Jenkins v. Missouri Petition for a Writ Certiorari to the US Court of Appeals for the Eighth Circuit

    No. 86-

In the Supreme Court of the United States
OCTOBER TERM, 1986

KALIMA JENKINS, et al,
Petitioners,

-v-
THE STATE OF MISSOURI, et al., 

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

* Attorney of Record

James S. Liebm an*
Columbia U niversity School 

of Law
435 W est 116th S treet 
Box B-16
New York, New York 10027 
212-280-3423

A rthur A. B enson II 
1430 Commerce Tower 
911 Main S treet 
Kansas City, Missouri 64105 
816-842-7603

J ulius L. Chambers 
James M. N abrit III 
Theodore M. S haw 

99 Hudson Street, 16th Floor 
New York, New York 10013 
212-219-1900

Attorneys for Petitioners 
Kalima Jenkins, et al.

E, L. Mssmdenhall, I nc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8030



QUESTIONS PRESENTED

In this interdistrict school deseg­
regation case, the District Court found 
that Missouri's intentionally discrimina­
tory school and housing policies before 

1954 segregated black children into the 
Kansas City School District and white 
children into the 11 surrounding school 
districts; that the State's and the Kansas 
City District's unconstitutional actions 
after 1954 preserved and expanded inter­
district segregation; that the United 
States Department of Housing and Urban 
Development and its predecessors complied 
in the State's housing violations before 
1954 and funded its housing violations 
thereafter; and that all these actions 
continue to segregate black and white 
children into separate Kansas City school 
districts today.

The District Court and the evenly
x



divided en banc court below nonetheless
denied interdistrict school desegregation 
relief. They ruled that the Fourteenth 
Amendment does not prohibit intentional 
racial segregation among school districts 
caused by governmental actors other than 
the school districts themselves. Under 
these circumstances, this petition pre­
sents the following guestions:

1. Whether, having found that 
Missouri intentionally segregated black 
children into one of the school districts 
in the City of Kansas City and white 
children into the surrounding districts, 
the courts below erroneously denied inter­
district relief on the ground that the 
State and not the surrounding school 
districts caused that segregation?

2. Whether, having found that 
Missouri and the other defendants inten­
tionally segregated black and white

- ii -



children into separate school districts 
before 1954 and took no steps thereafter 
to remedy that interdistrict segregation, 
the courts below erred by denying inter­
district relief without considering the 
continuing areawide effects of the defen­
dants' post-1954 segregative conduct?

i n



PARTIES TO THE PROCEEDING 
IN THE COURT OF APPEALS

The parties to the proceeding in the 
Court of Appeals were as follows:
Appellants/cross-appellees (now petitioners)

Kalima Jenkins, by her next friend,
Kamau Agyei

Carolyn Dawson, by her next friend, 
Richard Dawson

Tufanza A. Byrd, by her next friend, 
Teresa Byrd

Derek A. Dydell, by his next friend, 
Maurice Dydell

Terrance Cason, by his next friend, 
Antoria Cason

Jonathan Wiggins, by his next friend, 
Rosemary Jacobs Love

Kirk Allan Ward, by his next friend,
Mary Ward

Robert M. Hall, by his next friend,
Denise Hall

Dwayne A. Turrentine, by his next friend, 
Sheila Turrentine

Gregory A. Pugh, by his next friend, 
Barbara Pugh

Cynthia Winters, by her next friend,
David Winters, on behalf of them­
selves and the class of black and 
white present and future students 
in the Kansas City, Missouri 
School District.

- i v -



Appellant/cross-appellees (now peti­
tioners) the Kansas City, Missouri School 
District and Dr. Claude Perkins, then- 
Superintendent.

Appellant/cross-appellee Kansas City, 
Missouri Federation of Teachers, Local 691

Appellees/cross-appellants:
The State of Missouri
Honorable John Ashcroft, Governor of the 

State of Missouri
Arthur L . Mallory, Commissioner of

Education of the State of Missouri
Wendell Bailey, Treasurer of the State 

of Missouri
The Missouri State Board of Education:
Roseann Bentley
Dan Blackwell
Terry A. Bond, President
Delmar A. Cobble
Grover Gamm
Jimmy Robertson
Robert L. Welling
Donald E. West

Appellees:
Park Hill School District R-5 and Dr.

Merlin A. Ludwig, Superintendent
North Kansas City, Missouri School District 

and Dr. Raymond Waier, Superintendent

v



School District of the City of Independence 
and Dr. Robert Henley, Superintendent

Raytown, Missouri Consolidated School Dis­
trict C-2 and Dr. Robert Atkin, Super- 
i ntendent

Center School District and Donald Richmond, 
Superintendent

Hickman Mills Consolidated School District 
C — 1 and Blaine E. Steck, Superintendent

Grandview Consolidated School District C-4 
and Dr. Tony L. Stansberry, Superinten­
dent

Fort Osage School District R-l and Victor 
Gragg, Superintendent

Lee's Summit Reorganized School District 
R-7 and Dr. Bernard C. Campbell, Super- 
i ntendent

Blue Springs Reorganized School District 
R-4 and Dr. Gale T. Bartow, Superinten­
dent

Liberty School District and Dr. Ronald L. 
Anderson, Superintendent

United States Department of Housinq and 
Urban Development and Secretary Samuel 
Pierce

vi



TABLE OF CONTENTS

QUESTIONS PRESENTED.......     i
PARTIES TO THE PROCEEDING IN THE

COURT OF APPEALS..............    iv
TABLE OF AUTHORITIES....................  ix
OPINIONS BELOW...........................  2
JURISDICTION. ......................   2
CONSTITUTIONAL PROVISIONS INVOLVED......  2
STATEMENT OF THE CASE......  .....  3

I. Preliminary Statement........  3
11. The District Court's Inter­

district Violation and Effect 
Findings..........................  9
A. The State's Violations and

Their Effects.............   12
B. Findings as to the 11

Surrounding Districts.......  23
III. Post-Trial Proceedings......... 27

- vii -



REASONS FOR GRANTING THE WRIT 33
I. The Court Should Grant Certi­

orari To Resolve Conflicts That 
Have Arisen Over Whether 
Milliken v. Bradley Permits 
State Officials Deliberately To 
Segregate A Single City's 
Children Into Separate School 
Districts So Long As The State 
And Not The Surrounding White 
Districts Is To Blame For That 
Segregation. .................... . 33
A. The Court Should Grant 

Certiorari To Resolve The 
Conflict Between The Judg­
ment Below And Its Decision
in Milliken v. Bradley..... 34

B. The Court Should Grant
Certiorari To Resolve The 
Conflict Among The Third, 
Fourth, Fifth, Sixth, And 
Seventh Circuits Over The 
Proper Interpretation Of 
Milliken........ . 39

II. The Court Should Grant Certi­
orari To Resolve The Conflict 
Between The Judgment Below And 
The Third And Other Circuits 
Over Whether The Affirmative 
Constitutional Duty To Dismantle 
The Effects Of Prior De Jure 
Segregation Applies In Inter-
District Cases.............. . 48

CONCLUSION.............................. . . 59

viii



TABLE OF AUTHORITIES

Cases
Afroyim 

387
Bell v. 

683

v. Rusk,
U.S. 253 ( 1976)...................47
Board of Education,
F . 2 d  963  ( 6 t h  Cir. 1982 ) . . 3 0 , 4 3 , 4 4

Bradley v. School Board,
462 F . 2d 1058 (4th Cir. 1978)
(en banc), aff!d, 412 U.S,
92 (1973) . ..............................45

Brinkman v. Gilligan,
446 F.. Supp. 1212 (S.D. Ohio)___ 50,51

Bronson v. Board of Education,
578 F. Supp. 1091 (S.D. Ohio
1984) . ...............................43,44

Brown v. Board of Education,
347 U.S. 483 ( 1954)... .......5,8,14,15

Columbus Board of Education v. Penick,
443 U.S. 449 (1979)....... ..... . .49,50

Continental T .V . , Inc. v. GTE
Sylvania, Inc., 433 U.S. 36 (1977)..47

Dayton Board of Education v. Brinkman,
433 U.S. 406 ( 1977)........ ........ . 50

Dayton Board of Education v. Brinkman,
443 U.S. 526 (1979)
( Dayton II)......... 22,48,50,51,53,58

Evans v. Buchanan, 393 F . Supp.
4 28 (D. Del.) (3-judge court), 
aff'd, 423 U.S. 963 ( 1975)___ 37,56,58

ix



Evans v. Buchanan, 416 F. Supp.
328 (D. Del. 1976), aff'd, 555 F.2d 
373 (3d Cir. 1977) (en banc)....37,40,

