Petition for Writ of Certiorari — Jenkins v. Missouri

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Supreme Court, U.S,

86 1717 EILED

No. 86- APR 26 Wer

JOSEPH F-SPANIOL, JR,

In the Supreme Court of the Unitéd-States—

OCTOBER TERM, 1986

KALIMA JENKINS, et al.,

Petitioners,

-V-

THE STATE OF MISSOURI, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES S. LIEBMAN*

Columbia University School

of Law

435 West 116th Street

Box B-16

New York, New York 10027

212-280-3423

ArtuHurR A. BENSON II

1430 Commerce Tower

911 Main Street

Kansas City, Missouri 64105

816-842-7603

Jutrus L,. CHAMBERS

JAMES M. Naprairt III

THeopore M. SHAW

99 Hudson Street, 16th Floor

New York, New York 10013

212-219-1900

Attorneys for Petitioners

Kalima Jenkins, et al.

*Attorney of Record

E. L. Mexwpenmatt, Ivc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

SSE

QUESTIONS PRESENTED

In this interdistrict school deseg-

reqation case, the District Court found

that Missouri's intentionally discrimina-

tory school and housing policies’ before

1954 segregated black children into the

Kansas City School District and white

children into the 11 surrounding school

districts; that the State's and the Kansas

City District's unconstitutional actions

after 1954 preserved and expanded inter-

district segregation; that the United

States Department of Housing and Urban

Development and its predecessors complied

in the State's housing violations before

1954 and funded its housing violations

thereafter; and that all these actions

continue to segregate black and white

children into separate Kansas City school

districts today.

The District Court and the evenly

divided en banc court below nonetheless

denied interdistrict school desegregation

relief. They ruled that the Fourteenth

Amendment does not prohibit intentional

racial segregation among scnool districts

caused by govérnmental actors other than

the school districts themselves. Under

these circumstances, this petition pre-

sents the following questions:

he Whether, having found that

Missouri intentionally segregated black

children into one of the school districts

in the City of Kansas City and white

children into the surrounding districts,

the courts below erroneously denied inter-

district relief on the ground that the

State and not the surrounding3 school

districts caused that segregation?

2 « Whether, having found that

Missouri and the other defendants inten-

tionally segregated black and white

children into separate school districts

before 1954 and. took no steps thereafter

to remedy that interdistrict segregation,

the courts below erred by denying inter-

district relief without considering the

continuing areawide effects of the defen-

dants' post-1954 segregative conduct?

- iii -

PARTIES TO THE PROCEEDING

IN THE COURT OF APPEALS

The parties to the proceeding in the

Court of Appeals were as follows:

Appellants/cross-appellees (now petitioners):

Kalima Jenkins, by her next friend,

Kamau Agyei

Carolyn Dawson, by her next friend,

Richard Dawson

Tufanza A. Byrd, by her next friend,

Teresa Byrd

Derek A. Dydell, by his next friend,

Maurice Dydell

Terrance Cason, by his next friend,

Antoria Cason

Jonathan Wiggins, by his next friend,

Rosemary Jacobs Love

Kirk Allan Ward, by his next friend,

Mary Ward

Robert M. Hall, by his next friend,

Denise Hall

Dwayne A. Turrentine, by his next friend,

Sheila Turrentine

Gregory A. Pugh, by his next friend,

Barbara Pugh

Cynthia Winters, by her next friend,

David Winters, on behalf of them-

selves and the class of black and

white present and future students

in the Kansas City, Missouri

School District.

- iv-

Appellant/cross-appellees (now peti-

tioners) the Kansas City, Missouri School

District and Dr. Claude Perkins, then-

Superintendent.

Appellant/cross-appellee Kansas City,

Missouri Federation of Teachers, Local 691

Appellees/cross-appellants:

The State of Missouri

Honorable John Ashcroft, Governor of the

State of Missouri

Arthur L. Mallory, Commissioner of

Education of the State of Missouri

Wendell Bailey, Treasurer of the State

of Missouri

The Missouri State Board of Education:

Roseann Bentley

Dan Blackwell

Terry A. Bond, President

Delmar A. Cobble

Grover Gamm

Jimmy Robertson

Robert L. Welling

Donald E. West

Appellees:

Park Hill School District R-5 and Dr.

Merlin A. Ludwig, Superintendent

North Kansas City, Missouri School District

and Dr. Raymond Waier, Superintendent

ee ———

School District of the City of Independence

and Dr. Robert Henley, Superintendent

Raytown, Missouri Consolidated School Dis-

trict C-2 and Dr. Robert Atkin, Super-

intendent

Center School District and Donald Richmond,

Superintendent

Hickman Mills Consolidated School District

C-l1 and Blaine E. Steck, Superintendent

Grandview Consolidated School District C-4

and Dr. Tony L. Stansberry, Superinten-

dent

Fort Osage School District R-1l and Victor

Gragg, Superintendent

Lee's Summit Reorganized School District

R-7 and Dr. Bernard C. Campbell, Super-

intendent

Blue Springs Reorganized School District

R-4 and Dr. Gale T. Bartow, Superinten-

dent

Liberty School District and Dr. Ronald L.

Anderson, Superintendent

United States Department of Housing and

Urban Development and Secretary Samuel

Pierce

= yi «

TABLE OF CONTENTS

QUESTIONS PRESENTED. .cccccccccccccccces i

PARTIES TO THE PROCEEDING IN THE

COURT OF APPRAIE 6000066008 eeeseseee iv

TABLE OF AUTHORITIES. ccccccccccsccccccsee iX

OPINIONS 8s) Prey rT TTT TTreTerrerrrrrs 2

PURLOOEG EEO cece e eee eee eseesesesesseses 2

CONSTITUTIONAL PROVISIONS INVOLVED..... 2

STATEMENT OF THE © | FPrrrreTrrrrerrrery, 3

II.

III.

Preliminary Statement....eeee0- 3

The District Court's Inter-

district Violation and Effect

PIindingSeccoccescccccccccccssece a

A. The State's Violations and

Their ag OS 12

B. Findings as to the ll

Surrounding Districts...... 23

Post-Trial Proceedings.......+. 27

- vii -

REASONS FOR GRANTING THE WRIT. .eeeeeees 33

I. The Court Should Grant Certi-

orari To Resolve Conflicts That

Have Arisen Over Whether

Milliken v. Bradley Permits

State Officials Deliberately To

Segregate A Single City's

Children Into Separate School

Districts So Long As The State

And Not The Surrounding White

Districts Is To Blame For That

Segregationeccccscccscccssevees 33

A. The Court Should Grant

Certiorari To Resolve The

Conflict Between The Jud g-

ment Below And Its Decision

in Milliken v. Bradley..... 34

B. The Court Should Grant

Certiorari To Resolve The

Conflict Among The Third,

Fourth, Fifth, Sixth, And

Seventh Circuits Over The

Proper Interpretation Of

Mid iikathcccccccsccscosesese 39

II. The Court Should Grant Certi-

orari To Resolve The Conflict

Between The Judgment Below And

The Third And Other Circuits

Over Whether The Affirmative

Constitutional Duty To Dismantle

The Effects Of Prior De Jure

Segregation Applies In Inter-

District CaS@Becccccccccccccscce 48

CONCLUSTON. ccccecceseeeeseeeseeeeseeses 59

- viii -

TABLE OF AUTHORITIES

Cases

Afroyim v. Rusk,

387 U.S. 253 C19TEdcceccecescceceseeesss

Bell v. Board of Education,

683 F.2d 963 (6th Cir. 1982)..30,43,44

Bradley v. School Board,

462 F.2d 1058 (4th Cir. 1978)

(en banc), aff'd, 412 U.S.

mel ys) PPPPvreyyreyryrrrrrrrreerrrrrrrrs ¢.

Brinkman v. Gilligan,

446 F. Supp. 1212 (S.D. Ohio)....50,51

Bronson v. Board of Education,

578 F. Supp. 1091 (S.D. Ohio

tl Pree ryryerreryerrrrerrererrrerrrer. fro.

