Opposition Brief — Jackson Co., Missouri v. Jenkins (Nos. 88-1228, 88-1194)
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OO
1194,-1228
SSO a to ST:
7 i a a ae f
rath hora 54 ht ae
Nos. 88-
re cen ge re a nt a A e
In THE
Supreme Court of the Anited States
OCTOBER TERM, 1988
J
«
STATE OF MISSOURI, et al.,
ICELEAN CLARK, et al.,
JACKSON COUNTY, MISSOURI, et al.,
Petitioners,
Vv.
KALIMA JENKINS, et al.,
Respondents.
On Petitions for Writs of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
BRIEF OF-RESPONDENTS JENKINS, et al.
IN OPPOSITION TO CERTIORARI
JULIUS L. CHAMBERS *ARTHUR A. BENSON II
JAMES M. NABRIT, III 100 Walnut Street
NORMAN J. CHACHKIN Suite 1125
16th floor Kansas City, MO 64106
99 Hudson Street (816) 842-7603
New York, NY 10013
(212) 219-1900 JAMES S. LIEBMAN
Columbia University
THEODORE M. SHAW School of Law
8th floor 435 West 116th Street
634 So. Spring Street New York, NY 10027
Los Angeles, CA 90014 (212) 854-3423
(218) Seeree “Counsel of Record
Attorneys for Respondents JENKINS et al.
PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203
AQ oP
Counter-Statement of Questions Presented
1. Whether the petitions are all jurisdictionally out of
time.
2. Whether a federal district court, which has made
detailed findings (upheld by the Court of Appeals)
documenting long-maintained racial discrimination and
segregation in the Kansas City, Missouri School District
(KCMSD) and the extensive sail continuing effects of
that constitutional violation, should seek to fashion relief
that will (insofar as possible) achieve the goal of
providing students in the KCMSD with the same quality
of integrated educational opportunities -that the court
determines would exist if the violation had not occurred.
3. Whether a federal district court, in such
circumstances, should withhold relief that is adequate to
redress the educational harms occasioned by the
constitutional violation -- in order to avoid the necessity
of issuing a decree against state or local officials
requiring them to raise funds (including by increasing tax
levies) sufficient to implement a complete remedy for
the violation.
4. Whether a federal district court, in such
circumstances, lacks the power to effectuate a complete
remedy for violations of the Fourteenth Amendment by
directing that tax levies be increased in order to provide
the revenue necessary to afford relief to the victims of
unconstitutional discrimination and school segregation.
5. Whether a federal district court, in such
circumstances, properly denied intervention to individuals
and governmental entities whose petitions were not
a
submitted until after the tax levy measures which they
sought to challenge had been ordered, despite the court’s
earlier announcement that it was likely to take action
which would raise tax levies in order to assure
implementation of an adequate remedy for serious and
Sustained Fourteenth Amendment violations.
- lil -
Counter-Statement of Questions Presented
Table of Authorities
Jurisdiction
Counter-Statement of the Case
REASONS FOR DENYING THE WRITS--
Introduction
I This Case Does Not Merit Review Because
The Remedy Ordered By The District Court
Is Appropriately Designed To Redress The
Proven Constitutional Violations And Their
Effects, And It Does Not Exceed The Scope
Of The Trial Court’s Broad Equitable Power
To Afford Complete Relief To The Victims
Of Unconstitutional Segregation
A. The district court did not require a
magnet plan "to attract additional non-
minority students" for the purpose of
transforming the KCMSD into "a district
. with some particular number of
white and black students"
-We
11
14
B. The district court’s goal of achieving
comparability between KCMSD’s
facilities and programs with the average
of those of surrounding systems was a
reasonable _ starting point in_ the
formulation of a remedy to eliminate
the effects of the proven constitutional
violations 24
II The District Court’s Order Directing The
Collection, For A Limited Period Of Time, Of
Additional Property Tax Revenues Within The
KCMSD Adequate To Support The District’s
Share Of The Remedial Costs Is An
Appropriate Exercise Of Its Equitable
Remedial Authority To Effectuate The
Fourteenth Amendment To The Constitution 41
A. The authority of federal courts in school
desegregation suits to require local tax
levy and collection in order to effectuate
relief necessary to vindicate Fourteenth
Amendment rights was settled in Griffin ~
and this case fits squarely under that
ruling 43
B. Apart from Griffin, the power of federal
courts, in appropriate circumstances, to
order state tax levies to be made is not
in doubt 54
Conclusion 62
Cases:
Arthur v. Nyquist, 712 F.2d 809
(2d Cir. 1983), cert. denied,
466 U.S. 936 (1984)
Berry v. School Dist. of Benton
Harbor, 698 F.2d 813 (6th Cir.),
cert. denied, 464 U.S. 892 (1983)
Brittingham v. Commissioner, 451
F.2d 315 (Sth Cir. 1971)
Burger v. Kemp, 483 U.S. __, 97 L.
Ed. 2d 638 (1987)
Clay County v. United States ex rel.
McAleer, 115 U.S. 616 (1885)
Columbus Bd. of Educ. v. Penick,
443 U.S. 449 (1979)
Couch v. City of Villa Rica, 203 F.
Supp. 897 (N.D. Ga. 1962)
County of Lincoln v. Luning, 133
U.S. 529 (1890)
16n
16n
59n
60n
16n, 22n
57n, 60n
59n
Table of Authorities (continued)
Page
Cases (continued):
Davis v. Board of Schoo! Commr’s,
402 US. 33 (1971) 26
Davis v. East Baton Rouge Parish
School Bd., 721 F.2d 1425
(Sth Cir. 1983) 16n, 20n, 23n
Diaz v. San Jose Unified School
Dist., 861 F.2d 591 (9th Cir.
1988) 16n
Fitzpatrick v. Bitzer, 427 U.S.
445 (1976) 59n
Goodman v. Lukens Steel Co., —
482 US. __, 96 L. Ed. 2d
572 (1987) 22n
Graham v. Folsom, 200 U.S. 248
(1906) 58n
Green v. County School Bd. of New
Kent County, 391 U.S. 430 (1968) 15n
Griffin v. Board of Supervisors
of Prince Edward County, 339
F.2d 486 (4th Cir. 1964) 52n
- vii -
Table of Authorities (continued)
Page
Cases (continued):
Griffin v. County School Bd. of
Prince Edward County, 377 “
USS. 218 (1964) 43, 45-49, 51-54
Haggard v. Tennessee, 421 F.2d
1384 (6th Cir. 1970) 59n
Hart v. Community School Bd., :
512 F.2d 37 (2d Cir. 1975) 16n )
Heine v. Levee Comm’rs, 86 U.S.
655 (1874) 59n
Hoots v. Pennsylvania, 539 F.
Supp. 335 (W.D. Pa. 1982),
aff'd, 703 F.2d 722 (3d
Cir. 1983) 35n
Hunter v. Erickson, 393 U.S.
385 (1969) 41n |
Hutto v. Finney, 437 U.S. 678 |
(1978) 12n, 26n, 62 |
Imbler v. Pachtman, 424 U.S. 409 |
(1976) 55n )
- Vili -
Table of Authorities (continued)
Page
Cases (continued):
Jenkins v. Missouri, 855 F.2d
1295 (8th Cir. 1988) 8n, 9n, 21n
Jenkins v. Missouri, 672 F.
Supp. 400 (W. D. Mo. 1987),
aff'd in part and revd in part,
855 F.2d 1295 (8th Cir. 1988) Passim
Jenkins v. Missouri, 593 F. Supp.
1485 (W.D. Mo. 1984), 639 F.
Supp. 119 (W.D. Mo. 1985), modified
in part and aff'd, 807 F.2d 657 (8th
Cir. 1986)(en banc), cert. denied,
108 S. Ct. 70 (1987) passim
Liddell v. Bd. of Educ., 801 F:2d 278
(8th Cir. 1986) 35n
Liddell v. Missouri, 731 F.2d 1294
(8th Cir.), cert. denied, 469 U‘S.
816 (1984) 16n, 50n
Louisiana v. Jumel, 107 U.S. 711 (1883) 59n
Louisiana ex re!. Hubert v. Mayor of New
Orleans, 215 U.S. 170 (1909) 60n
Table of Authorities (continued)
Cases (continued):
Louisiana ex rel. Ranger v. New Orleans,
102 U.S. 203 (1880)
Meriwether v. Garrett, 102 U.S. 472 (1880)
57, 58, 59
Milliken v. Bradley, 433 U.S. 267 (1977) 6,11n,16n,59n
Milliken v. Bradley, 418 U.S. 717 (1974)
Morgan v. Kerrigan, 530 F.2d 401 (1st
Cir.), cert. denied, 426 U.S. 935
(1976), subsequent proceeding sub
nom. Morgan v. McDonough, 689 F.2d
265 (1st Cir. 1982)
Morgan v. Nucci, 617 F. Supp. 1316
(D. Mass. 1985), appeal dismissed, 831
F.2d 313 (1st Cir. 1987)
New York State Ass’n for Retarded
Children v. Carey, 631 F.2d 162
(2d Cir. 1980)
North Carolina State Bd. of Educ. v.
Swann, 402 U.S. 43 (1971)
4-5
16n
35n
44n
53n, 60-61
Table of Authorities (continued)
Page
Cases (continued):
Plaquemines Parish School Bd. v. United
States, 415 F.2d 817 (Sth Cir.
1969) 35n
Reece v. Gragg, 650 F. Supp. 1297
(D. Kan. 1986) 45n
Redman v. Terrebonne Parish School
Bd., 293 F. Supp. 376 (E.D.
La. 1967) 35n
Rees v. City of Watertown, 86 U.S. 107
(1874) 57, 58, 59n
Reitman v. Mulkey, 387 U.S. 369 (1967) 40n, 41n
Rhem v. Malcolm, 507 F.2d 333 (2d Cir.
1974) 44n
San Antonio Indep. School Dist. v.