41,56,58

Evans v. Buchanan, 582 F .2d 750
(3d Cir. 1978) (en banc)...... 41,56,58

Goldsboro City Board of Education v.
Wayne County Board of Education,
745 F . 2d 324 (4th Cir. 1984)........ 46

Hart v. Community School Board,
512 F . 2d 371 (2d Cir. 1975).........44

Hoots v. Commonwealth,
672 F .2d 1107 (3d Cir. 1982)____.40,58

Jenkins v. Missouri,
639 F. Supp. 19 (W.D. Mo. 1985)..28,29

Keyes v. School Dist. No. 1,
413 U.S. 189 (1973).....48,50,54,55,58

Lee v. Lee County Board of Education,
639 F .2d 1243 ( 5th Cir. 1981)____54,55

Milliken v. Bradley,
418 U.S. 717 (1974).............passim

Morrilton School District No. 32 v .
United States, 606 F .2d 222 (8th 
Cir. 1979) .  ....................... 31,58

Newburg Area Council, Inc. v . Board of 
Education, 510 F .2d 1358 (6th 
Cir. 1974)............. ...............58

Oliver v. Kalamazoo Board of Education
640 F . 2d 782 ( 6th Cir. 1980)___ ____ 44

Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1
( 1971).............  18,44,48,50,54,55,58

x



Taylor v. Ouachita Parish School Board,
648 F . 2d 959 (5th Cir. 1981)........ 46

United States v. Board of School 
Commissioners of the City of 
Indianapolis, 573 F.2d 400 
( 7th Cir. 1978)................. ..... 42

United States v. Board of School 
Commissioners of the City of 
Indianapolis, 637 F .2d 1101 
( 7th Cir. 1980)....... ............ 42,58

United States v. Scotland Neck Board
of Education, 407 U.S. 484 (1972)...42

United States v. Texas,
321 F. Supp. 1043 (E.D. Tex. 1970), 
aff'd, 447 F . 2d 441 (1971)...........46

United States v. Yonkers Board of 
Education, 624 F . Supp. 1276 
(S.D.N.Y. 1985)....................... 44

Wright v. Council of City of Emporia,
407 U.S. 451 (1972)........___ .49,58

Ybarra v. City of San Jose,
503 F . 2d 1041 (9th Cir. 1974)....... 44

Statutes
Act of July 6, 19 57, 1957 Mo. Laws 454... 6
Act of July 6, 1965, 1965 Mo. Laws 275... 6
Mo. Rev. Stat. § 162.563..... ..............7
Mo. Rev. Stat. § 162.571................... 7
Other Authorities
Note, Housing Discrimination as a

Basis for Interdistrict School
Desegregation Relief, 93 Yale
L.J. 340 ( 1983)..................... 44

xi



1

No. 86- 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1986

KALIMA JENKINS, efc al., 
Petitioners,

-v-
THE STATE OF MISSOURI, et al., 

Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Petitioners, KALIMA JENKINS, et al., 
respectfully pray that a writ of cer­
tiorari issue to review the judgment of 
the United States Court of Appeals for the 
Eighth Circuit affirming by an equally 
divided en banc vote the denial of inter­
district school desegregation relief



2
OPINIONS BELOW

The opinion of the United States Court 
of Appeals for the Eighth Circuit, 
reported at 807 F . 2d 657, is set out in 
the Appendix, 2a. The unpublished June 
5, 1984 order of the United States
District Court for the Western District of 
Missouri is at 274a. The September 17,
1984 decision of the District Court, 
reported at 593 F. Supp. 1485, is at 518a.

JURISDICTION
The jurisdiction of the Court is 

invoked under 28 U.S.C. § 1254(1). The
Court of Appeals entered judgment on 
December 5, 1986, and denied rehearing on 
February 5, 1987.

CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Fifth Amendment 

to the Constitution of the United States, 
which provides in relevant part:



3

[N]or shall any person . . .  be 
deprived of life, liberty, or 
property, without due process of 
law;

and the Fourteenth Amendment to the
Constitution of the United States, which
provides in relevant part:

[N]or shall any State . . . deny
to any person within its juris­
diction the equal protection of 
the laws.

STATEMENT OF THE CASE

I. Preliminary Statement.
This is an interdistrict school deseg­

regation case. Petitioners, Kalima 
Jenkins et al., are the plaintiff class of 
public school children in the Kansas City, 
Missouri School District ("the Kansas City 
District," or "KCMSD").

The Kansas City District is one of 13 
school districts located wholly or partly 
within the City of Kansas City. Encompas­



4

sing only a fourth of the City's territory 
but all of its predominantly black neigh­
borhoods, the Kansas City District is 68 
percent black. Its professional staff is 
53 percent black. Exhibits (X) 9, 36, 
53G, 3757. Surrounding the Kansas City 
District on three sides and encompassing 
most of the remaining three-fourths of the 
City of Kansas City are the respondent 
school districts. Those 11 districts have 
a combined student population less than 
five percent black and a professional 
staff less than one percent black. 
Together, the Kansas City District and the 
11 surrounding districts have a student 
body less than 25 percent black.1

•̂-X 9, 36, 53G, 721G. Also referred to here as 
the "surrounding school districts" and the 
"SSDs," the 11 respondent districts are the Blue 
Springs, Center, Fort Osage, Grandview, Hickman



City of Kansas City and Twelve Area School Districts

Missouri School District boundaries in blue

Missouri

City of Kansas City, Missouri in yellow 
Location of census tracts where percentage of 
black residents exceeds 60% in brown.

Rendered from Plaintiffs' Exhibits 9 and 36



5

The District Court found that, for a 
century before Brown v. Board of Education, 
347 U.S. 483 (1954), the State of Missouri 
(i) discriminatorily confined its de jure 
segregated schools for blacks to the 
Kansas City District while locating 
schools for whites throughout the Kansas 
City area, and (ii) enforced racially 
restrictive covenants in the parts of the 
City now served by the surrounding 
districts but not in the older neigh­
borhoods served by the Kansas City 
District. The District Court determined 
that these and other intentionally discri­
minatory acts influenced the patterns of 
residential development of the metropoli-

Mills, Independence, Lee’s Summit, Liberty, North 
Kansas City, Park Hill, and Raytown School 
Districts. The State of Missouri and the United 
States Department of Housing and Urban Develop­
ment (HUD) are also respondents. The Kansas City 
District is a petitioner.



6
tan area, had an important impact on the 
composition of inner city neighborhoods, 
and "continue [] to have a significant 
effect in the Kansas City area" today. 
September 1984 Decision, 530a-37a, 568a-
69a, 601a-02a.

The District Court also found that 
the Missouri Legislature in 1957, the same 
year it repealed its mandatory school 
segregation laws, adopted legislation 
exempting Kansas City from the city/dis­
trict coterminousness rule applied to 
other Missouri cities. But for this 
legislation, the 74 percent minority 
District of Kansas City instead would 
today have the same boundaries as the 73 
percent white City of Kansas City and 
would encompass all or parts of nine of 
the predominantly white surrounding school 
districts.2

2 June 1984 Order, 334a-39a (discussing Act 
of July 6, 1957, 1957 Mo. Laws 454; Act of July 
6, 1965, 1965 Mo. Laws 275, 276-77 (1965),



- 7

The District Court denied interdistrict 
relief and dismissed the surrounding 
school districts. It ruled that Milliken 
v. Bradley, 418 U.S. 717 (1974), prohi­
bited those districts' inclusion in a 
remedy for Missouri's intentional segrega­
tion of white children into those 
districts and black children into the 
Kansas City District because the State and 
not the surrounding districts caused the 
segregation.

The United States Court of Appeals for 
the Eighth Circuit sitting en banc 
affirmed by an evenly divided votes Four 
judges (Judge Gibson, joined by Judges

codified, Mo. Rev. Stat. §§ 162.563, 162.571). 
Rut for this legislation, the Kansas City Dis­
trict automatically would have Quadrupled in 
size and became coterminous with the City of 
Kansas City in 1970. All the respondent school 
districts except Blue Springs and Fort Osage lie 
wholly or partly within the City of Kansas City. 
Three of the City's 13 school districts are not 
part of this suit. See map, supra.