Brown v. Board of Education,

347 U.S. 483 (1954) -ccocccccced gs 0e14,15

Columbus Board of Education v. Penick,

443 U.S. 449 (1979) ccccccesccec0e49,90

Continental T.V., Inc. v. GTE

Sylvania, Inc., 433 U.S. 36 (1977)..47

Dayton Board of Education v. Brinkman,

$33 OU.B-. O06 (A9TT) ccoccccsecccvecseocedd

Dayton Board of Education v. Brinkman,

443 U.S. 526 (1979)

(Dayton II)eeeeeeee + 22,48,50,51,53,58

Evans v. Buchanan, 393 F. Supp.

428 (D. Del.) (3-judge court),

aff'd, 423 U.S. 963 (1975)....37,56,58

- ix -

Evans v. Buchanan, 416 F. Supp.

328 (D. Del. 1976), aff'd, 555 F.2d

373 (3d Cir. 1977) (en banc)....37,40,

41,56,58

Evans v. Buchanan, 582 F.2d 750

(3d Cir. 1978) (en banc)...+++41,56,58

Goldsboro City Board of Education v.

Wayne County Board of Education,

745 F.2d 324 (4th Cire 1984) ..6000++46

Hart v. Community School Board,

512 F.2d 371 (2d Cir. 1975) .eeee044-44

Hoots v. Commonwealth,

672 F.2d 1107 (3d Cir. 1982).....40,58

Jenkins v. Missouri,

639 F. Supp. 19 (W.D. Mo. 1985)..28,29

Keyes v. School Dist. No. l,

413 U.S. 189 (1973).....48,50,54,55,58

Lee v. Lee County Board of Education,

639 F.2d 1243 (Sth Cir. 1981)....54,55

Milliken v. Bradley,

418 U.S. 717 (1974) .ceeeeeeeeessPassim

Morrilton School District No. 32 v.

United States, 606 F.2d 222 (8th

Cir. BOM) ccccsccsececeeesevesocesagae

Newburg Area Council, Inc. v. Board of

Education, 510 F.2d 1358 (6th

Cifte ROTE) 000000008 08eeeseseeeeseeese

Oliver v. Kalamazoo Board of Education

640 F.2d 782 (6th Cir. 1980).....++.44

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1

(1971l) ccccccccccee 18,44,48,50,54,55,58

- xX =

Taylor v. Ouachita Parish School Board,

648 P.2d 959 (Sth Cir. 1981)...0000e46

United States v. Board of School

Commissioners of the City of

Indianapolis, 573 F.2d 400

CPE ChPs FOTO) a nscececenccunscssccacen

United States v. Board of School

Commissioners of the City of

Indianapolis, 637 F.2d 1101

C7OH Cire 1980) .ccccccecececcccse42,$8

United States v. Scotland Neck Board

of Education, 407 U.S. 484 (1972)...42

United States v. Texas,

321 F. Supp. 1043 (E.D. Tex. 1970),

aff'd, 447 F.2d 441 (1971]1)....006000246

United States v. Yonkers Board of

Education, 624 F. Supp. 1276

(S.DoN.Y. Bw) 668640066 s bes ceneesecann

Wright v. Council of City of Emporia,

407 U.S. 451 C1972) ccccccccccccc49,$8

Ybarra v. City of San Jose,

503 F.2d 1041 (9th Cir. 1974).......44

Statutes

Act of July 6, 1957, 1957 Mo. Laws 454...6

Act of July 6, 1965, 1965 Mo. Laws 275...6

MO. Rev. Stat. § 162.563. ccccccccccccccecet

MOo RoW. Stats § I16BSTlccccccccscecssccel

Other Authorities

Note, Housing Discrimination as a

Basis for Interdistrict School

pesegregat fon Relief, 93 Yale

bev e BeOS E666 8608600066 ce

= gi «

- l1 =

No. 86-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

KALIMA JENKINS, et al.,

Petitioners,

axtpas

THE STATE OF MISSOURI, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners, KALIMA JENKINS, et al.,

respectfully pray that a writ of cer-

tiorari issue to review the judgment of

the United States Court of Appeals for the

Eighth Circuit affirming by an equally

divided en banc vote the denial of inter-

district school desegregation relief.

« 2 =

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Eighth Circuit,

reported at 807 F.2d 657, is set out in

the Appendix, 2a. The unpublished June

5, 1984 order of the United States

District Court for the Western District of

Missouri is at 274a. The September 17,

1984 decision of the District Court,

reported at 593 F. Supp. 1485, is at 518a.

JURISDICTION

The jurisdiction of the Court is

invoked under 28 U.S.C. § 1254(1). The

Court of Appeals entered judgment’ on

December 5, 1986, and denied rehearing on

February 5, 1987.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth Amendment

to the Constitution of the United States,

which provides in relevant part:

[NJor shall any person .. . be

deprived of life, liberty, or

property, without due process of

law;

and the Fourteenth Amendment to the

Constitution of the United States, which

provides in relevant part:

[NJor shall any State . . . deny

to any person within its juris-

diction the equal protection of

the laws.

STATEMENT OF THE CASE

I. Preliminary Statement.

This is an interdistrict school deseg-

regation case. Petitioners, Kalima

Jenkins et al., are the plaintiff class of

public school children in the Kansas City,

Missouri School District ("the Kansas City

District," or “KCMSD").

The Kansas City District is one of 13

school districts located wholly or partly

within the City of Kansas City. Encompas-

sing only a fourth of the City's territory

but all of its predominantly black neigh-

borhoods, the Kansas City District is 68

percent black. Its professional staff is

53 percent black. Exhibits (X) 9, 36,

53G, 3757. Surrounding the Kansas City

District on three sides and encompassing

most of the remaining three-fourths of the

City of Kansas City are the respondent

school districts. Those 11 districts have

a combined student population less than

five percent black and ae professional

staff less than one percent black.

Together, the Kansas City District and the

11 surrounding districts have a _ student

body less than 25 percent black. l

ly 9, 36, 53G, 721G. Also referred to here as

the "surrounding school districts" and the

"SSDs," the 11 respondent districts are the Blue

Springs, Center, Fort Osage, Grandview, Hickman

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The District Court found that, for a

century before Brown v. Board of Education,

347 U.S. 483 (1954), the State of Missouri

(i) discriminatorily confined its de jure

segregated schools for blacks to the

Kansas City District while locating

schools for whites throughout the Kansas

City area, and (ii) enforced racially

restrictive covenants in the parts of the

City now served by the surrounding

districts but not in the older neigh-

borhoods served by the Kansas City

District. The District Court determined

that these and other intentionally discri-

minatory acts influenced the patterns of

residential development of the metropoli-

Mills, Independence, Lee's Summit, Liberty, North

Kansas City, Park Hill, and Raytown School

Districts. The State of Missouri and the United

States Department of Housing and Urban Develop-

ment (HUD) are also respondents. The Kansas City

District is a petitioner.

- 6 -

tan area, had an important impact on the

composition of inner city neighborhoods,

and “continue[] to have a_ siqnificant

effect in the Kansas City area" today.

September 1984 Decision, 530a-37a, 568a-

69a, 60la-02a.

The District Court also found that

the Missouri Legislature in 1957, the same

year it repealed its mandatory’ school

segregation laws, adopted legislation

exempting Kansas City from the city/dis-

trict coterminousness rule applied to

other Missouri cities. But for this

legislation, the 74 =percent' minority

District of Kansas City instead would

today have the same boundaries as the 73

percent white City of Kansas City and

would encompass all or parts of nine of

the predominantly white surrounding school

districts. 2

2 June 1984 Order, 334a-39a (discussing Act

of July 6, 1957, 1957 Mo. Laws 454; Act of July

6, 1965, 1965 Mo. Laws 275, 276-77 (1965),

The District Court denied interdistrict

relief and dismissed the surrounding

school districts. It ruled that Milliken

v. Bradley, 418 U.S. 717 (1974), prohi-

bited those districts' inclusion in a

remedy for Missouri's intentional segrega-

tion of_ white children into’ those

districts and black children into the

Kansas City District because the State and

not the surrounding districts caused the

segregation.

The United States Court of Appeals for

the Eighth Circuit sitting en banc

afcirmed by an evenly divided vote: Four

judges (Judge Gibson, joined by Judges

codified, Mo. Rev. Stat. §§ 162.563, 162.571).