Rodriguez, 411 U.S. 1 (1973) 36
Sanchez-Espinoza v. Reagan, 770 F.2d 202
(D.C. Cir. 1985) S7n
Singleton v. Anson County Bd. of
Educ., 283 F. Supp. 895 (W.D.N.C.
1968) 35n
Table of Authorities (continued)
Cases (continued):
Stansbury v. United States, 75 U.S. 33
(1869)
Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1 (1971)
Tasby v. Estes, 412 F. Supp. 1192 (N.D.
Tex. 1976), remanded on other
grounds, 572 F.2d 1010 (Sth Cir.
1978)
United States v. County Court, 99 U.S.
582 (1879)
United States v. County Court, 95 U.S.
769 (1878)
United States v. Jefferson County
Bd. of Educ., 380 F.2d 385 (5th
Cir.)(en banc), cert. denied sub
nom. Caddo Parish School Bd. v.
United States, 389 U.S. 840 (1967)
United States v. Pittman, 808 F.2d
385 (Sth Cir. 1987)
United States v. Texas Educ. Agency,
679 F.2d 1104 (Sth Cir. 1982)
- xii -
35n
20n
16n
Table of Authorities (continued)
Page
Cases (continued):
United States v. Yonkers Bd. of Educ.,
856 F.2d 7 (2d Cir. 1988) 35n
United States v. Yonkers Bd. of Educ.,
837 F.2d 1181 (2d Cir. 1987), cert.
denied, 108 S. Ct. 2821 (1988) 16n
United States ex rel. Hoffman v.
Quincy, 71 U.S. 535 (1867) 60n
United States ex rel. Ranger v.
New Orleans, 98 U.S. 381 (1879) 54n-55n
United States ex rel. Wolff v.
New Orleans, 103 U.S. 358 (1881) | 55n
Washington v. Seattle School Dist.
No. 1, 458 U.S. 457 (1982) 41n
Washington v. Washington State
Commercial Passenger Fishing
Vessel Ass’n, 443 U.S. 658,
modified sub nom. Washington v.
United States, 444 U.S. 816 (1979) 53n, 61
Yost v. Dallas County, 236 U.S. 50 (1915) 59n, 61n
- xiii -
Table of Authorities (continued)
Statutes:
28 U.S.C. § 2101(c) (1982)
42 U.S.C. § 1983 (1982)
Education for Economic Security Act,
Pub. L. No. 98-670, 98 Stat. 1267 (1984)
Augustus F. Hawkins-Robert T. Stafford
Elementary and Secondary School
Improvement Amendments of 1988,
Pub. L. No. 100-297, 102 Stat. 231 (1988)
Rules:
Fed: R. App. P. 35
Fed. R. App. P. 40
Fed. R. App. P. 41
Fed. R. Civ. P. 81(b)
Sup. Ct. Rule 20.4
- XIV -
17n
2n
2n
2n
56n
2n
Table of Authorities (continued)
Other Authorities:
Remarks on Signing the Augustus F.
Hawkins-Robert T. Stafford Elementary
and Secondary School Improvement
Amendments of 1988, 24 Weekly Comp.
of Pres. Doc. 540 (April 28, 1988) 17n
S. Rep. No. 100-222, 100th Cong., 1st Sess.
(1987), reprinted in 3 1988 U.S. Code Cong.
& Adm. News 149 (June, 1988) 16n-17n
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1988
Nos. 88-1150, -1194, -1228
STATE OF MISSOURI, et_al.,
ICELEAN CLARK, et al.,
JACKSON COUNTY, MISSOURI, et_al.,
Petitioners
Vv.
KALIMA JENKINS, et al.
On Petitions for Writs of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
BRIEF OF RESPONDENTS JENKINS, et al.
IN OPPOSITION TO CERTIORARI
Jurisdiction
None of the petitions to which this response is
addressed was filed within 90 days of the issuance of the
final judgment below on August 19, 1988, as required by
28 U.S.C. § 2101(c) (1984),' nor was timely application
for extension sought and granted by this Court or a
Justice of the Court. Therefore, for the reasons
articulated in the Brief in Opposition of Respondent
Kansas City, Missouri School District (KCMSD) in these
matters, in which the Jenkins respondents join, this
2
Court lacks jurisdiction to grant the present petitions.
This fact alone is a sufficient basis for denying the writs.
1Rule 20.4 of this Court, which tolls the 90-day period for
filing a petition only if a timely petition for rehearing is filed, is
consistent with Rules 35, 40 and 41, Fed. R. App. P., which
establish an automatic stay of the issuance of a Court of Appeals’
mandate during the pendency of a timely petition for rehearing but
State explicitly that the pendency of a suggestion of rehearing in
banc "shall not affect the finality of the judgment of the court of
appeals or stay the issuance of the mandate" [Rule 35(c)].
2We have lodged with the Clerk of this Court ten copies of the
Petitions for Rehearing En Banc filed below. Examination of these
documents establishes that none of the present Petitioners requested
rehearing; rather, all sought rehearing in banc. There were thus no
"petitions for rehearing" subject to being denied as provided in the
amended mandate of the Court of Appeals issued sua sponte on
January 10, 1989 (see State Pet. at A-1).
Pa. oe
Counter-Statement of the Case
The Jenkins respondents join in the KCMSD
respondents’ Counter-Statement.
S FOR D G WRIT
Introduction
The instant Petitions concern aspects of orders issued
by the United States District Court for the Western
District of Missouri in the final, remedial stages of
protracted, complex, school desegregation litigation
involving the Kansas City, Missouri public schools. The
district judge who issued these orders has presided over
the action since its initiation in 1977. He has observed
and heard hundreds of witnesses, including scores with
educational or other academic, as well as practical,
expertise. He has considered thousands of documentary
and other exhibits, has personally viewed the KCMSD
school facilities, and has issued numerous opinions and
orders containing specific, detailed and particularized
findings of fact that provide the foundation for his legal
determinations and orders.
The district court’s major conclusions and actions
have been severely criticized, at different times, by both
sides in the litigation but, with only minor exceptions,
panels of the Court of Appeals and a majority of the
Court sitting en banc have sustained the trial judge’s
careful fashioning of a remedy appropriate to the nature
and scope of the constitutional violations which he
found.
First, following lengthy trial proceedings, the district
judge applied this Court’s ruling in Milliken v. Bradley,
418 US. 717 (1974)(Milliken I) and rejected the
contentions of the Jenkins and KCMSD respondents
here, that the proof justified an inter-district remedy
involving pupil reassignments between and/or
consolidation of the KCMSD and nearby suburban
school systems. The court also held that the historic
pre- and post-Brown constitutional violations by the
KCMSD and the State of Missouri had never been
redressed but that their effects had been exacerbated by
delay and neglect of the defendants’ affirmative
constitutional obligations for decades. It directed that
the continuing effects of these violations should be
ameliorated through a remedial plan involving voluntary
inter-district assignments, creation of integrated magnet
schools in the KCMSD, improvement of the KCMSD’s
capital plant and of its educational programs to correct
deficiencies attributable to the long period of segregated
operation, and implementation of special programs to
address educational deficiencies created by that
segregation, see Milliken v. Bradley, 433 U.S. 267
(1977)(Milliken IT). With the exception of some
alterations in the allocation of remedial costs between
the KCMSD and the State of Missouri, all of these
determinations were approved by the Court of Appeals,
and this Court declined to review the denial of
mandatory inter-district relief. Jenkins v. Missouri, 593
F. Supp. 1485 (W.D. Mo. 1984), 639 F. Supp. 19 (W.D.
Mo. 1985), modified in part and aff'd, 807 F.2d 657 (8th
Cir. 1986)(en banc), cert. denied, 108 S. Ct. 70 (1987).
Thereafter, the district court continued closely to
supervise the refinement and implementation of the
remedy’ for the constitutional violations which it found,
proceeding in step-by-step fashion.* It approved and
rejected remedial components suggested by all parties,
including the State of Missouri and the Jenkins and
KCMSD respondents.* It has sought to achieve a fair
5E.g. State Pet. App. [hereinafter Pet. App.] 104a, 106a
(approving continuation of two programs for 1987-88 to "give the
KCMSD another year to meet the projected enrollments”); 639 F.
Supp. at 46, Pet. App. 129a (requiring KCMSD to submit a detailed
plan for improving public information about its desegregation plan
in light of inadequate results after prior order allocating funds for
this purpose); 639 F. Supp. at 50-51, Pet. App. 137a-138a (ordering
further reports on implementation of educational programs under
decree).
‘See, e.g., Pet. App. 77a (approving capital program only for
projects scheduled to be completed by fall of 1990); id. at 79a
(approving budget for construction project management team for
three years only); id. at 19la (approving only initial capital
improvement plan and postponing consideration of additional
measures); 639 F. Supp. at 45, Pet. App. 199a (suspension of tax
rollback for one year only to “provide the KCMSD with an
Opportunity to present a tax levy proposal to its patrons at the next
regularly scheduled school election").
5$ee, e.g., 639 F. Supp. at 32-33, Pet. App. 173a (ordering
implementation of State’s Early Childhood program); Pet. App. 65a
(rejecting KCMSD’s and Jenkins’ suggested regulations for tax
collection); id. at 95a (declining to order central coordination of
school-based programs sought by KCMSD); id. at 118a-19a
(requiring KCMSD to bear cost of renovating building to house
temporary performing arts magnet); 639 F. Supp. at 49, Pet. App.
(continued...)
x
and equitable allocation of the costs of constitutional
compliance between the two joint tortfeasors, the State |
of Missouri and the KCMSD.° The parties have
vigorously contested the litigation at the remedial stage;
the judgment of the Court of Appeals of which
Petitioners seek review resolved consolidated appeals
from some thirteen separate orders issued by the trial
court.’ This time, the principal appellants were the
State of Missouri and state officials. Again, however,
5(...continued)
135a (rejecting KCMSD’s requested expansion of before- and after-
school programs).