8
Ross, Fagg, and Wollman) voted to affirm. 
Based on their reading of Fourth, Fifth, 
and Sixth Circuit precedents, those judges 
interpreted Milliken v. Bradley to immu­
nize governmentally sponsored racial 
discrimination from constitutional cure so 
long as the resulting segregation affects 
school districts not themselves respon­
sible for causing it. P. 30, infra. Four 
judges (Chief Judge Lay, joined by Judges 
Heaney and McMillian, and Judge Arnold) 
voted to reverse. Applying the rule of 
the Third and Seventh Circuits, those 
judges concluded that, if the State of 
Missouri intentionally segregated black 
children out of the surrounding districts 
and into the Kansas City District, then 
Brown and Milliken obligate the State to 
cure that segregation whether or not the 
surrounding districts helped create it.



9
Pp. 31-33, infra.

The inconclusive en banc judgment 
below leaves the constitutional rights of 
the plaintiff class in legal limbo and 
36,000 plaintiff children in racially 
segregated schools. It also leaves the 
six judicial circuits that have addressed 
the guestion in conflict and metropolitan 
areas throughout the Nation in confusion 
as to the dispositive legal standards 
under Milliken. This petition presents 
issues of sufficient public importance to 
warrant the Court's plenary consideration.

II. The District Court's Interdistrict
Violation and Effect Findings

Trial of this case began in October 
1983. In the middle of trial, the Court 
granted the surrounding school districts' 
motions to be dismissed under Fed. R. Civ.



10

p. 41(b) and denied interdistrict relief. 
After trial, the District Court dismissed 
HUD but ruled that the State of Missouri 
and the Kansas City District were guilty 
of intentional racial segregation with 
effects in both the Kansas City District 
and the school districts surrounding it. 
The Court nonetheless denied interdistrict 
relief.

Consistent with its interpretation 
of Milliken v. Bradley, the District Court 
separated its interdistrict violation/ 
effects findings into two sets. The first 
set, announced during trial in the 
District Court's unpublished June 1984 
Order, considers the intentional viola­
tions of only the 11 respondent school 
districts and the effects of those viola- 
t ions on only the Kansas City District.
274a. The second set of findings,



11

announced after trial in the District 
Court's published September 1984 Decision, 
considers the constitutional violations 
committed by the State of Missouri, the 
Kansas City District, and HUD and the 
effects of those violations on both the 
Kansas City District and the surrounding 
districts. 518a.

Explaining why it dismissed the sur­
rounding school districts before reaching 
a conclusion about the effects of the 
violations committed by Missouri and the 
other defendants, the District Court 
s tated that " [t]he linchpin of an inter­
district case, as declared by the Supreme 
Court, is whether there has been a 
racially discriminatory act by each 
district that substantially caused segre­
gation in another district." June 1984 
Order, 285a (citing Milliken, supra). The 
District Court accordingly held as a



12

matter of law that "[wjhether plaintiffs' 
evidence [is] sufficient to sustain a 
finding of liability against other actors 
. . . is irrelevant to the instant motions
to dismiss filed by each SSD defendant." 
The absence of complicity by the 
surrounding districts in "the actions of 
those responsible for shaping [segregated] 
patterns," the District Court concluded, 
"forbids a finding of liability against 
the SSDs to remedy any racial imbalance 
[within those districts] that may be 
attributed to [the other] actors."3

A. The State's Violations and Their Effects
De Jure School Segregation. Below,

" [t]he State admitted and the [District] 
Court judicially noticed that Missouri

3June 1984 Order, 508a-09a. Accord, e.g., 
Trial Transcript (T) 24,561-62 (court's statement 
the last day of trial explaining its previous 
dismissal of the surrounding districts: "But I



- 13
mandated segregated schools for black and 
white children before 1954." 530a. (Cit­
ations in this section are to the District 
Court's September 1984 Decision, unless 
noted.)

During the 90 years when Missouri law 
mandated school segregation, the State's 
black population was widely dispersed 
throughout tens of thousands of one-room 
school districts. X 184, 208-12, 2322. 
Instead of heeding those districts' 
periodic requests to be allowed to educate 
their black and white children together in 
the limited facilities available, Missouri 
enacted a series of statutes reguiring 
districts with small numbers of black

was bound by law, as I read it at the time, that 
you cannot require an entity to be part of the 
[interdistrict] remedy unless you found a 
constitutional violation on the part of that 
entity").



14
children to transfer them at State expense 
to neighboring districts that had 
collected enough blacks to justify 
constructing a separate school. KCMSD 
Petition, 3-7 & nn. 8-18 (collecting sta­
tutes and record citations). The District 
Court found that " [e]ach school district 
in Missouri participated in this dual 
school system before it was declared 
unconstitutional in Brown I. Districts 
with an insufficient number of blacks to 
maintain the state-required separate 
school made interdistrict arrangements to 
educate those children.* 531a-32a.

In 1900, 22 percent of the 7,000 black 
public school students in the Kansas City 
area lived outside the Kansas City 
District and within 55 predecessors of 10 
of the 11 "Reorganized" or "Consolidated" 
respondent districts. Six of those



15

districts (Blue Springs, Center, Fort 
Osage, Grandview, Hickman Mills, and 
Raytown) never operated schools of any 
sort for black children prior to Brown; a 
seventh (Lee's Summit) closed its only 
black school in 1910; an eighth and ninth 
(North Kansas City and Park Hill) never 
operated high schools for black children; 
and all 11 lacked a high school for black 
children at the time of Brown. By 
contrast, the State reguired the Kansas 
City District to operate a full complement 
of segregated schools for black children 
throughout the pre-Brown period, and those 
schools received black children -—  some- 
t imes by the busload —  from at least 
seven respondent school districts. June 
1984 Order, 372a-476a; Opn. of Lay, C.J., 
2 lla-14a & n.9; X 37-39, 49, 49B, 53E,
1830-40.

The District Court attributed two 
effects to the state-mandated and state-



16

financed "interdistrict system of locating 
dual schools." Opn. of Gibson, J., 49a. 
First, the District Court found that black 
families " [u]ndeniably" moved from the 
respondent districts "to districts, 
including the KCMSD, that provided black 
schools."4

More importantly, the District Court 
found that the interdistrict dual school 
system diverted into the Kansas City 
District and away from the surrounding 
school districts "the great!'] influx of 
blacks" migrating to the Kansas City area 
from southern and border states during the 
two World Wars. 533a. Noting the impor­
tance of " [e]conomic and job opportunities 
. . . in black migration," the court found
that " [o]f ten jobs would pull migrants to

453la-32a. See Opn. of Lay, C.J., 247a-50a & 
n.18. In 1900, the SSDs had 22% of the area's 
7,000 black children; in 1954, they had 2.5%.
In 1900, the proportion of black students in the



17

the city and then availability of schools 
would influence, more specifically, what 
housing choices would be made within the 
city."5

The District Court concluded that 
"Missouri's legacy" of dual schools 
" 'influence[d] the patterns of residential 
development of [the] metropolitan area and 
ha[d] important impact on composition 
of inner city neighborhoods,'" and "that 
segregated schools, a constitutional vio­
lation, has led to white flight from the 
KCMSD to [the SSDs] . . . and that it has 
caused a system-wide reduction in student 
achievement in the schools of KCMSD."

surrounding districts was nearly identical to 
that in the KCMSD (7% vs. 9%); by 1954, the SSDs' 
preportion of blacks had dropped to 1%, while 
KCMSD's had doubled. While losing 75% of their 
black student population between 1900 and 1954, 
the SSDs' white student population grew by nearly 
300%. X 53E.

-1534a. The District Court found that: "[T]here 
is an inextricable connect ion between schools and 
housing. 'People gravitate toward school facili­
ties, just as schools are located in response to



18

536a-37a (quoting Swann v. Charlotte- 
Mecklenburq Board of Education, 402 U.S. 
1, 20-21 (1971)); August 25, 1986 Order,

1-2. See September 1984 Decision, 
555a.

De Jure Housing Discrimination, The 
District Court listed a number of other 
actions the State undertook before Brown 
"which were discriminatory against 
blacks," had "the effect of placing the 
State’s imprimatur on racial discrimina­
tion," and "ha[d] and continue [ ] to have a

the needs of the people.'" 537a (quoting Swann 
v. Charlotte-Mecklenburq Board of Education, 402 
U.S. 1, 20-21 (1971)). "Before 1954, access to 
schools was one of many reasons [in-migrating] 
blacks chose to rove into the KCM3D" rather than 
the_surrounding districts. 533a. "Regardless of 
their motivation for coming, once here, blacks 
settled in the inner city or, the 'principle 
black contiguous areas'" where the region's only 
"segregated facilites with segregated staffs" 
were located. 535a, 542a. "This inmigration 
coupled with a high birth rate resulted in the 
Kansas City black population doubling fran 41,574 
in 1940 to 83,740 in 1960." 533a.