But for this legislation, the Kansas City Dis-

trict automatically would have quadrupled in

size and become coterminous with the City of

Kansas City in 1970. All the respondent school

districts except Blue Springs and Fort Osage lie

wholly or partly within the City of Kansas City.

Three of the City's 13 school districts are not

part of this suit. See map, supra.

- 8 -

Ross, Fagg, and Wollman) voted to affirm.

Based on their reading of Fourth, Fifth,

and Sixth Circuit precedents, those judges

interpreted Milliken v. Bradley to imm-

nize governmentally spcocnsored racial

discrimination from constitutional cure so

long as the resulting segregation affects

school districts not themselves’ respon-

sible for causing it. P. 30, infra. Four

judges (Chief Judge Lay, joined by Judges

Heaney and McMillian, and Judge Arnold)

voted to reverse. Applying the rule of

the Third and Seventh Circuits, those

judges concluded that, if the State of

Missouri intentionally segregated black

children out of the surrounding districts

and into the Kansas City District, then

Brown and Milliken obligate the State to

cure that segregation whether or not the

surrounding districts helped create it.

Pp. 31-33, infra.

The inconclusive en banc’ judgment

below leaves the constitutional rights of

the plaintiff class in legal limbo and

36,000 plaintiff children in racially

segregated schools. It also leaves the

six judicial circuits that have addressed

the question in conflict and metropolitan

areas throughout the Nation in confusion

as to the dispositive legal standards

under Milliken. This petition presents

issues of sufficient public importance to

warrant the Court's plenary consideration.

II. The District Court's Interdistrict

Violation and Effect Findings

Trial of this case began in October

1983. In the middle of trial, the Court

granted the surrounding school districts'

motions to be dismissed under Fed. R. Civ.

- 10 -

P. 41(b) and denied interdistrict relief.

After trial, the District Court dismissed

HUD but ruled that the State of Missouri

and the Kansas City District were quilty

of intentional racial segregation with

effects in both the Kansas City District

and the school districts surrounding it.

The Court nonetheless denied interdistrict

relief.

Consistent with its’ interpretation

of Milliken v. Bradley, the District Court

separated its interdistrict violation/

effects findings into two sets. The first

set, announced during trial in the

District Court's unpublished June 1984

Order, considers the intentional viola-

tions of only the 11l respondent’ school

districts and the effects of those viola-

tions on only the Kansas City District.

274a. The second set of findings,

- li -

announced after trial in the District

Court's published September 1984 Decision,

considers the constitutional violations

committed by the State of Missouri, the

Kansas City District, and HUD and the

effects of those violations on both the

Kansas City District and the surrounding

districts. 518a.

Explaining why it dismissed the sur-

rounding school districts before reaching

a conclusion about the effects of the

violations committed by Missouri and the

other defendants, the District Court

stated that "“[t]he linchpin of an inter-

district case, as declared by the Supreme

Court, is whether there has been a

racially discriminatory act by each

district that substantially caused segre-

gation in another district." June_ 1984

Order, 285a (citing Milliken, supra). The

District Court accordingly held as a

- 12 -

matter of law that “({w]Jhether plaintiffs'

evidence [is] sufficient to sustain a

finding of liability against other actors

- « « is irrelevant to the instant motions

to dismiss filed by each SSD defendant."

The absence of complicity by the

surrounding districts in “the actions of

those responsible for shaping [segregated]

patterns," the District Court concluded,

"forbids a finding of liability against

the SSDs to remedy any racial imbalance

[within those districts] that may _ he

attributed to [the other] actors."3

A. The State's Violations and Their Effects

De Jure_ School Segregation. Below,

"[t]he State admitted and the [District]

Court judicially noticed that Missouri

—s

3jJune 1984 Order, 508a-09a. Accord, @.9-,

Trial Transcript (T) 24,561-62 (court's statement

the last day of trial explaining its previous

dismissal of the surrounding districts: "But I

- 13 -

mandated segregated schools for black and

white children before 1954." 530a. (Cit-

ations in this section are to the District

Court's September 1984 Decision, unless

noted. )

During the 90 years when Missouri law

mandated school segregation, the State's

black population was’ widely atesmuned

throughout tens of thousands of one-room

school districts. X 184, 208-12, 2322.

Instead of heeding those districts'

periodic requests to be allowed to educate

their black and white children together in

the limited facilities available, Missouri

enacted a series of statutes requiring

districts with small numbers’ of black

was bound by law, as I read it at the time, that

you cannot require an entity to be part of the

{[interdistrict] remedy unless you’ found a

constitutional violation on the part of that

entity").

- 14 -

children to transfer them at State expense

to neighboring districts that had

collected enough blacks to justify

constructing a separate school. KCMSD

Petition, 3-7 & nn. 8-18 (collecting sta-

tutes and record citations). The District

Court found that "“[e]Jach school district

in Missouri participated in this dual

school system before it was declared

unconstitutional in Brown I. Districts

with an insufficient number of blacks to

maintain the state-required separate

school made interdistrict arrangements to

educate those children." 53la-32a.

In 1900, 22 percent of the 7,000 black

public school students in the Kansas City

area lived outside the Kansas City

District and within 55 predecessors of 10

of the 11 "Reorganized" or "Consolidated"

respondent districts. Six of those

- 15 -

districts (Blue Springs, Center, Fort

Osage, Grandview, Hickman Mills, and

Raytown) never operated schools of any

sort for black children prior to Brown; a

seventh (Lee's Summit) closed its only

black school in 1910; an eighth and ninth

(North Kansas City and Park Hill) never

operated high schools for black children;

and all 11l lacked a high school for black

children at the time of Brown. By

contrast, the State required the Kansas

City District to operate a full complement

of segregated schools for black children

throughout the pre-Brown period, and those

schools received black children -- some-

times by the busload -- from at least

seven respondent school districts. June

1984 Order, 372a-476a; Opn. of Lay, C.J.,

2lla-l4a & n.9;3; xX 37-39, 49, 49B, 53E,

1830-40.

The District Court attributed two

effects to the state-mandated and state-

- 16 «

financed “interdistrict system of locating

dual schools." Opn. of Gibson, J., 49a.

First, the District Court found that black

families "“"fu]ndeniably" moved from the

respondent districts "to districts,

including the KCMSD, that provided black

schools."4

More importantly, the District Court

found that the interdistrict dual school

system diverted into the Kansas City

District and away from the surrounding

school districts “the great[] influx of

blacks" migrating to the Kansas City area

from southern and border states during the

two World Wars. 533a. Noting the impor-

tance of "[{e]conomic and job opportunities

» « »« in black migration," the court found

that "[o]ften jobs would pull migrants to

453la-32a. See Opn. of Lay, C.J., 247a-50a &

n.18. In 1900, the SSDs had 22% of the area's

7,000 black children; in 1954, they had 2.5%.

In 1900, the proportion of black students in the

o 19 =

the city and then availability of schools

would influence, more specifically, what

housing choices would be made within the

city."9

The District Court concluded that

"Missouri's legacy" of dual schools

""influence[d] the patterns of residential

development of [the] metropolitan area and

ha[d] important impact on composition

of inner city neighborhoods,'" and "that

segregated schools, a constitutional vio-

lation, has led to white flight from the

KCMSD to [the SSDs] .. . and that it has

caused a system-wide reduction in student

achievement in the schools of KCMSD."

surrounding districts was nearly identical to

that in the KCMSD (7% vs. 9%); by 1954, the SSDs'

proportion of blacks had dropped to 1%, while

KCMSD's had doubled. While losing 75% of their

black student population between 1900 and 1954,

the SSDs' white student population grew by nearly

300%. X 53K.

9534a. The District Court found that: "(T] here

is an inextricable connection between schools and

housing. ‘People gravitate toward school facili-

ties, just as schools are located in response to

@- 18 -

536a-37a (quoting Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S.

1, 20-21 (1971)); August 25, 1986 Order,

at 1-2. See September 1984 Decision,

555a.

