Appendix — Jenkins v. Missouri

In the Supreme Court of the U

OCTOBER TERM, 1996

KALIMA JENKINS, et al.,

Petitioners,

“j-

THE STATE OF MISSOURI, et al.,

Respondents.

APPENDIX TO

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

ARTHUR A. BENSON II

1430 Commerce Tower

911 Main Street

Kansas City, Missouri 64105

816-842-7603

JuLius L, CHAMBERS

JAMES M. Napairt III

THEODORE M. SHAW

99 Hudson Street, 16th Floor

New York, New York 10013

212-219-1900

*Attorney of Record

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

APPENDIX

TABLE OF CONTENTS

Order, United States Court of Appeals

for the Eighth Circuit (en banc),

December - (i) | Sr ee 2a

Order, United States Court of Appeals

for the Fighth Circuit,

February . eas aa he en oe 6 eee Ae ee 2i2a

General Memorandum and Order, United

States District Court, Western

District of Missouri,

June 5S, 2OOR soci ncn 404 oes d ces he adee’ 2798

Order, United States District Court,

Western District of Missouri,

BOOCERNOT TT 5 29GR a ios os ees 444s 518a

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 85-1765

No. 85-1949

No. 85-1974

No. 85-2077

Appeal from the United States

District Court for the Western

District of Missouri

Kalima Jenkins, by her next friend,

Kamau Aqyei,

Carolyn Dawson, by her next friend,

Richard Dawson,

Tufanza A. Byrd, by her next friend,

Teresa Byrd,

Derek A. PDydell, 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,

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Dwayne A Turrentine, by his next friend,

Shelia Turrentine,

Gregory A. Pugh, by his next friend,

Barbara Pugh,

Cynthia Winters, by her next friend,

David Winters, on behalf of

themselves and all others

Similarly situated,

Appellants/Appellees,

and

American Federation of Teachers,

Local 691,

Appellant/Appellee,

Ts

The State of Missouri

Honorable John Ashcroft, Governor of

the State of Missouri,

Wendell Bailey, Treasurer of the State

of Missouri,

Missouri State Board of Fducation,

Roseann Bentley,

Dan Blackwell,

Terry A. Bond, President,

Delmar A. Cobble,

Grover Gamm,

Jimmy Robertson,

Robert L. Welling,

Donald B. West,

members of the Missouri State

eae ee ae ee ee ee ee ee ee ee eae

+ ip

Board of FEducation,

Arthur L. Mallory,

Commissioner of Education of

the State of Missouri,

School District of Kansas City,

Missouri and Claude C. Perkins,

Superintendent thereof,

Appellants/Appellees,

ParkHill School District R-5 and

Dr. Merlin A. Ludwig,

Superintendent thereof,

North Kansas City, Missouri School

District and Dr. Raymond Wailer,

Superintendent thereof,

School District of the City of

Independence and Dr. Robert Henley,

Superintendent thereof,

Raytown, Missouri Consolidated School

District C-2 and Dr. Robert Atkin,

Superintendent thereof,

Center School District and Donald

Richmond, Superintendent thereo§,

Hickman Mills Consolidated School

District C-l and Blaine FE. Steck,

Superintendent thereof,

Grandview Consolidated School District

C-4 and Dr. Tony L. Stansberry,

Superintendent thereof,

sees eeeeeaeeoneaeeeeeeeoeeeaeneneveeeneeoeeveoveeneteanere

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Fort Osage School District R-1l and

Victor Graaaqa, Superintendent

thereof,

Lee's Summit Reorganized School District

R-7 and Dr. Bernard C. Campbell,

Superintendent thereof,

Blue Sprinaqs Reorganized School District

R-4 and Dr. Gale T. Bartow,

Superintendent thereof,

Liberty School District and Dr. Ronald

L. Anderson, Superintendent

thereof,

Jnited States Department of Housing

and Urban Development and Samuel

Pierce, Secretary thereof,

eee ee @e eee eRe eee ehlUmcetmUlUc aehUmrhUmr Ur Ur RhUhFhUmDF

Appellees.

Submitted: November 13, 1985

Filed: December 5, 1986

Before LAY, Chief Judqe, HEANEY, ROSS,

McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG

and WOLLMAN, Circuit Judges, En Banc*

*Judge Bowman did not participate in

consideration of this case and Judae

Magill was not a member of the court when

it was araqued and submitted.

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JOHN R. GIBSON, Circuit Judae.

This case arises from claims of

unconstitutional racial seqreqation of

school children in the Kansas City metro-

npolitan area. After trial, the district

court! imposed an intradistrict remedy

aqainst the Kansas City, Missouri School

District (KCMSD) and the State of Missouri

with the State bearing approximately

three-fourths of the cost. The district

court found that the KCMSD and the State

had not eradicated vestiges of the

racially seqreqated dual school system

once required under state law in violation

of the Constitution. The claim for inter-

district relief in the form of con-

solidation or realianment of the suburban

lTfhe Honorable Russell G. Clark,

United States District Judge for the

Western District of Missouri.

- Ja -

school districts (SSDs) was rejected as

the SSDs were found to have eliminated all

vestiaqes of their seqreaated school

systems and there was no finding of inter-

district violation or interdistrict

effect. The SSDs were dismissed from the

action. The United States Department of

Housing and Urban Development (HUD) also

was held not liable. In this appeal, both

the KCMSD anu Kalima Jenkins, the named

Plaintif€ in a certified class of present

and future KCMSD students (Jenkins

class),2 challenge the denial of inter-

district relief. The Jenkins class also

appeals the judqment in favor of HUD. In

addition, both the KCMSD and the State

challenge the scope and the allocation of

2The named student Plaintiffs were

replaced at various times during the liti-

qatjon. In February 1985, the court cer-

tified the class of present and future

KCMSD students.

costs of the intradistrict remedy ordered

against each.