19

significant effect on the dual housing 
market in the Kansas City area." id., 
601a~02a (emphasis added). The Court 
found, for example, that: 1. Until 1953, 
the State's "mass enforcement" of racially 
restrictive covenants prevented blacks 
from moving into neighborhoods in all but 
one of the 11 surrounding districts and 
caused the Federal Housing Administration 
(FHA) unt i1 19 59 to withhold f inanci ng 
from housing developments in those 
districts with "incompatible" "racial" 
and "social" groups. 2. Between 1953 and 
1973, the State's Land Clearance for 
Redevelopment Agency, with HUD funding, 
"practiced discrimination in relocating 
[13,000 households] displaced by urban 
renewal, steering blacks to southeastern 
Kansas City [served by the Kansas City 
District] and relocating whites throughout



20
the [13 school districts in the] city." 
3. The State's Housing Authority of 
Kansas City, also with HUD funding, 
"explicitly segregated its housing units 
until 1958, . . . may have continued seg­
regative practices until 1964,*' and was 
found by HUD in 1976 to have violated 
Title VI of the 1964 Civil Rights Act for 
the preceding eight years by not placing 
white families in the projects it pre­
viously had reserved "for Negro families" 
and black families in the projects it pre­
viously had reserved "for whites."6

The Court determined that the State- 
sponsored "dual housing market, which 
still exists to a large degree today, 
impacted blacks in the KCMSD and con­
sequently caused the public schools to 
swell in black enrollment." 536a-37a.

6536a (citing T 12,974-75), 567-72a, 577a; Opn. 
of Arnold, J., 158a-65a; X 22, 3531. See X 27F
(20,000 units of public and subsidized housing in 
Kansas City area). Finding that the State's



2 1

"The intensity of segregation is demon­
strated by the fact that the average black 
family [in the KCMSD] lives in a census

enforcement of racial covenants affected economic 
"realities," the District Court concluded that 
"FHA did not act arbitrarily []or capriciously in 
giving [those] covenants consideration" in admin­
istering its housing subsidy and accordingly 
that the agency is not constitutionally liable 
for its explicitly racial policies of the 1930s, 
1940s and 1950s. 566a, 569a. Four of the eight 
judges below voted to reverse the District Court 
on this point. Opn. of Lay, C.J., 216a-19a; Opn. 
of Arnold, J., 163a n.10. Hie District Court and 
Judge Gibson also excused HUD for knowingly 
funding the State’s discriminatory relocation and 
public housing policies in the 1940s-1960s 
because (i) HUD-funded housing is located 
throughout the Kansas City area and (ii) HUD took 
steps in the mid-1970s to end those discrimina­
tory policies. 573a-78a. Judge Arnold comments: 
"Both of these points involve a misapprehension 
of the plaintiffs' claims: As to the first, the 
claim is not that unbalanced housing site selec­
tion . . . caused interdistrict segregation, but 
instead that once the projects were built, HAKC 
explicitly segregated them, or later, steered 
whites to some projects and blacks to others. As 
to the second, the plaintiffs' complaint is not 
primarily about HAKC and LCRA activities in the 
1970s; LCRA practiced discrimination from 1953 to 
1973, and the plaintiffs contend that HAKC segre­
gated its housing units from its inception in 
1939 . . . ." Opn. of Arnold, J., 173a-74a. 
Accord, Lay, C.J., 216a-19a.



2 2

tract that is 85% black while the average 
white family [in the SSDs] lives in a cen­
sus tract that is 99% white." 535a (citing 
T 14,739, 14,745).

Affirmative Duty Violations. Measur­
ing the State's post-1954 conduct by its 
" 'effectiveness, not [its] purpose'" in 
"'decreasing or increasing the segregation 
caused by the dual system,'" the District 
Court found that "the State as a collec­
tive entity . . . fail fed] to affirma­
tively act to eliminate the structure and 
effects of its past dual system." 605a, 
611a (quoting Dayton Board of Education 
v. Brinkman, 443 U.S. 526, 538 (1979)). 
In particular, the District Court cited 
the General Assembly's failure to enact 
legislation to "abolish or create school 
districts" or, if "necessary . . . change
them" in a desegregative manner. 607a-



23

08a. Prominent among the State's post- 
1954 defaults in this regard was its 
enactment in 1957 of H.B. 171, dis­
cussed at p. 6, supra. See also June 
1984 Order, 316a-52a (other post-1954 
segregative actions).

B. Findings As To The 11 Surrounding
Districts
In keeping with its interpretation of 

Milliken, the District Court in its June 
1984 findings held the surrounding 
districts responsible only for those 
aspects of Missouri's interdistrict dual 
system for which the districts, and not 
the State, had primary responsibility. 
Sifting the evidence, the Court held the 
surrounding districts responsible only for 
the modestly "blackening" effect on the 
Kansas City District of blacks moving from
the surrounding districts and not for the



24
nearly complete "whitening" effect on 
the surrounding districts themselves (see 
note 4, supra), or for the dual system's 
diversion of thousands of in-migrating 
blacks exclusively into the Kansas City 
District. The Court concluded that the 
effects it did attribute to the surround­
ing districts were "de minim[i]s ."7

The District Court next found the 
surrounding districts innocent of any 
housing violations and refused as a matter 
of law "to find the SSDs liable for racial 
imbalance" in their districts "that may be 
attributed to policies or practices of 
[state] housing actors." 37 0a-71a. The 
Court likewise refused to consider the ef­
fects in those districts of the State's

7"[P]laintiffs had to prove first that the 
segregated schools existing before 1954 were the 
direct and substantial cause of blacks leaving 
each defendant district; second, assuming that 
occurred, that it had a significant segregative 
effect in the KCM5D. Plaintiffs' proof was 
weak, speculative and in any event de minim[i]s." 
301a (emphasis added; citations emitted). Accord,



25
post-1954 affirmative-duty violations.^

Having ruled irrelevant to the sur­
rounding districts and to plaintiffs' 
interdistrict claims (i) the major segre­
gative consequences of the State's 
pre-1954 interdistrict dual school system, 
(ii) all the multidistrict effects of the 
State's and other parties' area-wide 
housing violations, and (iii) the City­
wide effects of the State's post-1954

Opn. of Gibson, J., 49a. Applying a different 
interpretation of Milliken, Chief Judge Lay 
took a wider view of the surrounding districts' 
role in the interdistrict system: " [U]nder the 
pre-1954 dual school system the SSDs exercised 
their discretion, granted them by the state, 
either to provide schools for black students 
which offered at best a substandard education or 
to decline to provide any schools at all. 
Instead, the SSDs transferred black students to 
the KCM3D. » . . Not only did the SSDs thus 
create segregated conditions in their individual 
districts by enptying their districts of all 
black school children, but they set historical 
precedent for interdistrict transfer of students 
on the basis of race in the Kansas City metro­
politan area." 225a-26a,

^September 1984 Decision, 605a~08a. The 
District Court found that, by 1960, each SSD had 
"disraantl[ed] [its] dual system" by "sending its



26
City District's 
Court held that

freezing of the Kansas 
boundaries, the District

students to school without regard to race." 503a. 
(As of 1954, the 11 surrounding school districts 
had about 200 black children left, to be 
integrated with 20,000 white children. X 
53.) Based on this "unitariness" finding, the 
District Court exonerated the SSDs of any liabi­
lity for the various actions it found those 
districts took after 1954 without segregative 
intent but with massive segregative effects. 
316a-52a. In particular, while successfully sup­
porting passage of H.B. 171 and other legislation 
making it virtually inpossible for the Kansas 
City District to annex the predominantly white 
areas surrounding it, the SSDs actively and suc­
cessfully opposed four legislative proposals for 
desegregative school-district reorganization; at 
least seven plans for integrative student 
exchanges, including two by the United States 
Civil Rights Commission (in 1977 and 1981) and 
two by the Kansas City District (in 1969 and 
1975); and three proposals to increase minority 
and government-subsidized housing opportunites in 
their jurisdictions. 316a-52a, 371a-72a, 377a, 
381a, 389a, 398a-99a, 409a, 461a, 489a-90a. 
Likewise, in 1974, the SSDs in the City of Kansas 
City would not accept proceeds from a citywide 
1/2-cent sales tax for education until the City 
Assessor assured one of them in writing that, by 
taking the money, they were not committed to par­
ticipating in desegregative interdistrict trans­
fers between themselves (at the time 1% black) 
and the Kansas City District (at the time 58% 
black). 318a-20a. See X 53G, 1763, 1766. Four 
judges dissented from the District Court's 
handling of these issues. Opn. of Lay, C.J., 
256a-58a; Opn. of Arnold, J., 165a-66a.



