Appendix — Missouri v. Liddell

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Office - Supreme Court, U.S.

83 - 172 FILED

APR 20 1984

No.

ALEXANDER L. STEVAS.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

STATE OF MIssouRI, et al.,

Petitioners,

CRATON LIDDELL, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JOHN ASHCROFT *

Attorney General

EDWARD D. ROBERTSON, JR.

Deputy Attorney General

Supreme Court Building

Jefferson City, MO 65102

(314) 751-3321

H. BARTOW FArR, III

JOEL I. KLEIN

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

* Counsel of Record Counsel for Petitioners

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

FO8 pp

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Se ee Oe ee ee

Appendix

TABLE OF CONTENTS

(Opinion of the Court of Appeals for the

PE ale ciacaceaeeceibetelddsacientsiins

(Opinion of the District Court for the

Eastern District of Missouri, Eastern

SE “eee ea ae

(Judgment of the Court of Appeals for

8, ee

(Settlement Agreement approved by the

District Court for the Eastern District

of Missouri, Eastern Division) ..............

(Budget Proposed by the City Board

Pursuant to the Settlement Agreement

with Introduction and Narrative) ..........

Page

95a

148a

149a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1957

CRATON LIDDELL, a minor, by MINNIE LIDDELL, his

mother and next friend, and MINNIE LIDDELL; JOANNA

GOLDSBY, a minor, by BARBARA GOLDSBY, her mother

and next friend, and BARBARA GOLDSBY; DEBORAH

YARBER, a minor, by SAMUEL YARBER, her father and

next friend, and SAMUEL YARBER; NATALIE MOORE, a

minor, by LOUISE Moore, her mother and next friend,

and LOUISE MOORE; ROCHELLE LEGRAND, a minor, by

LoIs LEGRAND, her mother and next friend, and LOIS

LEGRAND; on behalf of themselves and all other school

age children and their parents residing in the metro-

politan school district of the City of St. Louis, Missouri,

Appellees,

EARLINE CALDWELL, LIDDIE CALDWELL, DENISE DANIELS,

DWAYNE DANIELS, GWENDOLYN DANIELS, CEDRIC WIL-

LIAMS, STEPHANIE WILLIAMS, GLORIA WILLIAMS, JANIS

HUTCHERSON, ROBERT SMITH, EDDIE S. WILLIS, and

the National Association for the Advancement of

Colored People,

Appellees,

CITY OF ST. LOUIS,

UNITED STATES OF AMERICA,

BOARD OF EDUCATION OF THE CITY OF ST. LOUIS, STATE

OF MISSOURI, DANIEL L. SCHLAFLY, FREDERICK E.

BUSSEE, GORDON L. BENSON, MALCOLM W. MARTIN,

Mrs. ANITA L. BOND, MRS. JOYCE BOWEN, HENRY M.

GRICH, JR. (Secretary), REV. JAMES L. CUMMINGS

(President), Mrs. ERMA J. LAWRENCE, REV. DONALD E.

MAYER (Vice President), LAWRENCE MOSER, CHARLES

Harris (Members of the School Board); and JULIUS

C. Dix, BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

DAVIS J. MAHAN, CHARLES BRASFIELD (School District

Superintendents); and ROBERT E. WENTZ (Superin-

tendent of Schools), all in their official capacities,

Appellees,

St. Louis CoUNTY, GENE MCNARY, County Executive;

HARLOW RICHARDSON, County Treasurer; GEORGE C.

LEACHMAN, Collection of St. Louis County Contract

Account,

AFFTON BOARD OF EDUCATION, BAYLESS BOARD OF EDU-

CATION, BRENTWOOD BOARD OF EDUCATION, CLAYTON

BOARD OF EDUCATION, FERGUSON-FLORISSANT REOR- j

GANIZED R-2, HANCOCK PLACE BOARD OF EDUCATION,

HAZELWOOD BOARD OF EDUCATION, JENNINGS BOARD

OF EDUCATION, KIRKWOOD BOARD OF EDUCATION, LADUE

BOARD OF EDUCATION, LINDBERGH BOARD OF EDUCA-

TION, MAPLEWOOD-RICHMOND HEIGHTS BOARD OF EDU-

CATION, MEHLVILLE BOARD OF EDUCATION, NORMANDY

BOARD OF EDUCATION, PARKWAY BOARD OF EDUCATION, j

PATTONVILLE BOARD OF EDUCATION, RITENOUR BOARD

OF EDUCATION, RIVERVIEW GARDENS BOARD OF EDUCA-

TION, ROCKWOOD BOARD OF EDUCATION, VALLEY PARK

BOARD OF EDUCATION, UNIVERSITY CITY BOARD OF ED-

UCATION, WEBSTER GROVES BOARD OF EDUCATION and

WELLSTON BOARD OF EDUCATION,

Appellees,

STATE OF MISSOURI; ARTHUR MALLORY, Commissioner of

Education of the State of Missouri, in his official ca-

pacity; THE STATE OF MISSOURI BOARD OF EDUCATION ; |

CHRISTOPHER S. BOND, Governor of the Staie of Mis-

souri; JOHN ASHCROFT, Attorney General of the State

of Missouri; MELVIN E. CARNAHAN, Treasurer of the

State of Missouri; STEPHEN C. BRADFORD, Commis-

sioner of Administration of the State of Missouri; THE

STATE OF MISSOURI BOARD OF EDUCATION and its mem-

bers: ERWIN A. WILLIAMSON (President), JIMMY RoB-

ERTSON (Vice President), GROVER A. GAMM, DELMAR

A. COBBLE, DALE M. THOMPSON, DONALD W. SHELTON

and ROBERT WELLING,

Appellants.

Appeal from the United States District Court

for the Eastern District of Missouri

No. 83-2033

CRATON LIDDELL, a minor, by MINNIE LIDDELL, his

mother and next friend, and MINNIE LIDDELL; JOANNA

GOLDSBY, a minor, by BARBARA GOLDSBY, her mother

and next friend, and BARBARA GOLDSBY; DEBORAH

YARBER, a minor, by SAMUEL YARBER, her father and

next friend, and SAMUEL YARBER; NATALIE MOORE, a

minor, by LOUISE Moorg, her mother and next friend,

and LOUISE MOORE; ROCHELLE LEGRAND, a minor, by

LoIs LEGRAND, her mother and next friend, and LOIS

LEGRAND; on behalf of themselves and all other school

age children and their parents residing in the metro-

politan school district of the City of St. Louis, Missouri,

Appellees,

EARLINE CALDWELL, LIDDIE CALDWELL, DENISE DANIELS,

DWAYNE DANIELS, GWENDOLYN DANIELS, CEDRIC WIL-

LIAMS, STEPHANIE WILLIAMS, GLORIA WILLIAMS, JANIS

HUTCHERSON, ROBERT SMITH, EDDIE S. WILLIS, and

the National Association for the Advancement of

Coiored People, .

Appellees,

CiTy oF St. LOuIs,

UNITED STATES OF AMERICA,

BOARD OF EDUCATION OF THE CITY OF ST. LOUIS, STATE

OF MISSOURI, DANIEL L. SCHLAFLY, FREDERICK E.

BUSSEE, GORDON L. BENSON, MALCOLM W. MARTIN,

Mrs. ANITA L. BOND, Mrs. JOYCE BOWEN, HENRY M.

GRICH, JR. (Secretary), REV. JAMES L. CUMMINGS

(President), Mrs. ERMA J. LAWRENCE, REV. DONALD E.

MAYER (Vice President), LAWRENCE MOSER, CHARLES

HaPrRiIs (Members of the School Board); and JULIUS

C. VIX, BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

DAVID J. MAHAN, CHARLES BRASFIELD (School District

Superintendents) ; and ROBERT E. WENTZ (Superin-

tendent of Schools), ail in their official capacities,

Appellees,

ST. LouIS COUNTY, GENE MCNARy, County Executive;

HARLOW RICHARDSON, County Treasurer; GEORGE C.

LEACHMAN, Collection of St. Louis County Contract

Account,

Appellees,

AFFTON BOARD OF EDUCATION, BAYLESS BOARD OF EDU-

CATION, BRENTWOOD BOARD OF EDUCATION, CLAYTON

BOARD OF EDUCATION, FERGUSON-FLORISSANT REOR-

GANIZLO R-2, HANCOCK PLACE BOARD OF EDUCATION,

HAZELWOOD BOARD OF EDUCATION, JENNINGS BOARD

OF EDUCATION, KIRKWOOD BOARD OF EDUCATION, LADUE

BOARD OF EDUCATION, LINDBERGH BOARD OF EDUCA-

TION, MAPLEWOOD-RICHMOND HEIGHTS BOARD OF EDU-

CATION, MEHLVILLE BOARD OF EDUCATION, NORMANDY

BOARD OF EDUCATION, PARKWAY BOARD OF EDUCATION,

PATTONVILLE BOARD OF EDUCATION, RITENOUR BOARD

OF EDUCATION, RIVERVIEW GARDENS BOARD OF EDUCA-

TION, ROCKWOOD BOARD OF EDUCATION, VALLEY PARK

BOARD OF EDUCATION, UNIVERSITY CITY BOARD OF ED-

UCATION, WEBSTER GROVES BOARD OF EDUCATION and

WELLSTON BOARD OF EDUCATION,

Appellees,

Vv.

STATE OF MISSOURI; ARTHUR MALLORY, Commissioner of

Education of the State of Missouri, in his official ca-

pacity; THE STATE OF MISSOURI BOARD OF EDUCATION ;

CHRISTOPHER S. BOND, Governor of the State of Mis-

souri; JOHN ASHCROFT, Attorney General of the State

of Missouri; MELVIN E. CARNAHAN, Treasurer of the

State of Missouri; STEPHEN C. BRADFORD, Commis-

sioner of Administration of the State of Missouri; THE

STATE OF MISSOURI BOARD OF EDUCATION and its mem-

bers: ERWIN A. WILLIAMSON (President), JIMMY RoB-

ERTSON (Vice President), GROVER A. GAMM, DELMAR

A. COBBLE, DALE M. THOMPSON, DONALD W. SHELTON

and ROBERT WELLING,

Appellees,

St. LouIs TEACHERS UNION, LOCAL 420,

AMERICAN FEDERATION OF TEACHERS,

Appellant.

Appeal from the United States District Court

for the Eastern District of Missouri

No. 83-2118

CRATON LIDDELL, a minor, by MINNIE LIDDELL, his

mother and next friend, and MINNIE LIDDELL; JOANNA

GOLDSBY, a minor, by BARBARA GOLDSBY, her mother

and next friend, and BARBARA GOLDSBY; DEBORAH

YARBER, a minor, by SAMUEL YARBER, her father and

next friend, and SAMUEL YARBER; NATALIE MOORE, a

minor, by LOUISE MoorE, her mother and next. friend,

and LOUISE MOORE; ROCHELLE LEGRAND, 2 minor, by

Lois LEGRAND, her mother and next friend, and Lois

LEGRAND; on behalf of themselves and all other school

age children and their parents residing in the metro-

politan school district of the City of St. Louis, Missouri,

Appellees,

EARLINE CALDWELL, LIDDIE CALDWELL, DENISE DANIELS,

DWAYNE DANIELS, GWENDOLYN DANIELS, CEDRIC WIL-

LIAMS, STEPHANIE WILLIAMS, GLORIA WILLIAMS, JANIS

HUTCHERSON, ROBERT SMITH, EDDIE §. WILLIS, and

the National Association for the Advancement of

Colored People,

Appellees,

CITY OF ST. LOUIS,

Appellant.

UNITED STATES OF AMERICA,

Appellee,

BOARD OF EDUCATION OF THE CITY OF ST. LOUIS, STATE

OF MissouRI, DANIEL L. SCHLAFLY, FREDERICK E.

BUSSEE, GORDON L. BENSON, MALCOLM W. MARTIN,

Mrs. ANITA L. BOND, Mrs. JOYCE BOWEN, HENRY M.

GRICH, JR. (Secretary), REV. JAMES L. CUMMINGS

(President), Mrs. ERMA J. LAWRENCE, REV. DONALD E.

MAYER (Vice President), LAWRENCE MOSER, CHARLES

Harris (Members of the School Board); and JULIUS

C. Dix, BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

Davip J. MAHAN, CHARLES BRASFIELD (School District

Superintendents) ; and ROBERT E. WENTZ (Superin-

tendent of Schools), all in their official capacities,

Appellees,

St. Louis CouNTY, GENE MCNARY, County Executive,

HARLOW RICHARDSON, County Treasurer, GEORGE C.

LEACHMAN, Collection of St. Louis County Contract

Account,

Appellees,

AFFTON BOARD OF EDUCATION, BAYLESS BOARD OF EDU-

CATION, BRENTWOOD BOARD OF EDUCATION, CLAYTON

BOARD OF EDUCATION, FERGUSON-FLORISSANT REOR-

GANIZED R-2, HANCOCK PLACE BOARD OF EDUCATION,

HAZELWOOD BOARD OF EDUCATION, JENNINGS BOARD

OF EDUCATION, KIRKWOOD BOARD OF EDUCATION, LADUE

BOARD OF EDUCATION, LINDBERGH BOARD OF EDUCA-

TION, MAPLEWOOD-RICHMOND HEIGHTS BOARD OF EDU-

CATION, MEHLVILLE BOARD OF EDUCATION, NORMANDY

BOARD OF EDUCATION, PARKWAY BOARD OF EDUCATION,

PATTONVILLE BOARD OF EDUCATION, RITENOUR BOARD

OF EDUCATION, RIVERVIEW GARDENS BOARD OF EDUCA-

TION, ROCKWOOD BOARD OF EDUCATION, VALLEY PARK

BOARD OF EDUCATION, UNIVERSITY CITY BOARD OF ED-

UCATION, WEBSTER GROVES BOARD OF EDUCATION and

WELLSTON BOARD OF EDUCATION,

. Appellees,

STATE OF MISSOURI; ARTHUR MALLORY, Commissioner of

Education of the State of Missouri, in his official ca-

pacity; THE STATE OF MISSOURI BOARD OF EDUCATION;

CHRISTOPHER S. BOND, Governor of the State of Mis-

souri; JOHN ASHCROFT, Attorney General of the State

of Missouri; MELVIN E. CARNAHAN, Treasurer of the

State of Missouri; STEPHEN C. BRADFORD, Commis-

sioner of Administration of the State of Missouri; THE

STATE OF MISSOURI BOARD OF EDUCATION and its mem-

bers: ERWIN A. WILLIAMSON (President), JIMMY ROB-

ERTSON (Vice President), GROVER A. GAMM, DELMAR

A. COBBLE, DALE M. THOMPSON, DONALD W. SHELTON

and ROBERT WELLING,

Appellees,

St. LouIs TEACHERS UNION, LOCAL 420,

AMERICAN FEDERATION OF TEACHERS,

Appellant.

Appeal from the United States District Court

for the Eastern District of Missouri

‘ati

No. 83-2140

IN RE: City oF ST. LouIs, PAUL BERRA

and RONALD A. LEGGETT,

Petitioners,

Petition for Writ of Prohibition

No. 83-2220

CRATON LIDDELL, a minor, by MINNIE LIDDELL, his

mother and next friend, and MINNIE LIDDELL; JOANNA

GOLDSBY, a minor, by BARBARA GOLDSBY, her mother

and next friend, and BARBARA GOLDSBY; DEBORAH

YARBER, a minor, by SAMUEL YARBER, her father and

next. friend, and SAMUEL YARBER; NATALIE MOORE, a

minor, by LOUISE Moore, her mother and next friend,

and LOUISE MooRE; ROCHELLE LEGRAND, a minor, by

Lois LEGRAND, her mother and next friend, and LOIS

LEGRAND; on behalf of themselves and all other school

age children and their parents residing in the metro-

politan school district of the City of St. Louis, Missouri,

Appellees,

EARLINE CALDWELL, LIDDIE CALDWELL, DENISE DANIELS,

DWAYNE DANIELS, GWENDOLYN DANIELS, CEDRIC WIL-

LIAMS, STEPHANIE WILLIAMS, GLORIA WILLIAMS, JANIS

HUTCHERSON, ROBERT SMITH, EDDIE S. WILLIS, and

the National Association for the Advancement of

Colored People,

Appellees,

CITY oF ST. LouIs,

UNITED STATES OF AMERICA,

BOARD OF EDUCATION OF THE CITY OF ST. LouIs, STATE

OF MISSOURI, DANIEL L. SCHLAFLY, FREDERICK E.