°E.g., Pet. App. 79a (requiring KCMSD to pay 50%, rather
than 25% of capital construction costs because "the KCMSD will
continue to benefit from the[ new facilities construction] long after
the hopeful success of the desegregation plan has been realized");
id. at 107a (adjusting budget to account for savings in expenditures
at other schools as new magnets open); id. at 109a (requiring
KCMSD to bear ongoing maintenance costs for facilities constructed
or improved under decree).
7Jenkins v. Missouri, 855 F.2d 1295, 1299 n.2 (8th Cir. 1988),
Pet. App. 4a n.2.
=
a ne te * Sat Pt
D¥ i ioc PMH tad VIERA Y
with minor modifications and reversal only with respect
to one separable aspect concerning funding,® the Court
of Appeals approved the trial judge’s careful supervision
of this action.
It is against this background of painstaking attention
by a district court with intimate familiarity with the
particularities of the case, and whose actions have been
almost wholly sustained on two occasions by the Court of
Appeals, that this Court must assess the necessity and
desirability of reviewing the judgment below.
8The Court of Appeals sustained the district court’s order
raising the property tax millage in the KCMSD because "the
property tax is the established source of revenue for Missouri school
districts" and the order was the functional equivalent of "set[ting]
aside restrictions or limitations imposed by state law that impede
the disestablishment of a dual school system" (855 F.2d at 1315, Pet.
App. 39a-40a). It reversed that portion of the court’s orders that
imposed an income tax surcharge on individuals working within the
KCMSD because "the income tax surcharge restructures the State’s
scheme of school financing and creates an entirely new form of
taxing authority” (855 F.2d at 1315, Pet. App. 40a).
?
Petitioners raise only a few issues.? Despite the
provocative language of their filings, none of the
questions they seek to present warrants the plenary
attention of this Court because, as we show below, the
lower courts have faithfully and unexceptionably applied
well established legal principles and followed the
‘decisions of this Court.
Petitioners in Nos. 88-1194 and 88-1228 sought intervention in
this litigation in the district court, which was denied on the grounds
that their requests were untimely; that denial was affirmed by the
court below. The only question properly presented by these arties,
therefore, is the correctness of the ruling affirming the denial of
intervention.
Petitioners in No. 88-1150 do not contest either their own
liability or the general remedial approach of the district court
(improvements of KCMSD’s capital facilities and educational
programs together with the creation of magnet schools to bring
about desegregation through voluntary means), an approach that
they supported in the trial court, see infra note 12. Instead, they
charge, first, that the district court has shaped the particulars of this
remedial approach to achieve goals other than the effective
dismantling of the long-maintained dual system of schools in the
KCMSD. Second, they assert that the district court was without
power to require the KCMSD to provide a portion of the resources
necessary to implement the remedy through an increase in its
property tax levy (a requirement which the court imposed only after
both the KCMSD electorate and the State legislature had refused or
failed to create a reliable funding mechanism for this purpose).
=~ oe
I
This Case Does Not Merit Review Because The
Remedy Ordered By The District Court Is
Appropriately Designed To Redress The Proven
Constitutional Violations And Their Effects, And
It Does Not Exceed The Scope Of-The Trial
Court’s Broad Equitable Power To Afford
Complete Relief To The Victims. of
Unconstitutional Segregation
This is a case in which the extensive and continuing
harmful effects of the long-sustained constitutional
violations committed by the State of Missouri and the
KCMSD were identified with precision and detail in
exhaustive proceedings before the district court. On that
record, the trial court was charged, in fashioning a
remedy, with the obligation of "restor{ing] the victims of
discriminatory conduct to the position they would have
occupied in the absence of such conduct." In the
4
{
:
3
10Milliken II, 433 U.S. at 280.
ie
orders affirmed below, in those previously reviewed by
the Court of Appeals, and through its exercise of
continuing jurisdiction during the transition from a dual
school system, the district court has sought to provide a
complete remedy that will be practicable, workable, and
successful.!?
Petitioners contest neither liability nor the broad
outlines of the relief ordered by the trial court.’
11The trial court described its responsibility and authority as
follows:
... [T]he goal of a desegregation decree is clear. The goal
is the elimination of all vestiges of state imposed
segregation. In achieving this goal, the district court may
use its broad equitable powers, recognizing that these
powers do have limits. Those limits include the nature and
scope of the constitutional violation, the interests of state
and local authorities in managing their own affairs
consistent with the constitution, and insuring that the
remedy is designed to restore the victims of discriminatory
conduct to the position they would have occupied in the
absence of such conduct.
(639 F. Supp. at 23, Pet. App. 153a.) See Hutto v. Finney, 437
U.S. 678, 688 & n.12 (1978).
12See, e.g., 593 F. Supp. at 24, Pet. App. 155a ("No party to
(continued...)
-n.
SP EET ie OE >
55h Ma rene osticces 4 + alanis We»
Implicitly recognizing the difficulties inherent in asking
this Court to entertain questions that are fact-bound and
unique to the circumstances of an individual case,
Petitioners have wrenched language in the district court’s
opinions out of context in an effort to describe legal
questions more susceptible of being characterized as
worthy of this Court’s discretionary review. A fair
reading of the district court’s orders demonstrates,
12(._ continued)
this case has suggested that this plan should not contain
components designed to improve educational achievement. In fact,
it is ‘appropriate to include a number of properly targeted
educational programs in a desegregation plan’ (State Plan at 5)");
593 F. Supp. at 26, Pet. App. 158a ("both the State of Missouri and
the KCMSD endorse achieving AAA status, reducing class size at
the elementary and secondary level, summer school, full day
kindergarten, “fore and after school tutoring and early childhood
development programs"); 593 F. Supp. at 40, Pet. App. 189a ("The
State (State Plan p. 111) proposes a $20,000,000 facilities
improvement program with the state making a one time
contribution not to exceed $10,000,000. . . . The State does not
dispute that there are serious structural and environmental problems
throughout the facilities utilized by the KCMSD"); 855 F.2d at 1299,
Pet. App. 5a (“In this case the 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.").
a.
however, that the legal issues relating to the goals of the
remedy that are posited by Petitioners simply do not
arise in this matter.
A. The district court did not require a magnet plan "to
attract additional non-minority students" for the
purpose of transforming the KCMSD into "a district
. .. with some particular number of white and black
students"
The State’s Petition attacks the scope of the magnet
school program to be established in the KCMSD under
the district court’s orders:
No other court has required a district to turn
most of its schools into magnet schools, and no
other court has imposed a duty to attract more
students of a designated race... . [T]he right at
issue . . . is not [a right] to be enrolled in a
district or school with some particular number of
white and black students.
(Pet. at 15.) The State simply ignores the trial court’s
ee
lucid elaboration of the basis for its magnet school
requirements.
In its initial remedial order the court recognized its
obligation "to further explore any reasonable potential
for achieving further desegregation" of the KCMSD
schools (639 F. Supp. at 38, Pet. App. 184a). It declined
to order mandatory reassignments within the KCMSD
[u]nless and until th{e study suggested by the
State of Missouri] or other studies show that
_ further mandatory student reassignment can
achieve additional desegregation without
destabilizing the desegregation which presently
exists.
(Id.)'* On the other hand, the district court had heard
evidence from a number of expert witnesses that
"[m]Jagnet schools can be utilized to assist the State of
13Cf, Green v. County School Bd. of New Kent County, 391
U.S. 430, 441 (1968)(voluntary enrollment option may have a place
in a desegregation plan in the absence of alternatives "promising
speedier and more effective conversion to a unitary, nonracial
school system”).
~~ =
Missouri and the KCMSD in expanding desegregative
educational experiences for its students" (639 F. Supp. at
34, Pet. App. 176a), and it required submission of a plan
to utilize this voluntary desegregation tool (639 F. Supp.
at 34-35, Pet. App. 177a)."*
14The concept of a magnet school is to offer a different,
improved or unique curriculum or service (such as before- or after-
school day care) that will attract voluntary attendance by students of
all races. This Court has approved of magnet schools as a
desegregation tool on a number of occasions. See, e.g., Milliken ']
433 U.S. at 272; Columbus Bd. of Educ. v. Penick, 443 U.S. 449,
488 (1979), and the courts of appeals and district courts have
consistently approved desegregation plans incorporating magnet
schools as an lalternative to mandatory and _ involuntary
reassignments of students. See Diaz v. San Jose Unified School
Dist., 861 F.2d 591, 596 (9th Cir. 1988); United States v. Yonkers
Bd. of Educ., 837 F.2d 1181, 1238 (2d Cir. 1987), cert. denied, 108
S. Ct. 2821 (1988); Liddell v. Missouri, 731 F.2d 1294, 1310 (8th
Cir.), cert. denied, 469 U.S. 816 (1984); Davis v. East Baton Rouge
Parish School Bd., 721 F.2d 1425, 1440 (Sth Cir. 1983); Arthur v.
Nyquist, 712 F.2d 809, 811-13 (2d Cir. 1983), cert. denied, 464 U.S.
892 (1983); Berry v. School Dist. of Benton Harbor, 698 F.2d 813
(6th Cir.), cert. denied, 464 U.S. 892 (1983); United States v. Texas
Educ. Agency, 679 F.2d 1104 (Sth Cir. 1982); Morgan v. Kerrigan,
530 F.2d 401, 428 (ist Cir.), cert. denied, 426 U.S. 935 (1976),
subsequent proceeding sub nom. Morgan v. McDonough, 689 F.2d
265, 276 n.18 (ist Cir. 1982); Hart v. Community School Bd., 512
F.2d 37, 54-55 (2d Cir. 1975).
The Congress and the President have also expressed
unambiguous support for magnet programs as an effective and
unintrusive remedy for school segregation. See S. Rep. No. 100-
(continued...)