27

the current effects of the few violations 

ifc did consider were "legally insufficient 
to justify the relief sought against the 
suburban school district defendants." 
499a. So, too, having concluded that SSD 
innocence precluded interdistrict relief, 
the District Court expressly refused to 
consider the "cumulative" interdistrict 
effects of the other parties' violations. 
498-99a. See Opn. of Arnold, J. , 146 
n . l ,  157a-58a, 164a.

III. Post-Trial Proceedings

The District Court refused to include 
the surrounding districts in a remedy for 
the explicitly interdistrict violation and 
effects it found because, in its view, the 
State's violations gave the Court "no 
power to restructure the operation of [the 
dismissed surrounding districts] absent a



28

constitutional violation by those enti­
ties.” September 1984 Decision, 608a.

Having barred interdistrict desegre­
gation relief, the District Court also 
ruled out mandatory intradistrict desegre­
gation measures, fearing that reassignment 
of students within the Kansas City 
District would cause its few remaining 
white students to flee. Instead, the 
District Court ordered the State in June 
1985 to pay all the tuition and transpor­
tation costs of any KCMSD black child who 
wished to transfer to a school in any of 
the surrounding school districts that 
voluntarily agreed to accept black trans­
fers from the KCMSD. Jenkins v. Missouri, 
639 F. Supp. 19, 35-39 (W.D. Mo. 1985).

In the 22 months since the District 
Court issued its June 1985 voluntary- 
interdistrict-transfer proposal, nearly



29

ten thousand black parents in the Kansas 
City District have expressed interest in 
having their children transfer to schools 
in the respondent school districts, and 
plaintiffs and the Kansas City District 
have announced their willingness to drop 
the litigation if those districts would 
agree to accept some of those black 
children. Nonetheless, each of the 11 
respondent districts on four separate 
occasions during that 22-month period has 
formally refused to accept black KCMSD 
children into any of its underutilized 
schools.9

On December 5, 1986, the United 9

9E„g., 639 F. Supp. at 51. The District Court 
also ordered the State and the Kansas City 
District to undertake a number of compensatory 
education programs within the Kansas City 
District designed to alleviate the harmful educa­
tional effects of prior discrimination. Id. at 
26-35-



30

States Court of Appeals for the Eighth 
Circuit, which heard the appeal en banc, 
affirmed the District Court's denial of 
interdistrict relief by an equally divided 
court. Relying on decisions of the 
Fourth, Fifth, and Sixth Circuits, Judge 
Gibson " 'decline [d ] , ' " to accept ''' the 
argument that a school board otherwise 
innocent of segregative intent is liable 
[to participate in remedying] the discrim- 
inatory . . . practices of other govern­
mental agencies.’"10 Affirming the
District Court's interpretation of 
Milliken, Judge Gibson cited only the 
District Court's June 1984 findings on the 
SSDs' conduct and not the September 1984 
findings on the effects in those districts 
of the State's violations.

Judge Arnold dissented in part.

lOopn. of Gibson, J., 67a (quoting Bell v.
Board of Education, 683 F.2d 963, 968 (6th Cir. 
1982)). See, e.q., id. 26a (interdistrict relief 
is a "'wholly impermissible remedy'" for "'out-



31

" [T]ak[ing] as established" the contrary 
rule of the Third and Seventh Circuits 
"that a school district can be made to 
participate in an interdistrict remedy 
even if it is not ’personally' guilty of 
violating the Constitution, that such 
relief is appropriate where a State's 
constitutional violations have contributed 
to interdistrict segregation, . . . and
that there is nothing unigue or peculiar 
about [State] housing agencies that would 
take them out of this rule," Judge Arnold

lying districts not shown to have committed any 
constitutional violations'"); 100-04. "Limit[ing] 
to its facts" contrary en banc precedent of the 
Eighth Circuit, Judge Gibson concluded that, 
while "imposition of an interdistrict remedy on 
the innocent SSDs" may be appropriate when the 
State was guilty of "racial gerrymandering" of 
the sort that leaves black and white families 
where they are and draws boundary lines between 
them, interdistrict relief is not appropriate if 
the State, but not the SSDs, left existing bound­
ary lines where they were and caused black and 
white families to relocate on opposite sides of 
the lines. 69a-72a n.19 (distinguishing Mor- 
rilton School District No. 32 v. United States, 
606 F.2d 222 (8th Cir. 1979) (en banc)). But see 
Opn. of Lay, C.J., 203a-04a; Opn. of Arnold, J., 
153a-55a & n.5.



32

concluded that "the case should be 
remanded to the District Court to deter­
mine precisely what current interdistrict 
segregative effects may be attributed to 
housing discrimination by the State" and 
to devise "a remedy including each 
affected SSD:"

[I] n accord with the eguitable 
principles that govern such 
remedies, Milliken, 418 U.S. at 
737-38, the role that may be 
assigned to each SSD may be 
limited by the fact that the SSD 
is not itself a constitutional 
violator. . . .  On the other 
hand, it seems clear that 
affected SSDs could be reguired 
to participate in an inter­
district transfer program 
designed to make the racial com­
position of the districts' 
schools what it would have been 
absent official . . . discrimi­
nation .

151a, 176a-78a.
Chief Judge Lay for himself and

Judges Heaney and McMillian agreed with
Judge Arnold "that school districts which
were not themselves found to be con-



33

stitutional violators nevertheless [may] be 
included in interdistrict relief where the 
effects of the unconstitutional actions of 
. . . the state were felt in those school
districts." 198a. Voting to remand, 
Chief Judge Lay concluded that "the dis­
trict court's own factual findings with 
regard to the constitutional violations of 
the state and KCMSD, especially with 
regard to the significant link between 
housing patterns and school availability 
in the Kansas City metropolitan area, 
strongly suggest that the plaintiffs are 
entitled to an interdistrict remedy." 269a.

REASONS FOR GRANTING THE WRIT
I. THE COURT SHOULD GRANT CERTIORARI TO 

RESOLVE CONFLICTS THAT HAVE ARISEN 
OVER WHETHER MILLIKEN v. BRADLEY PER­
MITS STATE OFFICIALS DELIBERATELY TO 
SEGREGATE A SINGLE CITY'S CHILDREN 
INTO SEPARATE SCHOOL DISTRICTS SO 
LONG AS THE STATE AND NOT THE SUR­
ROUNDING WHITE DISTRICTS IS TO BLAME 
FOR THAT SEGREGATION



34

A. The Court Should Grant Certiorari 
to Resolve the Conflict Between 
the Judgment Below and its Deci­
sion in Milliken v. Bradley

In Milliken v. Bradley, 418 U.S. 717 
(1974), the Court declared that "no state 
law is above the Constitution. School 
district lines and the present laws with 
respect to local control are not sacro­
sanct and if they conflict with the 
Fourteenth Amendment federal courts have a 
duty to prescribe appropriate remedies." 
Id. at 744. Based on this principle and 
the rule that the scope of the remedy is 
determined by the nature and extent of the 
constitutional violation, the Court 
established the following guidelines for 
interdistrict relief:

Before the boundaries of sepa­
rate and autonomous school dis­
tricts may be set aside . . . by 
imposing a cross-district 
remedy, it must first be shown



35

that there has been a constitu­
tional violation within one 
district that produces a signi­
ficant segregative effect in 
another district. Specifically, 
it must be shown that racially 
discriminatory acts of the state 
or local school districts, or of 
a single school district have 
been a substantial cause of 
interdistrict segregation.

Id. at 744-45 (emphasis added). The Court
emphasized that plaintiff school children
may satisfy this standard by "showing that
either the State or any of the
outlying districts engaged in activity
that had a cross-district effect." Id. at
748 (emphasis added). The Milliken
majority thereupon denied relief because
the record before the Court contained
"evidence of de jure segregated conditions
only in the Detroit schools" "and not
elsewhere, and on this record the remedy
must by limited to that system." Id. at
745, 746 (emphasis added).



