locating schools for 
blacks in the KCM only, while distributing schools for whites 
throughout the metropolitan area, the State of Missouri for 
a century before Brown influenced the patterns of residential 
development of the metropolitan area and had an important 
impact on the composition of inner city neighborhoods. 593 
F. Supp. at 1490-1. The State’s unconstitutional acts, the district 
court determined, continue to have a significant effect in the 
Kansas City area, where the intensity of residential, hence 
school, segregation is demonstrated by the fact the average 
black family in the KCM lives in a census tract th a t is 85% 
black while the average white family in the SSDs lives in a 
census tract th a t is 99% white. 593 F. Supp. at 1503, 1491, 
citing T14739-45.

Together, these and other findings in the September 1984 
opinion compel the conclusion th a t the State committed an 
interdistrict school-segregation violation with significant con­
tinuing effects throughout the metropolitan area.1 Under the 
controlling standards in Milliken v. Bradley, 418 U.S. 717, 
744-45 (1974), and Morrilton School Dist, No. 32 v. United 
States, 606 F.2d 222, 226- 29 (8th Cir. 1979) (en banc), these 

findings place the “federal courts [under] a duty to prescribe 
appropriate remedies.” Milliken, 418 U.S. at 744. Because “ ‘the 
nature of the violation determines the scope of the remedy,’ ” 
the only appropriate relief here is interdistrict. Id. at 738, 
quoting Swann, 402 U.S. a t 16.

The district court did not order interdistrict relief. Rather, 
having acknowledged the right of black children to attend 
school in the SSDs, the State’s violation of th a t right by its 
century-long exclusion of blacks from suburban schools, the

‘593 F. Supp. at 1490. By metropolitan area, plaintiffs mean the region 
served by the 12 defendant school districts. Where only county-wide data 
is available, “the 3-county area” of Clay, Jackson and Platte Counties is 
used as a close approximation of the metropolitan region, given that the 
enrollments of the 12 defendant districts make up 92% of the school children 
in the 3-county area (X1362A). Accord, eg. 6/5/84 Opn at 15-18.

1



attendant and substantial continuing harm  worked by the 
relegation of black children to the “inferior education in­
digenous o f’ KCM’s segregated schools, and the State’s un­
satisfied affirmative duty to undo those harms on an interdistrict 
basis if necessary, the district court nonetheless interpreted 
Milliken to render it powerless to remedy th a t violation and 
its harms, so long as the SSDs were not themselves entirely 
to blame.2

The district court erred. Milliken nowhere stops the scope 
of permissible relief short of the scope of the violation and the 
harm  it causes. Rather, Milliken requires th a t violational and 
remedial scope coincide. Nor may this Court, as appellees in­
sist, avoid th a t requirement by simply ignoring the district 
court’s September 1984 findings which so clearly invoke it.

In its present posture, therefore, the appeals in Nos. 85-1765 
and 85-1949 present only two contested issues:

1. Whether, having found facts in its September 1984 final 
liability order unequivocally establishing th a t the State and 
other parties committed interdistrict constitutional violations 
which continue to have significantly harmful metropolitan­
wide effects, the district court erred in denying interdistrict 
relief based on the SSDs’ alleged innocence of the State’s and 
other parties’ violations.

2. Whether, in measuring the effects of the violations found 
below, this Court should ignore the district court’s “significant 
continuing effects” findings in its September 1984 final order 
on liability.

2See 593 F. Supp. at 1488,1490,1503; 1504-5 (although the State “inten­
tionally created the dual school system” and thereby caused some blacks 
to “moveU” out of the SSDs and those and other in-migrating blacks to “con- 
centrate”in the KCM, although “each” SSD “participated in” that viola­
tion, although the “significant” segregative and educationally harmful ef­
fects of these violations “continue” today “in the Kansas City area,” and 
although the State is under an “unsatisfied duty” to undo the violations’ 
harmful effects—including, if  necessary, by “abolish[ing] or creating]. . . [or] 
changing]’ ’ boundaries or attendance patterns among the KCM and SSDs— 
“a federal court” “ha[s] no” similar “power to restructure the operation” 
of the SSDs unless each, by itself, can be said to have “acted in a racially 
discriminatory manner that substantially caused racial segregation in 
another district”).

2



An additional issue remains in 85-1974:
3. W hether the Court should scale back the district court’s 

in tr a d is tr ic t  com pensatory  rem edy for the  extensive 
educational-deprivation effects found below, or whether it 
should extend the remedy to include desegregation relief.3

STATEMENT OF UNCONTESTED FACTS
Appellees do not challenge the district court’s September 

1984 fact determinations; for the most part, they concede the 
court’s findings.

The d is tr ic t court found th a t  “ M issouri m andated  
segregated schools for black and white children before 1954.” 
593 F. Supp. a t 1490. Because Missouri’s dual system did not 
provide for black schools in a large proportion of its frequently 
miniscule school districts, the State statutorily authorized and 
provided funding for districts “with an insufficient number 
of black students” to make “interdistrict arrangem ents to 
educate their children.” Id. at 1490; see T16691-2, adopted in id.

“Undeniably,” some blacks moved out of districts which did 
not m aintain schools for blacks “to districts, including the 
KCM, th a t provided black schools.” 593 F. Supp. at 1490.4 
“Before 1954, access to schools was one of many reasons some 
blacks chose to move into the KCM.” Id. Although “[economics 
and job opportunities were also major factors in black migra­

3Plaintiffs adopt KCM’s response to Part II.B.1-4 of the State’s Brief in 
85-1974. The issue AFT raises in No. 85-2077 is disposed of by Morgan v. 
Kerrigan, 530 F.2d 401 (1st Cir. 1976), cited, AFT Brf 13-14. The First Cir­
cuit’s “no abuse of discretion’ ’ affirmance there of the appointment of a quasi­
judicial special master, notwithstanding his employment by the institution  
which also employed the individual plaintiffs’ counsel and notwithstanding 
his membership in the plaintiff organization, surely requires affirmance 
here of the appointment of Dr. Eubanks (whose pre-eminent qualifi cations 
are unchallenged) to a non-judicial position on a lay monitoring committee 
after his severance of ties with any party.

4X40 shows 800 “examples” of pre-Broum metropolitan-area transfers, over 
250 of which involve actual residential relocations, most of them moves to 
KCM. See St Brf 18 n.21. Appellees do not dispute the uncontradicted ex­
pert testimony below that, because of their failure to keep records, these 
examples represent only a small proportion of the actual number of transfers. 
P Brf 10-1 & nn.21-2.

3



tion” to KCM, when “jobs would pull m igrants to the city, 
availability of schools would influence, more specifically, what 
housing choice would be made within the [13-school-district] 
city.” Id? Inevitably, therefore, “[rjegardless of their motiva­
tion for coming, once here, blacks settled in the inner city, or, 
the ‘principle black contiguous area’ ” where KCM’s all-black 
“segregated facilities with segregated staffs. . . were located.” 
Id. at 1491,1492,5 6 “As blacks moved or were bused to the schools 
in the area, whites moved out’ ’ to the suburbs. Id. at 1494, citing 
T8715-6, 8721-30, 9228-32, 9235 (tracing white flight from 
areas on the fringes of KCM’s “principal black contiguous area” 
to CE, GV, HM, IN, NK, LI and RT).7 8 *

“Each school district” defendant “participated in the dual 
system.” 593 F. Supp. at 1490.® Although “Missouri through 
constitutional provision a n d . . . legislative enactment m an­

5The largest metropolitan-area employers of blacks during World War II 
were located in Lake City (on the border between BS and FO and near IN, 
LS and RT), south Kansas City (in CE, near GV, HM, LS and RT), Fairfax 
(adjoining NK and PH) and North Kansas City (in NK, adjoining LI and 
PH). P Brf 13 n.25.

““Not surprisingly, Missouri defended with experts whose opinions declared 
[that] economics, accessibility to jobs, spacial barriers, personal preferences 
and private discrimination were the factors affecting black movement. . .  ,1b 
the extent those experts deny the influence of schools in housing patterns, 
particularly in the context o f  M issouri’s legacy, their opinions are rejected.” 
593 F. Supp. at 1491 (emphasis added). See id. at 1489 (rejecting State’s asser­
tion that “the Kansas City area is typical of cities nationwide that had no 
dual school system” and that “therefore, the racial patterns cannot be at­
tributed to the State’s past conduct”).

’“Missouri’s pre-1954 system of segregated schools had residential ef­
fects . . . both in pushing blacks out of large areas of the metropolitan area 
and in drawing them  into certain concentrated segregated areas, and alter­
nate effects on whites making them less likely to live in residential areas 
only served by nearby black schools’ ’. T14793 (Dr. Orfield), cited, 593 F. Supp. 
at 1490.

8A11 but possibly one of the SSDs had resident black school children before 
Brown. 6/5/84 Opn at 43, 45-6,49 (BS, FO, possibly CE); SSD Brf 8 n.4, LS 
Brf 5 n.7, NK Brf 2; PH Brf 3-4 & nn.8-9 (IN, LI, LS, NK, and PH); X49,
1830-40 (GV and RT records enumerating black students); X1784 (1948 let­
ter from State Department of Education directing “Hickman M ills . . . [to] 
provide school facilities to the colored pupils recently moved into the district” 
and not to make “the parents [pay] for part of the . . . cost”); P Brf 4 n.8.

4



dated th a t all schools for blacks and whites in the s ta te . . .  be 
separate,” and it statutorily authorized and paid for inter­
district transfers of blacks to achieve racial separation, the man­
ner in which blacks in the defendant districts were educated 
was “solely a m a tte r. . . within each local district’s discretion,” 
each “decidl ing] whether to educate their black students. . .  at 
schools within the district or to transfer them to . . . another 
district.” Id. a t 1503-4; 6/5/84 Opn at 11-2,15. The SSDs con­
cede their individual responsibility in this regard (SSD Brf 
39-40) and admit th a t they periodically operated their local 
systems for white children only and that blacks living or con­
sidering moving there had to go elsewhere (typically KCM) 
for school—usually at the black families’ own expense.9

The district court also found that a number of other “positive 
actions” by the State “which were discriminatory against 
blacks. . . .had the effect of placing the State’s im prim atur on 
racial discrimination and ha[d] and continue to have a signifi­
cant effect on the dual housing m arket in the Kansas City 
area.”10 The dual housing market “has its seeds in segregative

9SSD Brf 8 n.4, 9, IN Brf 2, LI Brf 4-5, LS Brf 6 (all 11 SSDs admit they 
periodically operated their systems or various grades for whites only and 
either never funded black transfers elsewhere or only began funding them  
in the years immediately before Brown). Accord, X1784,T155,318,423,480, 
760-4,883-9,946,1125,1134,1147,2227,3179, 3279 (black families in BS, 
FO, HM, IN, LS, LI, NK and PH denied local schools and forced to bear ex­
pense of their children’s transfers or moves to KCM or elsewhere). The follow­
ing chart depicts the frequency (percent of the 1901-54 period) with which 
the SSDs neither provided schools nor funded transfers for black high school 
students:

BS CE FO GV HM IN LS LI NK PH R T AVG.

