Appendix — Leggett v. Liddell

| A ; oes:

83-1386 a

() Uflice - St me Court,

Di ¥

KILLED

ALEXANDER L. STEVAS

IN THE pian

Supreme Court of the United States

OcTOBER TERM, 1983

Hon. RonwaAp A. LEGGETT,

Collector of Revenue of the City of St. Louis,

Hon. Pau. M. BERRA,

Comptroller of the City of St. Louis,

and

the Crry OF St. Louis,

Petitioners,

_-

CRATON LIDDELL, etc., et al.

Respondents.

On Petition for Writ Of Certiorari To The

United States Court of Appeals for the Eighth Circuit

APPENDIX

Volume II

ANTHONY J. SESTRIC JAMES J. WILSON,

1015 Locust Street City Counselor

Suite 1110 *RoBerRT H. DiERKER, JR.

St. Louis, Missouri 63101 FRANCIS M. OATES a>

(314) 241-8600 Associate City Counselors

EpwaArD J. HANLON

Assistant City Counselor

314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Petitioners

*Counsel of Record

EE

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

Interim Orders of Court of Appeals ............. A-351

Orders of District Court Relating to Taxes and

ea SOR oe ee re ee eee A-363

February 8, 1984 Opinion of Court of Appeals.... A-406

| tee ease

} a a

*

(eee?

— A-351 —

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1957

Craton Liddell, et al,

Plaintiffs/ Appellees,

Vv.

State of Missouri, et al,

Pefendants/Appellants.

Appellant’s Application for

Stay; Separate Stay Requested

by St. Louis County.

No. 83-2118

Craton Liddell, et al,

Plaintiffs/ Appellees,

Vv.

City of St. Louis,

Plaintiff-Intervenor/ Appellant.

Appeal by City of St. Louis;

Application for Stay by

St. Louis County.

No. 83-2140

— A-352 —

In Re: City of St. Louis, Paul

Berra and Ronald A. Leggett,

Petitioners.

Petition for Writ of Prohibition.

Submitted: September 2, 1983

Filed: September 13, 1983

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS,

McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and

BOWMAN, Circuit Judges. EN BANC.

— A-353 —

ORDER

The State of Missouri and St. Louis County have filed ap-

plications for a stay pending appeal in opposition to a voluntary

desegregation plan recently approved by the district court for

the St. Louis area schools. The City of St. Louis has filed a

petition for a writ of prohibition against the plan. Two objec-

tions are raised: (1) the plan imposes an interdistrict remedy bas-

ed on intradistrict violations, and (2) the plan’s provisions call-

ing for the district court to exercise authority over school tax

rates under certain contingencies conflicts with the principle of

separation of powers. For the reasons discussed below, we deny

the applications for the stay subject to the exceptions noted, and

reserve a ruling on the petition for the writ of prohibition until

we hear the appeals on the merits. We express no opinion on

the merits of the serious questions raised on appeal at this stage

of the proceedings.

BACKGROUND

On July 5, 1983, the United States District Court for the

Eastern District of Missouri approved a settlement plan calling

for the further desegregation of St. Louis schools. The plan had

previously been approved by the Liddell plaintiffs, the Caldwell

plaintiffs, the City Board of Education, and by all twenty-three

suburban school districts in St. Louis County.

The plan provides for voluntary interdistrict transfers bet-

ween city and suburban schools, and includes incentives to en-

courage these transfers. It calls for improvement in the quality

of education in the city schools, and the establishment of addi-

tional magnet schools to attract suburban white students to the

city schools. It requires additional special educational im-

provements in the all-black schools.

The plan further provides that the state will be responsible for

the costs of the voluntary interdistrict transfers, the magnet

schools, and various part-time and alternative integrative pro-

— A-354 —

grams, plus one-half the cost of the programs to improve the

quality of education in the city schools, and one-half the cost of

the capital improvements required to carry out the plan. The

state is to match equally any amount raised for capital expen-

ditures through a voter-approved bond issue to be held prior to

February 1, 1984.' The City Board is required to pay the re-

maining costs.

The plan also provides that the school tax rate reduction pur-

suant to state law (Proposition C) will be deferred to help fund

the Board’s share of implementation costs. If the city still does

not have sufficient revenues to implement the plan, the plan

provides that ‘‘the court will enter an appropriate order, follow-

ing notice and an opportunity to be heard on the amount, to in-

crease the property tax rate in the City of St. Louis by an

amount necessary to fund the city board’s share of the costs of

the settlement plan.’”’

' The district court’s financial adviser found that an existing debt

service levy of $ .17, scheduled to be retired in February, 1984, could

support a new $20 million bond issue amortized over twenty years

without an increase in property taxes.

? The voluntary plan emerged after months of intensive negotia-

tions, directed by court-appointed experts, and participated in by the

Liddell, Caldwell, and City Board plaintiffs, and by all twenty-three

St. Louis County school districts. An agreement was finally reached

after the district court disclosed, in an August 6, 1982, order, the plan

it would implement in the event the parties were unable to agree to a

voluntary plan and the suburban school districts were found liable for

constitutional violations. The district court’s proposed plan essential-

ly called for one uniised metropolitan school district divided into four

subregions with a uniform tax rate, and a metropolitan-wide student

transfer transportation system.

The district court had originally set February 14, 1983, as the date

for trial on interdistrict liability, but postponed this trial from time to

time to allow the parties the opportunity to resolve their differences.

ee ees

— A-355 —

The plan is currently being implemented. School opened in

several suburban districts prior to Labor Day and opened in the

remaining suburban districts on September 6 and in the city

schools on September 7.

DISCUSSION:

The Motion for a Stay

We noted the applicable standards for granting a stay pending

appeal in Reserve Mining Co. v. United States, 498 F.2d 1073,

1076-1077 (8th Cir. 1974). After a careful review of the record,

the applications for a stay, the opposition briefs, and oral argu-

ment, we are convinced that the applications should be denied

with the exceptions noted below.

The controlling factor in our judgment is the public interest.

When the public interest is weighed in conjunction with the

harm to the appellants and the appellees, we feel it would be im-

provident to grant the stay.

First, the timing of the applications suggests we not exercise

our discretion in favor of issuing a stay. The settlement plan

was approved by the district court on July 5, 1983. Motions for

a stay were filed in district court by the state and St. Louis

County on July 26 and August 8, respectively. The time has

simply been inadequate to permit the thorough consideration

this matter requires. We will hear the matter en banc on the

merits in November. By that time, the parties will have fully

briefed the matter and we will have had the opportunity to con-

sider thoroughly the record and the briefs.

Second, the school districts have already begun to implement

the voluntary plan. Issuance of a stay would necessitate

reassigning students and teachers, discontinuing student

transportation to county schools, and revising administrative

decisions concerning budgeting, orientation, and hiring. The

lives of thousands of students and teachers would be disrupted

before this Court had decided the matter on the merits.

— A-356 —

The exceptions to our denial of the stay order are as follows:

(1) Paragraph 5(e) of the district court’s July 5, 1983, order

provides:

(e) the State of Missouri shall pay in full the costs of

transportation of the interdistrict transfer students; the

reasonable, actual costs to implement incidental programs,

such as the student recruitment efforts, any community in-

volvement centers, the Voluntary Interdistrict Coor-

dinating Council (VICC) and its staff, the Recruitment and

Counselling Center and its staff and offices, and parent in-

volvement programs; and reasonable attorney’s fees that

may be awarded to the prevailing plaintiffs City Board,

Caldwell, and Liddell.

The provisions of paragraph 5(e) may be implemented as

ordered, with the exception that the city and suburban school

districts shall not further recruit or accept interdistrict transfer

pupils other than those who have indicated an intention to

transfer prior to the date of issuance of this order.

(2) Paragraphs 6(b) and (c) of the district court’s July 5, 1983,

order provide:

(b) the City Board shall submit to its voters, on or before

February 1, 1984, a proposed bond issue of an amount

determined by the City Board as sufficient to meet those of

its capital improvement needs as are deemed necessary to

meet its constitutional obligation to desegregate the City’s

public schools;

(c) should that bond issue fail to obtain the two-thirds

majority vote required by State law, the Court will con-

sider an appropriate order to obtain the funds deemed suf-

ficient to meet the capital improvement needs of City

Board in complying with its constitutional obligation to

desegregate the City’s public schools[.]

AGT —

2 nnn inher eine

The vote on the bond issue referred to in paragraph 6(b) may

proceed as scheduled. If the issue receives the required voter ap-

proval, the bonds may be issued. If it fails to receive voter ap-

proval, the district court shall defer further consideration of or

action on any alternative measures to meet the capital needs of

the City Board with respect to desegregation until further order

of this Court.

(3) Paragraphs 6(a), (d), (e) and (f) provide as follows:

(a) the City Board shall certify to the Court, on or before

July 15, 1983, the amount needed to meet its share of the

reasonable actual costs of implementing programs pur-

suant to the Settlement Plan, as approved, as well as the

tax rate necessary to fund these costs;

** * &

(d) the City Board is hereby authorized ana directed not

to reduce its operating levy in the City of St. Louis as of

July 1, 1983, as otherwise required by Mo. Rev. Stat. §

164.013 (Proposition C). The State shall not withhold

from the City Board funds that the State would otherwise

withhold pursuant to Proposition C. The amount of

revenue retained by the City Board by reason of not reduc-

ing its operating levy shall be utilized to fund the im-

plementation of programs needed to meet City Board’s

consitutional obligation to desegregate the City’s public

schools pursuant to the Settlement Plan, as approved.

. Any revenue retained but not necessary to fund City

Board’s constitutional obligation shall be applied to reduce

its operating levy on July 1, 1984;

(e) in the event the above funding orders fail to provide

the necessary funds, the Court will consider an appropriate

order, following notice and an opportunity to be heard on

the amount, to increase the City Board’s property tax rate

by an amount reasonably necessary to fund the City

— A-358 —

Board’s share of the costs of impiementing the Settlement

Plan programs pursuant to City Board’s consitutional

obligation to desegregate the City’s public schools; and

(f) in its discretion, City Board may use other sources

available to it to fund its share of the programs im-

plemented pursuant to the Settlement Plan, as approved.

To conform this order with the prior decree of the Eighth

Circuit, Liddell, supra, 677 F.2d at 631, any outside funds

received by City Board for the purpose of implementing

these programs may first be applied to reduce the City

Board’s share of the costs of the programs and then ap-

plied to reduce the State’s share of the costs of the pro-

grams.

The Board has thereto made the certification required by

paragraph 6(a). The provisions of paragraph 6(d) may be im-

plemented as ordered. The provisions of paragraph 6(e) may be

implemented as ordered, but the district court shall not issue

any order increasing the City Board’s tax rate until further order

of this Court. The provisions of paragraph 6(f) may be im-

plemented as ordered.

The Petition for Writ of Prohibition

We defer action on the writ of prohibition until such time as

we consider the appeals that have been filed on the merits.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS FOR THE

EIGHTH CIRCUIT.

eee

— A-359 —

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1957

Craton Liddell, et al,

Appellees,

v.

State of Missouri, et al,

Appellants.

On State Appellants’

Application for Limited

Stay.

Filed: September 30, 1983

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS,

McMILLIAN,ARNOLD, JOHN R. GIBSON, FAGG and

BOWMAN, Circuit Judges, En Banc.

ORDER

The motion of state appellants to stay appellees from in-

stituting any of the provisions of Section IV, Quality Education,

including the Appendix and Exhibit 2 as approved by the

district court in paragraphs 1 and 2 of its order [H(2503)83] is

denied.

The motion of the same parties to stay the implementation of

paragraph 6(b) of the district court’s order [H(2503)83], requir-

ee

hag

— A-360 —

ing the City Board to submit to its voters a bond issue for capital

improvements, is denied.

The motion of the same parties to stay further transfer of

students is granted insofar as the transfer of students residing in

the City District to the County District are concerned. Other

pending applications involving the transfer of County students

to the City schools and County students to other County

schools may be made.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

— A-361 —

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 83-1957, 83-2118 & 83-2140

Craton Liddell, et al,

Appellees,

Vv.

State of Missouri, et al

Appellants.

On Motion to Modify Order of

September 13.

Filed: September 30, 1983

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS,

McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and

BOWMAN, Circuit Judges, En Banc.

ORDER

The motion of the Honorable Paul M. Berra, Comptroller of

the City of St. Louis, and the Honorable Ronald A. Leggett,

Collector of Revenue of the City of St. Louis, to modify this

Court’s order of September 13, 1983, to expressly authorize the

petitioners to place funds collected by reason of paragraph 6(3)

of the district court’s order of July 5, 1983, in a separate escrow

account pending disposition of a petition for writ of prohibi-

tion, No. 83-2140, is denied.

— A-362 —

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

— A-363 —

APPENDIX J

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72-100C(3)

Craton Liddell, et al.,

Plaintiffs,

v;

The Board of Education

of the City of St. Louis,

State of Missouri, et al.,

Defendants.

ORDER

(Filed Jan. 10, 1984)

A memorandum dated this day is hereby incorporated into

and made a part of this order.

IT IS HEREBY ORDERED that City Board’s motion,

H(2821)83, dated December 15, 1983, be and the same is

granted to the extent it seeks to add the Collector of Revenue of

the City of St. Louis as a party to this proceeding. In all other

respects, City Board’s motion, H(2821)83, remains under con-

sideration. Accordingly,

IT IS HEREBY FURTHER ORDERED that the Honorable

Ronald A. Leggett, Collector of Revenue of the City of St.

Louis, be and he is added as a party to these proccedings.

Dated this 10th day of January, 1984.

William W. Hungate

United States District Judge

— A-364 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72-100C(3)

Craton Liddell, et al.,

Plaintiffs,

Te

The Board of Education

of the City of St. Louis,

State of Missouri, et al.,

Defendants.

MEMORANDUM

(Filed Jan. 10, 1984)

This matter is before the Court on City Board’s motion to

join party and for order to enforce and protect prior orders,

H(2821)83, dated December 15, 1983. Only the City of St.

Louis and Collector of Revenue responded to this motion,

H(2835)83, dated December 27, 1983.

By its motion, City Board asks the Court specifically (a) to

add the City of St. Louis Collector of Revenue (Collector),

Honorable Ronald A. Leggett, as a party' to these proceedings;

and (b) to order the City of St. Louis (City) and Collector to pay

' While the motion does not state explicitly whether City Board

seeks to add the Collector as a defendant or as a plaintiff, City

Board’s supporting memorandum notes ‘‘[t}his Court . . . has the in-

herent authority under Rules 19({a) and 21, Fed. R. Civ. Proc. to add

Leggett as a party defendant.”” Memorandum at 5-6, H(2821)83,

dated December 15, 1983 (footnote omitted). Furthermore, the City’s

and Collector’s joint response in opposition to the motion begins by

stating ‘‘City Board has moved, H(2821)83, to join the Collector of

Revenue of the City of St. Louis, Hon. Ronald A. Leggett, as a party

defendant[.}’’ H(2825)83 at 1, dated December 27, 1983.

— A-365 —

to City Board certain school tax receipts, as well as interest and

penalty. City Board argues that, pursuant to statutory and city

charter provisions governing the duties of the Collector, the

Collector has no discretion regarding payment of school tax

monies collected by him and must pay such revenues to City

Board in a timely fashion. Here, however, City Board contends

the Collector has not paid an amount of revenues approximately

equal to the total amount collected pursuant to paragraph 6(d)

of this Court’s order of July 5, 1983. The revenues City Board

alleges are unlawfully withheld by the Collector are ‘‘necessary

to implement the orders of this Court.’’ Finally, City Board

alleges that the ‘‘action by the City of St. Louis and Leggett

wrongfully interferes with and prevents City Board from fun-

ding its obligations pursuant to this Court’s directives and the

law of the case.”’

In opposition to this motion, the City and Collector assert

that, despite disagreement with the Court’s orders, city officials

have certified the tax rate and prepared tax bills, and the Collec-

tor has distributed and received payments on those tax bills.

Arguing that the Collector is ‘‘not under the City’s control,”’

they note that he established an escrow account for the disputed

revenues in consideration of city taxpayers who might otherwise

protest the entire amount of taxes paid, and that the escrow is a

“‘reasonable response’’ to the situation. Finally, in light of their

position that no obstruction of Court orders has occurred, the

City and Collector argue that action by this Court would be

**superfluous.”’

Background

On July 5, 1983, this Court entered an order which stated, in-

ter alia:

For the payment of City Board’s share of the costs [of im-

plementation of the approved Settlement Plan]... .

— A-366 —

(d) the City Board is hereby authorized and directed not

to reduce its operating levy in the City of St. Louis as of

July 1, 1983, as otherwise required by Mo. Rev. Stat. §

164.013 (Proposition C). The State shall not withhold

from the City Board funds that the State would otherwise

withhold pursuant to Proposition C. The amount of

revenue retained by the City Board by reason of not reduc-

ing its operating levy shall be utilized to fund the im-

plementation of programs needed to meet City Board’s

constitutional obligation to desegregate the City’s public

schools pursuant to the Settlement Plan, as approved.

