Missouri v. Jenkins Brief for Respondents Jenkins et al. and the Kansas City, MO School District

    No. 88-1150

In The

fttprwtt* (tort of %  Initrit ^tafru
October Term, 1989

State op Missouri, et al,
Petitioners,

K a l im a  Jenkins, et al,
________ Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF FOR RESPONDENTS 
KALIMA JENKINS, ET AL., AND THE 

KANSAS CITY, MISSOURI SCHOOL DISTRICT

A rthur A. Benson II *
1000 Walnut Street 
Suite 1125
Kansas City. MO 64106 
(816) 842-7603

James S. L iebman
Columbia University School 

of Law
435 West 116th Street 
New York, NY 10027 
(212) 854-3423

Julius L. Chambers 
James M. Nabrit, III 
T heodore M. Shaw 
Norman J. Chachkin  

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

Counsel for Respondents 
Jenkins, et al.

David s . Tatel 
A llen R. Snyder *
Walter A. Smith , Jr.
Patricia A. Bbannan 

Hogan & Hartson 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W. Keeler 
Blackwell Sanders Matheny 

Weary & Lombardi 
Two Pershing Square 
Suite 1100 
2300 Main Street 
Kansas City. MO 64141 
(816) 274-6816 

Counsel for Respondent 
Kansas City, Missouri 
School District

* Counsel of Record

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



COUNTERSTATEMENT OF QUESTIONS PRESENTED
1. Whether the petition for certiorari in this case, filed 

more than 90 days after entry of the Court of Ap­
peals’ judgment, was jurisdictionally out of time.

2. Whether the federal courts may enjoin State laws 
that prohibit a school district from increasing its 
property tax, where the school district would other­
wise be unable to meet its constitutional obligation to 
remedy its past racial discrimination and had ex­
hausted all other alternatives for meeting that obliga­
tion.

(i)



COUNTERSTATEMENT OF QUESTIONS PRE­
SENTED .............................     i

TABLE OF AUTHORITIES .......   v

JURISDICTION..............................................................   i

COUNTERSTATEMENT OF THE CASE.................  2

A. The Findings of Unconstitutional Discrimina­
tion .......................................   2

B. The Initial Remedial Order.............. ...... ..........  3
C. The Initial Appeal........................................................4

D. The Current Remedial Orders........................  4

E. The Eighth Circuit’s Affirmance of the Current
Remedial Orders......................    6

F. The Limited Grant of Certiorari........................ 8

SUMMARY OF ARGUMENT .....................................  9

ARGUMENT.................................................................  12

I. THE COURT LACKS JURISDICTION OVER
THIS CASE ........................................................ 12

A. The Jurisdictional Facts of Record Demon­
strate that the Petition to this Court was Out
of Time .......................................................... 13

B. Petitioners Have Not Established that They
Filed a Petition for Rehearing.................... 16

C. Petitioners Have not Established that the
Nunc Pro Tunc Order Reflects an Estab­
lished Eighth Circuit Practice......................  19

TABLE OF CONTENTS
Page

(iii)



II. IN THE SPECIAL CIRCUMSTANCES OF 
THIS CASE, THE LOWER COURTS ACTED 
WELL WITHIN THEIR AUTHORITY TO 
SET ASIDE STATE LAWS AND PERMIT 
IMPOSITION OF A TAX ...............................  24

A. In Devising Their Funding Orders, the 
Lower Courts Scrupulously Accommodated 
the Legitimate Interests of State and Local 
Authorities.....................................................  26

C. Where Local Authorities Default on Their 
Constitutional Obligations, Federal Courts 
Have Broad Authority to Ensure that those 
Obligations Are Met ...................................... 35

C. The Orders in this Case Were Not Precluded
by Article III, the Tenth Amendment, or 
Principles of Comity...............    40
1. Article III, the Fourteenth Amendment,

and § 1983 ..............   40
2. The Tenth Amendment............................ 46
3. Principles of Comity................................ 47

D. The Proposed “Alternative Remedies” Are
Without Merit...............................................  50
1. Cutting Back the Constitutional Remedy.. 50
2. Requiring the State Alone to Pay for the

Remedy.....................................................  52
3. Waiting for the State to Propose a

Remedy..................................................... 54

CONCLUSION...............................................................  56

iv

TABLE OF CONTENTS— Continued
Page



V

TABLE OF AUTHORITIES
CASES: Page

Brown V. Board of Education, 347 U.S. 483
(1954) ..................................................................  52

Brown V. Board of Education, 349 U.S. 294
(1955) ..................................................................  49

Conboy V. First Nat’l Bank, 203 U.S. 141 (1906).... 15
Cooper V. Aaron, 358 U.S. 1 (1958)....................... 42
Credit Co. V. Arkansas Cent. Ry. Co., 128 U.S. 258

(1888) ..................................................................  15
Davis V. Michigan Dep’t of Treasury, 109 S. Ct.

1500 (1989) ....................................   ...41,43,44,45
Dep’t of Banking V. Pink, 317 U.S. 264 (1942)...... 12
Dep’t of Mental Hygiene V. Kirchner, 380 U.S. 194

(1965) .........................................................   12
Ex parte Virginia, 100 U.S. 339 (1879) ................  43
Ex parte Young, 209 U.S. 123 (1908)................. . 40
FTC V. Minneapolis-Honey well Co., 344 U.S. 206

(1952)................       12
Felder V. Casey, 108 S. Ct. 2302 (1988) .................. 38
Free V. Bland, 369 U.S. 663 (1962) ........................  38
Garcia V. San Antonio Metro. Transit Auth., 469

U.S. 528 (1985) ...................................................  47
Green V. County School Bd., 391 U.S. 430 (1968).. 45
Griffin V. County School Bd., 377 U.S. 218 (1964).. 7, 36,

37, 45
Gustafson V. Benda, 661 S.W.2d 11 (Mo. 1983)...... 53
Horton V. Marshall Public Schools, 769 F.2d 1323

(8th Cir. 1985)............................................  22
Houston V. Lack, 108 S. Ct. 2379 (1988)................. 24
Hunter V. Underwood, 471 U.S. 222 (1985).........  46, 47
Hutto V. Finney, 437 U.S. 678 (1978).....................  39, 45
Jenkins V. Missouri, 807 F.2d 657 (8th Cir. 1986)

(en banc), cert, denied, 108 S. Ct. 70 (1987).....  4
Jett V. Dallas Independent School Dist., 109 S. Ct.

2702 (1989) .....................................................   43
Katzenbach V. Morgan, 384 U.S. 641 (1966)............. 42
King Bridge Co. V. Otoe County, 120 U.S. 225

(1887) ..................................................................  12



VI

Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949)............................................ . 40

Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert.
denied, 469 U.S. 816 (1984).................. .............. 7,17

Lucas V. Forty-Fourth Gen. Assembly, 377 U.S.
713 (1964) ............................................................ 39

Mansfield, Coldwater & Lake Michigan Ry. Co. V.
Swan, 111 U.S. 379 (1884) .................................  12

Matter of Snyder, 734 F.2d 334 (8th Cir. 1984),
rev’d, 472 U.S. 634 (1985)..................................  22

Maynard V. Cartwright, 108 S. Ct. 1853 (1988).... 34
McDaniel V. Barresi, 402 U.S. 39 (1971)...............  39
McNutt V. General Motors, 298 U.S. 178 (1936).... 12
Meriwether V. Garrett, 102 U.S. 472 (1880).......... 36
MiUiken v. Bradley, 433 U.S. 267 (1977) ....26, 34, 46, 48, 49
Mitchum V. Foster, 407 U.S. 225 (1972)................ 43
Monell v. New York City Dep’t of Social Serv.,

436 U.S. 658 (1978).................................. 35, 37, 43, 45
Moses Lake Homes, Inc. V. Grant County, 365 U.S.

744 (1961) .......................................................  45
NCAA V. Bd. of Regents, 468 U.S. 85 (1984)....... 45
Newport V. Facts Concerts, Inc., 453 U.S. 247

(1981) ...............................................................  43,54
North Carolina State Bd. of Educ. V. Swann, 402

U.S. 43 (1971) .............     38
Owen V. Independence, 445 U.S. 622 (1980) ....36, 37, 40, 54
Palmore V. Sidoti, 466 U.S. 429 (1984).................  39
Quern V. Jordan, 440 U.S. 332 (1979) ................ . 43
Rees V. Watertown, 86 U.S. 107 (1873)........36, 41, 43, 44
Reynolds V. Sims, 377 U.S. 533 (1964)...................  38, 45
Roadway Express, Inc. V. Piper, 447 U.S. 752

(1980) ...............................................................  42
Rogers V. Lodge, 458 U.S. 613 (1982)...................  45
Scheuer V. Rhodes, 416 U.S. 232 (1974)...............  50
School Dist. of Kansas City V. Missouri, 460 F.

Supp. 421 (W.D. Mo. 1978), appeal dismissed,
592 F.2d 493 (8th Cir. 1979)............................. 2

Sheet Metal Workers Int’l Ass’n V. EEOC, 478
U.S. 421 (1986)........   51

South Carolina v. Baker, 108 S. Ct. 1355 (1988).... 47

TABLE OF AUTHORITIES— Continued
Page



vn

TABLE OF AUTHORITIES— Continued
Page

Sparks v. Duval County Ranch Co., 604 F.2d 976 
(5th Cir. 1979), cert, denied, 445 U.S. 943
(1980) ................................................ .................  22, 23

Sterling V. Constantin, 287 U.S. 378 (1932) .........  49, 50
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ...........................................37,45,51
Thompson V. INS, 375 U.S. 384 (1964) .................  24
Tiffany Fine Arts, Inc. V. United States, 469 U.S.

310 (1985) ...................................... .................... . 45
United States V. Gillock, 445 U.S. 360 (1980).......  48
United States V. Missouri, 515 F.2d 1365 (8th

Cir.), cert, denied, 423 U.S. 951 (1975).............  7
United States v. New Orleans, 98 U.S. 381 (1878).. 36
United States V. Paradise, 480 U.S. 149 (1987).... 51
United States V. Peters, 9 U.S. 115 (1809)............ 40
United States V. Samuels, 808 F.2d 1298 (8th Cir.

1987) .................................................................... 23
Washington v. Washington State Commercial Pas­

senger Fishing Vessel Ass’n, 443 U.S. 658, 
modified on other grounds sub nom. Washington
V. United States, 444 U.S. 816 (1979) .......... 38, 39, 45

Washington Metro. Area Transit Auth. V. John­
son, 467 U.S. 925 (1984) ........................ ........... 45

Watson V. Memphis, 373 U.S. 526 (1963).............  52
Wayne United Gas Co. v. Owens-Illinois Glass Co.,

300 U.S. 131 (1937) .... .......................................  15
Wills v. Michigan Dep’t of State Police, 109 S. Ct.

2304 (1989) ..................................................... ... , 40
Wolff v. New Orleans, 103 U.S. 358 (1880)....... 36,37
Yost V. Dallas County, 236 U.S. 50 (1915)....... 44
Younger V. Harris, 401 U.S. 37 (1971).................  48

PETITIONS FOR CERTIORARI:
Fannum V. Comm’r of Patents and Trademarks 

(motion to direct filing of petition denied Oct. 5,
1987) ....................................................................  14

Poe V. United States (motion to direct filing of
petition denied May 16, 1988) ....................   14



vm

TABLE OF AUTHORITIES— Continued

CONSTITUTIONS: Page
U.S. Const, art. I l l .................................... 25, 35, 40, 41, 52
U.S. Const, art. VI, § 2 ............................................ 11, 37
U.S. Const, amend. X ................................25, 40, 46, 47, 52
U.S. Const, amend. X IV ......... .35, 39, 40, 41, 42, 43, 46, 47
Mo. Const, art. 10 §§ 11(b), 11( c ) ........................... 27
Mo. Const, art. 10 §§ 16-24....................................... 27

STATUTES:
28 U.S.C. §§ 1331, 1343 (1982) ...............................  41
28 U.S.C. § 2101(c) (1982).....................................1, 9, 12
42 U.S.C. § 1983 (1982) ......................11, 40, 41, 42, 46, 54
Mo. Ann. Stat. § 137.073 (Vernon 1988).................  27
Mo. Ann. Stat. §§ 163.087, 164.013 (Vernon Supp.

1989) ...............    27
Mo. Ann. Stat. §§ 164.011, 164.041 (Vernon 1965 

& Supp. 1989) ....................................................  27
RULES:

Sup. Ct. R. 20.3.........................................................  14
Sup. Ct. R. 20.4.................................... ....................  13, 14
Fed. R. App. P. 35..................................... 14, 18, 19, 21, 22
Fed. R. App. P. 40...........................................12, 14, 16, 21
Fed. R. App. P. 41 (a )...............................................  22
5th Cir. R. 35............................................................  20
8th Cir. R. 15.................................................. 18, 19, 20, 21
8th Cir. R. 16.............................................16, 17, 18, 20, 21
11th Cir. R. 35-6.......................................................  20
1st Cir. IOPX(C) .......................   20
8th Cir. IOP VI (D) ................. ................................ 19

OTHER AUTHORITIES:
R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practice 396 (6th ed. 1986) .....................  14
16 C. Wright, A. Miller, E. Cooper & E. Gressman, 

Federal Practice and Procedure % 3981 (1977).. 19



In The

Buptm? drntrt of tip ItttPfc BUUb
October Term, 1989

No. 88-1150

State op Missouri, et al,
Petitioners,

v.

Kalima Jenkins, et al,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

BRIEF FOR RESPONDENTS 
KALIMA JENKINS. ET AL., AND THE 

KANSAS CITY, MISSOURI SCHOOL DISTRICT

JURISDICTION
The judgment of the Court of Appeals was entered on 

August 19, 1988. The State of Missouri filed its petition 
for certiorari on January 11, 1989, well past the 90-day 
period permitted by 28 U.S.C. § 2101(c). Because that 
90-day statutory period was not tolled either by a peti­
tion for rehearing filed with the Court of Appeals or by 
an application to this Court for an extension of time, the 
Court lacks jurisdiction in this case. See pp. 12-24, 
infra.