No
School 100% 100% 100% 100% 100% 81% 100% 61% 100% 100% 100% 95%

No School 
or Funded 
Transfers

100% 100% 100% 100% 100% 62% 57% 60% 87% 87% 100% 87%

The SSDs provided no black elementary schools, on average, almost 80% 
of the tim e and provided no such schools or funded-transfers over 70% of 
the time.

10593 F. Supp. at 1503 (emphasis added). See id., St Brf 29 n.39 (State 
established separate institutions for black school teachers and higher educa­
tion, established separate libraries, public parks and playgrounds, made 
it a crime for a Negro to marry a white person, enforced racially restrictive

5



policies of the S ta te . . . [prim arily the m ass . . . enforcement 
of. . . racially restrictive covenants . . . and the way [they] in­
teracted with the segregated school system.” T12974-5, cited, 
593 F. Supp. at 1491. Such “covenants were intended to cause 
housing segregation” and “were enforced by the courts of 
Missouri until after Shelley v. Kraemer, 334 U.S. 1 (1948).” 593 
F. Supp. at 1497. “W ithout a doubt,” racial covenants “did 
have an effect on the market value of residential property,” and 
other actors in th a t market, including FHA, realtors, lenders, 
sellers and buyers “faced with this reality could not ignore it.” 
Id.11 As a result, FHA for years explicitly withheld financing 
from any suburban housing development which perm itted 
blacks to purchase there and as late as 1959 withheld financ­
ing from suburban developments with “incompatible social 
groups”. Id. As HUD essentially concedes, this intentionally 
discriminatory behavior by its predecessors violated the Fifth 
Amendment.12

The district court found “an inextricable connection be­
tween schools and housing” in the Kansas City area. Id. at 
1491. “ ‘People gravitate[d] toward school facilities, just as 
schools [were] located in response to the needs of the people.’ ” 
Id., quoting Swann, 402 U.S. a t 20-1. “[I]n the context of 
Missouri’s legacy” of dual schools, the court concluded, the

covenants, and suspended Kansas City-area realtor licenses based “on racial 
considerations”). See also P Brf 2-3 n.4.

“ The State’s discriminatory actions “created an atmosphere in which 
private white individuals could justify their bias . . . against blacks,” “en­
couraged racial discrimination by private individuals in the real estate, bank­
ing and insurance industries” —who “[tjhere is no doubt. . . ,  did engage 
in discriminatory practices such as redlining, steering and blockbusting” —■ 
and assured that a “large percentage of whites do not want blacks to reside 
in their neighborhood.” Id. at 1503, 1494. See also 6/5/84 Opn at 98.

12HUD Brf 21, 42; accord, St Brf 26 n.34. HUD does not defend the dis­
trict court’s conclusion that “[i]n view of [Missouri’s enforcement of restric­
tive covenants] the FHA did not act arbitrarily nor capriciously in relying 
on racial considerations in its subsidy;” and the agency concedes that the 
“arbitrary and capricious” standard the district court used is wholly inap­
plicable in this constitutional context. HUD Brf 29. See also id. 34-5 (HUD 
offered no pre-1959 evidence, and does not dispute the district court’s find­
ing (593 F. Supp. at 1497, citing X1305) that FHA’s “social compatibility” 
regime lasted at least until that year).

6



discriminatory ‘“ location of schools. . . influence^] the pat­
terns of residential development of [the] metropolitan area and 
ha[d] an  im portan t im pact on composition of inner city 
neighborhoods.’” 593 F. Supp. at 1491, quoting id.

That impact continues today. Analyzing 1980 census data 
concerning the areas served by the 12 defendant districts, the 
court found an “intensi ty of segregation. . . demonstrated by 
the fact th a t the average black family [in KCM] lives in a cen­
sus tract th a t is 85% black while the average white family [in 
the SSDs] lives in a census tract tha t is 99% white.” 593 F. Supp. 
a t 1491, citing T14739-45.

The court identified several additional continuing effects 
of the State’s and other parties’ dual school and housing viola­
tions, including tha t they: created a “general attitude of in­
feriority among blacks [which] produces low achievement [and] 
ultimately limits employment opportunities and causes pover­
ty;” depleted KCM’s tax base through white flight; rendered 
the district incapable since it became majority black of pass­
ing tax levies and bond proposals; and led over tim e to a 
precipitous decline in the district’s capacity to educate school 
children. 593 F. Supp. at 1492; 6/14/85 Opn at 4,10-12,17-19,36.

Having found the State responsible for continuing inter­
district school and housing segregation, the court deter­
mined th a t “the State as a collective entity . . . fail[ed] to af­
firmatively act to eliminate the structure and effects of its past 
dual system . . . .  The State executive and its agencies as well 
as the General Assembly had and continue to have the con­
stitutional obligation to affirmatively dismantle any system 
of de jure segregation, root and branch . . . .  This case is before 
this court simply because [those officials] have defaulted in th[is] 
obligation.” 593 F. Supp. at 1505.

Rejecting the State’s argument th a t “under the Constitu­
tion . . . and statutes of the State, it was unable to take any af­
firmative action to dismantle,” the district court found tha t 
‘‘[t]here is nothing in the State Constitution which would pre­
vent the General Assembly from enacting legislation which 
would give the State sole authority to establish school districts 
as it sees f i t . . . .It is clear th a t school districts in the State ex­
ist pursuant to the State Constitution and it is also clear tha t

7



the General Assembly. . . may abolish or create d istric ts . . . 
and, if it deems necessary, can change them.” Id. at 1504-5. 
“If such legislation is the only means by which the State can 
fulfill its 14th Amendment obligations, then such legislation 
is mandatory.” Id. at 1504, citing, e.g. , Dayton II, 443 U.S. at 
538; Keyes, 413 U.S. at 200; Board o f Education v. Swann, 402 
U.S. 43,45 (1971). The court further found tha t the State “could 
have at least partially m et” its affirmative duty by giving a 
number of its officials and agencies—it identifies the State 
Board of Education, Commissioner of Education, Missouri 
Department of Highways and Transportation (MDHT), and 
M issouri Housing Development Commission (MHDC)—
obligations and authority [to] aid[] in the disestablishment 

of the dual school system which it created.” 593 F. Supp at 
1503.

The State does not deny tha t it has never used its legislative 
power cfesegregatively, but instead: (1) enacted HB 171, per­
manently barring the otherwise automatic expansion of multi­
racial KCM into the very all-white suburban areas surround­
ing KCM (Le. , the outer three-fourths of the City of Kansas 
City) from which the State had for so long intentionally ex­
cluded blacks;13 (2) rejected the 1969 Spainhower legislation 
which admittedly would have “increaseld] integration” in the 
Kansas City area by realigning KCM and a number of SSDs;14 
and (3) defeated the 1979 Milwaukee Plan legislation to pro­
vide fiscal incentives for metropolitan-area school districts 
engaging in voluntary exchanges to achieve desegregation (St 
Brf 24). Nor does the State dispute th a t its administrative 
agencies have never effectively contributed to desegregation, 
but instead, through its Board and Department of Education, 
have (4) until this day abjured all responsibility for bringing 
about school desegregation, ceding the entire process to “local 
discretion,” (5) designated an entirely new set of segregated-

St Brf 23. The City of Kansas City is 27% black; 1985-86 preliminary 
enrollment figures show that the KCM is 69% black.

14St Brf 24. The State admits there was “race motivated opposition [to 
the Plan] by individual legislators.” Id. See Arlington Heights v. Metropolitan 
HousingDevel. C orp , 429 U.S. 252,265 (1977); P Brf 27-8 & n.55; Lawyers’ 
Committee Amicus Brf 1-7, 13-15.

8



in-fact “a re a ” vocational schools m ade up of KCM’s 
predominantly black uni-district school surrounded by a subur­
ban ring of all-white multi-district schools, (6) opposed the 
Milwaukee Plan proposal on financial grounds without pro­
posing any less expensive alternatives, and, through its 
assisted-housing (MHDC) and highway-displacement (MDHT) 
agencies, (7) operated virtually perfectly segregated systems 
(“blacks in the KCM/whites in the SSDs”) of state-subsidized 
multi-family housing and relocations. St Brf 22-4,28-9; see P 
Brf 18-20, 26-8 & nn.39, 50.

Below, as here, the State defended the segregative impact 
of its post-Brown behavior on “no in ten t” grounds which the 
district court held irrelevant: “There is no room for doubt but 
what the S ta te . . . intentionally created the dual school system. 
Under Brown I, this constituted a violation of the 14th Amend­
m ent. . . and no further proof of segregative intent is required. 
Brown II, Swann, Green, Liddell VII, and other cases. . . clearly 
demonstrate th a t the State had and continuefs] to have an 
obligation to d isestablish th a t sy stem . . . [and that] ‘the 
measure of the post-Brown I  conduct of a school board under 
an unsatisfied duty to liquidate a dual system is the effec­
tiveness, not the purpose, of the actions in decreasing or in­
creasing the segregation.’ ” 593 F. Supp. at 1504, quoting Day- 
ton II, 443 U.S. at 538 (other citations omitted).

Having likewise been found to have “participated in” the 
dual school system, the SSDs likewise do not dispute that, while 
cooperating  for num erous nondesegregative and an ti- 
desegregative purposes since 1954—including mutually sup­
porting passage of HB 171, jointly requesting State designa­
tion of a racially identifiable system of area vocational schools, 
and cooperatively lobbying against passage of the Spainhower 
and Milwaukee P lans—they successfully opposed every in­
itiative for cooperative interdistrict desegregation during the 
past 3 decades. As a result, six plans for integrative student 
exchanges (involving KCM and BS, CE, GV, HM, LS, NK, PH 
and RT), four proposals for desegregative school-district 
reorganization (opposed by BS, CE, GV, HM, IN, LS, NK, PH 
and RT), and th ree  proposals to increase m inority  and 
government-subsidized housing opportunities in the SSDs (in­

9



volving CE, GV, HM and NK) were defeated.15 Moreover, the 
SSDs persisted in racially identifying their districts with essen­
tially one-race faculties.16

The district court also found th a t KCM unconstitutionally 
“choseO” after Brown (via segregative realignm ent of attend­
ance zones and assignment of faculty, internal transfers, in­
tact busing, and uneven curricular distribution) to sacrifice 
integration in its eastern-half schools in order to preserve the 
all-white character of its western-half schools. 593 F. Supp. at 
1492-5; see P Brf 32-5 & nn.73-84. The court found th a t the 
effect of these actions, as blacks were bused to the eastern area, 
was th a t whites living there, saddled with the entire burden 
of KCM’s unconstitutionally piecemeal response to Brown, 
“moved out” to the suburbs.17

HUD does not dispute th a t it, too, owes an affirmative duty 
under the Constitution to undo any segregative effects on 
schools of its and its predecessors’ intentionally discriminatory 
behavior and not to engage in segregative-in-fact behavior in 
the meantime. Nor does HUD seriously dispute th a t it know­
ingly funded without objection both the LCRA’s and HAKC’s 
explicitly segregative relocation and public housing practices 
from 1953 until 1973 (in LCRA’s case) and 1976 (in HAKC’s 
case).18 Accordingly, even were HUD correct (it is not) th a t its

15SSD Brf 14 & n. 12,34-35 (SSDs (CE, NK, and RT) admittedly supported 
passage of HB 171); id. at 13-4 (SSDs (BS, CE, FO, GV, HM, IN, LI, LS, PH, 
and RT) admittedly sought designation of segregated-in-fact area vocational 
schools); id. at 12-15 (SSDs admittedly opposed other desegregation in­
itiatives (BS, CE, GV, HM, IN, LS, NK, PH, and RT).). See also T9091,9376-9; 
X627, 729, 2129, 2150, 2157, 2194, 3402; P Brf 29-31 & nn.60-7.