BUSSEE, GORDON L. BENSON, MALCOLM W. MARTIN,

Mrs. ANITA L. BOND, Mrs. JOYCE BOWEN, HENRY M.

GRICH, JR. (Secretary), REV. JAMES L. CUMMINGS

(President), Mrs. ERMA J. LAWRENCE, REV. DONALD E.

MAYER (Vice President), LAWRENCE MOSER, CHARLES

HARRIS (Members of the School Board); and JULIUS

C. Dix, BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

DAviID J. MAHAN, CHARLES BRASFIELD (School District

Superintendents); and ROBERT E. WENTZ (Superin-

tendent of Schools), all in their official capacities,

Appellees,

St. Louis COUNTY, GENE McNary, County Executive,

HARLOW RICHARDSON, County Treasurer, GEORGE C.

LEACHMAN, Collection of St. Louis County Contract

Account,

Appellees,

AFFTON BOARD OF EDUCATION, BAYLESS BOARD OF EDU-

CATION, BRENTWOOD BOARD OF EDUCATION, CLAYTON

BOARD OF EDUCATION, FERGUSON-FLORISSANT REOR-

GANIZED R-2, HANCOCK PLACE BOARD OF EDUCATION,

HAZELWOOD BOARD OF EDUCATION, JENNINGS BOARD

OF EDUCATION, KIRKWOOD BOARD OF EDUCATION, LADUE

BOARD OF EDUCATION, LINDBERGH BOARD OF EDUCA-

TION, MAPLEWOOD-RICHMOND HEIGHTS BOARD OF EDU-

CATION, MEHLVILLE BOARD OF EDUCATION, NORMANDY

BOARD OF EDUCATION, PARKWAY BOARD OF EDUCATION,

PATTONVILLE BOARD OF EDUCATION, RITENOUR BOARD

OF EDUCATION, RIVERVIEW GARDENS BOARD OF EDUCA-

TION, ROCKWOOD BOARD OF EDUCATION, VALLEY PARK

BOARD OF EDUCATION, UNIVERSITY CITY BOARD OF ED-

10a

UCATION, WEBSTER GROVES BOARD OF EDUCATION and

WELLSTON BOARD OF EDUCATION,

Appellees,

STATE OF MISSOURI; ARTHUR MALLORY, Commissioner of

Education of the State of Missouri, in his official ca-

pacity; THE STATE OF MISSOURI BOARD OF EDUCATION;

CHRISTOPHER S. BOND, Governor of the State of Mis-

souri; JOHN ASHCROFT, Attorney General of the State

of Missouri; MELVIN E. CARNAHAN, Treasurer of the

State of Missouri; STEPHEN C. BRADFORD, Commis-

sioner of Administration of the State of Missouri; THE

STATE OF MISSOURI BOARD OF EDUCATION and its mem-

bers: ERWIN A. WILLIAMSON (President), JIMMY RoB-

ERTSON (Vice President), GROVER A. GAMM, DELMAR

A. COBBLE, DALE M. THOMPSON, DONALD W. SHELTON

and ROBERT WELLING,

St. LouIs TEACHERS UNION, LOCAL 420,

AMERICAN FEDERATION OF TEACHERS,

NorTH ST. LouIsS PARENTS and CITIZENS for QUALITY

EDUCATION, an unincorporated association, including

WILLIAM UPCHURCH, VIVIAN ALI, and DOROTHY ROBINS,

parents of children attending the St. Louis city public

schools and members of the regional plaintiff classes

who objected to the settlement agreement,

Appellants.

Appeal from the United States District Court

for the Eastern District of Missouri

lla

No. 83-2554

CRATON LIDDELL, a minor, by MINNIE LIDDELL, his

mother and next friend, and MINNIE LIDDELL; JOANNA

GOLDSBY, a minor, by BARBARA GOLDSBY, her mother

and next friend, and BARBARA GOLDSBY; DEBORAH

YARBER, a minor, by SAMUEL YARBER, her father and

next friend, and SAMUEL YARBER; NATALIE Moor, a

minor, by LOUISE Moore, her mother and next friend,

and LOUISE MooRE; ROCHELLE LEGRAND, a minor, by

LOIS LEGRAND, her mother and next friend, and LoIs

LEGRAND; on behalf of themselves and all other school

age children and their parents residing in the metro-

politan school district of the City of St. Louis, Missouri,

Appellees,

EARLINE CALDWELL, LIDDIE CALDWELL, DENISE DANIELS,

DWAYNE DANIELS, GWENDOLYN DANIELS, CEDRIC WIL-

LIAMS, STEPHANIE WILLIAMS, GLORIA WILLIAMS, JANIS

HUTCHERSON, ROBERT SMITH, EDDIE S. WILLIS, and

the National Association for the Advancement of

Colored People,

Appellees,

City oF St. LouIs,

UNITED STARES OF AMERICA,

BOARD OF EDUCATION OF THE CITY oF ST. LOUIS, STATE

OF MIssouRI, DANIEL L. SCHLAFLY, FREDERICK E.

BUSSEE, GORDON L. BENSON, MALCOLM W. MARTIN,

Mrs. ANITA L. BOND, Mrs. Joyce BOWEN, HENRY MM.

GrIcH, JR. (Secretary), Rev. JAMES L. CUMMINGS

(President), Mrs. ERMA J. LAWRENCE, REv. DONALD E.

MAYER (Vice President), LAWRENCE MOSER, CHARLES

HARRIS (Members of the School Board) ; and JuULIus

C. Dix, BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

12a

DAviID J. MAHAN, CHARLES BRASFIELD (School District

Superintendents) ; and ROBERT E. WENTZ (Superin-

tendent of Schools), all in their official capacities,

Appellees,

St. Louis CouNTy, GENE McNary, County Executive,

HARLOW RICHARDSON, County Treasurer, GEORGE C.

LEACHMAN, Collection of St. Louis County Contract

Account,

Appellees,

AFFTON BOARD OF EDUCATION, BAYLESS BOARD OF EDU-

CATION, BRENTWOOD BOARD OF EDUCATION, CLAYTON

BOARD OF EDUCATION, FERGUSON-FLORISSANT REOR-

GANIZED R-2, HANCOCK PLACE BOARD OF EDUCATION,

HAZELWOOD BOARD OF EDUCATION, JENNINGS BOARD

OF EDUCATION, KIRKWOOD BOARD OF EDUCATION, LADUE

BOARD OF EDUCATION, LINDBERGH BOARD OF EDUCA-

TION, MAPLEWOOD-RICHMOND HEIGHTS BOARD OF EDU-

CATION, MEHLVILLE BOARD OF EDUCATION, NORMANDY

BOARD OF EDUCATION, PARKWAY BOARD OF EDUCATION,

PATTONVILLE BOARD OF EDUCATION, RITENOUR BOARD

OF EDUCATION, RIVERVIEW GARDENS BOARD OF EDUCA-

TION, ROCKWOOD BOARD OF EDUCATION, VALLEY PARK

BOARD OF EDUCATION, UNIVERSITY CITY BOARD OF ED-

UCATION, WEBSTER GROVES BOARD OF EDUCATION and

WELLSTON BOARD OF EDUCATION,

Appellees,

Vv.

STATE OF MISSOURI; ARTHUR MALLORY, Commissioner of

Education of the State of Missouri, in his official ca-

pacity; THE STATE OF MISSOURI BOARD OF EDUCATION;

CHRISTOPHER S. BOND, Governor of the State of Mis-

souri; JOHN ASHCROFT, Attorney General of the State

of Missouri; MELVIN E. CARNAHAN, Treasurer of the

State of Missouri; STEPHEN C. BRADFORD, Commis-

sioner of Administration of the State of Missouri; THE

13a

STATE OF MISSOURI BOARD OF EDUCATION and its mem-

bers: ERWIN A. WILLIAMSON (President), JIMMY RoB-

ERTSON (Vice President), GROVER A. GAMM, DELMAR

A. CoBBLE, DALE M. THOMPSON, DONALD W. SHELTON

and ROBERT WELLING,

Appellants.

—_—

Appeal from the United States District Court

for the Eastern District of Missouri

Submitted: November 28, 1983

Filed: February 8, 1984

Opinion of the Court En banc, Lay, Chief Judge,

HEANEY, BRIGHT, Ross, MCMILLIAN, ARNOLD, and FAGG,

Cireuit Judges, with JOHN R. GIBSON, Circuit Judge,

concurring in part and dissenting in part, and BOWMAN,

Circuit Judge, dissenting.

The Caldwell and Liddell plaintiffs, representing black

students and parents of the St. Louis City School Dis-

trict, the City School District, and several suburban

school districts have entered into a unique and compre-

hensive settlement agreement designed to further desegre-

gation in the city schools. The United States District

Court he approved the agreement and has entered or-

ders to fund the plan.

With the exceptions and limitations noted in the opin-

ion, 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 addi-

tional magnet schools and integrative prog-ams in

l4a

the City School District as necessary to the successful

desegregation of the city schools;

The quality education programs for the noninte-

grated schools in the City School District;

The quality education programs for all schools in the

City School District, but only insofar as these pro-

grams have been shown to be necessary for the city

to retain its Class AAA rating or to be essential to

the successful desegregation 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 integra-

tive programs in the city schools, and one-half of the

cost of the quality education programs in the city

schools. We decline to approve the district court or-

der insofar as it requires the State to fund student

transfers between suburban school districts and to

fund magnet schools or integrative programs in those

suburban districts;

Improved facilities for the city schools. We require

further planning, however, before construction be-

gins, 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

15a

provide equal educational opportunity to the black chil-

dren of St. Louis.

We make it clear that the suburban schools meeting

the goals set forth in the plan will receive a final judg-

ment declaring that they have satisfied their desegrega-

tion obligations.

Finally, we recognize that the settlement agreement

and the district court’s order will 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 accept

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 Lid-

dell 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. 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 1976,1 when

the Caldwell plaintiffs appealed the district court’s denial

1 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,

16a

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, 483 U.S. 914 (1976). We en-

couraged the United States and State of Missouri to in-

tervene, 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 plain-

tiffs, 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 vio-

lation 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 violation, 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 13860-1361.

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 seg-

regated school system. In reaching this decision, we

noted that the Missouri State Constitution had mandated

separate schools for “white and colored children” through

1976, that the State had not taken prompt and effective

620 F.2d 1277, 1281-1283 (8th Cir.), cert. denied, 449 U.S. 826

(1980).

* We also ruled on several procedural questions in the interim

between Liddell I and Adams, see Liddell v. Caldwell, 553 F.2d 557

(8th Cir. 1977) (Liddell IT).

17a

steps to desegregate the city schools after Brown v. Bd.

of Educ., 347 U.S. 483 (1954) (Brown I), and that the

City Board’s policies and practices since 1956 had con-

tributed to the existing segregation. We remanded to the

district court and directed that the schools be promptly

desegregated. We suggested the following techniques:

(1) Developing and implementing compensatory

and remedial educational programs. * * *

(2) Developing and implementing programs pro-

viding less than full-time integrated learning experi-

ences.

(3) Developing and implementing a comprehen-

sive program of exchanging and transferring stu-

dents with the suburban school districts of St. Louis

County. * * *

(4) Maintaining existing magnet and specialty

schools, and establishing such additional schools as

needed to expand opportunities for an integrated

education.

(5) Establishing an Educational Park.

(6) Continuing and expanding a policy of permis-

sive tranfers in the district.

Adams v. United states, supra, 620 F.2d at 1296-1297

(citations omitted).

After holding extensive evidentiary hearings, the dis-

trict 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 comprehensive program of

exchanging and transferring students between the citv

and suburban schools, the establishment of magnet schools

and integrative programs, and a quality education com-

ponent. In approving the plan, the district court con-

cluded :

18a

In sum, the State defendants stand before the Court

as primary constitutional wrongdoers who have ab-

dicated 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 III),

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 programs would be

established, and that a substantial part of the desegrega-

tion budget would be spent to improve the quality of edu-

cation in the all-black schools. We affirmed the State’s

liability for desegregation costs and remanded for con-

tinued implementation of the plan.

Questions about this plan’s implementation came before

us in early 1982, when the State again protested its lia-

bility for certain 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 of the actual desegre-

gation 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

programs. 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 Constitution. They successfully

moved to add the county school districts and St. Louis

® We issued a procedural order in the interim. Liddell v. Bd. of

Educ., 693 F.2d 721 (8th Cir. 1981) (Liddell IV).

19a

County officials as defendants to this litigation. We noted

that the suburban schools could not be held as constitu-

tional 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

Constitution—could be required to fund measures de-

signed to eradicate the remaining vestiges of segregation

in the city schools, including 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 constitutional violations. This plan

would create one unified metropolitan school district with

a uniform tax rate. The court then scheduled interdis-

trict liability hearings.

Before these hearings were held, however, the City

Board, the Liddell plaintiffs, the Caldwell plaintiffs, and

all twenty-three county school districts developed a settle-

ment 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 en-

4 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 addi-

tional 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) re-

quire that additional part-t‘me programs be established at

state expense to provide for more integrative experience 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 volun-

tary interdistrict transfer.

Liddell V, supra, 677 F.2d at 641-642 (footnote omitted).

20a

abled 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

The settlement plan has several components. It pro-

vides for voluntary interdistrict transfers between city

and suburban schools and includes fiscal incentives to en-

courage these transfers. Each county school district

which receives enough transfers within five years to sat-

isfy its desegregation obligations under the plan will re-

ceive 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 de-

signed 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 concluuded the plan met these standards and allo-

cated 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 improvements in the city schools and

one-half of the capital improvements required by the plan.

The City Board is required to pay the remaining costs.

The district court ordered the City Board to submit a

bond issue to its voters before February 1, 1984, to fund

21a

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 im-

provements.® The district court also deferred 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 tc order an increase in the City Board’s prop-

erty tax rate, following 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

approving the settlement, the State filed a motion to stay

the implementation 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 Board’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 State contends on appeal that the district court

erred: (1) in approving additional interdistrict transfers

5 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_i

22a

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 approv-

ing 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 in-

crease 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 dis-

trict 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 non-

integrated 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 position 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 dis-

trict court’s remedial order. It asks this Court to remand

to the district court to correct the alleged deficiencies.*

® 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 (1987);

23a

II. INTERDISTRICT TRANSFERS.

On July 2, 1981, the district court entered an order

authorizing voluntary interdistrict transfers and requir-

ing the State to pay the cost of the transfers. The pro-

gram 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 attending 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 pro-

gram 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 ex-

ceed 3,000. These transfers are expected to be primarily

to city magnet schools and programs. Trafysfers between

county districts are also permitted. All student transfers

are voluntary.

The State’s funding obligations remain as they were

under the July 2, 1981, order: It must pay transporta-

tion 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

United States 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, 1294 n.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 settle-

ment agreement. In practical terms, however, we have considered

the United States’s position as an amicus curiae.

24a

allocation. It is further required to provide fiscal incen-

tives to sending districts which may elect payment under

one of two formulas: either one-half of the State aid the

district would have received had the student not trans-

ferred; or, beginning in 1984-85, if a district sends more

students than it receives, State aid based on the district’s

enrollment for the second 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 dis-

tricts where they would be in the racial minority.

After approval of the settlement agreement, transfers

rose dramatically. During the current school 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 stu-

dents have transferred to other suburban districts. One

thousand nine-hundred and sixty-five additional 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 pe-

riod. 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 lia-

bility and may not seek reorganization or consolidation

of school districts, nor may they seek a minority enroll-

ment exceeding twenty-five percent of the school district.