The district court's findings’ and

conclusion that the suburban school

districts are not liable for interdistrict

violation and may not be ordered to pnar-

ticipate in interdistrict relief, on those

issues not related to housina, are

affirmed by the vote of five judaqes

(Judces Ross, Faaqq and Wollman join in

this opinion; Judge Arnold concurs in the

result; Chief Judge Lay, joined by Judaes

Heaney and McMillian, dissents).

The interdistrict findings and conclu-

sion on the housing issues are affirmed by

an equally divided court (Judges Ross,

Faqq and Wollman join in this opinion;

Judae Arnold files a concurring and

= =

dissenting opinion in which he concludes

that the case should be remanded to the

district court to consider whether there

are interdistrict housing violations which

would require relief; Chief Judge Lay,

joined by Judges Heaney and McMillian,

dissents).

The dismissal of the SSDs and HUD at

the close of the plaintiff's evidence is

therefore affirmed.

The intradistrict remedy ordered

against the State of Missouri and KCMSD is

modified in some respects with five judges

concurring (Judges Ross, Faaqq and Wollman

join in the opinion and Judqe Arnold con-

curs in the result; Chief Judge Lay,

joined by Judges Heaney and McMillian,

dissents).

This suit was filed in 1977 by the

KCMSD, the School Board, and four children

_ =~" eal © =.

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of two School Board members. The complaint

alleqed that the State, surrounding school

districts in Missouri and Kansas, and

several federal aaencies’ including HUD3

had helped cause or had heen part of a

system of racial segqreaqation amonq Kansas

City metropolitan area school districts.

In October 1978, the district court

dismissed the Kansas defendants for want

of jurisdiction. It also concluded that

the KCMSD lacked standing to bring an

action against the State as party plain-

tiff and realiqned the KCMSD as a defen-

dant. School District of Kansas City

Missouri v. Missouri, 460 F. Supp. 421

3The named defendants included the

State of Missouri, the Missouri State

Board of Education and various Missouri

officials, the State of Kansas, the Kansas

State Board of Education and various

Kansas officials, several Kansas school

districts in the Kansas City metropolitan

area, twelve Missouri school districts in

the area, the United States Departments of

- lla -

(W.D. Mo. 1978).4

In May 1979, an amended complaint was

filed against KCMSD, and the federal and

Missouri defendants named in the oriqinal

complaint. The amended complaint made two

distinct alleqations: first, of an inter-

district violation, committed by the SSDs,

and the State and federal defendants; and

second, of an intradistrict violation

within the KCMSD, committed by the KCMSD

and the State defendants. KCMSD pursued

its claim by filina, in July 1979, a

cross-claim against the State, reiterating

the alleaation of interdistrict violation

made by the Jenkins class, and seeking

Transportation (DOT), Health, Education,

and Welfare (HEW), and Housing and Urban

Develonment (HUD).

4These rulinas were certified under 28

U.S.C. § 1292(b) for interlocutory review.

460 F. Supp. at 445. An appeal, taken by

the KCMSD and the North Kansas City School

- l2a -

indemnification aqainst anv intradistrict

liability.

Trial to the court commenced October

31, 1983.° Over the course of 64 trial

days, plaintiff called over 140 witnesses,

offered 2,100 exhibits, and desiqnated

approximately 10,000 paqes of depositions.

Before hearing evidence in response, the

district court, based on standards set

out by the Supreme Court in Milliken v.

Bradley, 418 U.S. 717 (1974), dismissed

the eleven SSDs from the case under Fed.

Re. Civ. PB. 41(b).® The court found that

District, was denied by this court. KCMSD

thereafter filed an anpeal under 28

U.S.C.§ 1291 which was dismissed. See

School District of Kansas City, Missouri

ve. Missouri, 592 F.2d 493 8th Cir. 1979).

SRefore trial, the DOT and one of the

SSDs, the Raymore-Peculiar School

District, were dismissed voluntarily. See

Order of June 5, 1984 at 2.

6The eleven districts dismissed were

the Blue Springs, Center, Fort Osaqe,

school districts in Missouri are autono-

mous and that none of the districts had

committed anv acts with intent to discri-

minate on the basis of race, to contain

hlacks in the KCMSD, or bar blacks from

the SSDs. The court further found that

within four vears after Brown v. Board of

Education, 347 U.S. 483 (1954) (Brown I),

and in most cases within a shorter time,

all the SSDs had eradicated the vestiges

of their dual school systems and were

operating unitary systems. The court

further found that none of the alleged

Grandview, Hickman Mills, Independence,

Lee's Summit, Liberty, North Kansas City,

Park Hill, and Raytown School Districts.

HEW subsequently was dismissed for plain-

tiffs' failure to prove that the aqency

acted with racial animus or abused its

discretion in the enforcement of Title VI.

See Order of July 16, 1984.

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discriminatory actions committed by the

State or the federal defendants had caused

any Significant current interdistrict

seqreqation. The district court therefore

denied inter-district relief. See

generally Order of June 5, 1984.

The district court then heard addi-

tional evidence and, on September 17,

1984, issued its order holding the State

and the KCMSD liable for racial segreqa-

tion of students within the KCMSD. Jenkins

v. Missouri, 593 F. Supp. 1485 (W.D. Mo.

1984) The court observed that before

1954, the State and the KCMSD had main-

tained a racially segregrated dual school

system. The court found, in the existance

of twenty-four KCMSD schools with a black

enrollment in excess of 90%, and in other

areas, vestages of the now unlawfull dual

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school system. Tt therefore held that the

state and the KCMSD, under principles

announced by the Supreme Court in Brown v.