36

Joining the five-person majority, 
Justice Stewart wrote separately "to state 
briefly [his] understanding of what . . . 
the Court decides today." Id. at 753 
(Stewart, J ., concurring). Agreeing that 
interdistrict relief in the Detroit area 
was inappropriate because the violations 
"occurred . . . within a single school
district whose lines were coterminous with 
those of the city of Detroit," id., 
Justice Stewart nonethless declared that 
an interdistrict remedy "would . . .  be 
proper, or even necessary," if it were 
"shown, for example, that state officials 
had contributed to the separation of the 
races by drawing or redrawing school 
district lines; by transfer of school 
units between districts; or by purposeful, 
racially discriminatory use of state



37

housing or zoning laws . . . ."11

The judgments of both courts below 
warrant certiorari because they so 
directly conflict with this Court' s own 
teachings in Milliken: Whereas Milliken
authorizes interdistrict remedies whenever 
"discriminatory acts of the state or local 
school districts . . . cause . . . inter­
district segregation," id. at 745 (major­
ity opinion) (emphas is added), the 
District Court and Judge Gibson below 
"rejected plaintiffs' . . . argument which 
would have held the SSDs liable and 
i ncorporated them in an interdistrict 11

11Id. at 755 (emphasis added; citations 
omitted). In 1975, this Court summarily affirmed 
the decision of a 3-judge court ordering inter­
district relief premised explicitly on (i) hous­
ing as well as school, and (ii) people-moving as 
well as line-drawing, violations by the State of 
Delaware and (iii) including in the remedy 
districts that the district court explicitly had 
determined were both innocent and "unitary." 
Evans v. Buchanan, 393 F. Supp. 428, 432, 433-38 
(D. Del.) (3-judge court) (emphasis added), 
aff'd, 423 U.S. 963 (1975).



38

remedy on the basis" of "wrongs committed 
by . . . the state" and held that inter-
district relief is available only if there 
has been "a racially discriminatory act 
by each defendant" district. June 1984 
Order, 497a, 285a (emphasis added). See
Opn. of Gibson, J . , 63a-64a, 67a.

Whereas Justice Stewart, casting the 
deciding vote in Milliken, concluded that 
an interdistrict remedy would "be proper, 
or even necessary, . . . [w]ere it to be
shown, for example, that state of f icials 
had contributed to the separat ion of the 
races by . . . racially discriminatory use 
of state housing or zoning laws," id. at 
755 (Stewart, J., concurring), the
District Court and four members of the 
court be low flatly refused to "find the 
SSDs liable for [inclusion in a remedy 
for] racial imbalance that may be attri­
buted to policies or practices of inde-



39

pendent housing actors." June 1984 Order, 
371a. Accord, e.q., id., 508a-09a; Opn.
of Gibson, J ., 67a.

Certiorari is appropriate " [w]hen . . 
. a federal court of appeals . . . has 
decided a federal question in a way in 
conflict with applicable decisions of 
this Court." S. Ct. R. 17.1(c). This is 
such a case.

B . The Court Should Grant Certiorari 
to Resolve the Conflict Among the 
Third, Fourth, Fifth, Sixth, and 
Seventh Circuits Over the Proper 
Interpretation of Milliken

Applying the standards set out in 
Milliken, two circuit courts of appeals 
and a district court in another circuit 
have concluded that the Fourteenth 
Amendment authorizes interdistrict reme­
dies when the State intentionally causes 
multidistrict segregation, notwithstanding 
the lack of complicity in the violation by 
school districts included in the remedy. 
The Third Circuit twice has held that



40 -

interdistrict relief is required "[w]here 
the State has contributed to the separa­
tion of races" and that "exclusion of the 
suburban districts [from the remedy] can­
not be predicated on their own purported 
innocence."12 The Third Circuit has 
expressly applied this rule to predicate 
interdistrict relief (i) on housing as 
well as school segregation violations, 
(ii) on violations of a people-moving, as 
well as a line-drawing, sort, and (iii) as 
a basis for consolidating out of existence 
surrounding districts that the district 
court not only found "innocent" of the 
interdistrict violation but also had pre­

12Evans v. Buchanan, 416 F. Supp. 328, 340 (D. 
Del. 1976), aff'd, 555 F.2d 373 (3d Cir. 1977)
(en banc). Accord, Hoots v. Commonwealth, 672 
F.2d 1107, 1121 n.13 (3d Cir. 1982) ("[t]he
district court also properly held that the State 
and County Boards violated the constitution . . . 
and so all surrounding districts can be impli­
cated in a remedy, despite their alleged lack of 
involvement in the process").



41
viously adjudicated "unitary."13

Likewise, the Seventh Circuit twice 
has upheld interdistrict remedies based on 
the rule that:

The suburban school officials 
may not maintain that their 
districts should be excluded 
from any interdistrict remedy if 
they are found innocent of com­
mitting any constitutional 
violations because they should 
not be held responsible for the 
acts of the state legislators or 
other state subdivisions such as 
a local housing authority or a 
zoning board. . . . Thus, if 
state discriminatory housing 
practices have a substantial 
interdistrict effect, it is 
appropriate to require school 
authorities to remedy the 
effects even though they did not

-̂ Evans v. Buchanan, 582 F.2d 750, 762-63 
n.ll (3d Cir. 1978) (en banc) (affirming inter­
district relief based upon "eight separate inter­
district violations," four of which involved 
housing actions and seven of which involved 
governmental actions that left existing school 
district boundary lines intact and caused blacks 
and whites to relocate on opposite sides of those 
lines (eitphasis in original)); Evans v. Buchanan, 
416 F. Supp. 328, 339 (D. Del. 1976), aff'd, 555 
F.2d 373 (3d Cir. 1977) (en banc) (surrounding 
districts may be included in an interdistrict



42

themselves cause this aspect of
school segregation.

The views of the four judges who con­
curred in the judgment below and the 
District Court opinion they affirmed 
directly conflict with these holdings of 
the Third and Seventh Circuits. That 
conflict, in turn, divides those judges 
from their numerically egual dissenting 
collegues, who voted to apply the law of 
the Third and Seventh Circuits and to 
reverse.

remedy even though "each" is "at present opera­
ting a unitary system," if "the State . . . acted 
in a [discriminatory] fashion which is a substan­
tial and proximate cause of the existing dispar­
ity in racial enrollments in [those] districts"). 
Accord, United States v. Scotland Neck Board of 
Education, 407 U.S. 484, 490 (1972) ("desegrega­
tion is not achieved by . . . two . . . systems, 
each operating unitary schools within its border, 
where one of the two systems is, in fact, 'white' 
and the other is, in fact, 'Negro'").
-̂ United States v. Board of School Commissioners 

of the City of Indianapolis, 573 F.2d 400, 410 
(7th Cir. 1978). Accord, United States v. 
Board of School Commissioners, 637 F.2d 1101,



43

Also in conflict with the Third and
Seventh Circuit holdings are the views
ascribed to the Fourth, Fifth, and Sixth
Circuit by the lead opinion below. For
example, Judge Gibson quoted the Sixth
Circuit's statement that:

"We do not find any case 
addressing the argument that a 
school board otherwise innocent 
of segregative intent is liable 
for the discriminatory housing 
practices of other governmental 
agencies. We decline to acceptthis argument.

Judge Gibson also relied on decisions

1109-11, 1115 (7th Cir. 1980) ("the power to
order students from [the suburban] districts to 
transfer to [Indianapolis] schools . . . de­
pends not on the culpability, or lack thereof, 
of the suburban districts involved but rather on 
the finding that discriminatory actions by the 
state had a significant segregative impact across 
district lines" (emphasis added)). A district 
court in the Sixth Circuit recently adopted the 
Third and Seventh Circuit views with regard to 
school violations. Bronson v. Board of Educa­
tion, 578 F. Supp. 1091, 1098-99 (S.D. Ohio
1984). The Sixth Circuit's approach to housing- 
violation cases is discussed infra.

l^Opn. of Gibson, J., 67a (quoting Bell v.



44
of the Fourth Circuit. 62a, 101a. That

Board of Education, 683 F.2d 963, 968 (6th Cir. 
1982)). Accord, Bronson v. Board of Education, 
578 F. Supp. 1091, 1104-05 (S.D. Ohio 1984) 
("absent a showing of a nexus between the conduct 
of any of the named [suburban school district] 
Defendants and the acts of housing authorities or 
other government . . . agencies responsible 
for shaping the residential patterns in their 
districts . . ., these named Defendants herein 
cannot be held liable for, or be responsible for 
remedying, any racial imbalance that may be 
attributed to the practices and policies of these 
independent actors and agencies" (emphasis in 
original)).