7 Under the Plan Ratio, * * * a suburban school district would

accept up to as many black transfer students as would consti-

tute 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 per-

centage of blacks in the total student population higher than

25 percent.

Settlement Agreement, I-2.

2 Os the cote une rns

25a

The State argues that the district court order approv-

ing the settlement agreement and requiring the State to

pay the full cost of interdistrict transfers cannot be sus-

tained because it imposes an interdistrict remedy based

on an intradistrict violation. We disagree for two rea-

sons: First, the issue has previously been decided ad-

versely 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 Previ-

ously Decided.

This Court has repeatedly authorized the interdistrict

transfer of students as a fundamental element of an ef-

fective remedy for the unconstitutional segregation of

the city schools. In Adams v. United States, supra, 620

F.2d at 1296, we specifically approved the development

and implementation of “a comprehensive program of ex-

changing and transferring students with the suburban

school districts of St. Louis County.”

In Liddell III, supra, 667 F.2d at 650, we rejected the

State’s argument that the district court was without au-

thority to formulate an interdistrict plan without finding

an interdistrict violation. We also noted that voluntary

interdistrict pupil exchanges “must be viewed as a valid

part of the attempt to fashion a workable remedy within

the City.” Id. at 651. In an order appended to that opin-

ion, we noted that the State had been “judicially deter-

mined to be a primary constitutional violator,” and we

held that an interdistrict transfer pian 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 re-

iterated our conclusion that, because the State had been

found a primary constitutional wrongdoer, it can “be re-

quired to take those actions which will further the de

26a

segregation of the city schools even if the actions re-

quired will occur outside the boundaries of the city school

district.” After discussing broad-based interdistrict pro-

posals and dismissing them as unsuitable, we addressed

the proper limits of the district court’s equitable re-

medial authority:

[T]he district court can require the existing defend-

ants—the state and city school board—to take the

actions which will help eradicate the remaining

vestiges of the government-imposed school segrega-

tion 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 additional incentives

for voluntary interdistrict transfer.

Id. at 641-642 (footnote omitted).

We did not act hastily or arbitrarily in approving vol-

untary 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 plain-

tiffs, 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/

forty-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

integration in all grades, voluntary interdistrict and intra-

district transfers, magnet schools, integration of per-

sonnel, and community involvement. The Board of Edu-

cation proposed the creation of integrated junior high

an whi: SBI TOA Sere Fy BP oe Wi

ahi

NaS ae Sa

27a

schools which would funnel 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 constitution-

ally permissible. We rejected the City Board’s plan as

too little too late: elementary schools would remain en-

tirely segregated and desegregation of the upper tiers

would be delayed four to seven years. We rejected 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 permis-

sible with some substantial changes, but that plan was

discarded by the district court after it found that the

plan was “educationally unsound” and that it would “fail

to achieve effective desegregation.” Liddell v. Bd. of

Educ., supra, 491 F. Supp. at 356.

The approach suggested by the United State’s expert,

Dr. Orfield, 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. 38,

37 (1971). We reaffirmed our support 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 main-

taining integrated schools in integrated neighborhoods.

Id. at 650.

The State defendants have raised the question of re-

medial scope twice before the Supreme Court. On June

17, 1981, the State filed a petition for certiorari from

28a

our panel opinion in Liddell III. In that petition, the

State argued that there was no basis for State liability:

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 or-

dering the preparation of a plan of voluntary pupil

exchanges between the St. Louis School District and

nonparty school districts because (1) an interdistrict

violation has neither been pleaded nor proven, and

(2) the District Court cannot, consistent with Milli-

ken v. Bradley, order the State of Missouri to fund

such a voluntary plan simply on the basis of an intra-

district violation.

Id. at 20.

The Supreme Court denied certiorari. Missouri v. Liddell,

454 U.S. 1091 (1981).

Not satisfied with this answer, the State raised the

same arguments again before our Court in Liddell IV

and Liddell V. Unsuccessful in our Court, the State filed

a second petition for certiorari with the Supreme Court

on April 30, 1982. The State again argued that

ordering an inter-district remedy [the 12(a) volun-

tary transfers, funded by the State] without first

finding an inter-district violation and inter-district

effect is in conflict with this court’s decision in Milli-

ken v. Bradley I [and Hills v. Gautreaux].

State’s Petition for Certiorari, No. 81-2022, April 30,

1982, at 7; see also id. at 10.

hs RE IN OIG om ts ed.

Oe eee

29a

Again, the Supreme Court denied certiorari. Missouri v.

Liddell, 108 S. Ct. 172 (1982). Both of the State’s peti-

tions for certiorari came after the Supreme Court’s de-

cision in Hills v. Gautreaux, 425 U.S. 284 (1976).°

As a result of our previous holdings and of the Su-

preme Court’s inaction, the use of interdistrict transfers

is settled as law of the case. While this doctrine does

not foreclose this Court from correcting its errors, it

prevents repeated litigation of the same issue and pro-

motes uniformity of decision. In Re Exterior Siding and

Aluminum Coil Antitrust Litigation, 696 F.2d 613, 616

(8th Cir. 1982), vacated en banc, 705 F.2d 980 (8th

Cir. 1983), cert. denied, 104 S. Ct. 204 (1983). We will

reconsider a previously decided issue only on a showing of

clear error and manifest injustice. United States v.

Unger, 700 F.2d 445, 450 n.10 (8th Cir.), cert. denied,

104 S. Ct. 389 (1983); Wrist-Rocket Mfg. v. Saunders

Archery Co., 578 F.2d 727, 730-731 (8th Cir. 1978).

We are loath to retract our previous declarations on

settled issues when a case returns on appeal; to do so

ignores important considerations of judicial economy and

ignores our interest in protecting the settled expectations

of parties who have conformed their conduct to our guide-

lines. In this case, our conclusion that State-funded inter-

district transfers are an appropriate remedy is strength-

ened by our previous invocation of the law of the case

doctrine. Liddell V, supra, 677 F.2d at 629-630.

The State argues that we should not be bound by our

earlier decisions because the magnitude of the proposed

plan, with respect both to cost and number of students,

8 Although denial of certiorari does not necessarily imply approval

of the decision below on the merits, this Court has recognized that

denial of certiorari is, under some circumstances, a fact which

“cannot be overlooked.” Wells v. Meyer’s Bakery, 561 F.2d 1268,

1274-1275 (8th Cir. 1977). See also United States v. Kras, 409 U.S.

434, 448 (1973); United States v. Thompson, 685 F.2d 993, 999

(6th Cir.), cert. denied, 103 S. Ct. 494 (1982).

30a

distinguishes it from existing plans. Neither this Court

nor the district court placed any limitation on the num-

ber of students that could transfer under the plan in

existence during the last two school years, nor were we

requested to do so. Moreover, it was clear that the num-

ber of transfers would have to be large if the opportunity

for an integrated education was to be provided to a sig-

nificant number of the 30,000 black students that re-

mained in the all-black schools in the city.

Notwithstanding our view that the issues regarding

interdistrict transfers have been heretofore decided, we

again reach the merits of the matter and, alternatively,

hold that the plan and the funding order, as they relate

to interdistrict transfers, meet constitutional standards.

B. The District Court’s Order With Respect to Inter-

district Transfers Meets Constitutional Standards.

Since Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955)

(Brown II), principles of equity have guided courts in

devising remedies to eradicate segregation and its effects.

Yet for equitable remedies to pass constitutional muster,

they must conform to three overlapping criteria.

[First], the nature of the desegregation remedy is

to be determined by the nature and scope of the

constitutional violation. * * * The remedy must there-

fore be related to “the condition alleged to offend the

Constitution.” * * * Second, the decree must in-

deed be remedial in nature, that is, it must be de

signed as nearly as possible “to restore the victims

of discriminatory conduct to the position they would

have occupied in the absence of such conduct.” * * *

Third, the federal courts * * * must take into

account the interests of state and local authorities

in managing their own affairs, consistent with the

Constitution.

Milliken v. Bradley, 483 U.S. 267, 280-281 (1977) (Milii-

ken II) (citations and footnotes omitted).

3la

Examination of voluntary interdistrict transfers confirms

that, as a remedy for an intradistrict violation, such

transfers comply with constitutional standards.

1. The remedy was closely tailored to the nature

and scope of the violation.

The Missouri Constitution requires the State to provide

a free public education. Mo. Const. art. 9, §1(a). The

State supervises instruction, distributes funds for pub-

lie education to local school districts, approves school

bus routes, provides free textbooks, and passes on applica-

tions by school districts for federal aid. See Mo. Rev.

Stat. §§ 161.092, 163.021, 163.031, 163.161, 170.051,

170.055; and Liddell v. Bd. of Educ., supra, 469 F. Supp.

at 1313-1314.

Before the Civil War, Missouri prohibited the creation

of schools to teach reading and writing to blacks. Act of

February 16, 1847, §1, 1847 Mo. Laws 103. State

mandated segregation was first imposed in the 1865

Constitution, Article IX § 2. It was reincorporated in the

Missouri Constitution of 1945: Article IX specifically

provided that separate schools were to be maintained for

‘white and colored children.” ® In 1952, the Missouri Su-

preme Court upheld the constitutionality of Article IX

under the United States Constitution. See State ex rel.

Hobby v. Disman, 250 S.W.2d 137, 141 (Mo. 1952). Ar-

ticle IX was not repealed until 1976. Adams v. United

States, supra, 620 F.2d at 1280. Under the segregated

system, the State bused suburban black students from

St. Louis County into the city’s black schools to maintain

the dual system. Jd., at 1281. The city schools remained

largely segregated until this Court’s decision in Adams.

9In addition, state law provided separate libraries, public parks,

and playgrounds “for the use of white and colored persons,” Mo.

Rev. Stat. 10474 (1939), and established separate “institutes for

colored teachers,” Mo. Rev. Stat. 10632 (1939).

32a

It is clear from the foregoing that the State’s presence

in public education is immense and that the State’s Con-

stitution and statutes mandated discrimination against

black St. Louis students on the broadest possible basis.

It is equally clear that the discriminatory policies con-

tinued after the Supreme Court decided Brown I, supra,

in 1954. Given the breadth of the State’s violation, it

was appropriate for the district court to mandate an

equally comprehensive remedy. The potential for inte-

gration within the district, however, was limited by the

fact that almost eighty percent of the students were black,

and by the district court’s finding that if it integrated

the city schools by imposing an eighty/twenty ratio in

each school, an all-black school system would probably

result. With that in mind, the district court properly con-

sidered the alternative of voluntary transfers to county

districts. The opportunity for effective integration be-

came a reality when the county schools agreed to accept

the voluntary transfer of several thousand black students.’®

2. The remedy restores the victims of discrimi-

nation as nearly as possible to the position they

would have occupied absent that discrimination.

We have heretofore enumerated the alternative remedies

suggested by the parties, and we have explained why the

district court selected a remedy which included voluntary

interdistrict transfers and why this Court approved that

remedy. (See supra pp. 25-26.)

We are met for the first time on this appeal with a

new, or at least a more precisely framed, argument

against interdistrict transfers. The State asserts that the

district court cannot require the State to fund extensive

10 We also note that the remedial limits imposed by Dayton Bd.

of Educ. v. Brinkman, 433 U.S. 406 (1977), are inapposite to this

case. The findings of de jure segregation which distinguish this

case were absent in Dayton. In that case, the Supreme Court con-

sidered the proper scope of an equitable remedy for three isolated

instances of discrimination.

33a

interdistrict transfers unless the record supports and the

district court finds that the black children of St. Louis

would have attended schools in the county had it not been

for the State’s constitutional prohibition against black

and white students attending schools together." Nothing

in the cases cited by the State’ suggests or requires us

to hold that the district court abused its discretion when

it required the State to fund interdistrict transfers of

students to consenting districts. Indeed Milliken II states

that the remedy should correct conditions that “flow

from such a violation” and should return victims “to the

position they would have enjoyed in terms of education,”

but for the violation. Milliken II, supra, 433 U.S. at 282.

11 The United States joins in this argument. In earlier proceed-

ings before this Court and the United States Supreme Court, how-

ever, it supported the district court’s remedial use of voluntary

interdistrict transfers. It argued that voluntary interdistrict trans-

fers properly remedied the State’s violation, distinguishing them

from the overbroad remedy in Milliken I, which involved “imposi-

tion of relief upon nonparty school districts.” It asserted that the

district court can “order those who have been found liable to make

efforts to persuade those nonparty districts to cooperate volun-

tarily.” U.S. Brief in Opposition to State’s Petition for Certiorari,

Missuuri v. Liddell, No. 80-2152, Aug. 17, 1971, at 14 (emphasis

in original).

In a subsequent brief, the United States again distinguished the

interdistrict transfers from the impermissible interdistrict remedy

in Milliken I. Moreover, in endorsing interdistrict transfers, it

stated that, under Hills, “the State parties can and should be re-

quired to take appropriate remedial action for the constitutional

violations in which they participated.” U.S. Brief in Opposition

to the State’s Petition for Certiorari, Missouri v. Liddell, No. 81-

2022, April 30, 1982, at 7, 8.

12 Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) (Dayton

11); Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979) ; School

District of Omaha v. United States, 483 U.S. 667 (1977); Dayton

Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977) ; Milliken v. Bradley,

433 U.S. 267 (1977) (Milliken I1); Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424 (1976); Washington v. Davis, 426 U.S. 229

(1976) ; Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) ; Swann

v. Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

34a

This remedy does precisely that: It returns the largest

number of victims to integrated schools and provides

integrative opportunities and compensatory and remedial

programs for those who cannot participate in the trans-

fer plan. As the primary constitutional violator, the State

is in no position to complain that some of the victims may

elect to transfer to integrated schools in another school

district that is willing to accept them.

In our view, Hills v. Gautreaux provides precedent for

the remedy mandated by the district court. In that case,

the Supreme Court considered a remedy against the

United States Department of Housing and Urban De-

velopment (HUD) for discrimination in public housing in

the City of Chicago. The United States Court of Appeals

for the Seventh Circuit had reversed the district court’s

dismissal and ordered the district court on remand to

enter summary judgment against HUD for violations of

the Fifth Amendment and the Civil Rights Act of 1964

by knowingly sanctioning and assisting the Chicago Hous-

ing Authority’s (CHA) racially discriminatory public

housing program. Hills v. Gautreaux, supra, 425 U.S. at

291-292. Thereafter, the plaintiffs requested that the dis-

trict court require HUD to provide public housing outside

Chicago’s city limits. The district covrt refused, holding

that the wrongs were committed solely against city resi-

dents and within the city’s boundaries.

On appeal, the Court of Appeals for the Seventh Cir-

cuit reversed and the Supreme Court affirmed. The Su-

preme Court stated:

We reject the contention that, since HUD’s consti-

tutional and statutory violations were committed in

Chicago, Milliken precludes an order against HUD

that will affect its conduct in the greater metropolitan

area. The critical distinction between HUD and the

suburban school districts in Milliken is that HUD

has been found to have violated the Constitution.

That violation provided the necessary predicate for

35a

the entry of a remedial order against HUD and, in-

deed, imposed a duty on the District Court to grant

appropriate relief. * * * Our prior decisions counsel

that in the event of a constitutional violation “all

reasonable methods be available to formulate an ef-

fective remedy,” North Carolina State Board of Ed-

ucation v. Swann, 402 U.S. 48, 46, and that every

effort should be made by a federal court to employ

those methods “‘to achieve the greatest possible degree

of [relief], taking into account the practicalities of

the situation.” Davis v. School Comm’rs of Mobile

County, 402 U.S. 33, 37. As the Court observed

in Swann v. Charlotte-Mecklenburg Board of Educa-

tion: “Once a right and a violation have been shown,

the scope of a district court’s equitable powers to

remedy past wrongs is broad, for breadth and flex-

ibility are inherent in equitable remedies.”

Hills v. Gautreaux, supra, 425 U.S. at 297 (emphasis

added; citations omitted).