2

COUNTERSTATEMENT OF THE CASE
A. The Findings of Unconstitutional Discrimination
The Kansas City, Missouri School District (“KCMSD” ) 

and a group of KCMSD school children brought this case 
in 1977, alleging that the State of Missouri had main­
tained unconstitutionally segregated and inferior schools 
for black children in the District and had failed to eradi­
cate the effects of that discriminatory conduct, App. 
202a.1 KCMSD was re-aligned as a party-defendant be­
cause the district court (The Honorable Russell G. 
Clark) found “potential conflicts of interest” between the 
school district and the student plaintiffs that counselled 
“against the KCMSD accepting the role as primary ad­
vocate of its students’ rights.” 2 Parents of the plaintiff 
school children retained separate counsel, and they pur­
sued their claims of unlawful discrimination against 
KCMSD and the State; KCMSD essentially conceded these 
claims while pursuing its own cross-claim against the 
State.3

After 92 days of trial (beginning in October 1983), 
Judge Clark found that any discriminatory conduct by 
the State and KCMSD had not resulted in lingering 
inter-district effects and so denied inter-district relief. 
However, on September 17, 1984, he found both the State

1 We cite the State’s Appendix in support of its petition for 
certiorari as “ App.” ; the Joint Appendix as “ JA” ; the State’s 
brief on the merits as “ State Br.” ; the plaintiffs’ opposition to 
certiorari as “Jenkins Opp. Cert” ; and KCMSD’s opposition to 
certiorari as “KCMSD Opp. Cert.”

2 School Dist. of Kansas City v. Missouri, 460 F. Supp. 421, 441 
(W.D. Mo. 1978), appeal dismissed, 592 F.2d 493 (8th Cir. 1979).

3 The plaintiff school children and KCMSD have jointly pursued 
their claims against the State, and both have supported most of 
the components of the remedy. They join in this brief because 
their interests are allied in vindicating the constitutional rights of 
minority school children and in assuring that KCMSD has the 
capability to fund its court-mandated share of that vindication.



3

and KCMSD liable for unconstitutionally discriminating 
against black children attending KCMSD schools, both by 
operating the schools on a segregated basis and by provid­
ing a substandard educational program. He furthermore 
found that the State and KCMSD had failed in their af­
firmative duty to undo the continuing harm, caused by 
that conduct within KCMSD. App. 206a-13a, 235a-40a.

B. The Initial Remedial Order
After receiving proposed remedial plans from the State 

and KCMSD and holding a two-week hearing on the ap­
propriate methods for undoing the unconstitutional dis­
crimination, on June 14, 1985, Judge Clark found that 
segregation had “ caused a system wide reduction in stu­
dent achievement in the schools of the KCMSD” (empha­
sis by the court), App. 155a, and noted that all parties 
(including the State) agreed that it was “ appropriate to 
include a number of properly targeted educational pro­
grams in a desegregation plan.” Id. (quoting State Plan 
at 5). He furthermore noted that both the State and 
KCMSD proposed programs “ designed to increase student 
achievement” and that both specifically endorsed pro­
grams that would achieve AAA status (as defined by the 
State Board of Education) for KCMSD schools. App. 
156a, 158a.

Judge Clark then addressed and approved the key 
components of the requisite desegregation plan: magnet 
schools, capital improvements, and encouraging voluntary 
transfers of students to desegregate KCMSD schools. He 
found that many of KCMSD’s 68 school facilities were so 
deteriorated that they presented health and safety haz­
ards, undermined the educational achievement components 
of the desegregation plan, discouraged the voluntary 
transfer of non-minority students, and left intact the in­
ferior education that the State and KCMSD had fostered. 
App. 187a-89a. He specifically rejected the State’s con­
tention that the deteriorated condition of the schools had 
not been caused by the State’s and KCMSD’s policy of



4

discrimination and segregation and, accordingly, ordered 
a capital improvement program designed to correct those 
conditions. App. 189a-90a.

C. The Initial Appeal
On appeal to the Eighth Circuit, the State did not dis­

pute Judge Clark’s determination that the State and 
KCMSD had failed to remedy the effects of their un­
constitutional discrimination; instead, the State chal­
lenged only certain components of the remedial plan 
approved by the district court. Jenkins v. Missouri, 807 
F.2d 657, 682 (8th Cir. 1986) (en banc), cert, denied, 
108 S. Ct. 70 (1987) ( “Jenkins I” ). The en banc Eighth 
Circuit rejected these challenges, and held that the par­
ticular programs approved by Judge Clark “ are neces­
sary for successful desegregation.” Id. at 685. The State 
did not seek certiorari from this judgment. The key com­
ponents of the desegregation plan accordingly became 
final.

D. The Current Remedial Orders
The district court next determined the precise methods 

to be used to implement the previously approved remedial 
plan by: (1) holding weeks of hearings to determine the 
particular capital improvements and magnet schools still 
necessary to redress the identified constitutional viola­
tions; (2) allocating funding responsibility for the reme­
dial plan between KCMSD and the State; and (3) en­
suring that KCMSD could pay its share of the necessary 
remedial expenses. Judge Clark heard the testimony of 
representatives of the plaintiff school children, State and 
District officials, as well as parents, teachers, and experts. 
On the basis of this evidence, he found that as a result 
of the constitutional violations KCMSD’s “physical facili­
ties have literally rotted” and that the “ overall condition” 
of the schools remained “generally depressing and thus 
adversely affects the learning environment and continues 
to discourage parents who might otherwise enroll their 
children in the KCMSD.”  App. 68a, 71a-72a, 86a. To



5

cure these conditions, Judge Clark did not, as the State 
says, simply undertake “ to upgrade the school system” 
and make it “ comparable to suburban schools.”  State 
Br. 4, 8. Rather, he approved only those specific pro­
grams and costs he found necessary to “eliminat[e] the 
substandard conditions present in KCMSD schools” suf­
ficiently to “provid[e] the victims of unlawful segrega­
tion with the educational facilities that they have been 
unconstitutionally denied.”  App. 69a, 72a-79a.

Judge Clark held the State and KCMSD (“ the two 
constitutional violators” ) jointly and severally liable for 
these remedial costs, but generally required the State to 
pay 75% of those costs and KCMSD 25%. (With regard 
to capital improvements, however, he made them equally 
liable for costs.) App. 79a, 81a-S2a. Although the State 
argued strenuously that KCMSD should be charged with 
at least 50% of the funding responsibility— even if local 
taxpayers had not approved sufficient funds for that pur­
pose— Judge Clark approved the 75%/25% allocation in­
stead because: (1) the State was at greater fault for 
having mandated the unconstitutional segregation; (2 ) 
KCMSD’s population is only 9% of the State’s total and 
should not bear 50% of the costs; and (3) “ even with 
Court help it would be very difficult for the KCMSD to 
fund more than 25% of the costs of the entire remedial 
plan.” App. llla-13a.

Judge Clark found, in fact, that KCMSD had already 
exhausted all available means of producing the revenues 
necessary to meet even its 25% share of the remedial 
plan, including its Board’s proposal of numerous bond 
issues and property tax increases, all of which the Dis­
trict’s voters had failed to approve. This had left the 
District with the lowest property tax levy in the County 
— at a level almost 35% less than the County average. 
JA 293-94, App. 32a-33a. In these circumstances, Judge 
Clark concluded that he had no choice but to require local 
authorities to impose tax measures sufficient to meet their



6

constitutional obligations— even though such measures 
would be in excess of the strict limits set by State law.4 5 6 *

Specifically, Judge Clark first calculated the amount by 
which KCMSD’s available revenue would fall short of 
its share of the remedial plan. Based on this calculation, 
he authorized local officials to: (1) increase the District’s 
property tax levy by $1.95 to fund KCMSD’s share of 
desegregation costs0 through the 1991-92 school year 
(other than for capital improvements) ; (2 ) issue bonds 
in the amount of $150,000,000 to meet the capital im­
provement requirements; and (3) apply a 1.5% income- 
tax surcharge to income generated in KCMSD. App. 
88a-89a. He furthermore provided, however, that the 
property tax would “remain in effect” only “until other 
provisions are adopted” to ensure retirement of the bonds. 
App. 63a.8

E. The Eighth Circuit’s Affirmance of the Current Re­
medial Orders

On appeal, the Eighth Circuit approved the district 
court’s specific findings that the deterioration both of ed­
ucational quality and the physical facilities in KCMSD, 
as well as the racial imbalance in many of its schools, 
were all vestiges of the unconstitutional discrimination.

4 See further discussion of this point at pp. 27-33.

5 The State of Missouri implies that Judge Clark exceeded the 
limits of an appropriate remedy because “revenues from its new 
taxes were to be used ‘not only to eliminate the effects of unlawful 
segregation but also to insure that there is no diminution in the 
quality of its regular academic program.’ ” State Br. 9. But Judge 
Clark had already found that the quality of education within the 
KCMSD had been dramatically reduced by the District’s and the 
State’s unconstitutional discrimination. He therefore correctly rec­
ognized that the inferior education had to be redressed by the 
remedial plan.

6 The bonds were sold on February 16, 1988, and are scheduled
to be retired over a 20-year period.



7

App. lla-21a. It furthermore affirmed the district court’s 
determination that the particular capital improvements 
and magnet schools at issue were reasonable and neces­
sary steps toward the “ long term goal” of restoring “ the 
victims of unconstitutional segregation . . .  to the 'position 
they would have occupied absent such conduct, while 
establishing an environment designed to maintain and 
attract non-minority enrollment.”  App. 10a (quoting dis­
trict court at App. 146a; emphasis added by Court of 
Appeals).

The Eighth Circuit affirmed Judge Clark’s authoriza­
tion of an increased property tax levy on two alternative 
grounds. First, the court determined on the basis of this 
Court’s decision in Griffin v. County School Bd., 377 U.S. 
218 (1964), as well as its own en banc decisions in Lid­
dell v. Missouri, 731 F.2d 1294 (8th Cir.), cert, denied, 
469 U.S. 816 (1984) ( “Liddell VII” ) and United States 
V. Missouri, 515 F.2d 1365 (8th Cir.), cert, denied, 423 
U.S. 951 (1975), that when all other alternatives had 
been exhausted the court could order local authorities to 
exercise their taxing power where absolutely necessary 
to remedy a constitutional violation. App. 28a-29a.

Second, the Eighth Circuit determined that State laws 
had effectively prohibited KCMSD from imposing a prop­
erty tax sufficient to meet its desegregation obligations 
and that Judge Clark’s order should therefore be modified 
simply to enjoin those State laws. Specifically, as the 
court explained, in 1969 a majority of KCMSD voters 
approved an increase of the tax levy to $4.30, but Mis­
souri law forbade the increase without a two-thirds ma­
jority, which had not been received. Thereafter, the 
voters by 63% approved an increase to $3.75, which 
passed because a two-thirds vote was not required. Sub­
sequently, however, the levy was cut nearly in half to 
$2.05, not by KCMSD voters, but by operations of cer­
tain State-law tax changes and rollbacks. App. 32a-33a.



8

Accordingly, the Eighth Circuit found, State law had 
“ so narrowly circumscribe [d] KCMSD’s ability to raise 
money that, if forced to operate within these limits, the 
district court would lack power to implement a remedy.” 
App. 34a. The Court therefore directed KCMSD’s elected 
Board to submit to county taxing officials the amount of 
the tax levy needed to meet its desegregation obligation 
(subject to a maximum figure to be set by Judge Clark), 
and authorized Judge Clark to enjoin those State-law pro­
visions which prevented imposition of that levy. By thus 
affirming the order as one which simply “ set aside levy 
limitations” on KCMSD’s taxing authority, the Eighth 
Circuit relieved Judge Clark from any responsibility 
either to determine the particular property tax that should 
be imposed or to order imposition of that tax. App. 
37a-40a.

The Eighth Circuit reversed Judge Clark’s income-tax 
surcharge order, however, because it could not be con­
strued as simply removing State-law limitations on local 
taxing authority. Rather, allowing KCMSD to obtain rev­
enue from that source would require a “ restructur [ing] 
[of] the State’s scheme” and “ an entirely new form of 
taxing authority.”  App. 40a. In imposing such a scheme, 
the court held, “ the district court has exceeded its au­
thority.” Id.

F. The Limited Grant of Certiorari
The State of Missouri petitioned this Court for cer­

tiorari, seeking review of both the scope of the remedial 
plan (Question 1) and of the funding orders for the plan 
(Question 2). The Court granted certiorari limited to 
the question of the funding orders. In addition, the Court 
directed the parties to address the question whether this 
Court’s jurisdiction has been established. 109 S. Ct. 1930 
(1989).



9

SUMMARY OF ARGUMENT 
I

The governing statute allowed the State 90 days after 
the Court of Appeals’ judgment in which to petition this 
Court for a writ of certiorari. 28 U.S.C. § 2101(c). Be­
cause the State filed its petition well after the 90-day 
period had run, this Court lacks jurisdiction in this case.

The State’s claim that its “ Petition for Rehearing En 
Banc” tolled the running of the 90 days is without merit. 
While a petition for rehearing before the panel would 
have effected such a tolling, it is well settled that a peti­
tion for rehearing en banc does not do so.

The State’s contention that its petition was in fact a 
petition for rehearing, as well as a petition for rehearing 
en banc, is baseless. In form, in substance, in title, and 
under the governing Eighth Circuit rules, the State’s pe­
tition was solely a request for en banc rehearing— a doc­
ument that could not toll the running of the 90-day juris­
diction period in this Court.

Also without foundation is the State’s claim that the 
Eighth Circuit’s uniform practice is to treat all en banc 
petitions as if they were also rehearing petitions to the 
panel. This claim is not only incompatible with the 
Eighth Circuit’s local rules, it is also inconsistent with 
numerous instances in which the Eighth Circuit has not 
treated an en banc petition as if it were also a rehearing 
petition.

Finally without merit is the State’s claim that the 
Eighth Circuit’s nunc pro tunc Order—which purported 
to deny rehearing petitions in this case—was effective to 
toll the running of the 90-day period. After this Court’s 
jurisdiction had expired, the lower court had no power to 
revive that jurisdiction by entering an ad hoc order retro­
actively denying petitions for rehearing that were not in 
fact filed.



10

For all these reasons, the petition for certiorari in this 
case was jurisdictionally out of time and should accord­
ingly be dismissed.

II
As the State urged, the lower courts have held KCMSD 

responsible for a portion of the costs of the remedial plan 
in this case. However, those courts have found that un­
der current State law KCMSD is unable to pay its share 
of those costs, and that it has exhausted all possible al­
ternatives .for doing so. The courts have also provided 
the State and KCMSD ample opportunity to propose 
methods by which KCMSD might meet its obligation, but 
the State has offered none.