In conflict with Bell and Bronson are the 
following Second, Sixth and Ninth Circuit deci­
sions premising intradistrict school desegrega­
tion relief on housing violations: Oliver v. 
Kalamazoo Board of Education, 640 F.2d 782, 785 
(6th Cir. 1980) (racially restrictive coven­
ants); Hart v. Community School Board, 512 F.2d 
37 (2d Cir. 1975) (aff'g 383 F. Supp. 699, 747- 
54 (E.D.N.Y. 1974)) (public housing, urban renew­
al, relocation, and subsidized housing))? Ybarra 
v. City of San Jose, 503 F.2d 1041 (9th Cir. 
1974) (zoning and building permit policies); 
United States v. Yonkers Board of Education, 624 
F. Supp. 1276, 1289-376, 1531-45 (S.D.N.Y. 1985) 
(appeal pending) (public housing, subsidized 
housing, urban planning). See Swann, supra, 402 
U.S. at 23 (reserving question "whether a showing 
that school segregation is a consequence of other 
types of state action, without any discrimina­
tory action by the school authorities, is a con­
stitutional violation requiring remedial action 
by a school desegregation decree"). See generally



45

Circuit's Richmond decision, in denying 
interdistrict school desegregation relief 
premised on housing discrimination, states 
"That there has been [official] housing 
discrimination in all three [school 
district] units is deplorable, but a 
school case, like a vehicle, can carry 
only a limited amount of baggage." 
Bradley v. School Board, 462 F. 2d 1058, 
1066 (4th Cir. 1972) (en banc), aff’d 
without opinion by an equally divided 
Court, 412 U.S. 92 (1973). More recently, 
the Fourth Circuit denied interdistrict 
relief premised on both school and housing 
allegations, because " [a]n independent 
school district which has not caused 
segregation in a neighboring independent 
district has no duty to rectify a racial

Note, Housing Discrimination as a Basis for
Interdistrict School Desegregation Relief, 93 
Yale L.J. 340 (1983).



46

imbalance in the other district."16
Certiorari is appropriate " [w]hen a 

federal court of appeals has rendered a 
decision in conflict with the decision of 
another federal court of appeals on the 
same matter . . . ." S. Ct. R. 17.1(a). 
The judgment below rests on a dispositive 
interpretation of Milliken that directly 
conflicts with the clear rule of the Third 
and Seventh Circuits. The controlling 
legal issue in this case also has sundered

•̂Goldsboro City Board of Education v. Wayne 
County Board of Education 745 F.2d 324, 328, 332 
n.15 (4th Cir. 1984). Judge Gibson also relied 
on Fifth Circuit decisions. 100a. The rule of 
that Circuit is unclear. Compare Taylor v. 
Ouachita Parish School Board, 648 F.2d 959, 969 
5th Cir. 1981) (dicta) ("should interdistrict 
effect alone transform otherwise intradistrict 
unconstitutional action into an interdistrict 
violation, then the Milliken insistence that 
'without an interdistrict violation and inter­
district effect, there is no constitutional wrong 
calling for an interdistrict remedy,' . . . con­
tains a redundancy"), with United States v. 
Texas, 321 F. Supp. 1043, 1052 (E.D. Tex. 1970), 
aff'd, 447 F.2d 441 (1971), cited approvingly in



47

the law of the Third and Seventh Circuits 
from that of the Fourth and (in housing- 
violation cases) the Sixth Circuits, 
divided panels of the Fifth Circuit, and 
left the rule of the Eighth Circuit and 
the rights of the plaintiff school
children hanging in the balance of an 
evenly divided en banc court. That the 
proper interpretation of this Court's
decision in Milliken has been the source 
of so much "controversy . . . ever since" 
reveals that the time has come for the
Court to settle the question once and for 
all. Continental T .V . , Inc. v. GTE 
Sylvania, Inc. , 433 U.S. 36, 47 (1977);
Afroyim v. Rusk, 387 U.S. 253, 255-56
(1976).

Milliken, supra, 418 U.S. at 744 (ordering inter­
district relief encompassing districts not guilty 
of any violation because "the State of Texas . .
. created, and . . . participated in the con­
tinued support" of those districts as racially 
identifiable "administrative units").



48

II. The Court Should Grant Certiorari to 
Resolve the Conflict Between the 
Judgment Below and the Third and 
Other Circuits Over Whether the 
Affirmative Constitutional Duty to 
Dismantle the Effects of Prior De 
Jure Segregation Applies in Inter11 
district Cases
In Dayton Board of Education v. 

Brinkman, 443 U.S. 526 (1979) (Dayton II) 
and predecessor intradistrict decisions, 
this Court held that the intentional seg­
regation of schools in 1954 places the 
offending parties "under a continuing 
duty" thereafter "to eradicate the effects 
of that system," and that the systemwide 
nature of the violation furnishes prima 
facie proof that current segregation was 
caused at least in part by prior inten­
tionally segregative official acts. Id. 
at 537 (citing Keyes v. School Dist. No. 
2_, 413 U.S. 189, 211 ( 1973); Swann, supra, 
402 UiS. at 26). Part of the affirmative 
duty imposed by the Court's decisions "is
the obligation not to take any action



49

that would impede the process of disestab­
lishing the dual system and its effects." 
Dayton I I , supra, 443 U.S. at 538 (empha­
sis added) (citing Wright v. Council of 
City of Emporia? 407 U.S. 451 (1972)).

Under Dayton II, the measure of a 
prior segregator's post-1954 compliance 
with this duty "is the effectiveness, not 
the purpose of the actions in decreasing 
or increasing the segregation caused by 
the dual system." 443 U.S. at 538 
(emphasis added). Each instance of a 
failure or refusal to fulfill this affir­
mative duty "continues the violation of 
the Fourteenth Amendment," and the effects 
of each such "continuing" violation count 
as much in determining the scope of the 
necessary remedy as the effects of the 
earlier intentionally discriminatory 
violation. Columbus Board of Education



50
v. Penick, 443 U.S. 449, 459 (1 9 7 9 ).17

17The outcome in Dayton II turned precisely on 
this last-mentioned "rule of addition" —  i.e., 
on the need to sum the continuing segregative 
consequences of both the intent-measured original 
violation and the effects-measured "compounding" 
violations in order to determine the proper scope 
of tiie remedy. Dayton II, supra, 443 U.S. at 
538-41. The district court in Dayton II had 
denied systemwide relief because the plaintiffs 
had not shown that the Dayton Board's intentional 
violations had continuing systemwide "incremental 
segregative effects." See id. at 540-42 (dis­
cussing Dayton Board of Education v. Brinkman, 
433 U.S. 406 (1977), and Brinkman v. Gilliqan, 
446 F. Supp. 1232 (S.D. Ohio 1977)). Without 
disturbing the district court's conclusion, the 
Dayton II majority upheld the Sixth Circuit's 
grant of systemwide relief because the Board's 
post-Brown actions, though not intentionally 
segregative, violated the Board's affirmative 
duty and undeniably had systemwide effects: "The 
Court of Appeals was . . . quite justified in 
utilizing the Board's total failure to fulfill 
its affirmative duty -- and indeed its conduct 
resulting in increased segregation —  to trace 
the current, systemwide segregation back to the 
purposefully dual system of the 1950's . . . 
•" Dayton II, supra, 443 U.S. at 541-42 (citing 
Columbus, supra, 443 U.S. at 464-65; Keyes, supra, 
413 U.S. at 211; Swann, supra, 443 U.S. at 21, 
26-27). In concluding that the Board's conduct 
required systemwide relief, the Court sunned the 
indeterminate effects of one intentional viola­
tion (a pre-1954 dual system) with the 
"systemwide" effects of five nonintentional 
violations (the post-1954 failure to dismantle 
prior segregative effects; student assignment 
practices; optional attendance zones; school 
construction and site selection; and grade struc-



51

In determining the scope of the 
State's responsibility for funding the 
single-district educational-enhancement 
remedy within the Kansas City District, 
the District Court applied the above prin­
ciples of law and made the following fin­
dings: 1. Missouri administered a de
jure "pre-Brown interdistrict system of 
locating dual schools” (Opn. of Gibson, 
J ., 49a) and engaged in a series of
"actions . . . discriminatory against
blacks” that "continues to have a signifi­
cant effect on the dual housing market in 
the Kansas City area." September 1984 
Decision, 531a-32a, 601a-02a. 2. The
area's segregation into one black district 
surrounded by eleven white districts has 
persisted ever since. See p. 4, supra.

ture and organization). Dayton II, supra, 443 
U.S. at 537-41 (quoting 583 F.2d at 258 and 
discussing Brinkman v. Gilligan, supra)). Then- 
Justice Rehnguist dissented on just this point. 
Dayton II, supra, 443 U.S. at 493, 502-04.