The Supreme Court then discussed Milliken v. Bradley,

418 U.S. 717 (1974) (Milliken I), and the limitation it

imposed on the scope of the federal courts’ equity powers.

In Milliken I, the respondents alleged that the Detroit

school system was racially segregated and they sought

the creation of a unified school district as a remedy.

Without finding constitutional violations by the suburban

districts and without finding significant segregative ef-

fects in those districts, the district court ordered the con-

solidation of the Detroit school system with fifty-three

independent suburban school districts. After the Court

of Appeals for the Sixth Circuit affirmed this desegre-

gation order, the Supreme Court reversed, holding that

the order exceeded the district court’s equitable powers:

the courts must tailor “the scope of the remedy” to fit

“the nature and extent of the constitutional violation.”

Id. at 744.

In evaluating the remedy in Hills according to Milliken

I’s standards, the Supreme Court noted that nothing in

36a

Milliken I “suggests a per se rule that the federal courts

lack authority to order parties found to have violated the

Constitution to undertake remedial efforts beyond the

municipal boundaries of the city where the violation oc-

curred.” Hills v. Gatreaux, supra, 425 U.S. at 298 (foot-

note omitted). In Hills, the Supreme Court approved the

remedy because it did not coerce uninvolved governmental

units and because CHA and HUD had the authority to

operate outside Chicago’s city limits. Jd.

Justification for requiring the State to fund transfers

between city and county schools is stronger than the

justification for the remedy in Hills. Its role in educa-

tion is much broader than HUD’s role in housing. See

supra p. 30. In addition, the breadth, gravity and dura-

ation of the State’s violation here was much greater. The

violation scarred every student in St. Louis for over

five generations and it gained legitimacy through the

State Constitution and through the State’s preeminent

role in education. In following the Supreme Court’s guide-

lines in Hills, we echo its conclusion concerning Milliken I.

If we barred the use of interdistrict transfers solely be-

cause the State’s constitutional limitation took place

within the city limits of St. Louis, we would transform

Milliken{I\’s principled limitation on the exercise

of federal judicial authority into an arbitrary and

mechanical shield for those found to have engaged

in unconstitutional conduct.

Hills v. Gautreaux, supra, 425 U.S. at 300.

3. The district court’s order with respect to inter-

district transfers does not infringe on State or

local government autonomy.

The Supreme Court in Hills v. Gautreaux, supra, 425

U.S. at 298, has interpreted Milliken I to mean that dis-

trict courts may not restructure or coerce local govern-

ments or their subdivisions. This remedy does not

threaten the autonomy of local school districts; no district

° ie e- UVM _ <_ox«#x™

87a

will be coerced or reorganized and all districts retain

the rights and powers accorded them by state and federal

laws. See Hills v. Gautreaux, supra, 425 U.S. at 305-

306.

We also find unpersuasive the State’s argument that

funding this remedy will compel other budget cuts, which

would interfere with the autonomy of state and local

governments. If we accepted this argument, violators

of the Constitution could avoid their remedial responsi-

bility through manipulation of their budgets, leaving vic-

tims without redress. Simply put, parsimony is no bar-

rier to a constitutional remedy; “it is obvious that vindi-

cation of conceded constitutional rights cannot be made

dependent upon any theory that it is less expensive to

deny than to afford them.” Watson v. Memphis, 373

U.S. 526, 537 (1963).

Interdistrict transfers between the city and the county

schools may proceed pursuant to the settlement agree-

ment, subject to the following exceptions:

(1) No additional transfers will be permitted for the

balance of the current school year. Such transfers

would disrupt the education of students in both send-

ing and receiving schools. Planning and recruit-

ment may continue so that enrollment may reach the

levels contemplated in the settlement agreement.

18 The district court's funding order poses no eleventh amend-

ment problems. The State relies on Edelman v. Jordan, 415 U.S.

651, 668 (1974), to avoid its liability for a remedy that requires

the expenditure of state funds where that remedy is allegedly over-

broad. The Supreme Court in Milliken I] applied the prospective

compliance exception developed in Ex Parte Young, 209 U.S. 123

(1908), which “permits federal courts to enjoin state officials to

conform their conduct to requirements of federal law, notwith-

standing a direct and substantial impact on the state treasury.”

Milliken 11, supra, 433 U.S. at 289. After elucidating the three

criteria discussed earlier, the Supreme Court in Milliken I] found

that the plan under review there was constitutional. The inter-

district transfer plan under consideration in this case conforms

to the same three criteria.

38a

(2) City-to-county transfers will be limited to a total

of 6,000 students in the 1984-85 school year and to

not more than 3,000 additional total transfers in

each succeeding school year until the limit of 15,000

is reached. A shortfall of enrollment in one year

may be made up in succeeding years.

(3) In the event the number of applicants for trans-

fer exceeds the spaces available, priority shall be

given to applicants who would otherwise attend an

all-black school.

(4) In Liddell V, supra, 677 F.2d at 631-632, we

warned of the need for vigilance to control the costs

of desegregation. Budgetary constraints persist, and

so does the need for frugality. We are unwilling,

however, to accept the State’s suggestion that “com-

plementary zones” be established, which would ef-

fectively limit schools that transferees could at-

tend. This would destroy the voluntary nature of

the plan. Nevertheless, constant effort and careful

planning must be made by all concerned to limit the

costs of transportation, insofar as is consistent with

the Constitution and the voluntary nature of the

plan.

C. County to County Transfers.

Although we approve State funding of transfers of

students between the city and county, we are unabie to

give similar approval to the funding of transfers of

students between county districts. We emphasize again

that the objective of transfers between the city and county

is the eradication of segregation within the city. Such

transfers are closely tailored to the violation and are

clearly remedial with respect to that violation, according

to the standards announced in Milliken lI which were

discussed above. Transfers between county districts, how-

ever, are not geared to remedy the violation found within

the city. Nor does the record establish that intercounty

39a

transfers will materially assist in desegregating the city

schools.

We recognize that some suburban school districts have

majority black enrollments and others have nearly all-

white enrollments. We acknowledge that the suburban

districts would achieve a further degree of desegregation

by such transfers. We neither prohibit nor discourage

such voluntary transfers between county schools but we

cannot compel the State to pay for them absent a find-

ing of an interdistrict violation.

III. MAGNET SCHOOLS AND

INTEGRATIVE PROGRAMS.

A. Magnet Schools.

The district court and this Court previously authorized

the creation of magnet schools and integrative, programs.

About 8,000 students (one-half of whom were blacks) par-

ticipated in these schools and programs in the 1982-83

school year. Three hundred participants resided in the

county. No one suggests that the magnet schools or inte-

grative programs be discontinued.

The settlement agreement approved by the district

court provides for the expansion or replication of exist-

ing magnet schools and programs and the development of

new magnet schools and programs—in both the city and

the county—with total enrollment to reach 20,000 students,

twelve to fourteen thousand to be enrolled in city magnets

and the balance in county magnets. The new schools

would be phased in over the 1983-87 period.

To be eligible for transfer to the magnet schools,

students in good standing must be in the racial majority

in their home districts and must meet the qualifications

for the magnets. Special eligibility requirements allow

white students from the city to attend city magnets if

the students now attend schools that are less than ten

40a

percent or over fifty percent white.* Black students in

majority black districts are eligible to attend magnet

schools and programs in other black majority districts if

seats remain open after all of the host district’s black

students have been accommodated.

The State argues that insufficient attention has been

devoted to developing a curriculum designed to attract

county students. It also objects to being required to pay

the full cost of building and operating the new magnets.

Before reviewing the State’s specific arguments, we ob-

serve that the utility and propriety of magnets as a de-

segregation remedy is beyond dispute. In Adams v.

United States, supra, 620 F.2d at 1296-1297, we evaluated

the remedies we had previously found to be constitu-

tionally permissible. We recommended “[m|]aintaining

existing magnet and specialty schools, and establishing

such additional schools as needed to expand opportunities

for an integrated education.” Jd. at 1297. We reiterated

our approval of magnet schools in Liddell III, supra, 667

F.2d at 658 (emphasis omitted), where, in considering an

intradistrict remedy, we directed the city and suburban

school districts to undertake a “study of the feasibility

of establishing magnet schools located in suburban dis-

tricts with attendance open to students of both the sub-

urbs and the city. * * * The location of these magnet

schools should be determined by agreement between the St.

Louis Board of Education and the suburban school dis-

tricts involved.” Finally, in Liddell V, supra, 677 F.2d at

642, we reaffirmed our conclusion that the district court

could “require that additional magnet schools be estab-

lished at state expense within the city or in suburban

14 Our affirmance ii this case does not preclude the district court

from reconsidering these special requirements—to the extent that

they permit a white student attending a school with less than ten

percent white enrollment to transfer to a city magnet school—in

light of decisions by the Supreme Court and this Court. The dis-

trict court may reconsider these requirements upon the request

of any party.

Ala

school districts with the consent of the suburban dis-

tricts where the schools would be located.” As with

interdistrict transfers, our previous determinations in

this case concerning magnet school: are law of the case.

Had we not in our previous decisions explicitly ex-

amined and approved the use of magnet schools and pro-

grams, the weight of precedent would nevertheless oblige

us now to approve their use. In Milliken II, supra, 433

U.S. at 272, the Supreme Court mentioned magnet schools

as a supplement to the compensatory and remedial pro-

grams which it approved in that case. Dissenting in

another case, Justice Powell observed that the Supreme

Court in Swann v. Charlotte-Mecklenburg Bd. of Educ.,

supra, 402 U.S. at 26-27, implicitly encouraged the use

of magnet schools:

Incentives can be employed to encourage [majority-

minority] transfers, such as creation of magnet

schools providing special education benefits and state

subsidization of those schools that expand their mi-

nority enrollments. * * * These and like plans, if

adopted voluntarily by States, also could help counter

the effects of racial imbalances between school dis-

tricts that are beyond the reach of judicial

correction.

Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 488

(1979).

This Court also approved magnets as a means of deseg-

regating the Little Rock schools in Clark v. Bd, of Educ.

of Little Rock, 705 F.2d 265, 269, 272 (8th Cir. 1983).

Courts of Appeals in several other circuits have also

approved desegregation plans which include magnets.

Arthur v. Nyquist, 712 F.2d 809, 811-813 (2d Cir. 1983) ;

Berry v. School District of Benton Harbor, 698 F.2d

813, 819 (6th Cir.), cert. denied, 104 8. Ct. 236 (1983) ;

United States v. Texas Education Agency, 679 F.2d

1104, 1110 (5th Cir. 1982); Hart v. Community School

42a

Bd. of Educ., 512 F.2d 87, 54-55 (2d Cir. 1975) (citing

successful magnet programs in Boston, Massachusetts;

Providence, Rhode Island; and Coney Island, New York) ;

Stout v. Jefferson County Bd. of Educ., 483 F.2d 84,

85 (5th Cir. 1973). District courts have also approved

plans that include magnets. Tasby v. Wright, 520 F.

Supp. 683, 741 (N.D. Tex. 1981), aff'd in part, rev’d in

part, on other grounds, 713 F.2d 90 (5th Cir. 1983) ;

Smiley v. Blevins, 514 F. Supp. 1248, 1260 (S.D. Tex.

1981). A survey of the literature reveals that magnets

are being used in at least eighteen cities. Rossell, Magnet

Schools as a Desegregation Tool, 14 Urban Education

303, 320 (1979).

Despite the widespread approval of magnet schools

by the federal courts, critics maintain that magnet schools

cannot correct the deep-seated evils of school desegrega-

tion. See, e.g., Morgan v. Kerrigan, 530 F.2d 401, 410

& n.10 (1st Cir.), cert. denied, 426 U.S. 935 (1976);

Bradley v. Milliken 484 F.2d 215, 243 (6th Cir.), rev’d

on other grounds, 418 U.S. 717 (1974); Kelley v. Guinn,

456 F.2d 100, 108-109 (9th Cir. 1972), cert. denied, 413

U.S. 919 (1973). Yet the criticisms in these cases gen-

erally apply to desegregation plans in which magnets

are the principal tool in a “freedom of choice” plan.

They function differently in the settlement agreement ap-

proved here by the district court. Magnet schools are a

single element of the panoply of remedies approved by

this Court and the district court. Like the magnet schools

in Stout v. Jefferson County Bd. of Educ., supra, 483 F.2d

at 86, they are “part of a complex and many-faceted”’

plan. Magnets perform the salutary function of allowing

“non-white as well as the white students so enrolled a

chance to widen their horizons through the interplay of

ideas and the absorption of diverse sub-cultural attitudes.”’

Hart v. Community School Bd. of Educ., supra, 512 F.2d

at 54.

Magnet schools under this plan will be distinguished by

the features that have made them successful in other

43a

cities: individualizea teaching, a low pupil-teacher ratio,

specialized programs tailored to students’ interests, en-

riched resources and active recruitment. See Rosenbaum

and Presser, Voluntary Racial Integration in a Magnet

School, 86 U. Chi. School Rev. 156, 156 (1978) ; Levine

and Eubanks, Attracting Nonminority Students to Mag-

net Schools in Minority Neighborhoods, 19 Intergrat-

eduction 52, 57 (1981). Because they are supplemented

by the extensive program of interdistrict transfers and

compensatory education, these magnets will not resegre-

gate, nor will they create a dualistic system with elitist

schools.

We do not believe that the district court erred in

ordering the State to pay the full capital and operating

cost of magnet schools. As we noted earlier, the State’s

status as a violator of the Constitution compels the dis-

trict court to remedy the deprivations the State has

caused. In Liddell V, supra, 677 F.2d at 642, we held

that the State could be ordered to undertake as a part of

its remedial responsibility the development of magnets.

Now we reaffirm that conclusion.

While we approve magnet schools and affirm the dis-

trict court’s decision concerning their funding, we see

merit in the State’s argument that careful study and

planning must precede replication or expansion of mag-

nets. New magnet schools must be approved by the mag-

net Review Committee and the district court. The plan-

ning process should focus on those schools and programs

that present a reasonable probability of attracting sub-

urban white students; only those schools which demon-

strate such probability should be approved. The new

schools should be phased in over a period of four years as

provided for by the settlement agreement. The total num-

ber of students enrolled in city magnet schools shall not

exceed 14,000.

We impose an additional limitation on the «velopment

of suburban magnets. Although a panel of this Court ap-

44a

proved the use of suburban magnet schools in Liddell III,

supra, 667 F.2d at 658-659; and Liddell V, supra, 677

F.2d at 641-642, the Court en banc does not believe that

the record sufficiently supports this development. The

county districts may proceed on their own, of course,

without state funding. Any black city students who

transfer into county-funded magnet schools would count

toward achieving the district’s plan goal and would con-

tribute to the district’s final judgment. State fiscal in-

centives would include payments to districts sending

transferees to county-funded magnets, but the State will

not be required to pay the capital or operating costs of

county magnet schools as such.

B. Part-Time Integrative Programs.

Part-time integrative programs are primarily intended

to provide integrative learning experiences for students

attending all-black schools. Adams v. United States, supra,

620 F.2d at 1296; Liddell IV, supra, 693 F.2d at 727;

Liddell V, supra, 677 F.2d at 642. These programs have

been, and should continue to be, an important element of

the overall plan to integrate the city schools. In deter-

mining the need for continuing the existing programs, or

developing new ones, the City Board and the Budget Re-

view Committee must keep the above standard in mind.

They must also recognize that the number of black

students in nonintegrated schools will decline dramatically

over the next four years. We thus approve the district

court’s decision insofar as it permits the continuance of

part-time integrative programs and requires the State to

pay full cost of the approved programs.

We do not, however, specifically approve the new or

expanded programs or the dollar amounts for these pro-

grams listed in the proposed budget (items A.4.10, A.4.