De Jure Housing Discrimination. The

District Court listed a number of other

actions the State undertook before Brown

"which were discriminatory against

blacks," had “the effect of placing the

State's imprimatur on racial discrimina-

tion," and "hal[d] and continue[] to have a

the needs of the people.'" 537a (quoting Swann

v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1, 20-21 (1971)). "Before 1954, access to

schools was one of many reasons [in-migrating]

blacks chose to move into the KCMSL” rather than

the surrounding districts. 533a. “Regardless of

their motivation for coming, once here, blacks

settled in the inner city or, the ‘principle

black contiquous areas'" where the region's only

"seqregated facilites with segregated staffs"

were located. 535a, 542a. "This inmigration

coupled with a hiah birth rate resulted in the

Kansas City black population doubling fran 41,574

in 1940 to 83,740 in 1960." 533a.

- 19 «

significant effect on the dual housing

market in the Kansas City area." Id.,

60la-02a (emphasis added). The Court

found, for example, that: 1. Until 1953,

the State's "mass enforcement" of racially

restrictive covenants prevented blacks

from moving into neighborhoods in all but

one of the 11 surrounding districts and

caused the Federal Housing Administration

(FHA) until 1959 to withhold financing

from housing developments in those

districts with “incompatible” “racial”

and "social" groups. 2. Between 1953 and

1973, the State's Land Clearance for

Redevelopment Agency, with HUD funding,

"practiced discrimination in relocating

[13,000 households] displaced by urban

renewal, steering blacks to southeastern

Kansas City [served by the Kansas City

District] and relocating whites throughout

- 20 -

the [13 school districts in the] city.”

3. The State's Housing Authority of

Kansas City, also with HUD funding,

“explicitly segregated its housing units

until 1958, . . . may have continued seg-

regative practices until 1964," and was

found by HUD in 1976 to have violated

Title VI of the 1964 Civil Rights Act for

the preceding eight years by not placing

white families in the projects it pre-

viously had reserved "for Negro families”

and black families in the projects it pre-

viously had reserved "for whites."®

The Court determined that the State~

sponsored “dual housing market, which

still exists to a large degree today,

impacted blacks in the KCMSD and con-

sequently caused the public schools to

swell in black enrollment.” 536a-37a.

6536a (citing T 12,974-75), 567-72a, 577a; Opn.

of Arnold, J., 158a-65a; X 22, 3531. See X 27F

(20,000 units of public and subsidized housing in

Kansas City area). Finding that the State's

» 21 «

"The intensity of segregation is demon-

strated by the fact that the average black

family [in the KCMSD] lives in a census

enforcement of racial covenants affected econamic

“realities,” the District Court concluded that

"FHA did not act arbitrarily [Jor capriciously in

giving [those] covenants consideration" in admin-

istering its housing subsidy and accordingly

that the agency is not constitutionally liable

for its explicitly racial policies of the 1930s,

1940s and 1950s. 566a, 569a. Four of the eight

judges below voted to reverse the District Court

on this point. Opn. of Lay, C.J., 216a-19a; Opn.

of Arnold, J., 163a n.10. The District Court and

Judge Gibson also excused HUD for knowingly

funding the State's discriminatory relocation and

public housing policies in the 1940s-1960s

because (i) HUD-funded housing is located

throughout the Kansas City area and (ii) HUD took

steps in the mid-1970s_ to end those discrimina-

tory policies. 573a-78a. Judge Arnold comments:

"Both of these points involve a misapprehension

of the plaintiffs’ claims: As to the first, the

claim is not that unbalanced housing site selec-

tion... caused interdistrict segregation, but

instead that once the projects were built, HAKC

explicitly segregated them, or later, steered

whites to some projects and blacks to others. As

to the second, the plaintiffs’ camplaint is not

primarily about HAKC and LCRA activities in the

1970s; LCRA practiced discrimination fram 1953 to

1973, and the plaintiffs contend that HAKC segre-

gated its housing units fran its inception in

1939 a he Pa Opn. of Arnold, Je, 173a-74a.

Accord, Lay, C.J., 21l6a-19a.

o 22 «

tract that is 85% black while the average

white family [in the SSDs] lives in a cen-

sus tract that is 99% white." 535a (citing

T 14,739, 14,745).

Affirmative Duty Violations. Measur-

ing the State's post-1954 conduct by its

""effectiveness, not [its] purpose'" in

""decreasing or increasing the segregation

caused by the dual system,'" the District

Court found that “the State as a collec-

tive entity . . . failfed] to affirma-

tively act to eliminate the structure and

effects of its past dual system." 605a,

6lla (quoting Dayton Board of Education

v. Brinkman, 443 U.S. 526, 538 (1979)).

In particular, the District Court cited

the General Assembly's failure to enact

legislation to “abolish or create school

districts” or, if “necessary .. . change

them" in a desegregative manner. 607a-

- 23-

08a. Prominent among the State's post-

1954 defaults in this regard was its

enactment in 1957 of H.B. 171, dis-

cussed at p. 6, supra. See also June

1984 Order, 316a-52a (other post-1954

segregative actions).

B. Findings As To The 11 Surrounding

Districts

In keeping with its interpretation of

Milliken, the District Court in its June

1984 findings held the surrounding

districts responsible only for’ these

aspects of Missouri's interdistrict dual

system for which the districts, and not

the State, had primary responsibility.

Sifting the evidence, the Court held the

surrounding districts responsible only for

the modestly “blackening” effect on the

Kansas City District of blacks moving from

the surrounding districts and not for the

- 24 -

nearly complete “whitening” effect on

the surrounding districts themse'ves (see

note 4, supra), or for the dual system's

diversion of thousands of in-migrating

blacks exclusively into the Kansas City

District. The Court concluded that the

effects it did attribute to the surround-

ing districts were “de minim{iJs."/7

The District Court next found the

surrounding districts innocent of any

housing violations and refused as a matter

of law "to find the SSDs liable for racial

imbalance” in their districts “that may be

attributed to policies or practices of

[state] housing actors." 370a-7la. The

Court likewise refused to consider the ef-

fects in those districts of the State's

7*(Pjlaintiffs had to prove first that the

segregated schools existing before 1954 were the

direct and substantial cause of blacks leavi

each defendant district; second, assuming

occurred, that it had a significant pace dics

effect in the KCMSD. Plaintiffs' proof was

weak, speculative and in any event de minim[i]s."

30la (emphasis added; citations omitted). Accord,

- 25 -

post-1954 affirmative-duty violations. 8

Having ruled irrelevant to the sur-

rounding districts and to plaintiffs'

interdistrict claims (i) the major segre-

qative consequences of the State's

pre-1954 interdistrict dual school system,

(ii) all the multidistrict effects of the

State's and other parties' area-wide

housing violations, and (iii) the City-

wide effects of the State's post-1954

Opn. of Gibson, J., 49a. Applying a different

interpretation of Milliken, Chief Judge Lay

took a wider view of the surrounding districts’

role in the interdistrict system: "(U]nder the

pre-1954 dual school system the SSDs exercised

their discretion, granted them by the state,

either to provide schools for black students

which offered at best a substandard education or

to decline to provide any schools at all.

Instead, the SSDs transferred black students to

the KCMSD. .. . Not only did the SSDs thus

create segregated conditions in their individual

districts by emtying their districts of all

black school children, but they set historical

precedent for interdistrict transfer of students

on the basis of race in the Kansas City metro-

politan area.” 225a-26a.

8September 1984 Decision, 605a-08a. The

District Court found that, by 1960, each SSD had

“dismantl[ed) [its] dual system" by "sending its

= 26 -

freezing of the Kansas City District's

boundaries, the District Court held that

students to school without regard to race." 503a.

(As of 1954, the 11 surrounding school districts

had about 200 black children left, to te

integrated with 20,000 white children. X

53.) Based on this “unitariness" finding, the

District Court exonerated the SSDs of any liabi-

lity for the various actions it found those

districts took after 1954 without segregative

intent but with massive segregative effects.

316a-52a. In particular, while successfully sup-

porting passage of H.B. 171 and other legislation

making it virtually impossible for the Kansas

City District to annex the predominantly white

areas surrounding it, the SSDs actively and suc-

cessfully opposed four legislative proposals for

desegregative school-district reorganization; at

least seven plans for’ integrative student

exchanges, including two by the United States

Civil Rights Commission (in 1977 and 1981) and

two by the Kansas City District (in 1969 and

1975); and three proposals to increase minority

and government-subsidized housing opportunites in

their jurisdictions. 31l6a-52a, 37la-72a, 377a,

38la, 389a, 398a-99a, 409a, 46la, 489a-90a.