~~ }
tA
The Court subsequently approved implementation of
three magnet schools or clusters in the 1986-87 school
year to "expan[d] the desegregative educational
experience for KCMSD students" and to assess the
potential success of this desegregation device:
The magnet plan_must be geared toward both
remedial and desegregative goals and should
maximize achievement of desegregation with a
minimum amount of resources. The magnet
program should provide long term stability in
terms of future financing as well as incorporate a
carefully designed marketing program based upon
a careful analysis of the plans’ impact upon other
components of the desegregation plan. Thus,
future development of a magnet school program
14(. continued)
222, 100th Cong., ist Sess. 48 (1987)("Research has shown that
magnet schools are the most successful means for promoting racial
desegregation"), reprinted in 3 1988 U.S. Code Cong. & Adm. News
149 (June, 1988); Remarks on Signing the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School Improvement
Amendments of 1988, 24 Weekly Comp. of Pres. Doc. 540 (Apr. 28,
1988)(President Reagan "pleased to note that the bill reauthorizes
the magnet school program and expands parental choice"); Hawkins-
Stafford Amendments Of 1988, Pub. L. No. 100-297, § 3993, 102
Stat. 231 (1988)(to be codified at 20 U.S.C. § 3023); Education for
Economic Security Act, Pub. L. No. 98-670, § 703, 98 Stat. 1267,
1299 (1984).
ee
need not duplicate this initial phase of the
magnet school effort.
(639 F. Supp. at 53, 55, Pet. App. 145a, 149a.) Based
upon initial experience with these magnets and upon
evidence adduced at additional hearings, the court
ultimately determined to approve KCMSD’s plan to
establish a substantial number of magnet schools.
However, the court’s Order makes it clear that the
fundamental basis for “turn[ing] most of [KCMSD’s]
schools into magnet schools," as the State puts it, is to
avoid the inequity which would occur if black students
-- the victims of the State’s and KCMSD’s protracted
unconstitutional conduct -- were restricted in their
opportunities to benefit from the improved or unique
educational experiences to be offered in magnet schools:
The plan magnetizes such a large number of
schools that every high school and middle school
student will attend a magnet school. At the
.
elementary level, there would be a sufficient
number of magnets to permit every student
desiring to attend a magnet school to do so. The
Court is opposed to magnetizing only a limited
number of schools in a district... . In each
[magnet] school there is a limitation as to the
number of students who may be enrolled. Thus,
for each non-minority student who enrolls in the
magnet school a minority student, who has been
the victim of past discrimination, is denied
admittance. While these plans may achieve a
better racial mix in those few schools, the victims
of racial segregation are denied the educational
opportunity available to only those students
enrolled in the few magnet schools. This results
in a school system of two-tiers as it relates to the
quality of education. This inequity is avoided by
the KCMSD magnet school plan.
(Pet. App. 122a.)*
15s the Court of Appeals noted:
The State in its filings with the district court cautioned
about creation of a two-tiered system of schools in which
"existing schools are, or are perceived to be, markedly
inferior." Response of State to KCMSD motion for
approval of 1986-87 magnet programs, p. 12. The State’s
expert witness, Dr. Doyle, echoed this concern and
suggested that one way to avoid the problem was to
convert an entire school system to magnet schools. Tr.
376, 381-82, June 5, 1986. Another State’s witness, Dr.
Cooper, also agreed on cross-examination that the
comprehensiveness of the plan was a step in the right
(continued...)
- 19 -
.
In the following paragraph of its Order, the district
court did comment, as the State emphasizes, that
Most importantly, the Court believes that the
proposed magnet plan is so attractive that it
would draw non-minority students from the
private schools who have abandoned or avoided
the KCMSD, and draw in additional non-minority
students from the suburbs.
(Pet. App. 123a). However, that comment is quoted
entirely out of context by the State.’® It does not refer
15(.. continued)
direction. Tr. 890, Sept. 18, 1986. The district court’s
finding regarding the need for the number of magnet
schools authorized by the plan is amply supported by the
State’s own evidence.
(855 F.2d at 1304, Pet. App. 15a.) Compare United States _v.
Pittman, 808 F.2d 385, 393 (Sth Cir. 1987)(Higginbotham, J.,
concurring)(warning that selective magnet schools exclude a large
number of "average" black students); Davis v. East Baton Rouge
Parish School Bd., 721 F.2d at 1437 n.10 (magnet plan could create
new dual system of white magnets and black regular schools).
16The complex analyses which undergird the district court’s
remedial orders in this case cannot be reduced to the two or three
phrases that are taken out of context and repeatedly intoned
throughout the Petition without seriously distorting the trial court’s
reasoning and actions. Unfortunately, the Petition contains
numerous erroneous and misleading characterizations of the
holdings below.
(continued...)
—-_.
NEE te Gad acer eas Telly
to the reasons for the district court’s approval of the
number of magnet schools provided by the plan.
Instead, it is the concluding sentence of an entirely new
paragraph of the Order in which the district court found
that the particular magnet themes and emphases
suggested in the KCMSD plan were likely to succeed in
attracting a desegregated enrollment.'’ Thus, the State’s
16(. continued)
For one example, the State charges that "the court [of appeals]
means to .. . apply a far-reaching theory of ’but-for’ causation--one
that~would make the State liable for an effect of desegregation,
rather than for effects of segregation itself" (Pet. at 17-18). In fact,
in the portion of its opinion to which the Petition makes reference,
the Court of Appeals sustained the district court’s orders on the
basis of the trial judge’s conclusion that the discriminatory and
segregative practices of the KCMSD had caused whites to leave or
avoid the system’s public schools. See 855 F.2d at 1302, Pet. App.
lla-12a. It was the State of Missouri itself which raised the
question of so-called “white flight from desegregation,” and what the
State now terms a “far-reaching theory of ’but-for’ causation” is
merely the Court of Appeals’ rejection of the State’s contention
that there was an intervening, independent cause of white
enrollment loss in the KCMSD that excused the joint tortfeasors of
all responsibility to correct the effects of their prior constitutional
violations. See 855 F.2d at 1303, Pet. App. 13a.
The entire paragraph is as follows:
(continued...)
et
tendentious argument that a majority-black school system
is not unconstitutional (Pet. 15-19) is simply beside the
point.'® The basis for the trial court’s approval of
17(. continued) oe
The Court also finds that the proposed magnet plan would
generate voluntary student transfers resulting in greater
desegregation in the district schools. The suggested magnet
themes include those which rated high in the Court
ordered surveys and themes that have been successful in
other cities. Therefore, the plan would provide both
minority and non-minority district students with many
incentives to leave their neighborhoods and enroll in the
magnet schools offering the distinctive themes of interest to
them. Most importantly, the Court believes that the
proposed magnet plan is so attractive that it would draw
non-minority students from the private schools who have
abandoned or avoided the KCMSD, and draw in additional
non-minority students from the suburbs.
181) addition to mischaracterizing the lower courts’
determinations, the State also attacks a number of the trial court’s
factual findings. Both the "two-Court rule,” see, e.g., Burger v.
Kemp, 483 U.S.___, __, 97 L. Ed. 2d 638, 651 (1987); Goodman
v. Lukens Steel _Co., 482 US. , __, 96 L. Ed. 2d 572, 584
(1987), and this Court’s traditional reliance upon the district courts
in school desegregation cases, see Columbus Bd. of Educ. v. Penick,
443 U.S. at 457 n.6, 464, id. at 468 (Burger, C.J., concurring in the
judgment); id. at 469-71, 475-76 (Stewart, J. & Burger, C.J.,
concurring in the result), counsel against disturbing these findings.
In any event, the State’s contentions are not convincing. The
State charges the district court with making inconsistent findings in
its August 25, 1986 and June 5, 1984 Orders (see Pet. at 17 n.21).
In its earlier (1984) Order, while adjudicating the liability -- not the
(continued...)
> a
KCMSD’s magnet school submission was its conclusion
18(.. continued)
remedy -- portion of the case (see 593 F. Supp. at 1505, Pet. App.
240a), the district court had discussed "[pjart of plaintiffs’ evidence
of white flight to the suburbs consist[ing] of charts displaying the
i transfer of student records from various KCMSD high schools to
surrounding districts over a 15-year period from 1958 to 1973." The
court rejected plaintiffs’ contentions that the evidence supported
| imposition of inter-district liability because "there is no evidence
that the [suburban districts] enticed these families to move” and "the
numbers involved are too insignificant to have had a segregative
impact on the KCMSD or the [suburban districts]. White flight is
simply not a constitutional violation by any [suburban district]."
(June 5, 1984 Order, at 38-39.)
Then, in 1986 the trial court observed that it had
found that segregated schools, a constitutional violation,
has led to white flight from the KCMSD to suburban
districts, large number of students leaving the schools of
Kansas City and attending private schools and that it has
caused a systemwide reduction in student achievement in
the schools of KCMSD.
(August 25, 1986 Order, at 1-2.) These findings are not
inconsistent, as the State suggests. In the 1984 Order, the district
court did not find that there was no “white flight.". Rather, it
refused to impose inter-district liability on the basis of “white flight”
because the suburban districts were overwhelmingly white in racial
composition irrespective of the movement of white pupils who left
the KCMSD (see, e.g., June 5, 1984 Order at 45, 49, 51, 55, 62, 67-
70, 74-75, 79, 84-86, 91), and because the KCMSD schools remained
highly segregated by virtue of that district’s discriminatory practices
during the 1958-73 time period, irrespective of its racial
composition (see, ¢.g., Pet. App. 211a-215a; Pet. App. 209a-210a
{discussing Davis v. East Baton Rouge Parish School Bd., 721 F.2d
1425 (Sth Cir. 1983)(rejecting similar argument that demographic
change was responsible for school segregation)]).
+
that this magnet plan was both most likely to be
successful in achieving actual desegregation and also
most equitable for black students in the district, not any -—
sort of desire to attain a specific racial balance in the
district’s schools.!?