11, A.5.01, A.5.02, A.5.04, A.5.05, A.6.01, A.6.03, and

A.6.04). We rather require the City Board to resubmit

to the Budget Review Committee, discussed infra Sec-

tion VI, a list of the new or expanded programs that they

45a

would propose to implement. The total cost of these pro-

grams should not exceed $1 million. Further, these

programs must not duplicate any programs approved in

the quality education section of this opinion. Any dis-

pute that emerges between the City Board and the State

concerning these programs should be submitted for reso-

lution by the Budget Review Committee and the district

court in light of this discussion.

IV. QUALITY EDUCATION IMPROVEMENTS.

The settlement plan approved by the district court in-

cludes compensatory and remedial programs to improve

the quality of education throughout the St. Louis public

schools and additional programs for the same purpose in

the nonintegrated schools. The district-wide improve-

ments include a reduction in class size; restoration of art,

music, physical education, and extracurricular programs ;

creation of pre-school centers and all-day kindergarten

programs; additional staff to address the needs of handi-

capped students; additional nursing and counseling staff ;

and expansion of library and other media resources

and services. Administrative improvements include cur-

riculum and staff development, evaluation and perform-

ance assessment, and enhanced long-range planning.

The additional improvements for the nonintegrated

schools include a further class-size reduction in grades

K through 8, to twenty pupils per teacher; additional

remedial instruction time through after-school, Saturday,

and summer school programs; parental involvement pro-

grams; and alternative education options for black stu-

dents unable to attend magnet schools. Other programs

address motivational need of students in the all-black

schools by stimulating opportunities for student suc-

cess and recognition, by introducing role models for aca-

demic achievement and by establishing student concerns

committees to address the morale, attendance, and be-

havior issues which emerge during the implementation of

the plan.

46a

A. Legal Precedent for Including Compensatory and

Remedial Programs in Desegregation Remedies.

This Court suggested the necessity for remedial and

compensatory programs in Adams v. United States,

supra, 620 F.2d at 1296, and reiterated that need in Lid-

dell V, supra, 677 F.2d at 64)-642. We thus approve

them in principle as law of the case. See supra p. 28.

Moreover, such programs have solid support in the case

law as proper components of a desegregation remedy so

long as they relate to the constitutional violation, are

remedial in nature, and account for state and local au-

tonomy. Milliken II, supra, 433 U.S. at 280-281.

In Brown I, the Supreme Court recognized that segre-

gation harms black children by generating “a feeling of

inferiority as to their status in the community that may

affect their hearts and minds in a way unlike ever to be

undone.” Brown I, supra, 347 U.S. at 494. In light of

this harm, federal courts have often required the inclu-

sion of remedial programs in desegregation plans to over-

come the inequalities inherent in dual school systems.

Milliken II, supra, 483 U.S. at 283. See, e.g., Arthur v.

Nyquist, supra, 712 F.2d at 811; Oliver v. Kalamazoo Bd.

of Educ., 640 F.2d 782, 789-790 (6th Cir. 1980) ; Evans

v. Buchanan, 582 F.2d 750, 767-769 (3d Cir. 1978) (en

banc), cert. denied, 446 U.S. 923 (1980); United States

v. Texas, 447 F.2d 441, 448 (1971); United States v.

Jefferson County Bd. of Educ., 380 F.2d 385, 394-395

(5th Cir.), cert. denied, 389 U.S. 840 (1967); Berry v.

School Dist. of Benton Harbor, 515 F. Supp. 344, 269-

373 (W.D. Mich. 1981), aff'd and remanded, 698 F.2d

813 (6th Cir. 1983); United States v. Bd. of School

Comm’rs of Indianapolis, 506 F. Supp. 657, 671-673 (S.D.

Ind. 1979), vacated in part on other grounds, 637 F.2d

1101 (7th Cir.), cert. denied, 449 U.S. 838 (1980).

Such programs “assist students who previously at-

tended all-Negro schools when those students transfer to

formerly all-white schools. ... The remedial programs

47a

_.. are an integral part of a program for compensatory

education to be provided Negro students who have long

been disadvantaged by the inequities and discrimination

inherent in the dual school system.” Milliken II, supra,

433 U.S. at 284 (emphasis in original), quoting Plaque-

mines Parish School Bd. v. United States, 415 F.2d 817,

831 (5th Cir. 1969). Crucial to the Supreme Court’s

analysis in Milliken II is the concept that segregation not

only inflicts harm on individual black students, but also

builds “inadequacies [into the] * * * educational system.”

Milliken II, supra, 433 U.S. at 284 (emphasis added).

Thus, to remedy the effects of a dual system which op-

erated for decades with the sanction of law, remedial ef-

forts must also concentrate on systemic educational

improvements.

A secondary remedial objective of the quality educa-

tion improvements is to enhance the appeal of the city

school system, thereby promoting the chances of a stable

and successful voluntary desegregation plan. The ex-

odus of white parents and students out of fear of inte-

gration, or “white flight,” is no excuse for school officials

to avoid desegregating. United States v. Scotland Neck

City Bd. of Educ., 407 U.S. 484, 491 (1972); Monroe v.

Bd. of Comm’rs, 391 U.S. 450, 459 (1968). Yet, “there

is a valid distinction between using the defense of white

flight as a smokescreen to avoid integration,” and ad-

dressing “the probability of white flight in attempting to

formulate a voluntary plan which would improve the ra-

cial balance in the schools without at the same time los-

ing the support and acceptance of the public.” Higgins

v. Bd. of Educ., 508 F.2d 779, 794 (6th Cir. 1974) (em-

phasis in original) ; accord Parent Ass’n of Andrew Jack-

son High School v. Ambach, 598 F.2d 705, 719 (2d Cir.

1979). A child’s enrollment in a particular school is the

result of two decisions: the government’s student assign-

ment, and the parents’ decision to stay, move, or send

their children to private school. Thus, as Professor

James Coleman insists, “government policies must, to be

48a

effective, anticipate parental decisions and obtain the

parents’ active cooperation.” Coleman, New Incentives

for Desegregation, 7 Human Rights 10, 13 (1978). Im-

proving the quality of integrated schools consequently

promotes parental acceptance of desegregation, and pro-

motes the remedy’s success. Gewirtz, Remedies and Re-

sistance, 92 Yale L.J. 585, 652-653 (1983). See also

Russell & Hawley, Policy Alternative for Minimizing

White Flight, 4 Educational Evaluation and Policy Anai-

ysis 205 (1982).

The quality improvements for the all-black schools

serve a further remedial objective. A strong presumption

exists against the constitutional propriety of one-race

schools, Swann v. Charlotte Mecklenburg Bd. of Educ.,

supra, 402 U.S. at 26, and any desegregation plan leaving

one-race schools must be carefully scrutinized. Jd.; Lee v.

Macon County Bd. of Educ., 616 F.2d 805, 809 (5th

Cir. 1980). To overcome this presumption of unconsti-

tutionality, a court must find that the existence of one-

race schools is justified in light of the particular facts of

the case and the feasibility of other desegregation tech-

niques. Armstrong v. Bd. of School Directors, 616 F.2d

305, 321-322 (7th Cir. 1980); Tasby v. Estes, 572 F.2d

1010, 1014-15 (5th Cir. 1978). When no other feasible

desegregation techniques exist, then specific remedial pro-

grams for students in the remaining one-race schools may

be included as a means of ensuring equal educational op-

portunity. See, e.g., Tasby v. Wright, supra, 713 F.2d

at 95-97; Clark v. Bd. of Educ. of Little Rock, supra,

705 F.2d at 272."

The district court held extensive hearings on the fair-

ness of the quality education component, with lengthy

testimony from local and State education officials, a num-

15 The quality of an all-black school is also improved when stu-

dents attend such schools voluntarily. See Coleman, New Incentives

for Desegregation, 7 Human Rights 10, 14-15 (1978). The settle-

ment plan recognizes this imperative in providing for voluntary

interdistrict transfers.

49a

ber of expert witnesses, and representatives of the other

parties. After reviewing the evidence and the recom-

mendations of the court-appointed financial advisor, the

court concluded that the programs fell within the proper

remedial scope:

The sole purpose for the expenditure of funds under

this Plan is to carry out the constitutional responsi-

bility to remove the vestiges of a segregated school

system. * * *

In no way should any funding provisions presently

authorized by the Court be construed to authorize ex-

penditures unrelated to City Board’s desegregation

obligations under the Constitution and the Settle-

ment Plan as approved.

Liddell v. Bd. of Educ., supra, 567 F. Supp. at 1051-

1052.

B. Analysis of the Compensatory and Remedial Pro-

grams Approved by the District Court.

The position of the State before this Court with respect

to the quality education programs is somewhat ambiguous.

In its opening brief, it argued that the city and county

schools had not agreed to a quality education package and

that therefore the district court had nothing to approve.”

It further asserted that

[t]he Quality Education {component] is not only

essential from a contractual point of view but also

from a constitutional standing. The 15,000 black

children in north St. Louis who will not have the op-

portunity to transfer under the Plan are still vic-

16 Section IV of the settlement plan states :

[T]he St. Louis County School districts do not have the neces-

sary information about the city schools to form an opinion on

the details of the Appendix and, therefore, they do not agree

or disagree with all of the specifics in this basic design.

50a

tims of constitutional wrongdoing as found by the

court. The Quality Education section of the Plan

is virtually the only remedy available to those black

children to redress their wrong. Without it they

stand as victims without redress.

State’s Opening Brief at 26-27.

It concluded by stating that the court did not have the

authority to modify the agreement to include the quality

education component.

In its reply brief, the State changed the focus of its

argument and complained that the provisions requiring

improvement in the quality of education in the integrated

schools were only remotely related to desegregation. It

continued to assert this position at oral argument.

The State is not a party to the settlement agreement.

It thus lacks standing to question the validity of the agree-

ment on its terms. Warth v. Seldin, 422 U.S. 490, 501

(1975) ; Fisher v. Tucson School District No. 1, 625 F.2d

834, 837 (9th Cir. 1980). Even assuming that the State

has standing to raise such a question, the district court

found that the parties had a meeting of the minds with

respect to the essential terms of the agreement. This

finding is not clearly erroneous.

The State clearly has standing, however, to challenge

the district court’s funding order and did so before that

court. It renews that challenge here. It argues, in sub-

stance, that the court approved funding for general edu-

cational improvements in the integrated schools which

were unrelated to desegregation.’’7 Its argument here is

17 The State cites San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 35 (1978), as support for the position that

St. Louis students have no constitutional right to any particular

level of education, but fails to note a critical distinction between

Rodriguez and this case. Rodriguez held that property wealth is

not a suspect class under the equal protection clause, and thus

disparate educational expenditure levels between school districts

were not a constitutional violation. Hence, the Rodriguez plaintiffs

5la

twofold. First, the State contends that these programs

may only be approved if the Court can find that they

would have been a part of the city school system but for

the past unconstitutional segregation. This position mis-

reads the case law and ignores the reality of the harm

imposed by. segregated schools. The relevant inquiry is

not whether, in absence of a de jure dual system, St.

Louis schools would have had compensatory and remedial

programs. None of the numerous cases cited above ap-

proving such programs rested on such a conclusion. The

point is that compensatory and remedial education pro-

grams are necessary to remedy the effects of discrimi-

nation on the victims of segregation and the svhool system

itself.

The second aspect of the State’s argument is that there

are no findings made by the district court, nor sufficient

support in the record, to suggest that the quality edu-

cation improvements are only remedial in nature.** The

Second Circuit recently observed that the line between

remedial purpose and general educational improvements

unrelated to desegregation is inevitably blurred:

[A] court is entitled to require money for programs

that materially aid to success of the overall desegre-

gation effort. A program of that sort is not dis-

qualified for needed funding simply because its in-

had no constitutional right to a particular level of education. /d.

Our case unquestionably involves a suspect class (race), and

an established constitutional violation (a de jure dual school sys-

tem). As noted above, courts have repeatedly endorsed compensa-

tory and remedial efforts to overcome educational inadequacies

imposed by segregated schools, Rodriguez notwithstanding.

18 To clarify, relating the remedy to the violation pursuant to

Milliken II does not require a finding that each educational program

at issue has in the past been “infected with the discriminatory

bias of a segregated school system.” Evans v. Buchanan, supra,

582 F.2d at 769, quoting Milliken II, supra, 433 U.S. at 275. It is

sufficient to determine that the remedial program is directed to

cure the general condition offending the Constitution.

52a

clusion improves the overall quality of the school

system. At the same time a court must be alert not

to permit a school board to use a court’s broad

power to remedy constitutional! violations as a means

of upgrading an educational svstem in ways only

remotely related to desegregation: Striking the bal-

ance necessarily requires considerable deference by

a district court to the good faith representations of

the school authorities * * * and by a reviewing

court to the knowledgeable assessment of a district

judge intimately familiar with local conditions.

Arthur v. Nyquist, supra, 712 F.2d at 813 (citations

omitted).

We think that the district court’s order is fully sup-

ported as it relates to the quality improvements in the

nonintegrated schools. Neither the State, the United

States, nor the City specifically objects to these improve-

ments. Moreover, they are consistent with the testimony

of every expert witness that testified. The reduction in

class-size was viewed by the witnesses for the black

plaintiffs as critical to raising the achievement levels

of black students. The programs designed to intensify

remedial instruction, encourage parental involvement, and

promote a positive learning climate reflect the objectives

that the Supreme Court approved in Milliken II. See

Bradley v. Milliken, 402 F. Supp. 1096, 1118-1119 (E.D.

Mich. 1975), aff'd and remanded, 540 F.2d 229 (6th Cir.

1976), aff'd, 483 U.S. 267 (1977). The schools of em-

phasis assist in providing equal educational opportunity

by providing alternative education options for black stu-

dents unable to attend magnet schools. The motivational

programs are designed to bring about productive atti-

tudes towards learning, and are essential in the opinion

of expert witnesses called by the black plaintiffs. See

Haywood, Compensatory Education, 59 Peabody J. of

Educ. 272, 274 (1982). Crain & Mahard, How Desegre-

gation Orders May Improve Minority Academic Achieve-

ment, 16 Harv. C.R.-C.L. L. Rev. 693, 702 (1982).

53a

Notwithstanding our affirmance in principle of the

district court’s order insofar as it relates to the all-

black schools, we believe that the following modifications

to the order should be made so that careful planning and

effective implementation may proceed without disruption

of the current school year:

(1) To the extent that any of the programs have

been heretofore instituted, they may be continued.

The remaining programs may be instituted at the

beginning of the 1984-85 school year. The summer

school program may be implemented for the summer

of 1984.

(2) The reduction in class size from present levels

to the 20:1 pupil-teacher ratio should be made over

a period of four years beginning in 1984-85. The

phased reduction recognizes that as many as 12,500

additional black students may transfer to county

schools in the next four years, and that as many as

3,000 more black students may transfer to magnet

schools during the same period. By coordinating the

class-size reduction with the transfers, student and

teacher disruption can be lessened and the construc-

tion or rehabilitation of school buildings to house

the smaller classes minimized.

(3) The amount budgeted for item B.1.01, Coordi-

nation of Instruction, should be reduced by one-half.

Evelyn F. Luckey, an expert witness for the Liddell

plaintiffs, testified that the program could be suc-

cessfully accomplished within the limits of the re-

duced amount.

(4) The schools of emphasis should be phased in

over a two-year period beginning in 1984-85.

(5) Detailed planning for the programs in the all-

black schools should continue so that the programs

can be implemented on schedule.

54a

We cannot fully agree with the district court’s con-

clusion that all of the quality education improvements

in all schools are closely related to the integration proc-

ess. While we concur with the Second Circuit’s view

that a district court should show considerable deference

to the good faith representations of the school authori-

ties, and that we should show similar deference to the

judgment of the district court, a review of the record

leaves us with the firm conviction that the district court

erred in approving many of the programs in the quality

education budget.