Board of Education, 349 U.S. 294 301

(1955) (Brown II), had failed in their

affirmative duty to dismantle the un-

constitutional pre-1954 system. The court

also held that HUD was not liable, finding

that HUD had followed a balanced approach

to sponsoring subsidized housing projects

in both innercity and Suburban areas.

On June 14, 1985, after a two-week

hearing on the scope of appropriate

relief, the court issued a remedial order

requiring the State and the KCMSD to fund

compensatory and remedial educational

programs and necessary capital improve-

ments in KCMSD schools. The plan is pro-

jected to cost $87,000,000 over the next

three vears, with the State bearing

approximately $67,000,000 and the KCMSD

approximately $20,000,000. See Memorandum

Opinion of June 14, 1985 at 41-42.

In this appeal the Jenkins class

challenges the district court's dismissal

of HUD, and joined by KCMSD, its dismissal

of the SSDs, and its denial of inter-

district relief. The KCMSD also

challenges the district court's realign-

ment of the KCMSD as a party defendant.

The State challenges the Scope of the

district court's remedy and the alloca-

tion of costs.

INTERDISTRICT LIABITITY FINDINGS

In Milliken, 418 U.S. 717, the Supreme

Court held that an interdistrict remedy

may not be imposed absent a finding of a

- iva -

constitutional violation within one

district producing a siaqnificant seqgqreqa-

tive effect in another school district.

Id. at 744-45. Without an interdistrict

violation and interdistrict effect, there

is no constitutional wrong requiring an

interdistrict remedy. Id. Plaintiffs

advanced to the district court’ three

theories to support their claim of inter-

district violation and effect, requiring

the imposition of an interdistrict remedy

in the form of consolidation of the KCMSD

and SSDs:

[Flirst, that the SSDs, as agents

-of the state, were guilty of

operating a reqional system of

segregated schools that centered

on and impacted Kansas City with

blacks and made the suburbs

whiter before 1954; second, that

the SSDs failed in their affir-

mative duty to eliminate the

vestiges of the dual school

system; and third, that the SSDs

are liable for the effects of

actions by the KCMSD and other

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defendants and can therefore be

included in an interdistrict

remedy.

Order of June 5, 1984 at 5. The district

court found, based on the Milliken

holding, that there was lack of proof of

discriminatory intent in the establishmenc

or chanae of any school district boundary

and thus distinguished the interdistrict

cases upon which the plaintiffs relied.

It rejected the arguments that the SSDs

were not separate and autonomous but were

instead agents of the State. It further

rejected the argument that, as agents and

subdivisions of the State, the SSDs must

be included in an interdistrict remedy

absent any finding that they had committed

specific violations by their own ini-

tiative.

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The court examined the plaintiffs'

argument that the pre-1954 dual school

systems had caused racial segreqation in

the Kansas City metropolitan area. The

court acknowledged the substantial

increase in the KCMSD black population

from 1910 to 1960, but found that the

increase resulted principally from the

unusual economic and employment ramifica-

tions of the World Wars and intervening

Depression. Order of June 5, 1984 at 17.

The absence of black schools in the SSDs,

it found, had not discouraged black fami-

lies outside or within Missouri from

moving to and living in those districts.

The district court also rejected the argqu-

ment that within the SSDs any vestiges or

significant effects of the pre-1954 dual

school system remained. The acts thirty

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years past, the court found, had negqli-

gible current effects. While some of the

SSDs had dual school systems in_ the

pre-1954 era and some did not,’ after

Brown IT each had disestablished its

pre-1954 school system with deliberate

speed and all vestiges of those systems

have long since disappeared. The district

court entered separate findinas’ with

respect to each SSD. It found that all

were unitary, most by 1955, in immediate

compliance with the mandate of Brown I,

two more by the 1957-58 school year, and

the last, Park Hill, was fully integrated

by the 1959-60 school year. Id. at

43-95.

The court then considered the plain-

7The court specificaliy found that

Independence, Lee's Summit, Liberty, North

Kansas City, and Park Hill had earlier

maintained dual school systems, but the

other districts had not. Id. at 43-95.

tiffs' second theory, that the SSDs had

failed in their duty, pursuant to the man-

date of Brown II, to eliminate vestiges.

The district court found that the

establishment of an association of

reaqional school districts did not neqate

the autonomy of the individual SSDs, and

that the sharing of sales tax revenues by

certain of the SSDs whose area may have

been partly within the Kansas City,

Missouri, city limits did not amount to a

constitutional violation. Id. at 19-21.

Further, a juvenile home, local special

and vocational education proqrams, and

particularly the creation of certain voca-

tional education districts were examined

and found not to have been constitutional

violations on the part of the SSDs. Id.

at 21-26. The district court also exa-

- 22a -

mined a statute enacted by the Missouri

General Assembly in 1957 enlarging the

size of a city that should constitute a

sinale school district.® The court found

that the enactment was not driven by an

intent to concentrate black Students

within KCMSD, and therefore, was not an

intentional interdistrict violation. Id.

at 28-29. The court also examined the

SSDs‘ response to recommendations of the

Spainhower School District Commission of

1979, regarding realiqnment of boundaries

sO as to create some twenty school

districts in the state, and with respect

to financing and local control, and found

no evidence that any of the SSDs rejected

or declined to consider these proposals

8H.B. 171 increased from 500,000 to

700,000 the size of a city that should

constitute a single school district. In

the 1960 census, the population of Kansas

City did not exceed 500,000. The court

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- 23a -

for reasons at all related to race. It

further rejected arquments based upon

employment practices in the SSDs.