In these circumstances, when KCMSD and the State 
continued to be in default of their affirmative duty to 
remedy their constitutional violations— and under the 
governing State law KCMSD had no prospects whatever 
for meeting that duty—the lower federal courts were not 
only authorized, but were obliged to devise a method that 
would enable KCMSD to meet the duty. After careful 
consideration of all available alternatives, those courts 
fashioned the least intrusive means for achieving that 
end— setting aside the State laws which prevented 
KCMSD from selecting and imposing an increase in its 
local property tax. Not only was this the means favored 
by KCMSD, but it involved the traditional and established 
method by which KCMSD raises revenues for local edu­
cational needs.

The State’s position— that the federal courts should 
have left the constitutional violations unremedied rather 
than override State tax laws— is completely without 
merit, and without precedential authority. This Court 
has repeatedly held that where State and local officers 
violate the Constitution, and default in their own duty 
to remedy that violation, and after ample opportunity 
provide no realistic plan for ultimately remedying the 
violation, it is the duty of federal courts to devise the 
necessary plan, even if State laws must be overridden.



11

Any other result would subvert the Supremacy Clause 
and render the Constitution without force whenever State 
and local officers are unable or unwilling to enforce it. 
Indeed, under the State’s view, the Constitution would be 
rendered a nullity in any case when a State or local 
authority— or local voters— refused to fund a constitu­
tional remedy. Nothing in this Court’s cases, or in prin­
ciples of comity, countenances such a result and the Court 
should not accept it here.

Finally, for several reasons, the lower courts acted 
well within their discretion in permitting KCMSD to 
impose a tax to fund its share of the constitutional 
remedy, rather than requiring the State to pay for the 
whole of the remedy. First, since the KCMSD Board 
(the elected representatives of the local taxpayers) favors 
the tax, while the State objects to paying any additional 
funds as an alternative to the tax, the remedy selected 
was less intrusive upon the affected State and local 
interests. Second, devising a method to ensure that 
KCMSD could meet its share of the remedy implemented 
the State’s doctrine of comparative fault. And third, 
that methods affected a key purpose of § 1983— ensuring 
that a constitutional wrongdoer redresses its own viola­
tion, thereby deterring such violations.

For all these reasons, unless and until the State or 
KCMSD provides some other method for ensuring redress 
of the constitutional violations in this case, the courts 
below remain obliged to devise a method of their own for 
doing so, and the method they selected in this case was 
well within their discretion.



12

ARGUMENT

I. THE COURT LACKS JURISDICTION OYER THIS 
CASE

This Court long ago recognized that “ the first and 
fundamental question” in every case that comes before 
it is whether the Court has jurisdiction, and that the 
“ inflexible” rule is that jurisdiction must be denied unless 
its existence “ appears affirmatively in the record.” 7 
Moreover, the Court has repeatedly held that the burden 
to establish the Court’s jurisdiction is on the party seek­
ing to invoke it.8 In this case, petitioners have not met 
that burden.

Congress has provided that “any writ of certiorari in­
tended to bring any judgment . . .  in a civil action . . . 
before the Supreme Court for review shall be taken or 
applied for within ninety days after the entry of such 
judgment. . . .”  28 U.S.C. § 2101(c) (emphasis supplied). 
This 90-day statutory requirement is jurisdictional and 
cannot be waived even by the Court itself.9 There were 
two ways in which petitioners could have tolled that 90- 
day period before it expired: (1) by seeking an extension 
of time for up to 60 days from a Justice of this Court, 
28 U.S.C. § 2101(c); or (2) by filing a timely petition 
for rehearing in the Court of Appeals pursuant to Rule 
40 of the Federal Rules of Appellate Procedure; under

7 Mansfield, Coldwater & Lake Michigan Ry. Co. V. Swan, 111 
U.S. 379, 382 (1884). Accord, King Bridge Co. V. Otoe County, 
120 U.S. 225, 226 (1887).

8 E.g., Dep’t of Mental Hygiene V. Kirchner, 380 U.S. 194, 197 
(1965); McNutt V. General Motors, 298 U.S. 178, 189 (1936).

9 E.g., FTC v. Minneapolis-Honey well Co., 344 U.S. 206, 207 
(1952) ( “The initial question in this case is one of jurisdiction—• 
whether the petition for certiorari was filed within the period al­
lowed by law,” citing 28 U.S.C. § 2101 ( c ) ) ; Dep’t of Banking v. 
Pink, 317 U.S. 264, 268 (1942) (petition for certiorari not filed 
within time provided by statute “must . . .  be denied for want of 
jurisdiction” ).



13

this Court’s Rule 20.4,10 such a rehearing petition would 
have tolled the running of the 90-day period.

Petitioners do not claim that they sought an extension 
from this Court; nor could they. They do claim, however, 
that they filed a timely petition for rehearing in the 
Court of Appeals and that that petition served to make 
their petition to this Court timely. But the record clearly 
shows otherwise.

A. The Jurisdictional Facts of Record Demonstrate 
that the Petition to this Court was Out of Time

The Court of Appeals entered its judgment in this case 
on August 19, 1988. App. 52a. On September 16, 1988, 
petitioners filed a document with that court entitled 
“ State Appellants’ Petition for Rehearing En Banc,” 
which is reprinted in full at JA 489-502. At about the 
same time, two other such documents— one entitled “ Peti­
tion . . . for Rehearing By Court En Banc” and the other 
entitled “ Petition for Rehearing En Banc with Sugges­
tions in Support” -—were also filed. JA 458-88.11 As later 
demonstrated, there is no question that all three of these 
documents were in substance exactly what they were en­
titled: solely requests that the en banc Eighth Circuit 
rehear the panel’s August 19 decision. On October 14, 
1988, the Court of Appeals denied the three petitions as 
follows: “ There are now three petitions for rehearing 
en banc pending before the Court. It is hereby ordered 
that all petitions for rehearing en banc are denied.” App. 
53a.

10 “ [I] f  a petition for rehearing is timely filed by any party in 
the case, the time for filing the petition for writ of certiorari for 
all parties . . . runs from the date of the denial of rehearing . . . .” 
(emphasis supplied).

11 These two petitions were filed by Jackson County and Icelean 
Clark (and other taxpayers), respectively. These same parties 
also filed petitions for certiorari to this Court, both of which were 
denied. 109 S. Ct. 1931 (1989).



14

The first effort any party made to seek review of 
the August 19 judgment in this Court was on December 
31— 134 days later— when petitioner Jackson County sub­
mitted an application for extension of time in which to 
file its petition. That application was returned by the 
Court because, as the Clerk noted in his January 3 
letter to Jackson County, JA 503, the 90-day statutory 
period in this case began to run on August 19 and had 
already expired. As the Clerk stated: “Rule 35(c) of 
the Federal Rules of Appellate Procedure clearly states 
that the pendency of a petition for rehearing en banc 
shall not affect the finality of the judgment of the Court 
of Appeals.”  Id. Therefore, as the Clerk also stated, “ a 
petition for rehearing en banc does not toll the time for 
filing a petition for a writ of certiorari, only a petition 
for rehearing would toll the time. See Rule 40 of the 
Federal Rules of Appellate Procedure and Rule 20.4 of 
the Rules of the Supreme Court.”  Id }2

The State seeks to avoid the 90-day rule by relying on 
a January 10, 1989 Order which the Eighth Circuit issued 
after the Clerk of this Court had determined that no 
petition could be timely filed. That January 10 Order 
stated in full:

This Court’s mandate which was issued on October 
14, 1988, is hereby recalled. 12

12 The Clerk’s determination was not only mandated by the gov­
erning rules, it was also consistent with this Court’s long-settled 
practice. We are advised that, pursuant to Sup. Ct. R. 20.3, the 
Clerk’s office routinely returns petitions that incorrectly attempt to 
count the 90-day petitioning period from the date of a denial of a 
petition for rehearing en banc. Moreover, our research discloses 
that this Court often and without exception denies motions direct­
ing the Clerk to file petitions in such circumstances. See, e.g., Poe 
V. United States (motion denied May 16, 1988) ; Farnum V. Comm’r 
of Patents and Trademarks (motion denied Oct. 5, 1987). Indeed, 
because the 90-day rule is jurisdictional the Court has “strictly 
applied” it and has never granted a motion to file a petition sought 
to be filed in violation of the rule. See R. Stern, E. Gressman & 
S. Shapiro, Supreme Court Practice 396 (6th ed. 1986).



15

There are three (3) petitions for rehearing with 
suggestions for rehearing en banc pending before the 
Court. It is hereby ordered that the petitions for 
rehearing and the petitions for rehearing with sug­
gestions for rehearing en banc are denied.

This order is entered nunc pro tune effective Oc­
tober H , 1988. The Court’s mandate shall now issue 
forthwith. [JA 513; emphasis supplied.]

The only apparent purpose of this January 10 Order was 
to deny petitions for rehearing that were never filed and 
thereby revive jurisdiction in this Court after the Clerk 
of this Court determined that that jurisdiction had ex­
pired. But this Court’s jurisdiction cannot be conferred 
by the device of nunc pro tunc orders declaring, ipse 
dixit, that the jurisdictional requirements have been met 
— when in fact they have not been met. As the Court 
stated in Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 
258, 261 (1888) : “ When the time for taking an appeal 
has expired, it cannot be arrested or called back by a 
simple order of court.” 13 This principle controls the 
present case. Once the time for petitioning this Court had 
expired— which it did 90 days after the August 19 judg­
ment— no “simple order” of the Eighth Circuit could re­
vive this Court’s jurisdiction nunc pro tunc by declaring 
that the State’s en banc petition was in fact a rehearing 
petition. If it could, “ the law which limits the time 
within which an appeal can be taken would be a dead 
letter.” Credit Co., 128 U.S. at 261.

Nevertheless, relying on the nunc pro tunc Order, the 
State now makes essentially two claims before this Court:

13 Accord, Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 
U.S. 131, 137-38 (1937) (court of appeals may not entertain peti­
tion for rehearing merely for purpose of extending time for appeal 
to Supreme Court) ; Conboy V. First Nat’l Bank, 203 U.S. 141, 145 
(1906) (once time to petition Supreme Court has expired, petition 
for rehearing in court of appeals cannot serve to “reinvest” this 
Court with jurisdiction).



16

(1) that that Order simply recognized what actually 
happened— that the State did in fact file a timely petition 
for rehearing; or (2 ) that even if no petition for rehear­
ing was filed, the Order properly applied an established 
Eighth Circuit practice of treating all en banc petitions 
as if they were also rehearing petitions. State Br. 15-18. 
Both claims are wrong and neither is sufficient to meet 
petitioners’ affirmative burden to demonstrate jurisdic­
tion in this case.

B. Petitioners Have Not Established that They Filed 
a Petition for Rehearing

We agree, of course, that the Eighth Circuit could 
properly issue an order recognizing that petitioners filed 
a Rule 40 rehearing petition if petitioners in fact did 
so; but the record shows they did not. On no fair reading 
of the documents filed in this case could they remotely 
be construed as rehearing petitions.

The State’s “ Petition for Rehearing En Banc” began 
by advancing two contentions: (1) that this case raises 
a “common question” cutting across all issues presented 
in the appeal— whether “ the [desegregation] programs 
and taxes”  approved by the District Court and the panel 
decision are “ truly necessary to achieve compliance with 
the Constitution . . and (2 ) that “ [t]his question 
merits the attention of the full Court for several rea­
sons.” JA 490. The remainder of the petition is ad­
dressed solely to a recitation of the “ several reasons” 
why en banc review of the panel’s decision was war­
ranted. JA 490-500. The closing page of the petition 
then represented, as the Eighth Circuit’s rule governing 
en banc rehearing requires (8th Cir. R. 16), that the case 
“raises . . . questions of exceptional importance.” JA 502. 
Not one word in the document suggested that rehearing 
by the panel was appropriate or otherwise invoked the 
standards for such rehearing.14 The same is true of the

14 Local Rule 16 provides that en banc review is appropriate for 
“an issue of grave constitutional dimension or exceptional public



17

other two en banc petitions filed with the Court of 
Appeals.15

Significantly, the State disputes none of the foregoing. 
Indeed, the State nowhere even suggests that its en banc 
petition was in substance a rehearing petition. Neither 
does it contend that it intended its filing to be a rehear­
ing petition, or that it thought the filing would be treated 
as such. Nor could it do so: the State of Missouri has 
repeatedly demonstrated that it knows how to file a 
petition for rehearing when that is its intention; and 
when it does so, the State labels the document as such 
and the content bears out that label.16

importance”—the precise standard invoked by the State; on the 
other hand, that rule provides that panel rehearing is appropriate, 
inter alia, to consider “ [a]lleged errors . . .  in the facts of the 
case . . .  or error asserted in the misapplication of correct precedent 
to the facts,” a standard not relied on by the State at all.

15 Petitioner Jackson County contended that only en banc review 
would suffice “ since the panel appeared to feel bound by the en bane 
decision in Liddell VII.”  JA 467. Icelean Clark sought en banc 
review contending that the panel decision “ is contrary to certain 
decisions of the United States Supreme Court, and this Court, . . . 
and that consideration by the full Court is necessary to secure and 
maintain uniformity of decisions in this Court . . . .”  JA 471.

16 In the course of contesting desegregation orders in the Kansas 
City and St. Louis cases, the State has variously filed petitions for 
rehearing, petitions for rehearing en banc, and petitions for both 
rehearing and rehearing en banc. By way of illustration, on Feb­
ruary 10, 1988, the State filed with the Court of Appeals a “ Motion 
For Rehearing En Banc” based upon, inter alia, the argument 
(p. 1) that “ consideration by the full court is appropriate because 
of the exceptional importance of the questions involved.” Jenkins 
V. Missouri, No. 87-2076WM. On December 6, 1985, the State filed 
with that court a “ Petition For Rehearing,” stating (p. 1) that 
the Eighth Circuit panel’s decision reflected “either an oversight 
or misunderstanding of significant issues.”  Liddell v. Missouri, 
No. 85-1420EM. And on August 6, 1985, the State filed with the 
court a “ Conditional Request . . . for Reconsideration or for Re­
hearing En Banc” contending that (p. 2) “ if reconsideration or 
rehearing of any portion of the decision is deemed to be appro­



18

Instead, the State’s sole argument that it in fact filed 
a petition for rehearing is an afterthought based on the 
following two sentences from the Notes of the Advisory 
Committee to Fed. R. App. P. 35:

In practice, the suggestion of a party that a case be 
reheard in banc is frequently contained in a petition 
for rehearing, commonly styled “ petition for rehear­
ing in banc.”  Such a petition is in fact merely a 
petition for rehearing, with a suggestion that the 
case be reheard in banc. [Emphasis supplied.]