We begin our analysis by indicating our areas

of agreement with the district court. Initially, we be-

lieve there is strong support in the record for approving

those programs necessary to permit the city schools to

regain, and then retain, their Class AAA status. This

standard is developed by the Department of Education

of the State of Missouri. See Handbook for Classification

and Accreditation of Public School Districts in Missouri

(1980). Seventy-four percent of the children attending

Missouri public schools attend schools that have this

rating. Missouri School Directory (1982-83). The City

Board was denied this rating because its classes were

too large, it had too many uncertified teachers, it lacked

counselors in the elementary grades, it did not provide

art, music, and physical education in the elementary

grades, and its library and media services were in-

adequate.”

Second, we find adequate support in the record for

preschool centers (budget item A.4.01, $811,000), and

for planning and program development (a part of budget

item A.1.01, $585,000). Both of these programs are

recommended by the State Department of Education, and

19 Since this Court’s order of September 12, 1983, many of the

changes necessary to gain a AAA rating have been implemented

and the State has recentiy restored the AAA status to the city

schools.

55a

both have been shown to be closely related to the de-

segregation process.

Third, we find adequate support in the record for all-

day kindergartens (budget item A.4.02, $6,129,000) ; pa-

rental involvement (budget item A.8.05); desegregation

planning (budget item A.8.13, $41,000) ; long-range plan-

ning (budget item A.8.15, $431,000) ; and public affairs

(budget item A.8.06, $184,000). The all-day kindergar-

ten program serves several important compensatory and

remedial objectives. Much of the testimony at the fair-

ness hearings emphasized the importance of focusing de-

segregation efforts on the earlier grades, as younger chil-

dren have developed fewer racial prejudices and differ-

ences in performance are narrower. See Hawley, Effec-

tive Educational Strategies for Desegregated Schools, 59

Peabody J. of Educ. 209, 214 (1982). The additional in-

struction time will also assist in building prerequisite

skills for city pupils. The testimony also emphasized

that many of the children came from single-parent fam-

ilies that did not provide them with the skills which

would permit them to compete with other children at the

first-grade level. See Milliken II, supra, 433 U.S. at 284.

The all-day kindergarten program is an expensive one

which must be implemented carefully if waste is to be

avoided, and the full benefits of the program realized.

We therefore direct that the program be phased in over

a period of at least two years.

Parental involvement is similarly emphasized, both in

the record and in the literature, as crucial to the suc-

cess of the desegregation plan. See, e.g., Hawley, Ef-

fective Educational Strategies for Desegregated Schools,

supra, at 212, 225-226. Because many students will not

be attending their neighborhood schools as a result of the

student transfers, special parent-staff seminars and other

programs will be critical in developing and maintaining

parental involvement. The changes involved in imple-

menting the plan, and the future demographic and student

56a

enrollment shifts, render long-range planning essential to

the successful desegregation of the city schools. The pub-

lic affairs program is essential to citizen awareness and

aeceptance of the plan.

In light of the foregoing discussion, we approve the

district court’s funding order insofar as it relates to

programs necessary to the city schools to retain its AAA

rating. While the record is not entirely clear as to pre-

cisely what programs the State required the City Board to

institute to regain this rating, it appears that they are

budget items A.2.01, library and media services; A.2.02,

audio visual services; A.3.01, lower class size; and A.3.02,

restoration of art, music, and physical education. It is

the intention of the Court that these budget items be im-

plemented only insofar as necessary for the city schools to

retain their AAA status. Retaining this status does not

include a further class-size reduction in the integrated

schools. We also approve the following additional pro-

grams: preschool centers, planning and program develop-

ment, all-day kindergarten, parental involvement, de

segregation planning, long-range planning, and public

affairs.

We cannot, however, find adequate support in the

record for the remaining programs. All are desirable, but

the City Board has not made the case that they are neces-

sary to provide equal educational opportunities to the

children of St. Louis, or are otherwise essential as re-

medial or compensatory programs.

C. Capital Improvements in the Integrated and Noninte-

grated Schools

The settlement agreement describes the age and condi-

tion of the city schools: Generally, they are in a condition

of old age, rapid deterioration, and extreme deferred

maintenance. Thirty-four of the nonintegrated black

schools and twenty-one of the integrated schools are over

fifty years old. Nearly one-fourth of the building area in

57a

the city schools is over seventy-five years ola. Nearly one-

half of the building area in the city schools is over sixty-

five years old. More than two-thirds of the building area

in the city schools is over fifty years old. At the fairness

hearing, the district court heard uncontradicted evidence

as to the condition of the city school facilities which par-

alleled that recited in the settlement agreement.

In the last twenty-four years, St. Louis voters have

defeated thirteen proposed bond issues. The only bond is-

sue to pass during this period was in 1962, and approval

came only after resubmission to the voters. Significantly,

both of the last two proposed bond issues were approved

by a simple majority; the constitutional requirement of

two-thirds voter approval, however, blocked passage of

these issues.

At the fairness hearing, the State argued that more

careful planning was required before renovation or new

construction programs could be initiated, particularly

in light of expected declining enrollment in the city

schools. It also argued that the schools were in a de-

plorable condition because the City School Board had

failed to maintain them over the years. It questioned

whether certain items were properly included in the

capital improvement budget, contending that they were

routine maintenance items that should be funded exclu-

sively by the City Board.

The district court’s order and memorandum did not dis-

cuss the facility improvement program at length. It

simply stated that

(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 suffi-

cient to meet those of its capital improvement needs

as are deemed necessary to meet its constitutional

obligation to desegregate the City’s public schools;

[and]

58a

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

thirds majority vote required by State law, the

Court will consider an appropriate order to obtain the

funds deemed sufficient to meet the capital improve-

ment needs of City Board in complying with its con-

stitutional obligation to desegregate the City’s public

schools.

Liddell v. Bd. of Educ., supra, 567 F. Supp. at 1056.

Pursuant to that order, the City Board formulated a

building program with a total cost of $127 million, with

one-half of the total to be financed by the issuance of

$63.5 million in City Board bonds.

The bond issue was presented to the voters on No-

vember 8, 1983, and fifty-five percent of the voters ap-

proved the issue. Eighty-four percent of the voters in

the predominately black wards voted for the issue, but

sixty-five percent of the voters in the predominately white

wards voted against it. The bond issue was defeated

because it failed to receive a two-thirds majority.

On appeal to this Court, the State does not question

either the need to improve facilities, nor its obligation to

help pay for these improvements. In its opening brief,

it argues that if the bond issue fails, the whole plan will

fail for lack of funding because it is unfair to expect

the State to nay the full costs of the improvements. It

also renews its argument that, because the county schools

failed to agree to a detailed building program, the set-

tlement agreement as a whole must fail. Finally, it as-

serts that, in any event, the district court is without

authority to enter an order requiring a tax levy to fund

the City Board’s share of the improvements. In its reply

brief, the State simply states that the provision of the

order requiring “extensive capital improvements” is “en-

tirely out of proportion to the constitutional violations

found by the District Court.”

The district court did not err in holding that the State

had an obligation to pay one-half of the costs of the capital

59a

improvement program necessary to restore the city fa-

cilities to a constitutionally acceptable level, and we find

no merit in the State’s suggestion that the district court’s

order cannot stand because the county districts failed to

agree to the details of the facilities improvement program.

See supra pp. 49-50.

There is merit to the State’s argument that more care-

ful and detailed planning should precede action by the

district court and that this planning should identify the

projects to be undertaken, establish the cost of each proj-

ect and set a more specific schedule for the improvements.

Planning and scheduling are particularly important in

view of the expected decline in enrollment.

On remand, therefore, the City Board should promptly

identify the projects to be undertaken, estimate the cost

of each project, and set a reasonably detailed schedule for

the completion of each project. The projects having the

highest priority must be scheduled for completion at the

earliest possible date. To that end, the City Board should

consider the desirability of a referendum on a bond issue

which can be initiated at a very early date and a sub-

sequent bond issue for those projects to be built in later

years. The State will pay one-half of the cost of pre-

paring the detailed plans and schedules.

As soon as the City Board has prepared the new plans,

estimates, and schedules, it shall submit them to the

Budget Review Committee, discussed infra Section VI,

and then to the district court. When the district court

has approved them, a new bond issue shall be submitted to

the voters. If it is defeated again, the district court shall

determine how the improvements will be funded. See

infra Section V.

V. FINANCING DESEGREGATION IN

ST. LOUIS CITY SCHOOLS.

In November, 1982, Missouri voters approved a referen-

dum (Proposition C) which directed local school officials

to reduce their operating levies by an amount equal to

60a

fifty percent of the revenues local school districts would

receive under a one-cent increase in the state sales tax.

Mo. Rev. Stat. § 164.013 (Supp. 1983). In its July 5,

1988, order, the district court enjoined this rollback of

local real estate taxes, Liddell v. Bd. of Educ., supra, 567

F. Supp. at 1056, and directed the Board of Education to

use this money to fund the quality education programs

necessary to restore the St. Louis schools to their AAA

status. In our en bane order of September, 1983, we

sustained the district court’s injunction of the roll-

back on equitable grounds, for the injunction was al-

ready in place, and reversal at that time would have seri-

ously disrupted St. Louis’s system of school finance. Lid-

dell VI, supra, 717 F.2d at 1182-1184. We sustain the in-

junction against the rollback for the balance of this school

year for the same reason. The equitable nature of that

decision obliges us now to examine the propriety and

the merits of the district court’s injunction of the roll-

back with respect to years beyond 1983-84. We also con-

sider the district court’s authority to order a further in-

crease in property taxes to fund operating expenses or

capital improvements.

We hold that the district court’s broad equitable powers

to remedy the evils of segregation include a narrowly de-

fined power to order increases in local tax levies on real

estate. Limitations on this power require that it be ex-

ercised only after exploration of every other fiscal

alternative.

The district court’s use of broad equitable powers con-

cerning school desegregation costs has been approved by

previous opinions of the Supreme Court. Thus, it has

declared that, when predicated on a right and a violation,

“the scope of a district court’s equitable powers to rem-

edy past wrongs is broad, for breadth and flexibility, are

inherent in equitable remedies.” Swann v. Charlotte-

Mecklenburg Bd. of Educ., supra, 402 U.S. at 15. These

6la

powers subsume a broad range of ideas and tactics:

equity assures that “all reasonable methods be available

to formulate an effective remedy.” North Carolina State

Bd. of Educ. v. Swann, 402 U.S. 48, 56 (1971). These

powers may also be applied broadly “to achieve the great-

est possible degree of [relief] taking into account the

practicalities of the situation.” Davis v. Bd. of School

Comm’rs of Mebile County, 402 U.S. 338, 37 (1971).

In Griffin v. School Bd. of Prince Edward County, 377

U.S. 218 (1964), the Supreme Court acknowledged that

the district court may order an increase in taxes to fund

schools where the State has defaulted on its obligation to

provide an equal educational opportunity to all students.

The Court did not limit the scope of its holding by order-

ing a return to the previous tax levy or procedures. It in-

dicated only that the tax must be “necessary to prevent

further racial discrimination” and that it must “raise

funds adequate to reopen, operate, and maintain without

racial discrimination a public school system.” Jd. at 233.

In United States v. Missouri, 515 F.2d 1365 (8th Cir.),

cert. denied, 423 U.S. 951 (1975), this Court also ac-

knowledged the district court’s remedial power to require

a tax levy in excess of that authorized by the voters.

When the district court ordered the consolidation of three

St. Louis suburban school districts with disparate tax

rates ($3.80, $4.97 and $5.38), it concluded that a uni-

form tax rate higher than any of the three ($6.03) would

be necessary “to effectively operate the desegregated dis-

trict,” id. at 1371, and that “[t]his rate, inclusive of the

amount necessary to service the total debt of the en-

larged district, shall be deemed to have been approved by

the voters for the purposes of Article 10, section 11(c),

Missouri Constitution.” Jd. at 1372. In setting that rate,

the district court also noted that “there was no reasonable

possibility that such a tax levy would be approved by the

required two-thirds vote in the aftermath of the desegre-

gation order.” Jd. at 1371-1372.

62a

On appeal, this Court sitting en bane unamimously

approved a rate of $5.38, the highest rate of the three

districts. Judge Stephenson, writing for the full Court,

stated :

It is anomalous to suggest that the district court

has the power to disestablish a dual school system

but does not have the power to fashion an appropriate

remedy. In North Carolina State Board of Education

v. Swann, 402 U.S. 48, 45 * * *, the court stated:

[I]f a state-imposed limitation on a school au-

thority’s discretion operates to inhibit or obstruct

the operation of a unitary school system or im-

pede the disestablishing of a dual school system,

it must fall; state policy must give way when it

operates to hinder vindication of federal con-

stitutional guarantees.

We have likewise held in ordering implementation

of a school integration plan that “the remedial power

of the federal courts under the Fourteenth Amend-

ment is not limited by state law.” Haney v. County

Board of Education of Sevier County, supra, 429

F.2d at 368 * * *.

We are satisfied that the district court had the

authority to implement its desegregation order by

directing that provision be made for the levying of

taxes essential to the operation of the new school

district. It is our view, however, that deference

should be given to the plan submitted in good faith by

the state and county officials and which was largely

accepted by the court. It was the view of the state

that with the receipt of anticipated funds through

action of the legislature the present Ferguson rate

would be adequate. Maximum consideration should

be given the views of the state and local officials con-

cerned so long as they appear compatible with the

goals to be achieved. The maximum rate in the

new district should be reduced to $5.38 per hundred.

Id. at 1872-1373 (citations and footnote omitted).

63a

The City cites Evans v. Buchanan, 582 F.2d 750 (3d

Cir. 1978) (en banc), for the proposition that the dis-

trict court is without authority to order a tax increase to

fund a court-imposed desegregation plan. The decision

cannot be so construed. Indeed, the court en bance, rely-

ing on Griffin, made clear that the district court had that

authority: had the State allocated “no funds, or sub-

stantially insufficient funds, to operate the remainder

of the school system, such action by the State would clearly

be unacceptable as interfering with the operations of the

desegregation decree.” Jd. at 780. In addition, in Evans,

the district court had acted before the “obvious inherent

political safeguards * * * [were] permitted to run their

course.” Jd. Our instructions on remand are entirely

consistent with Evans because the district court must de-

fer to the political funding process before it may consider

ordering a tax increase. We read Evans for the propo-

sition we stated at the outset of this discussion: a dis-

trict court may require an increased tax levy, but only

where necessary to remedy a violation of the Constitution,

and only after exhausting all other alternatives.

The City and State also cite San Antonio Independent

School District v. Rodriguez, 411 U.S. 1 (1973), in argu-

ing that the courts should defer to the legislative exper-

tise of state and local governments. That case is also

distinguishable. It involved an equal protection challenge

of Texas’s use of the property tax for funding educa-

tion. The appellants claimed that this system of taxes

per se was discriminatory because it raised disparate

revenues in different school districts according to dis-

parities in the assessed valuation of property within the

districts. The Supreme Court found no suspect class

affected and no fundamental rights at stake. Instead, it

relied on the “rational basis” test and deferred to legis-

lative expertise in fiscal matters. On the other hand, in

this case, the City Board and State have both been ad-

judged constitutional violators in matters involving a

suspect classification. Moreover, in this case, no one chal-

64a

lenges the mechanics of the tax system, which was the

central issue in the passage from Rodriquez that the

State cited.”

Our conviction that the district court’s equitable power

includes the remedial power to order tax increases or the

issuance of bonds finds support in the case law sur-

rounding the contracts clause of the United States Con-

stitution. U.S. Const. art. 1, § 10, cl. 1. The Supreme

Court has recognized that a municipality’s contractual ob-

ligations cannot be impaired solely because state law

restricts its powers to tax in order to meet those obliga-

tions. When the City of New Orleans raised such an

argument in an attempt to avoid its debts owed to the

receiver of a metropolitan police board, the Court had no

trouble holding that the courts could require “the city to

pay over the taxes for which the judgment was rendered,

or to levy and collect a tax therefor for the benefit of the

relator as receiver.” Louisiana ex rel. Hubert v. Mayor

and Council of New Orleans, 215 U.S. 170, 181 (1909).