Any revenue retained but not necessary to fund City

Board’s constitutional obligation shall be applied to reduce

its operating levy on July 1, 1984.

Order at 4-5, H(2503)83, dated July 5, 1983.

On August 15, 1983, in addition to filing a notice of appeal,

the City of St. Louis applied for a stay of the July 5, 1983, order

insofar as

it enjoins any reduction in City Board’s tax rate and

assumes continuing jurisdiction over City Board’s tax rate,

pending apeal or other application for relief before the

United States Court of Appeals for the Eighth Circuit. In

the alternative, the City respectfully seeks clarification of

its responsibilities to collect taxes pursuant to H(2503)83,

including direction concerning what rate to collect.

H(2591)83, dated August 15, 1983. In denying the City’s re-

quest for a stay, this Court stated: ‘‘[a]s to the City’s alternative

request, it is not this Court’s practice to render advisory opi-

nions.’’ Order H(2609)83 at 2, dated August 18, 1983.

On or about August 22, 1983, the City, the Collector, and the

Comptroller of the City of St. Louis (Comptroller), Honorable

Paul Berra, filed a petition for writ of prohibition asking the

Eighth Circuit Court of Appeals ‘‘to prohibit [the district court]

— A-367 —

from enforcing or taking further action with regard to [the]

order enjoining the property tax rollback required by Mo. Rev.

Stat. § 164.013 (Proposition C)[.]’’ The appellate court received

responses and heard argument on the writ petition and two

other requests for stays of the July 5, 1983, order. On

September 13, 1983, the court of appeals explicitly held: ‘‘[t]he

provisions of paragraph 6(d) may be implemented as ordered.”’

Liddell v. State of Missouri, Nos. 83-1957, 83-2118, 83-2140,

order at 7 (8th Cir. Sept. 13, 1983)(en banc). The court of ap-

peals also deferred action on the petition for writ of prohibition

‘‘until such time as we consider the appeals that have been filed

on the merits.’ Jd.

On September 21, 1983, the Collector and the Comptroller,

and not the City, asked the Eighth Circuit to modify its

September 13, 1983, order so as ‘‘to expressly authorize peti-

tioners to place funds collected by reason of paragraph 6(d) of

the district court’s order of July 5, 1983, in a separate escrow ac-

count pending disposition of a petition for writ of prohibition,

No. 83-2140.”’ The Eighth Circuit subsequently denied this mo-

tion. Liddell v. State of Missouri, Nos. 83-1957, 83-2118,

83-2140, order (8th Cir. Sept. 30, 1983)(en banc).

Discussion

Rule 19(a)(1) of the Federal Rules of Civil Procedure requires

joinder of a person who is subject to service of process and

whose joinder will not deprive the court of subject matter

jurisdiction, if ‘‘in [the person’s] absence complete relief cannot

be accorded among those already parties[.]’’

The advisory committee notes to Rule 19(a) specifically state

that persons should be joined if, in their absence, ‘‘the court

would be obliged to grant partial or ‘hollow’ rather than com-

plete relief io the parties before the Court.’’ 1966 Advisory

Committee Note to Rule 19, 39 F.R.D. 89, 90 (1966). Accord 7

Wright, Miller & Kane, Federal Practice & Procedure: Civil

$1604 at 4 (Supp. 1982).

—

Under the present circumstances of this case, as more fully

described above, and assuming, arguendo, for the purposes of

this motion, that City Board’s allegations are true, the relief

ordered by this Court and affirmed by the Eighth Circuit will

not be fully effectuated unless the Collector is joined as a party

to this action. The Collector, moreover, has invited himself into

these proceedings to the extent he seeks extraordinary relief

from the Eighth Circuit.

While there is authority for the imposition of remedies on

those who are nonparties and who have actual notice of the

court’s orders, see Harvest v. Board of Public Instruction, 312

F.Supp. 269, 276-82 (M.D. Fla. 1970)(ordered relief imposed

against nonparty state officials for noncompliance with

remedial order in school desegregation case); United States v.

Hall, 472 F.2d 261 (Sth Cir. 1972)(federal court had power to

impose sanctions on nonparty for willful violation of order in

school desegregation case), this Court determines it more

reasonable ard equitable to join the Collector to insure all in-

terested parties complete relief throughout these proceedings.

The Court will grant City Board’s motion to the extent City

Board seeks to add the Collector as a party to these proceedings,

but will retain under consideration the other requests of the mo-

tion.

Dated this 10th day of January, 1984.

William W. Hungate

United States District Judge

cs

— A-369 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72-100C(3)

Craton Liddell, et al.,

Plaintiffs,

V.

The Board of Education

of the City of St. Louis,

State of Missouri, et al.,

Defendants.

SHOW CAUSE ORDER

(Filed Jan. 10, 1984)

This matter is before the Court on City Board’s motion to

join party and for order to enforce and protect prior orders,

H(2821)83, dated December 15, 1983. Only the City of St.

Louis and its Collector of Revenue responded to this motion,

H(2835)83, dated December 27, 1983.

In particular, City Board asks this Court to order the City of

St. Louis (City) and its Collector of Revenue (Collector) to pay

to City Board certain school tax receipts, as well as interest and

penalty thereon.

Having added the Collector of Revenue as a party to these

proceedings, and having carefully considered this matter,

IT IS HEREBY ORDERED that on or before February 2,

1984, the Collector and the City shall each show cause why they

should not be ordered immediately to pay over to City Board

the amounts in dispute, together with interest and penalty

thereon.

— A-370 —

IT IS HEREBY FURTHER ORDERED that, on or before

February 2, 1984, the Collector shall show cause (a) why he

should not be held in contempt for failure to follow orders of

this Court, specifically H(2503)83 at 5-6, paragraph 6(d), dated

July 5, 1983, as affirmed by the United States Court of Appeals

for the Eighth Circuit, Liddell v. State of Missouri, Nos.

83-1957, 83-2118, 83-2140, order at 7 (8th Cir. Sept. 13,

1983)(en banc); see also Liddell v. State of Missouri, Nos.

83-1957, 83-2118, 83-2140 order (8th Cir. Sept. 30, 1983)(en

banc); and (b) why he should not be held personaily liable for

any interest or other penalty or costs incurred by the City on ac-

count of his activities relating to the disputed funds.

To comply with this show cause order, the City and its Collec-

tor may file their affidavits, briefs, and other documentation

supporting their own positions.

If IS HEREBY FURTHER ORDERED that the United

States Marshal be and he is directed to serve personally the

Honorable Ronald A. Leggett, Collector of Revenue of the City

of St. Louis, with a copy of this show cause order.

Dated this 10th day of January, 1984.

William W. Hungate

United States District Judge

— A-371 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72-100C(3)

Craton Liddell, et al.,

Plaintiffs,

Vv.

The Board of Education of the

City of St. Louis, State of Missouri, et al.,

Defendants.

(Filed September 22, 1983)

ORDER

This matter is before the Court on the Report and Recom-

mendation of United States Magistrate, H(2608)83, dated

August 18, 1983, and parties’ objections thereto, H(2629)83

(Hazelwood School District), and H(2634)83 (State

defendants), dated August 29, 1983.

This funding and budget order is issued in accordance with

the mandate of the United States Court of Appeals for the

Eighth Circuit, dated September 13, 1983. Thus, by this order,

the Court does not intend to approve or require the par-

ticipating districts’ further recruitment or acceptance of inter-

district transfer pupils other than those who have indicated an

intention to transfer prior to September 13, 1983. Liddell v.

State of Missouri, Nos. 83-1957, 83-2118, 83-2140, slip op. at 5

(8th Cir. Sept. 13, 1983)(order). Nor does this Court express or

intimate any opinion on the possibility or merits of any ‘‘alter-

native measures to meet the needs of the City Board with respect

to desegregation’’ or of any ‘‘order increasing City Board’s tax

rate.’’ Id., slip op. at 6, 7.

— A-372 —

The Court recognizes this Settlement Plan is a new and in-

novative program. It is difficult to know with precision what the

actual costs will be or what economies can be accomplished con-

sonant with the objectives of the settlement. Therefore, the

Court reserves the right to review and revise future budget items

after there is actual experience upon which to base these finan-

cial decisions. The Court acknowledges that certain budgetary

decisions must be made now or the Plan may founder before it

has fairly begun.

Noting that a page of experience is worth a volume of logic,

the Court will direct the financial adviser to review, analyze,

and report on the budgeting, funding, and financing of the

Plan’s implementation. These reports will provide recommen-

dations, if any, for alterations in the funding, financing, and

payment provisions of the approved Plan. The first report

should be filed on or before December 31, 1983, and quarterly

thereafter until further order of Court.

State defendants object to the Magistrate’s recommendation

that the State separately pay costs incurred by Hazelwood in

transporting students seeking to transfer to another school

within the district. Hazelwood would not have provided the in-

tradistrict transfer option and would not have incurred any such

transportation costs if it had not participated in this approved

Plan. Therefore, the Court is not persuaded by the State’s con-

tention that there is no ‘‘program’’ for which the State must

pay. Even the language of the Plan and the Order approving it

allows allocation to the State of these costs. Although Section

VIII of the approved Plan limits the State’s responsibility for

providing transportation to interdistrict transfers, the Plan’s

language requiring the City Board and State to share the costs of

transporting transferring students, and the Order’s language at

44 5(c) and 5(e), which allocate to the State costs of incidental

programs and of programs outside the boundaries of the City of

St. Louis, permit such an allocation. Thus, the Magistrate’s

recommendation will be followed. To the extent possible, state

— A-373 —

transportation aid shall be applied to defray these transporta-

tion costs. Furthermore, the Court encourages the parties’ ef-

forts to reduce the costs of trensportation where such reduc-

tions do not compromise the safety and quality of that transpor-

tation.

Hazelwood objects to the Magistrate’s failure to recommend

the approval of the district’s request for the State’s separate

payment of $60,000 in estimated legal fees and of $15,539 in ad-

ministrative costs. With regard to the legal fees, Hazelwood

asserts these ‘‘expenses would not be required except to aid im-

plementation of the Plan.’’ H(2629)83 at 2. Hazelwood later

states that the ‘‘fees will increase in direct proportion to the

careful oversight and vigorous defense produced by the State in

challenging the Plan,’’ which implies the fees expended will de-

pend on subsequent litigation of the Plan rather than solely on

implementation of the Plan. Jd. Hazelwood has not established

support for its contention that, even in the absence of contrac-

tual or statutory provisions, shifting of the payment of one

litigant’s legal fees to another litigant is required or authorized

by the terms of the Plan. Without more, the district court will

not overturn the Magistrate’s recommendation that this request

for legal fees not be approved.

Hazelwood also objected to the Magistrate’s failure to ap-

prove $15,539 in administrative costs. Hazelwood acknowledges

that its participation in the Plan will not require the hiring of ad-

ditional personnel but asserts that Plan participation will in-

crease the responsibility of the ‘‘district’s reduced work force.”’

Hazelwood has not established that such added responsibility, if

any, may not be compensated from the home or host district in-

centive payments. Thus, the Magistrate’s recommendation will

be sustained.

The State disputes the Magistrate’s recommendation that the

magnet review committee need not approve magnets listed for

expansion or creation in 1983-1984. Although this Court’s order

— A-374 —

does not explicitly require such approval, it does direct Plan

participants ‘‘to analyze and review the need’’ of each such

magnet. Without reducing the importance of that review, this

Court ascertains that there is no present mandate that the listed

magnets for 1983-1984 and 1984-1985 be approved by a magnet

review committee.

This Court finds that a relatively small county student

population in a magnet school does not justify a prohibition

against expansion of that school. Thus, the Court will follow

the Magistrate’s recommendation approving costs of the foreign

language secondary program at Roosevelt, as well as other

magnets.

The State argues that it should not have to pay administrative

costs in addition to student transfer incentive payments, in the

absence of a school district’s showing that those costs cannot be

defrayed by the amount received in incentive payments. The

Court will approve the State’s separate payment of certain ad-

ministrative costs incurred by participating districts, in accor-

dance with the Magistrate’s report and recommendation.

Although the Court does intend that St. Louis County school

districts be compensated for expenses, in accordance with the

terms of the approved Plan, the Court does not intend to pro-

vide a financial windfall to districts participating in the Plan.

The amount, need for, and use of the transfer payments will be

more easily ascertained after implementation of the Plan.

After review of any recommendations reported by the finan-

cial adviser, the Court may determine that, absent a school

district’s showing to the contrary, all administrative costs

should be defrayed by the incentive payments. At this point, the

Court will adopt the Magistrate’s recommendation for approval

of the State’s separate payment of certain nonmagnet costs of

Affton, Hancock Place, Hazelwood, and Mehlville school

districts.

— A-375 —

In addition to prior arguments against approval of magnet

costs, the State asserts that it should not pay any costs for

magnet schools within the City beyond their start-up costs, ex-

cept in accordance with the terms of an agreement entered into

between the State and Webster Groves. As to capital costs, the

State asserts it should not have to pay these where no sites have

been chosen and where costs go beyond building modification

costs. The Court is not bound by any agreement between other

parties and does not find the Magistrate’s recommendation

unreasonable. Thus, the City Board’s request for $5,308,043.40

for magnets will be approved in accordance with the

Magistrate’s recommendation.

The State objects to City Board’s request that the State pay

the costs of transporting City studenis to City magnet schools.

The Court finds reasonable the Magistrate’s determination that

these are part of the costs of implementing magnets which are to

be paid in full by the State pursuant to { 5(a) of the July 5, 1983,

order. To the extent possible, state transportation aid shall be

applied to defray these transportation costs.

The State contends the Magistrate erred in determining that

the list of programs on pages 26 and 27 of the Memorandum

dated July 5, 1983, was illustrative rather than exhaustive. As

the Magistrate found, the Court suggested priorities in that pro-

gram listing. After suggesting priorities, the Memorandum

acknowledges that ‘‘the Court is not expressing either endorse-

ment or disapproval of all the programs mentioned in the Ap-

pendix or Exhibit 2, nor is the Court intending to limit or

preclude consideration of additional quality education pro-

grams.’” Memorandum, H(2503)83 at 28. Thus, while not en-

dorsing implementation efforts that ‘‘may topple the program”’

through ‘‘overload and waste,’’ the Court will follow the

Magistrate’s recommendations regarding programs not explicit-

ly listed on pages 26 and 27 of the Memorandum.

— A-376 —

State defendants object to the Magistrate’s recommendation

that certain costs requested by City Board for the controller’s

and the treasurer’s offices be approved for separate payment by

the State. The State argues these are part of City Board’s

‘everyday operating costs’’ which should not be transferred to

the Settlement Plan for funding. The Magistrate reasonably

found that ‘‘[a] program’s prior existence or funding status

should not determine whether or not a presently requested

amount should be approved if the present request is not

duplicative, is related to the presently approved program, and is

for a reasonable amount.’’ Without more than the State’s broad

assertion against these costs, the Court will approve the

amounts as recommended by the Magistrate.

The Court is also not persuaded by the State’s objections to

the Magistrate’s recommendations that the Court approve the

requests regarding the alternative high school, the upgrading of

services to handicapped students, the curriculum supervision

program, the library resource center personnel, and the nursing

staff.

At page 16 of his Report and Recommendation, the

Magistrate states: ‘‘[t]o the extent these are costs incurred in im-

plementing part-time programs in the non-integrated schools

and only to that extent, the undersigned finds they should be

paid in full by the State pursuant to paragraph 5(b) of the

Court’s July 5, 1983, order.’’ If there is an understanding that

this Court intended the State to pay one hundred percent of the

costs of the proposed part-time non-integrative program, the

Court takes this opportunity to clarify that misunderstanding.

In 1980, the United States Court of Appeals for the Eighth

Circuit stated that, in a public school system ‘‘deliberately con-

structed and maintained to enforce racial segregation,’’ the

board of education’s establishment of a neighborhood atten-

dance policy did not fulfill its affirmative duty to take steps

necessary to attain a unitary system. Adams v. United States,

om PpST? mx.

620 F.2d 1277, 1285-86 (8th Cir.)(en banc)(quoting Swann v.

Charlotte-Mecklenberg Bd. of Ed., 402 U.S. 1, 28 (1971)), cert.

denied, 449 U.S. 826 (1980). Thus, City Board’s 1954-1956

neighborhood attendance policy and ‘‘continuation transfer’

policy perpetuated and failed to eliminate the segregated City

school system. Adams, supra, 620 F.2d at 1286-87, 1288. The

Eighth Circuit further found that, after 1956, ‘‘[City] Board’s

steadfast adherence to a student assignment policy which did

not desegregate the schools and its use of intact busing, school

site selection, block busing, permissive transfers, and faculty

assignments have preserved segregation in the school system.”’