16E.g. , LS Brf 1-2, see X721G (SSDs’ admittedly failed to employ any (LS, 
FO, and RT-AVTS) or more than 2 or 3 (BS, LI, PH, and RT) black teachers 
at any tim e from 1900 to the present). See Adams, 620 F.2d at 1291 (“public 
perception. . . of racial identifiability . . . can be maintained . . .effective­
ly by a one-race faculty . . . and . . . often is a powerful factor in shap­
ing . . . residential patterns’’); P Brf 55 n.121.

17593 F. Supp. at 1494, citing T8715-30,9228-35 (white flight from KCM’s 
eastern area to CE, GV, HM, IN, LI, NK, and RT, “the primary reason” for 
which was that the fleeing fam ilies wanted “better schools” for their 
children).

18See X159 (A-98), 282B, 382, 1506, 1509, 1595, 1596XX (pp. 1-2, 8),

10



knowing funding of explicitly discriminatory local housing 
practices is not by itself a Fifth Amendment violation, the agen­
cy still effectively concedes its unconstitutional failure with 
regard to public housing and relocation to take affirmative steps 
to undo prior segregation.19 HUD further acknowledges the 
district court’s findings that, in operating its §235 single-family, 
§236 multi-family, and §8 rent-certificate subsidy programs 
during the 1960s, 1970s and 1980s, it did not direct its subsidy 
recipients to integrative locations and th a t its “m arketing” 
techniques for those programs “did not result i n . . . integra­
tion” but, rather, subsidized the movement of thousands oflow- 
income white families to the SSDs (eg. , BS (§235); IN, LI and 
LS (§8); and FO, BS, GV, LS, NK, and PH (§236)) and left the 
area’s thousands of federally assisted low-income black children 
almost exclusively confined to KCM. 593 F. Supp. at 1498,1500; 
HUD Brf 15, 17. See P Brf 20-4 & nn.40-1; X27B.

In sum, the district court found as fact, and appellees for 
the most part concede, that:

1596FFF, 1596JJJ, 1597 (pp. 34-5,140,146), 1611 (p. 9), 1641 ,1641F, 2659 
(pp. 2,27), 2671, 2817, 2914 (pp. 106, 369), 2917; Bridges D 53-4,140; Cade 
D 20 (HUD documents and testim onial admissions, summarized in P Brf 
19-20 & nn.37-39,24-26 & nn.45-7, repeatedly revealing HUD officials’ ex­
press recognition in the 1950s-70s that federal urban renewal/relocation 
and public housing funds were being spent by the local agencies to place 
white relocatees in the SSDs (notably BS, FO, GV, HM, IN, LS, NK, and RT), 
white public housing tenants in buildings expressly reserved “for whites,” 
and black relocatees and public housing tenants in locations and projects 
located exclusively in KCM and reserved exclusively “for negroes”).

19Under this Court’s decision in Client’s Council v. Pierce, 711 F.2d 1406 
(8th Cir. 1983), the facts of which are almost perfectly echoed here (P Brf 
61 n.132), HUD’s continuous knowledge and unbroken funding ofHAKC’s 
and LCRA’s self-consciously discriminatory policies from the 1950s to the 
1970s clearly establishes a constitutional violation. For it plainly manifests 
HUD’s unconstitutional “view” during the period “that segregation and 
discrimination were acceptable.” Id. at 1423. Client’s Council thus belies 
HUD’s suggestion that the “knowing funding” standard of Norwood v. 
Harrison, 413 U.S. 455 (1973), was overruled sub silentio in Washington v. 
Davis, 426 U.S. 229 (1976). Accord, National Black Police Ass’nv. Velde, 712 
F.2d 569,580 (D.C. Cir. 1983)(relying on Norwood for the “clearly established 
principle” of constitutional law that the federal government may not “fund 
local agencies known to be discriminating”).

Because the constitutional requirements on which plaintiffs rely eclipse

11



1. For nearly a century prior to Brown, the State and defen­
dant school districts explicitly racially segregated schools in 
the  K ansas C ity  m etro p o litan  a rea  on a cooperative, 
metropolitan-wide basis, providing local schools for whites but 
no or only interdistrict options for blacks.

2. Then and since, m e tro p o litan -a rea  re s id en tia l 
neighborhoods were racially segregated by explicit force of State 
judicial and administrative decree, FHA home-subsidy regula­
tions, and HUD-funded local public housing and relocation 
practices.

3. Since 1954, all defendants in this case—notwithstanding 
a capacity to undo existing segregation—have consistently 
refrained from doing so, instead enacting legislation to pre­
vent the otherwise-automatic consolidation of the City of Kan­
sas City’s numerous racially separate school districts (State, 
SSDs); successfully joining forces to defeat 3 decades’ worth 
of cooperative desegregation proposals (State, SSDs); creating 
a whole new set of racially identifiable vocational schools (State, 
SSDs, KCM); knowingly funding other agencies’ explicitly 
racially discriminatory activities (HUD); operating a number 
of segregated-in-fact area-wide assisted housing programs 
(State, HUD); and engaging in fresh violational behavior 
(KCM).

4. Those actions influenced the patterns of residential 
development in the metropolitan area, undeniably prompting 
some blacks to move to the KCM from the SSDs, impacting 
those and other in-migrant blacks in the KCM and causing 
its public schools to swell in black enrollment, precipitating 
and financi ally subsidizing white movement out of the KCM 
to the suburbs, and, overall, causing KCM’s white enrollment 
between 1958 and 1983 to reduce by 80% at the same time as

Title V i’s anti-discrimination and Title VIII’s affirmative duty requirements, 
there is no practical ’ need, as HUD recognizes, to resolve any procedural 
issues regarding the statutory claims. HUD Brf 28. Accord, Client’s Coun­
cil, supra, at 1424-5. Moreover, given the “inextricable connection” between 
schools and housing found below, HUD’s housing segregation manifestly 
injures plaintiff school children directly by segregating their schools, and 
accordingly establishes their standing to sue HUD. 593 F. Supp. at 1491. 
Accord, Hart, 383 F. Supp. at 747-51.

12



the SSDs white enrollment was increasing by 500%.20
5. These actions “continue!] to have a significant effect. . .  on 

the Kansas City area,” which remains today beset by an “in­
tensity of segregation.” Id. at 1490-95, 1503.

*  *  *  *

Although its September 1984 final order on liability found 
what amounts to a series of interdistrict violations with signifi­
cant continuing interdistrict effects, the district court denied 
interdistrict relief. 593 F. Supp. at 1490. It did so based entire­
ly on the legal proposition th a t segregative effects on the SSDs 
of the State’s constitutional violations in the SSDs are “irrele­
vant” and beyond constitutional repair unless those violations 
were also committed “by each SSD defendant.” 6/5/84 Opn at 
14, 102, reaffirmed, 593 F. Supp. a t 1490. This legal proposi­
tion is in error. It is based on a misreading of Milliken and was 
unanimously rejected by this Court en banc in the Morrilton 
case. Correction of this error forms the crux of this appeal.21

ARGUMENT
I. Because The District Court’s Findings Establish That 

The State And Other Parties Committed Interdistrict 
Violations With Significant Continuing Metropolitan­
wide Effects, The District Court Erred In Denying In­
terdistrict Relief Based On The SSDs’ Alleged In­
nocence Of Those Violations.
In this as in all school desegregation cases, “the nature of 

the desegregation remedy is determined by the nature and 
scope of the constitutional violation.” Milliken II, 433 U.S. at

20593 F. Supp. at 1490, 1491, 1494, 1495; X53, 53E, 53G.
21See SSD Brf at 33-4 n.31 (acknowledging that, in order to affirm the denial 

of interdistrict relief, this Court must overrule Morrilton).

The fact findings reprised above are undisputed and dispositive. Plain­
tiffs note, however, that the SSDs’ Brief contains numerous mischaracteriza- 
tions of the record which could mislead the Court about the facts. Several 
examples from only the first few pages of the SSDs’ brief are collected in 
an Addendum to this brief at p. 34 infra.

13



280; accord, Milliken, 418 U.S. a t 738, quoting Swann, 402 U.S. 
at 16.

The findings below clearly establish th a t the “nature” of 
the State’s violation was interdistrict: (i) Under Missouri’s 
dual school system, “districts with an insufficient number of 
blacks to maintain state-required separate schools” made state- 
authorized and state-funded “mferdistrict arrangem ents to 
educate those children.” (ii)The State-fostered “dual housing 
m arke t. . . impacted blacks in the KCM,” while leaving whites 
free to “ . . . locate throughout the Kansas City area.” (iii) The 
State’s violation continued when it defaulted its “constitutional 
obligation to dismantle” by failing to “establish,” “abolish,” 
“create,” or “change” “school districts” as necessary to fulfill 
its Fourteenth Amendment duty. 593 F. Supp. at 1490,1491, 
1497, 1504-5 (emphasis added).22

22The State’s violations were extended and aggravated by HUD’s: (i) in­
vidious metropolitan-wide segregation of its own single-family housing pro­
gram before 1959 (note 19 supra), (ii) unconstitutionally advertent funding 
of HAKC’s and LCRA’s blatantly segregative city-wide public housing and 
relocation practices between 1953 and the early 1970s (id.), and (iii) contin­
uing operation of its segregated-in-fact §235, §236 and §8 programs in viola­
tion of its affirmative duty to undo segregated housing. As Justice Stewart 
wrote in his Milliken concurrence, as this Court recognized in Morrilton (606 
F.2d at 228-9) and Adams, and as the Supreme Court and Third and Seventh 
Circuits held in Gautreaux, Wilmington I  and Indianapolis I  and II, the 
“racially discriminatory use o f . . . housing or zoning” in a metropolitan area, 
particularly in an area also suffering the effects of state-mandated dual 
schools, may require “a decree calling for transfers of pupils across district 
lines or for restructuring of district lines.” Milliken, 418 U.S. at 755 (Stewart, 
J., concurring); cases cited in P Brf 39 nn.94-5. Bell v. Board o f Education, 
683 F.2d 963 (6th Cir. 1982), cited SSD Brf at 44, is not to the contrary. In 
Bell, the State was not a party and no housing claims were made against 
it. The case accordingly is irrelevant to the question whether a state defen­
dant found liable for discriminatory interdistrict housing as well as school 
policies may be ordered to provide interdistrict relief.

