Jenkins v. Missouri Brief of Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

NO. 85-1765WM 
NO. 85-1749WM 
NO. 85-1974WM

KALIMA JENKINS, et al., 
Appellants, 

v .

STATE OF MISSOURI, et al., 
Appellees.

Appeal from the United States District Court 
For the Western District of Missouri, Western Division 

The Honorable Russell G. Clark, Chief Judge

BRIEF OF APPELLEES HICKMAN MILLS CONSOLIDATED 
SCHOOL DISTRICT NO. 1 OF JACKSON COUNTY, 
AND ITS SUPERINTENDENT, BLAINE E. STECK,

Defendants-Appellees.

JEFFREY L. LUCAS 
KURANER & SCHWEGLER 
500 Commerce Bank Building 
922 Walnut Street 
Kansas City, MO 64106 
(816) 221-3443
ATTORNEYS FOR HICKMAN MILLS 
CONSOLIDATED SCHOOL DISTRICT 
NO. 1 JACKSON COUNTY, AND ITS 
SUPERINTENDENT, BLAINE E. STECK.



SUMMARY AND REQUEST 
FOR ORAL ARGUMENT

The Hickman Mills School District is one of the eleven school 
district defendants which appellants would like to involve in an 
interdistrict remedy in this school desegregation case. Appellants 
continue to pursue the dissolution of this defendant despite their 
knowledge of the fact that the Hickman Mills School District has had a 
steady increasing black enrollment which had reached 18.02$ at the 
time of trial, and which is now 21.6$.

The District Court found that Hickman Mills School District had 
no blacks living within its boundaries prior to 1954, that there were 
no black tranfers or dual schools for blacks and whites in this 
District, and that Hickman Mills School District has always operated a 
unitary school system.

The 18.02$ black enrollment in Hickman Mills School District in 
1983-1984 (now 21.6$) is powerful evidence that no defendants actions 
have had a significant segregative effect in the District. There were 
no findings by the District Court that any actions or inactions of the 
Hickman Mills School District had any significant effect on any other 
school district. It is noteworthy that the number of black students 
in KCMSD has been decreasing while the number of black students in the 
Hickman Mills School District has been increasing.

The District Court's order dismissing Hickman Mills School 
District and it superintendent should be affirmed.

Because of the importance of these issues, Hickman Mills School 
District requests 10 minutes for its oral argument.

(i)



TABLE OF CONTENTS
Summary and Request for Oral Argument.......................... (i)
Table of Contents..............................  (ii)
Table of Cases and Authorities............................... (ii)
Statement of the Issues......................................(iii)
Statement of the Case............................................ 1
Argument.............................................   4
Conclusion...............................-....................... 5

TABLE OF CASES AND AUTHORITIES
Anderson v.City of Bessemer City, North Carolina,
105 S. Ct. 1504 ( 1985) .... ............ . . . ................ 1
McDowell v.Safeway Stores, Inc.,
753 F. 2d 716 (8th Cir. 19B5) .....................................1
Milliken v . Bradley, 418 U.S. 717 (1974)...................... 4,5
Lee v.Lee County Board of Education,
$39" F.2d ”1243 (5th Cir. 19^1) .....................................4
Rule 52(a) F.R. Civ. P ............................................1

(ii)



STATEMENT OF THE ISSUES

Hickman Mills Consolidated School District No. 1 of Jackson 
County and its Superintendent (!,HMSD”) adopts the preliminary 
statement and statement of the issues set forth in the consolidated 
response filed by all appellee school districts except KCMSD.

An additional issue relating to HMSD is as follows:
Absent a finding of intentional racially discriminatory 
acts or omissions by HMSD having a significant 
segregative effect in its own or another district or of 
racially discriminatory acts or omission by any other 
district having a significant effect in HMSD, did in the 
District Court err in dismissing HMSD, and in failing to 
require an interdistrict remedy involving HMSD?

Milliken v. Bradley, 418 U.S. 717 
(1974)
Lee v. Lee County Board of 
Education, 639 F.2d 1243 (5th Cir. 
1981) .

