Petition — Missouri v. Liddell

Supreme Court brief1981

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Office-Supreme Court, 0.

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iN 17 1981

No.

ALEXANDER t

STEV

‘AS,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI, et al,

Petitioners

Vv.

CRATON —. et al.,

EARLINE ar Yin et al.,

JANICE ADAMS, et al,

and,

BOARD OF EDUCATION OF THE

CITY OF ST. - sicegaa et al.

and,

THE CITY OF ns MISSOURI,

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

314-751-3321

COUNSEL FOR PETITIONERS

RoBERT

PRESSON

Assistant Attorney General

of Counsel

June, 198i

———

KELLY PRESS, INC., 201 8S. Eighth St., Columbia, Missouri Dial 314/449-4163

QUESTIONS PRESENTED

1. Whether the effectiveness of a 1954-1956 desegrega-

tion plan can be judged on the basis of the number of pre-

dominately black schools existing in a system in 1962 in

view of the fact that (1) there are no statistics regarding

racial composition of the schools for the intervening years

and (2) the racial composition and distribution of the dis-

trict as a whole had changed drastically in the interim?

2. Whether State liability for an alleged failure to

disestablish a dual school system can be premised on the

State being an absolute guarantor that political subdivisions

will afford equal protection of the law, where (1) the State

had removed all legal impediments at the State level to

effect of dismantling of the dual school system, (2) the

State had not controlled, directed or participated in the

actions of the local school board, and (3) the State had

not been shown to have exercised or failed to exercise its

own authority in an unconstitutional manner?

3. Whether a finding of intradistrict liability on the

part of the State can, consistent with Milliken v. Bradley,

support an order to bear the cost of and participate in a

plan of voluntary pupil exchanges with nonparty school

districts?

4, Whether an order of mandatory interdistrict relief

can be premised upon a finding of fact not within the scope

of any pleadings in the case and not tried by the consent

of the parties?

5. Whether a district court can order the preparation

of a mandatory interdistrict plan when allegations of in-

terdistrict violations are not present in any of the plead-

ings, no hearing has been held with regard to any such

issues, and no findings have been made thereon?

LIST OF ALL PARTIES

1. The State of Missouri; Christopher S. Bond, Governor

of the State of Missouri; Mel Carnahan, Treasurer of the

State of Missouri; John Ashcroft, Attorney General of the

State of Missouri; Stephen C. Bradford, Commissioner of

Administration; Arthur L. Mallory, Commissioner of Edu-

cation; State Board of Education; Delmar A. Cobble, Grover

Tamm, Jimmy Robertson, Dale M. Thompson, Ervin A. Wil-

liams, Donald W. Shelton, and Robert Welling, Members

of the State Board of Education.

John Ashcroft

Attorney General

Larry R. Marshall

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

Attorneys for State Petitioners.

2. Craton Liddell, a minor, by Minnie Liddell, his mother

and next friend, and Minnie Liddell; Joanne Goldsby, a

minor, by Barbara Goldsby, her mother and next friend,

and Barbara Goldsby; Deborah Yarber, a minor, by Samuel

Yarber, her father and next friend, and Samuel Yarber;

Nathalie Moore, a minor, by Louise Moore, her mother and

next friend, and Louise Moore; Rachelle LeGrand, a minor,

by Louise LeGrand, her mother and next friend, and Louise

LeGrand, on behalf of themselves and all other school age

children and their parents residing in the metropolitan school

district of the City of St. Louis, Missouri.

Joseph S. McDuffie

William P. Russell

Attorneys at Law

408 Olive Street

_ St. Louis, MO 63101

Attorneys for Liddell Plaintiffs.

Ill

3. Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Williams, Steph-

anie Williams, Gloria Williams, Janis Hutcherson, Lee

Hutcherson, Robert Smith, Eddie S. Willis and the National

Association for the Advancement of Colored People.

Thomas I. Atkins

General Counsel

NAACP

1790 Broadway

New York, N.Y. 10019

William Caldwell

Richard B. Fields

Ratner & Sugarmon

525 Commerce Tower Bld.

Memphis, TN. 38103

Charles H. Staples

Freeman, Whitfield, Montgomery & Walton

818 Olive Street

St. Louis, MO 63101

Attorneys for Caldwell Plaintiffs.

4. Janice Adams and Jack Adams, Jr., minors, by Jer-

rianne Adams, their natural guardian and next friend, and

Jerrianne Adams; Catherine M. Neel and Camille A. Neel,

minors, by Catherine M. Neel, their natural guardian and

next friend ,and Catherine M. Neel; Mary Edington and

Susan Edington, minors, by Horace Edington, their natural

guardian and next friend, and Horace Edington, the con-

cerned parents for neighborhood schools.

Anthony J. Sestric

1015 Locust Street, Suite 601

St. Louis, MO 63101

Attorney for the Adams Plaintiff.

5. The City of St. Louis.

Robert H. Dierker, Jr.

Assistant City Counselor

314 City Hall

12th and Market Streets

St. Louis, MO 63103

Attorney for the City of St. Louis.

6. The United States of America.

Joseph Moore

Assistant U.S. Attorney

U.S. Courthouse

i114 Market Street

St. Louis, MO 63101

Craig Crenshaw, Jr.

Linda Carter

Civil Rights Division

Appellate Section

U.S. Department of Justice

Washington, D.C. 20530

Attorneys for the United States of America.

7. Board of Education of the City of St. Louis and

Daniel L. Schlafly; Frederick E. Busse, Gordon L. Benson,

Maleolm W. Martin, Mrs. Anita L. Bond, Mrs. Joyce Bowen,

Henry M. Grich, Jr. (secretary), Rev. James L. Cummings

(president), Mrs. Erma J. Lawrence, Rev. Donald E. Mayer

(vice-president), Lawrence Moser, Charles Harris, and Ju-

lius C. Dix, Benjamin M. Price, Robert W. Bernthal, David

J. Mahan, Charles Brasfield (School District Superintend-

ent), and Robert E. Wentz (Superintendent of Schools).

John H. Lashly

Paul B. Rava

Lashly, Caruthers Law Firm

714 Locust Street

St. Louis, MO 63101

Robert H. Kapp

David S. Tatel

Allen R. Snyder

Hogan and Hartson

818 Connecticut Avenue, N.W.

Washington, D.C. 20006

Attorneys for the City Board Defendants.

8. Special School District of St. Louis County.

M. Peter Fisher

Mary Stake Hawker

Schmitz and Hawker

818 Olive Street, Suite 940

St. Louis, MO 63101

Ramon J. Morganstern

Michael J. MecKitrick

Morganstern, Sorghan, McKitrick and Garvin

773 Forsyth Blvd.

Clayton, Missouri 63105

Attorneys for Defendant Special School District of

St. Louis County.

9. Attorneys for various nonparty school districts ap-

pearing as amicus curiae.

George J. Bude

Attorney at Law

130 South Bemiston, Suite 405

Clayton, Missouri 63105

Donald J. Stohr

Attorney at Law

One Mercantile Center

St. Louis, Missouri 63101

Norman C. Parker

Attorney at Law

7711 Carondelet, 10th Floor

Clayton, Missouri 63105

Robert G. MeClintock

Attorney at Law

705 Olive Street, Rm. 722

St. Louis, Missouri 63101

Opinions Below

Jurisdiction

IIT,

The Court of Appeals below Applied an Improper

Standard in Determining the Effectiveness of a 1954

Desegregation Plan Implemented by the School

Board of the City of St. Louis, in that the Compari-

son of Racial Composition of pre- Brown Schools

with the Number of Predominantly Black Schools

in 1962 is Inherently Unreliable Because (1) There

were Massive Population Shifts Within the City

of St. Louis in the Interim and (2) There was an

Absence of Comprehensive Racial Data in the

Schools for the Interim Period Such that the Con-

tinuity of Racial Composition in the Schools Can-

not be Established but that what Evidence There

is does not Corroborate the Existence of Such Con-

SEE As Cie Pancbaturs se eiis natan ata vaseewe

. The Court of Appeals’ Finding of Liability Against

the State of Missouri is Erroneous Because (1) it is

Contrary to Due Process, (2) is Based upon Legal

Principles so Vague as to be Virtually Incompre-

hensible and Render the State a Virtual Guarantor

that its Political Subdivisions Obey Constitutional

Commands, Without any finding of Direct Par-

ticipation at the State Level and, (3) to the Extent

that the Finding of Liability requires the State of

Missouri to fund a Specifie Level of the Desegrega-

tion Plan, it Far Exceeds the Permissible Relief

Available Without a Finding of Participation by

A et eek suede debabertoat ba

The District Court Exceeded its Authority in Or-

dering the Preparation of a Plan of Voluntary Pupil

Exchanges Between the St. Louis School District

and Nonparty School Districts Because (1) an In-

terdistrict Violation has Neither been Pleaded nor

Proven, and (2) the District Court cannot, Con-

SCPCCECECPCRHORECOOCHOEOCECOC4OO88E8 6868.08 6.8

SPP CHE CEA Te Se Cee CeCe CHOCO E ODF AeVeces B

CB. O66: 682866 66.62 6

Reasons for Granting the Writ

VUur

sistent with Milliken v. Bradley, Order the State

of Missouri to Fund such a Voluntary Plan Simply

on the Basis of an Intradistrict Violation ........... 20

IV. The District Court Exceeded its Authority and Vio-

lated Due Process in Paragraph 12(b) of its May 21,

1980 Order, in Ordering a Plan for the Consolida-

tion or Merger and Full Desegregation of Separate

Vocational Educational Programs Operated by the

Special School District of St. Louis County and the

School District of the City of St. Louis Because (1)

Such Interdistrict Relief was not Encompassed

Within the Scope of Pleadings, and (2) There was

no Evidence to Support the Entry of Such an

QHEGE oss vbawckvetevnedcbeeuncnenueteneeeeae 24

V. The District Court Exceeded its Authority and

Violated Due Process in Paragraph 12(c) of its

May 21, 1980 Order in Which it Required the Sub-

mission of ‘**. . . a suggested plan of interdistrict

school desegregation necessary to eradicate the

remaining vestiges of government-imposed school

segregation in the City of St. Louis and St. Louis

County’’ Because, to Date, this Litigation has not

been Interdistrict in Scope and as a Result no Evi-

dence has been Introducted Which Would even

Remotely Call for the Submission of Such a Plan ....27

COGN io Soci ce dcuneicessccecestcsuseshameennenees 30

Appendix A (Opinion and Order of the United States

Court of Appeals for the Eighth Circuit issued on

WURCOaEy BE, FOOed ciscccacievansauetesenssuees A-1

Appendix B (Order of the United States Court of Ap-

peals for the Eighth Cireuit denying the petitions

for rehearing issued on March 19, 1981) .......... A-25

Appendix C (Order of the District Court dated Septem-

Der 37, TOGR) ie vecsvcnicucvecssasneducesneenens A-41

Appendix D (Order of the District Court dated Decem-

2 Peer A-47

Appendix E (Order of the District Court dated March 4,

| JM Tr A-51

Appendix F (Order of the District Court dated June 11,

BOGE). ce acntnnccnsewesdaubenaserccueeemaeeuee A-65

CITATIONS

Cases

Adams v. United States, 620 F.2d 1277 (8th Cir.

ge Pe Ae eres eres 3, 6, 14, 15

Adams v. United States, U.S. ___, 101 S.Ct. 88,

66 L.Ed.2d 29 (1980) ...-.ccccccsecccceccesceecees 3

Bradley v. School Board of City of Richmond, Virginia,

ee ee, Ge (EDV 8. 1978) 2... ccccssccvccends 18

Bradley v. School Board of City of Richmond, Virginia,

462 F.2d 1058 (4th Cir. 1972), aff’d 412 U.S. 92 ....18

Brown v. Board of Education of Topeka, 347 U.S.

Ns Sis Wl Sig wahco'n #0406 610 mn aye. o one eae 5

Brown v. Board of Education of Topeka, 349 U.S.

EE Git ba bn con 46s 0cek s dae ee wees es auneee 16

Calhoun v. Cook, 525 F.2d 1203 (5th Cir. 1975) .......... 23

Clark v. Board of Education of Little Rock School _

District, 369 F.2d 661 (8th Cir. 1966) .............. 17

Cole v. Layrite Products Company, 439 F.2d 958

MENGE dixwskson nce ssckldsvessndacse eases 13

Columbus Board of Education v. Penick, 443 U.S.

eR Gecad gels sca vawerharebeses seas 7

Cooper v. Aaron, 358 U.S. 1 (1958) ...........ccceeceees 15

Evans v. Buchanan, 582 F.2d 750 (3rd Cir. 1978) ........ 19

Fuentes v. Shevin, 407 U.S. 67 (1972) ............ 13, 26, 29

Goss v. Board of Education, City of Knoxville,

Tennessee, 340 F.Supp. 711 (E.D.Tenn. 1972),

aff’d 482 F.2d 1044 (6th Cir. 1973), cert. den’d

ee OE CUOOD Sicdddsccrvecvesscases 10, 11, 17

Green v. County School Board of New Kent County,

Virginia, 391 U.S. 490 (1968) ...cccccccccccccccces 17

Griffin v. School Board of Prince Edward County,

BEE Bits BAG A SOUOD ae bbc cca dh oe teeny cusses enedae's 15

Hills v. Gautreaux, 425 U.S. 284 (1976) ............06.- 21

Kemp v. Beasley, 389 F.2d 178 (8th Cir. 1968) .......... 17

Liddell v. Board of Education, City of St. Louis, 469

F.Supp. 1304 (E.D.Mo. 1979) .........sccceees 3, 6, 13

Liddell v. Board of Education, City of St. Louis, 491

F.Supp. 351 (E.D.Mo. 1980) .......... 3, 13, 20, 24, 28

Liddell v. Caldwell, 546 F.2d 768 (8th Cir.

ake cee rte baaas ssh cesses tS eERA Sv eede wes 3, 11

Milliken v. Bradley, 418 U.S. 717 (1974) ............ 21, 29

Milliken v. Bradley, 433 U.S. 267 (1977) ............085- 18

Norwood v. Harrison, 413 U.S. 455 (1973) ...........55- 16

Parratt v. Taylor, No. 79-1734 (49 U.S.L.W. 4509,

NE SE cob os ccs cae pasar es es beens sneer 16

Pasadena City Board of Education v. Spangler, 427

RIM A EOEE Nowe dtscsdececadcdnesescebaacesats 10

Swann v. Charlotte-Mecklenburg Board of Education,

403 UB. 1 (UGTA) co ccccsssccssssscscssseces 10, 17, 23

Miscellaneous

oe I I, FEED Bh on vt de senda scvsoseeedenses 2

mee, Comet, Art TEE 6 GOZO) 2 wiccccsccccccncncdvccvsce 27

i re NE ow, 5, vs us so snuskuesaberaneee 2

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI, et al.,

Petitioners,

Vv.

CRATON LIDDELL, et al.,

and,

EARLINE — et al.,

and,

JANICE ADAMS, et al,

and,

BOARD OF EDUCATION OF THE

CITY OF ST. LOUIS, et al.,

and,

THE CITY OF ST. eae MISSOURI,

and,

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioners, the State of Missouri, et al., respect-

fully pray that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Eighth Circuit entered on March 3, 1980, reversing

the judgment of the United States District for the Eastern

District of Missouri entered on April 12, 1979, and the judg-

ment and opinion of the United States Court of Appeals

for the Eighth Circuit entered on February 13, 1981, affirm-

ing the judgment of the United States District Court for

the Eastern District of Missouri entered on May 21, 1980.