The interdistrict “white flight” effects of KCM’s violations are a second 
supportive basis for interdistrict relief, under the rule in Milliken that such 
reliefis required when a “constitutional violation within one district. . . pro­
duces a significant segregative effect in another district.” Milliken, 418 U.S. 
at 745; accord, St Brf 12. The double-barreled effects of “state-sponsored 
white flight,” i.&, making “white schools whiter” as “black schools [become] 
blacker,” has frequently been a basis for both inter- and intra- district school 
desegregation relief. Omaha, 521 F.2d at 540 n.20; Penick v. Columbus, 429

14



The findings also clearly identify the scope--or “relevant 
geographic a re a ” 23- o f  the  S ta te ’s v io la tions as the  
‘ metropolitan” or “Kansas City area,” an area consistently 
defined below as that served by the 12 defendant school districts.
E. g., T14688 (Dr. Orfield). Finally, the district court’s findings 
tha t those metropolitan-wide effects are “major,” “important,” 
and “significant” and that they “continue,” “still exist to a large 
degree today,” and are “ lingering,” “ indigenous,” “ not 
eliminated,” and “current” clearly establish the substantiality 
and continuing nature of the relevant effects. Id. at 1489,1490, 
1491, 1492, 1503, 1504.

These findings are wholly dispositive here: they present the 
paradigmatic situation in which “discriminatory acts of the 
State. . . have been a substantial cause of interdistrict segrega­
tion ’ and in which “the federal courts have a. duty to prescribe’ ’ 
an interdistrict remedy. Milliken, 418 U.S. at 744,745 (emphasis 
added); accord, St Brf 10. They differentiate this case from the 
one before the Court in Milliken in which the State’s violation, 
like th a t of the Detroit district, took place in and affected “only 
. . .  the Detroit schools.” Milliken, 418 U.S. at 745 (emphasis 
added). They manifestly distinguish every case relied upon by 
appellees, for in each of those cases the State either was not 
a party or was explicitly held to have committed no violation 
of any sort, much less an interdistrict violation.24

The findings also place th is case squarely w ithin the 
holdings of all the Supreme Court and circuit court decisions, 
and no less than  three decisions of this Court, in which inter­

F. Supp. 229, 266 (S.D. Ohio 1977), affd, 583 F.2d 787 (6th Cir. 1978), affd, 
443 U.S. 449(1979). A ccord ,eg , Gautreaux,425 U.S. a t295 n .l l  (dicta);Keyes, 
413 U.S. at 201; Board of Directors v. City of Milwaukee, 408 F. Supp. 765, 
812 (E.D. Wis. 1976); Wilmington /, 393 F. Supp. at 434-38, affd, 423 U.S. 
963 (1975) (white flight to suburbs from urban district’s discriminatorily- 
treated integrated schools held a “significant interdistrict effect” sufficient 
under Milliken); cases cited in note 40 infra.

23Gautreaux, 425 U.S. at 298-300.
2iGoldsboro, 745 F.2d at 330 (State not a party); Taylor, 648 F.2d at 964 

(State not a party); Lee, 639 F.2d at 1267 (State not a party); Tasby, 572 F.2d 
at 1012 (State not a party); Richmond, 462 F.2d at 1070 (State committed 
no interdistrict violation); Arm our (unpublished opinion) (same); Bronson, 
578 F. Supp. at 1103 (State not a party).

15



distric t re lief has been ordered. Thus, in  Scotland Neck, 
Emporia, Morrilton, Haney, Missouri III, Hoots, Wilmington 
I  and//, Indianapolis/a n d //, Louisville, and Texas, the critical 
factor upon which the courts based the imposition of m ulti­
district relief was not whether the violation consisted of draw­
ing lines between black and white children as opposed to caus­
ing those children to move across preexisting lines (since nearly 
all of those cases involved both types of conduct), and was not 
whether the involved districts were themselves guilty of viola- 
tional activity (for in many cases interdistrict relief was ordered 
absent such a conclusion). Rather, the determinative factor re­
quiring interdistrict relief in all 12 cases was the finding tha t 
the State had committed interdistrict violations tha t affected 
school children in two or more districts.25

There is no principled basis upon which appellees can dis-

25S co tlan d  Neck, 407 U.S. at 489-90 (State-authorized  rem oval of 
predominantly white city area from predominantly black county school 
district that was under constitutional duty to desegregate held unconstitu­
tional because of its segregation-maintaining effect, regardless of its intent; 
reconsolidation ordered); Emporia, 407 U.S. at 459-60 (same); Hoots, 672 F.2d 
at 1110-11, 1119-20, a ffg , 510 F. Supp. 615, 619-20 (W.D. Pa. 1982) 
(interdistrict- consolidation remedy ordered based on State’s invidious con­
duct affecting 5 school districts; “innocence” of the 5 districts held irrele­
vant); Indianapolis II, 637 F.2d at 1112-16 (State violation as well as people- 
moving violation by public housing agency; suburban districts’ innocence 
irrelevant); Indianapolis, 573 F.2d at 408-09; Wilmington II, 416 F. Supp. 
at 354-55; Wilmington 1,393 F. Supp. at 434-38,445 (State violation; people- 
moving (FHA, State real estate commission, and white flight) violations; 
suburban districts’ innocence irrelevant); Morrilton, 606 F.2d at 225,227-29 
(state-mandated pre-Brown consolidation of districts caused segregation; 
interdistrict remedy required despite innocence of affected districts; people- 
moving violation involving racially identifiable hiring of faculty included 
among interdistrict violations found); Missouri III, 515 F.2d at 1367,1370  
(black school district discriminatorily created and maintained pursuant to 
state law ordered consolidated with adjacent districts despite claims of in­
nocence; markedly inferior educational opportunities of all-black district, 
discouraging whites from moving in, part of violation); Louisville, 510 F.2d 
at 1360; Louisville I, 489 F.2d at 927, 932; Haney, 410 F.2d 923-24 (1948 
reorganization of school districts pursuant to state law resulted in unlawful 
segregation of districts necessitating interdistrict relief; racial-identification 
of schools via all-black faculty assignments, causing whites to move out and 
blacks to move in, part of violation); Texas, 3 2 1 F. Supp. at 1048,1057, affd, 
447 F.2d 441 (5th Cir. 1971).

16



tinguish these precedents as involving line-drawing (“gerry­
mandering”) as opposed to people-moving violations. E. g , SSD 
Brf 31. In the first place, Milliken and Lee (appellees’ most oft- 
cited case), not to mention the holdings of Gautreaux, In­
dianapolis I  and II, Morrilton, Wilmington I, Louisville, 
Missouri III, Haney, and Texas, clearly recognize people-moving 
violations as appropriate occasions for interdistrict relief, 
whether or not the affected suburban entities were guilty of 
any violation.26 Moreover, appellees argument would compel 
an anomalous result: the more pernicious type of invidious state 
action—i.e, uprooting families and driving them from one 
ju risd ic tio n  to another, in s tead  of m erely draw ing ad ­
m inistrative lines around them —is the less constitutionally 
actionable.

In any event, liability here is on an unimpeachable basis. 
For the district court expressly found th a t the State violated 
its affirmative duty to dismantle the effects of its prior dual 
school system by failing, inter alia, to restructure boundaries 
to desegregate; instead, of course, it passed HB 171, which 
preserved existing segregation. 593 F. Supp. at 1504-5. This 
is precisely the type of effectively segregative line drawing on 
the part of a past constitutional wrongdoer that led the Supreme

26Gautreaux, 425 U.S. at 297-303 (HUD’s knowing funding of local agen­
cy’s discriminatory siting of public housing justifies interdistrict relief 
reaching into innocent suburbs; no line-drawing violations); Milliken, 418 
U.S. at 449-50 (interdistrict transfers of blacks for purposes of segregation 
recognized as proper basis for interdistrict relief); id. at 755 (Stewart, J., con­
curring) (interdistrict school remedy “might well be appropriate” where peo­
ple are intentionally caused to move across existing district lines by hous­
ing violations); Lee, 639 F.2d at 1260 {dicta) (interdistrict transfers to main­
tain dual system as well as other people-moving violations by FHA and state 
real estate commission support interdistrict remedy); cases cited in note 25 
supra. The irefradistrict cases also reveal the poverty of appellees’ distinc­
tion, given those cases’ undifferentiated reliance on numerous types of people- 
moving, as well as line-drawing (attendance zone), violations. E.g., Dayton 
II, 443 U.S. at 535 (inter-zone transfer of blacks to maintain segregation); 
Keyes, 413 U.S. at 202 (disproportionate assignment of black faculty to in­
tegrated schools, which identified schools as black and caused whites to move 
out of the area); Adams, 620 F.2d at 1291 (same); Omaha, 521 F.2d at 540 
(internal transfer policy causing whites to transfer or move away from in­
tegrated schools).

17



Court in Scotland Neck and Emporia to order interdistrict relief 
without a finding of intent.27

Morrilton lays to rest the SSD’s “innocence” argument: 
[Where] effects of the unconstitutional state action 
are felt in [two] d istric ts . . . “[s]chool officials may 
not m aintain tha t their districts should be excluded 
from any in te r d istric t rem edy . . . because they 
should not be held responsible for the acts of the state 
legislature or other [governmental] subdivisions such 
as a local housing authority or a zoning board. The 
commands o f the Fourteenth Amendment are directed 
at the state and cannot he avoided by a fragmentation 
o f responsibility among various agents Ifthe state has 
contributed to the separation o f the races, it has the 
obligation to remedy the constitutional violations” 

Morrilton, 606 F.2d at 228-9 (emphasis added), quoting In­
dianapolis 1,573 F.2d at 410; accord, cases cited in P Brf 38-9 
n.91, note 25 supra.

The SSDs, moreover, are not innocent. Rather, they admit 
th a t they chose “in their discretion” to operate their systems 
for white children only, and to send black children elsewhere, 
for the vast majority of the pre-1954 period. See note 9 supra28

a7See discussion of Scotland Neck and Em poria  in note 25 supra. See also 
Dayton II, 443 U.S. at 538, citing Em poria  (“the measure of post-Brown con­
duct of [officials] under an unsatisfied duty to liquidate a dual system is the 
effectiveness, not the purpose, of the action”); Washington v. Davis, 426 U.S. 
229,243 (1976) (approving use in Scotland Neck and Em poria  of effects test 
pursuant to “violation of affirmative duty” rationale).