52

3. "State [officials] . . . had and con­
tinue to have the constitutional obliga­
tion to affirmatively dismantle any system 
of de jure segregation, root and branch. . 
. . This case is before this court simply
because [State officials] have defaulted 
in their obligation . . . ." September
1984 Decision, 611a.

Chief among the State's post-1954 
defaults was its enactment in 1957 of H.B. 
171, which exempted Kansas City from the 
city-district coterminousness rule applied 
elsewhere in the State and allowed the 
City of Kansas City to guadruple in size 
and remain 73 percent white while the 
School District of Kansas City remained 
virtually static in size and became 74 
percent minority.18 Although concluding

l%ee p. 6, supra. Although the discussion 
here focuses on H.B. 171, it applies as well to 
the other post-1954 segregative actions of the 
State, SSDs, KCM3D, and HUD. See pp. 22, 24-26 
& nn.7, 8, supra; September 1984 Decision,
542a-56a.



53

that H.B. 171 and the State's other segre­
gative line-drawing activities after Brown
were not undertaken "with the intent to
concentrate black students within the
KCMSD," June 1984 Order, 334a-45a, the
District Court relied on them nonetheless 
in reguiring the State to fund a single­
district remedy because, under Dayton II:

"the measure of the post-Brown I 
conduct of a school board under 
an unsatisfied duty to liquidate 
a dual school system is the 
effectiveness, not the purpose, 
of the actions in decreasing or 
increasing the segregation 
caused by the dual system."

September 1984 Decision, 605a (quoting
Dayton II, supra, 443 U.S. at 538) .

The District Court and Judge Gibson
thus relied upon H.B. 171 and other
defaults to require Missouri to fund
single-district relief for the blacks the
State unconstitutionally segregated into
the Kansas City District. But both courts
refused to rely upon those same undeniably



54

interdistrict defaults to require multi- 
district relief for those same black 
children and for the white children the 
State segregated into the rest of the 
City. Adopting the Fifth Circuit's view, 
both courts below concluded that 
" 1Milliken, unlike Swann and Keyes v. 
School Dist. No. 1, 413 U.S. 189 (1973),
does not sanction . . .  an inference that 
the continued existence of one-race 
schools in a system that formerly prac­
ticed de jure segregation is a vestiqe of 
such segregation"' and accordingly does 
not impose an affirmative duty to disman­
tle the effects of de jure interdistrict 
segregation.

Both opinions hold, therefore, that 
H.B. 171's undeniably continuing and city­
wide effects are irrelevant absent a fresh

i90pn. of Gibson, J. 22a, 55a (quotinq Lee v. 
Lee County Board of Education, 639 F. 2d 1243, 
1254 (5th Cir. 1981))? June 1984 Order, 285a, 
339a, 510a. Contrary to the Fifth Circuit view



55

intent to discriminate; and both opinions 
deny relief on the otherwise inapplicable 
grounds (i) that the continuing effects 
considered are "insufficient" and (ii) 
that this is a people-moving, not a line­
drawing, case. See pp. 27, 30-31 n.10, 
supra.

The above conclusion and the Fifth 
Circuit language on which it relies con­
flict with this Court's holdings in the 
Swann - Keyes - Dayton II line of intra­
district decisions discussed above. They 
also conflict with this Court's and the 
Third Circuit's affirmances of i nter- 
district relief in the Wilmington case.

In Wilmington, the pre-1954 de jure

quoted above, Milliken does not reject the propo­
sition that (1) an interdistrict violation in the 
past, coupled with (2) continuing interdistrict 
segregation thereafter, triggers an ongoing 
affirmative duty to dismantle that interdistrict 
segregation. Milliken simply holds that when the 
first of the two triggering conditions is absent
—  because no interdistrict violation is present
—  no interdistrict affirmative duty arises. 
Milliken, supra, 418 U.S. at 744-45. See id. at 
741 n.19.



56
violation had the same two components as 
Missouri's pre-Brown violations in the 
present case: (1) a pre-1954 inter­
district system of locating schools pur­
suant to which "the only high school in 
the County that accepted black students 
was . . . in Wilmington;" and (2) the 
State's invidious "assistance, encourage­
ment, and authorization" of housing 
discrimination via enforcement of racially 
restrictive covenants, FHA practices, and 
public housing policies.20

The third major component of the 
Wilmington violation is also familiar to 
the present case —  i,e., the State's 
exclusion of the central city district

20Evans v. Buchanan, 393 F. Supp. 428, 433-35
(D. Del.) (3-judge court), aff'd, 423 U.S. 963
(1975). See also Evans v. Buchanan, 582 F.2d 
750, 762—63 (3d Cir. 1978) (en banc); Evans v. 
Buchanan, 416 F.2d 328, 341, 343 (D. Del. 1976),
aff'd, 555 F.2d 373 (3d Cir. 1977) (en banc).
The identical violations in the present case are 
discussed at p. 12-22, supra.



57

from post-Brown legislation that otherwise 
could have led to the consolidation of 
that predominantly black district with the 
predominantly white districts surrounding 
it. Although the Wilmington trial court 
explicitly found that this post-Brown leg­
islation was "not . . . purposefully . , .
discriminatory," that Court —  in decisions 
affirmed summarily by this Court and twice 
by the Third Circuit en banc -—  relied 
heavily on the legislation's post-Brown 
boundary- and segregation- preserving 
effects as a basis for interdistrict 
relief. The Wilmington courts did so 
because " [a ]t the time the [legislation] 
was enacted, the State Board had not yet 
satisfied its obligation to eliminate the 
vestiges of de jure segregation in the 
Wilmington schools" and the legislation 
accordingly violated the State's affir­
mative "obligation to consider the racial 
consequences of [its] major educational



58

policy decisions."21

The Court should grant certiorari to 
resolve the conflict between the judgment 
below and the decisions of those Circuits 
that have applied the Swann-Keyes-Dayton 
II affirmative duty principles in inter­
district cases.

2%vans v. Buchanan, 393 F. Supp. 428, 439,
441-42 (D. Del.) (3-judge court) (emphasis added) 
(citing Swann, supra, 402 U.S. at 16), aff'd, 423 
U.S. 963 (1975)); Evans v. Buchanan, 416 F. Supp. 
328, 340 (D. Del. 1976), aff'd, 555 F.2d 373 (3d
Cir. 1977) (en banc). Accord, Evans v. Buchanan, 
582 F.2d 750, 765 (3d Cir. 1978) (en banc) (quot­
ing Swann, supra, 402 U.S. at 26 and citing Keyes, 
supra, 413 U.S. at 208, 211 & n.17). Other Court 
of Appeals decisions relying on the violation of 
a prior segregator's affirmative duty as a basis 
for interdistrict relief are: Hoots v. Common­
wealth of Pennsylvania, 672 F.2d 1107, 1121 (3d 
Cir. 1982) (citing Keyes, supra, 413 U.S. at 
208-10); Morrilton School Dist. No. 32 v. United 
States, 606 F.2d 222, 227 (8th Cir. 1979) (en 
banc); Newburg Area Council, Inc. v. Board of 
Education, 510 F.2d 1358, 1360-61 (6th Cir. 1974) 
(citing, e.g., Wright v. Council of the City of 
Emporia, 407 U.S. 451 (1972)). The position of 
the Seventh Circuit is unclear. Compare United 
States v. Board of School Comm'rs of the City of 
Indianapolis, 637 F.2d 1101, 1113 (7th Cir.
1980) (relying on Dayton II), with id. at 1113 
n.24 (reserving question).



59

CONCLUSION

For the foregoing reasons the peti­
tion for a writ of certiorari should be 
granted.

Respectfully submitted.

JAMES S. LIEBMAN *
Columbia University 

School of Law 
435 West 116th Street 
Box B-16
New York, New York 10027 
212-280-3423
ARTHUR A. BENSON II
1430 Commerce Tower
911 Main Street
Kansas City, Missouri 64105
816-842-7603
JULIUS L. CHAMBERS
JAMES M. NABRIT III
THEODORE M. SHAW
99 Hudson Street, 16th Floor
New York, New York 10013
212-219-1900

Attorneys for Petitioners 
Kalima Jenkins, et al.

*Attorney of Record



c