20 The State relies on several older cases to argue that the dis-

trict court may not order a tax levy to satisfy a judgment against

a municipality. Each of these cases arose in a commercial context.

In United States v. County Court of Clark County, 95 U.S. (5

Otto) 769 (1878), a bondholder sought a court-ordered tax levy

to pay interest coupons for years preceding the year the bonds

were issued. The Court declined to levy taxes because until the

bonds were issued, the county had no obligation and no authority

to levy the taxes. Rees v. City of Watertown, 86 U.S. (19 Wall.)

107 (1874), and United States v. County Court of Macon County,

99 U.S. 582 (1879), involved bondholders requesting court-ordered

levies to pay for bond defaults. In both cases, the Court declined,

holding the remedy barred by statutes in existence at the time con-

tracts of indebtedness were formed. Since the statutes became, by

implication, a part of the contract, they precluded the use of the

taxing remedy. Finally, in Citizens’ Savings and Loan Ass’n v.

Topeka, 87 U.S. (20 Wall.) 655 (1875), the Court delined [sic] to

order a tax levy to pay for a default on bonds issued by a local cor-

poration aided by the city. The Court reasoned that the tax wouid

not have been lawful because it would not have been levied for a

public purpose.

- Lainie satis 2 lt

Aes tai Ae at a et i

ees ee. I eC ee ell eee

ee ee ey ee

65a

See also Energy Reserves Group, Inc. v. Kansas Power

& Light Co., 103 S. Ct. 697, 705 n.14 (1983) (“When a

State itself enters into a contract, it cannot simply walk

away from its financial obligations.”); United States

Trust Co. v. New Jersey, 481 U.S. 1, 24 (1977) (“[T]he

taxing power may have to be exercised if debts are to

be repaid. Notwithstanding these effects, the Court has

regularly held that the States are bound by their debt

contracts.” [Footnote omitted.] ).

Similarly, courts have recognized that municipalities

may not avoid their liability in tort by pleading consti-

tutional or statutory debt limitations. Wichita Finance

and Thrift Co. v. Lawton, 181 F. Supp. 788, 790 (W.D.

Okla. 1955); State ex rel. Martin v. Harris, 75 N.M.

335, 115 P.2d 80, 83 (1941); Raynor v. King County,

97 P.2d 696, 708 (Wash. 1940); City of Catlettsburg v.

Davis’ Administration, 262 Ky. 726, 91 S.W.2d 56, 59-60

(1936); Town of Flagstaff v. Gomez, 242 P. 1003, 1004

(Ariz. 1926) ; City of Long Beach v. Lisenby, 179 P. 198,

200 (Cal. 1919) (taxes in such cases can be raised be-

yond their legal limits by the courts “without a vote of

the people of said city.”).

We turn to an evaluation of the district court’s July

5, 1983, order in light of the foregoing discussion. We

initially note that the district court declined to order an

increase in real estate levies for operating purposes

until the need for such revenues had been clearly demon-

strated. It also declined to order a tax increase to fund

capital improvements until such time as a bond issue of an

amount determined by the City Board as sufficient to meet

the most pressing capital improvement needs of the

Board’s constitutional obligation to desegregate had been

submitted to the voters. It acted properly in both respects.

It went on, however, to authorize and direct the City

Board to not reduce its operating levy as required by

Mo. Rev. Stat. § 164.013 (Proposition C), and to direct the

State to refrain from withholding from the City Board

66a

funds that it would otherwise withhold pursuant to the

same statute. It required that the revenue realized be

utilized to fund the desegregation plan. It stated that

any revenue thus retained but not necessary to fund the

City Board’s constitutional obligation should be applied to

reduce its operating levy on July 1, 1984.

In our view, this order was deficient in that it was

not accompanied by a factual finding by the district court

that all other fiscal alternatives were unavailable or in-

sufficient. We are unwilling to read such a finding into

the record even though the record reveals that the City

Board has little or no budget surplus, federal aid for

desegregation has been cut, real estate values in the dis-

trict have risen only slightly in recent years and referenda

to secure additional funds have been largely unsuccess-

ful.** On remand, the district court must allow the roll-

back under Proposition C to take effect for the 1984-85

school year unless it finds that no other alternatives are

available or sufficient to finance its desegregation order.

In addition, it shall not require any additional levy unless

it makes similar findings.

Specifically, the district court should, first, promptly

determine the amount of money that will be required in

1984-85 to fund the desegregation order and it should sub-

sequently determine the funds necessary for each of the

succeeding years. Second, the district court should de-

termine whether the City Board is able, with its own

resources, to fund its share of the costs. In making this

determination, the district court shall consider the re-

duced budgetary pressures that will result from the

transfer of nearly 6,000 students from city to county

*1 Since 1970, five referenda have been submitted to the voters

to increase the authorized operating levy. While one requested

increase passed in 1976, the remainder failed even though three of

these remaining four received a majority vote. We note, however,

that an increase of $.25 per $100 of assessed valuation in the cur-

rent operating levy could be approved by a simple majority of the

voters. Mo. Const. art. 10, §11(c).

67a

schools in 1984-85, and from the transfer of an additional

9,000 students in the following three years. In addition,

the district court shall consider the effects of students

transferring to magnet schools and of the City Board’s

receipt of transfer payments under the settlement agree-

ment for sending students to county schools. Third, if the

district court determines that the City Board lacks re-

sources sufficient to fund its share of the desegregation

order, it shall consider alternative sources of revenue.

These alternatives include, but are not limited to: sub-

mission of a referendum to the voters for an increased

operating levy; or authorization of the City Board by

the State legislature to impose non-real estate taxes within

the city. Fourth, if the voters refuse to approve a higher

tax levy, or if the legislature fails to authorize the City

Board to raise taxes from non-property tax sources, or

if the City Board and the State, as joint tortfeasors,

are unable to agree on an alternate method of raising the

City Board’s share of the cost, the district court shall con-

duct an evidentiary hearing and thereafter enter a judg-

ment sufficient to cure the constitutional violations which

we have found in a manner consistent with this and

prior opinions.

VI. BUDGET REVIEW COMMITTEE.

The settlement agreement, the district court’s fund-

ing order and opinion, and this Court’s opinion have es-

tablished detailed guidelines for desegregating the city

schools over the next four years. The agreement provides

for a number of committees to assist in desegregation.

They include the Desegregation Monitoring and Advisory

Committee, the Magnet Review Committee, and the Volun-

tary Interdistrict Coordinating Council. The function of

the latter committee is to coordinate and administe» the

student transfers, the voluntary teacher exchanges aid

the part-time education programs. A Recruitment and

Counseling Center has also been established. Each of these

committees and the Center fulfill important functions

68a

in the desegregation process and may be continued and

funded in accordance with the settlement agreement at

the discretion of the district court.

The district court also outlined the budgeting pro-

cedures that would be followed:

11. For the effective and timely implementation of

the Settlement Plan, as approved, the following bud-

geting procedure shall apply with regard to all ac-

tual and reasonable costs, except transportation costs

and costs incurred for the student transfer pay-

ments made to sending and receiving districts, in-

curred pursuant to the approved Plan:

(a) each participating school district shall de

liver to State defendants a proposed budget for all

desegregation programs and activities intended for

implementation pursuant to the Settlement Plan[.]

** * For * * * fiscal [year 1984-85 and subsequent

years], the budgets shall be delivered to the State on

or before March 1 of the preceding fiscal year;

(b) the budget for the VICC and for the Re

cruitment and Counseling Center (RCC) shall be

filed with the Court and submitted to the State on or

before * * * March 1 of the preceding fiscal year;

(ec) on or before [March 15 of each preceding

fiscal year], representatives of the State and of

each participating district shall identify in writing

their areas of agreement and disagreement relating

to budgetary matters. * * * After completion of

these efforts, the representatives may submit to the

Court a joint statement of budgetary matters then

remaining in dispute for the Court’s consideration.

[T]he State shall submit in writing any objec-

tions to the budget for the VICC and for the RCC

* * * on or before March 15 of the preceding fiscal

year. After completion of these efforts, the repre-

sentatives may submit to the Court a joint state

69a

ment of budgetary matters then remaining in dis-

pute for the Court’s consideration;

(d) the Court’s financial adviser may participate

in the budget meetings between the State and the

various representatives, and may present comments

on the budgets to the Court either in writing directly,

or at any subsequent hearing that may be required;

and

(e) for the 1983-1984 fiscal year, any budget dis-

agreements that remain, after the required meetings

and reports, will be referred to United States

Magistrate David D. Noce for a hearing on or before

August 5, 1988. For subsequent fiscal years, the

Court will consider any remaining disputed budget

issues in a manner the Court deems appropriate.

Liddell v. Bd. of Educ., supra, 567 F. Supp. at 1057.

We believe that the budgeting process is deficient in

three respects: (1) it fails to require long-range budget-

ing; (2) it does not give the State, the principal funding

source for the plan, an adequate role in the budgetary

process; and (3) it fails to provide an effective method of

resolving budgetary disputes before they reach the dis-

trict court. As a result, that court must spend an in-

ordinate amount of its time resolving disputes that should

be resolved by the parties.

We direct that a small budget committee be named,

consisting of two representatives of the State of Missouri,

one representative from the city schools to be selected

by the City Board, one representative to be jointly selected

by the Liddell and Caldwell plaintiffs, and a court-

appointed expert in schooi financing at the earliest pos-

sible date. The court-appointed expert shall serve as

chairman of the committee. Its responsibilities will be

determined by the district court but will include:

(1) Preparing, with the cooperation from the par-

ticipating school districts, a budget for the 1984-85

70a

school year through the 1987-88 school year for each

element of the desegregation plan (including capital re-

quirements and updating that budget on an annual

basis). These budgets should reflect the best current

estimates that can be made of the probable cost of the

plan for each of the next four years. The budgets will

permit the State and the City Board to anticipate the

funds that will be required to fund the plan. They will

also force the participants to consider at an early date

the dramatic changes that will occur in the city schools’

student population in the integrated and nonintegrated

schools and magnet schools, and will assist in the effort

to contro! costs.

(2) Receiving the annual budgets prepared by the

participating school districts on the same date that the

budgets are to be received by the State. The State and

each participating district will identify, in writing, their

areas of agreement and disagreement relating to budg-

etary matters at a time to be determined by the court

on the recommendation of the Budget Committee. The

Budget Committee will make every effort to resolve

differences as to the budget in accordance with the prin-

ciples set forth in the settlement agreement, the district

court’s order and this opinion. Any unresolved disputes

will be promptly presented to the district court with the

recommendations of the court-appointed expert. The dis-

trict court will resolve any disputes. This resolution is

not an appropriate task for a United States Magistrate.

The number of disputes should be dramatically reduced if

the parties participate in good faith in the procedure

outlined. The district court will enter an appropriate

order with respect to the funding of the Budget

Committee.

VII. OTHER ISSUES.

Several issues raised by various parties remain for

resolution by this Court. We hold the following:

Tla

A. St. Louis Teachers.

The district court did not err in denying the St. Louis

Teachers Union Local 420 the right to intervene in

these proceedings. The Union has, however, timely raised

its interest in seeking preferential hiring rights for black

city teachers in county school districts, and this interest

is sufficient to allow its intervention in future proceed-

ings. See Fed. R. Civ. P. 24.

We note further that the settlement plan contains

annual hiring goals for black teachers and administrators

in the county schools. Implementation of these goals

requires only nominal monetary support from the State,

and provides significant benefits to the county districts

and the black plaintiffs. We approve this section of the

settlement plan.

B. North St. Louis Parents.

The North St. Louis Parents and Citizens for Quality

Education argue that the district court erred in approv-

ing the settlement plan because it sacrifices the interests

of the black students who will remain in the all-black

schools for the interests of the black students who will

transfer to county schools. They base their argument

on the fact that the amount of state funding for students

who opt to bus to county schools greatly exceeds the

amount of state funding to compensate students who

remain in neighborhood all-black schools.

As we have discussed, supra p. 47, equal educational

opportunity for students remaining in one-race schools

is a crucial concern in examining a desegregation rem-

edy. The settlement plan contains significant quality im-

provements for the all-black schools, and we have ap-

proved these programs with minimal limitations. We

find no evidence in the record to support the claim that

the interests of students attending the all-black schools

are being slighted. As we see the record, black students

will now have several alternatives: attend their neighbor-

12a

hood school, attend an integrated school in the city or

county, or attend a magnet school.

Both the North St. Louis Parents and the City argue

that the district court failed to provide adequate notice

to potential class members. We hold that the district

court did not err in this regard. Nor did it deprive the

North St. Louis Parents as class members of due process

by failing to respond in detail to their objections to the

settlement plan. The district court’s opinion reveals that

it engaged in a reasoned examination of objections raised

by class members concerning whether the plan is fair,

reasonable and adequate. Liddell v. Bd. of Educ., supra,

567 F. Supp. at 1042-1047.

C. The City’s Petition for a Writ of Prohibition, and

Its Other Remaining Objections.

In our recent en banc order, we reserved a ruling on

the City’s petition for a writ of prohibition until we con-

sidered the merits on appeal. Liddell VI, supra, 717

F.2d at 1184. For the reasons discussed above, supra

pp. 59-66, concerning the City Board’s property tax rate,

we deny the writ.

For reasons discussed throughout this opinion, we hold

that the district court did not fail to evaluate the settle-

ment agreement properly; we thus dismiss the City’s

objections on this point. The City argues further that

the district court erred in denying or limiting cross-

examination of experts at the fairness hearing. We find

no abuse of discretion by the district court in this re

gard. See Fed. R. Evid. 611.

D. Final Judgment for the County School Districts.

We specifically approve the settlement agreement inso-

far as it relieves the participating county school districts

of liability if they meet the goals set forth in the settle-

ment plan within five years.

13a

We have considered all other arguments and find they

have no merit.

CONCLUSION

The judgment of the district court is affirmed in part

and reversed in part, and this matter is remanded to the

district court for action consistent with this opinion.

The City Board, the City of St. Louis, the North St.

Louis Parents and Citizens for Quality Education, and

the St. Louis Teachers Union Local 420 will each bear

their own costs on appeal. All other costs of appeal

Shall be taxed to the State of Missouri. The mandate

of this Court will issue forthwith.

JOHN R. GIBSON, Circuit Judge, concurring in part

and dissenting in part.

The Court today approves a settlement which in great

part requires funding by the State of Missouri. The

State of Missouri was not a party to this settlement. In

the litigation before us the State has been found to be a

constitutional violator insofar as there is an intradistrict

constitutional violation within the City of St. Louis. The

Court today improperly requires the State to fund a

remedy far broader than this constitutional violation, an

admittedly interdistrict remedy involving not only the

schools in the City of St. Louis but the schools in St.

Louis County. Accordingly, I must dissent in part.

It is necessary that we first determine what this

Court has found to be the constitutional violations by the

State of Missouri and then consider the nature of the

remedy that may be employed in such circumstances.

Even though this case has been before this Court on

four earlier occasions, the nature of the constitutional

violation by the State of Missouri has been outlined only

most generally. In our most recent opinion, Liddell v.

74a

Board of Education of City of St. Louis, 677 F.2d 626

(8th Cir. 1982) (Liddell V), cert. denied, —— U.S.

, 103 S. Ct. 172 (1983), the panel, speaking through

Judge Heaney stated:

We held in Adams that the state had substantially

contributed to the segregation of the public schools

of the City of St. Louis. No appeal was taken from

that decision by the state. That decision has been

settled and will not be reopened.

677 F.2d at 629. The Court there referred to the 1981

decision, Liddell v. Board of Education of City of St

Louis, 667 F.2d 643 (8th Cir.) (Liddell III), cert. de-

nied, 451 U.S. 902 (1981), where the panel, again

speaking through Judge Heaney stated:

The State of Missouri vigorously contends that it

should have no part in paying for the costs of inte-

gration because its actions did not violate the Con-

stitution. ...

This contention is wholly without merit. In our

March 3 opinion, we specifically recognized the

causal relationship between the actions of the State

of Missouri and the segregation existing in the

St. Louis school system. Furthermore, we expressly

directed the district court to apportion the costs of

the desegregation plan among the defendants.