B. The district court’s goal of achieving comparability
between KCMSD’s facilities and programs with the
average of those of surrounding systems was a
reasonable starting point in the formulation of a
remedy to eliminate the effects of the proven
constitutional violations.
The State attacks the remedial orders in this action
that require capital improvements within the KCMSD,
19Indeed, as the State itself points out (Pet. at 18 n.22), neither
the district court nor the Court of Appeals has imposed any
requirement that some minimum number of white students from
outside the KCMSD boundaries enroll in the magnet schools. The
lower courts’ failure to do so fatally undercuts the State’s
contention that the magnet school plan was approved for the
purpose of satisfying some judicially created "duty to attract
additional non-minority students to a school district" so as to
Change the KCMSD into a district "with some particular number of
white and black students" (Pet. at 15).
- 24-
a a
contending that the district court has read into the
"equal protection clause [a] require[ment] that a school
district . . . once-segregated [must be made] comparable
to neighboring districts" (Pet. at 13).% This contention is
The State has failed to raise this issue in a timely fashion
before this Court. On June 14, 1985, the district court directed that
KCMSD make capital improvements more extensive than those
which the State of Missouri had argued were appropriate in light of
the violation, specifically indicating that
[a]fter the submission of the $37,000,000 improvement plan,
KCMSD shall then review other capital improvements
needed in order to bring its facilities to a point comparable
with the facilities in neighboring suburban school districts.
(639 F. Supp. at 41, Pet. App. 191a.) The State appealed from this
capital improvements order, making the same arguments it now
raises in its Petition (compare, e.g., 807 F.2d at 685 with Pet. at 7
and 639 F. Supp. at 40-41, Pet. App. 189a-190a). The Eighth
Circuit, en banc, affirmed the scope of the plan while modifying the
allocation of financial responsibility between the KCMSD and the
State, 807 F.2d at 685-86. The State chose not to seek review of
that ruling by this Court.
Since that time, additional renovations, improvements and
construction have been ordered, undertaken and/or completed,
subject to the equal allocation of costs directed by the Court of
Appeals in 1986. The additional, avoidable and wholly unexpected
financial burden which would be shifted from the State to some
other party -- in all likelihood to the KCMSD and its taxpayers,
including the black parents and children who are the victims of the
long-continued constitutional violations in this case -- if the capital
improvements orders were now overturned, provides a compelling
(continued...)
--.
similar to the argument advanced by the defendants in
Swann v. Charlotte-Mecklenburg Board of Education,
402 US. 1, 23-25 (1971), that because the student
assignment plan there was drawn with an awareness of
the overall proportion of minority pupils in the system, it
embodied a substantive right to a particular racial
balance. In Swann, this Court rejected the argument,
because the system-wide proportion had been employed
as a Starting point to help determine whether the plan
would "achieve the greatest possible degree of
desegregation, taking into account the practicalities of
the situation," Davis v. Board of School Commissioners,
402 U.S. 33, 37 (1971). Here, it is similarly clear that
20(.. continued)
reason why the State’s contentions that could have been raised in
1986 became the law of the case at that time and ought not be
entertained by this Court now.
21See also, e.g., Hutto v. Finney, 437 U.S. at 685-86 & n.8.
me
the standard of comparability to suburban facilities was
employed by the district court as an operational guide,
not a substantive goal.
When the district court concluded the liability phase
of this case and turned its attention to the formulation
of an adequate remedy, it was confronted with a school
system in which the adverse effects of racial
discrimination and segregation were still very much in
evidence: "a system wide reduction in student
achievement" (639 F. Supp. at 24, Pet. App. 155a); a
school district which, alone among systems in the Kansas
City metropolitan area, lacked the state "AAA rating
[that] is a designation which communicates to the public
that a school system quantitatively and qualitatively has
the resources necessary to provide minimum basic
education to its students" (639 F. Supp. at 26, Pet. App.
« 29
159a); an "educational process [that] has been further
*bogged down’ in the KCMSD by a history of segregated
education" (639 F. Supp. at 28, Pet. App. 164a);” and
school facilities whose "current condition . . . adversely
affects the learning environment . . . [because of] safety
and health hazards, educational environment
impairments, functional impairments, and appearance
impairments" (639 F. Supp. at 39, Pet. App. 187a).7
Accordingly, the court sought to devise a remedy that
would | eliminate the continuing impact of the
violation.
The court commented that while "[a]ll, regardless of race or
class or economic status, are entitled to a fair chance and to the
tools for developing their individual powers of mind and spirit to
the utmost, . . . [segregation in the KCMSD has resulted in this
promise going unkept” (639 F. Supp. at 24; Pet. App. 154a).
231n a later order, the district court characterized the KCMSD
school plant as having "literally rotted,” 672 F.2d at 211, Pet. App.
86a.
<a.
For example, the court was persuaded by "[t]he
testimony of all the educational experts [for all parties
that] . . . the schools in KCMSD, when provided with
adequate resources, sufficient staff development, and
proper teaching methods, can attain educational
achievement results more in keeping with the national
norms" (639 F. Supp. at 24, Pet. App. 156a). With
substantial agreement from the State of Missouri,” the
court therefore required implementation of a wide
variety of innovative, supportive, and training programs
to restore the educational climate within the KCMSD.
To effectuate these aspects of the remedy, the court
ASee, ¢.g., 639 F. Supp. at 25, Pet. App. 156a ("both the State
of Missouri and the KCMSD have proposed program components
designed to increase student achievement at the elementary and
secondary levels"); 639 F. Supp. at 26, Pet. App. 158a (“both the
State of Missouri and the KCMSD endorse achieving AAA status,
reducing class size at the elementary and secondary level, summer
school, full day kindergarten, before and after school tutoring and
early childhood development programs").
oe
determined, on the basis of overwhelming evidence
placed before it, that substantial improvement of
KCMSD’s school buildings would be necessary:
The improvement of school facilities is an
important factor in the overall success of this
desegregation plan. Specifically, a school facility
which presents safety and health hazards to its
students and faculty serves both as an obstacle to
education as well as to maintaining and attracting
non-minority enrollment. Further, conditions
which impede the creation of a good learning
climate, such as heating deficiencies and leaking
roofs, reduce the effectiveness of the quality
education components contained in this plan.
(639 F. Supp. at 40, Pet. App. 188a.)* The district
court has continued, throughout the subsequent course
of this litigation, to focus on capital needs that are
directly related to eliminating the continuing effects of
the violations and to the educational components of the
plan (e.g., 672 F. Supp. at 404, Pet. App. 70a-71a).
See also 639 F. Supp. at 41, Pet. App. 190a.
|
As we have previously noted, the trial court
determined to institute magnet school options and to
solicit the participation of suburban school districts in a
voluntary inter-district transfer program to expand the
possibilities for achieving further desegregation of the
KCMSD (639 F. Supp. at 34-35, 38-39, Pet. App. 176a-
177a, 185a-187a). The court found that the successful
implementation of integrated magnet schools demanded
adequate plant, facilities and equipment.” Thus, in its
initial remedial decree, the district court ordered
KCMSD to submit a first-year budget for its existing
magnet schools, to include "budget items which are
directly related to enhancing the full desegregative
drawing power of these schools" (639 F. Supp. at 34,
As the district court stated, "[t]he magnet school plan is
crucial to the success of the Court’s total desegregation plan and
the KCMSD cannot effectively implement the magnet programs
without special facilities" (672 F. Supp. at 406, Pet. App. 75a).
.
Pet. App. 177a), and the court thereafter approved both
operating and capital expenditures for the magnets (639
F. Supp. at 53, 54-55, Pet. App. 144a, 146a-148a). In
the 1987 Order on which the State focuses, the trial
court rejected the State’s capital program submissions in
part because "the State failed to estimate the cost
necessary to provide magnet facilities needed to
implement the long-range magnet school plan approved
by the Court on November 12, 1986" (672 F. Supp. at
404, Pet. App. 71a).
Because the capital improvements are tied to
effective implementation of the magnet schools and the
educational components of the desegregation plan, the
Petition is misleading in intimating that everything which
the district court ordered in September, 1987 "was
. 2.
expressly designed to make KCMSD schools comparable
to suburban schools" (Pet. at 7-8).
In many of the areas given remedial attention,
performance standards that would assure that the effects
of the violation would be eliminated were readily
ascertainable. For instance, the Missouri State
Department of Elementary and Secondary Education
awards ratings (such as the AAA rating) to school
districts on the basis of annual evaluations and had
established and documented KCMSD’s deficiencies and
needs (see 639 F. Supp. at 26-28, Pet. App. 158a-163a).
With respect to reductions in class size, the court
accepted goals suggested by the KCMSD that were less
stringent and less costly than the recommendations made
by the Missouri State Board of Education (see 639 F.
Supp. at 28-30, Pet. App. 163a-168a).
As to capital improvements, the district court
articulated a set of standards that were closely related
both to the violations it had found and the other
remedial components it was ordering. First, the court
required "eliminating safety and health hazards" and
"correcting those conditions existing in the KCMSD
school facilities which impede the level of comfort
needed for the creation of a good learning climate" (639
F. Supp. at 41, Pet. App. 191a). These goals were
directly responsive to the discrimination in the KCMSD
27
under the dual system.“’ Second, the court recognized
27The State does not dispute the historically inferior quality of
black schools under the dual system in the KCMSD, which is in any
event established on this record. See, ¢.g., Tr. 818-24, 1,743-46,
16,835. Nor did the State demonstrate -- and the district court did
not make any finding -- that the inadequacies attributable to the
dual system had been redressed prior to the time that a deferred
(continued...)
» 34
that the voluntary enrollment of white students in
KCMSD magnet schools would not be possible if those
schools continued to be perceived as inferior to
27(...continued)
maintenance program at all schools was made necessary by voter
refusal to approve bond issues for capital improvements, 639 F.