The State reads this Note to mean that any document 
entitled “ Petition for Rehearing En Banc”  must be 
treated as presenting both a rehearing petition as well as 
an en banc petition. But that is not what the Note says 
at all; it merely says that in practice parties will “ fre­
quently” combine a petition for rehearing with a sug­
gestion for rehearing en banc and “ commonly” will 
“style” such a combined petition as a “petition for re­
hearing en banc.”  But that is not what the State in fact 
did here; merely because the State used a title that may 
sometimes used by those who do file both kinds of peti­
tions in a single document cannot retroactively alter the 
substance of what the State in fact filed.

The State apparently contends that calling its docu­
ment a “ Petition” for en banc rehearing, rather than a 
“ Suggestion” therefor, converted it by commonly-accepted 
practice into a petition for rehearing. But the Eighth 
Circuit’s own rules and operating procedures contradict 
this contention. The Circuit’s Local Rule 16— entitled 
“ Hearing and Rehearing of Case En Banc”— expressly 
refers to requests for such rehearing as “ Petitions.” In­
deed, the Circuit’s Local Rule 15 (governing petitions for 
rehearing), as well as its published Internal Operating

priate, consideration by the full court of the matters raised in this 
request is necessary to secure and maintain uniformity of decisions 
in this Court.” Liddell v. Missouri, Nos. 85-1179-EM and 85-1220- 
EM.



19

Procedures, specifically refer to a request for en banc 
rehearing with the precise title used by the State in this 
case: “Petition for Rehearing En Banc.” 17 Moreover, 
that is the very title most frequently used in the courts 
of appeals, as a leading treatise on federal practice con­
firms: “ It is common practice to style a suggestion as 
to rehearing in banc as a ‘petition for rehearing in 
banc.’ ” 18

In these circumstances, the State’s belated effort to 
retroactively convert its en banc petition into something 
else should be rejected. In substance, in form, in title, in 
intention, and under the Eighth Circuit’s own rules, what 
the State filed was solely a request for rehearing en 
banc. By the express terms of Fed. R. App. 35 such a 
petition could not stay the finality of the Court of 
Appeals’ August 19 judgment. The State’s January 11 
petition to this Court was therefore filed well beyond the 
90-day statutory limit.

C. Petitioners Have not Established that the Nunc Pro 
Tunc Order Reflects an Established Eighth Circuit 
Practice

Unable to show that it in fact filed a petition for 
rehearing, the State argues, alternatively, that the 
Eighth Circuit’s “regular practice”— regardless of the 
parties’ intentions or the content of their filings— is to 
consider “ Petition [s] for Rehearing En Banc” as if they 
were both rehearing petitions and en banc petitions. State 
Br. 15-16. That being so, the State contends, it does not 
matter whether it in fact filed a rehearing petition; 
what matters is that the Eighth Circuit’s regular practice 
was to treat the filing as a rehearing petition regardless

17 8th Cir. R. 1 5 (c ); IOP VI (D) (reprinted in Fed. Proc. Rules 
Serv., 8th Cir. (Lawyers Co-op 1989)).

18 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal 
Practice and Procedure § 3981 at 459 (1977).



20

of its content.19 The answer to this claim is that the 
State has not demonstrated that the Eighth Circuit has 
such an established practice; moreover, what evidence is 
available on the question contradicts the existence of such 
a practice.

It is true, as the State says, that a few circuits, by 
express rule, have formally adopted the practice of treat­
ing petitions for rehearing en banc as if they were also 
petitions for rehearing to the panel.20 But the Eighth 
Circuit— which could have adopted similar specific rules 
— has clearly not done so. To the contrary, the Eighth 
Circuit’s Local Rules 15 and 16 expressly distinguish 
between a rehearing petition and an en banc petition. 
Local Rule 15(a) specifically provides that “ a petition 
for rehearing by a panel should not be routinely filed” 
(emphasis supplied), and the comment to the rule states 
that “ [t]he court encourages the parties to limit the 
filings of petitions for rehearing”  (emphasis supplied). 
The standard for granting such a petition is that “ a 
significant issue has been overlooked or misconstrued by 
the court.” 8th Cir. R. 15(a). Furthermore, the rule 
expressly stipulates that “ [u]pon the request of any 
judge on the panel, a petition for rehearing by the panel

19 State Br. 19 n.23 ( “Although respondent argues that we sought 
‘rehearing en banc,’ the proper focus for inquiry is upon the order 
of the court” ) .

20 In the Fifth Circuit, the internal operating procedures apply­
ing to Local Rule 35 provide that “ [a] suggestion for rehearing 
en banc will be treated as a petition for rehearing by the panel if 
no petition is filed.” Reprinted in Fed. Proc. Rules Serv., 5th Cir. 
at 28 (Lawyers Co-op 1989). In the Eleventh Circuit, Local Rule 
35-6 provides that “ [a] suggestion of rehearing in banc will also 
be treated as a petition for rehearing before the original panel.” 
Reprinted in Fed. Proc. Rules Serv., 11th Cir. (Lawyers Co-op 
1989). See also 1st Cir. IOP X (C ), as reprinted in Fed. Local Ct. 
Rules (Callaghan & Co. 1989) ( “A suggestion for rehearing en 
banc will also be treated as a petition for rehearing before the 
original panel” ) .



will be treated as a petition for rehearing en banc'” 
(emphasis supplied).

On the other hand, there is no corollary provision in 
Local Rule 16 (governing en banc petitions) which per­
mits treating en banc petitions as rehearing petitions. 
Moreover, that rule expressly distinguishes between the 
different standards and purposes affecting the two dif­
ferent kinds of petitions:

A petition requesting or suggesting hearing or re­
hearing en banc should be filed only when the atten­
tion of the entire court need be directed to an issue 
of grave constitutional dimension or exceptional pub­
lic importance or to an opinion that directly conflicts 
with prior Supreme Court or Eighth Circuit prece­
dent. Alleged errors in the determination of state or 
federal law, or in the facts of the case (including 
sufficiency of the evidence), or error asserted in the 
misapplication of correct precedent to the facts of 
the case would be matters for panel rehearing but 
not for rehearing en banc.

These explicit Eighth Circuit rules fly in the face of 
what the State now asks this Court to accept: that the 
Eighth Circuit, which formally discourages the “ routine” 
filing of rehearing petitions (8th Cir. R. 15), nevertheless 
routinely treats all en banc petitions as if they were 
rehearing petitions; that the Circuit, having set out the 
particular requirements the two different petitions must 
meet, automatically treats the two interchangeably irre­
spective of those requirements; and that the Circuit, hav­
ing specifically provided for treatment of rehearing peti­
tions as en banc petitions when the circumstances war­
rant, omitted to state that it always does the converse 
irrespective of whether the circumstances warrant it. 
The Eighth Circuit’s rules will not bear such a reading.21

21 The Clerk of the Eighth Circuit specifically brought the gov­
erning local rules (along with Fed. R. App. P. 35 and 40) to the 
parties’ attention in this case when informing them of their rights 
to seek rehearing. JA 456.

21



22

In the face of these rules, the State purports to show 
that the Eighth Circuit has a “routine” practice to the 
contrary; it points to three examples where, the State 
claims, that court treated an en banc petition as if it 
were also a rehearing petition. State Br. 18 n.21. But 
even as to these three examples the State has not shown 
that the petitions there were in substance only en banc 
petitions— as opposed to being combined en banc and 
rehearing petitions. Moreover, there are many published 
Eighth Circuit decisions where that court has not treated 
an en banc petition as if it were also a rehearing peti­
tion.22 Accordingly, even if this Court were inclined 
to premise its jurisdiction on a survey of the Eighth 
Circuit’s cases in this area, the cited decisions refute the 
State’s claim that the Eighth Circuit has a consistent 
practice that would validate the State’s failure to file a 
rehearing petition.23

22 See, e.g., Horton v. Marshall Public Schools, 769 F.2d 1323 
(8th Cir. 1985); Matter of Snyder, 734 F.2d 334 (8th Cir. 1984), 
rev’d, 472 U.S. 634 (1985).

23 Similarly without merit is the State’s claim that the treatment 
of the mandate in this case establishes an Eighth Circuit practice 
with regard to all rehearing petitions. It is true that the filing of 
a petition for rehearing en banc does not automatically “stay the 
issuance of the mandate.” Fed. E. App. P. 35(c). It is also true 
that the filing of a rehearing petition does ordinarily stay the 
mandate. Fed. R. App. P. 41 (a ). But the mere fact that the man­
date in this case did not issue within 21 days after the August 19 
judgment does not “ conclusively” demonstrate that the State’s 
en banc petition was “ automatically” treated as a rehearing peti­
tion. State Br. 16-17. This is so for several reasons.

First, contrary to the implications of the State’s argument, the 
Court of Appeals has broad discretionary power to lengthen or 
shorten the time in which its mandates issue, as Rule 41 (a) itself 
expressly recognizes. Under that discretionary power, a court of 
appeals may instruct its clerk to withhold issuance of its mandate 
whether or not a rehearing petition has been filed and may do so 
without formal notice to the parties. See, e.g., Sparks v. Duval



28

Moreover, for this Court to find jurisdiction established 
in such circumstances would undo the stability and clarity 
that now attends the application of the published and 
settled jurisdictional rules. Indeed, if the State’s claim 
about an asserted Eighth Circuit practice were accepted 
in this case, it would effectively relegate this Court— and 
the Court’s Clerk— to uncertainty over the jurisdiction in 
every case that comes to the Court. For under the State’s 
approach, in every case, even when the record shows 
unequivocally that jurisdiction is not present, the Court 
would be required to entertain after-the-fact, anecdotal 
claims that a lower court’s practice is something other 
than what its published rules indicate, and on the basis 
of that claim ignore the rules and accept jurisdiction.

The Court should not accept the invitation to such an 
ad hoc jurisdictional morass. As Justice Scalia recently 
noted:

“ Rules of procedure are a necessary part of an or­
derly system of justice. Their efficacy, however, de­
pends upon the willingness of the courts to enforce 
them according to their terms. Changes in rules . . . 
should be effected by the process of amendment, not 
by ad hoc relaxations by this Court in particular 
cases. Such dispensations in the long run actually

County Ranch Co., 604 F.2d 976, 979 (5th Cir. 1979), cert, denied, 
445 U.S. 943 (1980). Second, the Court of Appeals would quite 
likely have exercised that discretion in this case—because two 
members of that court believed the case warranted en banc hear­
ing. As the Chief Judge of the Eighth Circuit has recently indi­
cated, that court’s practice is to withhold its mandate—without 
formal notice to the parties—when rehearing en banc is under con­
sideration in a given case. United States v. Samuels, 808 F.2d 1298, 
1299 (8th Cir. 1987). Finally, even if the lower court in this case 
did stay its mandate because it elected in this case to treat the 
State’s en banc petition as a rehearing petition—even though in 
substance it is not'—this would at most be evidence only of an ad 
hoc Eighth Circuit determination in this case. It would not make 
out an established practice that effectively modifies the Eighth Cir­
cuit’s own Local Buies.



24

produce mischievous results, undermining the cer­
tainty of the rules and causing confusion among the 
lower courts and the bar.” [Houston v. Lack, 108 S. 
Ct. 2379, 2389 (1988) (Scalia, J., dissenting) (quot­
ing Thompson v. INS, 375 U.S. 384, 390 (1964) 
(Clark, J., dissenting)).] 24

The truth is that the State simply failed to protect its 
right to petition the Court under the governing rules. 
This Court should not permit a retroactive rewriting of 
those rules to save the State from its failure. The peti­
tion should be dismissed.

II. IN THE SPECIAL CIRCUMSTANCES OF THIS 
CASE, THE LOWER COURTS ACTED WELL 
WITHIN THEIR AUTHORITY TO SET ASIDE 
STATE LAWS AND PERMIT IMPOSITION OF 
A TAX

The essence of this case was captured by the Court of 
Appeals in a single sentence: “ [T]he district court dealt 
with undisputed constitutional violations and its series of 
orders were necessary to remedy the lingering results of 
these violations, since local and state authorities had 
defaulted in their duty to correct them.” App. 5a. The 
two defaulting authorities are now before this Court, but 
they take very different positions concerning their duty 
to remedy their constitutional violations.

KCMSD acknowledges the violations and seeks to pay 
its share of the remedy through the only source available 
to it— an increase in its local property tax. Inasmuch as 
the Missouri legislature has adopted laws thwarting * S.

24 As Justice Scalia also noted in the same cited case, where 
statutory deadlines bear upon the courts’ jurisdiction, those dead­
lines must be uniformly applied; otherwise, “ allowing courts to give 
different meanings [to the deadlines] from case to case allows them 
to expand and contract the scope of their own competence.” 108
S. Ct. at 2387. Indeed, it is doubtful whether the Eighth Circuit 
has the power, retroactively and informally, to alter the jurisdic­
tional limits of this Court.



25

KCMSD’s ability to adopt the necessary tax increase, and 
KCMSD’s voters have been unwilling to approve the nec­
essary increase under those State laws, KCMSD submits 
that the lower courts properly enjoined the State laws 
and authorized the necessary tax to be imposed.

The plaintiff school children likewise support the lower 
courts’ orders because they share two common interests 
with KCMSD: (1) they, like the school district, wish to 
avoid further delay and litigation over allocating blame 
for the past generations of discrimination, and wish to 
focus instead on the remedying of that discrimination, i.e., 
upon the repairing of the plant and programs necessary 
to restore equal educational opportunity to all students; 
and (2) the plaintiff school children (whose parents in­
clude KCMSD taxpayers) accept the principle, as does 
KCMSD, that the school district and its patrons must 
bear some of the costs of redressing the constitutional 
violations.

The State, however, takes a contrary— and we think 
indefensible— view. Although the State successfully urged 
the trial court to impose a substantial share of the reme­
dial costs on KCMSD, it acknowledges, as it must, that 
under current State law KCMSD has been (and remains) 
unable to pay its designated share of those costs. In 
these circumstances, the State contends that a federal 
court is powerless to set aside State law and permit 
KCMSD to impose a tax, even if KCMSD favors that 
tax. In essence, the State’s position is that the constitu­
tional violations cannot be remedied.