(iii)



STATEMENT OF THE CASE

Appellants have not challenged as clearly erroneous the fact 
findings of the District Court with respect to HMSD in their brief. 
Even had appellants challenged such fact findings, there is no 
evidence or credible argument in their briefs that such fact findings 
are clearly erroneous as required by the recently amended Rule 52(a) 
F.R. Civ. P. As a result, such fact findings may not be set aside. 
The strictness applicable to the "clearly erroneous" standard is 
reinforced in recent decisions of both this Court and the Supreme 
Court."' Despite the lack of a challenge as to the fact findings 
regarding HMSD, appellants set forth their own slanted and incomplete 
version of the facts without bothering to advise the Court that such 
facts were not the facts as found by the District Court.2 The 
unchallenged fact findings of the District Court with respect to the 
HMSD are set forth in the District Court’s June 5, 1984 General 
Memorandum and Order at pages 54-59 (pages 8-90 through B-95 of 
Appellants Joint Addendum B) [hereinafter "6-5-84 Opinion"] and are 
incorporated herein. Certain unchallenged fact findings particularly 
relevant to the determination of this appeal are set forth below.

See Anderson v.City of Bessemer City, North Carolina, 105 S. Ct. 
1504 ( 1985) ("findings of fact not "clearly erroneous" if "plausible") 
and McDowell v.Safeway Stores, Inc., 753 F.2d 716 (8th Cir. 1985).
p For example, appellants claim in footnote 64 that HMSD opposed 
apartments and multi-family housing. Appellants do not contest, but 
conveniently ignore, the District Court’s specific findings that the 
opposition was tax related and not race related. See 6-5-84 Opinion at 59. ---

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A. HICKMAN MILLS SCHOOL DISTRICT BOUNDARIES NOT RELATED TO RACE.
The Hickman Mills School District was created in 1902 as a result 

of a consolidation law passed in 1902, (6-5-84 Opinion at 54, Nesbit
Depo. at 49) more than 50 years prior to Brown v._Board of
Education. Its boundaries are essentially the same today as they were 
in 1902.3 Given such facts, there was, of course, no evidence that 
the boundaries of the HMSD were deliberately drawn on the basis of 
race. Hickman Mills School District is not contiguous to KCMSD (6—5—
84 Opinion at 55). The Spainhower Plan which HMSD opposed for local 
control reasons would have joined HMSD with Grandview, Lee’s Summit 
and Lone Jack, which would nob have had any effect on the racial 
composition of HMSD or KCMSD. (6-5-84 Opinion at 57).

B. HICKMAN MILLS SCHOOL DISTRICT HAD NO BLACK RESIDENTS PRIOR TO 
1954 THAT COULD HAVE BEEN AFFECTED BY A DUAL SCHOOL SYSTEM.

The overwhelming evidence was that there were no blacks living 
within the boundaries of the HMSD at any time prior to 1954 and the 
mid-1960’s (6-5-85 Opinion at 55, P. Ex. 1785, Wall Depos. Vol. 1 at 
35, Nesbit Depo at 19).^ Plaintiff’s own expert historian, Dr. James

3 Two disputes in the 1960's concerning segments of its boundaries 
(with Grandview and Center School Districts) were neither racially 
motivated nor had any racial discriminatory effect. (6-5-84 Opn. at 54).
 ̂ Although appellants have not preserved the question as to whether 
the District Court's finding (6-5-85 Opinion at 55) that no blacks 
resided in the HMSD prior to Brown was incorrect and notwithstanding 
the fact that, appellant's own expert historian - Dr. Anderson could 
find no reliable data that would place any blacks in the area of the 
HMSD prior to 1954 (T. 4620), Plaintiff's assert, by footnote, (8) 
that HMSD had black settlements prior to 1954. Such an assertion by 
appellants in the face of their own evidence and expert's testimony to 
the contrary cannot be taken seriously. Exhibit 1784 relied upon by 
Plaintiffs is a 1932 hearsay upon hearsay letter which the District 
Court indicated "had no probative value whatsoever" (T. 3504). Having 
convinced themselves, appellants mislead this Court by implying on P.
11 of their brief that HMSD had black students prior to 1954 but ran 
them off by 1954. The statement lacks any credible foundation.

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Anderson admitted under cross-examination that although he had 
searched, he was unable to find any reliable data that would place any 
blacks in the area of the HMSD prior to 1954 (T. 4620). Without black 
residents, there could not have been transfers of black school 
children to any other district, nor could HMSD have operated dual 
schools for black and white children, and the District Court so found 
(6-5-84 Opinion at 55). This finding is uncontested by appellants. 
Further there was no evidence that the lack of a black school within 
HMSD precluded any blacks from settling in Hickman Mills. (Id. at 
55) Hickman Mills has always and continues to operate a unitary 
school system (Id. at 55).