OPINIONS BELOW

The opinions of the District Court are reported at 469

F.Supp. 1304 (E.D.Mo. 1979) and 491 F.Supp. 351 (E.D.Mo.

1980). The first opinion of the United States Court of Ap-

peals for the Eighth Circuit is reported at 620 F.2d 1277

(8th Cir. 1980). The second opinion of the Court of Appeals

is as yet unreported, but is reprinted herein as Appendix A.

A copy of the order of the United States Court of Appeals

for the Eighth Cireuit denying the petitions for rehearing

is printed herein as Appendix B.

JURISDICTION

The most recent judgment and mandate of the Court

of Appeals was filed on March 19, 1981. The jurisdiction

of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The United States Constitution, Amendment XIV, Sec-

tion 1.

‘*All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immanities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.’’

STATEMENT OF THE CASE

This is a school desegregation case which was initially

filed in 1972 by the Liddell group of plaintiffs against the

St. Louis Board of Education, its members, and certain

named administrators. The Liddell plaintiffs and the City

Board of Education entered into a consent decree which was

approved by the District Court on December 24, 1975. In

January of 1976 objections to the proposed consent decree

were filed by a second group of black parents, the Caldwell

plaintiffs, who were joined by the St. Louis chapter of the

NAACP. At this time the Caldwell group also moved to

intervene as party plaintiffs. The District Court’s denial

of the motion to intervene was reversed by the United States

Court of Appeals for the Eighth Cireuit. Liddell v. Cald-

well, 546 F.2d 768 (8th Cir. 1976).

Following the remand by the Court of Appeals, the

United States, the City of St. Louis, and the Adams group

were allowed to intervene as plaintiffs. Also during 1977

the State of Missouri, the Commissioner of Education of

the State of Missouri and the State Board of Education

and its individual members were added as defendants.

Following a trial on the merits the District Court handed

down its decision on April 12, 1979, and found that the St.

Louis City Board of Education had disestablished the for-

mer dual school system. Liddell v. Board of Education,

City of St. Louis, 469 F.Supp. 1304 (E.D.Mo. 1979). The

United States Court of Appeals for the Eighth Circuit

reversed and found that the formerly mandated dual school

system had not been disestablished. Adams v. United States,

620 F.2d 1277 (8th Cir. 1980). The Adams plaintift petition

for writ of certiorari was denied. Adams vy. United States,

U.S. —_, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980).

Following the remand by the Eighth Cireuit the St.

Louis Board of Education submitted its plan for desegre-

gation of the public school. After several days of hearings

in May of 1980 the District Court approved the plan in

an order entered May 21, 1980 and filed Findings of Fact

and Conclusions of Law on June 3, 1980. Liddell vy. Board

of Education, City of St. Louis, 491 F.Supp. 351 (E.D.Mo.

1980). In the course of the findings and order the District

Court concluded that the State of Missouri was the primary

constitutional wrongdoer and directed the State of Mis-

souri to fund one-half of the desegregation plan up to

approximately $11-million. The District Court also directed

the State defendants, the United States and the St. Louis

Board of Edueation to develop a plan for voluntary, co-

operative pupil exchanges with the school districts of St.

Louis County; to develop a plan for the consolidation and

merger of the separate vocational educational programs

of the Special School District of St. Louis County and the

School District of the City of St. Louis; and to develop

and submit to the court a suggested plan of interdistrict

desegregation necessary to eradicate the remaining ves-

tages of government-imposed school segregation in the

City of St. Louis and St. Louis County, Jd. at 353. The

judgment of the District Court was affirmed by the United

States Court of Appeals for the Eighth Cireuit in an

opinion entered on February 13, 1981. A copy of the opinion,

as yet unreported, is printed herein as Appendix A. Peti-

tions for rehearing were denied by the Court of Appeals on

Mareh 19, 1981. A copy of the order denying the petitions

for rehearing is printed herein as Appendix B.

During the pendency of the appeal to the Court of

Appeals, the Caldwell plaintiffs and the City Board of Edu-

cation filed motions for leave to amend their pleadings to

add some forty school districts as additional defendants and

to assert claims for interdistrict relief. The District Court

has not yet ruled upon these motions to amend.

Modifications to paragraphs 12(a) through 12(¢) of

the May 21, 1980 order were made by orders entered by

the District Court on September 17, 1980 and December 19,

1980. These orders are printed herein as Appendices C and

D. In an order entered on March 4, 1981, the District

Court directed the State defendants to prepare another plan

for a voluntary pupil exchanges pursuant to paragraph

12(a) of the District Court’s May 21, 1980 order. This order

is printed herein as Appendix FE. On June 11, 1981 the

District Court entered an order for the implementation for

the plan for vocational education. See Appendix F.

REASONS FOR GRANTING THE WRIT

The Court of Appeals below applied an improper stand-

ard in det. mining the effectiveness of a 1954 desegrega-

tion plan implemented by the School Board of the City of St.

Louis, in that the comparison of racial composition of pre-

Brown schools with the number of predominantly black

schools in 1962 is inherently unreliable because (1) there

were massive population shifts within the City of St. Louis

in the interim and (2) there was an absence of comprehen-

sive racial data in the schools for the interim period such

that the continuity of racial composition in the schools can-

not be established but that what evidence there is does not

corroborate the existence of such continuity.

Prior to 1954 the schools of the State of Missouri were

admittedly segregated by race pursuant to a constitutional

provision. However, even prior to this Court’s decision in

Brown vy. Board of Education of Topeka, 347 U.S. 483

(1954), the Board of Education of the City of St. Louis

began preparation for the institution of a desegregated

system, Thus on June 22, 1954 the Board of Education

adopted a plan for the desegregation of the St. Louis public

school system. The plan was to be completely effective

over the period of 1954 through 1956.

The essence of the desegregation plan adopted was

the assignment of all students to neighborhood schools.

To accomplish the elimination of overlapping attendance

zones for black and white students, new attendance zones

were drawn by use of IBM cards which contained the num-

ber of students and their grades for each city block in the

city. Names, addresses, and any racial data for these stu-

dents was not available in this process. In fact, since race

was eliminated as a criterion for admission or assignment

in the public schools, any reference to race was excluded

from the records of the school system until 1962 when a

racial count was taken pursuant to the recommendation of

the United States Commission on Civil Rights. The new

attendance zones were based on capacity of the individual

school buildings, the distance of students from the buildings

and the safety of the children, such as avoiding dangerous

intersections,

The Board of Education provided that students who

were already attending a school would have the option of

continuing in that school if the redistricting had placed

them in another attendance zone. This option would last

only so lone as the child attended that school and when he

moved on to the next level of schooling the student would be

required to attend the school in the appropriate attendance

zone. This provision was simply a continuation of a previous

policy under which a child could continue at a particular

school even if his residence had changed.

The District Court initially concluded that this plan

succeeded in effectively disestablishing previously mandated

dual system in the City of St. Louis. Liddell v. Board of

Education, City of St. Louis, 469 F.Supp. 1304 (E.D.Mo.

1979). The United States Court of Appeals for the Eighth

Cireuit reversed this finding and concluded that the dual

school system had not been disestablished. Adams v. United

States, 620 F.2d 1277 (8th Cir, 1980). Because racial data

was not kept between 1954 and 1962, there is only spotty

evidence regarding the racial composition of the St. Louis

public schools in the interim. The Court of Appeals’ con-

clusion is premised strongly on the fact that in 1962, when

records on racial composition were again kept, all twenty-

eight (28) of the formerly black elementary schools still

in existence were virtually all black and that fifty (50)

of the formerly white schools remained eight-five percent

or more white. Jd. at 1291.

This use of 1962 statistics, however, presumes a con-

tinuity of the racial composition of the schools in question.

Petitioners believe that such presumption is completely

unwarranted. Columbus Board of Education v. Penick,

443 U.S. 449, 472 (1979) (separate opinion of Mr. Justice

Stewart).

Not only is any presumption of continuity logically

unsound, but it is unsound in view of the particular facts

of the St. Louis situation. The period of 1954 through 1962

was one of widespread demographic change within the City

of St. Louis. From 1950 to 1960 the white population in

the City of St. Louis declined over 160,000, while black

population increased by over 60,000. The public school sys-

tem lost over 10,000 white students and gained over 29,000

black students. As a result, the system went from being

thirty-five percent black in 1954 to fifty-five percent black

in 1962.

Not only was this a case of a simple increase in the per-

centage of blacks in the City population as well as the

public school population, but there was a widespread move-

ment of blacks within the city itself. Liddell v. Board of

Education, City of St. Louis, supra at 1319. Fifty percent

of the black population moved out of elder black areas.

As a result, not only were the previously black schools

predominantly black in 1962 but thirty-six previously all

white schools had become over ninety percent black by

1962. The District Court concluded because of the rapid

demographic changes, the previously black schools, even

though predominantly black in 1962, were not vestiges of

the dual system. The District Court found that previously

white schools in the same area as the alleged ‘‘vestige’’

schools had experienced a racial inversion to predominant-

ly black. Liddell v. Board of Education, City of St. Louis,

supra at 1329 through 1330.

The Court of Appeals stated that the City Board could

have redrawn the boundaries to include significant numbers

of white students in formerly all black schools, without

sacrificing the neighborhood concept. Presumably if the

City Board had done this, the dual system would have been

considered disestablished. The question which needs to be

asked, however, is whether such an action by the City Board

would have had any measurable effect upon the composi-

tion of the schools in 1962.

The petitioners believe that there is no reasonable

basis from which it could be concluded that a ‘‘better’’

redistricting in 1954 would have been able to withstand the

demographic changes which the City of St. Louis was un-

dergoing. Petitioners believe, however, that in order for

schools in 1962 to be considered vestiges of the dual system,

it must be found that the actions of the Board in 1954 would

have made some appreciable difference in the 1962 composi-

tion. No such finding has been made and without such a

finding there would be a total absence of causality.

The Court of Appeals stated that the 1962 racial figures

were corroborative of what evidence there was concerning

the immediate effect of the 1954 desegregation plan. The

Court of Appeals first refers to 1955 ‘‘projections’’ which

indicated that forty-six of the eighty-three previously white

elementary schools would have an all white student popula-

tion. In the remaining thirty-seven schools the black popu-

lation would range from fifty-six percent to less than one

percent. The ‘‘projections’’ also indicate that twenty-seven

of the forty formerly black schools would remain all black

and that in the remaining thirteen the number of white

students would range from eighteen percent to less than

one percent.

Several factors need to be taken into account in asses-

sing this material. First, it must be remembered these are

‘*projections’’. Second, these estimates are based upon a

check of parental choices in the spring of 1955. Thus, the

estimates would take into account a parent’s preference

for use of the continuation transfer provision. The figures

do not indicate, however, the normal racial composition

of the new attendance zones. Third, the testimony imdi-

cated that these estimates were revised upward, apparently

because not all parents were able to take advantage of

their preference for the continuation transfer. In order for

a continuation transfer to be effective, there had to be space

available in the school previously attended and the student

had to provide his own transportation. Thus, the testimony

was that as implemented at least two thirds of the elemen-

tary school population in the City of St. Louis was attend-

ing racially mixed schools during the first year. Finally,

the effect of the continuation transfers would diminish as

the years passed because students would no longer be eligi-

ble for them as they graduated from the particular school

they had attended.

Similar factors undercut the Court’s reliance on the

first year high school figures. We do know that 40% of

the black students assigned to new schools chose to attend

the previously all black high schools. The absence of whites

in these schools can also be accounted for by the continua-

tion option because as Appendix IT to the Eighth Cireuit’s

opinion shows, the attendance zones for the formerly black

high schools, while heavily black, were racially mixed.

Adams vy. United States, supra at 1299,

It is well established that there is no constitutional

right to any particular racial balance in public schools.

Swamn v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1(1971). Thus, viewing the St. Louis publie school

system, petitioners believe that not only did the City Board

establish procedures to ensure that students would be

admitted to schools on a racially nondiscriminatory basis

but that this policy did lead to a substantial degree of

racial mixture, Certainly no student was excluded from

any school because of his race as indicated by the rapid

racial inversion of many formerly all white schools. The

Board’s policy, therefore, not only reflected the composi-

tion of existing neighborhoods but, more importantly,

changes therein, Goss v. Board of Education, City of Knoz-

ville, Tennessee, 340 F.Supp. 711 (E.D.Tenn. 1972), aff’d

482 F.2d 1044 (6th Cir. 1973), cert. den’d 417 U.S, 1171

(1974).

In order for the City Board to have met the standards

of the Court of Appeals in 1962, it would have been required

to make yearly adjustments in its assignments of students.

Such yearly adjustments are not required and are beyond

the jurisdiction of a federal court to order. Thus, to base

the question of effectiveness of the 1954 plan to a large

degree on the racial composition of the schools in 1962

would be to require what the District Court or Court of

Appeals could not have ordered directly. Pasadena City

Board of Education v. Spangler, 427 U.S. 424 (1976).

Thus, the racial composition of the schools in 1962 is not

relevant to the question of whether the Board’s 1954 plan

was effective. Rather, the composition of the schools in

1962 is primarily relevant to the City Board’s evidence

that the schools were resegregated through demographic

changes. Here, however, the Court of Appeals totally mis-

conceived the proper mode of analysis of this evidence. The

Court of Appeals stated that they took this into account

in determining the appropriate remedy. Adams v. United

States, supra at 1291. Petitioners respectfully suggest that

this evidence is not primarily related to the appropriate

remedy. Rather, the evidence of resegregation and demo-

graphic changes is relevant to the question of whether or

not racial imbalance in 1962 and afterwards is a vestige of

the previously dual school system. By considering this evi-

dence only on the question of remedy, the Court of Appeals

in effect denied the City Board a chance to prove that later

racial imbalance was a result of other factors, rather than

the dual school system. It is interesting to note that the de-

segregation plan approved in Goss, supra, was virtually

identical to that which the St. Louis Board of Education

adopted without court order 36 days after this Court’s

decision in Brown, The court in Goss declared the Knoxville

school system unitary. The primary difference between St.

Louis and Knoxville seems to be that Knoxville had a

relatively stable black population, while St. Louis did not,

The Court of Appeals simply never recognized that a

dual school system may be disestablished by natural social

forces as much as by any deliberate action of a governmental

body. The crucial question which the Court of Appeals

adroitly avoided is whether or not the St. Louis school sys-

tem would be any different today if there had been an

effective dismantling as the Court of Appeals implied could

have been done in 1954.

The Court of Appeals’ analysis of these complex issues

is both hasty and shallow. However, indications of the

Court of Appeals’ haste to decide this case were present

as early as 1976 when this case was before the Court of

Appeals for the sole purpose of deciding whether or not

additional parties should be permitted to intervene. Liddell

v. Caldwell, 546 F.2d 768 (8th Cir. 1976). In the course of

that decision the Court of Appeals stated:

‘“‘The parties were faced with an admittedly de

jure segregated school system .. .’’ 7d. at 772.

‘‘In no event should implementation of plans for

a unitary school system be delayed beyond the com-

mencement of the 1977-78 school term.’’ Id. at 774.

The above statement clearly assumes, prior to any trial

on the merits, that the St. Louis school system was not

unitary. In short, the Court of Appeals in its rush to reverse

the District Court and to reaffirm its own opinion of four

years previously, employed a totally inaccurate test of the

effectiveness of the desegregation plan, and in effect, denied

the City Board a proper consideration of its defense.

Il.

