Jenkins v. Missouri Individual Brief of Appellees Center School District No. 58

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

No. 85-1765WM 
No. 8$-l9# W M  
No. 85-1974WM

KALIMA JENKINS, ET AL., 
Appellants,

v s .

STATE OF MISSOURI, ET AL., 
Appellees.

Appeal Prom the United States District Court for the 
Western District of Missouri, Western Division 

Honorable Russell G. Clark

Individual Brief of Appellees 
Center School District No. 58 and 

Its Superintendent ("CE")

Hollis H. Hanover 
Popham, Conway, Sweeny, Fremont 

& Bundschu, P.C.
1300 Commerce Trust Building 
Kansas City, Missouri 64106 
816/221-2288

Attorneys for CE Appellees



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

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

KALIMA JENKINS, ET AL., 
Appellants ,

vs .
STATE OF MISSOURI, ET AL., 

Appellees.

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

Honorable Russell G. Clark

Individual Brief of Appellees 
Center School District No. 58 and 

Its Superintendent ("CE")

Hollis H. Hanover 
Popham, Conway, Sweeny, Fremont 

& Bundschu, P.C.
1300 Commerce Trust Building 
Kansas City, Missouri 64106 
816/221-2288

Attorneys for CE Appellees



SUMMARY AND REQUEST FOR ORAL ARGUMENT

The Center School District No. 58 (hereinafter "CE") is con­
tiguous with KCMSD to the southwest, CE had no black residents 

prior to 1954, transferred no black students to KCMSD at any time 
whatsoever and presently has the second highest concentration of 

black students of any of the SSD's. So far as is capable of 
ascertainment by all parties, every black child who has ever 
resided in CE or its predecessor districts has been educated in 
CE or its predecessor district in nonsegregated schools. CE is a 

unitary district in full compliance with Brown v. Board of 
Education, 349 U.S.274 (1954) and Swann v. Charlotte-Mecklenberg 

Board of Education, 402 U.S.l, 18-19 (1971).

CE joins and adopts the preliminary statement set forth in 
the consolidated brief of the dismissed districts.

Appellants seek destruction of this district which was found 
to have been created without discriminatory intent or effect. 
The issues involved are of great importance to the citizens of CE 
and therefore if oral argument is permitted CE requests 15 
minutes.

(i)



TABLE OP CONTENTS

SUMMARY AND REQUEST FOR ORAL ARGUMENT................ (1)
TABLE OF CONTENTS. . . .............................  (ii)
TABLE OF AUTHORITIES .
STATEMENT OF THE ISSUES OF THE CASE.................  1
ARGUMENT ............
CONCLUSION ..........

(ii)



TABLE OP AUTHORITIES

Brown v. Board of Education, 349 U.S.274 ( 1 9 5 4 ) ........... (i)
Mllliken v. Bradley, 418 U.S. 717 ( 1974)...................  3

Swann v. Charlotte-Mecklenberg Board of Education.
402 u . s . i ,  lW ^lT T W n ) . . . .T T T T T T T T 7 ................  ( i )
P.R.C.P. 41(b) 1

(iii)



STATEMENT OP THE ISSUES AND OF THE CASE

CE was dismissed by the District Court pursuant to F.R.C.P. 
41(b) on April 2, 1984. CE adopts the District Court's findings 

of facts contained in its order of June 5, 1985 which findings 
are not the subject of appellate complaint by any party to this 
action.

CE adopts the statement of the issues and the statement of 
facts submitted in the consolidated brief of the appellee 

dismissed school districts.

1



ARGUMENT

The facts found by the District Court with respect to
CE, which facts were not adopted verbatim from any proffered

findings of fact, compelled a finding in favor of CE. At page 46
of the June 5, 1984 order, the District Court wrote:

"There is no evidence that Center at any time failed to 
permit black children residing in the district to
attend its schools, treated black children attending 
Center Schools differently because of race, assigned 
students on other than a racialLy neutral basis, denied 
admission to any black student on the basis of race, or 
in any other way conducted itself in a racially discri­
minatory manner. Center never operated a dual school 
system and, therefore, no vestiges remain to
dismantle."