Likewise, in 1974, the SSDs in the City of Kansas

City would not accept proceeds froma citywide

1/2-cent sales tax for education until the City

Assessor assured one of them in writing that, by

taking the money, they were not committed to par-

ticipating in desegregative interdistrict trans-

fers between themselves (at the time 1% black)

and the Kansas City District (at the time 58%

black). 318a-20a. See X 53G, 1763, 1766. Four

judges dissented fram the District Court's

handling of these issues. Opn. of Lay, C.J.,

256a-58a; Opn. of Arnold, J., 165a—-66a.

- 27 -

the current effects of the few violations

it did consider were "legally insufficient

to justify the relief sought against the

suburban school district defendants."

499a. So, too, having concluded that SSD

innocence precluded interdistrict relief,

the District Court expressly refused to

consider the "cumulative" interdistrict

effects of the other parties' violations.

498-99a. See Opn. of Arnold, J., 146

n.l, 157a-58a, 164a.

III. Post-Trial Proceedings

The District Court refused to include

the surrounding districts in a remedy for

the explicitly interdistrict violation and

effects it found because, in its view, the

State's violations gave the Court "no

power to restructure the operation of [the

dismissed surrounding districts] absent a

- 28 -

constitutional violation by those enti-

ties." September 1984 Decision, 608a.

Having barred interdistrict desegre-

gation relief, the District Court also

ruled out mandatory intradistrict desegre-

gation measures, fearing that reassignment

of students within the Kansas City

District would cause its few remaining

white students to flee. Instead, the

District Court ordered the State in June

1985 to pay all the tuition and transpor-

tation costs of any KCMSD black child who

wished to transfer to a school in any of

the surrounding school districts’ that

voluntarily agreed to accept black trans-

fers from the KCMSD. Jenkins v. Missouri,

639 F. Supp. 19, 35-39 (W.D. Mo. 1985).

In the 22 months since the District

Court issued its June 1985 voluntary-

interdistrict-transfer proposal, nearly

~ 23 =

ten thousand black parents in the Kansas

City District have expressed interest in

having their children transfer to schools

in the respondent school districts, -and

plaintiffs and the Kansas City District

have announced their willingness to drop

the litigation if those districts would

agree to accept some of those black

children. Nonetheless, each of the 11

respondent districts on four’ separate

occasions during that 22-month period has

formally refused to accept black KCMSD

children into any of its underutilized

schools.?

On December “5, 1986, the United

9E.gee 639 F. Supp. at 51. The District Court

also ordered the State and the Kansas City

District to undertake a number of compensatory

education programs within the Kansas City

District designed to alleviate the harmful educa-

tional effects of prior discrimination. Id. at

26-35-

« 3 =

States Court of Appeals for the Eighth

Circuit, which heard the appeal en banc,

affirmed the District Court's denial of

interdistrict relief by an equally divided

court. Relying on decisions of the

Fourth, Fifth, and Sixth Circuits, Judge

Gibson “'decline[d],'" to accept "“‘the

argument that a school board otherwise

innocent of segregative intent is liable

[to participate in remedying] the discrim-

inatory . . . practices of other govern-

mental agencies. '"10 Affirming the

District Court's interpretation of

Milliken, Judge Gibson cited only the

District Court's June 1984 findings on the

SSDs' conduct and not the September 1984

findings on the effects in those districts

of the State's violations.

Judge Arnold dissented in part.

109pn. of Gibson, J., 67a (quoting Bell v.

Board of Education, 683 F.2d 963, 968 (6th Cir.

1982)). See, e.g., id. 26a (interdistrict relief

is a "'wholly impermissible remedy'" for "'‘out-

— ae

"{Tlak[ing] as established" the contrary

rule of the Third and Seventh Circuits

“that a school district can he made to

participate in an _ interdistrict remedy

even if it is not ‘'personally' guilty of

violating the Constitution, that such

relief is appropriate where a State's

constitutional violations have contributed

to interdistrict segregation, . . . and

that there is nothinq urique or peculiar

about [State] housing agencies that would

take them out of this rule," Judge Arnold

lying districts not shown to have committed any

constitutional violations'"); 100-04. "Limit[ing]

to its facts" contrary en banc precedent of the

Eighth Circuit, Judge Gibson concluded that,

while “imposition of an interdistrict remedy «mn

the innocent SSDs" may be appropriate when the

State was guilty of “racial gerrymandering" of

the sort that leaves black and white families

where they are and draws boundary lines between

them, interdistrict relief is not appropriate if

the State, but not the SSDs, left existing bound-

ary lines where they were and caused black and

white families to relocate on opposite sides of

the lines. 69a-72a n.19 (distinguishing Mor-

rilton School District No. 32 v. United States,

606 F.2d 222 (8th Cir. 1979) (en banc)). But see

Opn. of Lay, C.J., 203a-04a; Opn. of Arnold, J.,

153a-55a & n.5.

» 32 «=

concluded that "the case should be

remanded to the District Court to deter-

mine precisely what current interdistrict

segregative effects may be attributed to

housing discrimination by the State” and

to devise "a remedy including each

affected SSD:”"

{[I]n accord with the equitable

principles that govern such

remedies, Milliken, 418 U.S. at

737-38, the role that may be

assigned to each SSD may be

limited by the fact that the SSD

is not itself a constitutional

violator. oe ee On the other

hand, it seems clear that

affected SSDs could be required

to participate in an_ inter-

district transfer program

designed to make the racial com-

position of the districts'

schools what it would have been

absent official . . . discrimi-

nation.

Chief Judge Lay for himself and

Judges Heaney and McMillian agreed with

Judge Arnold “that school districts which

were not themselves found to be con-

- 33-

Sstitutional violators nevertheless [may] be

included in interdistrict relief where the

effects of the unconstitutional actions of

» « « the state were felt in those school

districts." 198a. Voting to remand,

Chief Judge Lay concluded that "the dis-

trict court's own factual findings with

regard to the constitutional violations of

the state and KCMSD, especially with

regard to the _ significant link between

housing patterns and school availability

in the Kansas City metropolitan area,

stronaly suggest that the plaintiffs are

entitled to an interdistrict remedy." 269a.

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO

RESOLVE CONFLICTS THAT HAVE ARISEN

OVER WHETHER MILLIKEN v. BRADLEY PER-

MITS STATE OFFICIALS DELIBERATELY TO

SEGREGATE A SINGLE CITY'S CHILDREN

INTO SEPARATE SCHOOL DISTRICTS sO

LONG AS THE STATE AND NOT THE SUR-

ROUNDING WHITE DISTRICTS IS TO BLAME

FOR THAT SEGREGATION

= a

A. The Court Should Grant Certiorari

to Resolve the Conflict Between

the Judgment Below and its Deci-

sion in Milliken v. Bradley

In Milliken v. Rradley, 418 U.S. 717

(1974), the Court declared that “no state

law is above the Constitution. School

district lines and the present laws with

respect to local control are not sacro-

Sanct and if they conflict with’ the

Fourteenth Amendment federal courts have a

duty to prescribe appropriate remedies."

Id. at 744. Based on this principle and

the rule that the scope of the remedy is

determined by the nature and extent of the

constitutional violation, the Court

established the following quidelines for

interdistrict relief:

Before the boundaries of sepa-

rate and autonomous school dis-

tricts may be set aside .. . by

imposing a cross-district

remeuy, it must first be shown

» 38 «

that there has been a constitu-

tional violation within one

district that produces a signi-

ficant segreqative 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

interdistrict seqregation.

Id. at 744-45 (emphasis added). The Court

emphasized that plaintiff school children

may satisfy this standard by "showing that

either the State or any of the .. .

outlying districts engaqed in activity

that had a cross-district effect." Id. at

748 (emphasis added). The Milliken

majority thereupon denied relief because

the record before the Court contained

"evidence of de jure segregated conditions

only in the Detroit schools" "“and not

elsewhere, and on this record the remedy

must by limited to that system." Id. at

745, 746 (emphasis added).