Indeed, the State goes further, arguing that the pre­
rogative of state and local authorities (and of voters) 
to refuse to fund the vindication of constitutional rights 
through taxes is protected by the Constitution itself. 
Citing Article III, the Tenth Amendment, and principles 
of comity, the State claims that taxing decisions are so 
peculiarly— and exclusively— within the province of legis­



26

lators (and local voters) that those decisions must be 
upheld in all cases— even if it means that a constitutional 
deprivation must go unremedied. And even if this were 
not so in all cases, the State says it is certainly so in this 
case because here the federal courts failed to consider 
alternative ways of remedying the constitutional violation.

As we show below, none of what the State says is cor­
rect. Its claims are based on a misdescription of the 
record and, more importantly, on a misunderstanding 
both of its responsibilities under the Constitution and of 
the duty of the federal courts to ensure that those re­
sponsibilities are met.

A. In Devising Their Funding Orders, the Lower 
Courts Scrupulously Accommodated the Legitimate 
Interests of State and Local Authorities

As the Court of Appeals recognized (App. 5a), the 
three controlling guidelines for the remedial orders in 
this case were established by this Court in Milliken v. 
Bradley, 433 U.S. 267, 280-81 (1977) (“Milliken II” ) : 
(1) the orders must “be related to ‘the condition alleged 
to offend the Constitution’ ” ; (2) they “must be designed 
as nearly as possible ‘to restore the victims of discrim­
inatory conduct to the position they would have occupied 
in the absence of such conduct’ ” ; and (3) they “must 
take into account the interests of state and local authori­
ties in managing their own affairs, consistent with the 
Constitution”  (emphasis supplied) (citations omitted).

The State would have the Court believe that these 
guidelines were ignored wholesale in this case— that irre­
spective of constitutional requirements, and in total dis­
regard of the interests, views, or proposals of State and 
local officials, the lower courts relegated those officials 
“ to the ministerial function of carrying out the [courts’ ] 
orders.”  State Br. 30. That is simply not so. Only by 
ignoring the record could the State make such an un­
founded claim. To show how unfounded that position is,



27

we must summarize in some detail the care with which 
the lower courts have acted in this case—both in their 
protection of the students’ constitutional rights and in 
their accommodations of the State’s and KCMSD’s legiti­
mate interests. Because the issue on which the Court 
granted review concerns the lower courts’ funding orders, 
not those directed to the scope and detail of the desegre­
gation plan, we limit our description to the former issue.

As with most school districts in this country, KCMSD 
is heavily dependent on local property taxes for its oper­
ating revenues. Under State law, the elected Missouri 
school boards are authorized to impose the particular 
property taxes they find appropriate to meet the educa­
tional needs in their respective districts. Mo. Ann. Stat. 
§§ 164.011, 164.041 (Vernon 1965 & Supp. 1989). How­
ever, KCMSD’s tax levy rate is limited by the State Con­
stitution to $1.25 per $100 of assessed valuation, to 
$3.75 per $100 with the approval of a majority of the 
voters, and to a higher rate only with the approval of a 
two-thirds majority. Mo. Const, art. 10 §§ 11(b), 11(c).25 
Moreover, as the district court specifically found, while 
the operating property tax levy for KCMSD was nom­
inally at $3.75 per $100 of assessed valuation, when ad­
justed under a State constitutional property tax rollback 
procedure known as “ Proposition C,” 26 that levy in fact 
was reduced to $2.05. App. 32a-33a. As the Eighth 
Circuit noted, these Missouri laws together have “ erected 
a complicated structure restricting KCMSD’s ability to

25 In addition to capping the tax levy rate, State law impedes the 
ability of districts to raise funds by limiting the amount of in­
creased revenue which would otherwise result from increases in 
assessed valuation to the increases in the Consumer Price Index. 
This State-imposed cap effectively precludes revenue gains that 
districts would otherwise realize from periodic increases in assessed 
valuation. Mo. Ann. Stat, § 137.073 (Vernon 1988) ; Mo. Const, 
art. 10 §§ 16-24 ( “Hancock Amendment” ) .

26 Proposition C was enacted by State-wide referendum in 1982. 
See Mo. Ann. Stat. §§ 163.087, 164.013 (Vernon Supp. 1989).



2 8

increase its levy and fund its share of the desegregation 
remedy.” App. 33a-34a.

Despite repeated efforts, KCMSD has been completely 
unable to overcome these State-law restrictions at the 
polls. KCMSD voters last approved a levy increase on 
July 1, 1969. App. 86a. At the time of Judge Clark’s 
first funding order, voters in the District, the total pop­
ulation of which is predominantly white, had rejected all 
six levy initiatives on the ballot in the 15 years since the 
District’s student population became majority black. JA 
104.

In these circumstances, the district court found 
KCMSD “unable to finance its portion of this school 
desegregation plan.” App. 197a. Even then, however, 
after noting that it had the power to require a tax in­
crease for that portion of the desegregation plan for which 
KCMSD had responsibility, the court “hesitate[d] to take 
such action.” App. 198a. Instead, it first only enjoined 
the Proposition C property tax rollback for one year, in 
order to “provide the KCMSD with an opportunity to 
present a tax levy proposal to its patrons at the next 
regularly scheduled school election.” App. 199a.

KCMSD followed the district court’s directive and, in 
February 1986, submitted another tax levy rate increase 
referendum to District voters. JA 47-48, 56, 100-02, 119. 
Only 34% of the District voters supported the measure, 
with the strongest support shown by predominantly black 
wards and the strongest opposition by predominantly 
white wards. JA 58, 100-02, 118-19. In August of 1986, 
the District sought voter support for a referendum nar­
rowly tailored to fund only those portions of the re­
medial orders that it could not pay for without unaccept­
able cuts in regular school programs. That referendum 
also failed. JA 41.

Because KCMSD was thus unable to meet the require­
ments of State law for a property tax levy rate increase,



29

and otherwise could not meet its desegregation obliga­
tions, in August 1986 it asked the district court to enjoin 
the Proposition C property tax rollback for a second year. 
JA 40-135. In support of this request, the District dem­
onstrated in a voluminous filing that: State law restric­
tions precluded it from meeting its share of the costs of 
the desegregation programs, JA 73-77; it had scrutinized 
its budget for possible cuts and had evaluated other pos­
sible sources of revenue including federal aid and private 
charitable agencies, but that these steps were not nearly 
adequate to make up the budget deficit, JA 77-78, 120-30; 
and it had lobbied the State legislature for relief, but 
to no avail, JA 134-35.

The State filed a responsive memorandum with the 
district court, which did not dispute any of the facts con­
cerning KCMSD’s financial plight. JA 136-37. Instead, 
“ taking no position” and offering no suggestion “ on the 
specific method of funding proposed in the motion by 
KCMSD,” the State “urge[d] the Court to insist that 
KCMSD bear that portion of the desegregation cost bur­
den which is commensurate with the District’s status as 
a constitutional violator,” JA 137 (emphasis added), and 
that it do so “ notwithstanding the apparent unwilling­
ness of Kansas City taxpayers to authorize tax increases 
for such funding.” JA 136. Furthermore, while the 
State asserted its general opposition to “ Court-ordered 
taxation,” it “ recognized that there is precedent for such 
action in very limited circumstances.” JA 137. The 
State specifically noted in its filing that it did not re­
quest a hearing on the issue. Id.

The district court thereafter made specific findings 
that KCMSD’s revenues were insufficient by $6 million 
to meet its share of the desegregation budget for the 
1986-87 year, and that KCMSD had “made a diligent ef­
fort, though unsuccessful, to obtain funding for its share 
of the desegregation budget . . . .” JA 141. The court 
reiterated that “ the State should pay the major cost of a



30

desegregation plan” but agreed with the State “ that the 
KCMSD, also a violator, should share in that cost.”  Id. 
Accordingly, once again expressing its reluctance to take 
action regarding taxes, the district court enjoined Prop­
osition C to the extent necessary to enable KCMSD to 
fund its share of the desegregation plan for the 1986-87 
fiscal year. JA 141-42. The State did not appeal that 
order.

On November 12, 1986, Judge Clark approved the 
Long-Range Magnet School Plan for the desegregation of 
KCMSD. On the issue of funding for the Plan, the court 
observed that the State had “ ‘primary responsibility for 
insuring that the public education systems in the State 
comport with the United States Constitution/ ” App. 
125a, quoting App. 240a, but that “KCMSD, which in­
cludes its citizens, must be called to help remedy the con­
ditions for which it is partially responsible.” App. 125a. 
The court allocated approximately 25% of the costs to 
KCMSD and 75% to the State/A pp. 125a-126a. The 
court further provided, however, that KCMSD could ex­
tinguish its liability for part of the cost by passing a 
$53 million school capital improvement bond issue. App. 
126a. In addition, the court observed that “ [b] y making 
approximately $105,000,000 of the judgments joint and 
several, the General Assembly may be encouraged to ex­
plore ̂ the possibility of enacting legislation that would 
permit a district involved in a desegregation plan more 
versatility than it presently has to raise funds with which 
to support the program.” App, 127a. The General As­
sembly never took such action.

By the spring of 1987, it was apparent that KCMSD 
once again lacked the funds necessary to support its 
share of the cost of desegregation for the coming fiscal 
year. Since the court’s last order enjoining the Proposi­
tion C property tax rollback, KCMSD had submitted to 
the voters yet another tax levy referendum, and, in re­
sponse to the court’s November 12, 1986 Order, a bond



31

issue and tax levy referendum, all of which failed. JA 
295. The bond issue urged by the court nearly garnered 
a majority vote (49.6%) but fell far short of the two- 
thirds super-majority required by State law. JA 296. 
As a result, KCMSD faced deficits of over $7 million in 
1986-87 and over $52 million in 1987-88. JA 225. Be­
cause KCMSD was unable to meet the requirements of 
State law for a levy rate increase or bond issue on four 
different occasions in 1986 and 1987, and the legislature 
had refused to provide KCMSD with alternate ways to 
raise revenue, KCMSD filed a Motion for Further Fund­
ing Relief. The motion sought a third injunction of the 
Proposition C property tax rollback and an order requir­
ing the State to pay, under principles of joint and sev­
eral liability, the 1986-87 and 1987-88 portion of the 
Long-Range Magnet School Plan costs, with the under­
standing that KCMSD would continue to be liable to pay 
its share of those costs by the end of the six-year phase- 
in period covered by the Plan. The District also sought 
an order requiring the State temporarily to advance to 
KCMSD any additional funds needed to meet its pro­
jected 1987-88 deficit. JA 229.

The State opposed KCMSD’s Motion for Funding Re­
lief, and once again stressed that “the District should not 
be allowed to avoid fulfilling its own obligations, even 
temporarily, by calling upon this Court to compel the 
State to loan the District substantial funds . . . .”  JA 
331. In resisting the District’s proposal, the State con­
tended that “ it is incumbent on the District immediately 
to identify and begin to implement a long-range funding 
plan that is adequate to satisfy both its normal opera­
tional responsibilities and the substantial additional re­
sponsibilities it will bear under the Court’s desegregation 
orders.”  JA 333. Yet the State offered no suggestion 
concerning how the District could in fact raise enough 
revenue to implement any such funding plan given the 
restrictions set by Missouri law.



32

By order dated July 6, 1987, the district court de­
ferred ruling on KCMSD’s Motion until after the hear­
ing scheduled for August 1987 on the capital improve­
ment plans proposed by KCMSD and the State. At that 
August hearing, the court inquired whether any party 
desired an evidentiary hearing on funding issues; the re­
sponse was negative. Tr. 502 (Aug. 12, 1987). The 
State filed a supplemental memorandum confirming that 
it did not request a hearing, and reiterating that any 
funding relief should be sufficient to meet KCMSD’s share 
without any help, even in the form of a loan, from the 
State. JA 398-400. Again, however, the State made no 
suggestion as to how KCMSD could meet its shortfall.

Following the court’s request for additional informa­
tion on possible tax increase relief and the revenues it 
would yield, the plaintiffs filed a motion seeking perma­
nent desegregation funding for KCMSD in the form of 
a property tax increase and a court-ordered issue of gen­
eral obligation bonds. JA 356-72. The plaintiffs recom­
mended the property tax as the traditional means by 
which education is funded in the District. JA 363-64, 
367.

In its September 15, 1987 Order, the court found, 
again, that the “ record clearly shows that KCMSD is un­
able with its present resources to raise revenues to fund 
its share of the costs assessed under the desegregation 
orders” ; that “ [t]he KCMSD has exhausted all available 
means of raising additional revenue” ; and that as a re­
sult of the failure of every bond issue or levy increase 
proposed since 1969— including four separate attempts to 
pass bond issues or tax levy increases in 1986 and 1987 
-—KCMSD’s “ physical facilities have literally rotted.” 
App. 85a-86a.

The court reiterated that it had encouraged the Mis­
souri legislature to ease the restrictions on the fundrais­



33

ing ability of desegregating school districts, and that such 
legislation “was introduced but was received unfavorably 
and ultimately failed.” App. 86a. The court also observed 
that KCMSD and the State had “been unable to agree on 
an alternate method of raising KCMSD’s share of the 
desegregation costs.”  Id. The court expressed its reluc­
tance to grant relief that affected local taxes but con­
cluded that it had “no alternative but to impose tax meas­
ures which will enable KCMSD to meet its share of the 
cost of the desegregation plan.” App. 87a-88a. Even so, 
the court left it open to the State and KCMSD to find 
some other method for meeting the constitutional obliga­
tion, stating that the property tax increases would remain 
in effect only “ until such time . . . [as] other provisions 
are adopted” to retire the bonds funded by the tax. App. 
63a. To date, no other such provision has ever been sug­
gested by the State, much less adopted; and the State 
legislature has failed to provide any alternative mecha­
nism for funding.

On appeal, the Eighth Circuit expressly confirmed 
Judge Clark’s factual determinations that KCMSD could 
not meet its constitutional obligations without a tax in­
crease and that it had exhausted all other possible meth­
ods for meeting.that obligation.27 Nevertheless, the Eighth

27 During appeal, the court issued an order requesting eight cate­
gories of financial information, including spread sheets showing the 
costs of the desegregation plans, the revenues that would be raised 
by the measures ordered by the district court, the property tax 
rates of surrounding districts, and the election returns on levy and 
school bond elections since 1970. JA 402-04. The parties, including 
the State and KCMSD, collaborated on a response. JA 405-32. At 
oral argument and in an order issued the day thereafter, the court 
requested additional information on the parties’ “best estimates of 
the cost of implementing the district court desegregation orders 
and the additional revenue required by the school district to pay its 
share of the proposed plan.” JA 435. The court also sought “ any 
additional data with respect to costs and revenues as will be helpful 
to the Court in deciding the issues before it.” Id. The parties, 
including the State and KCMSD, filed extensive data in response to 
the court’s request. JA 438-55.