Adams, supra, 620 F.2d at 1288. In an effort to remedy

segregated conditions, City Board proposed the association of

racially isolated schools for special projects and activities to

‘‘provide opportunity [sic] for significant interracial contacts

and experiences. ..{and] some racial mixing for the remaining

all-black and all-white schools.’’ Jd. at 1292. Although that City

Board plan was not adopted, the Eighth Circuit recognized the

continued existence of one-race schools and the need to develop

and implement ‘“‘less than full-time integrated learning ex-

periences.’’ Jd. at 1296; see also Liddell v. Board of Education,

667 F.2d 643, 648 (8th Cir.), cert. denied, 454 U.S. 1081, 1091

(1981) (‘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 remaining in the

predominantly blac» schools.’’) Subsequently, the Eighth Cir-

cuit reiterated that the district court could ‘‘require that addi-

tional part-time programs be established at state expense to pro-

vide for more integrative experiences for students in all-black ci-

ty schools, including programs which would involve voluntary

participation by suburban schools.’’ Liddell v. Board of Educa-

tion, 677 F.2d 626, 642 (8th Cir.), cert. denied, 102 S.Ct. 172

(1982)(emphasis added). For improving the quality of education

in the remaining all-black schools in the City of St. Louis as part

— A-378 —

of desegregation efforts, the Eighth Circuit has stated that the

district court could require the State and City Board, as defen-

dants, to take ‘‘additional steps’’ to make such improvements.

Id. at 641-42.

Based on the record and the circumstances of this case, it is

both unfair and unreasonable to require the State to pay one

hundred percent of the costs of part-time programs that do not

provide more integrative experiences for students in all-black

City schools. Part-time programs that are not desegregative in

nature are not the main thrust of this case. See, e.g., Liddell v.

Caldwell, 546 F.2d 768, 773 n.10 (8th Cir. 1976), cert. denied,

433 U.S. 914 (1977). Where a part-time program is provided in a

one-race school with students of the same race only par-

ticipating in the program, then the State should not be required

to pay more than one-half the cost of such a program. Cf. Lid-

dell, supra, 677 F.2d at 641-42. To the extent that a part-time

program within a one-race school does not actually enhance

desegregation, then both the State and City Board shall pay

equal shares of the actual reasonable costs incurred in im-

plementing such programs as part of remedial desegregation ef-

forts. This Court will approve the amounts requested for such

programs but will not approve the State’s full funding of those

programs unless they are actually desegregative in nature.

Having carefully reviewed the Magistrate’s Report and

Recommendation, the State’s and Hazelwood’s objections

thereto, as well as the pertinent record, and subject to the provi-

sions of the September 13, 1983, order of the United States

Court of Appeals for the Eighth Circuit,

IT IS HEREBY ORDERED that, to the extent the Report

and Recommendation approved the State’s full payment of the

costs of nondesegregative part-time programs at the non-

integrated schools, the Report and Recommendation is not ap-

proved or sustained. Accordingly,

— A-379 —

IT IS HEREBY FURTHER ORDERED that the State and

City Board shall each pay one-half of the costs of any non-

desegregative part-time programs provided only to students of

one-race schools within the City of St. Louis.

IT IS HEREBY FURTHER ORDERED that in all other

respects, the Report and Recommendation of the United States

Magistrate, H(2608)83, be and the same is sustained, adopted,

and approved. Accordingly,

IT IS HEREBY FURTHER ORDERED that the State shall

make separate payments for Kirkwood’s magnet school,

Clayton’s magnet school, University City’s magnet schools,

Normandy’s magnet schools, and the City Board’s Foreign

Language Secondary magnet school [City Board Ex. 5 at 56].

IT iS HEREBY FURTHER ORDERED that the State shall

make separate payment to the Hancock Place School District

for a total of $29,220.00, as requested.

IT IS HEREBY FURTHER ORDERED that the State shall

make separate payment to Affton School District for a total of

$35,441.09, as requested.

IT IS HEREBY FURTHER ORDERED that the State shall

make separate payment to Mehlville School District for a total

amount of $47,122.00 for a desegregation coordinator and for

workshop expenses, and shall not make a separate payment for

the other costs Mehlville sought.

IT IS HEREBY FURTHER ORDERED that the State shall

make separate payments to Hazelwood School District in the

amount of $103,771.00, as listed in page 12 of the Magistrate’s

report, and shall not make separate payments for the other costs

Hazelwood sought. The State’s obligation to pay shall be reduc-

ed to the extent Hazelwood either does not incur the expenses

for transportation or receives other reimbursement for

transportation expenses.

— A-38) —

IT IS HEREBY FURTHER ORDERED that the amount re-

maining in dispute in the line item ‘‘inflation contingency”’

throughout the City Board’s budget be and the same is not ap-

proved.

IT IS HEREBY FURTHER ORDERED that the State shall

separately pay its share of functions 6903 and 1907 of compo-

nent A902 under 4 5(c) of the July 5, 1983, order, and shall not

separately pay any amounts in the remaining functions of com-

ponent A905 except to the extent those amounts may be paid by

the State pursuant to the terms of { 5(d) of the July 5, 1983,

order.

IT IS HEREBY FURTHER ORDERED that City Board

shall amend its request for approval of costs to ‘‘restore and in-

crease librarians’’ [City Board Ex. 6 at 4-5] so as to seek funding

for one full-time librarian for every three elementary schools,

and aides supplying the remaining staffing needs in these

schools, and as amended the request be and the same is approv-

ed. Furthermore, City Board’s request for funding for one

media specialist for each secondary school and for .5 librarian

be and the same is approved. The State shall separately pay its

share of these costs.

IT IS HEREBY FURTHER ORDERED that the City

Board’s request for postage for the public affairs program be

and the same is approved in the amount of $16,000.00 only, and

the State shall separately pay its share of this approved amount.

IT IS HEREBY FURTHER ORDERED that, on or before

October 3, 1983, the State and the City Board shall submit a

joint written report reflecting all areas of agreement and areas

of disagreement, including the reasons therefor, for each

amount noted in the City Board’s exhibits 2 and 9, regarding the

object code ‘‘not otherwise classified;’’ and any amounts re-

maining in dispute for this object code be and the same are not

approved for this year.

— A-381 —

IT IS HEREBY FURTHER ORDERED that, with the dele-

tion of the amounts required by the above paragraphs, and ex-

cept for nondesegregative part-time programs at non-integrated

schools, all amounts requested by the City Board for full pay-

ment by the State be and the same are approved.

IT IS HEREBY FURTHER ORDERED that the amounts

sought for nondesegregative part-time programs at non-

integrated schools be and the same are approved with funding

shared equally by City Board and State.

IT IS HEREBY FURTHER ORDERED that the City

Board’s remaining requests for programs to be funded by the

City Board and the State equally be and the same are approved

upon deletion of the amounts remaining in dispute; and the

State shall separately pay its share of these costs.

IT IS HEREBY FURTHER ORDERED that, on or before

October 3, 1983, each participating district that submitted a

budget to which the State defendants originally objected shall

file another 1983-1984 budget reflecting the amounts approved

through court order or through agreement with the State.

IT IS HEREBY FURTHER ORDERED that all budget re-

quests to which the relevant parties have agreed be and the same

are approved, and that the State shall pay its share of these ap-

proved budgets. All Plan participants having budgets to which

State defendants agreed shall file a copy of the 1983-1984

budget with the Court on or before October 3, 1983.

IT IS HEREBY FURTHER ORDERED that the State shall

make its payments to the relevant Plan participants and the City

Board shall make its payments in installments according to the

provisions of Order H(1810)82, dated December 17, 1982.

Since the date of the first installment payment, September 20,

has passed, the State and City Board shall make their first in-

stallment payment on or before October 3, 1983.

— A-382 —

IT IS HEREBY FURTHER ORDERED that the objections

of the Liddell plaintiffs be and the same are overruled.

IT IS HEREBY FURTHER ORDERED that, on a quarterly

basis, the Court-appointed financial adviser shall review,

analyze, and report on the budgeting, funding, and financing of

the Plan’s implementation. Each report shall provide recom-

mendations, if any, for alterations in the funding, financing,

and payment provisions of the approved Plan. Plan par-

ticipants shall provide access to the information needed by the

expert to comply with this Order. Parties may file responses, if

any, to each report within ten days after the report is filed. The

first report shall be filed on or before December 31, 1983.

Dated this 22nd day of September, 1983.

William L. Hungate

United States District Judge

— A-383 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 72-100-C(3)

Craton Liddell, et al.,

Plaintiffs,

x

The Board of Education

Of The City Of St. Louis,

State Of Missouri, et al.,

Defendants.

(Filed Aug. 18. 1983)

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE

This matter is before the undersigned United States

Magistrate upon the budget disagreements among the Liddell

plaintiffs, the State defendants, and various St. Louis area

school districts participating in the approved Settlement Plan,

for the 1983-1984 school year. 28 U.S.C. §636(b)(1)(B). A

hearing was held on August 5, 1983.

1. Liddell Objections.

The Liddell plaintiffs object to the failure of the City Board

to implement for 1983-1984 Program Component BI1O0I,

‘‘Lower Pupil-Teacher Ratios in Non-Integrated Schools.’’

They argue that the Court should reject the City Board’s sugges-

tion that for 1983-1984 classroom space limitations do not per-

mit the reduction of pupil-teacher ratios in non-integrated

schools below the reduction proposed for district-wide im-

plementation. At the hearing Dr. Jerome Jones, Superinten-

— A-384 —

dent of the St. Louis schools, testified that 1983-1984 has been

intended as the period of planning for reducing the ratio in

1984-1985 and that some provisions of the voluntary plan will

improve the non-integrated schools in 1983-1984. This position

is reasonable for 1983-1984 and the undersigned will recom-

mend that the objections of the Liddell plaintiffs be overruled.

2. State Objections.

In accordance with the budgeting procedure contained in the

Court’s order approving the Settlement Plan, representatives of

the participating school districts and of the State met to discuss

the proposed budgets, and submitted statements regarding any

outstanding objections. At the hearing, several of the parties

informed the Court that some of the disagreements were then or

would soon be settled. See also Report of State defendants,

H(2573)83, dated August 10, 1983. In addition to outstanding

budget disagreements between the City Board and the State, the

State has objections to budget requests for magnet proposals in

four St. Louis County school districts and to the amounts re-

quested in budgets submitted by four other St. Louis County

school districts. Furthermore, an agreement between the State

and the Webster Groves school district regarding its proposed

budget was submitted to the Court on August 16, 1983.

a. Magnet Schools.

The State objects to various expenditures for magnet schools

because these schools have not yet received the approval of the

Voluntary Interdistrict Coordinating Council or the magnet

review committee. The Court’s memorandum directed ‘‘plan

participants to analyze and review the need of each expanded

and new magnet proposed for 1983-1984 and 1984-1985 prior to

the program’s implementation.’’ Memorandum H(2503)83 at

22. This language does not constitute a requirement that any

committee approve the establishment or expansion of each

magnet. Thus, the undersigned is not persuaded that the State

— A-385 —

defendants’ instant argument justifies disapproval of such

budgets in their entirety. The following magnet school budgets,

to which the State defendants raised only this objection may be

approved in accordance with the agreement reached between the

interested parties:

Foreign Language Magnet $311,035.68

City Board Ex. 5 at So

Kirkwood (no other inagnet budget

presented to the Court) 3,715.00

Clayton (approved by the Court

in April, 1983) 29,026.00

Normandy | 51,510.65

University City 45,540.00

b. County Non-magnet Programs.

The State defendants object to budgets submitted by four

other St. Louis County school districts, because they contain re-

quests for personnel and equipment costs incurred in providing

generai programs to transfer students. The State defendants

assert that no such costs should be approved for payment

separate from the student transfer incentive payments received

by participating districts. The State reasons that the incentive

payments, which are based on each district’s per pupil costs,

provide ‘‘more than enough reimbursement for operational

costs, instructional costs and personnel costs for counselors,

remiedial teachers or ‘coordinators’.”’ H(2532)83 at 4, dated

July 25, 1983. Based upon this reasoning, the State defendants

object to Hancock Place School District’s request for $29,220;

Affton School District’s request for $35,441.09; and Mehlville

School District’s request for $112,942.00; and part of

Hazelwood School District’s request for $247,935.

— A-386 —

c. Hancock Place.

Hancock Place seeks approval of a budget totalling

$29,220.00 for the costs of salary, benefits and travel for a

‘*‘Desegregation Coordinator.’’ H(2532)83, attachment for

Hancock Place School District budget proposals. The costs of

supplies and secretarial help for this newly created staff position

would be provided by the district. Roger Brodbeck, Superinten-

dent of Hancock Place, testified that the district had par-

ticipated in the 12(a) voluntary plan during 1982-1983 and that

during that year, the existing administrators shared, with hard-

ship, the duties of the proposed coordinator. Based upon that

participation and the more than double the 1982-1983 number

of transfer students expected by Hancock Place in 1983-1984,

the district perceives a ‘‘definite, critical need’’ for this position.

For example, Mr. Brodbeck stated that any transportation pro-

blems are an additional strain on the district’s administration

because the district does not provide transportation to its own

resident students. The district’s present administrative person-

nel are comprised of two principals for three elementary

schools; a principal and an assistant principal at the high school;

and a business manager (assistant superintendent) and a

superintendent. Each administrator has one secretary.

Under these circumstances, the undersigned finds that Han-

cock Place’s request for a reasonable amount to cover some of

the expenses for a desegregation coordinator, or a total of

$29,220, is reasonable and should be approved. After this year,

the need and budgets for such an administrator may be reex-

amined in light of Hancock Place’s experience with implemenia-

tion of the plan.

—_*

d. Affton.

Affton seeks approval of a total of $35,441.09 in excess of

any transfer incentives paid to the district.' This amount in-

cludes a full-time coordinator’s salary and fringe benefits

(27,519.15), a half-time secretary’s salary and fringe benefits

($7,384.24), mileage for the coordinator (75.00), printing

($164.00), and equipment ($298.70).

Mr. Anthony Liebig, Director of Business for Affton School

District, stated that the coordinator position, which was created

solely for desegregation purposes during Affton’s participation

in the prior 12(a) voluntary plan, is needed because this district,

of approximately 2,000 students, expects over twice as many

transfer students in 1983-1984 as it had in 1982-1983, and has

only two administrators who cannot absorb the added respon-

siblities.

Under the circumstances, the undersigned finds that this is a

reasonable amount for necessary costs incurred solely because

of Affton’s participation in the approved Settlement Plan.

Thus, the undersigned recommends that the Court approve the

request in the amount of $35,441.09. Again, after this year, the

need and budget for this position may be reexamined in light of

Affton’s experience in implementing the approved plan.

' The budget total of $227,986.17 originally proposed by Affton in-

cluded a total of $188,917.56 for expected transfers. That amount is

not being sought for State payment over and above the State’s incen-

tive payments, and thus is not before the Court for approval. Of the

remaining $39,068.61 in the original budget, Affton agreed that

$3,627.52 (for superintendent costs, business manager costs, and of-

fice space) could be recovered indirectly through the per pupil costs

since the positions and office space already exist within the district.

Thus, the total presently in dispute is $35,441.09.

— A-388 —

e. Mehlville.

Mehlville School District seeks the Court’s approval of a

budget totalling $112,942.00, excluding the amount Mehlville

will receive in student transfer payments. Of this amount,

$39,622 is budgeted for a desegregation coordinator. In support

of this request, Dr. Thomas Blades, Superintendent of

Mehlville, testified that the district, which did not participate in

the prior 12(a) plan, has a present enrollment of approximately

9,400 students and expects to receive up to 300 transfer students

in 1983-1984. In Dr. Blades’ professional opinion, the full-time

desegregation coordinator position, which does not presently

exist within the district, is necessary. Existing personnel have

already taken on additional responsibilities since the district has

recently reduced the number of its regular staff positions.

Mehlville also seeks approval of $7,500.00 for workshops for

administrators, board members, and staff members.

This is Mehlville’s first year of participation in the voluntary

interdistrict transfer plan, with a relatively large number of in-

coming students expected. To assist the district’s staff and the

community in dealing with this participation, the Court should

approve these two requests.

Mehiville’s remaining requests consist of a _ secretary

($12,338), guidance counselor ($35,077), subclerical position

($1,070), various ancillary costs ($6,880), capital expenses

($7,293), and an “‘indirect cost rate’ ($3,162). The undersigned

believes that the district may obtain reimbursement for some, if

not all, of these expenses through the still unbudgeted incentive

payments. Thus, the Court should not approve these costs for

separate payment by the State at this time.

— A-389 —

f. Hazelwood.