The Court of Appeals’ finding of liability against the

State of Missouri is erroneous because (1) it is contrary to

Due Process, (2) is based upon legal principles so vague

as to be virtually incomprehensible and render the State a

virtual guarantor that its political subdivisions obey con-

stitutional commands, without any finding of direct par-

ticipation at the State level and, (3) to the extent that

the finding of liability requires the State of Missouri to

fund a specific level of the desegregation plan, it far exceeds

the permissible relief available without a finding of par-

ticipation by State officials.

The role of the State of Missouri in this litigation over

the years has admittedly been fraught with confusion as

a result of the procedural morass which has developed.

Neither the State of Missouri nor any State officers were

named defendants when this action began in 1972, The State

of Missouri, the State Board of Education and the State

Commissioner of Education were added as party defendants

in July 1977 after the case had been remanded from the

Court of Appeals with direction to order the intervention

of another class of plaintiffs represented by the NAACP.

(The other State defendants were added in 1980, after judg-

ment). Even though named as defendants, no complaint

was ever filed against the State or its officers. The first

complaint was actually filed in June of 1980 after the trial

on the merits, the decision by the District Court, and the

reversal and remand by the Court of Appeals. The purpose

of the amended complaint against the State was ostensibly

to conform to the issues tried by consent. Since there was

no complaint against the State to begin with it is highly

questionable whether the complaint was properly filed after

judgment. There were no pleadings against the State to

be ‘‘realigned.’’ Cole v. Layrite Products Company, 439

F.2d 958 (9th Cir. 1971). The petitioners, therefore, had no

opportunity to defend in any meaningful manner because

they had no notice of any particular allegations against

them, Fuentes v. Shevin, 407 U.S. 67 (1972). “As pointed

out infra, most cases discussing State liability do so on

the basis of specific evidence of State involvement. The

petitioners reasonably expected it would be the same here.

In any event, following the trial on the merits the

District Court found that the State of Missouri promptly

repealed statutes implementing its constitutional provision

and later passed legislation outlawing discrimination in

public accommodations, which included schools. Liddell vy.

Board of Education, City of St. Louis, 469 F.Supp. 1304,

1313-1314 (E.D.Mo. 1979).

In its opinion on the appeal from the District Court’s

decision, the Court of Appeals had no discussion at all

concerning State liability. The Court of Appeals remanded

for implementation of a desegregation plan.

Following a remedy hearing the District Court en-

tered an order on May 21, 1980, which ordered the State to

fund one-half of the desegregation plan up to approximately

eleven million dollars. Liddell vy. Board of Education, City

of St. Louis, 491 F.Supp. 351, 353 (.D.Mo, 1980).

On June 3, 1980, the Court entered Findings of Fact

and Conclusions of Law, which found that the State ‘‘never

took any effective steps to dismantle the dual system .. .”’

Td, at 357. As a matter of law the Court then concluded that

the State Defendants were the ‘‘primary constitutional

wrong-doers,’’

On appeal from this decision, the State Defendants

urged that the Court of Appeals had not reversed the Dis-

trict Court’s earlier finding of nonliability on the part of

the State and that therefore the District Court was with-

out jurisdiction to make any new findings with regard

thereto. The Court of Appeals rejected this argument as

follows:

‘*This contention is wholly without merit. In our

March 3 opinion, we spjecifically recognized the causal

relationship between the actions of the State of Mis-

souri and the segregation existing in the St. Louis

school system. Furthermore, we expressly directed the

district court to apportion the costs of the desegrega-

tion plan among the defendants. Adams v. United

States, supra, 620 F.2d at 1295 n.28. These statements

amount to a clear reversal of the district court’s find-

ings concerning the liability of the State, and the

State has chosen not to seek review of that decision

in the Supreme Court... .’’ (Appendix A at 22) (Em-

phasis added).

The State Defendants submit that any reasonable read-

ing of the Court of Appeals first opinion will not demon-

strate the existence of a ‘‘clear reversal’’ on the issue of

State liability. Following the direction to apportion costs

the Court referred to Part VI of its Opinion, Part VI, how-

ever, did not deal with any failure to disestablish the dual

school system in the City of St. Louis which was the basis of

the District Court’s finding of liability. Rather, Part IV

simply refers to other segregative factors which intensified

racial segregation. If the Court of Appeals intend 4 to find

the State Defendants liable on this basis, the District Court

certainly did not do so. In addition, it would be stretching

the rules of procedure to the breaking point to assert that

the State Defendants had any sort of notice at all that

their liability was going to be grounded on something

other than educational policy. It is interesting to note that

when other parties pressed for a finding of liability against

the United States, the United States argued that the

language of Part VI of the Opinion of the Court of Ap-

peals was an insufficient finding as to liability.

Further, the simple direction to apportion costs con-

tained in the footnote conflicted with some more specific

directions in the Court’s Opinion. For instance, after dis-

cussing pupil reassignments the court directs that the City

Board should use other techuiques and ‘‘shall seek the

help of the state and federal governments in financing.’’

Adams vy. United States, supra at 1296. This specific direc-

tion does not give any indication of potential state liability

to fund one-half of the desegregation plan, up to approxi-

mately eleven million dollars. The State Defendants submit

that if there was a reversal of the District Court’s finding

on the issue of State liability it was of such an obscure na-

ture that it fully explains why the State defendants did

not seek relief in this Court earlier.

Initially it should be noted that in single district de-

segregation cases the state involvement has not as a gen-

eral rule been discussed. Where there has been some state

involvement, the courts have always examined the evidence

specifically implicating the state as opposed to that against

a local board. The State of Missouri, however, has not

been found to have committed any affirmative action to

hinder or circumvent desegregation. Griffin v. School Board

of Prince Edward County, 377 U.S. 218 (1964). Cooper vy.

Aaron, 358 U.S. 1 (1958). Norwood vy. Harrison, 413 U.S.

455 (1973). Instead, the State of Missouri repealed all of its

statutes which had implemented its constitutional pro-

vision. It enacted legislation prohibiting diseriminaton in

public accommodations, which statute included schools

and established an administrative procedure to enforce that

prohibition, Thus, the State of Missouri did not simply just

abandon its previous policy of segregation, it affirmatively

prohibited it and provided an administrative remedy, in

addition to whatever judicial relief would be available

to enforce the statutory prohibition. In this day and age

no state can act as an absolute guarantor that any of its

citizens will not be subject to discrimination of one sort

of another, even at the hands of political subdivisions of

the state. Petitioners submit, however, that the State meets

its affirmative obligations under the Fourteenth Amend-

ment by providing a remedy for any such violation. In the

related area of deprivation of property without due

process of law, it has been held that a state does not violate

the Fourteenth Amendment as long as it provides a remedy

for any such deprivation that takes place. Parratt v.

Taylor, No. 79-1734 (49 U.S.L.W. 4509, May 18, 1981). In

t!'e instant case, however, the effectiveness of the plan

stituted by the City Board was not challenged for

ighteen years.

Even if the State Board of Education had promulgated

and enforeed general guidelines on desegregation, the ques-

tion becomes what would have been the result of any of these

policies. To all appearances the School Board of the City of

St. Louis had completely disestablished its dual system by

1956. Brown v. Board of Education of Topeka, 349 U.S. 294

(1955), indicated only that school districts should admit stu-

dents on a nonracial basis. Further, courts had approved the

development of neighborhood attendance zones, the very

manner in which the St. Louis City Board had chosen to

meet this Court’s mandate under Brown II. The fact that

racial imbalance might have remained would not have been

enough to put any State official on notice that any further

action was required. In Clark vy. Board of Education of Lit-

tle Rock School District, 369 F.2d 661 (8th Cir. 1966), the

court acknowledged that the constitutionality of a plan did

not depend upon favorable statistics indicating positive

integration of the races and approved neighborhood schools.

See also Kemp v. Beasley, 389 F.2d 178 (8th Cir. 1968).

In Green vy. County School Board of New Kent

County, Virginia, 391 U.S. 430 (1968), this Court indi-

cated that a school district would have to do more than

allow students of one race to attend schools previously

designated for the other. The St. Louis City Board, how-

ever, had already done much more than that. Even follow-

ing this Court’s opinion in Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1 (1971), a plan almost

identical to that adopted by the City Board was approved.

Goss v. Board of Education, City of Knoxville, Tennessee,

340 F.Supp. 711 (E.D.Tenn. 1972), aff’d 482 F.2d 1044

(6th Cir. 1973), cert. den’d 414 U.S. 1171 (1974). Thus, at

least up until the time this lawsuit was filed, there is really

nothing to put State officials on notice that the plan

adopted by the City Board was ineffective. The evidence

in this case indicates that the State of Missouri took the

necessary and appropriate steps to reniove the legal under-

pinnings of segregated schooling as well as affirmatively

prohibiting such discrimination. The evidence fails to estab-

lish that State officers exercised or failed to exercise their

authority in a manner inconsistent with constitutional ob-

ligations.

The issue of State liability, therefore, resolves itself

into a conclusion that because the City School Board was

found to have failed to dismantle the dual system, the

State is automatically liable. Because all previous cases

which have discussed the issue of State liability have spe-

cifically discussed and considered the evidence as it re-

lated to State activities either hindering or opposing de-

segregation, the foregoing basis of State liability stands

out as unique. Petitioners submit, therefore, that such a

radically new standard of State liability should be con-

sidered by this Court.

Assuming arguendo that there is some basis for a find-

ing of State liability, the question becomes whether a

specific decree ordering the State to fund one-half of the

desegregation plan is authorized by such a finding.

Significant State involvement was mound in Bradley

v. Sch ol Board of City of Richmond, Virginia, 338 F.Supp.

67 (E.D.Va. 1972). Although that decision was ultimately

reversed, Bradley v. School Board of City of Richmond,

Virginia, 462 F.2d 1058 (4th Cir. 1972), aff’d 412 U.S. 92,

it is interesting to note that in formulating its relief the

state officials were simply directed to take certain actions

which the district court considered necessary for effective

desegregation, There was no blanket assessment of liability

for any particular monetary amount. The state and the

state officials were left free to determine how best and

most effectively to comply with the district court’s order.

Petitioners believe that the District Court’s order re-

quiring the State to pay one-half of the cost is an un-

warranted intrusion upon the State appropriation process.

As Mr. Justice Powell noted in Milliken v. Bradley, 433

U.S. 267, 295 (1977):

‘‘Ordinarily a federal court’s order that a State pay

unappropriated funds to a locality would raise the

gravest constitutional issues... .’’

Petitioners believe those issues are raised in this case

and that the factual basis which justified the imposition of

the order aganst the State of Michigan simply do not exist

in the instant case. Even assuming arguendo that there is

a basis for State liability the District Court could order

the State and State officers as well as the City Board,

what they need to do in order to meet their constitutional

obligation. This would not necessitate any specifie order

or provision relating to funding. As the NAACP noted in

one of their earlier briefs in this case, ‘‘[t]o a large extent,

how a state fulfills its constitutional duty is its own busi-

ness.’’ The petitioners respectfully suggest that State of-

ficers are the best judge of how best to meet whatever a court

determines to be their constitutional obligations, consistent

with all of the other duties which are imposed upon them.

For instance, the initial order by the District Court stated

that the State funds should come out of the State surplus.

At the time that order was entered the State of Missouri

did indeed have a surplus. However, that situation changed

rather rapidly and the state is now in a serious fiscal situa-

tion. Given the situation facing the State of Missouri at the

present time, the petitioners believe that the State and its

officers are in a better position than the District Court

to make a judgment as to how that obligation can best be

met.

Obviously the District Court was concerned about the

successful implementation of a desegregation plan. How-

ever, this concern does not justify the specific order en-

tered by the District Court. In Evans v. Buchanan, 582

F.2d 750, 779-780 (3rd Cir. 1978), the District Court had

also been concerned that state funding would not be ade-

quate to implement the desegregation order. In response,

the Court of Appeals stated:

‘‘Our observation is that this overlooks the critical,

and incontrovertible, proposition that any money

budgeted by the State to the Northern New Castle

County school system must be used by the NCCPBE,

first, to effect the desegregation order, and then to

meet the expenses of other programs. Put another way,

it is the NCCPBH’s responsibility to work with the

money it has by attending first to all aspects of the

remedial order, and then to other aspects of the school

system’s expenses. .. .’’ (Empasis in original).

Petitioners submit, therefore, that even if there is a

basis for finding State liability, the Distriet Court ex-

ceeded its authority in ordering the State to fund any par-

ticular portion of the desegregation plan.

III.

The District Court exceeded its authority in ordering

the preparation of a plan of voluntary pupil exchanges be-

tween the St. Louis School District and nonparty school

districts because (1) an interdistrict violation has neither

been pleaded nor proven, and (2) the District Court cannot,

consistent with Milliken v. Bradley, order the State of

Missouri to fund such a voluntary plan simply on the basis

of an intradistrict violation.

In paragraph 12(a) of its May 21, 1980 order, the Dis-

trict Court required the State defendants, the United

States, and the St. Louis Board of Education to:

‘*(MJjake every feasible effort to work out with the

appropriate school districts in the St. Louis County

and develop, for 1980-81 implementation, a voluntary,

cooperative plan of pupil exchanges which will assist

in alleviating the school segregation in the City of

St. Louis... .’’ Liddell vy. Board of Education, City of

St. Louis, 491 F.Supp. 351, 353 (.D.Mo. 1980).

In their application for stay to this Court, the petition-

ers argued that such an order exceeded the District Court’s

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

In the instant case, as in Milliken, there has not been

a finding of any interdistrict violation involving the school

districts of St. Louis County. The present litigaton has

simply not been interdistrict in scope. This is rather em-

pathically demonstrated by the fact that it was only in

January of 1981, that the City Board and the NAACP

sought leave to amend their pleadings, both to add forty

additional school districts as parties and to state a claim

for interdistrict violations. Throughout the course of this

litigation, the general response to the petitioners’ asser-

tion that the District Court had exceeded its authority was

simply that this was a ‘‘voluntary’’ plan, which could not

be enforced. Appendix A at 15.

However, in response to the petitioners’ application for

stay to this Court, the NAACP stated that the State de-

fendants may be required to participate in this ‘‘voluntary’’

plan, The District Court order of December 19, 1980, pro-

vides that the 12(a) plan will be primarily financed by the

State. Appendix D. The issue thus becomes whether a find-

ing of an intradistrict violation, by the State of Missouri,

if upheld by this Court, can provide the support for an

order to bear the costs of a plan of voluntary exchanges.

The plaintiffs and the City Board apparently rely upon

this Court’s opinion in Hills v. Gautreaux, 425 U.S. 284

(1976) for the proposition that such an order is permissi-

ble. The petitioners submit that Hills is distinguishable in

several significant areas and that the plaintiffs and the

City Board have completely misinterpreted its thrust.

With regard to the effect of Milliken upon the relief

ordered by the Court of Appeals, this Court stated:

‘*Nothing in the Milliken decision suggests a per

se rule that federal courts lack authority to order par-

ties found to have violated the Constitution to under-

take remedial efforts beyond the municipal boundaries

of the city where the violation occurred. . . .’’ Jd. at 298.

The yp: titioners submit, however, that neither is there a per

se rule that justifies such a remedial order on the basis

of an intradistrict violation even if participation by other

governmental units is voluntary. As this Court noted in a

footnote to the foregoing statement :

‘*Although the State of Michigan had been found

to have committed constitutional violations contribut-

ing to racial segregation in the Detroit schools, ... the

Court in Milliken concluded that the interdistrict order

was a wrongful exercise of judicial power because

prior cases had established that such violations are to

be dealt with in terms of ‘an established geographich

and administrative school system,’ .. .’’ Id. at 298

n.13. (Emphasis added).