28Inexplicably, the SSDs continue to assert as a defense their intense degree 
of blame for the interdistrict nature of their segregation—-i.a, that “each 
district,” in its own “locally autonomous . . . discretion,” “decided whether 
to educate black students in  its own district or . . .  in another district.” SSD 
Brf 39-40. If the SSDs mean that they would have segregated their schools 
even if the State had not required (or had forbade) it and that they would 
have done so on an interdistrict basis even if  the State had not statutorily 
authorized and paid for (or had forbade) it, then their responsibility—and 
lack of ‘‘innocence’’—is virtually total. In any event, their admissions clear­
ly reveal the direct and 7iorc“vicarious” nature of the SSDs’ liability. See 
Brown1,347 U.S. a t488 (unconstitutionality of Topeka district’s discretionary 
decision to segregate its schools pursuant to Kansas’ permissive segrega­
tion statute).

18



White students received a publicly funded, local education 
while black students had to go interdistrict, often at their own 
expense. See id. As a result of those choices by the SSDs, black 
and white children were both separate (on an interdistrict basis) 
and unequal.

The State acknowledges that, under Milliken, “interdistrict 
relief against the State defendants” is required upon a finding 
“th a t some discriminatory State action other than racial ger­
rym andering  was a substan tia l cause of. . .in te rd is tric t 
segregation.” St. Brf 12 (emphasis added). The district court 
made tha t finding but denied relief because it held the opposite 
view: th a t it could not order interdistrict relief touching any 
suburban district absent “a racially discriminatory act by each 
defendant district th a t substantially caused segregation in 
another district.” 6/5/84 Opn at 6 (emphasis added). As the judge 
put it on the last day of trial:

But I found tha t law, as I read it at the time, tha t you 
cannot require an entity to be part of the remedy 
unless you found a constitutional violation on the 
part of th a t entity.29

Because this error of law suffused the district court’s view 
of the case from the beginning,30 and because it explicitly forms 
the sole basis for the district court’s denial of interdistrict relief 
(eg., 593 F. Supp. at 1488), this Court must now reverse and 
remand to the district court to determine the precise scope of, 
then the appropriate interdistrict remedy for, the State’s viola­
tion. See P Brf 58 & n.126.

29T24561-2. Accord, eg . , T7342 (“As I read Milliken and its progeny, the 
con stitu tion al v io lation  m ust have occurred in one of the suburban  
districts . . . .Now, that’s Milliken, as Iread it. And 80 percent of your [plain­
tiffs’] proof in this case so far would not comport with Milliken. Now, if I’m 
reading Milliken  wrong, then I’m reading it wrong”), 899,4689,6767,9373, 
10057, 10911, 13151,13133, 17295. See also 6/5/84 Opn at 14, 21, 34, 39, 
40 ,42 ,45 ,48 ,51 ,54 ,59 ,67 ,74 ,78 ,83 ,91 ,95 ,100 ,102 ; 593 F. Supp. at 1488,
1490, 1505; 1/25/85 Order at 2.

19



II. Ignoring The “Significant Continuing Effects” Find­
ings In The District Court’s September 1984 Judgment 
On Liability Affords No Basis For Affirmance.

The district court’s September 1984 factfindings establish 
an interdistrict violation by the State which continues to have 
“im portant” segregative effects throughout the metropolitan 
area. 593 F. Supp. a t 1491, 1503. Once the district court’s 
misreading of Milliken is corrected, interdistrict relief is m an­
dated. Appellees’ only answer to this mandate is to suggest 
th a t the Court ignore the September 17, 1984 opinion as ir­
relevant to the State’s interdistrict liability and affirm for lack 
of the “significant continuing effects” findings in th a t opinion. 
As the September opinion and proceedings leading to it reveal, 
however, th a t decision is the district court’s only judgment on 
the State’s responsibility for inter- as well as intra- district 
segregation. It cannot be ignored.

After plaintiffs completed their case in chief, all defendants 
save KCM filed motions to dismiss under Rule 41(b). The State’s 
motion explicitly sought dismissal only of plaintiffs’ “in ter­
district” claims.31 Although the district court granted the SSDs’ 
motions on April 2, 1984, it “deferred” ruling on the State’s 
interdistrict-dismissal motion and ordered the State and HUD 
to present their defenses. Both did, devoting virtually all their 
evidence to p la in tiffs’ in te rd is tric t claims.32 Manifestly, 
therefore, the court and all the parties understood th a t the

30T 1 7 2 9 2  (Court’s April 2 ,1984 statem ent dism issing the SSDs) (“When 
we started this case last October, I think it was the first week of trial, and 
in an exchange between the Court and plaintiffs’ counsel, I said I disagreed 
with their theory”).

“ Memorandum in Support of State Defendants’ 3/14/84 Rule 41(b) Mo­
tion, at 1; accord, Memorandum of HUD in Support of 3/14/84 Motion for 
Dism issal Under Rule 41(b), at 1.

32See, e g , T18525,18536,18611,18660,19150,19156,19207,19230,19247, 
19252-3,22041,20102,20256,20262,20310-5,20338 (State and HUD’s ex­
pert testimony re: inter alia, “metropolitan-area. . . population trends;” 
“the . . . suburban counties here in metropolitan Kansas City that we are talk­
ing about-,” “the black population . . . spread , . . in . . . the Kansas City 
metropolitan area-” “housing values i n . . . the suburban ring-” “single­
family development in the suburban areas-” “black migrants from Clay and  
Platte Counties to Kansas City”) (emphasis added).

20



State’s responsibility for interdistrict segregation remained 
in issue after the SSDs were dismissed. Indeed, in its June 5, 
1984 opinion explaining the SSDs’ dismissal, the district court 
emphasized th a t the only claims dismissed were those against 
“each SSD defendant,” and it expressly reserved the question 
“[wjhether plaintiffs’ evidence was sufficient to sustain a fin­
ding against” the State. 6/5/84 Opn at 102.

Three months after trial ended, the district court entered 
its September 17, 1984 “judgment on the issues of liability.” 
593 F. Supp. 1485; 9/17/84 Orders. The September opinion 
clearly states th a t it adjudicates all “plaintiffs’ claims against 
the KCM, the State and HUD,” and it explicitly identifies 
those claims as “interdistrict” in nature. 593 F. Supp. at 1487-8. 
The opinion then proceeds to analyze the impact of the State’s 
past conduct “throughout the metropolitan area” and concludes 
tha t the State’s intentionally segregative behavior “continues 
to have a significant effect o n . . . the Kansas City area!’ Id. at 
1489,1491, 1503 (emphasis added).33 Insofar as it deals with 
liability, therefore, the September opinion comprehensively ap­
praises the State’s unconstitutional behavior and its effects 
“throughout” the metropolitan area. It is only when the district 
court turns to the question of remedy that it narrows its analysis 
to KCM alone—based, once again, on its misreading of Milliken 
to deny “a federal court. . . power to restructure the operation 
of local. . . entities absent a constitutional violation by those 
entities.” Id. at 1504-5.34

A ppellees offer no convincing reason  to ignore the

33Accord, eg., id. at 1489 (“the Kansas City area”); 1490 (“city” of Kansas 
City); 1491 (“ m etropo litan  a rea” ); 1501 (“su burban  areas” ); 1502 
(“ m etropolitan K an sas City area”); 1497 (“Kansas City area”); 1497 
(“throughout the Kansas City area”); id. at 1498 (“throughoutKansas City, 
M issouri”); id. at 1499 (“the suburban areas”); id. at 1494, citing T8715-30, 
9228-35, 1498, 1500 (“ Independence, L iberty  an d  Lee’s S u m m it,” 
“predominantly white North Kansas City” Center, Grandview, Hickman Mills, 
and Raytown) (emphasis added).

34The State’s handful of September-opinion references to “the KCMSD” 
all refer to either the locus of KCM’s misconduct (obviously “within the 
KCM”), the location of the black children harmed by the violations (also 
obviously “in the KCM,” where the violations unlawfully concentrated 
blacks), or the remedy. St Brf 36-7.

21



September opinion’s explicit adjudication of the State’s respon- 
s ib ility  for in te rd is tr ic t  seg rega tion . In  p a rticu la r, 
having voluntarily chosen to absent themselves from a por­
tion of the trial on th a t issue—after being warned in court tha t 
plaintiffs intended to rely on the State’s violations as bases 
for interdistrict relief (T17294-51)—the SSDs may not now 
assert their absence to nullify the results of the proceedings 
th a t followed. As the courts have unanimously held, once given 
notice and an opportunity to participate, the SSDs absented 
themselves at their peril.35 36

Nor does any s ta tem e n t in  th e  d is tric t co u rt’s June  
opinion pose a b a r r ie r  to th e  in te rd is tr ic t-v io la tio n / 
interdistrict-effects/interdistrict-relief conclusion compelled 
by the district court’s September findings against the State. 
First, the June opinion by its own terms is “irrelevant” to, and 
explicitly reserves, the question of the State’s liability. 6/5/84 
Opn at 102. Second, the June opinion is plagued by the district 
court’s erroneous reading of Millike n™ Indeed, but for that legal 
error, the June opinion need never have been w ritten, for it 
asks a question (whether the SSDs were individually respon­
sible for all the segregation in the metropolitan area) whose 
answer does not resolve the critical question under Milliken 
of the State’s responsibility for metropolitan segregation. An 
opinion whose very raison d ’etre is a legal error will not light­
ly be read to nullify later findings not tainted by the error. See, 
&g,BoseCorp. v. Consumer’s Union,—U.S. —, 80L.Ed.2d502, 
517 (1984) (“Rule 52(a) does not inhibit an appellate court’s 
power to correct errors of l aw . . .  or a finding of fact th a t is 
predicated on a m isunderstanding of the governing rule of 
law”).37

ssE .g , Hoots, 672 F.2d at 1112-3, 1119-20 & n .l l ;  Louisville, 510 F.2d at 
1360 n .l; Wilmington 1, 393 F. Supp. a t430-31 & n.l, affd, 423 U.S. 963 (1975); 
P Brf 58-9 n.126.

366/5/84 Opn at 5-6, 6, 8, 13-14, 21, 34, 37, 39, 40, 42, 45, 48, 51, 54, 59, 
67, 74, 78, 83, 91, 95, 96-7, 100, 101, 101-2, 102.

37Were there a conflict between the June and September opinions, the lat­
ter would control, for it is the product of a far more complete record and longer 
period of post-trial deliberation; was characterized by the court as its final 
“judgment on the liability issues” (the court having earlier ruled that the

22



The SSD-specific statem ents in the June opinion on which 
appellees primarily rely are products of the district court’s legal 
errors. For example, the Milliken error manifestly infects the 
district court’s June statem ents tha t (i) the SSDs can be ex­
cused for expelling all their black families before 1954 because 
“the impact of th a t movement on theKCM  enumeration is in­
significant” and (ii) that “jobs and economic opportunity” were 
bigger “motivators for blacks leaving the 3-county area and 
moving to KCM” than  the SSDs’ “transferring blacks to the 
KCM .” 6/5/84 Opn at 18 (emphasis added). Both statements 
are directly premised on the district court’s erroneous belief 
th a t only “a racially discriminatory act by each defendant 
d istrict th a t substantially  caused segregation in another 
district” allows interdistrict relief and thus tha t (i) only effects 
“on the KCM” are cognizable, and (ii) among those effects, 
only the impact of blacks leaving each SSD is cognizable. Id. 
at 6 (emphasis added).