Supp. at 39, Pet. App. 187a. Thus, the capital improvements
ordered by the trial court in part correct pre-Brown inequalities that
were perpetuated and exacerbated within the KCMSD by the
district’s and the State’s failure to meet their affirmative obligations
to eliminate the vestiges of enforced segregation. See Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. at 18 ("the first
remedial responsibility of school authorities is to eliminate invidious
racial distinctions. . . . Similar corrective action must be taken with
regard to the maintenance of buildings and the distribution of
equipment").
Capital improvements have been routinely ordered as
appropriate components of remedial decrees in desegregation cases.
See, e.g., United States v. Yonkers Bd. of Educ., 856 F.2d 7 (2d Cir.
1988); Liddell _v. Board of Educ., 801 F.2d 278 (8th Cir. 1986);
Plaquemines Parish School Bd. v. United States, 415 F.2d 817, 831
(Sth Cir. 1969); United States v. Jefferson County Bd. of Educ., 380
F.2d 385, 393-94 (Sth Cir.)(en banc), cert. denied sub_ nom. Caddo
Parish School Bd. v. United States, 389 U.S. 840 (1967); Morgan v.
Nucci, 617 F. Supp. 1316, 1318 (D. Mass. 1985), appeal dismissed,
831 F.2d 313 (ist Cir. 1988); Hoots v. Pennsylvania, 539 F. Supp.
335, 338 (W.D. Pa. 1982), aff'd, 703 F.2d 722 (3d Cir. 1983); Tasby
v. Estes, 412 F. Supp. 1192, 1219 (N.D. Tex. 1976), remanded on
other grounds, 572 F.2d 1010 (5th Cir. 1978); Singleton v. Anson
County Bd. of Educ., 283 F. Supp. 895, 903 (W.D.N.C. 1968);
Redman v. Terrebone Parish School Bd., 293 F. Supp. 376, 379
(E.D. La. 1967).
- 35 -
alternative educational opportunities available to these
students. For this reason, the court required that
renovation and construction plans also take into account
"improving [KCMSD’s] facilities to make them visually
attractive" and "comparable with the facilities in
neighboring suburban school districts" (639 F. Supp. at
41, Pet. App. 191a). This goal was not, however,
devised by the trial court to obliterate "[d]ifferences in
local school funding" or to transform "a ’system of school
financing [which] results in unequal expenditures between
children who happen to, reside in different districts . . .”
(Pet. at 19-20, quoting San Antonio Indep. School Dist.
v. Rodriguez, 411 U.S. 1, 54-55 (1973)). Rather, it
represents the starting point in designing a remedy for
8Cf. 639 F. Supp. at 26, Pet. App. 159a (KCMSD only district
in metropolitan area not rated "AAA").
a.
the constitutional violations that is adequate and
workable:
The long term goal of this Court’s remedial order
is to make available to all KCMSD students
educational opportunities equal to or greater than
those presently available in the average Kansas
City, Missouri metropolitan suburban school
district. In achieving this goal the victims of
unconstitutional segregation will be restored to
the ‘position they would have occupied absent
such conduct, while establishing an environment
designed to maintain and attract non-minority
enrollment.
(639 F. Supp. at 54, Pet. App. 145a-146a [emphasis in
original deleted and emphasis added].) Simply put, the
standard of general comparability to the average school
system in the geographic area was utilized as a practical
mechanism for identifying the educational opportunities
and facilities that were denied to KCMSD’s black
students as a result of the practices of racial segregation
and discrimination,” and for assuring the likely success
29"'T]he Court has the responsibility of providing the victims of
(continued...)
+ OF.
cu
of the magnet options.
Petitioners strain to fashion some legal issue worthy
of review by claiming that there was no "state action"
which justifies the capital improvements orders because,
as the State argued unsuccessfully to the trial court, "the
present condition of the district school facilities is not
traceable to unlawful segregation but is due to a lack of
maintenance by the KCMSD”™ (Pet. at 7) and, it asserts,
"[t]here is no conceivable way that a KCMSD resident,
entering a voting booth to support or oppose a tax
29(...continued)
unlawful segregation with the educational facilities that they have
been unconstitutionally denied. Therefore, a long-range capital
improvement plan aimed at eliminating the substandard conditions
present in KCMSD schools is properly a desegregation expense and
is crucial to the overall success of the desegregation plan" (672 F.
Supp. at 403, Pet. App. 69a).
"In Conclusion, if the KCMSD schools underwent the limited
renovation proposed by the State, the schools would continue to be
unattractive and substandard, and would certainly serve as a
deterrent to parents considering enrolling their children in KCMSD
schools" (672 F. Supp. at 405, Pet. App. 72a).
=— oe
increase, can "fairly be said to be a state actor” (Pet. at
20).
These contentions do not justify granting the writ. In
the first place, as the Court of Appeals held,
this argument advanced by the State attacks an
aspect of the court’s findings that was merely an
alternative basis for its conclusion. . . . Even
absent the findings that the State contributed to
causing the decay, the capital improvements
would still be required both to improve the
education available to the victims of segregation
as well as to attract whites to the schools.
(855 F.2d at 1305, Pet. App. 18a.) The issue fashioned
by the State thus will not be reached even if review
were granted.*! Moreover, the trial court found that the
31similarly, the Petition refers to
the court of appeals’ attempt to match voting patterns with
the existence of "segregation"--by pointing out that voting
support fell off when the district enrollment became
majority black (Pet. App. 18a n.7)....
(Pet. at 20). But the Court of Appeals, in the footnote cited by
Petitioners, explicitly noted that while "[t]he record tends to support
these arguments . . . the district court did not base its findings of
(continued...)
racially discriminatory policies carried out in the KCMSD
after Brown "contributed to, if not precipitated, an
atmosphere which prevented the KCMSD from raising
the necessary funds to maintain its schools" (Pet. App.
124a),>? and the Court of Appeals affirmed (855 F.2d at
1305, Pet. App. 17a-18a). Review of findings concurred
in by both courts below is inappropriate under the-"two-
court" rule, see supra note 18.*%
31(.. continued)
fact and conclusions of liability on this theory, [and] we need say no
more." The judgments below therefore do not rest, in any part,
upon the facts described in the footnote cited by Petitioners.
32cf, e.g, Reitman _v. Mulkey, 387 U.S. 369, 373, 376
(1967)(examination of voter initiative "in terms of its ‘immediate
objective,’ its ultimate effect’ and its “historical context and the
conditions existing prior to its enactment” revealed that "intent . . .
was to authorize private racial discriminations in the housing
market . . . and to create a constitutional right to discriminate on
racial grounds").
331f the State’s arguments were to be considered on their
merits, they are clearly lacking in substance. KCMSD’s electorate is
simply not a mass of individual private citizens when it exercises the
power conferred upon it by Missouri school law to determine the
level of capital expenditure in a district; its decisions in such
matters are as much state action as the electoral initiatives involved
(continued...)
~~
I
The District Court’s Order Directing The
Collection, For A Limited Period Of Time, Of
Additional Property Tax Revenues Within The
KCMSD Adequate To Support The District’s
Share Of The Remedial Costs Is An Appropriate
Exercise Of Its Equitable Remedial Authority To
Effectuate The Fourteenth Amendment To The
Constitution
The discussion in the preceding section demonstrates
that the measures ordered by the district court are
necessary and appropriate to provide a complete remedy
for the unconstitutional and discriminatory actions of
KCMSD and Missouri officials, and that no issue
justifying review by this Court with respect to the goals
of those remedies is raised by Petitioners. There remain
33(.. continued)
in Washington v. Seattle School District No. 1, 458 U.S. 457 (1982),
Hunter v. Erickson, 393 U.S. 385 (1969), and Reitman v. Mulkey.
The district court’s orders were not directed to persons who acted
as private parties, such as the "charitable and civic groups" which
declined or were unable to assist KCMSD in raising funds for
capital improvements (see August 25, 1986 Order at 3).
.
for consideration Petitioners’ contentions that the trial
judge so far departed from the appropriate exercise of
his equitable authority in directing the collection of
additional property taxes within the KCMSD as to
warrant scrutiny by this Court. Contrary to Petitioners’
plaintive assertions, we believe that the power of a
federal district court -- in fashioning relief adequate to
redress Fourteenth Amendment vicheatona -- to require
local officials to increase tax collection when all other
means of assuring implementation of the remedy have
been exhausted, is unquestionable; and that the
appropriateness of its exercise in this instance is
established by the decisions of this Court.
a.
A. The authority of federal courts in school
desegregation suits to require local tax levy and
collection in order to effectuate relief necessary to
vindicate Fourteenth Amendment rights was settled
in Griffin and this case fits squarely under that
ruling.
Preliminarily, we emphasize that this question is
presented in the context of admitted, protracted,
substantial violations of the Equal Protection Clause of
the Fourteenth Amendment which the district court
found to have caused substantial, continuing harm to the
education of black children in the KCMSD; and in the
context of that court’s having determined what is the
necessary and appropriate remedy to eliminate the
continuing effects of the violations. It is totally wrong to
Say, as the State of Missouri does (Pet. at 27), that
neither of ihe courts below "made any serious inquiry
into whether the KCMSD might become unitary without
a mandatory tax increase." The district court carefully
i
shaped the remedy to be responsive to the nature and
scope of the violation and rejected the parties’
submissions that it viewed as going beyond this
parameter.“ Its conclusion, which was affirmed by the
court below, was that the remedies it was ordering were
necessary to accomplish the operation of the KCMSD
schools free from racial discrimination and its effects.*°
See supra note 5 and accompanying text; Pet. App. 96a-97a
(disapproving requested funding increase for test updates that would
be required even in absence of desegregation plan).
351n contrast, the State of Missouri appears to argue that the
district court should have curtailed the remedy -- in Other words,
rendered it less than fully adequate -- to avoid the possibility that
if state law inhibitions on KCMSD’s ability to raise funds were not
modified by the state legislature (as they were not), the court might
be required to order an increase in the tax levy. (See State Pet. at
27.) The suggestion carries deference to the point of submission
and would inevitably reward recalcitrance.