34

Circuit not only reversed Judge Clark’s implementation 
of the 1.5% surcharge, it also reversed his determination 
to impose a property tax increase directly. Instead, given 
the Eighth Circuit’s construction of the pertinent Mis­
souri laws, the court concluded that KCMSD could itself 
select and impose the necessary tax so long as certain 
State laws were enjoined.28 The Court of Appeals there­
fore modified the judgment to do no more than enjoin the 
State laws preventing an increased property tax, because 
“ [pjermitting the school board to determine the amount 
of its levy (subject to reasonable limits) will give maxi­
mum consideration to the views of state and local officials 
and is least disruptive of existing state laws and proce­
dures.”  App. 38a.29

Thus, the record demonstrates that the lower courts 
scrupulously adhered to this Court’s requirement that 
“ the federal courts in devising a remedy must take into 
account the interests of state and local authorities in man­
aging their own affairs, consistent with the Constitution.”  
Milliken II, 433 U.S. at 280-81 (emphasis supplied). In­

28 Significantly, the State does not challenge the Eighth Circuit’s 
critical construction of the pertinent Missouri law. Moreover, this 
Court has recently reaffirmed that it “normally defer[s] to Courts 
of Appeals in their interpretation of state laws . . . .” Maynard V. 
Cartwright, 108 S. Ct. 1853,1857 (1988).

29 The Eighth Circuit did authorize Judge Clark to set a ceiling 
on the property tax that KCMSD could approve, but in two ways 
this too was an accommodation to local interests. First, the setting 
of a ceiling assured local taxpaypers that KCMSD would not impose 
a tax higher than was required to meet the district’s constitutional 
requirements. Second, the ceiling on the tax must be set by refer­
ence to taxes previously approved by voters—specifically, by refer­
ence to (1) the highest levy approved by any school district in the 
county; or (2) “a combination of the highest levies for operating 
expenses and bonded indebtedness ever approved by KCMSD 
voters” ; or (3) an average of the two or three highest levies in the 
county. App, 37a. Pending outcome of this Court’s decision in this 
case, the parties have agreed to defer selection of a new tax rate 
under the Eighth Circuit’s decision.



35

deed, it is submitted that no proceedings and no remedy 
more accommodative of the State and KCMSD could have 
been devised by the federal courts in this case— unless, 
of course, the Constitution was not to be enforced against 
those parties. Regrettably, as we next address, that is in 
fact the result the State urges upon this Court.

B. Where Local Authorities Default on Their Consti­
tutional Obligations, Federal Courts Have Broad 
Authority to Ensure that those Obligations Are Met

The State’s primary argument against the funding or­
ders in this case is that “ it seems an astonishing proposi­
tion that the powers conferred on the Judicial Branch 
under Article III necessarily gave the federal courts a 
part of the states’ sovereign powers over taxation.” State 
Br. 25. But no one is advancing any such proposition.

What we do propose— and what the State’s brief largely 
ignores— is that: (1) the Fourteenth Amendment pre­
cludes State authorities from exercising any of their 
“ sovereign powers”— including their taxing power— in a 
way that denies equal protection of the laws; and (2) 
where a State does deny equal protection, and further 
fails in its affirmative duty to remedy that constitutional 
violation, federal courts may order State powers— includ­
ing the taxing power— to be exercised in ways sufficient 
to provide a remedy and may furthermore set aside State 
laws which preclude that remedy. This Court has recog­
nized these fundamental principles time and again, and 
has done so both in desegregation cases and in cases in­
volving the exercise of a State’s taxing powers.

For example, in Monell v. New York City Dep’t of 
Social Serv., 436 U.S. 658, 681 (1978), the Court recog­
nized a long line of cases in which it had “vigorously 
enforced the Contract Clause against municipalities— an 
enforcement effort which included . . . ordering that taxes 
be levied and collected to discharge federal-court judg­
ments once a constitutional infraction was found.”  (Em­



36

phasis supplied.) Accord, Owen V. Independence, 445 U.S. 
622, 639 n.19 (1980).30

More recently, in Griffin v. County School Bd., this 
Court addressed the federal courts’ power to require local 
authorities to impose tax levies where necessary to imple­
ment a desegregation decree. There, the Court unani­
mously declared that it had “no doubt of the power of the 
[lower] court” both to enjoin the issuance of tax credits * 12

30 Representative of the early cases relied on in Monell and Owen 
are United States V. New Orleans, 98 U.S. 381 (1878) and Wolff V. 
New Orleans, 103 U.S. 358 (1880). In the first of these cases, Jus­
tice Field held for a unanimous Court that while “ the power of 
taxation belongs exclusively to the legislative branch of the govern­
ment,” a governmental unit that has been delegated taxing power 
may be judicially ordered “to exercise the power”  when it has a 
legal “ duty” to do so. 98 U.S. at 392, 397. In the subsequent Wolff 
case, and again writing for a unanimous Court, Justice Field ex­
plained why a judicial order requiring a tax levy may be ordered 
even when State law would prohibit the levy :

It is true that the power of taxation belongs exclusively to 
the legislative department, and that the legislature may at any 
time restrict or revoke at its pleasure any of the powers of a 
municipal corporation, including, among others, that of taxa­
tion, subject, however, to this qualification, which attends all 
State legislation, that its action in that respect shall not con­
flict with the prohibitions of the Constitution of the United 
States. . . . Legislation producing this latter result . . . must 
be disregarded . . . .  [103 U.S. at 365 (emphasis supplied).] 

Rees V. Watertown, 86 U.S. 107 (1874) and Meriwether v. Garrett, 
102 U.S. 472 (1880)—heavily relied on by the State (State’s Br.
12, 22-24)—are not to the contrary. What this Court refused to 
approve in Rees and Meriwether, and what was described there as 
being beyond the power of the federal judiciary, was not an order 
requiring state officials to levy and collect a tax; rather, it was the 
appointment of a United States Marshal to seize taxable property 
of private citizens and sell it to satisfy a judgment, see Rees, 86 
U.S. at 119, or the direct appointment of a federal receiver to 
collect all state taxes and pay the judgment, see Meriwether, 102 
U.S. at 508. That is not what was ordered below. Furthermore, 
unlike here, in Rees and Meriwether there was no constitutional 
requirement that could justify the overriding of State tax laws.



37

to private, segregated schools and, “ if necessary to pre­
vent further racial discrimination, require the Super­
visors to exercise the power that is theirs to levy taxes to 
raise funds adequate to reopen, operate, and maintain 
without racial discrimination [the] public school sys­
tem [s]. . . .” 377 U.S. at 232-33 (emphasis supplied).81

The principle recognized in cases such as Wolff, Monell, 
Owen, and Griffin is not unique to school desegregation 
cases; nor does it vest federal courts with “unbridled 
power to displace other departments of government.” 
State Br. 13. State officials in this case were afforded 
ample opportunities to develop, justify, and (if found 
adequate) implement a remedy of their own devising for 
the adjudicated constitutional violations. Only upon their 
failure to do so did Judge Clark enter the orders about 
which the State now complains. “Judicial authority en­
ter [ed] only when local authority default [ed].”  Swann 
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 
(1971).

In such circumstances, this Court has consistently rec­
ognized the broad scope of federal courts’ equitable reme­
dial authority to assure the vindication of constitutional 
rights where State or local officials have failed or refused 
to do so. See id: at 15. The framing of decrees adequate 
for this purpose is a peculiarly judicial responsibility, id., 
and its exercise does not imply (as the State suggests) 31

31 The State contends that Griffin recognized, at most, that fed­
eral courts could direct local authorities to exercise taxing power 
within the strict limits imposed by State law. State Br. 35. In 
other words, the State’s view is that State law can effectively limit 
—or completely proscribe—the vindication of constitutional rights. 
That is clearly not the law and is certainly not what Griffin said. 
Bather, Griffin said that “ [a]n order of this kind [requiring exer­
cise of State taxing authority] is within the court’s power if re­
quired to assure these petitioners that their constitutional rights 
will no longer be denied them.” 377 U.S. at 233-34. Under the 
Supremacy Clause, no State law—tax or otherwise— can limit such 
a vindication of constitutional rights.



38

that federal courts have usurped any portion of a State’s 
“ sovereign powers,” even where, as here, a state-law limi­
tation must be superseded in order to implement a con­
stitutional remedy. For “ [ujnder the Supremacy Clause 
of the Federal Constitution . . . ‘any state law, hoivever 
dearly within a State’s acknowledged power, which inter­
feres with or is contrary to federal law, must yield.’ ” 
Felder v. Casey, 108 S. Ct. 2302, 2306 (1988) (quoting 
Free v. Bland, 369 U.S. 663, 666 (1962)). Accord, e.g., 
North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 
45 (1971) (“ state policy must give ivay when it operates 
to hinder vindication of federal constitutional guaran­
tees” ).

For example, while “ legislative reapportionment is pri­
marily a matter for [state] legislative consideration,” 
Reynolds v. Sims, 377 U.S. 533, 586 (1964), if a State 
“ fails to reapportion according to federal constitutional 
requisites in a timely fashion after having had an ade­
quate opportunity to do so,” a federal court has no choice 
but “ ordering its own temporary reapportionment plan 
into effect . . . .” Id.32 Similarly, although United States 
courts do not operate fisheries, in the course of litigation 
brought to enforce a federal treaty granting fishing 
rights to Indians, local officials “may be ordered to pre­
pare a set of rules” implementing a federal court’s inter­
pretation of the treaty rights “ even if state law withholds 
from them the power to do so.” Washington v. Washing­
ton State Commercial Passenger Fishing Vessel Ass’n, 
443 U.S. 658, 695, modified on other grounds sub nom. 
Washington v. United States, 444 U.S. 816 (1979) :33

32 As mentioned previously, the orders in this case were likewise 
temporary and provisional. Judge Clark expressly provided that 
the property tax increase authorized in this case would “ remain in 
effect” only “until other provisions are adopted” to ensure payment 
of the court-ordered desegregation obligations. App. 63a,

33 The State dismisses the Washington case because it did not 
in volve “a power to raise revenues independently of the provisions 
of state law.” State Br. 37. Two points should be made about this



39

And if they refuse, or “ if state recalcitrance or state-law 
barriers should be continued,”  the federal court perforce 
“may prescind that problem by assuming direct super­
vision of the fisheries.” Id.

Such remedial action is not only within the power of 
federal courts, it is the heart of their swTorn duty: to 
enforce the laws and Constitution of the United States. 
That is precisely what the lower courts did in this case. 
Years after the constitutional violation, neither the State 
nor the local school district had met its affirmative duty 
to dismantle the segregated system they had established 
and to provide black students with the opportunities they 
had been denied through the operation of that system. 
More importantly, the State’s stringent limitations on 
KCMSD’s power to raise taxes 'prevented the school dis­
trict from meeting that affirmative duty. In these cir­
cumstances, the lower courts’ own duty was plain: to ex­
plore all alternative fund-raising measures and, that fail­
ing, to set aside the State laws that prevented vindication 
of the constitutional rights at stake and permit the exer­
cise of local taxing power sufficient to effect the vindica­
tion. If the courts had not taken these actions—if instead 
they had permitted the acts of the Missouri legislature or 
the voters of KCMSD to annul the command of the Four­
teenth Amendment— it would have rendered “the consti-

argument. First, the requirement for voter approval of a levy rate 
has been suspended in this case; all other State law provisions for 
the financing of school districts remain in place. Second, the prin­
ciple that State or local officials may be constitutionally compelled 
to take measures that are either unauthorized or even prohibited by 
State law necessarily extends to all areas of their authority, no 
matter how local or close to the core of State functions. See, e.g., 
Hutto v. Finney, 437 U.S. 678 (1978) (prison regulations) ; Lucas 
V. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964) (apportion­
ment by initiative) ; see also Palmore V. Sidoti, 466 U.S. 429 (1984) 
(child custody) ; McDaniel V. Barresi, 402 U.S. 39 (1971) (state 
court interpretation of state constitutional provision).



40

tution itself . . .  a solemn mockery.”  United States V. 
Peters, 9 U.S. 115, 136 (1809).34

C. The Orders in this Case Were Not Precluded by 
Article III, the Tenth Amendment, or Principles 
of Comity

In complete disregard of the foregoing fundamental 
principles, the State contends that the lower courts had 
no authority to require or permit imposition of a tax 
barred by State law. Specifically, the State says that: 
(1) Article III does not confer that authority; (2) the 
Tenth Amendment prohibits the authority; and (3) prin­
ciples of comity necessarily preclude the exercise of the 
authority. All of these contentions are wrong.

1. Article III, the Fourteenth Amendment, and 
§1983

The State contends that there is “no basis in Article 
III for declaring that federal courts may order higher 
state taxes, even to fund a remedy for a constitutional 
violation.”  State Br. 12 (emphasis supplied). To support

31 The State contends, disingenuously, that “ there are numerous 
instances” in which federal courts are precluded from remedying 
constitutional violations. State Br. 28. It purports to cite as “ex­
amples” of this preclusion the bar posed by the United States’ 
sovereign immunity and the States’ Eleventh Amendment immu­
nity. Id. However, sovereign immunity, where applicable, is a ju­
risdictional bar to suit, irrespective of the nature of the cause of 
action. Missouri’s claim, by contrast, is that due to the nature of 
the particular State interest at issue (here, tax laws), federal 
courts may not vindicate any constitutional rights affected by that 
interest. We know of no case-—and the State cites none—where 
constitutional rights have ever been denied on any such ground. 
In any event, even if sovereign immunity were a legitimate “ex­
ample” of an unremediable constitutional deprivation, it clearly has 
no application to the present funding orders, whether they are 
seen as running against local officials, Owen v. Independence, 445 
U.S. at 657, or as against State officials. See, e.g., Wills V. Michigan 
Dep’t of State Police, 109 S. Ct, 2304, 2311 n.10 (1989) ; Larson V. 
Domestic & Foreign Commerce Corp., 337 U.S. 682, 690-91 (1949) ; 
Ex parte Young, 209 U.S. 123, 159-60 (1908).



41

this contention, it cites Davis v. Michigan Dep’t of Treas­
ury, 109 S. Ct. 1500 (1989), and Rees v. Watertown, 
86 U.S. 107 (1873). Id. But the State misreads Davis 
and Rees; and it wholly misunderstands not only Article 
III and the Fourteenth Amendment, but also the congres­
sional enactments that effectuate those constitutional pro­
visions: 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 1983.