Hazelwood proposes a 1983-1984 budget totalling $247,935 in

expenditures and $257,945 in receipts. Hazelwood’s Ex. 1, At-

tachment 3 at 1 and 2. The sum of $68,125 for interdistrict

transfer students should be compensated by the interdistrict stu-

dent transfer payments that are separately made by the State ac-

cording to a formula that is based upon the host district’s per

pupil costs. Compare Hazelwood’s Ex. 1, Attachment 3 at 2,

““(1) Proposed expenditures for 25 interdistrict transfers at

$2,725 ea. (Est. Per Pupil Cost)’’ with id. at 1 and 3, §1, regar-

ding allocation per pupil. Thus, the undersigned recommends

that this sum not be paid by the State other than as the inter-

district student transfer incentive payments Hazelwood will

otherwise receive according to the terms of the plan. As a result

of this exclusion, the budget requests are reduced to $179,810

for payment of intradistrict student transfer transportation

costs (total: $47,115); student activity transportation costs

(total: $33,482); other costs (total: $39,213); and legal fees

($60,000).

Despite State’s objection that such costs might be reimbursed

through the transfer payments, the undersigned recommends

the approval of the requested $21,288 for consultants’ services

and other expenses incurred in conducting the proposed inser-

vice workshops. See Hazelwood’s Ex. 1, Attachment 3 at 4,

§5(a) - (c) and (f). This is Hazelwood’s first year of participa-

tion in any voluntary transfer program and the requested costs

are reasonable.

* The budget originally proposed by Hazelwood totalled $280,922 in

expenditures, and $290,232 in receipts. Hazelwood’s Ex. 1, Attach-

ment 3 at 1 and 2. Dr. Thomas J. Lawson, Superintendent of

Hazelwood School District, testified that, upon review of the budget,

an error of duplication was discovered in the request regarding ‘‘part-

time education programs.”’ To correct the error, the proposed budget

was reduced by $32,987, the amount of the duplication.

— A-390 —

The undersigned is not persuaded, however, that the re-

quested total of $15,539 in administrative costs should be paid

by the State. First, Hazelwood has not shown, as did Affton

and Hancock Place, that its present administrative, personnel, or

economic circumstances require any additional positions or ad-

ministrative expenses in the district’s regular programs. Se-

cond, Hazelwood has not budgeted as an expenditure the

estimated amount it will receive in home district incentive

payments, or a possible total of $10,010. Hazelwood’s Ex. 1,

Attachment 3 at 3, 42. Hazelwood might use such payments to

offset any such expenses. Thus, the undersigned does not

recommend approval of this requested amount.

In addition, the State defendants object to Hazelwood’s re-

quest for a total of $47,115 for costs incurred if forty-four eligi-

ble students seek intradistrict transfer to another school within

Hazelwood. Hazelwood has one school falling within the in-

tradistrict transfer terms of the agreement.

The Court’s language does not prohibit the State’s payment

of Hazelwood’s intradistrict transportation costs. The settle-

ment agreement provided that the City Board and the State

would share certain costs of implementing the approved plan.

Section 10 at X-2. By the agreement’s explicit terms, these

shared costs include ‘‘transportation of transferring pupils,’’

without limitation as to whether or not those transportation

costs were incurred for interdistrict or intradistrict transfer

students.

In approving the Settlement Plan, the Court explicitly

allocated several, but not all, costs incurred in the implementa-

tion of the Plan. Order H(2503)83 at 2-4. Paragraph 5(c)

specifically ordered the State to pay ‘‘one hundred percent of

the reasonable actual costs of programs implemented outside

the geographic boundaries of the City of St. Louis.’’ Jd. The

State was also ordered to ‘‘pay in full . . . the reasonable, actual

ee jts to implement incidental programs.”’ Jd. at 45(e). Clearly,

— A-391 —

Hazelwood’s intradistrict program is outside the geographic

boundaries of the City of St. Louis. Thus, the question arises

whether such intradistrict transportation costs are either costs of

implemented programs or ‘‘costs to implement incidental pro-

grams.’ The undersigned finds that, because Hazelwood

would not have incurred these expenses but for its participation

in the approved Settlement Plan, these expenses should be paid

by the State as costs of implementation of Settlement Plan pro-

grams.

For the same reasons, Hazelwood’s requests for a total of

$33,482 to cover the costs of ‘‘student activity transportation

costs’? and for a total of $1,886 to transpor. Hazelwood

students participating in part-time educational programs,

should be allowed. The State should not make any duplicate

payments for the transportation of interdistrict transfer

students to or within Hazelwood. Therefore, the recommended

approval of the amount for interdistrict transfer students, or a

total of $29,750, which is included in Hazelwood’s request for

student activity transportation costs, is not intended to

authorize such duplication. If Hazelwood does not incur those

costs because the State provides such transportation or if the

State makes its interdistrict student transfer payments in a man-

ner other than through payments on these approved budgets,

then no further payment for those transportation costs is re-

quired of the State.

Hazelwood asks for approval of a total of $60,000 for ‘‘legal

fees.” Mr. Gene E. Aker, Assistant Superintendent for

Hazelwood School District, testified that, in preparing this re-

quest, he estimated the fees at a rate of $80 per hour for fifteen

hours each week. In further support of this request,

Hazelwood’s budget explanation states:

According to the settlement agreement reasonable legal

fees are to be borne by the state as a result of legal services

rendered to a district in the implementation and monitor-

ing process.

— A-392 —

Hazelwood’s Ex. 1, Attachment 3 at 6. Only in extraordinary

circumstances will a court, absent an explicit statutory or con-

tractual provision, shift to another litigant the attorney’s fees

incurred by one litigant. No such extraordinary circumstances

have been shown to exist here. State defendants accurately

point out that only Caldwell, City Board, and Liddell are

specifically entitled to consideration of an attorney’s fees

award. Plan at XI-1, 4B; order H(2503)83 at 9, 414. This re-

quested amount should not be approved as ‘‘other costs incur-

red’’ in implementing this Plan.

Therefore, the undersigned recommends that the Court ap-

prove a total of $103,771 beyond the amount Hazelwood will

receive from the State as student transfer incentive payments, as

follows:

$47,115 Intradistrict transfer student transportation

33,482 Student activity transportation costs

1,886 Part-time educational parograms

19,018 For consultant expenses and inservice workshops

2,270 Fringe benefits on inservice salaries

Hazelwood’s Ex. 1, Attachment 3 at 2, 45(3), (4) (5)(a) - (d),

5(f).

To the extent personnel and administrative costs are approv-

ed for separate payment by the State, rather than for reimburse-

ment through the transfer payments, the recipient districts

should not include those costs in determining the district’s ‘‘cost

per pupil.”’

g. City Board.

The City Board has proposed a budget totalling

$16,235,461.80 for programs to be funded fully by the State (Ci-

ty Board Ex. 5), and a budget totalling $40,221,931.32 for pro-

grams to be funded by the State and City Board equally (City

Board Ex. 6). Of the amount requested for full funding by the

— A-393 —

State, $10,670,857.12 remains in dispute. Of the amount re-

quested for funding equally shared by the State and City Board,

$28 654,953.76 remains in dispute.

In addition to the previously approved costs for the Foreign

Language magnet school at Roosevelt High School, City Board

seeks the following amounts as ‘‘costs of implementing the

magnet programs and schools’’ pursuant to paragraph 5(a) of

the Court’s order:

Building Preparation $4, 100,760.00

(City Board Ex. 5 at 77-83)

Architecture & Engineering 10,943.64

Textbooks at Lyon & Woerner 71,106.12

Maintenance of Grounds, Buiidings,

and Equipment 309,833.64

Transportation of City residents

to City Magnets 815,400.00

$5,308 043.40

State defendants argue that these costs fall within the terms of

q5(d) of the Court’s order, which provides in part:

City Board shall retain the obligation and responsibility

to fund capital expenditures needed to restore, repair,

maintain, or enhance existing facilities as part of City

board’s desegregation efforts.

Based upon this provision, State defendants contend these costs

should remain the obligation of City Board.

These costs, whether or not they are capital expenditures,

constitute costs of implementing magnet schools. Paragraph

5(a) of the order of July 5, 1983, specifies without limitation

that the State is to pay the full costs of implementing magnets.

Paragraph 5(d) is of more general application than 45(a) and is

subject to the provisions of 45(a). Based upon this interpreta-

tion, the undersigned recommends that these costs be approved

for payment by the State.

— A-394 —

There are two general types of part-time programs within th

Settlement Plan: (1) programs to which all signatories agree an:

which are contained in Section V of the Settlement Plan; and (2

programs to which all signatories have not specifically agree

and which are directed to improving the quality of education i

the nonintegrated schools in North St. Louis, see Section B o

the Plan Appendix.

The type (1) classification includes the ‘‘Honors Music’’ pro

gram, for which the City Board requested a total of $629,783 .6-

(City Board Ex. 5 at 2-10), and the ‘‘City/County Caree

Education’’ program, for which City Board requested a total o

$203,560.56. The State objects to both of these request

because they are not listed at pages 26-27 of the Court’

memorandum apprcving the plan, and because no committe

has yet indicated approval of the programs. Neither of thes

arguments is apposite. The list on pages 26-27 specifies pro

grams on which the parties are to focus attention. The list doe:

not limit the programs that may be implemented but suggest.

priorities if plan participants are unable to implement all recom

mended programs. Furthermore, the District Court’s directiv:

to participants to review and analyze programs pertained ex

clusively to magnet schools proposed for establishment or ex

pansion in 1983-1984 or 1984-1985. Neither of these program:

is a magnet program; thus, the Court’s directive is inapplicabl

as a bar to their implementation.

With regard to the second category of part-time programs

the State defendants object to the City Board’s requests for (a

the L.I.F.T. program, totalling $221,159.16 (City Board Ex. ‘

at 20); and (b) Schools of Emphasis Program, totallins

$297,466.56 (City Board Ex. 5 at 22). State defendants contenc

these costs should not be approved because these programs art

not listed on pages 26-27 of the Court’s memorandum. Again

the undersigned finds that the District Court’s listing is not ex

haustive or exclusive, and will recommend approval of the re

quested costs.

a —_—_ eZ 6 LY

ee ee

— A-395 —

City Board also asks for approval of the State’s payment of

costs incurred in coordinating the part-time programs in the

non-integrated schools, for a total of $3,043,745.64 (City Board

Ex. 5 at 15-17). State defendants argue they should not have to

fully fund these costs, and that the costs should be shared equal-

ly by City Board, since ‘‘it is a general program for the entire

school system.’’ To the extent these are costs incurred in im-

plementing part-time programs in the non-integrated schools

and only to that extent, the undersigned finds they should be

paid in full by the State pursuant to paragraph 5(b) of the

Court’s July 5, 1983, order. Thus, based upon the City Board’s

explanation of this request (City Board Ex. 1 at 6), the under-

signed recommends approval of these expenses.

Again, the State defendants object to certain costs because

the programs are not listed on pages 26-27 of the District

Court’s July 25, 1983, memorandum. These objections are

directed to the City Board’s budget requests for: Curriculum

Development [City Board Ex. 6 at 1]; Middle School Math and

Science Teachers [City Board Ex. 6 at 25]; Upgrade Quality of

Services for Handicapped Students [City Board Ex. 6 at 26-27];

Alternative High School [City Board Ex. 6 at 31]; Tri-A

Outreach Program for Dropouts and Expelled Students [City

Board Ex. 6 at 32]; Middle School Science Enrichment [City

Board Ex. 6 at 36]; Security Guard Service [City Board Ex. 6 at

39-40]; Controller’s Office, Accounting and Auditing Services

[City Board Ex. 6 at 43]; Insurance Administration [City Board

Ex. 6 at 44]; Purchasing, et al. [City Board Ex. 6 at 45-49];

Planning Office [City Board Ex. 6 at 53]; and Personnel . . . for

Deferred Maintenance...and Improvements [City Board Ex. 6

at 55-61].

As previously stated, the undersigned interprets the District

Court’s listing as a directive to focus attention on certain pro-

grams, and not as an exhaustive or limiting list of the only pro-

grams approved for implementation this year. Thus, the under-

signed recommends the approval of costs for those programs to

which the failure of a specific listing is the only cbjection: Cur-

—< oe

riculum Development; Middle School Math and Science

Teachers; Tri-A Outreach Program for Dropouts and Expelled

Students; Middle School Science Enrichment; Security Guard

Service; Purchasing, et al.; and Planning Office.

The State defendants also object to the requests for costs of

the controller’s office, accounting and auditing services; the

treasurer’s office, insurance administration; and the alternative

high school, because these items were fully funded by the City

Board through the 1981-1982 school year. A program’s prior

existence or funding status should not determine whether or not

a presently requested amount should be approved, if the present

request is not duplicative, is related to the presently approved

program, and is for a reasonable amount. The undersigned

finds that these programs are listed in Fairness Hearing Exhibit

2 (pages 9, 24 and 25). Furthermore, there is no allegation that

the requested amounts are unreasonable, duplicative, or are for

programs unrelated to this desegregation remedial effort. Since

this is the only remaining objection to the first two budget re-

quests, those requests should be approved.

The State defendants further object to the alternative high

school budget request, because no site location is identified and

because the District Court recently referred to alternative stu-

dent discipline prograrms in an order pertaining to the in-

tradistrict plan. First, the ‘‘alternative high school’’ is not listed

as one of the ‘‘alternative student discipline programs”’ within

the intradistrict desegregation plan or in the Court’s recent

order. Second, no evidence was presented at the hearing to in-

dicate that the City Board considers it as such a program. In

fact, Dr. Jones testified that this particular proposal is for those

students who have ‘‘learning difficulties’’ and not for those

who are ‘‘disciplinary problems.’’ See also City Board’s Post

Hearing Memorandum, H(2587)83 at 13, dated August 12,

1983. The failure to have already chosen a site for this school is

not a sufficient justification for disapproving this budget re-

quest. After the Fairness Hearing and upon the Court’s ap-

— A-397 —

proval of the Settlement Plan, the City Board determined that

this program could be implemented by second semester of this

year. Clearly, further planning, including the determination of

the school’s location, must occur prior to the program’s im-

plementation. The District Court should approve the amount

requested for this program.

The State defendants further object to the City Board’s re-

quest for $8,710,992.72 for ‘‘Personnel and Related Opera-

tional Resources Including Equipment for Deferred

Maintenance and Improvements,”’ [City Board Ex. 6 at 55-61].

The State defendants contend the City Board alone should bear

these costs as ‘‘capital expenditures necessary to restore, repair,

maintain, or enhance existing facilities’? within the terms of

€5(d) of the Court’s July 5, 1983, order. The City Board includ-

ed these as shared costs on the grounds that these are the

‘‘operational costs of maintenance’’ and not capitai expen-

ditures covered by the terms of 45(d) of the Court’s order. The

financial adviser reported that all of these components should

be capitalized because they ‘‘are part of a total program

presented in the Settlement Agreement to improve the quality of

educational opportunities in St. Louis by rehabilitating and

modernizing school buildings.’’ Report on Inflation Contingen-

cy and Capital Outlay, H(2574)83 at 11, dated August 10, 1983

[hereinafter financial adviser’s report]. The financial adviser

defined a capital expenditure as ‘‘[a]ny expenditure which in-

creases the value of the school district’s property.”’

The undersigned notes an inadvertant inconsistency in the

®@ financial advisor’s application of the definition of ‘‘capital ex-

penditures’’ to certain functions of Component A902 in the Ci-

ty Board budget. The advisor at page 11 of his report recom-

mended the capitalization of all of Component A902, while

recommending that a function therein not be capitalized in

Component C102, i.e. function 6903. The undersigned believes

that functions 6903 and 1907 of Component A902 are not

capital expenditures, because the record indicates they are for

~— Ap —

maintaining the status quo of the assets concerned, and are not

for increasing the assets’ values. Therefore, the District Court

should not approve any of the functions of Component A902,

except functions 6903 and 1907, thereby approving a total of

$304,129.08 for Component A902. This recommendation

should not subsequently be construed as recommending the

elimination of any subsequent payment obligations of the State

pursuant to the terms of paragraph 5(d).

The State defendants object to the City Board’s request for

funds to upgrade the quality of services to handicapped

students. In addition to their argument that this program is not

among those listed on pages 26 and 27 of the District Court’s

July 5, 1983, memorandum, the State defendants contend that

these additional costs can be partially reimbursed by State and

Federal money for programs for the handicapped, and that the

implementation of these programs is required by law and should

not be contingent upon the receipt of additional funding. The

City Board has demonstrated that these are costs incurred in im-

proving existing services, rather than costs incurred in providing

nonexistent services. Thus, this budget request should be ap-

proved. By recommending approval of this budget request, the

undersigned does not intend to preclude the application of other

funds to this program, or to approve duplicated revenues.