Thus, the Milliken opinion, as well as that in Hills, recog-

nizes that the history of desegregation litigation has estab-

lished the normal scope of appropriate relief as a single

school district and that this may be expanded only on the

basis of an interdistrict violation, as defined in Milliken.

A further distinction between Hills and a_ school

desegregation case, such as we have here, is that the is-

sue is whether or not the remedy exceeds the violation which

has been found, The court in Hills reaffirmed the principle

that federal courts may act only ‘‘on the basis of a con-

stitutional violation.’’ 7d. at 295.

The specific constitutional violation of whch the State

of Missouri has, to date, been found guilty is the failure

to disestablish its previously mandated dual school sys-

tem in the City of St. Louis. The disestablishment of a

dual school system does not necessitate reaching any par-

ticular degree of racial balance in schools. Swann v. Char-

lotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

The fact that the plan approved by the District Court and

affirmed by the Court of Appeals leaves a terge number

of black children in racially imbalanced schools does not

in any sense imply that the intradistriet violation of which

the State of Missouri has been found guilty has not in

fact been remedied. Calhoun v. Cook, 525 F.2d 1203 (5th

Cir. 1975). In Hills this Court concluded that the order

against HUD did not exceed the nature of the violation

found. There is not evidence to support the conclusion

that remaining racial imbalance stems from any consti-

tutional violation by the State of Missouri. The remedy

proposed in paragraph 12(a), therefore, far exceeds the

nature of the constitutional violation of which the State

of Missouri has been found guilty.

Finally, this Court in Hills outlined possible forms

that relief against HUD could take which would not over-

step ‘‘the limits of judicial power established in the Milli-

ken case.’’ It should be noted that all of the suggested

remedial actions did not entail a restructuring of HUD’s

activities. In other words, HUD was not ordered to operate

in a geographical area it was not otherwise authorized to

or to exercise powers which it did not in fact already exer-

cise. The contemplated order would only provide more

specific directions as to how HUD should exercise the

powers it already possessed.

In the instant case, however, an order that the State

of Missouri fund and participate in a voluntary interdis-

trict transfer plan would involve a major change in State

operations. A voluntary plan under paragraph 12(a) of the

District Court’s order, would impose a major new financial

burden upon State operations. As this Court noted in Hills

the power to restructure the operation of both local and

state governmental entities may be exercised only on the

basis of a constitutional violation. To the extent thet that

restructuring involves interdistrict operations not normally

undertaken by the State of Missouri, it can be imposed

only on the basis of an interiistrict violation as defined

in Milliken. Petitioners submit, therefore, that the 12(a)

voluntary plan ordered by the District Court far exceeds

its permissible authority under both Milliken and Hills.

LV.

The District Court exceeded its authority and violated

Due Process in paragraph 12(b) of its May 21, 1980 Order,

in ordering a plan for the consolidation or merger and

full desegregation of separate vocational educational pro-

grams operated by the Special School District of St. Louis

County and the School District of the City of St. Louis

because (1) such interdistrict relief was not encompassed

within the scope of pleadings, and (2) there was no evidence

to support the entry of such an order.

In paragraph 12(b) of its May 21, 1980, Order, the

District. Court ordered the State defendants, the United

States, and the St. Louis Board of Education:

‘*To develop and submit to the Court by Novem-

ber 1, 1980, a plan for the consolidation or merger and

full desegregation of the separate vocational educa-

tional programs operated by the Special District of

St. Louis County and the school district of the City

of St. Louis, for implementation in the 1981-82 school

year.’’ "iddell v. Board of Education, City of St.

Louis, 491 F.Supp. 351, 353 (K.D.Mo. 1980).

The only finding underlying this Order was contained in

paragraph 17 of the District Court’s Findings of Fact and

Conclusions of Law entered on June 3, 1980,

‘The existing dual system of vocational educa-

tion split between the City and St. Louis County is

neither educationally sound nor administratively ef-

ficient. These systems, established in 1965 and 1967,

are further evidence of the continuing failure of the

State to take any effective measures to disestablish

the dual system in the State. The State has the power

to effectively merge these systems. Its failure to exer-

cise that power is part and parcel of its failure to

take affirmative steps to eradicate root and branch

the dual system it once formally mandated.’’ //. at 358.

Since the petitioners filed their motion for stay of the

Court of Appeals mandate in March of this year, the spe-

cial school district of St. Louis County has engaged in

negotiation with other parties and has arrived at a tenta-

tive consent decree which provides for the continued

separate existence of the special school district but would

provide for voluntary joint programs between it and the

St. Louis City school system. The District Court did not

formally approve the consent decree but entered an order

incorporating its basic provisions and providing for fund-

ing by the State beyond what it consented to. The Court

has, therefore, imposed a mandatory interdistrict remedy.

Appendix F.

As initially ordered, paragraph 12(b) of the District

Court’s Order called for a mandatory interdistrict remedy

justified neither by the pleadings nor the evidence up to

the time of its entry.

The petitioners asserted on appeal that the entry of

this Order was beyond the jurisdiction of the District

Court to enter. This argument was effectively ignored by

the Court of Appeals in its decision when it stated:

‘Section (b) of paragraph 12 is also consistent

with the district court’s responsibility to order a

remedy for existing constitutional violations. . . . See-

tion (b), therefore, was designed to remedy a viola-

tion of the State of Missouri. Moreover, the Special

District has now been joined as a party defendant in

this lawsuit. We see no reason to prevent the opening

of a consolidated integrated vocational school at the

beginning of the 1981-1982 school year.’’ Appendix A

at 15.

The logical outcome of the Court of Appeals’ conclusion

is that a federal court has the authority to remedy any

constitutional violation which only inferentially arises from

a lawsuit, even when the parties have had no notice of any

such alleged violation and an opportunity to defend against

it. Due process, at the very least, requires the opportunity

to be heard at a meaningful time and in a meaningful

manner, Fuentes v. Shevin, 407 U.S. 67 (1972).

Quite apart from the jurisdictional and procedural

aspects of 12(b), the Court’s finding underlying it was

simply incorrect, a fact not surprising since there was no

notice that such an issue would be tried by the District

Court. The State did not create the special school district.

It was created in 1957 by vote of the citizens of St. Louis

County for the purpose of providing special education for

students in all twenty four school districts of St. Louis

County. In 1965, by means of another election, its authority

was expanded to include vocational education. Also in 1965

the State Department of Education designated the Special

School District, at its request, as an area vocational school.

This designation carried with it the ability to receive in-

creased funding but the existence of the Special School

District and its ability to operate vocational programs was

not in any way contingent upon such a designation.

Throughout this period of time the City of St. Louis

had been operating its own vocational program. In 1967

it also sought and received designation as an area school

for purposes of increased funding. Again, the authority

of the St. Louis City School District to operate its own

vocational programs was not dependent in any way upon

this designation. Further, the State does not, contrary to

the assertion of the District Court, have the authority to

merge these systems. Simply removing the designation

as an area school would not have affected the authority

of either district to provide vocational education. Further,

any attempt to consolidate the two districts would have

been a violation of Art. IIT, § 40(20) of the Missouri Con-

stitution which prohibits the General Assembly from pass-

ing any local or special laws ‘creating new townships or

changing the boundaries of townships or school dis-

tricts;...’’ Thus, neither the pleadings nor the evidence

before the District Court justifies the sort of mandatory

relief contemplated by paragraph 12(b).

In their earlier motion for stay of the mandate of the

Court of Appeals, petitioners noted the possibility that the

State of Missouri may be required to fund even a voluntary

agreement under 12(b). This possibility has come to

pass in view of the events outlined above. However,

even assuming that the Special School District of St.

Louis County is willing to volunteer for purposes of

this program, mandatory participation by the State of

Missouri would exceed the jurisdiction of the District

Court both for the reason that the specifie finding of

the District Court relating to vocational educational is

neither factually or jurisdictionally proper and for the

reason that the general finding against the State of

Missouri that it had failed to disestablish its dual school

system in the City of St. Louis is an inadequate basis for

mandatory funding of a voluntary plan. See argument in

the preceding point regarding the 12(a) plan.

The District Court exceeded its authority and violated

Due Process in paragraph 12(c) of its May 21, 1980 Order

in which it required the submission of ‘‘. . . a suggested

plan of interdistrict school desegregation necessary to eradi-

cate the remaining vestiges of government-imposed school

segregation in the City of St. Louis and St. Louis County’’

because, to date, this litigation has not been inter-district

in scope and as a result no evidence has been introduced

which would even remotely call for the submission of such

a plan.

In paragraph 12(¢) of its May 21, 1981 Order, the Dis-

trict Court ordered the State defendants, the United

States and the St. Louis Board of Education ‘‘to develop

and submit to the Court by November 1, 1980, a suggested

plan of inter-district school desegregation necessary to

eradicate the remaining vestiges of government-imposed

school segregation in the City of St. Louis and St. Louis

County.’’ Liddell v. Board of Education, City of St. Louis,

491 F.Supp. 351, 353 (E.D.Mo. 1980),

At the present time the reporting and filing dates

under this portion of the District Court’s Order have

been temporarily suspended. However, since this suspen-

sion could be lifted at any time, the issue of the validity

of 12(¢) remains viable.

The petitioners believe that the basic impropriety of

paragraph 12(c) is that at the time of its entry and even

at the present time, this litigation has not been inter-

district in scope. As noted earlier in this petition, it was

not until January of 1981 that the City School Board in

the NAACP sought leave to amend their pleadings both

to add forty additional school districts as party and to

state claims for interdistrict violations. To date those mo-

tions to amend have not been ruled upon. Since the Dis-

trict Court is requiring the submission of a possible remedy

before. even hearing the evidence on the existence or

nonexistence of a constitutional violation, it would appear

to be a classic case of putting the cart before the horse.

It almost goes without saying that an interdistrict remedy

must be premised upon an interdistrict violation and that

the remedy must fit the scope of the violation. Milliken

v. Bradley, 418 717 (1974). Further, submission of such a

plan in advance of any finding of Constitutional violations

would compromise the petitioners’ right to be heard at a

meaningful time and in a meaningful manner, Fuentes y.

Shevin, 407 U.S. 67 (1972).

In its February 13, 1981 Opinion the Court of Appeals

stated as follows with regard to paragraph 12(¢) of the

District Court’s Order.

“*(T ]o the extent that the segregation was imposed by

County school districts which are not parties to the

lawsuit and which have not been designated as con-

stitutional violators, it cannot be considered to be

‘government-imposed.’ But, to the extent that any

such segregation was imposed by the State or other

defendants, and to the extent that those defendants

have the power to remedy the violation, it is proper

for the district court to order them to take steps to do

so.’’? Appendix A at 16.

Thus, the Court of Appeals is again affirming the

power of the District Court to remedy whatever it pre-

ceives as constitutional violations. Petitioners believe

that they should have notice of such allegations and

the opportunity to defend against them. It is very little

consolation to the petitioners that paragraph 12(c¢) re-

quires only the submission and not the implementation of

a plan, as has been frequently argued by other parties to

this litigation. The fact of the matter is that if the pe-

titioners were to submit any sort of plan, they would in

effect have to admit that there are vestiges of State-

imposed segregation between the City of St. Louis and

St. Louis County. To require a party to make any ad-

missions at all under the guise of a court order, is a clear

abuse of judicial authority. In an earlier brief the NAACP

urged the Court of Appeals below to put Missouri in its

‘constitutional place’’. While the petitioners would not

be so blunt about the matter, it is their position that the

Court’s entry of paragraph 12(¢) of its Order, as well as

paragraphs 12(a) and 12(b), call out for the exercise of

this Court’s supervisory authority over the lower federal

courts.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

Joun ASHCROFT

Attorney General

Larry R. MASHALL

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

314-751-3321

COUNSEL FOR PETITIONERS

Rosert Presson

Assistant Attorney General

of Counsel

June, 1981

APPENDICES

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand, on behalf of them-

selves and ail other schoolage children and their

parents residing in the metropolitan school district

of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and Cath-

erine Neel; Mary Edington and Susan Edington,

Minors, by Horac+ Edington, their Natural Guard-

ian and Next Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

Appellants,

and

Mary Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anje

ae representing the “Involved Citizens Com-

United States of Ameri eee

n tes o erica,

A from the

Agpetice, United Stater

v. nay oy Court

Board of Education of the City of St. Louis and a

Daniel L. Schlafly, Frederick E. Busse, Gordon L. cones.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secre-

A-2

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellees,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand; on behalf of

themselves and all other school-age children and

their parents residing in the metropolitan school

district of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellees,

City of St. Louis,

Appellee,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and

Catherine Neel; Mary Edington and Susan Eding-

ton, Minors, by. Horace gton, their Natural

Guardian and Next Friend, and Horce Edington;

The Concerned Parents for Neighborhood Schools,

and

Mary Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anjela

po mer representing the “Involved Citizens com-

United States of America,

Appellee,

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick E. Busse, Gordon L.

No. 80-1494

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secretary),

Rev. James L. (President), Mrs. Erma

J. Lawrence, Rev. E. ne ee Presi-

, Charles Brasficld (School District

and Robert E. Wentz (Superin-

tendent of Schools),

Appellees,

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next tag and Minnie per a a Jo-

themselves and all other school-age children and

their parents resi in the metropolitan school

district of the City of St. Louis, Missouri,

Appellants,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cerdric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and Cath-

oe Bag Mary Edington and Susan Edington,

Horace Edington, their Natural Guard-

a rm ext Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

and

Mary Puleo, Puleo, Emma Dannenbe

Robin aden i Louis Reineri and Mary Anje

A-4

Reineri, representing the “Involved Citizens Com-

mittee”

United States of America,

Vv.

Board of Education of the City of St. Louis and

Daniel L. xo yt Frederick E. Busse, Gordon

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, ‘Henry M. Grich, Jr. (Secre-

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellees,

and

The State of Missouri, Arthur Mallery, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education,

Appellees.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

a a, by Barbara Goldsby, her

Mother and Next d, and Barbara Goldsby;

Deborah _ aye a + ng Samuel Yarber, her

Fathe. and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Nuxt Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next 2’ iend, and Lois LeGrand, on behalf of them-

selves and all other school-age children and their

parents residing in the metropolitan school district

of the City of “st. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, ‘Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellants,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and Cath-

erine Neel; Mary Edington and Susan Edington,

Minors, by Horace Edington, their Natural Guard-

A-5

ian and Next Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

and

Mary Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anjela

sec representing the “Involved Citizens Com-

United States of America,

Appellee,

Vv.

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick E. Busse, Gordon L.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secre-

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellee,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand, on behalf of them-

selves and all other school-age children and their

parents residing in the metropolitan school district

of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, ‘Gwendolyn Daniels, Cedric Wil-

liams, e Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellants,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

No. 80-1599

A-6

Friend, and dortieame Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

a te vary lan and Next Friend, “Edington,

e ee jusan gton,

Minors, by Horace Edington, their Natural Guard-

ian and Next Friend, and Horace Edin

Concerned Parents for Neighborhood Schools,

and

Mary Puleo, Gerard Puleo, Emma Dannenbe

Robin Dannenberg, Louis Reineri and Mary Anje a

Reineri, representing the “Involved Citizens Com-

mittee

United States of America,

Appellee,

v. No. 80-1735

Board of Education of the City of St. Louis and

Daniel L, Schlafly, Frederick E. Bussee, Gordon L.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. we Bowen, Henry M. Grich, Jr. (Secre-

wey), Rev. James L. Cummings (President), Mrs.

Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

—~ Cc. i Benjamin M. Price, Robert W. Bern-

thal, Da Mahan, Charles 'Brasfield (School

District Seocsienenienll and Robert E. Wentz (Su-

perintendent of Schools),

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education,

Appellees,

Appellees.

Submitted: November 13, 1980

Filed: February 13, 1981

Before HEANEY, BRIGHT and STEPHENSON, Circuit

Judges.

HEANEY, Circuit Judge.

We are asked by the State of Missouri and by three

groups of parents to set aside the plan of the United States

District Court for the Eastern District of Missouri for in-

A-7

tegrating the public schools of St. Louis. The State argues

that it has been required to pay too much toward the inte-

gration plan and that it should not be ordered to participate

in developing either a voluntary or an involuntary inter-

district integration program. The white parent group com-

plains that the district court plan goes too far and is unfair

to white students. The black parent groups assert that the

plan doesn’t go far enough in that it leaves some schools in

North St. Louis all black. All of the appellants assert that

the district court erred in failing to find that the United

States contributed to the segregation of the St. Louis school

ilistriet and to require it to pay a substantial portion of

the cost of integrating the school system.

We affirm the decision of the district court. The de-

segregation plan was designed in accordance with the letter

and spirit of the mandate of this Court and it meets con-

stitutional requirements. If the plan is fully implemented

in the same spirit and with the continuing cooperation of

parents, students, teachers and community and religious

leaders, a firm foundation will have been laid for affording

the children of St. Louis a quality education in a racially

neutral school system.

We take judicial notice of the fact that the Board of

Education and one of the parent groups have filed amended

complaints in the district court, asking the court to require

inter-district integration with the schools of St. Louis, St.

Charles and Jefferson Counties. We express no opinion as

to the merits of the proposed amendments. We do, however,

emphasize that the pendency of these petitions must not

be permitted to delay the full and complete implementation

of every feature of the plan developed by the district court

and approved by this Court, including those sections of

the plan that relate to inter-district integration.

A-8

This case, filed in district court in 1972, is before this

Court for the third time! When it was first here, we re-

manded it with directions to permit the Caldwell parent

group to intervene as plaintiffs. See Liddell v. Caldwell,

546 F.2d 768 (Sth Cir, 1976), cert, denied, 433 U.S. 914

(1977). When it was next here, we reversed the district

court, concluding that the plaintiffs had clearly proven that

the defendants had established and maintained a racially

segregated school system in violation of the plaintiffs’ con-

stitutional rights. See Adams y, United States, 620 F.2d

1277 (Sth Cir.) (en bane), cert. denied, 101 S.Ct. 88, 66

L.Ed.2d 29 (1980). We remanded the case to the district

court with the following admonition:

Segregation in the elementary and secondary schools

in St. Louis must now be eliminated. An integrated

system must be devised and implemented promptly. In

no other way can the constitutional right to an equal

educational opportunity be assured to all children of

St. Louis. With careful planning, expert advice, broad

community participation and good faith, a plan to inte-

grate the schools can be devised and implemented which

will meet constitutional requirements.

Td, at 1291-1292.

Only one party—the Adams plaintiffs—asked the Supreme

Court to review our decision; the Court denied the petition

for certiorari.

On remand, the district court made every effort to

comply with our charge. It established an interracial citi-

zen’s advisory committee to promote community involve-

ment in the proceedings; it appointed Dr. Gary Allen Orfield

'For a detailed account of the procedural history of this case, see

Adams v. United States, 620 F.2d 1277, 1281-1284 (8th Cir.) (en banc),

cert, denied, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980).

A-9

to provide expert assistance in the preparation of a desegre-

gation plan; it held extensive evidentiary hearings on pro-

posed plans and the procedures involved in implementing

them; and after a careful consideration of all the evidence,

it approved a comprehensive desegregation plan to be effee-

tive at the start of the 1980-1981 school year, See Liddell

v. Board of Educ., 491 F.Supp. 351 (.D. Mo, 1980).

II.

The plan approved by the district court is a modified

form of the ‘*Orfield approach’? sanctioned by this Court

in the previous appeal. See Adams v, United States, supra,

620 F.2d at 1293-1296. The essential elements of the plan

include (1) reassigning students to achieve the greatest

possible number of desegregated schools (defined at 30-50%

black); (2) establishing magnet and alternative schools de-

signed to attract students of all races from throughout the

St. Louis area; (3) organizing a middle school system to

facilitate clustering, pairing and other integrative efforts;

(4) instituting and expanding specialty and part-time inte-

grated programs; (5) facilitating permissive integrative

transfers; (6) initiating cooperative inter-district desegre-

gation programs; (7) providing for integration of and spe-

cial training for school personnel; and (8) developing a

comprehensive community relations program.

Although the plan reflects the fact that it is not possi-

ble to fully integrate every school in the St. Louis system,

the district court faithfully followed the directions of this

Court by providing a variety of integrative experiences

and enhanced educational opportunities for students remain-

ing in the predominately black schools.

The district court estimated that the overall cost of

the desegregation plan would be approximately $22.1 mil-

lion, The court directed the State of Missouri to pay one-half

of the actual cost of desegregation. To finance the remaining

A-10

50%, the court ordered the Board of Education to transfer

approximately $4.7 million out of its debt retirement ac-

count, noting that federal funds would cover the balance.

Federal funding to assist in the integration process exceeded

$7 million for the 1980-1981 school year.

ITT.

Four parties—the Liddell plaintiffs, the Caldwell

plaintiffs, the Adams plaintiffs, and the State of Missouri

defendants*—appeal from the district court’s order approv- -

ing the desegregation plan. For convenience, the issues on

appeal may be divided into two categories: those relating

to the design of the plan and those relating to the financing

of the plan. We first consider the challenges to the design

of the plan.

A. Design

1. The Liddell and Caldwell plaintiffs contend that

the plan approved by the district court is constitutionally

deficient because it does not go far enough to remedy the

effects of the defendants’ discriminatory practices. Specifi- ~

eally, they argue that the distriet court erred in holding

that schools with 30-50% black enrollments were to he con-

sidered integrated. Their position appears to be that the

only constitutionally permissible means of integrating the

St. Louis system was to reassign students so that each school

had the same racial mix as the district as a whole—approxi-

mately 76% black and 24% white.

We cannot agree that the options available to the dis-

trict court were so limited. In our decision of March 3, 1980,

2The “State defendants” include the State of Missouri and its Board

of Education, as well as the following Missouri officials: the Governor,

the Attorney General, the Treasurer, the Commissioner of Education,

the Commissioner of Administration, and the individual members of the

Missouri Board of Education. Because their interests are identical and

they have filed a joint brief, we refer to these parties collectively as the

State of Missouri.

A-11

we specifically stated that a plan similar to the one adopted

by the district court would meet constitutional require-

ments. In so doing, we accepted the testimony of Dr. Orfield

that such a plan would have the best chance of successfully

integrating the St. Louis schools and stabilizing neighbor-

hoods already integrated.

In affirming this aspect of the plan, we emphasize that

students remaining in the predominately black schools in

St. Louis are not left completely untouched by the new sys-

tem. Provisions affecting the remaining black schools in-

clude magnet and alternative programs, new and expanded

specialty programs, permissive intra-district transfers, staf?

desegregation, staff development, a City/County integrated

vocational program, and voluntary pupil exchanges with

suburban school districts. We also emphasize that the plan

requires the Board of Education to spend a substantial por-

tion of the $22 million desegregation budget to improve

the quality of education in those schools that remain all black

and continuing expenditures are required for this purpose.

Moreover, although a number of all-black or virtually all-

black schools remain in St. Louis under the plan, the new

system does eliminate the all-white schools from the dis-

trict. Thus, although the degree of actual integration

achieved under the plan is not optimal, we reiterate our

view that under all the circumstances, the plan is a con-

stitutional one and has a better chance of providing a

quality integrated education for the school children of St.

Louis than any of the other plans that were presented by

the parties to this lawsuit.®

‘We note that the plan approved by the district court appears to

permit up to a 15% deviation from the 30-50% black guideline used to

define integrated schools. In our view, a deviation of this magnitude

should be permitted only rarely and then only after the court has deter-

mined, following a hearing in which the parties are given an opportunity

to present their views, that allowing the variance will not impair the

overall effectiveness of the desegregation plan.

A-12

2. In contrast with the position of the Liddell and Cald-

well plaintiffs, the Adams plaintiffs argue that the district

court has gone too far in the intra-district pupil reassign-

ment portion of its plan. They note that the Court has

included in the reassignment plan a number of schools that

were between 30 and 50% black prior to desegregation.

These schools, they contend, should not have been required

to participate in the plan in view of this Court’s determi-

nation that the boundary lines and assignment patterns for

schools with 80-50% black enrollments should remain sub-

stantially changed.

This contention is without merit. Although reassign-

ment does affect some schools that had a pre-plan enroll-

ment of 30-50% black, we are satisfied that their inclusion

does not violate our order of March 3, 1980, First, it turned

out to be necessary to include some of these schools to

accommodate the change from a two-tier (kindergarten-8;

9-12) to a three-tier (kindergarten-5; 6-8; 9-12) system, a

change that was designed to help facilitate clustering and

other integrative efforts and to improve the overall educa-

tional opportunities in St. Louis. Second, it appears from

the record that many of the schools cited by the appellant

as having a pre-plan black population of between 30 and

50% had such a racial mix because students were transported

to them, not because the neighborhoods surrounding the

schools were integrated. Still other schools were included

because their black enrollment percentage has increased

rapidly in recent years, indicating that their black popula-

tion would be likely to exceed 50% in the near future. When

read in context, it is clear that our decision of March 3

‘The Adams group also claims that the Board of Education relied

onfalse enrollment and other data in developing the plan. Although there

may be minor discrepancies in some of the figures, we find no support

in the record for the appellants’ position that the information relied

upon was so inaccurate that the plan must be invalidated,

A-13

was intended to minimize the transportation of students

and to encourage the development and maintenance of inte-

grated schools in integrated neighborhoods. In our view,

the plan approved by the district court is faithful to this

concept.

3. The State of Missouri is the sole challenger to para-

graph 12 of the district court’s order, which provides for

various forms of inter-district relief. The State argues that

the district court is without authority to order the prepara-

tion of any inter-district plan unless and until the suburbar

districts are joined as parties to the lawsuit. The Adams

group, by contrast, argues that the court erred in not de-

veloping a more comprehensive inter-district remedy.

Paragraph 12 of the district court’s order provides in

part:

12. The State defendants, the United States, and

the St. Louis Board of Education are ordered and

directed as follows:

a) To make every feasible effort to work out

with the appropriate school districts in the St.

Louis County and develop, for 1980-81 implemen-

tation, a voluntary, cooperative plan of pupil ex-

changes which will assist in alleviating the school

segregation in the City of St. Louis, and which also

insures that inter-district pupil transfers will not

impair the desegregation of the St. Louis school

district ordered herein, and submit such plan to

the Court for approval by July 1, 1980.

b) To develop and submit to the Court by

November 1, 1980, a plan for the consolidation or

merger and full desegregation of the separate voca-

tional educational programs operated by the Spe-

cial District of St. Louis County and the school

A-14

district of the City of St. Louis, for inplementa-

tion in the 1981-82 school year.

c) To develop and submit to the Court by No-

vember 1, 1980, a suggested plan of inter-district

school desegregation necessary to eradicate the

remaining vestiges of goverment-imposed school

segregation in the City of St. Louis and St. Louis

County.

491 F.Supp. at 353.

The appellees contend that this Court should not heer

the State’s challenge at this time because the directives

contained in paragraph 12 are neither final judgments ap-

pealabe under 28 U.S.C. § 1291 nor orders granting or

denying injunctive relief appealable under 28 U.S.C. § 1292.

Although the line between appealable and nonappealable

orders is rarely clear in a case in which the district court

retains jurisdiction over a developing desegregation plan,

we are persuaded that we have jurisdiction over these issues

in this appeal.® Accordingly, we consider the challenge to

paragraph 12 on the merits, examining each section of the

paragraph separately.

5In support of their position that the provisions of paragraph 12 are

nonappealable, the appellees cite to cases in which appeals courts ruled

that orders directing school boards to formulate desegregation plans were

nonappealable. See Bradley vy. Milliken, 468 F.2d 902 (6th Cir.), cert.

denied, 409 U.S. 844 (1972); Taylor v. Board of Educ., 288 F.2d 600

(2d Cir 1961) The State of Missouri distinguishes the cases cited by

the appellees by noting that the school board in each of those cases was

ordered to prepare a remedy consistent with its judicially determined

constitutional liability Here, the State argues, the district court exceeded

its jurisdiction by ordering the parties to prepare a plan involving other

school districts, even though it is conceded that the suburban districts

cannot be considered to De constitutional violators unless and until they

are joined as parties to the litigation. While the question is not free from

doubt, we are satisfied that we have jurisdiction to hear an appeal from

a remedial order that, on its face, arguably involves potential parties

who have not yet had their day in court.

A-15

Section (a) of paragraph 12 directs the partie* to ‘‘make

every feasible effort’? to work out a voluntary plan of

inter-district pupil exchanges to be implemented in the

1980-1981 school year. Because the plan is to be voluv tary,

no question is raised about whether the district court vill

be able to enforce the plan once it is drawn up. Under the

terms of the order, the plan is to be designed to ‘‘assist in

alleviating the school segregation in the City of St. Louis

[and to ensure] that inter-district pupil transfers will not

impair the desegregation of the St. Louis school district.’’

491 F.Supp. at 353. Thus, the voluntary exchanges con-

templated by section (a) must be viewed as a valid part

of the attempt to fashion a workable remedy within the

City.

Section (b) of paragraph 12 is also consistent with

the district court’s responsibility to order a remedy for

existing constitutional violations. The district court specifi-

cally found that the State of Missouri’s establishment and

maintenance of the separate Special District for voeational

education was ‘‘part and parcel of its failure to take af-

firmative steps to eradicate root and branch the dual system

it once formally mandated.’’ 491 F.Supp. at 358. Section

(b), therefore, was designed to remedy a violation of the

State of Missouri. Moreover, the Special District has now

been joined as a party defendant in this lawsuit. We see

no reason to prevent the opening of a consolidated integrated

vocational school at the beginning of the 1981-1982 school

year.

Section (¢c) of paragraph 12 is also within the authority

of the district court. By its terms, that section required

the parties to develop and submit to the court by Novem-

ber 15, 1980, a ‘‘suggested’’ inter-district plan ‘‘to eradi-

cate the remaining vestiges of government-imposed school

segregation in the City of St. Louis and St. Louis County.’’

We must read the term ‘‘government-imposed’’ to mean

A-16

‘found to be government-imposed by a court.’’ Therefore,

to the extent that the segregation was imposed by County

school districts which are not parties to the lawsuit and

which have not been designated as constitutional violators,

it cannot be considered to be ‘‘government-imposed.’’ But,

to the extent any such segregation was imposed by the State

or other defendants, and to the extent those defendants

have the power to remedy the violation, it is proper for

the district court to order them to take steps to do so.