The district court finally analyzed in

detail plaintiffs’ third theory, that the

SSDs may be included in an interdistrict

remedy because the effects of others'

discriminatory acts were felt within the

SSDs. It found no evidence that white

families had been lured to or black fami-

lies discouraged from living in the SSDs.

Nor did any of the factual evidence con-

cerning housing implicate any of the SSD

defendants. Id. at 34-35. The steady

increase in black enrollment in the SSDs

found that significant annexations in

eastern and southern Jackson and Clay

Counties occurred after the bill was

enacted and that KCMSD had annexed several

all-white schools from 1955 to 1973.

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since 1968, particularly in Raytown,

Hickman Mills, Center, and Grandview

districts,? and the fact that in 1980,

23,434 blacks resided outside the prin-

cipal contiquous area was found to refute

the testimony of plaintiffs’ exnerts. Te

court rejected white-fliaht theory as a

constitutional violation by the SSbds. Id.

at 36-39.

The district court also addressed

plaintiffs’ claims reqarding housing

violations. While the court found that

before 1948, in several areas within the

SSDs restrictive covenants were enforced,

the court further found that such enfor-

cement did not have a current sianificant

9In 1982 the Center district had an

enrollment of 10.6% black, Grandview 9.8%,

Hickman Mills 16.7%, and Raytown 7.6%. Id.

at 41-42.

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seareaative effect.!° With respect to

public housing, it found that such housing

is available in siqnificant amounts within

every SSD and that the HUD section 8

program is available in all parts of the

metropolitan area. No testimony linked any

SSD to the transition of neiahborhoods

within the KCMSD from white to black and

the accompanying white flight which had

taken place in Kansas City since 1940. Id.

at 41.

The court therefore concluded that

these was no interdistrict violation and

interdistrict effect. Thus, as required

by Milliken, interdistrict relief was

denied. T4é. at 95. The court stressed

that awarding relief “‘would impose on the

10see Note 22, infra.

- 26a -

outlying districts, not shown to have com-

mitted any constitutional violation, a

wholly impermissible remedy based on a

standard not hinted at in Brown I and It

or any holding of this Court.'” Id. at 96

(quoting Milliken, 418 U.S. at 746). It

rejected a cumulative effect and found

MPlaintiffs' evidence de minimis at most

and leqally insufficient to justify the

relief sought aqainst the SSDs. Id. at

97-98. The court thus dismissed the case

against the SSDs.

INTRADISTRICT LIABILITY FINDINGS

The district court then tried the

intradistrict issues and found that the

inferior education indiqenous to the

State-compelled dual school system has

lingering effects in the KCMSD. Jenkins

- 27a -

v. Missouri, 593 F. Supp. at 1492. The

district court recognized the stipulation

that before 1977 KCMSD was not unitary and

did not comply with federal requlations.

Id. at 1489. KCMSD was majority white in

enrollment until 1970 and could have

achieved mathematical racial balance in

its schools. Id. at 1492. Instead, it

chose to operate some completely segre-

gated schools and other inteorated ones.

In 1974, twenty years after Brown I, 39

schools were more than 90% black; another

38 had 10% to 90% black enrollment.

Eighty percent of all blacks in the

district attended schools that were 90%

black. Only 19% of the blacks attended a

school that was 10% to 90% black. Id. at

1492-93. As of 1977, 25 one-race schools

under the pre-1954 system remained 90% or

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more of the same race. Id. In addition,

four schools that were black under the

dual system were predominantly black when

closed in 1968. Id. at 1492. In the

1983-84 school year no KCMSD school had

less than 30% black enrollment, but 24

schools were racially isolated at more

than 90% black. Id. at 1493.

The court found that the KCMSD still

has not entirely dismantled the dual

school system. The court then made par-

ticular findinas on the liberal transfer

policy, the neiaqhborhood school policy,

and attendance zones, and _ found that

these, rather than facilitating integra-

tion, fostered the maintenance of seqgre-

qated attendance patterns. Intact busing

was found to have been seqreqative in

intent and effect, but, as it was stopped

- 29a -

in the 1960's, no continuing violation

existed. The court found that plans had

not been adopted for district-wide

deseareaation until 1977-78. Id. at

1493-94.

Similarly, the court imposed liability

on the State based on its’ intentional

creation of the dual school system and the

obliqation that existed to disestablish

such a system. ll As vestiges of the

State's dual school system lingered in

KCMSD, the obligations of KCMSD and the

State had not been met. The court

rejected the State's argument that

constraints imposed by the state constitu-

tion or statutes prevented its affirmative

disestablishment of the dual school

llwhile the court conceded that the

State may have through its actions created

an atmosphere in which private white indi-

viduals and members of the real estate,

banking, and insurance communities could

- 30a -

system. It held the issues in favor of

the Jenkins class and against KCMSD and

the State and held the issues in favor of

KCMSD and against the State on the cross-

claim. Id. at 1505.

LIABILITY OF HUD

With respect to the claim against HUD,

the court examined Federal Housing

Administration appraisal practices before

1949, cooperative agreements with the City

of Kansas City under the auspices of the

Housing Authority of Kansas City (HAKC)

and the Land Clearance for Redevelopment

justify bias against blacks, it found no

evidence that the State siqnificantly

encouraged such practices. 593 F. Supp.

at 1501-03. The court also found that

freeway placement did not amount to a

constitutional violation.

- 3la -

Authority (LCRA), and section 8 cer-

tificates. It found that HUD followed a

balanced housing policy and attempted to

insure that assisted housing was located

in both innercity and suburban areas.