The State defendants object that the City Board’s request for

the ‘‘curriculum supervision’’ program is excessive, unnecessary

and ‘‘not related to staffing patterns within the county.’’ The

State defendants also object to City Board’s request to fund a

‘‘library resource center’ as part of a program to upgrade the

library/media service. The State defendants contend the latter

request is ‘‘in excess of AAA standards.’’ The City Board sup-

ports both requests on the basis that they are among those listed

on pages 26 and 27 of the District Court’s July 5, 1983,

memorandum.

The fact that these programs may exceed county standards or

state classification standards does not justify barring such pro-

—_—

grams as part of a remedial desegregation effort in the city’s

public school system. [These programs are among those specified

by the District Court for prompt consideration. By approving

these budget requests, the undersigned is in no way intending to

approve ‘‘excessive’’ or ‘‘unnecessary’’ expenses, and, as with

all expenses, the City Board should make every effort to imple-

ment these programs without waste or duplication.

Because the undersigned has recommended the approval of

costs for the Library Resource Center and for the alternative

high school, the City Board’s additional request for costs of the

‘‘operational services’’ for these programs should be approved.

The State defendants only object to this particular request for

the same reasons asserted against the Library Resource Center

and the alternative high school. The State’s objections to those

programs we. recommended to be overruled and do not re-

quire further consideration at this point.

The City Board also seeks approval of funds to increase the

number of librarians and to provide nurses. The State defen-

dants do not object to the programs but do object to the

amount of staff the City Board seeks to hire as part of each pro-

gram.

Concerning the librarians, the City Board asserts that it

presently has no librarian in any elementary school and about

one librarian for each secondary school. The City Board seeks

approval of a budget that would permit one librarian for every

250 enrolled students. The State defendants propose one

librarian for every four elementary schools, with aides to com-

plete staffing needs. The City Board counters the State’s sugges-

tion by contending that the use of noncertificated staff, such as

aides, to fill the positions of teaching staff, such as librarians,

would violate State law and would not provide the needed skills.

The undersigned is not persuaded that teaching personnel are

needed full time at each library, particularly at the elementary

school level. Thus, it is recommended that full-time librarians

be hired on the basis of one for every three elementary schools,

— A-400 —

with aides hired to satisfy the remaining staffing needs at the

libraries throughout the school system. The undersigned recom-

mends approval of the budget request for the secondary

schools. The City Board should amend these budget items to

reflect this recommendation.

The State defendants object to the number of nurses re-

quested by the City Board, which seeks approval of one full-

time nurse for each middle and high school and one full-time

nurse for each 500 students enrolled at the elementary school

level. The City Board asserts that its request is based upon the

‘health and welfare of students’’ attending city schools. The

City Board points out that the State Handbook for Classifica-

tion leaves the actual number of nurses to the discretion of the

individual school district, and that the City of St. Louis itself

does not provide any health care to the students in the City’s

public school system. James Bliss, State Director of School

Finances, testified that the State would agree to provide twenty

nurses for this program. Not convinced that the State’s sugges-

tion will satisfy the apparent needs of the city’s public school

system in its desegregation efforts, the undersigned will recom-

mend the approval of City Board’s original request.

State defendants object to two requests on the ground that

the programs cannot be fully implemented within the 1983-1984

year, and the budgets should be reduced by one-half the amount

requested. These are the budget entries for the staff develop-

ment unit and a parental involvement program. Both of these

programs are among those listed by the District Court for pro-

mpt consideration. In light of the City Board’s acknowledgment

that it may not be able to fully implement all programs and the

fact that the budgets reflect estimates of the maximum expen-

ditures for any given program, the undersigned is not persuaded

that the State defendants’ generalized assertion that these pro-

posals cannot be fully implemented should bar approval of the

proposed budgets. Thus, these requests should be approved. If

the programs are not implemented, there need be no payment

for them.

— A-401 —

The State defendants object to a request for $32,000 for

postage as part of a program to strengthen the public affairs of-

fice. The undersigned agrees with the State defendants that

much of the public information to parents may be disseminated

through delivery of materials to the students, to the schools’

parent groups, and similar organizations. This method would

reduce the cost of each mailing by $2,000, as estimated by City

Board. City Board Ex. 1, page 67. Therefore, the undersigned

will recommend approval of the State’s request that this amount

be reduced by one-half.

The State defendants object to each line item 99 ‘‘Inflation

Contingency”’ throughout the City Board’s budget. The State

defendants argue that this is not a valid line item because it does

not show specifically how the City Board would spend such

funds. Dr. Bliss testified that ‘‘a budget is a control tool’’ and

this is a “‘noncontrol item.’’ See financial adviser’s report at 2;

see also the City Board’s post hearing memorandum, H(2587)83

at 16 (‘‘the approved budget serves as a cap for that year’’). The

City Board and the State partially resolved this dispute by in-

creasing various employee salary and benefit items by eight per-

cent. See Joint Report, H(2547)83 at 33. Even with this com-

promise, a dispute remains regarding a total of $1,416,071 for

this line item, or an eight percent inflation factor for non-salary

items.

The financial adviser stated that

It is not customary to include an inflation contingency in

public school accounting, either for individual budget

components or for the budget as a whole. Use of a ‘reserve

for contingencies’ is practiced in the private sector but not

in public accounting. When developing a budget for Board

approval, school officials generally propose each expen-

diture item as it is expected to occur during the fiscal year

in which it is to be spent.

— A-402 —

Financial adviser’s report at 2. Although the financial adviser

notes that the City Board is free to seek adjustments from the

State or the Court, the City Board points out that the approved

budget constitutes a ‘‘cap’’ on expenditures for any given year,

and that returning to the Court for budget adjustments is not

the usual practice in this case. City Board post hearing

memorandum at 16. The undersigned does not want to burden

the District Court with further budget requests this year.

However, the State’s concern with auditing and the financial

adviser’s concern with accountability are legitimate, reasonable

concerns which should be sustained. The undersigned will

therefore recommend that the Court not approve any remaining

disputed amount for the “‘inflation contingency”’ line item.

Finally, the State defendants argue against approval of object

code 21, ‘‘not otherwise classified,’’ which is included in some

components of the City Board’s budget. State defendants ob-

ject to these line items because the purposes of the expenditures

are not disclosed. After certain disclosures were made, it was

stated at the hearing that the State defendants agreed to certain

proposed expenditures for this object code. Any post-hearing

agreement on these items has not been submitted to the Court.

The undersigned recommends that the District Court approve

amounts to which there is agreement, and that the parties sub-

mit a joint written statement outlining all areas of agreement

and areas of disagreement. The undersigned further recom-

mends that subsequent budgets omit this object code and in-

stead provide for these costs in the most closely associated ob-

ject code, with an explanation of ‘‘not otherwise classified”’

items within those codes.

The undersigned recognizes that the objections to the propos-

ed budgets, as well as agreement to the various budget items, do

not waive the State defendants’ objections to future budget or

program proposals. Arguments by the State defendants that the

District Court overstepped the bounds of its authority in ap-

proving the Settlement Plan are more appropriately determined

— i —

through a motion to amend, modify or vacate that order, or

through an appeal from that order. These arguments have not

been considered in this Report and Recommendation.

RECOMMENDATION

The undersigned United States Magistrate concludes and

recommends to the District Court that the instant budget

disputes be resolved as follows:

(a) the budget requests for Kirkwood’s magnet school,

Clayton’s magnet school, University City’s magnet schools,

Normandy’s magnet schools, and the City Board’s Foreign

Language Secondary magnet school [City Board Ex. 5 at 56]

should be approved for separate payment by the State;

(b) the budget request of Hancock Place School District, for a

total of $29,220, should be approved for separate payment by

the State as requested;

(c) the budget request of Affton School District, for a total of

$35,441.09, should be approved as requested for separate pay-

ment by the State;

(d) the budget request of Mehlville School District should be

approved for separate payment by the State in the amount of

$47,122 for a desegregation coordinator and for workshop ex-

penses; the other costs Mehlville sought should not be approved

for separate payment by the State;

(ec) the budget request of Hazelwood School District should

be approved for separate payment by the State in the amount of

$103,771; the other costs Hazelwood sought should not be ap-

proved for separate payment by the State;

(f) the amount remaining in dispute in line item ‘‘inflation

contingency”’ throughout the City Board’s budget should not be

approved;

— ee

(g) with the deletion of the amount required by paragraph (f)

above, all amounts requested by the City Board for full pay-

ment by the State may be approved;

(h) the City Board’s request for approval of Component

A902 of its budget should not be approved except for functions

6903 and 1907, which should be paid under {5(c) of the July 5,

1983, order; the balance should be paid under 45(d) of the

order;

(i) the City Board’s request for approval of costs to ‘‘restore

and increase librarians’’ [City Board Ex. 6 at 4-5] should be

amended and approved to fund one full-time librarian for every

three elementary schools, and aides supplying the remaining

staffing needs in these schools; and the secondary school budget

requests for one media specialist for each secondary school and

for .5 librarian should be approved;

(j) the City Board’s request for postage for the public affairs

program should be approved only for one-half the total amount

requested;

(k) the City Board’s remaining requests for programs to be

funded by the City Board and the State equally should be ap-

proved upon deletion of the amount in paragraph (f) above;

(1) the State and the City Board should submit a joint written

report reflecting all areas of agreement and areas of disagree-

ment, including the reasons therefor, for each amount noted in

the City Board’s exhibits 2 and 9, regarding the object code

‘*not otherwise classified;’” any amounts remaining in dispute

for this object code should be disapproved for this year;

(m) each participating district that submitted a budget to

which the State defendants originally objected should file

another 1983-1984 budget reflecting the amounts approved

through agreement with the State or through court order;

(n) the objections of the Liddell plaintiffs should be overrul-

ed; and

— A-405 —

(o) the District Court should approve all budget requests to

which the relevant parties have agreed.

The parties have ten days to file written objections to this

Report and Recommendation. Such objections to the extent

possible shall be filed jointly.

Respectfully submitted,

David D. Noce

United States Magistrate

Dated this 18th day of August, 1983.

~ ibn

APPENDIX K

U.S. Court of Appeals

for the Eighth Circuit

Nos. 83-1957, 83-2033, 83-2118, 83-2220, 83-2554

Craton Liddell, Etc., Et Al.,

Appellees,

Vv.

State of Missouri, Et Al., City of St. Louis,

St. Louis Teachers Union, Local 420, Etc.,

North St. Louis Parents & Citizens for Quality Education,

Et Al.,

Appellanis.

Appeals from United States District Court

for the Eastern District of Missouri

No. 83-2140

In re: City of St. Louis, Paul Berra and Ronald A. Leggett,

Petitioner.

Petition for Writ of Prohibition

Submitted: November 28, 1983

Filed: February 8, 1984

Opinion of the Court En banc, LAY, Chief Judge, HEANEY,

BRIGHT, ROSS, McMILLIAN, ARNOLD, and FAGG, Cir-

cuit Judges, with JOHN R. GIBSON, Circuit Judge, concurring

in part and dissenting in part, and BOWMAN, Circuit Judge,

dissenting.

aie

The Caldwell and Liddell plaintiffs, represcating black

students and parents of the St. Louis City School District, the

City School District, and several suburban school districts have

entered into a unique and comprehensive settlement agreement

designed to further desegregation in the city schools. The

United States District Court has approved the agreement and

has entered orders to fund the plan.

With the exceptions and limitations noted in the opinion, we

approve the agreement and the order entered by the district

court with respect to:

The voluntary transfers of students between the city and

suburban schools and the establishment of additional

magnet schoc!s and integrative programs in the City

Schocl District as necessary to the successfui desegregation

of the city schools;

The quality education programs for the nonintegrated

schools in the City School District;

The quality education programs for all schools in the City

School District, but only insofar as these programs have

been shown to be necessary for the city to retain its Class

AAA rating or to be essential to the successful desegrega-

tion of the city schools as hereinafter set forth;

The provisions of the district court’s order requiring the

State of Missouri, as the primary constitutional violator, to

pay the full cost of city to suburb and suburb to city

transfers, magnet schools and integrative programs in the

city schools, and one-half of the cost of the quality educa-

tion programs in the city schools. We decline to approve

the district court order insofar as it requires the State to

fund student transfers between suburban school districts

and to fund magnet schools or integrative progrems in

those suburban districts;

— A-408a —

Improved facilities for the city schools. We require further

planning, however, before construction begins, to identify

with particularity the projects that will be undertaken, and

to take account of a probable decline in the city school

population in the next few years.

We outline the steps that the district court must take before it

can require an increase in real estate taxes to fund the City

Board’s share of the quality education component of the plan

without a vote of the people, and the steps that the court must

take before it can require that bonds be issued to fund the City

Board’s share of capital improvements without a similar vote.

We make it clear, however, that no party found to have violated

the Constitution will be permitted to escape its obligation to

provide equal educational opportunity to the black children of

St. Louis.

We make it clear that the suburban schools meeting the goals

set forth in the plan will receive a final judgment declaring that

they have satisfied their desegregation obligations.

Finally, we recognize that the settlement agreement and the

district court’s order wiil have to be modified to conform to this

opinion, and we are aware that the cost of the plan, particularly

to the State, will be significantly reduced. In our view, however,

the changes do not alter the essential character of the plan, and

they preserve its constitutionality. The parties to the settlement

agreement are required to decide promptly whether they will ac-

cept the changes set forth in this opinion. if they refuse to do so,

the interdistrict trial will proceed.

I. PROCEDURAL HISTORY.

In February, 1972, a group of black parents (the Liddell

plaintiffs) filed a class action against the City Board, the board

members, and school administrators, alleging racial segregation

in the city’s schools in violation of the fourteenth amendment.

The defendants’ motion to join the State of Missouri and St.

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— A-408b —

Louis County (containing the suburban school districts) as

codefendants was denied on December 1, 1973. A year later, the

parties entered into a consent agreement which provided for an

increase in the number of minority teachers and included a

pledge by the City Board to attempt to ‘“‘relieve the residence-

based racial imbalance in the City schools.’’ Liddell v. Bd. of

Educ., 469 F. Supp. 1304, 1310 (E.D. Mo. 1979).

The case first came before this Court in 1976,' when the

Caldwell plaintiffs appealed the district court’s denial of their

right to intervene. We granted intervention, but declined to pass

on the constitutionality of the consent decree. Liddell v.

Caldwell, 546 F.2d 768 (8th Cir.) (Liddell I), cert. denied, 433

U.S. 914 (1976). We encouraged the United States and State of

Missouri to intervene, recommended the creation of a biracial

citizens committee to assist in formulating a desegregation plan,

and suggested voluntary interdistrict student transfers as one

remedial tool. Jd. at 774.

Desegregation plans were developed and submitted to the

district court by the City Board, the Liddell plaintiffs, the

Caldwell plaintiffs, and the United States as amicus curiae.

Before approving any plan, the district court ordered a trial to

determine whether there had been a constitutional violation and

to frame a remedy if a violation was found. The United States,

the City of St. Louis, and two white citizens’ groups were allowed

to intervene as plaintiffs. The State of Missouri, the State Board

of Education, and the Commissioner of Education were added

as defendants. The district court found no constitutional viola-

tion, and held that the City Board had achieved a unitary school

system in 1954-56 through its ‘‘neighborhood school policy.’’

Liddell v. Bd. of Educ., supra, 469 F. Supp. at 1360-1361.

' We recounted the procedural history of this litigation in Liddell v.

Bd. of Educ., 677 F.2d 626, 628 n.1 (8th Cir. 1982) (Liddell V), cert.

denied, 103 S. Ct. 172 (1983) and Adams v. United States, 620 F.2d

1277, 1281-1283 (8th Cir.), cert. denied, 449 U.S. 826 (1980).

— A-408c —

We reversed the district court in Adams v. United States, 620

F.2d 1277 (8th Cir.) (en banc), cert. denied, 449 U.S. 826

(1980),? holding that the City Board and the State were jointly

responsible for maintaining a segregated school system. In

reaching this decision, we noted that the Missouri State Con-

stitution had mandated separate schools for ‘‘white and colored

children’’ through 1976, that the State had not taken prompt

and effective steps to desegregate the city schools after Brown v.

Bd. of Educ., 347 U.S. 483 (1954) (Brown J), and that the City

Board’s policies and practices since 1956 had contributed to the

existing segregation. We remanded to the district court and

directed that the schools be promptly desegregated. We sug-

gested the following techniques:

(1) Developing and bnasteennniien compensatory and

remedial educational programs. * * *

(2) Developing and implementing programs providing

less than full-time integrated learning experiences.

(3) Developing and implementing a comprehensive pro-

gram of exchanging and transferring students with the

suburban school districts of St. Louis County. * * *

(4) Maintaining existing magnet and specialty schools,

and ¢-tablishing such additional schools as needed to ex-

pand opportunities for an integrated education.

(5) Establishing an Educational Park.

(6) Continuing and expanding a policy of permissive

transfers in the district.