» =

Joining the five-person majority,

Justice Stewart wrote separately "to state

briefly [his] understanding of what... .

the Court decides today.” Id. at 753

(Stewart, J., concurring). Agreeing that

interdistrict relief in the Detroit area

was inappropriate because the violations

"occurred . . . within a single school

district whose lines were coterminous with

those of the city of Detroit,” id.,

Justice Stewart nonethless declared that

an interdistrict remedy “would . . . be

proper, or even necessary,” if it were

"shown, for example, that state officials

had contributed to the separation of the

races by drawing or redrawing’- school

district lines; by transfer of school

units between districts; or by purposeful,

racially discriminatory use of state

«a 29

housing or zoning laws... ."1l

The judgments of both courts below

warrant certiorari because they so

directly conflict with this Court's own

teachings in Milliken: Whereas Milliken

authorizes interdistrict remedies whenever

"discriminatory acts of the state or local

school districts . . . cause . .. inter-

district segregation," id. at 745 (major-

ity opinion) (emphasis added), the

District Court and Judge Gibson below

"rejected plaintiffs' . . . argument which

would have held the SSDs_ liable and

incorporated them in an interdistrict

1114. at 755 (emphasis added; citations

omitted). In 1975, this Court summarily affirmed

the decision of a 3-judge court ordering inter-

district relief premised explicitly on (i) hous-

ing as well as school, and (ii) people-moving as

well as line-drawing, violations by the State of

Delaware and (iii) including in the

districts that the district court explicitly had

determined were both innocent and "unitary."

Evans v. Buchanan, 393 F. Supp. 428, 432, 433-38

(D. Del.) (2-judge court) (emphasis added),

aff'd, 423 U.S. 963 (1975).

«o 26 «

remedy on the basis" of “wrongs committed

by . . »« the state” and held that inter-

district relief is available only if there

has been “a racially discriminatory act

by each defendant" district. June 1984

Order, 497a, 285a (emphasis added). See

Opn. of Gibson, J., 63a-64a, 67a.

Whereas Justice Stewart, casting the

deciding vote in Milliken, concluded that

an interdistrict remedy would “be proper,

or even necessary, .«. . . [wlere it to be

shown, for example, that state officials

had contributed to the separation of the

races by .. . racially discriminatory use

of state housing or zoning laws," id. at

755 (Stewart, Jee concurring), the

District Court and four members of the

court below flatly refused to “find the

SSDs liable for [inclusion in a _ remedy

for] racial imbalance that may be attri-

buted to policies or practices of inde-

- 39 -

pendent housing actors." June 1984 Order,

37la. Accord, e.g-, id., 508a-09a; Opn.

of Gibson, J., 67a.

Certiorari is appropriate "[w]hen. .

- a federal court of appeals ... has

decided a federal question in a way in

conflict with applicable decisions of

this Court.* S. Ct. R. 17.1(c). This is

such a case.

B. The Court Should Grant Certiorari

to Resolve the Conflict Among the

Third, Fourth, Fifth, Sixth, and

Seventh Circuits Over the Proper

Interpretation of Milliken

Applying the standards set out in

Milliken, two circuit courts of appeais

and a district court in another circuit

have concluded that the Fourteenth

Amendment authorizes interdistrict reme-

dies when the State intentionally causes

multidistrict segregation, notwithstanding

the lack of complicity in the violation by

school districts included in the remedy.

The Third Circuit twice has'7 held that

rr,

- 40 -

interdistrict relief is required "[w]here

the State has contributed to the separa-

tion of races" and that "exclusion of the

suburban districts [from the remedy] can-

not be predicated on their own purported

innocence."12 The Third Circuit has

expressly applied this rule to predicate

interdistrict relief (i) on housing as

well as school segregation violations,

(ii) on violations of a people-moving, as

well as a line-drawing, sort, and (iii) as

a basis for consolidating out of existence

Surrounding districts that the district

court not only found “innocent” of the

interdistrict violation but also had pre-

12Ryans v. Buchanan, 416 F. Supp. 328, 340 (D.

Del. 1976), aff'd,.555 F.2d 373 (3d Cir. 1977)

(en banc). Accord, Hoots v. Commonwealth, 672

F.2d 1107, 1121 n.13 (3d Cir. 1982) ("[t]he

district court also properly held that the State

and County Boards violated the constitution...

and so all surrounding districts can be impli-

cated in a_ remedy, despite their alleged lack of

involvement in the process").

viously adjudicated "“unitary."13

Likewise, the Seventh Circuit twice

has upheld interdistrict remedies based on

the rule that:

The suburban school officials

may not maintain that’ their

districts should be’ excluded

from any interdistrict remedy if

they are found innocent of com-

mitting any constitutional

violations because they should

not be held responsible for the

acts of the state legislators or

other state subdivisions such as

a local housing authority or a

zoning board. .. . Thus, if

state discriminatory housing

Practices have a_- substantial

interdistrict effect, it is

appropriate to require school

authorities to remedy the

effects even though they did not

l3Eyans v. Buchanan, 582 F.2d 750, 762-63

nell (3d Cir. 1978) (en banc) (affirming inter-

district relief based upon "eight separate inter-

district violations," four of which involved

housing actions and seven of which involved

governmental actions that left existing school

district boundary lines intact and caused blacks

and whites to relocate on apposite sides of those

lines (emphasis in original)); Evans v. Buchanan,

416 F. Supp. 328, 339 (D. Del. 1976), aff'd, 555

F.2d 373 (3d Cir. 1977) (en banc) (surrounding

districts may be included in an interdistrict

o £23 «

themselves cause this aspect of

school segregation.

The views of the four judges who con-

curred in the judgment below and_ the

District Court opinion they affirmed

directly conflict with these holdings of

the Third and Seventh Circuits. That

conflict, in turn, divides those judges

from their numerically equal dissenting

collegues, who voted to apply the law of

the Third and Seventh Circuits) and to

reverse.

remedy even though "each" is “at present opera-

ting a unitary system," if "the State . .. acted

in a [discriminatory] fashion which is a substan-

tial and proximate cause of the existing dispar-

ity in racial enrollments in [those] districts").

Accord, United States v. Scotland Neck Board of

Education, 407 U.S. 484, 490 (1972) ("desegrega-

tion is not achieved by... two. . . systems,

each operating unitary schools within its border,

where one of the two systems is, in fact, ‘white'

and the other is, in fact, ‘Negro'").

l4united States v. Board of School Commissioners

of the City of Indianapolis, 573 F.2d 400, 410

(7th Cir. 1978). Accord, United States v.

Board of School Commissioners, 637 F.2d 1101,

» 43 «

Also in conflict with the Third and

Seventh Circuit holdings are the views

ascribed to the Fourth, Fifth, and Sixth

Circuit by the lead opinion below. For

example, Judge Gibson quoted the Sixth

Circuit's statement that:

"We do not find any case

addressing the argument that a

school board otherwise innocent

of segregative intent is liable

for the discriminatory housing

practices of other governmental

agencies. We decline to accept

this argument."

Judge Gibson also relied on decisions

1109-11, 1115 (7th Cir. 1980) ("the power to

order students fram [the suburban] districts to

transfer to [Indianapolis] schools ... de-

pends not on the culpability, or lack thereof,

of the suburban districts involved but rather on

the finding that discriminatory actions by the

state had a significant segregative impact across

district lines" (emphasis added)). A district

court in the Sixth Circuit recently adopted the

Third and Seventh Circuit views with regard to

school violations. Bronson v. Board of Educa-

tion, 578 F. Supp. 1091, 1098-99 (S.D. Ohio

1984). The Sixth Circuit's approach to housing-

violation cases is discussed infra.

150pn. of Gibson, J., 67a (quoting Bell v.

« 6 =

of the Fourth Circuit. 62a, 10la. That

Board of Education, 683 F.2d 963, 968 (6th Cir.

1982)). Accord, Bronson v. Board of Education,

578 F. Supp. 1091, 1104-05 (S.D. Ohio 1984)

("absent a showing of a nexus between the conduct

of any of the named (suburban school district]

Defendants and the acts of housing authorities or

other government. . . agencies’ responsible

for shaping the residential patterns in their

districts . . ., these named Defendants herein

cannot be held liable for, or be responsible for

remedying, any racial imbalance that may be

attributed to the practices and policies of these

independent actors and agencies” (emphasis in

original)).