The SSDs may not, however, be excused for expelling near­
ly all their blacks before Brown because in doing so they only 
partially affected KCM. See Morrilton, 606 F.2d at 228 (where 
violation separates blacks and whites into two school districts,

June decision was not a “final judgment” of any party’s liability (June 21, 
1984 Order)); was selected for publication by the court; was composed by 
the court itself, not (as was the June opinion) adopted verbatim from one 
adversary’s unilaterally proposed findings; and, most importantly, is not 
fraught with the Milliken  and other legal errors which so plague the June 
opinion. Compare Askew v. United States, 680 F.2d 1206,1209 (8th Cir. 1982) 
(verbatim adopted findings especially suspect if  other party thereby ‘ ‘forfeit[s] 
his ‘undeniable righ t. . .  to [have] his position . . . considered’ ”), with Ander­
son v. City o f Bessemer,—U.S. — ,8 4  L.Ed.2d 518, 527 (1985) (providing all 
parties ‘ ‘the opportunity to respond at length to [each others’] proposed find­
ings” ameliorates verbatim-adoption procedure).

In certain extra-brief filings, the SSDs inaccurately maintain that plain­
tiffs did not attack the June 1984  findings as clearly erroneous under Rule 
52(a), F.R.C.P. But see P Brf 4 n.8, 12 n.23, 27 n.52, 36 n.86, 44 n.105, 55 
n .l2 1 ,5 6 n .l2 2 ,5 7  n .124,5 8 n . l2 5 ,5 9 n . l 2 7 ,6 4 .  Although some of the June 
findings manifestly qualify as clearly erroneous and may be overturned on 
that ground (eg., id.), the Court need never reach that question, because 
the findings’ genesis in legal error makes them conclusively assailable in 
the first instance on that ground. See eg ., Bose v. Consumer’s Union, supra; 
Dayton II, 443 U.S. at 535-6; Kelley v. Southern Pacific, 419 U.S. 318, 323 
(1974); In re Martin, 761 F.2d 4 7 2 , 4 7 5  (8th Cir. 1985).

23



its cognizable “effects. . . are felt in both districts”) (emphasis 
added); Hoots v. Commonwealth o f Pennsylvania, 510 F. Supp. 
615,618-21 (W.D. Pa. 1981), affd, 672 F.2d at 1120-1 (state ac­
tion segregating white children in suburban districts required 
interdistrict relief on tha t basis alone, even if the urban district 
where blacks were concentrated rem ained predominantly 
white). Nor—as the district court recognized and corrected in 
its September opinion—is it possible to appreciate the dual 
system’s full impact on even the KCM without considering the 
system’s tunneling effect on the “influx of blacks from southern 
and border states,” as well as its expulsive force on blacks liv­
ing in the SSDs, and additionally considering the effect of the 
“high [black] birth  rate” on both sets of segregation-steered 
new arrivals in KCM. 593 F. Supp. at 1490.38

Finally, the above two statements as well as others on which 
appellees rely (eg., th a t no “vestiges or significant effects” of 
the SSDs’ pre-1954 participation in the dual school system re­
main) are contaminated by the erroneously piecemeal and in­
complete analysis and the improper burden of proof which the 
district court applied in considering “effects” in its June opin­
ion, but abandoned in its September opinion. 6/5/84 Opn at 18.

a. Disaggregation. Where “[m]uch of the probative force of 
the plaintiffs’ evidence [is] dissipated by placing it into discrete 
analytical compartments,’ ’ any resulting determination of in­
sufficient discriminatory action or effect is inherently suspect. 
Craik v. Minnesota State University Board, 731 F.2d 465,471 
(8th Cir. 1984). In its June opinion the district court did exact­

38Unlike the June opinion, the September findings also appreciate the con­
siderable degree to which the dual school system segregatively interacted 
with economic forces, for example, by diverting black in-migrants away from 
the SSDs and into the KCM. 593 F. Supp. at 1490-91. When the court took 
account of the two forces’ interaction in its September findings, rather than 
abstractly comparing them  as it had done in the June opinion, it found both 
to be “major factors” in  black residential choice. Id. at 1490. The district 
court’s June observation that the “absence of black schools in any of the 
SSDs’ ’ did not discourage each and every black family migrating to the area 
from living in those districts (citing two families moving to LS in the 1930s) 
does not, of course, affect the September finding that the dual school system  
was a major factor in diverting black migrants from the SSDs. 6/5/84 Opn 
at 18.

24



ly that, expressly refusing to “cumulate” plaintiffs’ adm itted­
ly “extensive” effects evidence and insisting th a t “each” viola­
tion’s effect by itself “be substantial.” 6/5/84 Opn at 6,97-98. 
See P Brf 56 n.122.39

Even apart from its erroneous failure to sum the effects, 
many of the district court’s individual analyses of the various 
violations’ impact are patently erroneous applications of the 
maxim th a t “the law does not concern itself with trifles” {de 
minimis non curat lex). With regard to HUD, for example, the 
district court concluded th a t 15,000 homes explicitly racially 
segregated by the federal government is “de minimis.” 593 F. 
Supp. at 1497. Especially given that HUD’s own expert testified 
th a t FHA subsidies have typically figured in 16% of the single­
family transactions in the metropolitan area (T20,107) (not 
to mention the effect of FHA’s racial-purity policy on entire 
subdivisions, all of whose units necessarily had to be marketed 
in accordance with th a t policy for even one or two to receive 
federal financing), any conclusion th a t 15,000 segregated 
families is a “trifle” clearly errs.40

b. Exclusion. Unlike the September findings, the June opin­
ion gives absolutely no consideration to the effects of the par­
ties’ post-1954 “affirmative duty fully and effectively to in­
tegrate schools [and] faculties.” Haney, 410 F.2d a t 926. This 
omission is in error. Because every “post-Brown action which 
has the effect of increasing or perpetuating segregation”

39Compare Louisville, 510 F.2d at 1360; Wilmington 1,393 F. Supp. at 438, 
affd, 423 U.S. 963 (1975) (although doubt expressed whether each violation’s 
effect was individually sufficient, the sum of all the violations’ effects clear­
ly required interdistrict relief).

40See P Brf 59 n.127; Brief of Amicus Center for National Policy Review 
at 17-20. Compare also, eg., 6/5/84 Opn at 8-9 (1400 “examples” of white 
suburbanward transfers sampled from a fraction of the schools, grade levels, 
and years affected by KCM’s white-flight-inducing violations deemed “in­
significant”), with Omaha, 521 F.2d at 540 (effect of 92 total white junior 
high school transfers on 61000-student district deemed “profound”), and 
Akron v. State Board, 490 F.2d 1285,1288 (6th Cir. 1974) (6 interdistrict white 
out-transfers held not “de m inimis”), and Berry v. School D ist., 564 F. Supp. 
617, 621 (W.D. Mich.), affd, 698 F.2d 813 (6th Cir. 1983) (143 white inter­
district out-transfers not de minimis); and Northcross v. Board of Educa­
tion, 312 F. Supp. 1150, 1159 (W.D. Tenn. 1970) (1500 white transfers in a 
133,000-person school district “n o t . . . de m inimis”).

25



violates th a t affirmative duty and “continues the violation,” 
it is a fortiori impossible to appreciate the violation’s full im­
pact without measuring the effect of the wrongdoers’ post- 
Brown behavior “in decreasing or increasing. . .segregation.” 
Dayton II, 433 U.S. at 538; Columbus, 443 U.S. at 459; see P 
Brf 40-1 & n.100. From 3 until 30 years after Brown, the SSDs 
defeated over a dozen proposals for desegregative interdistrict 
cooperation, while supporting legislation prohibiting KCM 
from desegregatively conforming to the general rule in Missouri 
(Mo.Rev.Stat. §165.263 (1959)) th a t city and school-district 
boundaries coincide. These actions by the SSDs perpetuated 
their own and KCM’s racial identifiability and “continue[d] 
the violation.” Columbus, 443 U.S. at 459. The district court’s 
failure to consider the segregative effects of this important part 
of the violation—-for example, th a t KCM remains 69% black, 
not 27% black as is the C ity— decisively impugns the June 
opinion’s conclusions.

c. Presumption o f “no effects” from the passage o f time. Before 
Brown, Missouri’s dual school system provided schools for 
blacks in the KCM but not in the SSDs. While 21% of the area’s 
black children lived in the suburbs in 1900, th a t proportion 
dropped to 2% by 1954—in “major” part because of the dual 
school system. 593 F. Supp. a t 1490-1; X53E. Between 1954 
and today, neither the State nor the SSDs did anything positive 
to undo metropolitan segregation, and “the racial isolation 
th a t exists” among school districts in “the Kansas City area” 
today (69%-black KCM, 95%-white SSDs) is the same as or 
worse than  in 1954. 593 F. Supp. at 1489; X53E, 53G.

Two questions arise: first, whether the state-induced racially 
identifiable condition of area school districts in 1954 and their 
similarly identifiable condition today are in any way related; 
and second, who should bear the burden of proof on the first 
question. The June opinion’s legally improper handling of the 
second (burden of proof) question in analyzing each SSD’s viola­
tions fatally infects the validity of its answer to the first ques­
tion. In analyzing the State’s violations in the September opin­
ion, the district court cured both errors.

In its June opinion (at 31,97-8), the district court expressly 
rejected the “settled” principle—consistently followed not only

26



in inter- as well as intra- district school desegregation cases,41 
but in all racial discrimination litigation42—that upon prov­
ing prior intentional segregation “plaintiffs are entitled to a 
presum ption th a t current disparities are related to prior 
segregation’ ’ which shifts to the wrongdoer the burden of prov­
ing otherwise. Vaughn v. Board o f Education, 758 F.2d 983, 
991 (4th Cir. 1985). Instead, the district court applied the op­
posite presumption. It ruled as a matter oflaw that, unless plain­
tiffs proved the precise incremental segregative effect of each 
act of every defendant district, then “simply [the] age” of the 
violation would, by presumption, break any connection be­

41M illiken , 418 U.S. at 741 n.19 (recognizing applicability of Swann’s 
burden-shifting presumption in interdistrict cases once “a constitutional 
violation” has been shown); Hoots, 672 F.2d at 1121 (“the district court hav­
ing found a constitutional violation” of an “interdistrict” nature, “the bur­
den of proof shifts to each defendant school district” to show the “precise 
incremental segregative effect”); Indianapolis II, 637 F.2d at 1113; Morrilton, 
606 F.2d at 225, 227 (applying Swann’s burden-shifting rule to conclude, 
absent contrary proof, that existing disparities among several adjoining 
school districts in student and faculty assignments continued the segregative 
effects of discriminatory pr e-Brown policies); Wilmington IV, 582 F.2d at 765; 
Louisville II, 541 F.2d at 541-2; Missouri III, 515 F.2d at 1370; Haney, 410 
F.2d at 924. Lee is not to the contrary. There, the Court rejected the Govern­
ment’s attempt to create a prior violation out of the existence, without more, 
of racial disparities. All Lee holds, therefore, is that in the absence of proof 
of a prior violation, there is no wrongdoer to whom to shift any burden. 639 
F.2d at 1254-5.

i2E.g., Hazlewood School District v. United States, 433 U.S. 299, 309 n. 15 
(1977) (teacher discrimination); Intern’l Brotherhood of Teamsters v. United 
States, 431 U.S. 324,359 & n.45 (1977) (citing Keyes, 413 U.S. at 209-10)(“pat- 
tern and practice” employment discrimination); Castaneda v. Parti da, 430 
U.S. 482,489-91 (1977)(jury discrimination); Arlington Heights v. Metro. Hous- 
ingDevel. Corp, 429 U.S. 252,268 n.21 (1977)(housingdiscrimination); Craik 
v. Minnesota State University Board, supra, 731 F.2d at 471 & n.9; Williams 
v. Anderson, 562 F.2d 1081,1087-8 (8th Cir. 1977) (collecting cases). Indeed, 
the courts have traditionally held in other areas of the law that “when the 
existence of a condition . . .  is once established by proof,” a “rebuttable 
presumption arises that it continues to exist,” which the defendant must 
overcome by establishing the existence of “some operative force, other than 
mere lapse o f time, producing a change”. Annot., Presumption of Continu­
ance, 7 ALR 3d 1303, 1305 (1966) (discussing, eg., Am. Jur. 1st, Evidence 
207; 29 Am. Jur. 2d, Evidence 237) (emphasis added)); see Restatement (Se­
cond) of Torts §§ 433(13X2), (3).