Article III, Section 2, provides that the “judicial power” 
of the United States “ shall extend to all cases . . . arising
under [the] Constitution___ ” Through 28 U.S.C. § 1331,
Congress has given original jurisdiction over such cases 
to the federal district courts, and has furthermore given 
them jurisdiction over any civil action authorized by law 
either: to “redress the deprivation, under color of any 
State law . . .  of any right . . . secured by the Constitu­
tion” ; or to “ secure equitable or other relief under any 
Act of Congress providing for the protection of civil 
rights.” 28 U.S.C. § 1343(3), (4) (1982). Finally, for the 
express purpose of enforcing the protections of the Four­
teenth Amendment, Congress adopted § 1983, thereby au­
thorizing any person “ depriv[ed] of any rights . . .  se­
cured by the Constitution” to receive appropriate “ redress” 
against any person acting “ under color” of any state law.

Given the clarity and broad coverage of §§ 1343 and 
1983, it is difficult to understand how the State can con­
tend that the orders in this case were outside the lower 
courts’ authority. It is plain that this case arises under 
the Constitution; it is plain that the lower courts had 
jurisdiction to “redress the deprivation” of the constitu­
tional rights that were violated in this case, and to pro­
vide whatever “ equitable or other relief” was appropriate 
for that redress; and it is also plain that the continuing 
deprivation of constitutional rights sought by the State 
here would occur “ under color” of State tax law.

It is true, of course, that the cited statutory provisions 
do not expressly specify that state taxing powers must



42

be constitutionally exercised, anymore than they specify 
that State powers over reapportionment, schools, prisons, 
natural resources, and myriad other traditional State 
functions must be constitutionally exercised. But, as we 
have shown, the authority that resides in the cited provi­
sions is the broad remedial power to vindicate all consti­
tutional rights, to enforce the States’ duty to exercise all 
their powers constitutionally, and to order State and local 
officials to use all their powers to achieve that vindication 
whenever they have failed (or refused) their sworn ob­
ligation to do so on their own; 35 and, as we have also 
shown, the fact that constitutional violations may con­
cern important local functions certainly does not mean 
that violations of such obligations must go unredressed in 
the federal courts.

It appears to us that the State arrives at its contrary 
position by overlooking § 1983, the express statutory 
premise for this cause of action. Complaint II 2. (§ 1983 
is nowhere mentioned in the State’s brief.) Thus, the 
State argues that “ [i]t is one thing” for a court to 
give a broad reading of a provision that directly enforces 
the Constitution itself (citing Katzenbach v. Morgan, 384 
U.S. 641 (1966)), but it is “quite another” thing for a 
court to “expand!]” its own “ inherent power” “without 
any textual support” (citing Roadway Express, Inc. v. 
Piper, 447 U.S. 752, 764 (1980)). State Br. 29. The 
State plainly assumes that this case presents the latter 
situation; but it does not.

As was true in Katzenbach, the statute authorizing 
the courts’ actions here (§ 1983) was unquestionably en­
acted by Congress under § 5 of the Fourteenth Amend­

35 The State’s Fourteenth Amendment obligations, as defined by 
this Court’s desegregation decisions, constitute “ the supreme law 
of the land.”  That law is binding on every State and local official 
involved in these proceedings—anything in Missouri law notwith­
standing—and every one of those officials has taken an oath to 
uphold that supreme law. Cooper V. Aaron, 358 U.S. 1, 18 (1958).



43

ment for the express purpose of enforcing that Amend­
ment against State and local authorities. See, e.g., Jett v. 
Dallas Independent School Dist, 109 S. Ct. 2702, 2715 
(1989); Quern v. Jordan 440 U.S. 332, 351 n.3 (1979) 
(Brennan, J., concurring in the judgment).36 There is 
furthermore no question that that statute, along with § 5 
of the Fourteenth Amendment, worked “ an expansion of 
federal jurisdiction,” Jett, 109 S. Ct. at 2717, and was 
“designed to expose state and local officials to a new form 
of liability.” Newport v. Facts Concerts, Inc., 453 U.S. 
247, 259 (1981). And there is finally no question that 
§ 1983 was “ intended to give a broad remedy for viola­
tions of federally protected civil rights.”  Monell, 436 U.S. 
at 685. Nowhere in this important and expansive legisla­
tion is there the slightest indication that Congress in­
tended to exempt State tax laws— or any other State laws 
— from constitutional compliance or to remove such laws 
from federal-court jurisdiction.

Neither do Rees or Davis, the cases most heavily relied 
on by the State, so provide. Rees concerned nothing more 
than a city’s failure to pay a debt and presented no con­
stitutional violation. This Court held that while a judi­
cial order requiring the city to pay its debt was appro­
priate, it was not appropriate for the federal court to 
levy a tax for the purpose of paying the debt where the 
creditor knew at the time he entered the contractual rela­
tionship with the city that an existing State statute ex­

°6 The State concedes that “ action taken by Congress pursuant, to 
Section 5 [of the Fourteenth Amendment] ‘is no invasion of State 
sovereignty’ because ‘ [n]o law can be, which the people of the 
States have, by the Constitution of the United States, empowered 
Congress to enact.’ ” State Br. 29 n.33 (quoting Ex parte Virginia, 
100 U.S. 339, 346 (1879)). The State then asserts that the federal 
courts have no such “ similar power” to invade State sovereignty. 
Id. Again, however, the State overlooks that § 1983 worked a “vast 
transformation” in the relationship between States and the federal 
government, and was intended to enforce the Fourteenth Amend­
ment against all forms of State action—executive, legislative, and 
judicial. Mitchum v. Foster, 407 U.S. 225, 242 (1972).



44

pressly prohibited that very category of taxes. 86 U.S. 
120-21. Accordingly, in Rees there was no constitutional 
violation justifying the overriding of State laws; the 
lower court therefore had no authority to enforce a tax 
expressly prohibited by those laws. Furthermore, as ear­
lier discussed (n.30), the Court’s concern in Rees was not 
with the levy of a tax, but with the federal court itself 
appointing a marshal to seize property and selling it to 
satisfy a judgment.37 None of this is applicable here.

Davis is likewise inapplicable. There, this Court held 
unconstitutional a Michigan statute that exempted state- 
paid retirement benefits from taxation, but taxed benefits 
paid by all other employers, including the Federal Gov­
ernment. Noting that the Constitution mandated equal 
treatment, but noting further that that equality could be 
produced in several ways, e.g., extending the exemption 
to all retired federal employees, or to all retired employ­
ees, or eliminating the exemption for State retired em­
ployees, the Court held that imposing any one of these 
available taxing choices was “beyond the [remedial] 
power” of the federal court. 109 S. Ct. at 1509. This 
proposition is completely consistent with the principles we 
have cited and with the conduct of the lower courts in 
this case.

Here, the lower courts for years searched for— and 
beseeched the State and local authorities to provide—  
choices other than imposition of a property tax that would 
in practice produce the equality mandated by the Con­
stitution. But none was forthcoming— certainly none 
from the State, its lawyers, its executive, or its legisla­
ture, to all of whom Judge Clark repeatedly directed 
urgent requests for other alternatives. Meanwhile, the * 50

37 Justice Holmes summarized the controlling principle as fol­
lows: “ Of course it does not follow from the fact that a court has 
authority to . . . compel officers to perform their duty that it can 
perform that duty in their place.” Yost v. Dallas County, 236 U.S.
50, 57 (1915).



45

State and local authorities continued to default on their 
affirmative obligation to remedy the unconstitutional seg­
regation “now.” 38 39 40 In these circumstances, both lower 
courts found as fact that KCMSD had exhausted all other 
available methods for meeting its obligation and that only 
a property tax increase would permit it to do so.3®

Davis has no application to such circumstances. Davis 
simply says that when a constitutional violation is first 
determined, and several effective choices are available for 
its remedy, those choices are not for the federal courts.4® 
But cases such as Monell, Griffin, Reynolds, Hutto, 
Swann, and Washington State Commercial Fishing Ves­
sel Ass’n all recognize that where a constitutional viola­
tion has long since been adjudicated, and local authori­
ties after ample time have long since shown themselves 
unwilling or unable to remedy that violation, and only 
one effective choice is available to achieve that remedy— 
namely, to override the obstructive State laws—the fed­
eral courts must enforce that choice. That is all the 
lower courts did here.

38 Greenv. County School Bd., 391 U.S. 430, 439 (1968).

39 The State does not challenge these findings. Nor is there any 
reason for this Court to disturb them, where, as here, both lower 
courts have concurred in them. See Tiffany Fine Arts, Inc. V. 
United States, 469 U.S. 310, 317 n.5 (1985) ; NCAA V. Bd. of 
Regents, 468 U.S. 85, 98 n.15 (1984) ; Washington Metro. Area 
Transit Auth. V. Johnson, 467 U.S. 925, 928 n.5 (1984); Rogers V. 
Lodge, 458 U.S. 613, 623 (1982).

40 To the same effect is Moses Lake Homes, Inc. V. Grant County, 
365 U.S. 744 (1961), which this Court relied on in Davis (109 
S. Ct. at 1507, 1509) and which the State cites here (State Br. 23). 
Moses Lake simply held that where a State tax unconstitutionally 
discriminates against federal properties, the federal courts’ re­
sponsibility is to invalidate the tax; it is not to choose the particu­
lar method for curing the unconstitutionality {i.e., raising the tax 
on federal properties, lowering the tax on non-federal properties, 
selecting a new, equal tax for both, or removing all taxes on both).



46

2. The Tenth Amendment

The State claims, however, that the Tenth Amendment 
prohibited vindication of the Fourteenth Amendment in 
this case. Specifically, the State says that “ [a]n asser­
tion of taxing power by the federal judiciary, in fact, 
seems directly at odds with the concept of irreducible 
state sovereignty reflected in the Tenth Amendment.” 
State Br. 24. The State then quotes the Tenth Amend­
ment as follows: “ [t]he powers not delegated to the 
United States . . . are reserved to the States” (ellipsis 
added by the State). Id.

The part of the Tenth Amendment omitted by the 
State— “nor prohibited by it to the States”— has been 
treated by this Court as dispositive of the State’s argu­
ment. Powers “prohibited by [the Constitution] to the 
States” are of course not “ reserved to the States.” The 
Fourteenth Amendment contains just such a prohibition. 
It takes from the States the power to “ deny to any per­
son within its jurisdiction the equal protection of the 
laws.” 41 Nevertheless, the State of Missouri and KCMSD 
violated that prohibition; it is nonsense to say that the 
Tenth Amendment permitted them to do so or now per­
mits them to resist a federal court order that enforces 
that prohibition and that was issued pursuant to express 
congressional legislation (§ 1983) designed to effect that 
prohibition.42 Rather, as this Court has repeatedly held—  
including in the context of school desegregation—by defi­
nition “ [t]he Tenth Amendment’s reservation of non- 
delegated powers to the States is not implicated by a fed­
eral-court judgment enforcing the express prohibitions of 
unlawful State conduct enacted by the Fourteenth Amend­
ment.” Milliken II, 433 U.S. at 291. Accord, e.g., Hunter

41 As earlier noted (n.36), the State itself acknowledges (State 
Br. 29 n.33) that a statute passed by Congress to enforce the 
Fourteenth Amendment in no way interferes with State sover­
eignty.

42 See pp. 41-43, supra.



47

v. Underwood, 471 U.S. 222, 233 (1985) (“ the Tenth 
Amendment cannot save legislation prohibited by the sub­
sequently enacted Fourteenth Amendment” ).

Moreover, the Court quite recently has held the Tenth 
Amendment completely inapplicable to a State function 
virtually equivalent to its taxing authority— its bond­
issuing authority. South Carolina v. Baker, 108 S. Ct. 
1355 (1988). Indeed, in Baker the Court rejected out of 
hand the proposition that a federal statute could not con­
stitutionally “commandeer[ ] ” so important a State reve­
nue-raising activity. Rather, the Court held, the proposi­
tion that a State may be required to “ take administrative 
and sometimes legislative aciton to comply with federal 
standards regulating that activity is a commonplace that 
presents no constitutional defects.”  Id. at 1362 (emphasis 
supplied) ,43

3. Principles of Comity

Principles of comity form the basis for the State’s re­
maining “ constitutional” attack on the orders in this case. 
But the State wholly misperceives the purpose— and limits 
■—of those principles. Comity is addressed to the means 
by which constitutional violations are remedied; it is not 
— ever— a bar to their being remedied.

The “notion of ‘comity,’ that is, a proper respect for 
state functions,” requires the “ National Government . . . 
to vindicate and protect federal rights . . .  in ways that

43 The State’s contrary view not only ignores the Fourteenth 
Amendment, but it is apparently based on the erroneous presump­
tion that certain “elements of state sovereignty”—including the 
taxing power—are so “ essential” that federal courts may not en­
force federal statutes interfering with them. State Br. 13, 25-26. 
Even apart from the Fourteenth Amendment, the State’s view does 
not survive this Court’s decision in Garcia v. San Antonio Metro. 
Transit Auth., 469 U.S. 528, 546-47 (1985) ( “rejeet[ing] . . .  a 
rule of State immunity from federal regulation that turns on a 
judicial appraisal of whether a particular governmental function is 
‘integral’ or ‘traditional’ ” to State sovereignty).



48
will not unduly interfere with the legitimate activities of 
the States.”  Younger v. Harris, 401 U.S. 37, 44 (1971). 
But comity does not lessen the ultimate obligation to vin­
dicate those rights; it is concerned only with the method 
for doing so. Furthermore, “where important federal in­
terests are at stake,” and they collide with State interests, 
it is “comity [that] yields.”  44 The State does not under­
stand this. It contends that the funding orders in this 
case necessarily violated the comity requirement by virtue 
of the fact that they interfered with State taxing preroga­
tives. State Br. 13-14.

As we have shown at some length (pp. 27-34, supra), 
however, the orders setting aside State laws and permit­
ting a tax to be imposed in this case were the end result 
of a cautious, reluctant, and painstaking process. The 
orders were issued only after careful consideration of 
any and all alternatives proposed by either the State or 
KCMSD and only after a conclusion by both courts that 
KCMSD could meet its constitutional obligation in no 
other -way than through a property tax increase. And 
even then, the Eighth Circuit refused to permit the Dis­
trict Court to select or impose the tax; instead, it per­
mitted. the elected KCMSD officials to select and impose 
the necessary increase (subject to a maximum deter­
mined by local practices), to do so only through the es­
tablished form of tax levy in the district (the property 
tax), but to do so free from State laws that restricted 
increases in such a tax.