There was no evidence that HUD's site

selection and approval practices’ for

federally subsidized multi-family housing

substantially affected the racial com-

position of schools within KCMSD. Id. at

1499, The court pointed to HUD's affir-

mative marketinq efforts to apprise par-

ticipating section 8 certificate-holders

that affordable housing was~ available

throughout the entire community. Id. at

1590. There was no evidence that HUD

routinely denied blacks FHA mortgages,

that it discriminatorily foreclosed on

mortqages held by blacks, or that it

- 32a -

avoided selling the homes on which its

insured mortgages had been foreclosed to

blacks. Further, there was no evidence

that neglect of HUD-held homes was

racially discriminatory in intent or pur-

pose. The issues were held in favor of

HUD.

I.

We have had earlier occasion to deal

with the legal standards governing inter-

district school desegregation cases. See,

e.g.-, Little Rock School District v.

Pulaski County Special School District No.

1, 778 F.2d 404 (8th Cir. 1985); Liddell

Ve Missouri, 731 F.2d 1294 (8th Cir.),

cert. denied, 105 S. Ct. 82 (1984).12 We

12tn Little Rock this court rejected the

consolidation remedy but ordered adjust-

ment of the boundaries between the

districts, a voluntary intradistrict or

interdistrict transfer system, the

- 33a -

draw our basic guidance from the Supreme

Court's decision in Milliken v. Bradley,

418 U.S. 717 (1974):

Before the boundaries of separate

and autonomous’ school districts

may be set aside by consolidating

the separate units for remedial

purposes or by imposing a cross-

district remedy, it must first be

shown that there has been a

constitutional violation. within

one district that produces a

Significant segr>gqative 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 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

exploration of magnet or special school or

»rograms, and consideration of cooperative

programs. 778 F.2d at 435-36. In Liddell

we approved a settlement providing for

intradistrict relief, a voluntary transfer

program between cities and suburban

schools and a magnet school program.

- 34a -

have been deliberately drawn on

the basis of race. In such cir-

cumstances an interdistrict

remedy would be appropriate to

eliminate the interdistrict

segregation directly caused hy

the constitutional violation.

Conversely, without an inter-

district violation and inter-

district effect, there is no

constitutional wrong calling for

an interdistrict remedy.

418 U.S. 744-45 (citations omitted).

Two courts of appeals have read this

language to require clear proof of cause

and effect of a constitutional violation,

and a careful delineation of the extent of

the effect, before an interdistrict remedy

may be invoked. Goldsboro City Board of

Education V. Wayne County Board of

Education, 745 F.2d 324, 332 (4th Cir.

1984); Lee Ve Lee County Board of

Education, 639 F.2d 1243, 1256 (Sth Cir.

1981). As the Fifth Circuit stated in

- 35a -

Lee:

We believe the Court's deliberate

choice of phrases such as

"substantial" or "direct cause"

and "siaqnificant seareqative

effect" also expresses an

insistence that in cases where an

interdistrict remedy is re-

quested, there must be clear

proof of cause and effect and a

careful delineation of the extent

of the effect. In the absence of

such a showing, school district

lines are to be carefully

observed and desegreaqation reme-

dies confined to orders affecting

the school district in which the

condition of seqreqation is mani-

fest.

Id. at 1256.

In addition to “clear proof" of the

interdistrict violation and its’ inter-

district effect and "a careful deli-

neation" of the extent of the

interdistrict effects, it must be shown

that the interdistrict seqreaqative effects

are current. Lee, 639 F.2d at 1260.

Federal courts may not invoke their

equitable power to fashion a remedy to

correct a condition unless it currently

offends the Constitution. As the Court

stated in Milliken: "A federal remedial

power may be exercised ‘only on the basis

of a constitutional violation’ and, ‘[als

with any equitv case, the nature of the

violation determines the scope of the

remedy. '‘'" Id. at 738 (quotinq Swann v.

Charlotte-Mecklenburgq Board of Education,

402 U.S. 1, 16 (1971))3 see also General

Buildina Contractors v. Pennsylvania, 458

U.S. 375, 399 (1982) (a remedial decree

should “extend no farther than required by

the nature and the extent of that

violation").

II.

- 3la -

We must also recoqnize at the outset

the importance of the district court's

Factual findings in school deseaqregation

cases. As we stated in Little Rock:

We will not reverse the district

court's factual findings with

respect to -liability unless’ we

conclude that they are clearly

erroneous. Fed. R. Civ. P. 52(a);

Anderson v. City of Bessemer

City, 4105 8S. Cte 1504 (1985);

Pullman-Standard v. Swint, 456

U.S. 273, 287-90 (1982); Dayton

II, 443 U.S. at 534 7.8;

Columbus Board of Education v.

Penick, 443 U.S. at 468-71

(concurrinq opinions of Burger,

C.J., and Stewart, J.); United

States v. United States Gypsum

Co., 333 U.S. 364, 395 (1978).

Nor will we reverse such findinas

when they are based on inferences

from other facts unless the

rigorous ~standards of the same

rule are met. Anderson, 105 S.

Ct. at 1511. The Supreme Court

has emphasized the importance of

the clearly erroneous) rule in

civil rights cases, see, e.a.,

Pullman-Standard v. Swint, 456

U.S. at 287-90, and, more par-

ticularly, in school deseqreaqa-

tion cases:

- 38a -

The elimination of

the more conspicuous

forms of qovernmentally

ordained racial seqre-

gation * * * counsels

undiminished deference

to the factual adjudi-

cations of the federal

trial judges in cases

such as these, uniquely

situated as those

judges are to appraise

the societal forces at

work in the communities

where they sit.

Columbus Board of Education v.