Adams v. United States, supra, 620 F.2d at 1296-1297 (citations

omitted).

? We also ruled on several procedural questions in the interim be-

tween Liddell I and Adams, see Liddell v. Caldwell, 553 F.2d 557 (8th

Cir. 1977) (Liddell II).

— A-408d —

After holding extensive evidentiary hearings, the district court

approved a system-wide desegregation plan for the city schools

beginning with the 1980-81 school year. Liddell v. Bd. of Educ.,

491 F. Supp. 351 (E.D. Mo. 1980). This plan included a com-

prehensive program of exchanging and transferring students

between the city and suburban schools, the establishment of

magnet schools and integrative programs, and a quality educa-

tion component. In approving the plan, the district court con-

cluded:

In sum, the State defendants siand before the Court as

primary constitutional wrongdoers who have abdicated

their affirmative remedial duty. Their efforts to pass the

buck among themselves and to other state instrumentalities

must be rejected[.]

Id. at 359.

We affirmed the district court’s plan on appeal. Liddell v. Bd.

of Educ., 667 F.2d 643 (8th Cir. 1981) (Liddell ITI), cert. denied,

454 U.S. 1081, 1091 (1982). In so doing, we decided that it was

constitutionally permissible to allow a number of all-black

schools to remain in the city. We noted that no all-white schools

would remain, that a plan of voluntary interdistrict transfers

would be initiated, that magnet schools and integrative pro-

grams would be established, and that a substantial part of the

desegregation budget would be spent to improve the quality of

education in the all-black schools. We affirmed the State’s

liability for desegregation costs and remanded for continued im-

plementation of the plan.

Questions about this plan’s implementation came before us in

early 1982, when the State again protested its liability for cer-

tain desegregation costs. Liddell v. Bd. of Educ., 677 F.2d 626

(8th Cir.) (Liddell V), cert. denied, 103 S. Ct. 172 (1982).? We

affirmed the district court’s allocation of costs, placing one-half

> We issued a procedural order in the interim. Liddell v. Bd. of

Educ., 693 F.2d 721 (8th Cir. 1981) (Liddell IV).

— A-409

of the actual desegregation costs on the State. We also required

the State to pay the costs of voluntary interdistrict transfers and

the costs of merging city and county vocational educational pro-

grams. Meanwhile, the City Board and the Liddell and Caldwell

plaintiffs continued to seek the consolidation of the city and

county schools into a single integrated school district on the

theory that the suburban schools had also violated the Constitu-

tion. They successfully moved to add the county school districts

and St. Louis County officials as defendants to this litigation.

We noted that the suburban schools could not be held as con-

stitutional violators without further evidentiary hearings and

findings by the district court. We again noted that the State and

City Board—already adjudged violators of the Constitu-

tion—could be required to fund measures designed to eradicate

the remaining vestiges of segregation in the city schools, in-

cluding measures which involved the voluntary participation of

the suburban schools. Liddell V, supra, 677 F.2d at 641.‘

The district court entered an order on August 6, 1982, which

disclosed the mandatory interdistrict plan it would impose in the

event the suburban school districts were found liable for con-

stitutional violations. This plan would create one unified

metropolitan school district with a uniform tax rate. The court

then scheduled interdistrict liability hearings.

* We suggested that

the district court could (1) require the state and the city to take

additional steps to improve the quality of the remaining all-

black schools in the City of St. Louis; (2) require that additional

magnet schools be established at state expense within the city or

in suburban school districts with the consent of the suburban

districts where the schools would be located; (3) require that ad-

ditional part-time programs be established at state expense to

provide for more integrative experiences for students in all-black

city schools, including programs which would involve voluntary

participation by suburban schools; and (4) require the state to

provide additional incentives for voluntary interdistrict transfer.

Liddell V, supra, 677 F.2d at 641-642 (footnote omitted).

— A-410 —

Before these hearings were held, however, the City Board, the

Liddell plaintiffs, the Caldwell plaintiffs, and all twenty-three

county school districts developed a settlement agreement with

the assistance of a court-appointed expert and filed a proposed

consent decree on March 30, 1983. This agreement settled the

plaintiffs’ interdistrict claims against the county school districts,

and also enabled the State and City Board to take important

steps to desegregate the city schools through the voluntary par-

ticipation of the county schools, as we outlined in Liddell V.

The settlement plan has severa! components. It provides for

voluntary interdistrict transfers between city and suburban

schools and includes fiscal incentives to encourage these

transfers. Each county school district which receives enough

transfers within five years to satisfy its desegregation obligations

under the plan will receive a final judgment. Affirmative hiring

requirements and voluntary teacher transfers are included in the

plan to assure it will have a substantial impact in the county

schools. To attract white student transfers to the city, and also

to provide remedial programs for city students, the plan creates

additional magnet schools in the city and the county, and has

several compensatory and remedial education components.

These latter components are designed to improve the quality of

education in the city schools, and to make special improvements

in the all-black schools.

After the parties filed the settlement agreement, the district

court conducted hearings in April and May of 1983 to determine

whether the settlement plan is fair, reasonable, and adequate. In

its July 5, 1983, order, the court concluded the plan met these

standards and allocated the costs of the plan between the State

and City Board. Liddell v. Bd. of Educ., 567 F. Supp. 1037

(E.D. Mo. 1983). The State is totally responsible for the costs of

the voluntary interdistrict transfers, the magnet schools, and

various part-time and alternative integrative programs. Further,

the State will pay one-half of the cost of the quality im-

provements in the city schools and one-half of the capital im-

provements required by the plan. The City Board is required to

pay the remaining costs.

—S

The district court ordered the City Board to submit a bond

issue to its voters before February 1, 1984, to fund its share of

the capital improvements required under the plan. In the event

this bond issue failed to obtain the necessary two-thirds vote the

court reserved authority to consider an appropriate order to

fund these capital improvements.’ The district court also defer-

red a scheduled reduction in the City Board’s operating levy

otherwise required by Mo. Rev. Stat. § 164.013 (Proposition C)

insofar as this revenue is necessary to fund the City Board’s

share of desegregation costs. It further reserved authority to

order an increase in the City Board’s property tax rate, follow-

ing notice and a hearing on the amount, if the revenue necessary

to fund the City Board’s constitutional obligation to

desegregate the city schools is not otherwise available.

Several weeks after the district court entered its order approv-

ing the settlement, the State filed a motion to stay the im-

plementation of the plan. The City of St. Louis filed a petition

for a writ of prohibition seeking the same result. The district

court denied both of these motions, and the State and City of

St. Louis appealed to our Court. In an en banc order, Liddell v.

Missouri, 717 F.2d 1180 (8th Cir. 1983) (Liddell VI), we denied

the stay with certain exceptions. We froze the number of inter-

district transfers and deferred any further district court action

concerning the City Eoard’s property tax rate. We also deferred

action on the writ of prohibition until we considered the case on

its merits.

Appeals were filed from the district court’s July 5, 1983,

order by the State of Missouri, the City of St. Louis, the North

St. Louis Parents and Citizens for Quality Education, and the

St. Louis Teachers Union.

> The two-thirds majority is required by Mo. Const. art. VI, §

26(b). This bond issue election was held on November 8, 1983, and it

failed, receiving fifty-five percent voter approval.

— A-412 —

The State contends on appeal that the district court erred: (1)

in approving additional interdistrict transfers of students, and

requiring the State to pay the full cost of the additional

transfers; (2) in approving additional magnet schools and part-

time integrative programs, and requiring the State to pay their

full cost; (3) in approving certain programs to improve the

quality of education in the city schools, and requiring the State

to pay one-half the cost of these programs; and (4) in ordering a

deferral of scheduled property tax reduction for the city

schools, and in stating that it would order a further increase in

property taxes to fund the City Board’s share of the cost of the

quality education programs in the city schools.

The City of St. Louis joins in questioning the authority of the

district court to enter the taxing order referred to in (4) above.

The St. Louis Teachers Union contends that the district court

erred in denying its motion to intervene.

The Northside Parents Organization contends that the district

court erred in failing to provide more extensive relief to the

black students who would remain in the nonintegrated schools.

The United States did not file a notice of appeal or cross-

appeal. It did file a brief and it was permitted to argue its posi-

tion before the Court en banc. It appears to argue that many of

the programs authorized by the district court may be necessary

to desegregate the city schools, but questions whether the

district court’s factual findings are sufficient to support all

aspects of the district court’s remedial order. It asks this Court

to remand to the district court to correct the alleged deficien-

cies.°

° We question whether the United States should be heard as a party.

Parties who do not appeal from a trial court judgment cannot be

heard to attack that judgment, either to enlarge their own rights, or to

lessen the rights of their adversary. See Morley Construction Co. v.

Maryland Casualty Co., 300 U.S. 185, 190-191 (1937); United States

— A-413 —

Il. INTERDISTRICT TRANSFERS.

On July 2, 1981, the district court entered an order authoriz-

ing voluntary interdistrict transfers and requiring the State to

pay the cost of the transfvrs. The program was initiated at the

beginning of the 1981-82 school year, and by the end of the

1982-83 school year, it had grown so that 873 city students were

attending county schools and 318 county students were atten-

ding city schools. All but seven of the 318 were enrolled in city

magnet schools. The State of Missouri paid the cost of these

transfers, including transportation costs and fiscal incentives, to

the sending and receiving schools.

The settlement agreement calls for an expanded program of

interdistrict transfers. City-to-county transfers of black students

will be permitted to grow incrementally until they reach 15,000.

No limit is placed on the county-to-city transfers, but the

number is not expected to exceed 3,000. These transfers are ex-

pected to be primarily to city magnet schools and programs.

Transfers between county districts are also permitted. All stu-

dent transfers are voluntary.

The State’s funding obligations remain as they were under the

July 2, 1981, order: It must pay transportation costs and must

pay to the receiving district for each transferring student an

amount equal to the receiving district’s cost per pupil, less State

aid and trust fund allocation. It is further required to provide

fiscal incentives to sending districts which may elect payment

v. American Railway Express Co., 265 U.S. 425, 435 (1924); Stella v.

DePaul Community Health Center, Inc., 642 F.2d 258, 261 (8th Cir.

1981); Johnson v. United States Fire Ins. Co., 586 F.2d 1291, 1294n.7

(8th Cir. 1978); Tiedeman v. Chicago, Milwaukee, St. Paul & Pac. R.

Co., 513 F.2d 1267, 1271-1273 (8th Cir. 1975).

Here, the United States is requesting that the district court’s order

be vacated and that the case be remanded for further findings. This

result would ‘‘lessen the rights’’ of the parties to the settlement agree-

ment. In practical terms, however, we have considered the United

States’s position as an amicus curiae.

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under one of two formulas: either one-half of the State aid the

district would have received had the student not transferred; or,

beginning in 1984-85, if a district sends more students than it

receives, State aid based on the district’s enrollment for the sec-

ond prior year. To be eligible for transfer, students of good

standing must be in the racial majority in their home districts

and must transfer to districts where they would be in the racial

minority.

After approval of the settlement agreement, transfers rose

dramatically. During the current schoo! year, 2,294 city students

have transferred to suburban districts and three hundred and

eighty-nine suburban students have transferred to city schools.

Thirty-four suburban students have transferred to other subur-

ban districts. One thousand nine-hundred and sixty-five addi-

tional city-to-county transfer applications are on file.

The settlement agreement provides that participating districts

will receive a final judgment releasing them from further liability

if they achieve the plan ratio’ within five years. Litigation is

stayed during this period. If the school district does not reach

the plan ratio, litigation can be renewed after first pursuing

various negotiating procedures. If the liability of any individual

school district is litigated, the plaintiffs must prove liability and

may not seek reorganization or consolidation of school

districts, nor may they seek a minority enrollment exceeding

twenty-five percent of the school district.

?

Under the Plan Ratio, * * * a suburban school district would ac-

cept up to as many black transfer students as would constitute 15

percent of the total student population in that district, but no

suburban school district would be required to accept more black

transfer students than would raise the overall percentage of

blacks in the total student population higher than 25 percent.

Settlement Agreement, I-2.

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The State argues that the district court order approving the

settlement agreement and requiring the State to pay the full cost

of interdistrict transfers cannot be sustained because it imposes

an interdistrict remedy based on an intradistrict violation. We

disagree for two reasons: First, the issue has previously been

decided adversely to the State; second, the interdistrict transfers

are intrinsic to an effective remedy for the intradistrict violation

and are justified by precedent.

A. THE PROPRIETY OF THE DISTRICT COURT’S

ORDER WITH RESPECT TO INTERDISTRICT

TRANSFERS HAS BEEN PREVIOUSLY DECID-

ED.

This Court has repeatedly authorized the interdistrict transfer

of students as a fundamental element of an effective remedy for

the unconstitutional segregation of the city schools. In Adams

v. United States, supra, 620 F.2d at 1296, we specifically ap-

proved the development and implementation of ‘‘a comprehen-

sive program of exchanging and transferring students with the

suburban school districts of St. Louis County.”’

In Liddell IIT, supra, 667 F.2d at 650, we rejected the State’s

argument that the district court was without authority to for-

mulate an interdistrict plan without finding an interdistrict

violation. We also noted that voluntary interdistrict pupil ex-

changes ‘‘must be viewed as a valid part of the attempt to

fashion a workable remedy within the City.’’ Jd. at 651. In an

order appended to that opinion, we noted that the State had

been ‘‘judicially determined to be a primary constitutional

violator,’’ and we held that an interdistrict transfer plan would

be salutary and would be entirely enforceable against the State.

Id. at 659.

Finally, in Liddell V, supra, 677 F.2d at 630, we reiterated our

conclusion that, because the State had been found a primary

constitutional wrongdoer, it can ‘‘be required to take those ac-

tions which will further the desegregation of the city schools

— Adis

even if the actions required will occur outside the boundaries of

the city school district.’’ After discussing broad-based inter-

district proposals and dismissing them as unsuitable, we ad-

dressed the proper limits of the district court’s equitable

remedial authority:

[T]he district court can require the existing defen-

dants—the state and city school board—to take the actions

which will help eradicate the remaining vestiges of the

government-imposed school segregation in the city

schools, including actions which may involve the voluntary

participation of the suburban schools. For example, the

district court could * * * (4) require the state to provide ad-

ditional incentives for voluntary interdistrict transfer.

Id. at 641-642 (footnote omitted).

We did not act hastily or arbitrarily in approving voluntary

interdistrict transfers. We outlined the reasons for our decision

in Adams v. United States, supra, 620 F.2d at 1291-1297. We

reviewed the parties’ proposed remedial alternatives, several of

which involved extensive cross-busing between city schools. The

Caldwell plaintiffs proposed a seventy-five percent

black/twenty-five percent white racial mix within the district.

The Liddell plaintiffs, through their expert witness, Dr. David

Colton, proposed a four-tier division of the schools by age

groups, which would integrate schools above fourth grade to

achieve a sixty percent/forty percent or fifty-five percent ratio

of black to white students. All whites above third grade would

attend integrated schools and all blacks would receive at least

one-third of their education above third grade in integrated

schools. The Department of Justice, through its expert witness,

Dr. Gary Orfield, proposed maintenance and expansion of in-

tegration in all grades, voluntary interdistrict and intradistrict

transfers, magnet schools, integration of personnel, and com-

munity involvement. The Board of Education proposed the

creation of integrated junior high schools which would funnel

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— A-417 —

students to high schools in a balanced fashion. Magnet schools

would supplement these junior high schools. The white parents

proposed that the schools be left as they were or, alternatively,

that the city and county schools be merged and a comprehensive

plan for interdistrict student transfers be developed.

Of the four plans submitted by the parties, we found that only

the Colton and Orfield plans were constitutionally permissible.

We rejected the City Board’s plan as too little too late: elemen-

tary schools would remain entirely segregated and desegregation

of the upper tiers would be delayed four to seven years. We re-

jected the Caldwell plan because the record supported the

district court’s finding that implementation of the plan would

probably result in an all-black school system within a few years.

We found that the Colton plan was permissible with some

substantial changes, but that plan was discarded by the district

cout after it found that the plan was ‘‘educationall, unsound”’

and that it would ‘‘fail to achieve effective desegregation.’’ Lid-

dell v. Bd. of Educ., supra, 491 F. Supp. at 356.

The approach suggested by the United State’s expert, Dr. Or-

field, was ultimately adopted by the district court as the plan

that held ‘‘the promise of providing ‘the greatest possible degree

of actual desegregation, taking into account the practicalities of

the situation.’ ’’ Jd. at 359, citing Davis v. Bd. of School

Comm’rs, 402 U.S. 33, 37 (1971). We reaffirmed our s:spport of

the Orfield plan in Liddell III, supra, 667 F.2d at 649-653. We

noted that it was the only constitutionally permissible plan sub-

mitted that could achieve stable, effective integration while

minimizing transportation of students and maintaining in-

tegrated schools in integrated neighborhoods. Jd. at 650.