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

n.28. These statements amount to a clear reversal

of the district court’s findings concerning the liabil-

ity of the State, and the State has chosen not to seek

review of that decision in the Supreme Court. At

the very least, our opinion left the district court

free to review its earlier conclusions. We will not

disturb its decision to do so.

667 F.2d at 654.

These opinions referred to the earlier en banc decision

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

75a

cert. denied, 449 U.S. 826 (1980). In Adams, the Court

held that the district court had erroneously concluded

that the Board of Education had discharged its duty to

desegregate the St. Louis school system by adopting a

neighborhood school plan and refraining from discrimi-

natory actions thereafter and that factors over which

the Board of Education had no control were responsible

for today’s segregation in the St. Louis school system.

Adams, 620 F.2d at 1291. The Court observed that most

schools in north St. Louis were black in 1954 and re

mained black and that most schools in south St. Louis

were white in 1954 and remained white. The Board had

not dealt with the problem in 1954 to 1956 by developing

a plan that would integrate the schools in north and

south St. Louis. The Court concluded: “We have no

alternative but to require a system-wide remedy for

what is clearly a system-wide violation.” Jd. Liddell III

& V refer to the discussion on pages 1294 and 1295 in

Adams, and footnotes 27 and 28. Testimony of Dr.

Orfield that an interdistrict remedy funded by the State

of Missouri would have the best chance of permanently

integrating the schools in metropolitan St. Louis was

discussed, together with the pre-Brown practices of both

the St. Louis suburban school districts and those of the

City of St. Louis to maintain segregated schools. The

costs of the desegregation plan were to be apportioned

among the defendants as determined by the district

court.

It is evident that this discussion in Adams is dealing

with the St. Louis City school system. The Board was

directed to develop a system-wide plan for integrating

the elementary and secondary schools. The Court re-

manded “to the district court with instructions to take

those steps necessary to bring about an integrated

school system” in accordance with certain guidelines and

timetables set out. Adams, 620 F.2d at 1295. Coopera-

tive transfers with suburban districts in St. Louis

County were discussed.

76a

This discussion in Adams does not address the ques-

tion of interdistrict violation or interdistrict remedy.

This conclusion is fortified by the suggestion in Lid-

dell V that “the interdistrict liability proceedings previ-

ously severed from the remainder of the case be post-

poned until after . .. an order in the pending 12(c)

proceeding” and that “the interdistrict liability aspect

should then proceed promptly thereafter.” 677 F.2d at

642. The district court and this Court have not to this

time made findings or conclusions of interdistrict

violation.

Liddell V made the following reference with respect

to the State defendants:

[T]hey are primary constitutional wrongdoers and,

therefore, can be required to take those actions

which will further the desegregation of the city

schools even if the actions required will occur out-

side the boundaries of the city school district.

677 F.2d at 630.

The decision discussed the voluntary participation of

suburban schools and the preparation and submission of

feasibility plans for interdistrict desegregation involving

city and suburban schools. 677 F.2d at 641.

Following Liddell V, the district court commenced its

preparation for trial of the interdistrict issues, but be-

fore the trial could proceed and findings on the inter-

district violation and remedy issues could be made, the

settlement now before the Court was achieved, with the

State not participating. From this history the only con-

clusion that we can reach is that the constitutional viola-

tion found on the part of the State and the City of St.

Louis is failure to take necessary actions to desegregate

the schools in the City of St. Louis and particularly to

desegregate the schools on a system-wide basis, including

the predominantly white schools in south St. Louis and

the predominantly black schools in north St. Louis.

1Ta

II.

The scope of remedy available once a constitutional

violation has been found has been discussed by the

United States Supreme Court most recently in Pasadena

City Board of Education v. Spangler, 427 U.S. 424, 49

L.Ed.2d 599 (1976), in which the Court speaking

through Justice Rehnquist stated:

[I]n Swann the Court cautioned that “it must be

recognized that there are limits” beyond which a

court may not go in seeking to dismantle a dual

school system. /d., at 28, 28 L.Ed.2d 554, 91 S Ct

1267. These limits are in part tied to the necessity

of establishing that school authorities have in some

manner caused unconstitutional segregation, for

“lalbsent a constitutional violation there would be

no basis for judicially ordering assignment of stu-

dents on a racial basis.” [bid.

427 U.S. at 434. The district court order in Pasadena

was set aside, the Court finding that there was no show-

ing that the post-1971 changes in the racial mix of the

Pasadena schools was caused by segregative actions

chargeable to the defendants, pointing to changes in the

demographics of Pasadena’s residential patterns. 427

U.S. 435-36.

The principles limiting available remedies were out-

lined in Hills v. Gautreaux, 425 U.S. 284, 47 L.Ed.2d

792 (1976). The Court there reviewed the earlier deci-

sion in Milliken v. Bradley, 418 U.S. 717 (1974) (Milli-

ken I). It pointed to the fundamental limitation on the

remedial powers of the federal courts to restructure the

operation of local and state government, and explained

that that power may be exercised only on the basis of

constitutional violation. Hills, supra, 425 U.S. at 2938, 47

L.Ed.2d at 801. The Court stated that

[o]nce a constitutional violation is found, a federal

court is required to tailor “the scope of the remedy”

78a

to fit “the nature and extent of the constitutional

violation.” In Milliken, there was no finding of

unconstitutional action on the part of the suburban

school officials and no demonstration that the viola-

tions committed in the operation of the Detroit

school system had had any significant segregative

effects in the suburbs. (Citations omitted.)

425 U.S. at 293-94.

Hills discussed the conclusions in Milliken I in detail

as we have demonstrated above. Further limits estab-

lished by Milliken I are as follows:

The controlling principle consistently expounded

in our holdings is that the scope of the remedy is

determined by the nature and extent of the consti-

tutional violation. Swann, 402 US, at 16, 28 L Ed

2d 554. Before the boundaries of separate and

autonomous school districts may be set aside by con-

solidating the separate units for remedial purposes

or by imposing a cross-district remedy, it must first

be shown that there has been a constitutional viola-

tion within one district that produces a significant

segregative effect in another district. Specifically, it

must be shown that racially discriminatory acts of

the state or local school districts, or of a single

school district have been a substantial cause of inter-

district segregation. Thus an interdistrict remedy

might be in order where the racially discriminatory

acts of one or more school districts caused racial

segregation in an adjacent district, or where district

lines have been deliberately drawn on the basis of

race. In such circumstances an interdistrict remedy

would be appropriate to eliminate the interdistrict

segregation directly caused by the constitutional vio-

lation. Conversely, without an interdistrict violation

and interdistrict effect, there is no constitutional

wrong calling for an interdistrict remedy.

418 U.S. at 744-45.

79a

The Supreme Court more recently in General Building

Contractors Ass’n v. Pennsylvania, USS. ' ;

102 S.Ct. 3141, 3154 (1982), has held that judicial

remedial powers of the federal court can “be exercised

only on the basis of a violation of the law and...

[can] extend no farther than required by the nature

and extent of ... [the] violation.”

From this discussion it is apparent that the issue be-

fore this Court is what measures are tailored to fit the

scope and nature of the State’s constitutional violation.

As we have seen, that constitutional violation is at most

intradistrict in nature and, specifically, the failure to

take measures to desegregate the St. Louis school sys-

tem, particularly the north and south sides of that sys-

tem. There is no hint of a finding that there was an in-

terdistrict effect flowing from this intradistrict violation.

Under these principles the intradistrict violations

found are insufficient to require the interdistrict rem-

edy agreed to by all of the parties except the State of

Missouri, and to impose the cost of this remedy on the

State of Missouri. Because there are no findings by the

district court as to the extent of the remedy required,

this Court should not give its approval to a settlement

placing substantial funding responsibility on the State

of Missouri.

The Supreme Court in Hills concluded that selection

of sites for public housing in the City of Chicago by

HUD justified a remedy beyond the City of Chicago’s

territorial boundaries. The reasons for the conclusion

were discussed as follows:

Here the wrong committed by HUD confined the re-

spondents to segregated public housing. The rele-

vant geographic area for purposes of the respond-

ents’ housing options is the Chicago housing market,

not the Chicago city limits. . . . An order against

HUD and CHA regulating their conduct in the

80a

greater metropolitan area will do no more than take

into account HUD’s expert determination of the

area relevant to the respondents’ housing opportuni-

ties and will thus be wholly commensurate with the

“nature and extent of the constitutional violation.”

(citation omitted. )

425 U.S. at 299-300.

Hills does not justify the conclusion reached by this

Court. In Hills HUD had made an expert determination

that the Chicago area and not simply the City of Chicago

was the relevant area. The wrongful act of HUD was

confining the respondents to segregated public housing.

We have no record in this case that the State of Mis-

souri confined black students to the City of St. Louis as

opposed to the county nor that the State had conceded

the city and county to be the relevant area in issue. We

have no finding that any of the intradistrict violations

of the State which occurred within the City of St. Louis

had any relationship to the county, or conversely that

any acts of the State that may have been of an inter-

district nature affected the City. In Hills the particular

facts pointed to the nature of the constitutional viola-

tion and a remedy in the larger area. Hills cannot sup-

port the interdistrict remedy approved by the Court

today. The district court has made no findings in a vein

similar to Hills and the Court in its opinion has reached

no conclusions similar to those in Hills except the unsup-

ported assertion that Hills justifies the remedy.

III.

The Court today bases its approval of the interdistrict

transfers on the questionable ground that this issue has

been previously decided. The Court’s earlier decisions,

in which we have discussed the nature of the constitu-

tional violation, do not support its conclusion.

Liddell III, supra, 667 F.2d 643, dealt with the earlier

order of the district court relating to a voluntary coop-

8la

erative plan of pupil exchanges between the city and

county (12(a)), a merger and full desegregation of the

separate vocational educational programs in the county

and city (12(b)), and development and submission of

“a suggested plan of interdistrict school desegregation

necessary to eradicate the remaining vestiges of govern-

ment-imposed school segregation in the City of St. Louis

and St. Louis County.” 667 F.2d at 650-51. The Court,

with respect to paragraph 12(a), specifically states,

“Tbjecause the plan is to be voluntary, no question is

raised about whether the district court will be able to

enforce the plan once it is drawn up.” 667 F.2d at 651.

Paragraph 12(b), relating to vocational education, was

based upon a specific finding of the district court that a

separate special district for vocational education was

part of the State’s failure to take affirmative steps to

eradicate the dual system it had formally mandated, and

was designed to remedy this violation.

Paragraph 12(c) in Liddell III relates to a suggested

feasibility study and goes no farther. It recognized that

to the extent that segregation was imposed by county

school districts, not parties to the lawsuit and not desig-

nated as constitutional violators, it could not be consid-

ered as government-imposed. To the extent of any segre-

gation imposed by the State or other defendants “and

to the extent those defendants have the power to remedy

the violation, it is proper for the district court to order

them to take steps to do so.” 667 F.2d at 651. The

Court’s opinion, however, cited no finding and made no

conclusion that city-county interdistrict segregation was

imposed by the State or the City Board. Later in the

opinion, the Court specifically referred to the apportion-

ment of costs in Adams. Liddell III, 667 F.2d at 654.

In discussing apportionment of costs, the Court men-

tioned specifically the segregation existing “in the St.

Louis school system.” These statements but reinforce

the Court’s reliance on the intradistrict violation as the

82a

basis for its action. The Court today gives an overly

broad reading of Liddell III.

In Liddell V, 677 F.2d 626, the Court recognized that

Adams held that the State had contributed to the segre-

gation “of the public schools of the City of St. Louis.”

Citing Hills, supra, it then concluded that paragraph

12(a) relating to voluntary interdistrict transfers is

entirely enforceable against the State defendant and that

the State can be required to take actions that will fur-

ther the desegregation of the city schools, even if the

actions required will occur outside the boundaries of the

city school district. As we have seen, the Court in

Liddell III & V did not attempt to identify a type of

constitutional violation similar to that in Hills, in which

actions had confined a certain group of persons to one

portion of the area in question, or to demonstrate a

finding, concession or conclusion that the city-county

area should be considered as one. The Court was con-

sidering only “a modest beginning toward voluntary

interdistrict desegregation.” The Court concluded in

Liddell V that the State and the city school board must

take action to eradicate the remaining vestiges of gov-

ernment-imposed school segregation in the city schools.

The Court’s references to “actions which may involve the

voluntary participation of the suburban schools” and,

specifically, to “requir[ing] the state to provide addi-

tional incentives for voluntary interdistrict transfer,”

677 F.2d at 641-42, were given by way of example only.

The tentative suggestion that the State provide “addi-

tional incentives” is far from a conclusion that the State

be required to fund a voluntary interdistrict transfer

plan in which it was not a consenting party. These sug-

gestions were made with reference to the 12(c) hearings

which it suggested go forward, and which specifically

related to development of a feasibility plan for overall

integration. The interdistrict liability proceedings were

to await this development. 677 F.2d at 642. The Court

today has engaged in a massive bootstrapping effort to

83a

find that Liddell III or Liddell V has established the

liability of the State for the interdistrict transfer plan.

The Court ceclares that we are bound by our previous

holdings as to interdistrict transfers. The law of the

case doctrine, however, applies with less force to prior

decisions of a panel. Van Gemmert v. Boeing Co., 590

F.2d 433, 486-37 n.9 (2d Cir. 1978) ; aff'd, 444 U.S. 472

(1980); 18 C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure § 4478 at 796-97. Resting as it

does on the precarious comparison with. Hills, even if the

issue were firmly established by Liddell V, the Court en

bane should attempt to decide the case correctly rather

than consistently. See Robbins, et al v. Prosser’s Moving

& Storage Co., 700 F.2d 433, 488 (8th Cir. 1983) ; United

States v. Unger, 700 F.2d 445, 450 n.10 (8th Cir. 1983) ;

Wrist-Rocket Manufacturing Co. v. Saunders Archery

Co., 578 F.2d 727, 730 (8th Cir. 1978).

IV.

The State was ordered to match funds raised in a

bond issue submitted to the voters by the City Board

for capital improvements. The issue failed and this

Court’s order rather hastily approves the summary treat-

ment of the district court with respect to this issue.

The laws of Missouri place the responsibility for main-

tenance of the schools’ physical plant on the City Board

of Education. Mo. Rev. Stat. § 177.031 (1984). This

Court in its opinion correctly descibes the age, deteriora-

tion and deferred maintenance of the plant. In twenty-

four years thirteen bond issues have been defeated and

one in 1962 approved only after resubmission. The last

two bond issues were approved by a simple majority but

the constitutional requirement of two-thirds voter ap-

proval has blocked passage of these issues.

84a

There is no finding in the district court order and no

conclusion by this Court that the condition of the physi-

cal plant of the St. Louis schools is related in any way

to the constitutional violations of either the City Board or

the State. There is nothing to suggest that the condition

is other than purely and simply the result of the neglect

of the City Board to fulfill its responsibilities. To order

the State to pay half of this expense is to require a

remedy beyond the constitutional wrong that has been

found, which violates the principles laid down in Milli-

ken I, Hills and Swann. This portion of the order vio-

lates the admonition of the Second Circuit in Arthur v.

Nyquist, 712 F.2d 809, 813 (2d Cir. 1983), that “a

court must be alert not to permit... use [of] a court’s

broad power to remedy constitutional violations as a

means of upgrading an educational system in ways only

remotely related to desegregation.”

There are simply no district court findings and no

conclusions by this Court to justify the State’s partici-

pation in funding capital improvements. This is the sole

responsibility of the City Board. Certainly in the ab-

sence of any findings by the district court that the segre-

gative policies of the State had an impact on the city

schools’ physical plant, that funding of additional capital

improvements is necessary to redress such wrong, and

that less ambitious efforts would not have been adequate,

there is simply no basis to mandate this aspect of state

funding.

¥.

The Court today remands a portion of the funding

order to the district court for further findings

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