27



tween state-mandated racial isolation in 1954 and continu­
ing  rac ia l iso la tio n  today. 6/5/84 Opn a t 98-9. As the  
unanswered precedents from this and other courts discussed 
in Plaintiffs’ Opening Brief establish, any such presumption 
in favor of the proven wrongdoer and against its victims is in 
error. P Brf 54-5 & n.120. For imposing such a presumption 
is “tan tam ount” to holding th a t the victims of pervasive, 
century-long racial discrimination “are without remedy.” Wil­
mington IV, 582 F.2d at 765.

In its September findings, the district court abandoned the 
“passage of time” presumption against the victimized class. 
Instead, in arriving at its unchallenged finding that the State’s 
violations have “im portant” continuing effects, the district 
court applied the workaday principle of common and constitu­
tional tort law th a t proof of discrimination “changes ‘the posi­
tion of the [defendant] to th a t of a proven wrongdoer’ ’ ’ against 
whom “it is only equitable” to resolve uncertainties posed by 
the need to “recreate the past with exactitude.”43

Applying this approach, the district court found: (1) tha t 
Missouri m aintained “state-required separation” via “inter­
district arrangem ents to educate [black] children;” (2) tha t 
these and other violations were “major factors” a t the time 
in ‘‘what housing choice’ ’ blacks made within the metropolitan 
area and th a t those residential choices were and are “inex­
tricably] connect[ed]” to school patterns; (3) that, as a result, 
there were stark racial disparities among metropolitan school 
districts as of Brown; (4) th a t like “racial isolation” still “ex­

i3W illiamsv. Anderson, 562 F.2d 1081,1087 (8th Cir. 1977), quoting In­
tern’l Brotherhood of Teamsters v. United States, 431 U.S. 324,329 n.45 (1977); 
Days v. Matthews, 530 F.2d 1083, 1086 (D.C. Cir. 1976). Accord, Franks v. 
Bowman Transportation Co., 424 U.S. 747, 772-3 & n.32 (1976) (given the 
“uncertainty” of recreating the past in racial discrimination cases, “[n]o 
reason appears . . . why the victim rather than the perpetrator should bear 
the burden of proof’); see also Mitchell v. Volkswagenwerk, 669 F.2d 1199, 
1208 (8th Cir. 1982), quoting Mathews v. Mills, 178 N.W.2d 841,845 (Minn. 
1970) (“If we were to impose upon an injured party the necessity of proving 
which impact in a chain collision did which harm, we would actually be ex­
pressing a judicial policy that it is better that a plaintiff, injured through 
no fault of his own, take nothing, than that a wrongdoer pay more than his 
theoretical share of the damages arising out of a situation [he] helped create”).

28



is ts. . . [in] the Kansas City area;” and (5) th a t between Brown 
and today, State officials “defaulted in their obligation” to un­
do the continuous “condition of segregated schooling.” 593 F. 
Supp. at 1489, 1490, 1491, 1504-5. The court then shifted to 
the State the burden of proving tha t “the racial isolation tha t 
ex ists . . . [in] the Kansas City area” is “not vestiges but is the 
product of resegregation from natural demographic trends.” 
593 F. Supp. at 1489 (emphasis added). W ithout objection, the 
State attem pted just th a t through “experts whose opinions 
declared [that] economics, accessibility to jobs, spacial barriers, 
personal preference and private discrimination were the fac­
tors affecting” racial isolation in the “metropol itan” area. Id. 
at 1491. The district court then determined that, “to the ex­
tent those experts deny the influence of schools in housing pat­
terns, particularly in the context of Missouri’s legacy,” their 
“opinions are rejected’. ’ Id. (emphasis added).44

Insofar as the district court’s June opinion reached a dif­
ferent conclusion with respect to the effect of “each defendant 
district’s” piece of the dual school violation—-a conclusion in 
any event irrelevant to whether the State’s comprehensive viola­
tions suffice—it is manifestly the product of a temporary and 
since corrected legal error, and surely affords no basis for un­
doing the district court’s dispositive findings.

* * * *

Appellees believe th a tu whites. . . respond to quality educa­
tion,” and accordingly th a t increm ental improvements in

44The district court’s approach in its September opinion is squarely in ac­
cord with interdistrict precedent. See Wilmington IV, 582 F.2d at 765: “We 
hold that in a case such as this where there is an historical pattern of signifi­
cant dejure segregation with pervasive inter-district effects, where a facial­
ly reasonable plan is proposed . . . ,  where the defendant itself admits that 
it is not feasible to separate out the incremental segregative effects of 
demographic change, where the defendant itself is in the best position to 
ascertain what the pattern of segregation would have been ‘but for’ the con­
stitutional violations, and where the [State] has dragged its heels and 
obstructed progress for desegregation for twenty-six years, then the burden 
shifts to the [State to] show the incremental segregative effects of its con­
stitutional violations . . . .lb  hold otherwise would be tantamount to holding 
the plaintiffs are without remedy.” Wilmington IV, 582 F.2d at 765.

29



KCM’s educational product will a ttract white families back 
into the KCM. SSD Brf 49 (emphasis added). W ith regard to 
blacks, however, appellees ask this Court to believe (and to 
believe th a t the district court believed) the contrary—i.e. , tha t 
the total “absence of schools in any of the SSDs” for a century 
did not stop black families from living there. Id. at 27 (emphasis 
added). The district court accepted no such common-sense- 
defying proposition. Rather, upon comprehensively analyzing 
the effects of “Missouri’s legacy,” the district court concluded 
that, by discriminatorily locating schools for black families 
in  KCM only, while providing schools for w hite fam ilies 
wherever they wanted to live, the dual school system “had and 
continues to have” an important impact on where blacks and 
whites “in the Kansas City area” live and where their children 
attend school. 593 F. Supp. a t 1491, 1503.

Under Milliken and Morrilton, these findings mandate in­
terdistrict relief. Once the Court removes the illusory obstacle 
to such relief th a t the district court’s erroneous reading of 
Milliken interposed, it must remand to the district court for 
imposition of an appropriate, multi-district remedy.

Ill- The Intradistrict Remedy Ordered Below Falls 
Short of the Scope of The Violation and Should Be Ex­
tended, Not Scaled Back.

Having ignored the “interdistrict effects” findings in the 
September opinion, the State also understates the district 
court’s “vestiges” determinations with regard to KCM. In ad­
dition to the severe racial isolation effects conceded by the 
State,45 the district court expressly found the State’s segrega­

45On the eve of this suit, 80% of KCM’s black children attended 90%-plus 
black schools, and 16 of its schools were entirely white. 593 F. Supp. at 1493. 
Since then, KCM has integrated its formerly all-white schools through 
transfers of black children previously attending all-black schools. Id. at 1493, 
XK2. Although a majority of the district’s black children remain in all-black 
schools, there are nonetheless at least some black children attending each 
of its schools. Accepting the State’s suggestion that black children be eligi­
ble for remedial assistance only if they are currently assigned to all-black 
schools would relegate them to the Hobson’s choice of no remedial aid at 
all for the harms they have suffered or permanent consignment to the “in­
ferior education indigenous o f ’ the district’s segregated schools. 593 F. Supp. 
at 1492 (emphasis added). The Fourteenth Amendment abides no such court-

30



tion responsible for: (i) “inferior education indigenous of the 
state-compelled dual system,” which in tu rn  hampers employ­
ment prospects and causes poverty (id. at 1492);46 (ii) a “sys­
tem wide reduction in student achievement” (6/14/85 Opn at 
4) (emphasis in original)); (iii) white flight to the suburbs (id. 
at 1492-4; 6/14/85 Opn at 28-30); (iv) a greatly impaired “ability 
to raise adequate resources,” necessitating  the deferred 
maintenance of facilities which “adversely affects the learn­
ing environment and serves to discourage parents who might 
otherwise enroll their children in the KCM” (id. at 33,36); and 
(v) overall, an inability to “attract and retain non-minority 

enrollment” (id. at 10, 12, 17, 18, 19, 31, 34, 36).
Ibgether, these findings of pervasive and continuing system- 

wide effects and the State’s by law systemwide violation re­
quire a systemwide remedy.47 The State’s and SSDs’ proposals to 
truncate a remedy already far narrower than the metropolitan- 
wide violation and its effects must accordingly be rejected. See, 
eg . , SSD Brf ix, xiii.

Within the limitations imposed by its denial of interdistrict 
relief, the district court endeavored to apportion the burdens 
of the remedy fairly while still assuring th a t the victims of 
segregation not be made the victims of the remedy. In so do­
ing, the district court recognized th a t increasing the financial 
contribution of KCM would inevitably increase the remedial 
burden upon the plaintiff class of black parents and children 
who make up almost 70% of the district. See 6/14/85 Opn at 
3. Accordingly, having found the State, by all its citizens, to

enforced choice.
46The evidence supporting this series of findings was substantial and un­

contradicted. It included a careful study by KCM showing substantial achieve­
ment deficits on the part of black children attending segregated schools when 
compared with black children from the same neighborhoods attending in­
tegrated schools. XK53; T16585,16589-95, See, eg., T551-2,1329-31,1919-21, 
2453-6, 3206, 16414, 16457-8, 22215, 22589-93, 23925-53.

47Dayton II, 443 U.S. at 537, 540-2 (segregative practices which “infected 
the entire Dayton public school system” required imposition of a system- 
wide remedy); Adams, 620 F.2d at 1291 (requiring “a system-wide remedy 
for what is clearly a system-wide violation”).