Furthermore, we recognize that the Board of Eduea-

tion and the Caldwell plaintiffs have petitioned the dis-

trict court to amend their complaints to add as parties

defendant the schoo] districts in the three-county area sur-

rounding the City of St. Louis, We express no opinion

on the merits of those motions, but we emphasize that the

current parties have a responsibility to comply with the

terms of the district court order, including the provisions

of paragraph 12, regardless of the disposition of the mo-

tions pending before the district court.®

4. The Adams and the Liddell plaintiffs maintain that

the district court erred in approving the personnel assign-

ment portion of the desegregation plan. Both appellants

oppose the court’s adoption of a ‘‘Singleton’’ plan of per-

sonnel assignment, which provides that the black to white

staff ratio in each school is to be substantially equal to

the district-wide black to white staff ratio. They argue that

the Singleton formula is inconsistent with the following

directive of this Court: ‘‘The consent decree, insofar as it

*We note that the district court has found it necessary to extend

the deadlines for filing the proposed plans under pargaraph 12(a)-(c)

and that it is apparently having some difficulty in getting complete and

adequate proposals from the parties. We take this opportunity to stress

the legal obligation of the State of Missouri, the United States and the

Board of Education to develop and implement the plans contemplated

by paragraph 12. It is imperative that the district court countenance

no excuse for further delay.

A-17

pertains to faculty integration, shall be fully implemented

and additional steps taken to ensure that school personnel

at. every level will be integrated.’’ Adams v. United States,

supra, 620 F.2d at 1297. In our view, the plan approved by

the district court goes beyond what we required, at least

with respect to classroom teachers. We will not quarrel with

that decision.

The Lidde|! and Adams groups argue that the personnel

integration provision of the plan is inadequate because it

fails to integrate the administrative staff. The district

court’s order provided that a Singleton assignment formula

should apply to ‘‘[a]ll principals, teachers, and other cer-

tified staff who work directly with children at a school.’’

491 F.2d at 354. The court also stated, ‘‘The same criteria

shall apply to non-certificated personnel.’’ Jd. We read

these statements to provide that the Singleton assignment

scheme is to apply to all principals, all teachers and all

non-certificated personnel, as well as to certificated staff

members who work directly with children. It appears that

nothing is said about administrators other than principals.

That is not surprising, inasmuch as the Singleton approach

matches district-wide race ratios with staff ratios at each

school. There is no way, therefore, to apply that formula

directly to administrators who are not assigned to specific

schools. We assume that as to such personnel, the prior

directive of this Court will be followed, and are confident

that if that phase of the plan has not yet been implemented,

it will be by the opening of the 1981-1982 school year.

5. The Adams and Liddell plaintiffs also join in chal-

lenging the manner in which the burdens of desegregation

are distributed among the students. The Adams group con-

tends that the burdens are borne disproportionately by the

white students, while the Liddell group asserts that the

black students suffer the greatest adverse effects under the

plan.

A-18

We find no support in the record for either of these

positions. The Adams appellants base their argument on

the fact that slightly over one-half of the students trans-

ported to schools out of their neighborhoods are white even

though white students comprise only 24% of the school

population. In our view, that is not sufficient to show that

the white students bears a disproportionate burden. In a

situation such as that in St. Louis, where it is necessary

to exchange black students with white students in order

to integrate the schools, the number of whites who are trans-

ported will almost necessarily be approximately equal to

the number of blacks who are similarly transported. Under

these circumstances, the percentage of each race transported

is not controlling.

The Adams group also argues that the black students

reap a disproportionate amount of the benefits from the

plan. That assertion simply has no support in the record.

The basis of the Liddell group’s challenge is essentially

that some black children remain in predominately black

schools under the plan.? We have answered that complaint

earlier in this opinion.

6. The Caldwell group raises two issues concerning the

composition and operation of the citizens’ committees ap-

pointed by the district court. In our March 3 opinion, we

stated,

The Board of Education is to be giver ine principal

responsibility for developing and imp’ementing a com-

prehensive plan to integrate the school system. In ful-

7The Liddell plant.sfs also assert that the district court violated

this Court’s mandate by failing to establish an educational park in the

City of St. Louis. In our March 3 opinion, we did refer to an educational

park as one possible method of providing enhanced educational oppor-

tunities for St. Louis students. We did not, however, require the district

court to establish such a park.

A-19

filling this responsibility, the Board shall work with

the parties of this lawsuit, a broadly based interracial

committee to be named by the district court and an

expert, or experts, to be named by the district court.

Adams v. United States, supra, 620 F.2d at 1295 (footnote

omitted).

In accordance with this directive, the district court

appointed a twenty-member bi-racial ‘‘Citizens’-Committee’’

to assist the Board of Education in developing the desegre-

gation plan. The members of the Citizens’ Committee were

chosen from lists provided by the parties; four of the twenty

members were selected from the list submitted by the Cald-

well plaintiffs. Following approval of the plan, the court

disbanded the Citizens’ Committee and adopted a new ‘‘De-

segregation Monitoring and Advisory Committee.’’ The

new group was composed of twelve members, one-half of

whom were members of the original Citizens’ Committee.

The Caldwell plaintiffs assert that they are not ade-

quately represented on this new committee. The record

shows, however, that two of the twelve Monitoring Com-

mittee members, including the vice chairperson, were origi-

nally nominated for the Citizens’ Committee by the Caldwell

group. It also shows that six of the twelve members on the

Monitoring Committee are black. In light of these facts,

no abuse of discretion has been demonstrated.

The Caldwell appellants’ second objection to the Moni-

toring Committee is that the district court erred in expressly

authorizing ex parte, oral communication between the court

and the Monitoring Committee chairperson and vice chair-

person. We agree that all parties are entitled to know of

the advice given the court by the Committee. See Bradley

v. Milliken, 620 F.2d 1143, 1156-1158 (6th Cir.), cert. denied,

101 S.Ct. 207, 66 L.Ed.2d 80 (1980). The best practice would

be to reduce to writing all communications between the

A-20

court and the Committee, make them part of the record,

and provide them to counsel for the parties. If oral contact

is deemed necessary by the district court, the parties should,

where possible, be given notice and opportunity to be pres-

ent when the oral report is received, To this point, how-

ever, no prejudice has been shown from any alleged ex

parte contacts.

B. Financing

1. All four of the appellants join in mounting the pri-

mary challenge to the financing of the desegregation plan,

arguing that the district court erred in failing to directly

order relief against the United States government.*

In support of their position, the appellants point to

evidence in the record, as well as to statements of the dis-

trict court and this Court, indicating that the policies and

practices of the federal government have been a significant

cause of segregation in the St. Louis school system. The

8The claims of the Caldwell appellants go beyond the financial

liability of the United States. They maintain that the government should

be required to take affirmative steps to reverse the discriminatory effects

of federal housing and other policies. This issue has not been tried in

this lawsuit. Accordingly, the district court did not err in refusing to

grant affirmative relief against the United States.

We note in passing that the district court has taken steps to ensure

that federally assisted housing programs are operated so as to aid in

the implementation of school desegregation in St. Louis. In peragraph

12(d) of its order, the district court directed the State defendants, the

United States and the St. Louis Board of Education

[t]o develop and submit to the Court by November 1, 1980, in

conjunction with the Community Development Agency of the City

of St. Louis, a suggested plan for insuring that the operation of

federally-assisted housing programs in the St. Louis metropolitan

area will facilitate the school desegregation ordered herein.

491 F.Supp. at 354. :

No party has challenged this aspect of the district court's order.

The parties have submitted plans in accordance with the order, and we

approve of this effort to facilitate implementation of the overall desegre-

gation plan.

A-21

fact remains, however, that no party has named the United

States as a defendant and alleged that it engaged in dis-

criminatory practices,” The real question, therefore, is wheth-

er the district court abused its discretion in refusing to

grant the Caldwell plaintiffs’ motion to amend its complaint

to seek relief against the United States.

Under all the circumstances of this case, we find no

abuse of discretion. The Caldwell plaintiffs’ motion to

amend was filed on May 23, 1980, one week after the dis-

trict court concluded evidentiary hearings on the proposed

desegregation plans. At that time, the district court was

operating under a stringent time schedule, mandated by

this Court, requiring that the plan be implemented by the

beginning of the 1980-1981 school year. Given this need

to expedite approval and implementation of the plan and

the likely delay attendant in adding new theories of liability

against a new defendant, we hold that the district court

did not abuse its diseretion in refusing to grant the Cald-

well group’s motion to amend at that time.

In affirming the district court’s refusal to grant relief

against the United States, we are mindful of the significant

financial role played by the federal government in imple-

menting the St. Louis desegregation plan. In its order ap-

proving the plan, the district court expressly recognized

that a substantial portion of the funding for integration

would come from the United States government. The court

directed the United States Department of Education to

expedite the processing of funding applications for St. Louis

under the Emergeney School Aid Act (ESAA), 20 U.S.C,

*The Adams plaintiffs did name the United States as a defendant

in its complaint in intervention, Rather than complain of the govern-

ment's segregative acts, however, the Adams group alleged that the United

States illegally required the St. Louis school district to take steps to

desegregate the schools as a condition to release of federal funds for

the district.

A-22

§ 3191 et seq. Apparently, this direction was heeded since

the St. Louis school system received over $7 million in

ESAA funds—nearly one-third of the desegregation budg-

et—to cover the costs of implementing the plan during the

1980-1981 school year. Moreover, the evidence in the record

gives us no reason to believe that similar funding will not

be available to continue implementation of the plan for the

foreseeable future. Under these circumstances, we are un-

willing to hold that the district court erred by failing to

expressly order the United States to pay for part of the

desegregation plan.

2. The State of Missouri vigorously contends that it

should have no part in paying for the costs of integration

because its actions did not violate the Constitution. More

precisely, the State argues that this Court did not overrule

the district court’s earlier finding of non-liability on the

part of the State. Thus, the State asserts, the district court

was precluded on remand from finding the State to be a

constitutional violator.

This contention is wholly without merit. In our March 3

opinion, we specifically recognized the causal relationship

between the actions of the State of Missouri and the segre-

gation existing in the St. Louis school system. Further-

more, we expressly directed the district court to apportion

the costs of the desegregation plan among the defendants.

Adams v. United States, supra, 620 F.2d at 1295 n.28. These

statements amount to a clear reversal of the district court’s

findings concerning the liability of the State, and the State

has chosen not to seek review of that decision in the Su-

preme Court, At the very least, our opinion left the dis-

trict court free to review its earlier conclusions, We will

not disturb its decision to do so,

3. As an alternative argument, the State contends that,

even if it was proper to require it to fund part of the plan,

it has been ordered to pay too great a share. The State

A-23

maintains that the amount it has been ordered to pay is

not commensurate with the degree of its constitutional viola-

tion. In addition, it argues that the desegregation plan

budget is inflated and that the State’s portion of the fund-

ing is too great as a result. We agree with neither conten-

tion.

After reviewing the discreminatory action and inac-

tion of the State of Missouri, the district court concluded

that ‘‘the State defendants stand before this Court as pri-

mary constitutional wrongdoers who have abdicated their

affirmative remedial duty.’’ 491 F.Supp. at 359, This con-

clusion has ample support in the record; as noted, we recog-

nized as much in the prior appeal. It was well within the

discretion of the district court, therefore, to order the State

to pay one-half of the costs of integrating the St. Louis

school system.

The State’s complaints about the desegregation plan

budget are that it includes items that are not properly

considered part of the integration process and that certain

savings were not taken into account. We need not review

the specific items in the plan budget, however, because it

is clear that the approved budget is only an estimate of

the expected costs of implementing the plan. The district

court’s order requires the State to pay one-half of the

actual costs of implementing the desegregation plan; the

budget is used only to set a ceiling on the amount of the

State’s participation. In addition, the district court spe-

cifically directed that ‘continued efforts be made to reduce

the actual costs of implementation.’’ 491 F.Supp. at 352'°

Like the State of Missouri, the Aadms appellants contest the

validity of the budget on the ground that it includes items not necessary

for integration. Inexplicably, the Adams group also takes the seemingly

inconsistent position that the amount allocated by the budget is insuf-

ficient to desegregate the St. Louis schools. For the reasons stated in

the text, we need not decide the validity of these challenges to the budget.

A-24

4. The Adams’ plaintiffs contend that the district court

erred in directing the Board of Education to transfer ap-

proximately $4.6 million in excess funds from its debt retire-

ment account to be used to make the building modifications

necessitated by the desegregation plan. This complaint is

based on the assertion that the Board of Education was

without authority under Missouri law to collect surplus

funds in the account reserved for the retirement of bonds.

The Board of Education responds that the money in the

debt retirement account was collected in accordance with

statutory guidelines following annual public hearings, and

that no one has complained of the accumulated surplus

prior to this time.

We decline to rule on whether Missouri law authorized

the Board of Education to accumulate funds in its debt

retirement account. This is surely not the most suitable

forum for determining the propriety of the Board of Educa-

tion’s bond issues. We are satisfied that the district court

had discretion to order the transfer of funds already col-

lected and held by the Board.

To summarize, we affirm the judgment of the district

court and commend it for the manner and promptness with

which it implemented the earlier decision of this Court. We

remand the matter to the distriet court with directions to

continue with the implementation of its plan in accordance

with the slight modifications made by this opinion. All

parties will bear their own costs in this appeal.

A true copy.

Attest:

CLERK,

U. 8. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-25

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand, on behalf of them-

selves and all other schoolage children and their

parents residing in the metropolitan school district

of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerr‘anne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and Cath-

erine Neel; Mary Edington and Susan Edington,

Minors, by Horace Edington, their Natural Guard-

ian and Next Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

Appellants,

and

awed Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anjela

— representing the “Involved Citizens Com-

mi ”

United States of America, por A No. Ft a

— United States

v. District Court

Board of Education of the City of St. Louis and | {rhe Eastern

Daniel L. Schlafly, Frederick E. Busse, Gordon L. Missouri.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secre-

A-26

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellees,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, ‘by Barbara Goldsby, her

Mother and Next Friend, and Barbara Go dsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, by Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand; on behalf of

themselves and all other school-age children and

their parents residing in the metropolitan school

district of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellees,

City of St. Louis,

Appellee,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel

their Natural Cordon and Next Friend, and

Catherine Neel; Mary Edington and Susan Eding-

on, Minors, by Horace gton, their Natural

uardian and Next Friend, and Horce Edington;

the Concerned Parents for’ Neighborhood Schools,

and

Mary Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anje

ap representing the “Involved Citizens com-

United States of America,

Appellee,

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick E. Busse, Gordon L.

No, 80-1494

A-27

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs, Joyce Bowen, Henry M. Grich, Jr. (Secretary),

Rev. James L. Cummin President), Mrs. Erma

J. Lawrence, Rev. Donald E. Mayer (Vice Presi-

dent), Lawrence Moser, Charles Harris, and Julius

C. Dix, Benjamin M. Price, Robert W. Bernthal,

David J. M , Charles Brasfield (School District

Superintendent) and Robert E. Wentz (Superin-

tendent of Schools),

Appellees,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education.

Appellant.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, by Lois LeGrand, her Mother

and Next Friend, and Lois LeGrand, on behalf of

themselves and all other school-age children and

their parents residing in the metropolitan school

district of the City of St. Louis, Missouri,

Appellants,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Danieis, Cerdric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

Friend, and Jerrianne Adams; Catherine M. Neel

Camille A. Neel, Minors, by Catherine Neel,

their Natural Guardian and Next Friend, and Cath-

erine Neel; Mary Edington and Susan Edington,

Minors, by Horace Edington, their Natural Guard-

ian and Next Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

and

Mary Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anje

A-28

Reineri, representing the “Involved Citizens Com-

mittee”

United States of America,

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick Busse, Gordon L.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secre-

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellees,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education,

Appellees,

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber: Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand, on behalf of them-

selves and all other school-age children and their

parents residing in the metropolitan school district

of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellants,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Je:rluane Adams, their Natural Guardian and Next

, and Jerrianne Adams; Catherine M. Neel

and Camille A. Neel, Minors, Catherine Neel,

a — seg and o— —_s — Cath-

e eel; Mary ington an usan ington,

Minors, by Horace Edington, their Natural Guard-

No. 80-1531

A-29

ian and Next Friend, and Horace Edin , The

Concerned Parents for Neighborhood Schools,

and

ae Puleo, Gerard Puleo, Emma Dannenberg,

Robin Dannenberg, Louis Reineri and Mary Anje

Reineri, represen the “Involved Citizens Com-

United States of America,

Appellee,

Vv.