In conflict with Bell and Bronson are the

following Second, Sixth and Ninth Circuit deci-

sions premising intradistrict school desegrega-

tion relief on housing violations: Oliver v.

Kalamazoo Board of Education, 640 F.2d 782, 785

(6th Cir. 1980) (racially restrictive coven-

ants); Hart v. Cammunity School Board, 512 F.2d

37 (2d Cir. 1975) (aff'g 383 F. Supp. 699, 747-

54 (E.D.N.Y. 1974)) (public housing, urban renew-

al, relocation, and subsidized housing)); Ybarra

v. City of San Jose, 503 F.2d 1041 (9th Cir.

1974) (zoning and building permit policies);

United States v. Yonkers Board of Education, 624

F. Supp. 1276, 1289-376, 1531-45 (S.D.N.Y. 1985)

(appeal pending) (public housing, subs idized

housing, urban planning). See Swann, supra, 402

U.S. at 23 (reserving question “whether a showing

that school segregation is a consequence of other

types of state action, without any discrimina-

tory action by the school authorities, is a con-

stitutional violation requiring remedial action

by a school desegregation decree"). See generally

» 46 «

Circuit's Richmond decision, in denying

interdistrict school desegregation relief

premised on housing discrimination, states:

"That there has been [official] housing

discrimination in all three [school

district] units is deplorable, but a

school case, like a vehicle, can carry

only a limited amount of baggage."

Bradley v. School Board, 462 F.2d 1058,

1066 (4th Cir. 1972) (en banc), aff'd

without opinion by an _ equally divided

Court, 412 U.S. 92 (1973). More recently,

the Fourth Circuit denied interdistrict

relief premised on both school and housing

allegations, because "lajn independent

school district which has not’ caused

segregation in a neighboring independent

district has no duty to rectify a racial

Note, Housing Discrimination as a _ Basis for

Interdistrict School Desegregation Relief, 93

Yale L.J. 340 (1983).

- 46 -

imbalance in the other district."!®

Certiorari is appropriate “[w]lhen a

federal court of appeals has rendered a

decision in conflict with the decision of

another federal court of appeals on the

Same matter ... .” S. Ct. R. 17.1(a).

The judgment below rests on a dispositive

interpretation of Milliken that directly

conflicts with the clear rule of the Third

and Seventh Circuits. The controlling

legal issue in this case also has sundered

16Go1dsboro City Board of Education v. Wayne

County Board of Education, 745 F.2d 324, 328, 332

n.l5 (4th Cir. 1984). Judge Gibson also relied

on Fifth Circuit decisions 100a. The rule of

that Circuit is unclear. Compare Taylor v.

Ouachita Parish School Board, 648 F.2d 959, 969

5th Cir. 1981) (dicta) ("should interdistrict

effect alone transform otherwise intradistrict

unconstitutional] action into an interdistrict

violation, then the Milliken insistence -+that

‘without an interdistrict violation and inter-

district effect, there is no constitutional wrong

Célling for an interdistrict remedy," .. . con-

tains a redundancy"), with United States v.

Texas, 321 F. Supp. 1043, 1052 (E.D. Tex. 1970),

aff'd, 447 F.2d 441 (1971), cited approvingly in

a ee

oe @)-«

the law of the Third and Seventh Circuits

from that of the Fourth and (in housing-

violation cases) the Sixth Circuits,

divided panels of the Fifth Circuit, and

left the rule of the Eighth Circuit and

the rights of the Plaintiff school

children hanging in the halance of an

evenly divided en banc court. That the

proper interpretation of this Court's

decision in Milliken has been the source

of so much “controversy .. . ever since"

reveals that the time has come for the

Court to settle the question once and for

all. Continental T.V., fne. Vv. GTE

Sylvania, Inc., 433 U.S. 36, 47 (1977);

Afroyim v. Rusk, 387 U.S. 253, 255-56

(1976).

Milliken, supra, 418 .S. at 744 (ordering inter-

district relief encompassing districts not guilty

of any violation because "the State of Texas ..

- created, and .. . narticipated in the oon-

tinued support" of those districts as racially

identifiable “administrative units").

Pitre

» 49 «

II. The Court Should Grant Certiorari to

Resolve the Conflict Between the

Judgment Below and the Third and

Other Circuits Over Whether’ the

Affirmative Constitutional Duty to

Dismantle the Effects of Privur De

Jure Segregation Applies in Inter-

district Cases

In Dayton Board of Education ov.

Brinkman, 443 U.S. 526 (1979) (Dayton ITI)

and predecessor intradistrict decisions,

this Court held that the intentional seq-

regqation of schools in 1954 places’ the

offending parties "under a continuing

duty" thereafter "to eradicate the effects

of that system," and that the systemwide

nature of the violation furnishes prima

facie proof that current segregation was

caused at least in part by prior inten-

tionally segregative official acts. Id.

at 537 (citing Keyes v. School Dist. No.

1, 413 U.S. 189, 211 (1973); Swann, supra,

402 U.S. at 26). Part of the affirmative

duty imposed by the Court's decisions “is

the obligation not to take any action

o 46 «

that would impede the process of disestab-

lishing the dual system and its effects."

Dayton II, supra, 443 U.S. at 538 (empha-

sis added) (citing Wright v. Council of

City of Emporia, 407 U.S. 451 (1972)).

Under Dayton II, the measure of a

prior segreqator's post-1954 compliance

with this duty “is the effectiveness, not

the purpose of the actions in decreasing

or increasing the segregation caused by

the dual system." 443 U.S. at 538

(emphasis added). Each instance of a

failure or refusal to fulfill this affir-

mative duty “continues the violation of

the Fourteenth Amendment," and the effects

of each such “continuing” violation count

as much in determining the scope of the

necessary remedy as the effects of the

earlier intentionally discriminatory

violation. Columbus Board of Education

= §0 -

v. Penick, 443 U.S. 449, 459 (1979).17

l?the outcome in Dayton II turned precisely on

this last-mentioned “rule of addition" ~- i.e.,

on the need to sum the continuing segregative

consequences of both the intent-measured original

violation and the effects-measured “campounding"”

violations in order to determine the proper scope

of the remedy. Dayton II, supra, 443 U.S. at

538-41. The district court in Dayton II had

denied systemwide relief because the plaintiffs

had not shown that the Dayton Board's intentional

violations had continuing systemwide “incremental

segregative effects." See id. at 540-42 (dis-

cussing Dayton Board of Education v. Brinkman,

433 U.S. 6 ( ), and Brinkman v. Gilligan,

446 F. Supp. 1232 (S.D. Ohio 1977)). Without

disturbing the district court's conclusion, the

Dayton II majority upheld the Sixth Circuit's

grant of systemwide relief because the Board's

post-Brown actions, though not _ intentionally

segreqative, violated the Board's affirmative

duty and undeniably had systemwide effects: "The

Court of Appeals was... quite justified in

utilizing the Board's total failure to fulfill

its affirmative duty -- and indeed its conduct

resulting in increased segregation -- to trace

the current, systemwide segregation back to the

purposefully dual system of the 1950's. . .

." Dayton II, supra, 443 U.S. at 541-42 (citing

Columbus, supra, 443 U.S. at 464-65; Keyes, supra,

413 U.S. at ; Swann, supra, 443 U.S. at a

26-27). In concluding that the Board's conduct

required systemwide relief, the Court summed the

indeterminate effects of ome intentional viola-

tion (a pre-1954 dual system) with the

"systemwide" effects of five nonintent ional

violations (the post-1954 failure to dismantle

prior segregative effects; student assignment

practices; optional attendance zones; school

construction and site selection; and qrade struc-

e $1 «

In determining the scope of the

State's responsibility for funding the

single-district educational-enhancement

remedy within the Kansas City District,

the District Court applied the above prin-

ciples of law and made the following fin-

dings: l. Missouri administered a de

ure "pre-Brown interdistrict system of

locating dual schools" (Opn. of Gibson,

J., 49a) and engaged in a series of

“actions . . . discriminatory against

blacks” that “continues to have a signifi-

cant effect on the dual housing market in

the Kansas City area." September 1984

Decision, 53la-32a, 60la-02a. 2. The

area's segreqation into one black district

Surrounded by eleven white districts has

persistec ever since. See p. 4, supra.

ture and organization). Payton II, supra, 443

U.S. at 537-41 (quoting 583 F.2d at 258 and

discussing Brinkman v. Gilligan, supra)). Then-

Justice Rehnouist dissented on just this point.