Penick, 443 U.S. at 449, 471

(1979) (Stewart. J., concurring,

with whom Buraer, C.J., joins,

concurring).

Little Rock, 778 F.2d at 410-ll. See

Morrilton School District No. 32 v. United

States, 606 F.2d 222, 230 (8th Cir. 1979),

cert. denied, 444 U.S. 1071 (1980); see

also Riddick v. School Board of the City

of Norfolk, 784 F.2d 521, 533 (4th Cir.

1986) (factual findinas by a district

- 39a -

court in school deseqreqation cases are

entitled to qreat deference on review

“especially where the presiding judicial

officer has lived with a case for many

years").

The Supreme Court in Anderson v. City

of Bessemer City, 105 S. Ct. 1504 (1985),

has explained that the trial judqe's role

is to determine fact, and duplication of

these efforts in the courts of appeals

"would very likely contribute only neqli-

gibly to the accuracy of fact

determination." Id. at 1512. The Court

stated:

The reviewing court oversteps

the bounds of its duty under

Rule 52 if it undertakes’ to

duplicate the role of the lower

court. “In applying the clearly

erroneous standard to the fin-

dings of a district court

sitting without a jury,

appellate courts must constantly

have in mind that their function

is not to decide factual issues

- 40a -

de novo.” Zenith Radio Corn. v.

Hazeltine Research, Inc., 395

U.S. 100, 123 (1969). If the

district court's account of the

evidence is plausible in light

of the record viewed in its

entirety, the court of apeals

may not reverse it even though

convinced that had it heen

sitting as the trier of fact, it

would have weighed the evidence

differently. Where there are two

permissible views of the evi-

dence, the factfinder's choice

between them cannot be clearly

erroneous.

Chief Judae Lay's dissent, }3 in

violation of Anderson, duplicates the role

of the district court and is an exercise

in appellate factfinding. A reading of

the dissent is sufficient to demonstrate

the rejection of the district court's

carefully weiqhed findings of fact and

substitution of those more desirable, fre-

l3chief Judge Lay's dissent, in

contrasting facts to rhetoric “doth pro-

test too much." W. Shakespeare, Hamlet,

Act III, se. ii, line 242. The lanquage,

- 4la -

quently based on evidence considered and

rejected by the district court./4 While

on some occasions placing the mantle of

the clearly erroneous rule about’ che

discussion, it is evident that Chief Judge

Lay was engaging in an oriqinal evaluation

of the voluminous and ofttimes contradic-

tory record seeking an ultimate conclusion

more satisfactory than that reached by the

@istrict court. This is directly contrary

to the mandate of Anderson.

Iftl.

on its first page particularly, is

exaagerated, without support in the

record. The “extravagant lanquaqge" (see

Milliken, Steward, J., concurring, 418

U.S. 753), requires this rejoinder.

l4we need point to only a few examples.

"The record is replete with evidence of

constitutional violations by many of the

SSDs and of the effect those violations

had on all of the SSDs and on the KCMSD."

- 42a -

The Jenkins class does not challenge

the findinas of the district court.

Chief Judge Lay's dissent at 94. In

‘discussing the rejection of the evidence

of Dr. James PD. Anderson, plaintiff's

expert historian which the district court

discussed in detail in the June 5, 1985

Order, id. at 15-16, 18, Chief Judge Lay

states: "This evidence was highly proba-

tive and it was wholly arbitrary for the

court to reject it and inject its own

inferences. Moreover, I believe it is

especially crucial in a case of this

nature to give great consideration to the

testimony of historial experts where the

theory to be proved occurred long ago and

few witnesses are alive to testify." Chief

Judge Lay's dissent at 103, n.17. The

increase in black enrollment in the SSDs

since Brown "is conclusive evidence that

the lack of schools for blacks in the SSDs

prior to 1954 was a deterrent to blacks

settling there. * * * It is clear that

the SSDs as well as the state and KCMSD,

have all failed to fulfill their affir-

mative duty under Brown v. Board of Ed. to

eliminate the vestiges of their prior

segregative policies and that significant

interdistrict effects of these policies

are still evident in the Kansas City

metropolitan area." Id. at 106. "Here the

racial imbalance is clear evidence of con-

tinuing segregation following a pre-1954

de jure policy." Id. at 109.

- 43a -

Rather, it arques that the findings

establish continuing interlocking, inter-

district violations whose cross-district

nature and metropolitan-wide scope require

relief encompassing the SSDs. It arques

particularly that there is an inter-

district violation or effect under

Milliken and Hills v. Gautreaux, 425 U.S.

284 (1976), and points to several indepen-

dent bases for’ interdistrict relief.

These are: the pre-1954 interdistrict

system of locating dual schools; the

State's and the SSDs continuing inter-

district violations; KCMSD's)7 officially

Sanctioned suburban flight violation; the

State's market-wide dual housing systems;

and LCRA and HAKC's' racial steering and

Siting violations.

The Jenkins class further argues that

- 44a -

the district court denied interdistrict

relief based on a "concatenation of legal

error" as to interdistrict liability. It

argues that in six respects the district

court abandoned controlling leqal prin-

ciples in concluding that: the existence

of dual schools before 1954 does not now

amount to a constitutional violation; the

SSDs were autonomous and indenendent; the

SSDs were absolved of liability for their

pre-1954 violations and erroneously

ignoring the post-1954 seqregative acts

and omissions; without a finding of fault,

the SSDs may not be required to take part

in eliminating the effects on children in

their - districts of the State's

metropolitan-wide dual school and housing

violations; the SSDs did not invidiously

entice white families to move into their

wi

- 45a -

district, and that unconstitutional

actions within one district making it

blacker which reciprocally affects adja-

cent districts by making them whiter may

not provide an independent basis’ for

interdistrict relief; and absent inten-

tional seqregqative acts by each school

board sought to be included, a finding of

liability against actors in the housing

market is irrelevant to the SSDs. The

housing argument will be discussed separa-

tely in IV and V.