Furthermore, it must be remembered that the gov­
ernmental unit whose interests are directly at stake 
(KCMSD) favors imposition of the tax by this method.45

44 United States V. Gillock, 445 U.S. 360, 373 (1980).

45 The State contends that the Eighth Circuit’s judgment con­
stitutes an attempt “ to restructure [a] local governmental entitfy] 
[or] mandate a particular method or structure of state or local 
financing,” in violation of Milliken II (433 U.S. at 291). State Br. 
at 24 n.26, 44-46. This argument might have been colorable had 
the Eighth Circuit not reversed the district court’s imposition of



49
Accordingly, given that it is the local board (KCMSD) 
that has the “primary responsibility for . . . solving [the] 
problems” at issue, Brown v. Bd. of Educ., 349 U.S. 294, 
299 (1955), given further that that local board favors 
the solution approved by the federal courts, and given 
finally that the State has never proposed an alternative 
method by which KCMSD might meet its constitutional 
obligation, a comity challenge by the State- “ is particularly 
lacking in force.” See Milliken II, 433 U.S. at 296 
(Powell, J., concurring in the judgment).46

In these circumstances, it is not clear what further 
sensitivity and deference to legitimate State and local 
interests could have been shown in this case— short of 
declaring that the Constitution could simply not be en­
forced. But that would not reflect comity to State inter­
ests; it would constitute the undermining of constitutional 
interests the State is sworn to uphold. Worse, it would 
invite effective denial of constitutional rights in every 
case where a governmental unit will not— or cannot— 
raise revenues sufficient to meet its constitutional obliga­
tions. This Court should not permit such a wholesale de­
struction of the Constitution.47

the 1.5% surcharge; that surcharge was indeed a new form of 
taxation. But the Eighth Circuit’s actual judgment—which did 
no more than permit local officials to effect an increase in their 
existing property tax that they thought appropriate—plainly did 
not “restructure” or “mandate” any “particular method” of financ­
ing.

46 The State asserts that “ [i]t is hard to imagine any school 
board” approving the desegregation plan here at issue. State Br. 
43. The fact is that the school board that matters—KCMSD— has 
approved it; it did so only after careful consideration, and its judg­
ment has been consistently upheld by the lower courts. The State’s 
sweeping, persistent, and unsupported objections to the plan-—par­
ticularly as to an issue that affects only the financing of the plan 
by KCMSD—should carry little weight with this Court.

47 The Court’s answer to the State’s position in this case should 
be the one given by Chief Justice Hughes in Sterling v. Constantin, 
287 U.S. 378 (1932) :



50

D. The Proposed “Alternative Remedies” Are Without 
Merit

The State’s final contention is that assuming (as is the 
case) that there is judicial discretion in some cases to 
permit imposition of a tax contrary to State law, here 
that discretion was abused because the lower courts “need­
lessly . . . refus[ed] to consider the full range of alterna­
tives” available to remedy the constitutional violations. 
State Br. 46. Three kinds of alternatives have been sug­
gested by the State and its amici. None has merit.

1. Cutting Back the Constitutional Remedy
The State first contends that once “a gap between pro­

posed expenditures and projected revenues” became ap­
parent, the lower courts erred by not going back and 
“ finding a different (and less costly way) to meet con­
stitutional requirements.” State Br. 41. There are three 
complete answers to this claim. First, as we have shown, 
it is simply false to contend that the lower courts were 
not conscious of the costs of the remedial programs they 
approved; and it is absolutely clear that they approved 
only those programs and expenditures they thought neces­
sary to vindicate the constitutional rights at issue.48 The 
State has offered no reason whatever why this Court

If this extreme position could be deemed to be well taken, 
it is manifest that the fiat of a state Governor, and not the 
Constitution of the United States, would be the supreme law 
of the land . . . .  Under our system of government, such a con­
clusion is obviously untenable. There is no such avenue of 
escape from the paramount authority of the Federal Constitu­
tion. When there is a substantial showing that the exertion of 
state power has overridden private rights secured by that Con­
stitution, the subject is necessarily one for judicial inquiry in 
an appropriate proceeding directed against the individuals 
charged with the transgression. [Id. at 397-98 (emphasis sup­
plied) (quoted in Scheuer v. Rhodes, 416 U.S. 232, 248-49 
(1974)).]

48 Without support or analysis, the State asserts that whenever 
a $100-million remedy and a $20-million remedy for a particular



51

should now second-guess the lower courts’ determinations 
on these fact-based matters.4®

Second, this Court has in any event already refused to 
review the propriety of the substantive remedial program 
in this case, and the State’s present contention that there 
were better, cheaper ways of remedying the constitutional * 49

constitutional violation could both be devised, the courts should 
prefer the $20 million one. State Br. 40. The lower courts’ analysis 
in this case was not so simplistic.

Rather, as we showed at length in our oppositions to certiorari, 
the lower courts were sensitive to costs throughout these proceed­
ings and approved only those expenditures they found necessary to 
remedy the violations at issue. For example, when Judge Clark 
ordered KCMSD and the State to develop a remedial plan, he spe­
cifically directed that they “bear in mind cost factors . . . .” App, 
241a, In weighing the plan components, the court made specific 
findings that they were essential if the district is to be free of the 
vestiges of segregation. E.g., App. 69a (capital improvement plan 
is “crucial to the overall success” of the remedy) ; App. 121a 
(magnet school plan should be adopted “as part of the Court’s 
overall plan to eliminate the vestiges of unlawful segregation in 
the KCMSD . . . .” ). See further discussion in Jenkins Opp. Cert, 
at 14-38, and KCMSD Opp. Cert, at 4-5, 13-19. Moreover, the State 
never offered the equivalent of its hypothetical “ $20 million” plan 
that would work.

49 The Court has repeatedly recognized the deference that is owed 
the lower federal courts in their fashioning of remedies necessary 
to cure past racial discrimination. See, e.g., United States V. 
Paradise, 480 U.S. 149, 183 (1987) (“we must acknowledge the 
respect owed a district judge’s judgment that specified relief is 
essential to cure a violation of the Fourteenth Amendment” ) ; 
Sheet Metal Workers Int’l Ass’n v. EEOC, 478 U.S. 421, 486 
(1986) ( “ the District Court . . . having had the parties before it 
over a period of time, was in the best position to judge whether an 
alternative remedy . . . would have been effective in ending [de­
fendant’s] discriminatory practices” ) (Powell, J.) ; Swann, 402 
U.S. at 28 (“ [i]n  this area, we must of necessity rely to a large 
extent, as this Court has for more than 16 years, on the informed 
judgment of the district courts in the first instance and on courts 
of appeals” ).



52

violations is simply a poorly disguised effort to re-argue 
that issue.00 The Court should not accede to that effort.

Third, and probably most important, the State’s con­
tention that the lower courts were obliged to reduce the 
constitutionally necessary remedy rather than interfere 
with State revenue mechanisms reflects an erroneous and 
completely inverted view of the Constitution: federal
courts do not scale back constitutionally mandated reme­
dies to match the constitutional violators’ cash on hand; 
rather, the courts require the violators to produce what­
ever funds are necessary to cure their violations. As this 
Court held in Watson v. Memphis, 373 U.S. 526, 537 
(1963), “ it is obvious that vindication of conceded con­
stitutional rights cannot be made dependent upon any 
theory that it is less expensive to deny than to afford 
them.”

2. Requiring the State Alone to Pay for the Remedy

The State’s amici— although the State may not regard 
them as such— suggest a second alternative to the tax 
here at issue. They contend that because the State and 
KCMSD are jointly and severally liable for the desegrega­
tion remedy, the lower courts should have held the State 
responsible for all funds KCMSD could not provide, in

50 Question 1 in the State’s petition asked the Court to review 
the propriety of the remedial programs as follows:

1. Whether a federal court, remedying an intradistrict viola­
tion under Brown V. Board of Education, 347 U.S. 483 (1954), 
may
a) impose a duty to attract additional non-minority students 

to a school district, and
b) require improvements to make the district schools com­

parable to those in surrounding districts.
Question 2 asked the Court to determine only whether a federal 
court could ever require imposition of a tax increase:

2. Whether a federal court has the power under Article III, 
consistent with the Tenth Amendment and principles of comity, 
to impose a tax increase on citizens of a local school district.



53

preference to enjoining State tax laws. While we ac­
knowledge the availability of that option, for three rea- 
sions we submit that the lower courts acted well within 
their discretion in not choosing it.

First, because the State directly protests being required 
to pay any part of the remedy KCMSD cannot meet,51 
while KCMSD supports imposition of a tax to pay its fair 
share of that remedy, an order permitting the tax in­
trudes least on the interests of the State and local parties. 
Although not recognized by the State, this constituted a 
clear furtherance of comity. Second, by assuring that 
each of the two parties at fault pay their fair share, the 
federal courts merely implemented Missouri’s doctrine of 
comparative fault— a doctrine the Missouri Supreme 
Court has declared to be “ in the best interest of all liti­
gants.”  Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 
1983). This too reflected an accommodation to a State 
comity interest.52

Finally, as this Court has indicated, requiring a con­
stitutional violator to pay its share of the remedy for

51 Indeed, the State currently has pending in the court below its 
objections to being held jointly and severally liable for various com­
ponents of the remedy the courts have approved.

52 It is ironic that the State’s brief in this Court is most critical 
of the courts below when they strived to accommodate the various 
comity concerns that the State rightly claims to be important. For 
example, the State unfairly characterizes Judge Clark’s analysis 
of the KCMSD’s funding problem for 1985-86 as follows: “ Main­
taining that school desegregation remedies require a court to look 
beyond ‘legal principles,’ however, Pet. App. 199a, the court ex­
amined the KCMSD’s financial prospects.” State Br. 4. What Judge 
Clark really said fairly describes this case as a whole and identifies 
its key difficulty: “a school desegregation plan is more than a legal 
principle implemented through this Court within the KCMSD, but 
a process which requires the cooperation of all parties, and general 
acceptance by KCMSD patrons as well as the citizens of the State 
of Missouri, in order to be truly successful.” App. 199a-200a 
(emphasis supplied).



54

that violation best accords with the purpose of § 1983, 
particularly its deterrent policy. Indeed, relieving a local 
governmental unit of § 1983 responsibility whenever it 
refuses or is unable to procure the necessary cash to meet 
that responsibility would completely undercut that stat­
ute. As this Court held in Owen v. Independence, “ § 1983 
was intended . . .  to serve as a deterrent against future 
constitutional deprivations . . it does so by ensuring 
“ that one who causes a loss should bear the loss.” 445 
U.S. at 651, 654. This statutory purpose plainly cannot 
be served if a governmental unit “were permitted to dis­
avow liability for the injury it has begotten.”  Id. at 
651.63

Accordingly, in order to select a remedy favored by the 
pertinent local authority, implement the State policy of 
comparative fault, and further the purposes of § 1983, 
the lower courts acted well within their discretion in de­
termining that KCMSD should pay its share of the reme­
dial plan, rather than imposing full liability on the State.

3. Waiting for the State to Propose a Remedy

The State’s final proposed “ alternative remedy” is 
wholly illusory; at the same time, it is illustrative of the 
State’s failure throughout this case to assist the courts in 
finding remedies for the constitutional violations.53 54 The 
State says that “ [wjhile both the State and the school 
district ultimately must assure that the KCMSD attains

53 Accord, Newport v. Fact Concerts, Inc., 453 U.S. at 268 (“ the 
deterrence of future abuses of power by persons acting under color 
of state law is an important purpose of § 1983” ).

54 As Judge Clark noted, “ during the course of this lawsuit the 
Court has not been informed of one affirmative act voluntarily 
taken by the Executive Department of the State of Missouri or the 
Missouri General Assembly to aid a school district that is involved 
in a desegregation program.” App. 127a.



55

unitary status, the State should not be told which tax­
payers must take responsibility for discharging that ob­
ligation.” State Br. 46.

If in the many years these funding orders have been in 
litigation the State had ever indicated “which taxpayers” 
would assume the requisite funding responsibility, or had 
ever shown how that responsibility would be effectively 
discharged, the State’s present argument might have 
some credibility. But the State has never done so. Nor 
has it done so even in its brief to this Court. Quite the 
contrary. The State acknowledges that there are only two 
sources for funding the desegregation plan: “ imposing 
taxes on the voters of the district or assigning even more 
costs to the state taxpayers.”  State Br. 44. The State’s 
view of these two alternatives is that: “Neither was, or 
is, satisfactory.” Id,55

The truth is that the State of Missouri has no plan 
whatsoever for funding the requisite desegregation rem­
edy. Its position is that the school district cannot be au­
thorized to meet its share of the costs of the remedy 
through a tax increase, even though the District favors 
it; at the same time, its position is that the State cannot 
be required to make up the shortfall. In short, the State’s 
position is that the remedy cannot be funded— the Con­
stitution must give way. This is no remedy at all.

55 Even now, of course, the State has the power—as it always 
has—to cause the lifting of the property tax increase. It has only 
to provide some other mechanism for assuring that the desegrega­
tion plan will be funded; at that point, as Judge Clark’s order 
expressly recognized, the tax would not continue. App. 63a.



56

CONCLUSION

For the foregoing reasons, the petition in this ease 
should be dismissed or, alternatively, the lower courts’ 
determination to permit a tax to fund the necessary de­
segregation remedy should be affirmed.

Respectfully submitted,

Arthur A. Benson II *
1000 Walnut Street 
Suite 1125
Kansas City, MO 64106 
(816) 842-7603

James S. Liebman
Columbia University School 

of Law
435 West 116th Street 
New York, NY 10027 
(212) 854-3423

Julius L. Chambers 
James M. Nabrit, III 
T heodore M. Shaw  
Norman J. Chachkin  

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

Counsel for Respondents 
Jenkins, et al.

David S. Tatel 
Allen R. Snyder *
W alter A. Smith , Jr.
Patricia A. Brannan 

Hogan & Hartson 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W. Keeler 
Blackwell Sanders Matheny 

Weary & Lombardi 
Two Pershing Square 
Suite 1100 
2300 Main Street 
Kansas City, MO 64141 
(816) 274-6816 

Counsel for Respondent 
Kansas City, Missouri 
School District

* Counsel of Record