The State defendants have raised the question of remediai

scope twice before the Supreme Court. On June 17, 1981, the

State filed a petition for certiorari from our panel opiion in

Liddell IIT. In that petition, the State argued that there was no

basis for State liability:

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The evidence in this case indicates that the State of

Missouri took the necessary and appropriate steps to

remove the legal underpinnings of segregated schooling as

well as affirmatively prohibiting such discrimination.

State’s Petition for Certiorari, No. 80-2152, June 17, 1981, at

17.

It further argued:

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 (i) an interdistrict violation has neither

been pleaded nor proven, and (2) the District Court can-

not, consistent with Milliken v. Bradley, order the State of

Missouri to fund such a voluntary plan simply on the basis

of an intradistrict violation.

Id. at 20.

The Supreme Court denied certiorari. Missouri v. Liddell, 454

U.S. 1091 (1981).

Not satisfied with this answer, the State raised the same

arguments again before our Court in Liddell IV and Liddell V.

Unsuccessful in our Court, the State filed a second petition for

certiorari with the Supreme Court on April 30, 1982. The State

again argued that

ordering an inter-district remedy [the 12(a) voluntary

transfers, funded by the State] without first finding an

inter-district violation and inter-district effect is in conflict

with this court’s decision in Milliken v. Bradley I {and Hills

v. Gautreaux].

State’s Petition for Certiorari, No. 81-2022, April 30, 1982, at

7; see also id. at 10.

— A-419 —

Again, the Supreme Court denied certiorari. Missouri v. Lid-

dell, 103 S. Ct. 172 (1982). Both of the State’s petitions for cer-

tiorari came after the Supreme Court’s decision in Hills v.

Gautreaux, 425 U.S. 284 (1976).

As a result of our previous holdings and of the Supreme

Court’s inaction, the use of interdistrict transfers is settled as

law of the case. While this doctrine does not foreclose this

Court from correcting its errors, it prevents repeated litigation

of the same issue and promotes uniformity of decision. Jn Re

Exterior Siding and Aluminum Coil Antitrust Litigation, 696

F.2d 613, 616 (8th Cir. 1982), vacated en banc, 705 F.2d 980

(8th Cir. 1983), cert. denied, 104 S. Ct. 204 (1983). We will

reconsider a previously decided issue only on a showing of clear

error and manifest injustice. United States v. Unger, 700 F.2d

445, 450 n.10 (8th Cir.), cert. denied, 104 S. Ct. 339 (1983);

Wrist-Rocket Mfg. v. Saunders Archery Co., 578 F.2d 727,

730-731 (8th Cir. 1978).

We are loath to retract our previous declarations on settled

issues when a case returns on appeal; to do so ignores important

considerations of judicial economy and ignores our interest in

protecting the settled expectations of parties who have conformed

their conduct to our guidelines. In this case, our conclusions

that State-funded interdistrict transfers are an appropriate

remedy is strengthened by our previous invocation of the law of

the case doctrine. Liddell V, supra, 677 F.2d at 629-630.

The State argues that we should not be bound by our earlier

decisions because the magnitude of the proposed plan, with

* Although denial of certiorari does not necessarily imply approval

of the decision below on the merits, this Court has recognized that

denial of certiorari is, under some circumstances, a fact which ‘‘can-

not be overlooked.’’ Wells v. Meyer’s Bakery, 561 F.2d 1268,

1274-1275 (8th Cir. 1977). See also United States v. Kras, 409 U.S.

434, 443 (1973); United States v. Thompson, 685 F.2d 993, 999 (6th

Cir.), cert. denied, 103 S. Ct. 494 (1982).

Wi eh A aR AeA REL, a ea

SALA oh DAR RR RETO ONES

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respect both to cost and numbers of students, distinguishes it

from existing plans. Neither this Court nor the district court

placed any limitation on the number of students that could

transfer under the plan in existence during the last two school

years, nor were we requested to do so. Moreover, it was clear

that the number of transfers would have to be large if the op-

portunity for an integrated education was to be provided to a

significant number of the 30,000 black students that remained in

the all-black schools in the city.

Notwithstanding our view that the issues regarding inter-

district transfers have been heretofore decided, we again reach

the merits of the matter and, alternatively, hold that the plan

and the funding order, as they relate to interdistrict transfers,

meet constitutional standards.

B. THE DISTRICT COURT’S ORDER WITH

RESPECT TO INTERDISTRICT TRANSFERS

MEETS CONSTITUTIONAL STANDARDS.

Since Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955)

(Brown II), principles of equity have guided courts in devising

remedies to eradicate segregation and its effects. Yet for

equitable remedies to pass constitutional muster, they must con-

form to three overlapping criteria.

[First], the nature of the desegregation remedy is to be

determined by the nature and scope of the constitutional

violation. * * * The remedy must therefore be related to

‘*the condition alleged to offend the Constitution.’’ * * *

Second, the decree must indeed be remedial in nature, that

is, it must be designed as nearly as possible ‘‘to restore the

victims of discriminatory conduct to the position they

would have occupied in the absence of such conduct.’’ * * *

Third, the federal courts * * * must take into account the

interests of state and local authorities in managing their

own affairs, consistent with the Constitution.

— A-421 —

Milliken v. Bradley, 433 U.S. 267, 280-281 (1977) (Milliken IT)

(citations and footnotes omitted).

Examination of voluntary interdistrict transfers confirms that,

as a remedy for an intradistrict violation, such transfers comply

with constitutional standards.

1. The remedy was closely tailored to the nature

and scope of the violation.

The Missouri Constitution requires the State to provide a free

public education. Mo. Const. art. 9, § 1(a). The State supervises

instruction, distributes funds for public education to local

school districts, approves school bus routes, provides free text-

books, and passes on applications by school districts for federal

aid. See Mo. Rev. Stat. §§ 161.092, 163.021, 163.031, 163.161,

170.051, 170.055; and Liddell v. Bd. of Educ., supra, 469 F.

Supp. at 1313-1314.

Before the Civil.War, Missouri prohibited the creation of

schools to teach reading and writing to blacks. Act of February

16, 1847, § 1, 1847 Mo. Laws 103. State-mandated segregation

was first imposed in the 1865 Constitution, Article IX § 2. It was

reincorporated in the Missouri Constitution of 1945: Article IX

specifically provided that separate schools were to be maintained

for ‘‘white and colored children.’’® In 1952, the Missouri

Supreme Court upheld the constitutionality of Article IX under

the United States Constitution. See State ex rel. Hobby v.

Disman, 250 S.W.2d 137, 141 (Mo. 1952). Article LX was not

repealed until 1976. Adams v. United States, supra, 620 F.2d at

1280. Under the segregated system, the State bused suburban

black students from St. Louis County into the city’s black

schools to maintain the dual system. Jd., at 1281. The city

schools remained largely segregated until this Court’s decision

in Adams.

* In addition, state law provided separate libraries, public parks,

and playgrounds ‘‘for the use of white and colored persons,’’ Mo.

Rev. Stat. 10474 (1939), and established separate ‘‘institutes for col-

ored teachers,’’ Mo. Rev. Stat. 10632 (1939).

— A-422 —

It is clear from the foregoing that the State’s presence in

public education is immense and that the State’s Constitution

and statutes mandated discrimination against black St. Louis

students on the broadest possible basis. It is equally clear that

the discriminatory policies continued after the Supreme Court

decided Brown I, supra, in 1954. Given the breadth of the

State’s violation, it was appropriate for the district court to

mandate an equally comprehensive remedy. The potential for

integration within the district, however, was limited by the fact

that almost eighty percent of the students were black, and by the

district court’s finding that if it integrated the city schools by

imposing an eighty/twenty ratio in each school, an all-black

school system would probably result. With that in mind, the

district court properly considered the alternative of voluntary

transfers to county districts. The opportunity for effective in-

tegration became a reality when the county schools agreed to ac-

cept the voluntary transfer of several thousand black students.'°

2. The remedy restores the victims of discrimination as

nearly as possible to the position they would have occupied

absent that discrimination.

We have heretofore enumerated the alternative remedies sug-

gested by the parties, and we have explained why the district

court selected a remedy which included voluntary interdistrict

transfers and why this Court approved that remedy. (See supra

pp. 25-26.)

We are met for the first time on this appeal with a new, or at

least a more precisely framed, argument against interdistrict

transfers. The State asserts that the district court cannot require

the State to fund extensive interdistrict transfers unless the

'© We also note that the remedial limits imposed by Dayton Bd. of

Educ. v. Brinkman, 433 U.S. 406 (1977), are inapposite to this case.

The findings of de jure segregation which distinguish this case were

absent in Dayton. In that case, the Supreme Court considered the pro-

per scope of an equitable remedy for three isolated instances of

discrimination.

— A-423 —

record supports and the district court finds that the black

children of St. Louis would have attended schools in the county

had it not been for the State’s constitutional prohibition against

black and white students attending schools together.'' Nothing

in the cases cited by the State'? suggests or requires us to hold

that the district court abused its discretion when it required the

State to fund interdistrict transfers of students to consenting

districts. Indeed Milliken IT states that the remedy should cor-

rect conditions that ‘‘flow from such a violation’’ and should

return victims ‘‘to the position they would have enjoyed in

terms of education,’’ but for the violation. Milliken II, supra,

433 U.S. at 282. This remedy does precisely that: It returns the

largest number of victims to integrated schools and provides in-

tegrative opportunities and compensatory and remedial pro-

grams for those who cannot participate in the transfer plan. As

the primary constitutional violator, the State is in no position to

complain that some of the victims may elect to transfer to in-

tegrated schools in another school district that is willing to ac-

cept them.

'' The United States joins in this argument. ‘= earlier proceedings

before this Court and the United States Supreme Court, however, it

supported the district court’s remedial use of voluiiiary interdistrict

transfers. It argued that voluntary interdistrict transfers properly

remedied the State’s violation, distinguishing them from the over-

broad remedy in Milliken I, which involved ‘‘Jmposition of relief

upon non-party school districts.’’ It asserted that the district court can

**order those who have been found liable to make efforts to persuade

those nonparty districts to cooperate voluntarily.’’ U.S. Brief in Op-

position to State’s Petition for Certiorari, Missouri v. Liddell, No.

80-2152, Aug. 17, 1971, at 14 (emphasis in original).

In a subsequent brief, the United States again distinguished the in-

terdistrict transfers from the impermissible interdistrict remedy in

Milliken I. Moreover, in endorsing interdistrict transfers, it stated

that, under Hills, ‘‘the State parties can and should be required to take

appropriate remedial action for the constitutional violations in which

they participated.’’ U.S. Brief in Opposition to the State’s Petition for

Certiorari, Missouri v. Liddell, No. 81-2022, April 30, 1982, at 7,8.

'2 Dayton Bd. of Educ. v. Brinkman, 434 U.S. 526 (1979)(Dayton

Il); Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); School

TeisnidPubstuher since dase Lab ake the eae ad laebuke, tale dhien ee

Sik Caetoceietlieraene

— A-424 —

In our view, Hills v. Gautreaux provides precedent for the

remedy mandated by the district court. In that case, the

Supreme Court considered a remedy against the United States

Department of Housing and Urban Development (HUD) for

discrimination in public housing in the City of Chicago. The

United States Court of Appeals for the Seventh Circuit had

reversed the district court’s dismissal and ordered the district

court on remand to enter summary judgment against HUD for

violations of the Fifth Amendment and the Civil Rights Act of

1964 by knowingly sanctioning and assisting the Chicago Hous-

ing Authority’s (CHA) racially discriminatory public housing

program. Hills v. Gautreaux, supra, 425 U.S. at 291-292.

Thereafter, the plaintiffs requested that the district court re-

quire HUD to provide public housing outside Chicago’s city

limits. The district court refused, holding that the wrongs were

committed solely against city residents and within the city’s

boundaries.

On appeal, the Court of Appeals for the Seventh Circuit

reversed and the Supreme Court affirmed. The Supreme Court

stated:

We reject the contention that, since HUD’s constitu-

tional and statutory violations were committed in Chicago,

Milliken precludes an order against HUD that will affect

its conduct in the greater metropolitan area. The critical

distinction between HUD and the suburban school districts

in Milliken is that HUD has been found to have violated

the Constitution. That violation provided the necessary

predicate for the entry of a remedial order against HUD

and, indeed, imposed a duty on the District Court to grant

appropriate relief. * * * Our prior decisions counsel that in

District of Omaha v. United States, 433 U.S. 667 (1977); Dayton Bd.

of Educ. v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 433

U.S. 267 (1977) (Milliken Il); Pasadena City Bd. of Educ. v. Spangler,

427 U.S. 424 (1976); Washington v. Davis, 426 U.S. 229 (1976); Keyes

v. School Dist. No. 1, 413 U.S. 189 (1973); Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

an MS =

the event of a constitutional violation ‘‘all reasonable

methods be available to formulate an effective remedy,”’

North Carolina State Board of Education v. Sv-inn, 402

U.S. 43, 46, and that every effort should be made by a

federal court to employ those methods ‘‘to achieve the

greatest possible degree of [relief], taking into account the

practicalities of the situation.’’ Davis v. School Comm’rs

of Mobile County, 402 U.S. 33, 37. As the Court observed

in Swann v. Charlotte-Mecklenburg Board of Education:

‘*Once a right and a violation have been shown, the scope

of a district court’s equitable powers to remedy past

wrongs is broad, for breadth and flexibility are inherent in

equitable remedies.”’

Hills v. Gautreaux, supra, 425 U.S. at 297 (emphasis added;

citations omitted).

The Supreme Court then discussed Milliken v. Bradley, 418

U.S. 717 (1974) (Milliken J), and the limitation it imposed on

the scope of the federal courts’ equity powers. In Milliken IJ, the

respondents alleged that the Detroit school system was racially

segregated and they sought the creation of a unified school

district as a remedy. Without finding constitutional violations

by the suburban districts and without finding significant

segregative effects in those districts, the district court ordered

the consolidation of the Detroit school system with fifty-three

independent suburban school districts. After the Court of Ap-

peals for the Sixth Circuit affirmed this desegregation order, the

Supreme Court reversed, holding that the order exceeded the

district court’s equitable powers: the courts must tailor ‘‘the

scope of the remedy’”’ to fit ‘‘the nature and extent of the con-

stitutional violation.’’ Jd. at 744.

In evaluating the remedy in Hills according to Milliken I’s

standards, the Supreme Court noted that nothing in Milliken I

**suggests a per se rule that the federal courts lack authority to

order parties found to have violated the Constitution to under-

take remedial efforts beyond the municipal boundaries of the ci-

i

ty where the violation occurred.’’ Hills v. Gautreaux, supra, 425

U.S. at 298 (footnote omitted). In Hills, the Supreme Court ap-

proved the remedy because it did not coerce uninvolved govern-

mental units and because CHA and HUD had the authority to

operate outside Chicago’s city limits. /d.

Justification for requiring the State to fund transfers between

city and county schools is stronger than the justification for the

remedy in Hills. Its role in education is much broader than

HUD’s role in housing. See supra p. 30. In addition, the

breadth, gravity and duration of the State’s violation here was

much greater. The violation scarred every student in St. Louis

for over five generations and it gained legitimacy through the

State Constitution and throngh the State’s preeminent role in

education. In following the Supreme Court’s guidelines in Hills,

we echo its conclusion concerning Milliken I. If we barred the

use of interdistrict transfers solely because the State’s consitu-

tional limitation took place within the city limits of St. Louis,

we would transform

Milliken [I]’s principled limitation on the exercise of

federal judicial authority into an arbitrary and mechanical

shield for those found to have engaged in unconstitutional

conduct.

Hills v. Gautreaux, supra, 425 U.S. at 300.

3. The district court’s order with respect to interdistrict

transfers does not infringe on State or local government

autonomy.

The Supreme Court in Hills v. Gautreaux, supra, 425 U.S. at

298, has interpreted Milliken J to mean that district courts may

not restructure or coerce local governments or their subdivi-

sions. This remedy does not threaten the autonomy of local

school districts; no district will be coerced or reorganized and all

districts retain the rights and powers accorded them by state and

federal laws. See Hills v. Gautreaux, supra, 425 U.S. at 305-306.

= Al?

We also find unpersuasive the State’s argument that funding

this remedy will compel other budget cuts, which would in-

terfere with the autonomy of state and local governments. If we

accepted this argument, violators of the Constitution could

avoid their remedial responsibility through manipulation of

their budgets, leaving victirns without redress. Simply put, par-

simony is no barrier to a constitutional remedy; “‘it is obvious

that vindication of conceded constitutional rights cannot be

made dependent upon any theory that it is less expensive to deny

than to afford them.’’ Watson v. Memphis, 373 U.S. 526, 537

(1963)."?