C. HICKMAN MILLS SCHOOL DISTRICT HAD A BLACK ENROLLMENT OF 
18.02% AT THE TIME OF TRIAL.

The black enrollment percentage in the Hickman Mills School 
District went from less than 1$ in 1968 to 18.02$ in 1983. (6-5-84
Opinion at 55, P. Ex. 530, 2967). This appellee represents that the 
black enrollment percentage in HMSD for the 1985-86 school year is 
21.6$ and that the total minority enrollment for the 1985-86 school 
year is 24.1$ in HMSD. The 18.02$ black enrollment figure for the 
1983-84 school year exceeded the 14.53$ black population of the 
Missouri portion of the SMSA (P. Ex. 32A) by over three percentage 
points (6-5-84 Opinion at 55). Plaintiff's own expert statistican,
John Kain, admitted under cross-examination that the HMSD had reached 
the percentage black enrollment he predicted for HMSD on P.Ex. 1265P, if 
race were not a factor (6-5-84 Opinion, Tr. 8060, P. Ex. 53G, 1265P).

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D. NO EFFECT.
The District Court specifically found that the continual and 

substantial increases in the number of blacks enrolled in the Hickman 
Mills School District is convincing evidence that there'is no barrier 
to blacks moving into HMSD, nor is there any present effect of any 
past practices which may have had discouraging effect on black moves 
(6-5-84 Opinion at 59).

ARGUMENT
REGARDLESS OF THE CORRECT INTERPRETATION OF MILLIKEN WITH RESPECT 

TO WHETHER THE EFFECT OF THE STATES VIOLATIONS CAN BE CONSIDERED WITH 
RESPECT TO HMSD IN DETERMINING THE APPROPRIATENESS OF MANDATORY 
INTERDISTRICT RELIEF, THERE WAS NO EVIDENCE THAT ANY DEFENDANTS 
VIOLATIONS OR ACTIONS HAVE HAD ANY EFFECT ON THIS DISTRICT OR THAT 
ACTIONS OF THIS DISTRICT HAD ANY SEGREGATIVE EFFECT ON ANOTHER 
DISTRICT, AND HMSD IS THEREFORE NOT CONSTITUTIONALLY SUBJECT TO 
PARTICIPATION IN AN INTERDISTRICT REMEDY.

As demonstrated by the consolidated brief of appellee school 
districts, a careful reading of Milliken required the District Court 
to interpret Milliken as it did.^ However even if this Court adopts 
appellants legal theories with respect to Milliken, the evidence 
requires affirmance of the District Court’s dismissal of HMSD from 
this action.

The undisputed evidence is that with a black enrollment of 18.02% 
in 1983-84 (now 21 .6%) the black enrollment percentage in HMSD exceeds 
the black population percentage in the Missouri SMSA (6-5-84 Opinion 
at 55), and well exceeds the black population of the entire Missouri- 
Kansas SMSA. This fact, when coupled with the steady growth of HMSD’s 
black population (P. Ex. 53G) over the past 17 years, is dispositive 
of all of appellant’s assertions with respect to liability of the

 ̂ See Lee v. Lee County Board of Education, 639 F.2d 1243 (5th 
Cir. ipT) .

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HMSD. Such steady growth and such percentages of black population 
simply could not occur if there were "significant segregative effects" 
in HMSD of actions, violations or alleged violations by HMSD, the 
State of Missouri, the other school district defendants, the federal 
defendants, or any other party or non-party. There are no 
"significant segregative effects" of anyones actions in HMSD (6-5-84 
Opinion at 59). Just the opposite is true - the movement of blacks 
into HMSD is having a desegregative effect on KCMSD. With no 
interdistrict violation by HMSD and with no significant segregative 
effects on HMSD of other parties' alleged, but unproven, interdistrict 
violations, Milliken teaches that there is no constitutional wrong 
calling for an interdistrict remedy. Milliken v. Bradley, 418 U.S. 
717, 745 ( 1974).

CONCLUSION
The Hickman Mills School District has become a well integrated 

school system without the involvement of the courts. There is no 
legal reason to end the 83 year independent existence of this school 
district.

For all of the reasons stated above and in the consolidated brief
of the dismissed school district defendants, Hickman Mills School
District's dismissal by the District Court must be affirmed.

Respectfully submitted,
JEFFREY L. LUCAS 
KURANER & SCHWEGLER 
500 Commerce Bank Building 
922 Walnut Street 
Kansas City, MO 64106 
(816) 221-3443
ATTORNEYS FOR APPELLEES 
HICKMAN MILLS CONSOLIDATED SCHOOL 
DISTRICT NO. 1 OF JACKSON 
COUNTY AND ITS SUPERINTENDENT

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