# Appendix — Leggett v. Liddell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2713%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1076 ## Text | 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. rr - ee = 4 es & Es E + ¥ ier — 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. £ : ; hate — 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. | en 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 la — 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: 4 q 4 : = oh £ img S $ 2 3 a $ — | oe 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2713%3A03. Public record. Not legal advice.