Interdistrict transfers between the city and the county schools

may proceed pursuant to the settlement agreement, subject to

the following exceptions:

(1) No additional transfers will be permitted for the

balance of the current school year. Such transfers would

disrupt the education of students in both sending and

receiving schools. Planning and recruitment may continue

so that enrollment may reach the levels contemplated in the

settlement agreement.

(2) City-to-county transfers will be limited to a total of

6,000 students in the 1984-85 school year and to not more

') The district court’s funding order poses no eleventh amendment

problems. The State relies on Edelman v. Jordan, 415 U.S. 651, 663

(1974), to avoid its liability for a remedy that requires the expenditure

of state funds where that remedy is allegedly overbroad. The Supreme

Court in Milliken II applied the prospective compliance exception

developed in Ex Parte Young, 209 U.S. 123 (1908), which ‘‘permits

federal courts to enjoin state officials to conform their conduct to re-

quirements of federal law, notwithstanding a direct and substantial

impact on the state treasury.’’ Milliken II, supra, 433 U.S. at 289.

After elucidating the three criteria discussed earlier, the Supreme

Court in Milliken II found that the plan under review there was con-

stitutional. The interdistrict transfer plan under consideration in this

case conforms to the same three criteria.

— A-428 —

than 3,000 additional total transfers in each succeeding

school year until the limit of 15,000 is reached. A shortfall

of enrollment in one year may be made up in succeeding

years.

(3) In the event the number of applicants for transfer ex-

ceeds the spaces available, priority shall be given to ap-

plicants who would otherwise attend an all-black school.

(4) In Liddell V, supra, 677 F.2d at 631-632, we warned of

the need for vigilance to control the costs of desegregation.

Budgetary constraints persist, and so does the need for

frugality. We are unwilling, however, to accept the State’s

suggestion that “‘compleinentary zones’’ to established,

which would effectively limit schools that transferees could

attend. This would destroy the voluntary nature of the

plan. Nevertheless, constant effort and careful planning

must be made by all concerned-to limit the costs of

transportation, insofar as is consistent with the Constitu-

tion and the voluntary nature of the plan.

C. COUNTY TO COUNTY TRANSFERS.

Although we approve State funding of transfers of students

between the city and county, we are unable to give similar ap-

proval to the funding of transfers of students between county

districts. We emphasize again that the objective of transfers bet-

ween the city and county is the eradication of segregation within

the city. Such transfers are closely tailored to the violation and

are clearly remedial with respect to that violation, according to

the standards announced in Milliken II which were discussed

above. Transfers between county districts, however, are not

geared to remedy the violation found within the city. Nor does

the record establish that intercounty transfers will materially

assist in desegregating the city schools.

We recognize that some suburban school districts have ma-

jority black enrollments and others have nearly all-white

— A-429 —

enrollments. We acknowledge that the suburban districts would

achieve a further degree of desegregation by such transfers. We

neither prohibit nor discourage such voluntary transfers bet-

ween county schools but we cannot compel the State to pay for

them absent a finding of an interdistrict violation.

Ill. MAGNET SCHOOLS AND INTEGRATIVE PROGRAMS.

A. MAGNET SCHOOLS.

The district court and this Court previously authorized the

creation of magnet schools and integrative programs. About

8,000 students (one-half of whom were blacks) participated in

these schools and programs in the 1982-83 school year. Three

hundred participants resided in the county. No one suggests that

the magnet schools or integrative programs be discontinued.

The settlement agreement approved by the district court pro-

vides for the expansion or replication of existing magnet schools

and programs and the development of new magnet schools and

programs—in both the city and the county—with total enroll-

ment to reach 20,000 students, twelve to fourteen thousand to

be enrolled in city magnets and the balance in county magnets.

The new schools would be phased in over the 1983-87 period.

To be eligible for transfer to the magnet schools, students in

good standing must be in the racial majority in their home

districts and must meet the qualifications for the magnets.

Special eligibility requirements allow white students from the city

to attend city magnets if the students now attend schools that

are less than ten percent or over fifty percent white.'* Black

'* Our affirmance in this case does not preclude the district court

from reconsidering these special requirements—to the extent that they

permit a white student attending a school with less than ten percent

white enrollment to transfer to a city magnet school—in light of deci-

sions by the Supreme Court and this Court. The district court may

reconsider these requirements upon the request of any party.

—

students in majority black districts are eligible to attend magnet

schools and programs in other black majority districts if seats

remain open after all of the host district’s black students have

been accommodated.

The State argues that insufficient attention has been devoted

to developing a curriculum designed to attract county students.

It also objects to being required to pay the full cost of building

and operating the new magnets.

Before reviewing the State’s specific arguments, we observe

that the utility and propriety of magnets as a desegregation

remedy is beyond dispute. In Adams v. United States, supra,

620 F.2d at 1296-1297, we evaluated the remedies we had

previously found to be constitutionally permissible. We recom-

mended ‘‘[mJaintaining existing magnet and specialty schools,

and establishing such additional schools as needed to expand

opportunities for an integrated education.’’ Jd. at 1297. We

reiterated our approval of magnet schools in Liddell III, supra,

667 F.2d at 658 (emphasis omitted), where, in considering an in-

tradistrict remedy, we directed the city and suburban school

districts to undertake a ‘‘study of the feasibility of establishing

magnet schools located in suburban districts with attendance

open to students of both the suburbs and the city. * * * The

location of these magnet schools should be determined by agree-

ment between the St. Louis Board of Education and the subur-

ban school districts involved.’’ Finally, in Liddell V, supra, 677

F.2d at 642, we reaffirmed our conclusion that the district court

could ‘‘require that additional magnet schools be established at

state expense within the city or in suburban school districts with

the consent of the suburban districts where the schools would be

located.’’ As with interdistrict transfers, our previous deter-

minations in this case concerning magnet schools are law of the

case.

Had we not in our previous decisions explicitly examined and

approved the use of magnet schools and programs, the weight

of precedent would nevertheless oblige us now to approve their

— A-431 —

use. In Milliken II, supra, 433 U.S. at 272, the Supreme Court

mentioned magnet schools as a supplement to the compensatory

and remedial programs which it approved in that case. Dissen-

ting in another case, Justice Powell observed that the Supreme

Court in Swann v. Charlotte-Mecklenburg Bd. of Educ., supra,

402 U.S. at 26-27, implicitly encouraged the use of magnet

schools:

Incentives can be employed to encourage [majority-

minority] transfers, such as creation of magnet schools

providing special educational benefits and state subsidiza-

tion of those schools that expand their minority

enrollments. * * * These and like plans, if adopted volun-

tarily by States, also could help counter the effects of racial

imbalances between school districts that are beyond the

reach of judicial correction.

Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 488 (1979).

This court also approved magnets as a means of desegregating

the Little Rock schools in Clark v. Bd. of Educ. of Little Rock,

705 F.2d 265, 269, 272 (8th Cir. 1983).

Courts of Appeals in several other circuits have also approved

desegregation plans which include magnets. Arthur v. Nyquist,

712 F.2d 809, 811-813 (2d Cir. 1983); Berry v. School District of

Benton Harbor, 698 F.2d 813, 819 (6th Cir.}, cert. denied, 104

S. Ct. 236 (1983); United States v. Texas Education Agency, 679

F.2d 1104, 1110 (Sth Cir. 1982); Hart v. Community School Bd.

of Educ., 512 F.2d 37, 54-55 (2d Cir. 1975)(citing successful

magnet programs in Boston, Massachusetts; Providence, Rhode

Island; and Coney Island, New York); Stout v. Jefferson Coun-

ty Bd. of Educ., 483 F.2d 84, 85 (Sth Cir. 1973). District courts

have also approved plans that include magnets. TJasby v.

Wright, 520 F. Supp. 683, 741 (N.D. Tex. 1981), aff’d in part,

rev’d in part, on other grounds, 713 F.2d 90 (Sth Cir. 1983);

Smiley v. Blevins, 514 F. Supp. 1248, 1260 (S.D. Tex. 1981). A

survey of the literature reveals that magnets are being used in at

least eighteen cities. Rossell, Magnet Schools as a Desegretation

_ Tool, 14 Urban Education 303, 320 (1979).

a NE

Despite the widespread approval of magnet schools by the

federal courts, critics maintain that magnet schools cannot cor-

rect the deep-seated evils of school desegregation. See, e.g.,

Morgan v. Kerrigan, 530 F.2d 401, 410 & n.10 (Ist Cir.), cert.

denied, 426 U.S. 935 (1976); Bradley v. Milliken 484 F.2d 215,

243 (6th Cir.), rev'd on other grounds, 418 U.S. 717 (1974);

Kelley v. Guinn, 456 F.2d 100, 108-109 (9th Cir. 1972), cert.

denied, 413 U.S. 919 (1973). Yet the criticisms in these cases

generally apply to desegregation plans in which magnets are the

principal tool in a ‘‘freedom of choice’’ plan. They function dif-

ferently in the settlement agreement approved here by the

district court. Magnet schools are a single element of the panop-

ly of remedies approved by this Court and the district court.

Like the magnet schools in Stout v. Jefferson County Bd. of

Educ., supra, 483 F.2d at 86, they are ‘‘part of a complex and

many-faceted’’ plan. Magnets perform the salutary function of

allowing ‘‘non-white as well as the white students so enrolled a

chance to widen their horizons through the interplay of ideas

and the absorption of diverse sub-cultural attitudes.’’ Hart v.

Community School Bd. of Educ., supra, 512 F.2d at 54.

Magnet schools under this plan will be distinguished by the

features that have made them successful in other cities: in-

dividualized teaching, a low pupil-teacher ratio, specialized pro-

grams tailored to students’ interests, enriched resources and ac-

tive recruitment. See Rosenbaum and Presser, Voluntary Racial

Integration in a Magnet School, 86 U. Chi. School Rev. 156,

156 (1978); Levine and Eubanks, Attracting Nonminority

Students to Magnet Schools in Minority Neighborhoods, 19 In-

tegrateducation 52, 57 (1981). Because they are supplemented

by the extensive program of interdistrict transfers and compen-

satory education, these magnets will not resegregate, nor will

they create a dualistic system with elitist schools.

We do not believe that the district court erred in ordering the

State to pay the full capital and operating cost of magnet

schools. As we noted earlier, the State’s status as a violator of

— A-433 —

the Constitution compels the district court to remedy the

deprivations the State has caused. In Liddell V, supra, 677 F.2d

at 642, we held that the State could be ordered to undertake as a

part of its remedial responsibility the development of magnets.

Now we reaffirm that conclusion.

While we approve magnet schools and affirm the district

court’s decision concerning their funding, we see merit in the

State’s argument that careful study and planning must precede

replication or expansion of magnets. New magnet schools must

be approved by the Magnet Review Committee and the district

court. The planning process should focus on those schools and

programs that present a reasonable probability of attracting

suburban white students; only those schools which demonstrate

such a probability should be approved. The new schools should

be phased in over a period of four years as provided for by the

settlement agreement. The total number of students enrolied in

city magnet schools shall not exceed 14,000.

We impose an additional limitation on the development of

suburban magnets. Although a panel of this Court approved the

use of suburban magnet schools in Liddell III, supra, 667 F.2d

at 658-659; and Liddell V, supra, 677 F.2d at 641-642, the Court

en banc does not believe that the record sufficiently supports

this development. The county districts may proceed on their

own, of course, without state funding. Any black city students

who transfer into county-funded magnet schools would count

toward achieving the district’s plan goal and would contribute

to the district’s final judgment. State fiscal incentives would in-

clude payments to districts sending transferees to county-

funded magnets, but the State will not be required to pay the

capital or operating costs of county magnet schools as such.

— A-434 —

B. PART-TIME INTEGRATIVE PROGRAMS.

Part-time integrative programs are primarily intended to pro-

vide integrative learning experiences for students attending all-

black schools. Adams v. United States, supra, 620 F.2d at 1296;

Liddell IV, supra, 693 F.2d at 727; Liddell V, supra, 677 F.2d at

642. These programs have been, and should continue to be, an

important element of the overall plan to integrate the city

schools. In determining the need for continuing the existing pro-

grams, or developing new ones, the City Board and the Budget

Review Committee must keep the above standard in mind. They

must also recognize that the number of black students in

nonintegrated schools will decline dramatically over the next

four years. We thus approve the district court’s decision insofar

as it permits the continuance of part-time integrative programs

and requires the State to pay full cost of the approved pro-

grams.

We do not, however, specifically approve the new or expand-

ed programs or the dollar amounts for these programs listed in

the proposed budget (items A.4.10, A.4.11, A.5.01, A.5.02,

A.5.04, A.5.05, A.6.01, A.6.03, and A.6.04). We rather require

the City Board to resubmit to the Budget Review Committee,

discussed infra Section VI, a list of the new or expanded pro-

grams that they would propose to implement. The total cost of

these programs should not exceed $1 million. Further, these

programs must not duplicate any programs approved in the

quality education section of this opinion. Any dispute that

emerges between the City Board and the State concerning these

programs should be submitted for resolution by the Budget

Review Committee and the district court in light of this discus-

sion.

— A-435 —

IV. QUALITY EDUCATION IMPROVEMENTS.

The settlement plan approved by the district court includes

compensatory and remedial programs to improve the quality of

education throughout the St. Louis public schools and addi-

tional programs for the same purpose in the nonintegrated

schools. The district-wide improvements include a reduction in

class size; restoration of art, miusic, physical education, and ex-

tracurricular programs; creation of pre-school centers and all-

day kindergarten programs; additional staff to address the

needs of handicapped students; additional nursing ard counsel-

ing staff; and expansion of library and other media resources

and services. Administrative improvements include curriculum

and staff development, evaluation and performance assessment,

and enhanced long-range planning.

The additional improvements for the nonintegrated schools

include a further class-size reduction in grades K through 8, to

twenty pupils per teacher; additional remedial instruction time

through after-school, Saturday, and summer school programs;

parental involvement programs; and alternative education op-

tions for black students unable to attend magnet schools. Other

programs address motivational needs of students in the all-black

schools by stimulating opportunities for student success and

recognition, by introducing role models for academic achieve-

ment, and by establishing student concerns committees to ad-

dress the morale, attendance, and behavior issues which emerge

during the implementation of the plan.

— A-436 —

A. LEGAL PRECEDENT FOR INCLUDING COM-

PENSATORY AND REMEDIAL PROGRAMS IN

DESEGREGATION REMEDIES.

This Court suggested the necessity for remedial and compen-

satory programs in Adams v. United States, supra, 620 F.2d at

1296, and reiterated that need in Liddell V, supra, 677 F.2d at

641-642. We thus approve them in principle as law of the case.

See supra p. 28. Moreover, such programs have solid support in

the case law as proper components of a desegregation remedy so

long as they relate to the constitutional violation, are remedial

in nature, and account for state and local autonomy. Milliken

IT, supra, 433 U.S. at 280-281.

In Brown I, the Supreme Court recognized that segregation

harms black children by generating ‘‘a feeling of inferiority as

to their status in the community that may affect their hearts and

minds in a way unlikely ever to be undone.’’ Brown IJ, supra,

347 U.S. at 494. In light of this harm, federal courts have often

required the inclusion of remedial programs in desegregation

plans to overcome the inequalities inherent in dual school

systems. Milliken II, supra, 433 U.S. at 283. See, e.g., Arthur v.

Nyquist, supra, 712 F.2d at 811; Oliver v. Kalamazoo Bd. of

Educ., 640 F.2d 782, 789-790 (6th Cir. 1980); Evans v.

Buchanan, 582 F.2d 750, 767-769 (3d Cir. 1978) (en banc), cert.

denied, 446 U.S. 923 (1980); United States v. Texas, 447 F.2d

441, 448 (1971); United States v. Jefferson County Bd. of

Educ., 380 F.2d 385, 394-395 (Sth Cir.), cert. denied, 389 U.S.

840 (1967); Berry v. School Dist. of Benton Harbor, 515 F.

Supp. 344, 369-373 (W.D. Mich. 1981), aff'd and remanded,

698 F.2d 813 (6th Cir. 1983); United States v. Bd. of School

Comm’rs of Indianapolis, 506 F. Supp. 657, 671-673 (S.D. Ind.

1979), vacated in part on other grounds, 637 F.2d 1101 (7th

Cir.), cert. denied, 449 U.S. 838 (1980).

Such programs ‘‘assist students who previously attended all-

Negro schools when those students transfer to formerly all-

white schools. . . . The remedial programs. . . are an integral

— A-437 —

part of a program for compensatory education to be provided

Negro students who have long been disadvantaged by the ine-

quities and discrimination inherent in the dual school system.”’

Milliken II, supra, 433 U.S. at 284 (emphasis in original),

quoting Plaquemines Parish School Bd. v. United States, 415

F.2d 817, 831 (Sth Cir. 1969). Crucial to the Supreme Court’s

analysis in Milliken IJ is the concept that segregation not only

inflicts harm on individual black students, but also builds ‘‘in-

a

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