Finally, the Jenkins class argues that

the district court applied an improper

burden and standard of proof of signifi-

cant effects in an improperly piecemeal

fashion. It further arques that’ the

district court improperly fragmented the

evidence of unconstitutional acts rather

- 46a -

than evaluating the evidence as a whole.

It arques | that the district court's

Finding of six distinct metropolitan-wide

constitutional violations satisfies

Milliken's significant segregative effect

standard. It urges under Swann that proof

of a system with a history of segregation

warrants a presumption against schools

that remain disproportionate in their

racial composition. It arques that the

proof acknowledged by the court, of prior

de jure segregation on an area-wide basis,

coupled with a patently continuing racial

imbalance amonq the SSDs‘'- student and

faculty compositions, established the

liability of the SSDs. It further arques

that the district court improperly |

rejected much of the evidence, and impro-

perly barred the presentation of quan-

- 474 -

titative evidence, as irrelevant.

The broad scope of these arguments is

considerably narrowed when viewed in light

of siqnificant factual findings of the

district court. These findings are not

challenged as clearly erroneous. The

district court found that the SSDs were

autonomous and locally controlled,!5

and that the State was powerless to

require a merger or consolidation.

The district court recognized the sti-

pulation that before 1954 the State man-

dated dual school systems and mandated

SSDs' compliance in maintaining dual

systems. It found that all SSDs met their

constitutional obligation to operate a

unitary school system within a maximum of

l5The district court pointed to evidence

that the SSDs are governed by local boards

elected by the voters, hire the superin-

tendents and teachers, by vote establish

their own tax levy, have plenary power to

- 48a -

four years after Brown I, most of them

doing so within one year. The dismantling

of the dual system was accomplished with

all deliberate speed. Order of June 5,

1984 at 99. It specifically found that

the evidence established that there was no

barrier to movement of blacks into the

SSDs. Id. at 39. It found the pre-Brown

acts thirty years past to have neqliqible

present effects. It further found that

the faculty and staff composition of the

establish school attendance zones, and

determine whether to provide transpor-

tation for their students. Reorganization

is a decision to be made by the local

school districts, and the state constitu-

tion prohibits legislative enactment of

special laws to change the boundaries of

any school district. The district court

further found that there was no discrimi-

natory intent in the establishment or

maintenance of the boundary lines between

the school districts. Order of June 5,

- 49a -

SSDs do not affect the racial composition

of the student bodies. The court found

the faculty were hired and promoted on a

racially neutral basis. The court could

not conclude that there was an inter-

district violation from any possible

intradistrict factors.

The factual arqument based on the

nre-Brown interdistrict system of locating

dual schools flies in the face of the

district court's Finding that the

pre-Brown acts have negliqible present

effects. Chief Judge Lay's dissent suf-

fers from a similar infirmity as_ the

district court made numerous” findings

interspersed through its order concerning

the negligible and de minimis nature of

any such effects. These findings are not

clearly erroneous.!® These findings make

l6The district court in its June 5, 1984

initia

- 50a -

Order made the following findings: The

evidence that seqreqated schools existing

before 1954 were the direct and substan-

tial cause of blacks leaving each SSD, and

that such had a siqnificant seqreqative

effect in the KCMSD “was weak, speculative

and in any event de minimis.” See Order

of June 5, 1984 at 12. Plaintiff's arqu-

ment that the state through its aaents,

the SSDs, maintained a regional black

interdistrict school system causing blacks

to leave the SSDs and miarate to Kansas

City in search of an education is not sup-

ported by the law or the evidence. Id. at

15. Assuming the entire population

decrease in the three county area was

caused by people leaving and qoing to

Kansas City because of the dual school

system, it found “the impact of that move-

ment on the KCMSD enumeration

insignificant." Id. at 16. The motivation

for blacks leaving the three county area

and moving to Kansas City “resulting from

segregated schools was de minimis and

insignificant" when compared with other

primary motivating factors transferring

blacks to the KCMSD under the segregated

school system "is not a cause of the pre-

sent racial distribution of the population

in the three county area." Id. at 18. The

Jenkins class did not persuade the court

"that any vestiges or sianificant effects

of the pre-1954 dual school system

remain” in any of the SSDs. Id. at 18.

"At most plaintiff's evidence is only de

minimis and is therefore leaally insuf-

ficient to justify the relief sought

against the suburban school district

defendants." Id. at 98. The district

- Sla -

unnecessary a detailed recitation of the

court summarized:

Another factor negating the impor-

tance of plaintiffs’ voluminous

nre-1954 evidence is simply its aae.

Our society is dynamic; myriad factors

produce a multitude of simultaneous

? decisions and consequent effects. If

it were a stagnant entity, the per-

nicious effects of de jure seqreqation

would be obvious. Due to its fluid

nature, however, acts now 30 years

nast have negligible present

effects. Such is the fate of the

discriminatory practices plaintiffs

took months to develop. Too many

events have intervened, reshaping

earlier actions. Lee v. Lee County,

supra, 639 F.2d at 1259.

Id. at 98-99. In concluding, the district

court stated “even if the court were to

view plaintiff's evidence liberally, which

under Rule 4l(b), it is not required to

do, the violations proved are at most, de

minimis and far removed in time.” Id.at

105.

Chief Judge Lay's dissent does not

establish what the Jenkins class and KCMSD

did not arque, that these findings of fact

are clearly erroneous.

- 52a -

nre-1954 evidence.