31



be the “primary constitutional wrongdoer,”48 the district court 
properly ordered the State to bear the greater share of the 
remedy’s cost. Id. at 41; see 593 F. Supp. at 1506. Given the 
district court’s adherence to established precedent protecting 
the plaintiff children from bearing so much of the remedy’s 
burdens th a t they derive little benefit,49 the district court’s 
exercise of its broad remedial discretion should not be over­
turned. E .g , Sw ann , 402 U.S. a t 15.

In sum, given the denial of any desegregation relief for the 
interdistrict wrongs and harm s found below, and given the re­
jection of even the modest $800,000/year housing remedy plain­
tiffs propose to achieve some partia l and purely voluntary 
desegregation (P Brf 63), it is the victimized class of black 
children, not the people of Missouri, who suffer from the 
remedy’s failure to coincide with the scope of the violation. 
Under these circumstances, the remedy should be extended, 
not scaled back further.

48Liddell VII, 731 F.2d at 1299; accord, 593 F. Supp. at 1503-4.
i9E.g., Raney v. Board o f Education, 391 U.S. 443, 447-48 (1968).

32



CONCLUSION
For the reasons stated above and in Plaintiffs’ Opening Brief, 

the Court should reverse the findings and conclusions of the 
district court insofar as it (1) failed to find an interdistrict viola­
tion, (2) dismissed the defendant suburban school districts from 
the case, and (3) found HUD not liable and dismissed it from 
the case, and it further should order im plem entation of a 
metropolitan-wide desegregation plan commensurate with the 
scope of the interdistrict violations found below.

Respectfully submitted,

ARTHUR A. BENSON II

BENSON & MC KAY 
911 Main Street 
1430 Commerce Tower 
Kansas City, MO 64105 
816/842-7603

JULIUS LeVONNE 
CHAMBERS 

JAMES M. NABRIT III 
JAMES S. LIEBMAN 
THEODORE M. SHAW 
99 Hudson Street, 16th Floor 
New York, NY 10013 
212/219-1900

Attorneys for Kalima Jenkins, et al. 
Plaintiffs/Appellants/Cross-Appellees

33



ADDENDUM
Some Examples From the First Few Pages of the SSDs’ Brief of 

Their Mischaracterizations of the Record
a. Compare T1964-5 (Dr. F ields’ testimony that area school officials sup­

ported HB 171 by design [as] another way of containment or keeping the 
black community limited and the school district limited in its capacity . . .  to 
desegregate”), with  SSD Brf 1 (asserting that Dr. Fields cited “no” acts by 
the SSDs done with a discriminatory intent).

b. Compare T1199-215, 1230, 1235-41 (Beatrice W illiams was forced to 
move from LS to her aunt’s house in KCM to go to school when LS closed 
its black elementary school; when her aunt “took sick” her mother was forced 
to leave Beatrice’s father in LS and move to KCM so that Beatrice could finish 
school; thereafter, W illiams remained in KCM, where her 3 children, 11 
grandchildren and a number of great grandchildren were and still are 
being educated; in addition, W illiams testified that, because LS provided 
no funds for transfers or transportation for 20 or more years after closing 
its black school, a number of her former LS classmates and their younger 
siblings also moved to KCM for school (eg., J. Locke, O. Wilson, and the 3 
Moore children)), with  SSD Brf at 4 (inexplicably asserting without citation 
that W illiams “knew of no one else who moved to KCM for school” and that 
“[h]er [own] family stayed” in LS).

c. Compare X210 (1923 Rep. at 111) (State inspector’s rating of Excelsior 
Springs’ black school building as “condemned”), with  SSD Brf 4 n.2 (Ex­
celsior Springs offered blacks “a good education”). Compare also 593 F. Supp. 
at 1490, citing T16835; T622, 817, 960, 1347-56, 1447-8, 1830-4, 3748-50 
(short-lived black high schools in IN and LI were “quite inferior;” both closed 
and interdistrict transfers to KCM were instituted immedi ately after black 
parents insisted the schools be equalized with the local white high schools), 
with  SSD Brf 9, IN Brf 3 n.5, LI Brf 4 (IN and LI maintained “good” black 
high schools).

d. Compare T471, 490, 496-500 (discussing Waller D13-17), (in 1925 
Richard Waller lived in the same house in Excelsior Springs as the victim  
of the lynching there that year, fleeing the area the day of the killing, and 
coming to live in the KCM where he still lives today), with  SSD Brf 3 (inex­
plicably asserting that Waller never lived in Excelsior Springs nor did he 
move to KCM” and thus that he could not testify about the black “exodus” 
to KCM from Clay County caused by the lynching).

e. Compare T2110-1 (testimony of Dr. Fields that he, like other black KCM 
administrators, had ‘ ‘general knowledge that many black children came to 
KCM and resided with aunts and uncles and others to attend school” but 
never tried to find out how many because inquiring into the matter might 
have deprived “black children [who] couldn’t afford to pay the tuition” of 
an education), and  6/5/84 Opn at 45 ,70,79-80,86 (LS, NK, PH and possibly 
CE transferred a number of black students to KCM in the years after Brown), 
with  SSD Brf 3 n. 1, citingT2057 (misrepresenting Dr. Fields’ testimony that

34



he only knew  of one post-1954 transfer student as being that “pre-1954 
transfers stopped immediately upon Brown except [fori an isolated student”).

f. Compare 6/5/84 Opn at 85-6 (PH continued busing black high school 
students to KCM for years after Brown and did not permit its black elem en­
tary children to attend its “w hite” schools until 1959), with  SSD Brf i, xi, 
PH Brf 2 (PH “complied immediately with Brown” and its post-Brown ac­
tions were “exemplary”).

g. Compare T4313-4,4574,5857 (given the SSDs’ failure to keep records 
of if, how, and where their black children were educated, plaintiffs’ exhibit 
40—entitled “Some Examples of Interdistrict Transfers of Blacks in the Kan­
sas City Areafor Purposes of Receiving a Segregated Education, 1900-60” — 
was necessarily designed to exemplify, not exhaust, interdistrict transfers; 
accurately quantifying its “qualitative” information is therefore impossi­
ble; Dr. Anderson accordingly “didn’t check” defense counsel’s hypothetically 
phrased computations of X40 on cross-examination), and  X40 (reflecting over 
250 “examples” of actual residential moves by blacks from one metropolitan- 
area school district to another in order to secure schooling, and 800 examples 
of transfers of all kinds for that purpose), with  SSD Brf 4 (citing defense 
counsel’s hypothetical “approximation” of X40 in a cross-examination 
question—which computation counsel qualified by admitting his ‘ ‘math may 
be o ff’ (T4557), the witness never verified in his answers, and the district 
court expressly refused to credit (compare SSD Proposed Findings at 14,43, 
with 6/5/84 Opn passim )—for the grossly inaccurate assertion that “only 
about 20 arguable moves for alleged school reasons in the entire 1900-54 
period were found to exist”).

h. Compare T15338-9,15695-6 (Dr. Orfield’s testimony that, once he under­
takes a study, he continues searching for additional relevant information), 
with SSD Brf 12 n.9 (characterizing this testimony as beingthat “[Orfield’s] 
study was not even finished when he testified”). Compare also id. at 12 n.9, 
49 (accusing Dr. Orfield of advocating positions “for hire”) with T14663, 
15451-53 (Dr. Orfield’s testimony that, except when employed as the court’s 
expert (as, e.g., in St. Louis), he never accepts a fee, in order to avoid any 
suggestion such as the SSDs make here that he would testify other than  
his research findings dictate). Plaintiffs encourage the Court to read Dr. 
Orfield’s testimony in its entirety (T.Vols. 57-60), not only as an antidote to 
the SSDs’ mischaracterizations, but also as the best single evidentiary syn­
thesis of the case. See generally, Adams, 620 F.2d at 1293-95 & nn.23-27.

i. The SSDs’ unspecific assertion in an extra-brief filing that the form 
of plaintiffs’ opening brief does “not appear to comply with the applicable 
rules” is incorrect. Plaintiffs’ brief complies with all rules of this Court and 
F.R.A.P.

35





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LAW  O FF IC ES

B E N S O N  S  MCKAY
1 4 3 0  C O M M E R C E  T O W E R  

011 M A IN  S T R E E T

A R T H U R  A .  B E N S O N  0  K A N S A S  C IT Y , M IS S O U R I 6 4 1 0 5  A R E A  C O D E  8 1 6

J O H N  E . M CK AY, P . C .  8 4 2 - 7 6 0 3

S U Z A N N E  M .P E T R E N

October 15, 1985
*

The Honorable R obert D. S t. V rain , C lerk 
U nited S ta te s  Court of Appeals fo r  the 

E ighth  C irc u it
511 U. S. Court and Customs House 
1114 Market S tr e e t  
S t .  Louis, MO 63101

Re: Nos. 85-1765VW, 85-1949VM, Jenk ins v. M issouri

Dear Mr. S t. V rain :

The Suburban School D is t r i c t  Defendants (SSDs) supplem ented th e i r  12 f u l l - le n g th  
a p p e lle e s ' b r i e f s  in  th i s  case w ith  a Motion, "B rief"  in  support, and a tta c h ­
ments f i l e d  September 24, 1985. On September 27, 1985, the Court g ran ted  p la in ­
t i f f s  leave to  respond to  those e x tr a -b r ie f  f i l in g s  sim ultaneously  w ith  th e i r  
re p ly  b r ie f s .

C arefu l c o n s id e ra tio n  rev ea ls  th a t  the SSDs' Motion and supporting  p ap ers , in so ­
f a r  as they seek any a c tio n  by the C ourt, m erely am plify arguments in t h e i r  12 
opening b r ie f s .  Such arguments, o f course , a re  a p p ro p ria te ly  responded to  in  a 
re p ly  b r i e f ,  and p l a i n t i f f s  see no good reason to  prolong th i s  case by engaging 
in  a second and delayed s e t  of b r ie f s ,  responses and re p l ie s  on the  sane issu es  
covered in  th e  f i r s t  s e t ,  p a r t ic u la r ly  given th a t  the  scheduling and page l im its  
fo r  the  f i r s t  s e t  were long ago e s ta b lish e d  and have sin ce  been s t r i c t l y  
follow ed by the  C ourt. A ccordingly, because our rep ly  to  the SSDs' 12 opening 
b r ie f s  responds in the  re g u la r  oourse to  a l l  arguments they make in  support of 
a ffirm an ce , we see  no need to  and do not respond to  th e i r  e x tr a -b r ie f  f i l in g s .

We reg u es t th a t  th i s  l e t t e r  be c irc u la te d  to  the Court along w ith  the b r ie f s  and 
th e  e x tr a -b r ie f  f i l in g s  by the SSDs.

A rthur A. Benson I I

A ttorney  Kalima Je n k in s , e t  a l . , P la in t if f s -A p p e l la n ts  

AAB/dlp

cc: A ll Counsel o f Record