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick E. Busse, Gordon L.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. Joyce Bowen, Henry M. Grich, Jr. (Secre-

tary), Rev. James L. Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

President), Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

Appellee,

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education.

Craton Liddell, a Minor, by Minnie Liddell, his

Mother and Next Friend, and Minnie Liddell; Jo-

anna Goldsby, a Minor, by Barbara Goldsby, her

Mother and Next Friend, and Barbara Goldsby;

Deborah Yarber, a Minor, by Samuel Yarber, her

Father and Next Friend, and Samuel Yarber; Na-

thalie Moore, a Minor, by Louise Moore, her Mother

and Next Friend, and Louise Moore; Rachelle Le-

Grand, a Minor, by Lois LeGrand, her Mother and

Next Friend, and Lois LeGrand, on behalf of them-

selves and all other school-age children and their

parents ——s in the metropolitan school district

of the City of St. Louis, Missouri,

and

Earline Caldwell, Lillie Caldwell, Denise Daniels,

Dwane Daniels, Gwendolyn Daniels, Cedric Wil-

liams, Stephanie Williams, Gloria Williams, Janis

Hutcherson, Lee Hutcherson, Robert Smith, Eddie

S. Willis and the National Association for the Ad-

vancement of Colored People,

Appellants,

City of St. Louis,

Janice Adams and Jack Adams, Jr., Minors, by

Jerrianne Adams, their Natural Guardian and Next

No. 80-1599

A-30

Friend, and dertigame Adams; Catherine M. Neel

and Camille A. Neel, Minors, by Catherine Neel,

= Nera! Guardian and Next, a — Nea

e Neel; Mary Edington and Susan on,

Minors, Horace Edington, their Natural Guard-

ian and Next Friend, and Horace Edington, The

Concerned Parents for Neighborhood Schools,

and

Puleo, Gerard Puleo, Emma Dannenberg,

Rob Dannenberg, Louis Reineri and Mary Anjela

— representing the “Involved Citizens Com-

United States of America,

Appellee,

v. No, 80-1735

Board of Education of the City of St. Louis and

Daniel L. Schlafly, Frederick E. Bussee, Gordon L.

Benson, Malcolm W. Martin, Mrs. Anita L. Bond,

Mrs. ag Bowen, Henry M. Grich, Jr. (Secre-

tary), Rev. James L, Cummings (President), Mrs.

Erma J. Lawrence, Rev. Donald E. Mayer (Vice

omg Lawrence Moser, Charles Harris, and

Julius C. Dix, Benjamin M. Price, Robert W. Bern-

thal, David J. Mahan, Charles 'Brasfield (School

District Superintendent) and Robert E. Wentz (Su-

perintendent of Schools),

and

The State of Missouri, Arthur Mallory, Commis-

sioner of Education of the State of Missouri, The

State of Missouri Board of Education,

Appellees,

Appellees.

Filed: March 19, 1981

Before HEANEY, BRIGHT and STEPHENSON,

Cireuit Judges,

ORDER

This Court has before it a number of motions relating

to the above entitled case.

A-31

The motion of the Special School District of St. Louis

County, Missouri, to intervene on appeal for the purpose

of filing a petition for rehearing or rehearing en banc is

granted. The petition for rehearing or rehearing en bane

is denied, the latter by a unanimous vote of the Court.

The Special School District asks us to review our de-

cision of February 13, 1981, asserting that that decision is

inconsistent with an August 15, 1980, order of this Court

which denied the Special District’s petition for a writ of

prohibition.

We do not agree. The primary issue addressed by this

Court in its August 15 ruling was whether the Special Dis-

trict would be provided with a full and fair opportunity to

present its views to the district court prior to being ordered

to remedy its constitutional violations, if any.

The district @ourt correctly perceived the thrust of

our August 15 ruling. In a December 19, 1980, order deny-

ing the Special District’s motion to disqualify him from

further proceedings in the case, Judge Meredith declared,

‘The Special District can rest assured that before any

action is taken that would affect it, it will have ample op-

portunity to be heard.’’ Similarly, in an order dated March

4, 1981, Judge Hungate reiterated the view that voluntary

cooperative efforts with the School District of the City of

St. Louis would result in no prejudice to the legal rights of

the Special District :

This Court emphasizes that a 12(b) plan has

merely been filed with the Court as required by Judge

Meredith’s order of May 21, 1980. No action has or

will be taken until a hearing has been held during

which the [Special District] will have ample oppor-

tunity to be heard. [Emphasis included. ]

A-32

Judge Hungate has now set May 11, 1981, as the hearing

date for questions involving the Special District, and he

has established a discovery and briefing schedule designed

to facilitate resolution of the issues and provide the parties

with full opportunity to be heard. We express no opinion

as to the merits of the issues to be heard by Judge Hungate.

Il.

The Caldwell plaintiffs petition this Court for rehear-

ing, modiciation and/or clarification of this Court’s de-

cision of February 13, 1981. They ask this Court to modify

its February 13, 1981, opinion ‘‘to reflect the fact that

paragraph 12(c) of Judge Meredith’s order of 21 May

1980 was amended by him on 17 September 1980, and that

proceedings now pending in the district court may moot

the controversy over paragraph 12(¢).’’

In subdivision III of this order, we have denied the

State of Missouri’s motion for a stay of mandate or stay

of enforcement of the district court’s paragraph 12 orders.

In that subdivision, we acknowledge the amendments made

by the district court; we see no need to further modify

our opinion of February 13, 1981. There is nothing incon-

sistent about paragraphs 12(a) and 12(¢), and both are

valid parts of the district court’s order. We additionally

acknowledge the protective orders entered by Judge Mere-

dith on June 17, 1980, and October 6, 1980, were extended

by Judge Hungate on March 4, 1981, and note our con-

currence therewith.’

‘In essence, these protective orders provide that any form of volun-

tary cooperation by the parties or County school districts will not be

used as evidence in pending district court proceedings or otherwise

prejudice the legal rights of any party or County school district to resist

judicial imposition of compulsory inter-district remedy.

A-33

The Caldwell plaintiffs also ask this Court to clarify

its decision on the allocation of costs on appeal or, in the

alternative, to grant a rehearing and direct that ‘‘the costs

on appeal, including attorneys’ fees, be awarded against

the State and St. Louis Board defendants in their favor.

We decline to attempt to restate our original intentions

concerning costs. Prior to the filing of this petition, the

Caldwell plaintiffs made no application for attorneys’

fees. We construe this petition, however, as a request for

a ruling on whether they are entitled to attorneys’ fees. We

hold that they are not.

III.

On February 19, 1981, the State of Missouri® filed a

motion requesting this Court to ‘‘stay the issuance of its

mandate * * * as well as the enforcement of paragraphs

12(a), (b), and (c) of the May 21, 1980 Order of the Dis-

trict Court * * *, including the [district court’s December

19, 1980,] supplementary order pertaining thereto ... ,’’

pending the filing of a petition for a writ of certiorari in

the United States Supreme Court. See Fed.R.App.P. 41(b).

We deny the motion to stay our mandate or to stay en-

forcement of the district court’s orders and adhere to our

most recent pronouncement concerning the State’s legal

responsibilities for the prompt desegregation of the St.

Louis public school system. See Liddell v. Board of Educ.,

Nos. 80-1458, 80-1494, 80-1531, 80-1599 & 80-1735, slip op.

at 17-20, 27-29 (8th Cir. Feb. 13, 1981).

On March 3, 1980, this Court reversed the district

court’s determination that the various defendants in this

litigation committed no constitutional violations in the

“For a complete listing of the state defendant-appellants in this

litigation, see Liddell v. Board of Educ., Nos. 80-1458, 80-1494, 80-1531,

80-1599 & 80-1735, slip op. at 13 n.2 (8th Cir. Feb. 13, 1981).

A-34

formation and perpetuation of the admittedly segregated

St. Louis public school system. Adams vy. United States,

620 F.2d 1277 (8th Cir.)(en bane), cert. denied, 101 S.Ct.

88 (1980). At that time, we specifically noted that the

State of Missouri, the Missouri Commissioner of Education

and the Missouri Board of Education were added as de-

fendants pursuant to various district court orders in the

summer of 1977. 7d. at 1283. Moreover, we recognized that

actions of the State of Missouri intensified racial sewrega-

tion in North St. Louis and in the entire St. Louis area, 7d.

at 1291, 1294 n.27. The state defendant-appellants did not

seek Supreme Court review of our Adams’ decision.’

We remanded the case for further district court pro-

ceedings. Upon remand, the district court held that the

State defendants are ‘‘primarily constitutional wrongdo-

ers who have abdicated their affirmative remedial duty’

concerning the segregated St. Louis publie school system.

Liddell vy, Board of Educ., 491 F.Supp. 351, 359 (B.D, Mo.

1980). On February 13, 1981, we affirmed that determina-

tion and endorsed the desegregation plan adopted by the

district court, including the provisions of paragraph 12.

Liddell v, Board of Educ., Nos, 80-1458, 80-1494, 80-1531,

80-1599 & 80-1735, slip op. at 28-29 (Sth Cir, Feb, 13, 1981).*

The district court amended paragraph 12 on Septem-

ber 17, 1980, and December 19, 1980. Unfortunately, these

amendments were not included in the record submitted to

this Court prior to our February 13, 1981, decision, There-

fore, our February 13, 1981, decision does not discuss the

district court’s two amended orders. We are convinced,

8Only one party—the Adams’ plaintiffs—asked the Supreme Court to

review our decision; the Court denied the petition for certiorari.

4We also affirmed the district court’s determination that the State

of Missouri must pay one-half of the actual costs of implementing a

constitutionally required desegregation plan for the St. Louis public

school system.

A-35

however, that these amendments do not alter the substance

of original paragraph 12. Accordingly, we find it unneces-

sary to amend our February 13, 1981, decision to reflect

the district court’s September 17, 1980, and December 19,

1980, amendments. As amended, paragraphs 12(a)-(¢) pro-

vide :°

12. The State defendants, the United States, and

the St. Louis Board of Education are ordered and

directed as follows:

a) ‘To make every feasible effort to work out

with the appropriate school districts in the St.

Louis County and develop, for 1980-81 implemen-

tation, a voluntary, cooperative plan of pupil ex-

changes which will assist in alleviating the school

segregation in the City of St. Louis, and which

also insures that inter-district pupil transfers

will not impair the desegregation of the St. Louis

school district ordered herein, and submit such

plan to the Court for approval by December 15,

1980.

The State defendants, the United States, and

the St. Lowis Board of Education are ordered to

develop a closer and more efficient cooperation

among themselves for the pursuit of the objective

hereof. In particular, they are directed to estab-

lish close liaison procedures and prepare cov crete

‘We note that the State of Missouri has filed a notice of appeal

from the December 19, 1980, order of the district court. While we ex-

press no opinion on the merits of that appeal, we emphasize that its

pendency does not relieve the parties of their responsibility to fully

follow the orders of the district court.

In the quotation in the text, the amendments to paragraph 12 made

by the September 17, 1980, order of the district court are indicated

in italics, The amendments made by the December 19, 1980, order are

underlined.

A-36

and specific proposals involving the county school

districts and evaluate all other reasonable pro-

posals, including any from county districts, and

intensify their joint efforts, While the results dis-

closed in the Updating Report of the St. Louis

Board of Education of September 11, 1980 are

encouraging and represent some tangible achieve-

ments, a great deal more should be accomplished,

One of the subjects to be considered for volun-

tary cooperation between the City and the sub-

urban school districts, shall be the study of the

feasibility of establishing magnet schools located

in suburban districts with attendance open to stu-

dents of both the suburbs and the City. Considera-

tion may be given to the expansion beyond the

boundaries of St. Louis County into St. Charles

and Jefferson Counties subject to limits of dis-

tance and practicality. The location of these mag-

net schools should be determined by agreement

between the St. Louis Board of Education and the

suburban school districts involved, The State and

the St. Louis Board of Education will investigate

the availability of funding for this program, A

joint report on the status and results including

the availability of technical assistance and fund-

ing of this effort should be given to the Court by

the United States, the State defendants, and the

St. Louis Board of Education on December 15,

1980,

Pursuant to [this] paragraph * * *, the State

of Missouri and particularly the State Board of

Education and the Commissioner of Education of

the State of Missouri shall submit a new Plan of

voluntary and cooperative desegregation on or be-

A-37

fore February 2, 1981. The plan shall encompass

each district within St. Louis County. Jefferson

and St. Charles Counties shall also be included

for use of magnet schools to be located in St. Louis

City and County.

The State of Missouri shall report back to the

Court on March 2, 1981 as to those districts in St.

Louis County, Jefferson and St. Charles Counties

that are willing to participate in the plan and those

that are not willing to participate in the plan. The

report of March 2, 1981 shall include the number

of students that each district is willing to receive

and those that they desire to send outside of their

district, either to magnet schools in the County

or in the City of St. Louis, including the race and

grade of those students.

b) To develop and submit to the Court by

December 15, 1980, a plan for the consolidation

or merger and full desegregation of the separate

vocational educational programs operated by the

Special District of St. Louis County and the school

distriet of the City of St. Louis, for implementa-

tion in the 1981-82 school year,

¢) To develop and submit to the Court by No-

vember 1, 1980, a suggested plan of inter-cistrict

school desegregation necessary to eradicate the

remaining vestiges of government-imposed school

segregation in the City of St. Louis and St. Louis

County.

On or before February 16, 1981 the State de-

fendants and the St. Louis Board of Education

shall prepare and submit to the Court a feasibility

plan of inter-district school desegregation involv-

A-38

ing the St, Louis school district and such suburban

school districts, that will provide complete and

lasting school desegregation, These considerations

may apply to those suburban school districts which

are not necessarily confined to the suburban dis-

tricts located in St, Louis County but limited only

by considerations of feasibility and practicality,

including reasonableness of transportation times

and distances, This feasibility plan should include

educational and ancillary components such as those

outlined in the Court of Appeals’ opinion of March

3, 1980 in this case, and should specifically include

pupil assignment and administrative reorganiza-

provisions,

The State’s motion does not persuade us to stay our

February 13, 1981, mandate. Moreover, we are satisfied

that the provisions of paragraph 12, both as originally

written and as amended, must be enforced. The State’s

motion does not raise any new issues. Indeed, we previously

considered and rejected the very concerns presented in its

stay motion, See Liddell v. Board of Eduec., Nos. 80-1458,

80-1494, 80-1531, 80-1599 & 80-1735, slip op. at 19-20 (8th

Cir, Feb, 13, 1981). In our February 13, 1981 opinion, we

stressed that the State of Missouri, who has been judicially

determined to be a primary constitutional violator, may

properly be ordered to take steps within its power to

remedy those violations. 7d. at 20. Paragraphs 12(a)-(e)

of the district court’s order are salutory remedial diree-

tives and are entirely enforceable against the State in the

present procedural posture of this lengthy and complicated

litigation.

The State of Missouri’s motion is denied. We order

prompt implementation of our mandate in Liddell vy. Board

A-39

of Edue., Nos. 80-1458, 80-1494, 80-1531, 80-1599 & 80-1735

(8th Cir, Feb, 13, 1981).