Nayton II, supra, 443 U.S. at 493, 502-04.

- 52 -

3. “State [officials] . . . had and con-

tinue to have the constitutional obliga-

tion to affirmatively dismantle any system

of de jure segregation, root and branch. .

. + This case is before this court simply

because [State officials] have defaulted

in their obligation . .. ." September

1984 Decision, 6lla.

Chief among the State's post-1954

defaults was its enactment in 1957 of H.B.

171, which exempted Kansas City from the

city-district coterminousness rule applied

elsewhere in the State and allowed the

City of Kansas City to quadruple in size

and remain 73 percent white while the

School District of Kansas City remained

virtually static in size and became 74

percent minority. 1/8 Although concluding

18see p. 6, supra. Although the discussion

here focuses on H.B. 171, it applies as well to

the other post-1954 seqregative actions of the

State, SSDs, KCMSD, and HUD. See pp. 22, 24-26

& nn.7, 8, supra; September 1984 Decision,

542a-56a.

~—Ss «

that H.B. 171 and the State's other segre-

gative line-drawing activities after Brown

were not undertaken "with the intent to

concentrate black students within’ the

KCMSD," June 1984 Order, 334a-45a, the

District Court relied on them nonetheless

in requiring the State to fund a single-

district remedy because, under Dayton II:

"the measure of the post-Brown I

conduct of a school board under

an unsatisfied duty to liquidate

a dual school system is’ the

effectiveness, not the purpose,

of the actions in decreasing or

increasing the segregation

caused by the dual system."

September 1984 Decision, 605a (quoting

Dayton II, supra, 443 U.S. at 538).

The District Court and Judge Gibson

thus relied upon H.B. 171 and other

defaults to require Missouri to. fund

Single-district relief for the blacks the

State unconstitutionally segregated into

the Kansas City District. But both courts

refused to rely upon those same undeniably

- 54 -

interdistrict defaults to require multi-

district relief for those same _ black

children and for the white children the

State segregated into the rest of the

City. Adopting the Fifth Circuit's view,

both courts below concluded that

""Milliken, unlike Swann and Keyes_ vy.

School Dist. No. 1, 413 U.S. 189 (1973),

does not sanction .. . an inference that

the continued existence of one-race

schools in a system that formerly prac-

ticed de jure segregation is a vestige of

such segregation'" and accordingly does

not impose an affirmative duty to disman-

tle the effects of de jure interdistrict

segregation. 19

Both opinions hold, therefore, that

H.B. 171's undeniably continuing and city-

wide effects are irrelevant absent a fresh

1995n. of Gibson, J. 22a, 55a (quoting Lee v.

Lee County Board of Education, 639 F. 2d 1243,

1254 (5th Cir. 1981)); June 1984 Order, 285a,

339a, 510a. Contrary to the Fifth Circuit view

- 55 -

intent to discriminate; and boch opinions

deny relief on the otherwise inapplicable

grounds (i) that the continuing effects

considered are "insufficient" and (ii)

that this is a people-moving, not a line-

drawing, case. See pp. 27, 30-31 n.10,

Supra.

The above conclusion and the Fifth

Circuit language on which it relies con-

flict with this Court's holdings in the

Swann - Keyes - Dayton II line of intra-

district decisions discussed above. They

also conflict with this Court's and the

Third Circuit's affirmances of inter-

district relief in the Wilmington case.

In Wilmington, the pre-1954 de jure

quoted above, Milliken does not reject the propo-

sition that (1) an interdistrict violation in the

past, coupled with (2) continuing interdistrict

segregation thereafter, triggers an onqoing

affirmative duty to dismantle that interdistrict

segregation. Milliken simply holds that when the

first of the two triggering conditions is absent

-- because no interdistrict violation is present

-- no interdistrict affirmative duty arises.

Milliken, supra, 418 U.S. at 744-45. See id. at

741 n.19. ro wry

- 56 -

violation had the same two components as

Missouri's pre-Brown violations in the

present case: (1) a pre-1954 inter-

district system of locating schools pur-

suant to which "the only high school in

the County that accepted black students

waS . .- .». in Wilmington;" and (2) the

State's invidious “assistance, encourage-

ment, and authorization" of housing

discrimination via enforcement of racially

restrictive covenants, FHA practices, and

public housing policies. 29

The third major component of the

Wilmington violation is also familiar to

the present case -- i.e., the State's

exclusion of the central city district

20Evans v. Buchanan, 393 F. Supp. 428, 433-35

(D. Del.) (3-judge court), aff'd, 423 U.S. 963

(1975). See also Evans v. Buchanan, 582 _ F.2d

750, 762-63 (3d Cir. 1978) (en banc); Evans v.

Buchanan, 416 F.2d 328, 341, 343 (D. Del. 1976),

aff'd, 555 F.2d 373 (3d Cir. 1977) (en banc).

The identical violations in the present case are

discussed at p. 12-22, supra.

- 57 -

from post-Brown legislation that otherwise

could have led to the consolidation of

that predominantly black district with the

predominantly white districts surrounding

a. Although the Wilmington trial court

explicitly found that this post-Brown leg-

islation was "not . . . purposefully...

discriminatory," that Court -- in decisions

affirmed summarily by this Court and twice

by the Third Circuit en banc -- relied

heavily on the legislation's post-Brown

boundary- and segregation- preserving

effects as a basis for’ interdistrict

relief. The Wilmington courts did _ so

because "[a]t the time the [legislation]

was enacted, the State Board had not yet

satisfied its obligation to eliminate the

vestiges of de jure segregation in the

Wilmington schools" and the _ legislation

accordingly violated the State's affir-

mative “obligation to consider the racial

consequences of [its] major educational

=- §@ -

policy decisions."21

The Court should grant certiorari to

resolve the conflict between the judgment

below and the decisions of those Circuits

that have applied the Swann-Keyes-Dayton

II affirmative duty principles in inter-

district cases.

2lpvans v. Buchanan, 393 F. Supp. 428, 439,

441-42 (D. Del.) (3-judge court) (emphasis added)

(citing Swann, supra, 402 U.S. at 16), aff'd, 423

U.S. 963 (1975)); Evans v. Buchanan, 416 F. Supp.

328, 340 (D. Del. 1976), aff'd, 555 F.2d 373 (3d

Cir. 1977) (en banc). Accord, Evans v. Buchanan,

582 F.2d 750, 765 (3d Cir. 1978) (en banc) (quot-

ing Swann, supra, 402 U.S. at 26 and citing Keyes,

supra, 413 U.S. at 208, 211 & n.17). Other Court

of Appeals decisions relying on the violation of

a prior segregator's affirmative duty as a hasis

for interdistrict relief are: Hoots v. Commn-

wealth of Pennsylvania, 672 F.2d 1107, 1121 (3d

Cir. 1982) (citing Keyes, supra, 413 U.S. at

208-10); Morrilton School Dist. No. 32 v. United

States, 606 F.2d 222, 227 (8th Cir. 1979) (en

banc) ; Newburg Area Council, Inc. v. Board of

Education, 510 F.2d 1358, 1360-61 (6th Cir. 1974)

(citing, e.g-, Wright v. Council of the City of

ria, 407 U.S. 451 (1972)). The position of

the Seventh Circuit is unclear. Compare United

States v. Board of School Comm'rs of the City of

Indianapolis, 637 F.2d 1101, 1113 (7th Cir.

1980) (relying on Dayton II), with id. at 1113

n.24 (reserving question).

= §$ =

CONCLUSION

For the foregoing reasons the peti-

tion for a writ of certiorari should be

granted.

Respectfully submitted,

JAMES S. LIEBMAN *

Columbia University

School of Law