No appeal was taken challenging the foregoing or for that 

matter any of the District Court's findings of fact.1

*In spite of the absence of preservation of those factual issues 
on appeal, plaintiffs argue the facts in their brief, on occasion 
with remarkable inaccuracy. Two examples suffice. At page 11 
this statement appears:

"8 of those districts (BS, CE, PO, GV, KM, LS, NK, RT) 
had no black students left to enroll by 1954

The obvious assumption in the statement is that Center had black 
students at one time. There was no evidence to that effect. Par 
more blatant is the following attempt to mislead this Court from 
page 56, note 122:

"(360 black CE-KCM transfers in 6-years pre-Brown; 
'insufficient')."

Plaintiffs well know there were no black CE-KCM transfers ever. 
Zero. The section of the June 5, 1984 order referenced does not 
even refer to 360 individual children. The transfers were white 
children from the Boone and Dallas grade school districts (two of 
the three districts which were predecessors to the defendent 
Center District) during six school years prior to the formation 
of the Center District and the resulting provision of a high 
school for Boone and Dallas children. Since students attended 
high school for more than one year, the figures necessarily 
involve duplication. These were white children going to white 
Kansas City schools.

2



The District Court also found with respect to the current 

condition of CE the following from page 48 of the June 5, 1984

order:

"...there is no barrier to blacks moving to the Center 
District nor is there any present effect of any past 
practices which may have had a discouraging effect on 
black moves."
CE is thus in the position, unassailed on this appeal, of 

having never committed any constitutional wrong itself and there­
fore having had no interdistrict effect and further, bearing 

within itself no present effect of any past segregative prac­

tices by any government entity. Given this unchalleged factual 

setting "there is no constitutional wrong calling for an inter­
district remedy." Milliken v. Bradley, 418 U.S. 717, 744-45 

( 1974).

At pages 45 through 48 of the June 5, 1984 order, the 
District Court made findings of fact exculpating CE insofar as 

constitutionally prohibited behavior is concerned with respect 

to all of the miscellaneous issues raised by the plaintiffs. 

Those issues include Senate Bill 29, cooperating suburban school 
district, sales tax, transfer of handicapped, AVTS issues, H.B. 

171, Spainhower Plan, employment issues and housing issues.
Appellants' reference to and reliance upon the passage of 

Senate Bill 29 is particularly astounding. Senate Bill 29 raised 

from "10 voters" to "10% of the registered voters" in a school 

district as the necessary number of signers of a petition calling 
for an election on the issue of annexation to an adjoining

3



district. The only effect of Senate Bill 29 was to stop the 
costly and futile elections that could be coerced by a tiny group 
of dissident residents in a school district. Prior to 1963 when 

the bill was passed eight such elections had been held in CE and 

each had failed by a large margin. June 5, 1985 Order, page 45. 

The elections were brought because of dissatisfaction with CE's 
tax rate and were defeated because of pride in the excellence of 

the district. Depo. Bondurant, page 49, Order June 5, 1984, page 

45. No evidence was introduced to support an inference that the 
absence of Senate Bill 29 would have had any effect whatsoever 
other than the continued depletion of CE's funds in support of 

useless elections.
The Court's findings concerning CE's past innocence of 

wrongdoing and present absence of segregative effects are most 
eloquently buttressed by the present racial makeup of CE. CE 
had, at the time of trial, a black student enrollment percentage 
of 12%. That percentage was the result of sustained and regu­

lar growth commencing in the 1970's and as confirmed by 
plaintiffs' expert, Gary Tobin, is a trend that is likely to con­

tinue into the foreseeable future. T. 13367.

2.CE represents to the Court that as of September 1985, its 
black student enrollment percentage was 15.8%.

-4-



CONCLUSION
The Center District is innocent of constitutional wrongdoing 

and bears no present effects of the constitutional wrongdoing of 
others. The gradual and natural increase in the Center 
District's black population has permitted the development of an 
integrated community whose stability and progress will not sur­
vive the interference sought by appellants, which interference is 

forbidden by all applicable legal principles.

POPHAM, CONWAY, SWEENY, FREMONT 
& BUNDSCHU,

Kansas City, Missouri 641
2 2 1 - 2 2 8 8

Attorneys for CE Appellees

5