The cases on which the State seeks to rely are inapposite. For
example, in New York State Association for Retarded Children v.
Carey, 631 F.2d 162, 165 (2d Cir. 1980), cited in State Pet. at 27
n.34, an alternative to requiring increased state funding -- "clos[ing]
the institution" -- was available because that remedy would have
relieved the plaintiffs from suffering the unconstitutional conditions
of confinement, see id. at 166 n.1 (Kearse, J., concurring). See also
Rhem v. Malcolm, 507 F.2d 333, 341 & n.19 (2d Cir. 1974)(closing
(continued...)
-44-
Under these circumstances, the court’s authority to
impose additional property tax obligations within the
KCMSD in order to secure effectuation of the remedy
is, we suggest, unquestionable. In Griffin v. County
School Board of Prince Edward County, 377 U.S. 218
(1964), the public schools of one county within a state
had been closed to avoid the requirements of the
35(...continued)
institution had “crucial practical advantage . . . of not putting the
judge in the difficult position of trying to enforce a direct order to
the City to raise and ailocate large sums of money” but in "a
situation where the unconstitutionally-administered governmental
function must be kept operating in any event... , a court might
have no choice but to order an expensive, burdensome or
administratively inconvenient remedy"); Reece v. Gragg, 650 F.
Supp. 1297, 1307-11 (D. Kan. 1986)(setting jail population ceilings
as condition for staying injunction against continued operation of
facility pending submission and implementation of plan to correct
unconstitutional conditions), cited in Clark Pet. at 22 n.6.
Such an approach is not feasible in a school desegregation
action. Enjoining the operation of the KCMSD schools until the
remedy were implemented would cause further harm to the victims
of the constitutional violations. Enjoining all public schooling in
the KCMSD suburbs, or throughout Missouri, until the plan were
funded, would similarly penalize the victims of segregation as well
as be a gross departure from equitable principles.
- 45 -
Fourteenth Amendment as interpreted by this Court in
Brown, cutting off the opportunity for black pupils within
the county to be educated. White pupils were assisted
by county authorities to continue their schooling through
a program of tuition grants for private school attendance
and tax exemptions and credits. This Court held that
the scheme violated the Fourteenth Amendment.
In its opinion, this Court explicitly outlined "the kind
of decree necessary and appropriate to put an end to
the racial discrimination practiced against the[ black
children] under authority of the Virginia laws." Id. at
232. The district court had enjoined payment of the
tuition grants or allowance of the tax exemptions so long
as the public schools remained shut, and this Court had
"no doubt of the power of the court to give this relief to
enforce the discontinuance of the county’s racially
~~ +
discriminatory practices," id. at 232-33. But this Court
went further to describe the broad affirmative, remedial
authority of the trial courts in desegregation cases:
The injunction against paying tuition grants and
giving tax credits while public schools remain
closed is appropriate and necessary since those
grants and tax credits have been essential parts of
the county’s program, successful thus far, to
deprive petitioners of the same advantages of a
public school education enjoyed by children in
every other part of Virginia. For the same
u i to
Su i to exercise t at i irs to
levy_taxes to raise funds adequate to reopen,
operate, and maintain _—wi ge racial
di ation a public school rince
Edward County like that poe in other
counti¢s in_ Virginia.
(Id. at 233 [footnote omitted and emphasis added].)
The district court had stated it would consider (but had
not yet issued) an order to accomplish the reopening of
the schools. This Court remanded with instructions to
enter the sort of decree it had described:
a.
An order of this kind is within the court’s power
if required to assure these petitioners that their
constitutional rights will no longer be denied
them. The time for mere "deliberate spee.*" has
run out, and that phrase can no longer «stify
denying these Prince Edward County school
children their constitutional rights to an education
equal to that afforded by the public schools in
other parts of Virginia.
. . . [T]he cause is remanded to the District
Court with directions to enter a decree which will
arantee that th tition j d
f education that is given in t ’ lic
schools. d, if it becomes nece to add new
parties to accomplish this end, the District Court
is free to do so.
(Id. at 233-34 [emphasis added].)*
Because the Court remanded with instructions to enter such
a decree, Petitioners err fundamentally in trying to discount the
importance of the Court’s opinion because "the Court did not itself
order a tax levy increase” (Clark Pet. at 18; see Jackson County Pet.
at 10) or "no tax was actually before the Court in Griffin” (State
Pet. at 24). The direction to add parties, if required,
unquestionably refers to the County Board of Supervisors, and the
necessity of joining them as parties quite evidently refers to the task
of assuring funding adequate to "guarantee" that black students in
the county would receive "the kind of education that is given in the
State’s public schools" “without racial discrimination.”
(continued...)
- 48 -
The trial court here has faithfully applied the
precepts of Griffin. It first considered and approved a
remedy adequate to assure the operation of the KCMSD
schools without racial discrimination. It carefully
determined what resources would be required to
implement that remedy and allocated the costs between
the joint tortfeasors, the State of Missouri and KCMSD.
It required the KCMSD to attempt through every means
at its disposal to raise its share of the necessary funding,
including by seeking voter approval for additional tax
levies on four occasions in 1986 and 1987.*”7 To meet
KCMSD’s fiscal obligations in the early stages of plan
36(... continued)
As is evident from the passages quoted in the text, Missouri
also is wrong in suggesting that the Court’s discussion in Griffin
“was limited to a single conclusory statement” (id.).
37See 672 F. Supp. at 411, Pet. App. 85a-86a (summarizing
attempts by KCMSD to raise funds as well as failure of Missouri
legislature to provide new mechanism for this purpose); Pet. App.
127a (suggesting General Assembly of Missouri take such action).
- 49 -
implementation, the court suspended the operation of a
state-law property tax rollback provision on two
occasions, effectively raising property tax levies within
the KCMSD higher than they would have been except
for its order.* Only after all of these avenues were
exhausted and it was clear that absent additional relief
from the court the plan could not be fully effectuated,
did the district court determine to order an increase in
KCMSD’s property tax levy. The court’s orders require
a total levy rate less than the highest rate that had been
8Significantly, the State of Missouri did not appeal the first
order, see 807 F.2d at 682-86 (addressing State’s arguments on
appeal), or seek review in this Court, even after the Court of
Appeals in 1986 suggested that the district court could raise the tax
levy if necessary to fund the increased share of desegregation costs
which it was placing on the KCMSD, see id. at 686, citing Liddell
v. Missouri, 731 F.2d at 1319-23. When the rollback was enjoined
for the second time, "[t]he State urge[d] that KCMSD be required
to pay its share of desegregation costs; it tjook] no position as to
the method through which KCMSD obtains the funds to meet its
burden,” August 25, 1986 Order at 1.
Neither of the other Petitioners sought intervention on a timely
basis following these tax rollback suspensions.
. $0.
in effect in the KCMSD in the period from 1974 to
1982 and provided that the additional levy shall
continue only until 1991-92, or until bonds to finance
necessary capital improvements have been retired.”
It is suggested that Griffin does not support this
action because this Court’s opinion did not explicitly
refer to an increased tax rate (Clark Pet. at 18; Jackson
County Pet. at 10). Griffin will not bear such a crabbed
reading. This Court could not have intended to deny
the district court authority to require the Board of
Supervisors to levy and collect a tax "adequate to
reopen, operate, and maintain’ without racial
See 855 F.2d at 1312, Pet. App. 32a.
49672 F. Supp. at 413, Pet. App. 89a; Pet. App. 63a. In view of
its reversal of the income tax surcharge, the Court of Appeals
directed that the district court reevaluate the need for continuation
of the increased property tax levy at the end of the 1991-92 school
year, 855 F.2d at 1315, Pet. App. 38a.
« $@.
discrimination a public school system in Prince Edward
County like that operated in other counties in Virginia,"
377 U.S. at 233 (emphasis added). The remand
directions necessarily meant not only that the district
court could require the Board of Supervisors to levy
some tax, however small, but that the district court could
order it to levy a tax adequate to provide "a public
school system in Prince Edward County like that
operated in other counties in Virginia."*’
Similarly, if
the county’s school facilities had fallen into disrepair
during the period of their closure and needed to be
41Indeed, on remand, the Board of Supervisors initially declined
to appropriate any funds, and the district court ordered it to make
available "such "County funds as are reasonably necessary for the
opening and maintenance of the public schools * * * on a non-
discriminatory basis.” Plaintiffs then challenged the adequacy of the
appropriation; the court entertained this inquiry but "postponed
action until subsequent experience should reveal its adequacy or
inadequacy." See Griffin v. Board of Supervisors of Prince Edward
_County, 339 F.2d 486, 489, 490 (4th Cir. 1964)(describing lower
court proceedings).
- §2-
rehabilitated in order to be "reopen{ed]" and made "like
[other school facilities] operated in other counties in
Virginia," we are confident that the Griffin remand
directions encompassed the district court’s authority to
require adequate funding to accomplish these ends.
The actions of the trial court in the instant matter
fall squarely within the ruling in Griffin and Petitioners
have advanced no compelling reason why Griffin should
be reconsidered; thus, denial of the writ is appropriate.*
42We also agree with the Court of Appeals (855 F.2d at 1311-
13, Pet. App. 31a-36a) that the district court’s actions may be
characterized and sustained as directing the disregard of the state
law limitation on KCMSD’s tax levy rate in order to accomplish
vindication of Fourteenth Amendment rights, North Carolina State
Bd. of Educ. v. Swann, 402 U.S. 43 (1971); see Washington State
Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 694-96,
modified on other grounds sub nom. Washington v. United States,
444 U.S. 816 (1979).
2.
B. Apart from Griffin, the power of federal courts, in
appropriate circumstances, to order state tax levies to
be made is not in doubt.