A true copy.

Attest:

CLERK, U, 8, COURT OF APPEALS,

KRIGHTH CIRCUIT.

A-41

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

Vv.

THE BOARD OF EDUCATION OF 7 No. 72-100-C (C)

THE CITY OF ST. LOUIS,

MISSOURI, et al.,

Defendants. |

ORDER

The Court held two meetings with all counsel, on Sep-

tember 12, 1980 and on September 17, 1980, to discuss the

questions raised about the interpretation of paragraph 12

of the Order of May 21, 1980, and certain problems which

have arisen in connection therewith. It appears to the Court

that it is highly important that the efforts of the United

States, the State, and the St. Louis Board of Education,

heretofore developed with the cooperation of county school

districts should be continued and intensified. This and other

considerations indicate the advisability of changing time-

tables and certain aspects of the parties’ participation in

some of the programs which are the subject of subpara-

graphs (a) through (d) of paragraph 12.

IT IS THEREFORE ORDERED that:

1. (a) Paragraph 12(a) is hereby amended by chang-

ing the date of July 1, 1980 to December 15, 1980, and add-

ing thereafter the following: The State defendants, the

A-42

United States, and the St. Louis Board of Edueation are

rdered to develop a closer and more efficient cooperation

among themselves for the pursuit of the objective hereof,

In particular, they are directed to establish close liaison

procedures and prepare concrete and specific proposals

involving the county school distriets and evaluate all

other reasonable proposals, including any from county dis-

tricts, and intensify their joint efforts. While the results

disclosed in the Updating Report of the St, Louis Board

of Edueation of September 11, 1980 are encouraging and

represent some tangible achievements, a great deal more

should be aecomplished,

(b) One of the subjects to be considered for voluntary

cooperation between the City and the suburban school

distriets, shall be the study of the feasibility of establish-

ing magnet schools located in suburban districts with at-

tendance open to students of both the suburbs and the

City. Consideration may be given to the expansion bevond

the boundaries of St. Louis County into St. Charles and Jet-

ferson Counties subject to limits of distance and praeti-

eality. The location of these magnet schools should be

be determined by agreement between the St. Louis Board of

Education and the suburban school districts involved. The

State and the St. Louis Board of Education will investigate

the availability of funding for this program. A joint re-

port on the status and results ineluding the availability of

technical assistance and funding of this effort should be

given to the Court by the United States, the State defend-

ants, and the St. Louis Board of Edueation on Decem-

ber 15, 1980,

2. The filing date of November 1, 1980 provided for

in paragraph 12(b) of the said Order for a plan to consoli-

date or merge and full desegregation of the vocational

programs is hereby extended to December 15, 1980.

A-43

3. Paragraph 12(c) is hereby amended as to the fel-

lowing provisions: On or before February 16, 1981 the

State defendants and the St. Louis Board of Education

shall prepare and submit to the Court a feasibility plan

of interdistrict school desegregation involving the St. Louis

school district and such suburban school districts, that will

provide complete and lasting school desegregation. These

considerations may apply to those suburban school districts

which are not necessarily confined to the suburban dis-

tricts located in St. Louis County but limited only by eon-

siderations of feasibility and practicality, including reason-

ableness of transportaton times and distances. This feasi-

bility plan should include educational and ancillary com-

ponents such as those outlined in the Court of Appeals’

opinion of March 3, 1980 in this ease, and should specifi-

cally include pupil assignment and administrative reorgani-

zation provisions.

4, The filing date of November 1, 1980 provided for in

paragraph 12(d) of the said Order for a suggested plan to

insure that the operation of federally assisted housing pro-

grams in the St. Louis metropolitan area will facilitate the

St. Louis school desegregetion is hereby extended to No-

vember 17, 1980.

5. Dr. Gary Orfield and Edward T. Foote shall econ-

tinue their work of coordination and assistance to the

parties, particularly those having direct responsibility

under any of the foregoing paragraphs. It is expected

that Dr. Orfield will be available to assist the State de-

fendants who will take the leading role in developing the

feasibility plan under paragraph 12(¢) as amended herein.

Dr. Orfield is authorized, upon notice to the Court and the

parties, to engage such additional experts and develop such

additional information as he deems necessary in the per-

formance of his court-designated duties. Dr. Orfield shall

A-44

submit to the Court on November 17, 1980 an interim

status report on the progress that is being made by the

parties in the development of their respective reports to

the Court. Dr. Orfield shall submit a final, substantive

report three weeks after the date on which the three

parties referred to submit the plans and reports required

of them.

DATED this 17th day of September, 1980.

James H. Meredith

United States District Judge

A-45

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al., ,

Plaintiffs,

THE BOARD OF EDUCATION OF

THE CITY OF ST, LOUIS,

MISSOURI, et al.,

» No, 72-100-C (C)

Defendants. |

ORDER

A memorandum dated this date is hereby incorporated

into and made a part of this order.

IT IS HEREBY ORDERED that:

1. Pursuant to paragraph 12(a) of the Court’s Order

of May 21, 1980 (as amended September 17, 1980), the

State of Missouri and particularly the State Board of

Edueation and the Commissioner of Education of the State

of Missouri shall submit a new plan of voluntary and co-

operative desegregation on or before February 2, 1981, The

plan shall encompass each district within St. Louis County.

Jefferson and St. Charles Counties shall also be included

for use of magnet schools to be located in St. Louis City

and County.

2. The State of Missouri shall report back to the

Court on March 2, 1981 as to those districts in St. Louis

A-46

County, Jefferson and St. Charles Counties that are will-

ing to participate in the plan and those that are not will-

ing to participate in the plan. The report of March 2, 1981

shall include the number of students that each district is

willing to receive and those that they desire to send out-

side of their district, either to magnet schools in the County

or in the City of St. Louis, including the race and grade of

those students.

DATED this 19th day of December, 1980.

J. H. Meredith

United States District Judge

A-47

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al., )

Plaintiffs,

THE BOARD OF EDUCATION OF [

THE CITY OF ST. LOUIS, Missouri,

et al.,

No. 72-100-C (C)

Defendants.

MEMORANDUM

On December 15, 1980, the State of Missouri sub-

mitted a plan pursuant to paragraph 12(a) of the Court’s

Order of May 21, 1980. The Court has examined the plan

as well as the joint report filed by the United States and

the Board of Education of the City of St. Louis.

This Court is well aware of the problems encountered

by the Board of Education of the State of Missouri attempt-

ing to obtain the voluntary cooperation of the County

school districts in a plan which would assist in the desegre-

gation of the City schools. The Court is also aware that the

State of Missouri has appealed the orders of this Court;

arguments on these matters have been heard by the United

States Court of Appeals for the Kighth Cireuit. However,

the fact remains that the Court of Appeals for the Eighth

Circuit has found that the State of Missouri as a matter

of law has a duty to eliminate segregation in the schools

of this State. That Court also suggested to this Court that

an effort be made to work out a voluntary plan of integra-

A-48

tion within the County school distriets. See Adams vy.

United States, 620 F.2d 1277, 1296 (8th Cir. 1980).

It is the opinion of this Court that the plan submitted

by the State of Missouri is insufficient for this Court to

make a determination as to whether or not it is feasible

to pursue further the voluntary avenues of integration

with the County schools. Various parties of this suit have

indicated that it is their intention to add as parties to this

suit a number of the districts in St. Louis County as well

as the school districts in Jefferson and St. Charles Counties

if a voluntary plan cannot be formulated. In one last

effort to promote a voluntary plan, this Court will order

the State of Missouri, and particularly the Board of Edu-

cation for the State of Missouri and the Commissioner of

Ecéueation for the State of Missouri, to submit another

voluntary and cooperative plan on or before February 2,

1981.This plan shall contain the following:

1. The number of students that each district in the

County can accommodate caused by the decrease in the

number of students between the school years 1979-80 and

the beginning of school year 1980-81.

2. Specifie details for each district on the number of

teachers, available space, and the desirability of its loea-

tion for students from either the City of St. Louis or other

districts within the County.

3. The present racial mixture of cach school district

in St. Louis County.

4.A plan providing for the interchange of students

between the districts of the County in order to achieve

more integration, and between the County and the City.

5. Specifie recommendations for locations of magnet

schools and the manner in which they may be implemented

both on a part-time and a full-time basis for students within

the County and from the City.

A-49

6. Specific financial estimates of costs and the means

whereby the plan may be financed. The burden of finane-

ing will be borne primarily by the State of Missouri and

shall discuss the possibilities of :

a. New legislation;

b. A fiseal incentive bill so that the districts participat-

ing will enhance their situation by participating;

c. Money to be taken from surplus of the State and

given to the State Board of Education to pay the cost of

transportation and additional expenses involved; and

d. Remuneration from the federal government on such

plans,

7. Specifics as to the types and locations of magnet

schools within the County. The plan should be specific on

how the locations have been chosen, Locations shall be

chosen ip a fashion that would allow students from Jeffer-

son County and St. Charles County to participate in the

magnet schools if they desire.

The State of Missouri has a strong, effective Depart-

ment of Education. It has a great deal of expertise and

experience and should experience little difficulty in draw-

ing and implementing a plan of voluntary and coopera-

tive integration which is edueationally sound and com-

prehensive. The Court will be looking forward to its com-

prehensive report to be filed on February 2, 1981. This re-

port shall assume that each district in the County will

participate in the voluntary and cooperative plan, The plan

shall encompass every district in St. Louis County,

When the plan is filed on February 2, 1981, it shall

also be sent to all parties of this litigation and to every

district in St. Louis County as well as St. Charles and

Jefferson Counties.

A-50

The Department of Education of the State of Missouri

shall then contact each district in the County and report

back to the Court on March 2, 1981. Included in its re-

port shall be a list of those districts in St. Louis, Jefferson

and St. Charles Counties that are willing to participate

and the manner in which they are willing to participate,

Included also shall be a breakdown for each district of the

number of students the district is willing to receive and

the number of students the district is willing to send to

other districts, including the race and grade of those stu-

dents participating. The Department of Education shall

also report on those districts which refuse to participate in

the plan,

DATED this 19 day of December, 1980,

J. H. Meredith

United States District Judge

A-51

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al, |

Plaintiffs,

THE BOARD OF EDUCATION — (No. 72-1000(4)

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.

Defendants, |

ORDER

This matter is before the Court on the Board of Edu-

cation’s motion filed on January 27, 1981, to stay dis-

covery proceedings.

Parties to this nine-year-old suit have continually de-

layed meeting obligations to remedy the effeets of uncon-

stitutional segregation. This Court has been directed by

the Kighth Cireuit Court of Appeals to ‘tcountenance no

excuse for further delay.’’ Liddell vy, Board of Education

of the City of Si, Louis, No, 80-1458, slip op, at 20 n.6

(8th Cir., Feb, 15, 1981). To this end, the Court denied,

on February 26, 1981, State defendants’ motion to stay

Judge Meredith’s order of December 19, 1980, The orders

of this Court must be complied with or action will be

taken against the parties as herein detailed,

For the reasons stated below, the Board’s motion to

stay discovery is granted for a period of sixty days fol-

A-d2

lowing the date of this order, except insofar as discovery

relates to the Special School District. In addition, the State

defendants, in conjunction with the City Board of Educa-

tion and the United States, shall comply with Judge Mere-

dith’s order dated December 19, 1980, within sixty days

of the date of this order, with an interim progress report

to be filed within thirty days.

I. Background,

Prior to the Supreme Court holding in Brown v, Board

of Education, 347 U.S. 483 (1954), the State of Missouri

required segregation in schools by law. The State Consti-

tution provided that:

Separate schools shall be provided for white and

colored children, except in cases otherwise provided

for by law. Mo, Const. art. TX, § 1(a) (1945).

Several state statutes similarly required segregation in

publie schools, See, e.g., Act of February 6, 1847, § 1, 1847

Mo, Laws 103; Act of February 17, 1865, § 13, 1865 Mo,

Laws 170; Act of June 11, 1889, § 7051la, 1889 Mo, Laws

226. For example, one statute in effect at the time Brown

was decided provided that

Separate free schools shall be established for the edu-

cation of children of Arican descent; and it shall herein

be unlawful for any colored child to attend any white

school, or for any white child to attend a colored

school. Mo, Rev, Stat. § 163.130 (1989),

Until 1954, any school board in the State of Missouri

attempting desegregation would have found itself in vio-

lation of the Constitution and statutes of the State of Mis-

souri,

In these circumstances, the State of Missouri stands

before this Court in a different light than do other parties

in this case.

A-53

Eighth Circuit Court of Appeals Mandate: March 3,

1980

On March 3, 1980, the Eighth Cireuit Court of Ap-

peals found that the Board of Education of the City of St.

Louis had failed to integrate the ‘state-mandated segre-

gated [school] system’’ as required by the Supreme Court's

mandates of Brown v. Board of Education, supra; 349

U.S. 294 (1955). Adams v. United States, supra at 1280,

The Court of Appeals directed the district court to require

‘‘the Board of Education, in conjunction with the par-

ties... to develop and implement a plan that will integrate

the St. Louis public schools.’’ Jd.

District Court Orders

On May 21, 1980,, Judge Meredith ordered State de-

fendants, the United States and the City Board of Eduea-

tion [hereinafter ‘‘ Polities’’]:

12(a) To make every feasible effort to work out with

the appropriate school districts in the St. Louis County

and develop, for 1980-81 implementation, a voluntary,

cooperative plan of pupil exchanges which will assist

in alleviating the school segregation in the City of

St. Louis, and which also insures that inter-district

pupil transfers will not impair the desegregation of

the St. Louis school district ordered herein, and sub-

mit such plan to the court for approval by July 1, 1980,

The Court hereby reaffirms Judge Meredith's Order

in directing the City Board and the United States to eo-

operate in the preparation of such a plan.

Delay of Compliance with Court Orders

The questions here presented are not new to this

Court. State defendants have repeatedly made application

to this and other courts in an effort to delay compiiance

with Judge Meredith’s orders.

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It is clearly established that unconstitutional segrega-

tion of public schools must be remedied ‘‘ with all deliberate

speed.’’ Brown v. Board of Education, supra, 349 U.S, at

201. See, e.g., Green v. County School Board of New Kent

County, 391 U.S. 430, 489 (1968) (‘*The burden on a school

board today is to come forward with a plan that promises

realistically to work and promises realistically to work

now.’’); Griffin v. County School Board of Prince Edward

County, 377 U.S. 218, 234 (1963) (‘*The time for mere ‘de-

liberate speed’ has run out... .’’).

Notwithstanding a clear constitutional obligation, the

following chronological review illustrates defendants’ con-

tinual delay and failure to comply.

A. June 17, 1980: State defendants appealed Judge

Meredith’s Order to the Eighth Cireuit Court of Appeals.

On August 15, 1980, the Appeals Court denied the request

for a stay.

B. June 20, 1980: Judge Meredith extended the dead-

line for filing a 12(a) plan until July 14, 1980,

July 14, 1980: Defendants submitted an Interim Joint

Report and Judge Meredith granted defendants an exten-

sion until August 22, 1980, in which to file a final report.

August 22, 1980: Defendants submitted a Second In-

terim Joint Report.

C. September 2, 1980; Mr, Justice Blackmun denied

the State defendants’ request for a stay of Judge Mere-

dith’s May 21, 1980, ruling.

September 9, 1980: Mr. Justice Rehnquist denied the

same request.

D. September 17, 1980: Judge Meredith amended

paragraph 12(a) of the order dated May 21, 1980, by chang-

ing the date of July 1, 1980 t

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