Petitioners, in reliance upon a congeries of decisions
from this Court, vehemently contend that federal courts
may never direct state or local officials to levy or collect
a tax,*? or may do so only if there is explicit state
legislative authorization. This argument rests upon a
43 g., State Pet. at 22 ("There are serious grounds for doubting
that federal courts have any power to order specific taxes"); Clark
Pet. at 22 (opinion below "is devoid of any . . . support [for] the
premise that the federal judiciary is expressly empowered under
Article III to impose taxes to generate revenues to fund court-
ordered remedies"); Jackson County Pet. at 11-12 ("A court has
many powers, up to but not including the power to order increases
in taxation, which may be used to remedy segregation").
“4E.g., State Pet. at 24 n.31 ("cases allo[w] the use of
mandamus to order collection of authorized taxes"). The State’s
argument on this score appears to rest upon language which it
attributes to this Court in United States ex rel. Ranger v. New
Orleans, 98 U.S. 381 (1879). Id. However, the language quoted in
the Petition is taken from the argument of counsel in that case,
which was rejected by this Court; the decision in fact announces the
contrary proposition.
In that case the City of New Orleans argued that because the
1854 statute authorizing the city to issue bonds included no explicit
provision for a tax levy to pay the principal amounts, judgments in
(continued...)
. $4
fundamental misreading of the jurisprudence in
municipal bond default cases decided by this Court
during the last century, and is based upon language in
the opinions in some of those cases that is uprooted
44(...continued)
favor of the bondholders for those amounts could not be enforced
by issuance of a mandamus to levy a tax in order to pay the
judgments. 98 U.S. at 390-91. This Court held that authorization
of the borrowing "implies and carries with it the power to adopt the
ordinary means employed by such bodies to raise funds for their
execution, unless such funds are otherwise provided. And the
ordinary means in such cases is taxation." Id. at 393. The Court
reversed “with directions to issue the writ [of mandamus] as prayed
in the petition of the relator,” id. at 397.
In United States ex rel. Wolff v. New Orleans, 103 U.S. 358
(1881), this Court applied the same principle, directing the issuance
of a writ to levy taxes without regard to a state statute limiting the
total annual levy which could be made.
4SSome of Petitioners’ citations are flatly wrong. See supra
note 44. Others have nothing to do with the questions at issue
here. For instance, Stansbury v. United States, 75 U.S. 33 (1869),
cited in State Pet. at 25 n.31, holds that the Secretary of the
Interior could not create an obligation binding upon the United
States in the absence of legislative authorization. Imbler_v.
Pachtman, 424 U.S. 409 (1976), cited in State Pet. at 23, recognized
an immunity from suit under 42 U.S.C. § 1983 as a matter of
statutory construction, not judicial power.
-
from its context and consequently given an incorrect
interpretation.
In the case at bar, the district court on September
15, 1987 entered an order increasing the property tax
levy for the KCMSD to $4.00 per $100 of assessed
valuation (672 F. Supp. at 413, Pet. App. 90a).
Subsequently, the court granted injunctive relief requiring
Jackson County officials to collect the additional tax.”
This was the modern-day equivalent of issuing a writ of
mandamus to the local officials requiring them to levy
and collect the additional tax.*7 The authority of federal
46On September 29, 1987, the district court issued a Temporary
Restraining Order to this effect. Following a hearing, the court
continued the order in the form of a preliminary injunction issued
October 17, 1987 and made it permanent on January 7, 1988
(Jackson County Pet. App. 111; see 855 F.2d at 1315, State Pet.
App. 39a). i “s
47The writ of mandamus in the district courts was abolished in
1937 when law and equity jurisdiction was merged and the Federal
Rules of Civil Procedure adopted. Fed. R. Civ. P. 81(b). Relief in
the nature of mandamus, however, continu” to be available and
(continued...)
«3B
courts to grant this relief has never been doubted.
In Rees v. City of Watertown, 86 U.S. 107 (1874)
and Meriwether v. Garrett, 102 U.S. 472 (1880), upon
which Petitioners rely so heavily, this Court reiterated its
view that writs of mandamus could be issued against
state officers requiring them to levy and collect taxes in
order to satisfy federal court judgments against them.
See Rees, 86 U.S. at 117 ("The appropriate remedy of -
the plaintiff was, and is, a writ of mandamus);
Meriwether, 102 U.S. at 520 ("The taxes levied pursuant
to writs of mandamus issued by the circuit court are still
to be collected, the agency only for their collection being
47(...continued) -
"[t]he principles that governed the former writ now govern attempts
to secure similar relief," Sanchez-Espinoza v. Reagan, 770 F.2d 202,
207 n.7 (D.C. Cir. 1985)(Scalia, J.). See, e.g., Couch v. City of Villa
Rica, 203 F. supp. 897 (N.D. Ga. 1962)(ordering city to increase
rates charged by municipally owned utility to satisfy federal court
negligence judgment).
=
changed. The Receiver appointed by the Governor has
taken the place of the collecting officers of the city... .
The Receiver, and any other agent of the State for the
collection, can be compelled by the court, equally as the
former collecting officers of the city, to proceed with the
collection of such taxes").*
What this Court refused to approve in Rees and
Meriwether, and what it described as being beyond the
power of the federal judiciary, was not an order
requiring state officials to levy and collect a tax, but
rather ro designation of the 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
48Graham_v. Folsom, 200 U.S. 248, 249 (1906) followed
Meriwether in upholding "the judgment of the circuit court in
mandamus, requiring [successor public officials following a
governmental restructuring] to assess and collect taxes to pay a
judgment." :
_
direct appointment of a federal receiver to collect all
state taxes and pay the judgment, see Meriwether, 102
US. at 508.4% That is not what was ordered below.
The other decisions to which Petitioners advert are
equally distinguishable.” It is true that in suits founded
49with characteristic brevity, Justice Holmes in Yost v. Dallas
County, 236 U.S. 50, 57 (1915) summarized the operative principle
as follows: "Of course it does not follow from the fact that a court
has authority to issue a writ of mandamus to compel officers to
perform their duty that it can perform that duty in their place."
5% Louisiana v. Jumel, 107 U.S. 711 (1883) the Court held
that the Eleventh Amendment barred issuance of mandamus against
the State -- not a municipality, cf. County of Lincoln v. Luning, 133
U.S. 529 (1890) -- in a suit that was not grounded upon the
Fourteenth Amendment, see Milliken II, 433 U.S. at 288-90; cf.
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
In Heine v. Commissioners, 86 U.S. 655, 659-61 (1874),
in addition to following Rees, the Court held that mandamus relief
was unavailable until a federal court judgment had been obtained,
to which relief the writ would be ancillary. This principle continues
to govern the federal court award of relief in the nature of
mandamus today. E.g., Brittingham v. Commissioner, 451 F.2d 315,
317 (Sth Cir. 1971); Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th
Cir. 1970).
See also supra note 45.
- 59 -
solely upon state law claims, the availability of
mandamus relief is subject to pre-existing state law
limitations upon officials’ taxing authority.°' However,
even in such state-law cases, federal courts will issue
mandamus without regard to limitations on remedies
adopted after a contract is formed, since these impair
the obligation of contract in violation of the federal
Constitution.** And where federal rights are at stake, as
here, of course state-law limitations on remedy must give
way. North Carolina State Bd. of Educ. v. Swann, 402
51E.g., Clay County v. United States ex rel. McAleer, 115 U.S.
616 (1885)(contract claim); ia v. New
Orleans, 102 U.S. 203 (1880)(contract claim; requirement that
judgment be registered); United States v. County Court, 99 U.S. 582
(1879)(contract claim); United States v. County Court, 95 U.S. 769
(1878)(same); Couch v. City of Villa Rica, 203 F. Supp. at 901 (tort
suit).
°7E.g., Louisiana ex rel. Hubert v. Mayor of New Orleans, 215
U.S. 170 (1909); United States ex rel. Hoffman v. Quincy, 71 U.S.
535 (1867). Compare Louisiana ex rel. Ranger v. New Orleans,
supra note 51 (subsequent requirement that judgment be registered
held not to impair obligation of contract).
2-
U.S. 43 (1971); Washington v. Washington State
Commercial Passenger Fishing Vessel Ass’n, 443 U.S. at
694-96.
We do not quarrel with the proposition advanced by
Petitioners that federal courts should make every effort
to avoid the necessity of ordering a tax increase. The
district court in this stich stayed its hand for as long as
possible, until there was no other alternative to assure
actual implementation of the remedy. See supra, text at
nn. 37-38. When that unfortunate circumstance occurred
as a result of the defendants’ refusals to act, the court
was fully justified in fashioning an appropriate decree.
%3See Yost v. Dallas County, 236 U.S. at 56, where Justice
Holmes characterized the municipal bond cases as involving
“obligation{s] under, not paramount to, the authority of the state,”
the United States Constitution in those suits "only requiring that
the obligation of the contract should not be impaired by subsequent
state law."
.
E.g., Hutto v. Finney, 437 U.S. at 687-88 & n.9. The
writ should be denied.**
Conclusion
For the foregoing reasons, the writs should be
denied.
Respectfully submitted,
JULIUS L. CHAMBERS *ARTHUR A. BENSON II
JAMES M. NABRIT, III 100 Walnut Street,
NORMAN J. CHACHKIN = Suite 1125
16th floor Kansas City, MO 64106
99 Hudson Street (816) 842-7603 |
New York, NY 10013 ~
(212) 219-1900 -- JAMES S. LIEBMAN
: | Columbia University
THEODORE M. SHAW School of Law =
8th floor 435 West 116th Street
634 So. Spring Street New York, NY 10027
Los Angeles, CA 90014 (212) 854-3423
(213) 624-2405
*Counsel of Record
Attorneys for Respondents JENKINS et al.
2...
54We join with and adopt KCMSD Respondents’ views as to
the undesirability of granting review of the intervention questions
raised in Nos. 88-1194 and -1228.
“
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.