The arqument that the State and SSDs

Participated in continuing interdistrict

violations is contrary to the district

court's finding that the SSDs had met

their constitutional obligation to operate

unitary school systems within four years

after Brown I, most of them doing s0

within a year. Similarly, the arqument

that KCMSD officially sanctioned suburban

flight looks first to KCMSD's violation

which the district court clearly found to

be only intradistrict in nature. The

arqument based on fliaht into neiqhboring

SSDs making the southeast area schools

blacker and recipient SSD schools whiter,

thereby causing racial seqreqation in

adjacent districts, is contrary to the

district court's finding that there was no

- 53a -

barrier of movement to blacks to the SSDs.

The district court specifically found that

there was considerable increase ina the

black enrollment of the SSDs, particularly

Center, Grandview, Hickman Mills, and

‘Raytown.

Similarly, in the enumeration of six

leqal errors, three are based upon

pre-1954 actions of the’ SSDs. The

district court's findings that these acts

have negligible present effect funda-

mentally undermines the validity of these

arguments. As we have seen, the arqument

based on the actions of KCMSD and white

flight run contrary to the factual fin-

dinas mentioned above.

So also, the arqument that the SSDs,

though not at fault, would still be liable

to take part in eliminating the effects on

- 54a -

children in their districts of the State's

metropolitan-wide dual school violations,

suffers from two fatal deficiencies. It

ignores the lack of finding of any such

effects, and is contrary to the district

court's findings that within at most four

vears after Brown I, anv vestiges of the

dual school systems that may have existed

in the SSDs had heen eliminated.

The Jenkins class further arques that

Swann raises a pre-sumption aqainst

schools that are disproportionate in their

racial composition. The district court

did not err in rejecting the Swann pre-

sumption. Milliken was careful to point

out that disparity in the racial com-

position of pupils within a single

district merely signals an inauiry into

the causes for pronounced racial iden-

- 55a -

tifiability of schools within one school

system. The Milliken limitation of this

presumption is the subject of comment by

the Fifth Circuit in Lee v. Lee County

Board of Education, where the court sta-

ted:

It seems important to note

also that Milliken, unlike Swann

and Keyes v. School Dist. No. l,

413 U.S. 189 (1973), did not

sanction the use of any presump-

tions on the aquestion of the

cause of interdistrict seqreaqa-

tion. “hus, while Swann, as

noted above, permits an

inference that the continued

existence of one-race schools in

a system that formerly practiced

de jure segregation is a vestige

of such segregation, and Keyes

permits one to infer the

existence of systemwide de jure

segregation from proof that

school authorities have pursued

an intentional policy of seqre-

gation in a substantial portion

of a school district, Milliken

refused to sanction a presump-

tion that significant dispari-

ties in the racial composition

of autonomous school districts

resulted from impermissible

action by those districts and

- 56a -

thus justified imposing upon

them the burden of remedying

conditions of seqregation

existing in other districts. The

Milliken Court noted that both

Keyes and Swann merely involved

"the use of a significant racial

imbalance in schools within an

autonomous school district as a

signal which operates to shift

the burden of proof [which] is a

very different matter from

equating racial imbalance with a

constitutional violation calling

for a remedy." 418 U.S. at 741

nid * * 2,

639 F.2d at 1254.

Contrary to the argument of the

Jenkins class, cases of this court do not

adopt the Swann presumption in inter-

district cases. See Morrilton School

District No. 32 v. United States, 606 F.2d

at 230; see also United States Ve

Missouri, 515 F.2d 1365 (8th Cir.), cert.

denied, 423 U.S. 451 (1975); Haney v.

County Board of Education, 410 F.2d 920

- 3/a =

(3en. Cie. 1969). They simply recognize

that racial gerrymandering, which’ the

district court specifically found is

absent here, will make school authorities

responsible for the foreseeable effects.

So also, the argument concerning the pre-

sumption runs directly contrary to the

teachings of Washington v. Davis, 426 U.S.

229, 240 (1976), that there must be a

showing in a school deseqreqation case of

"a current condition of seqreqation"

resulting from intentional state action.

The district court's finding that the SSDs

were autonomous prevents a conclusion that

there is a single system to which such a

presumption applies.

The arguments of the Jenkins class run

contrary to the facts found by~ the

district court.!? In essence, in the

l7?Chief Judge Lay's dissent also arques

- 58a -

detailed recitation of evidence, it seeks

to have this court substitute its judqment

for that of the district court. This is

contrary to the general rule of Anderson

v. City of Bessemer City, supra, and to

the specific dictate of this court that we

give “undiminished deference to the fac-

tual adjudications of federal trial judges

in cases such as these, uniquely situated

as those judges are to appraise _ the

societal forces at work in the communities

that a recent order of the district court

made some nine months after the argument

of this case illustrates that the refusal

to grant interdistrict relief was clearly

erroneous and contradictory to its own

findinas. We cannot read the general

statement in the recent order to have the

effect of setting aside carefully detailed

findings of facts and conclusions in its

105 page June 5 Order, its 21 page order

on intradistrict liability, or its 45 page

order on remedy.

- 59a -

where they sit." Little Rock, 778 F.2d at

410-11.

IV.

We next consider arquments advanced by

the Jenkins class that racially discrimi-

natory acts by the State in housing-

related areas justified interdistrict

relief involving the SSDs. Before con-

Sidering the district court's findings on

this matter, we must address the class'

argument that the district court misread

Milliken in deciding whether the SSDs

could be required to participate in an

interdistrict remedy. In doing so, we

must read all of Milliken and all of the

district court's order. According to the

class, the district court read Milliken as

- 60a -

holding that each SSD could not _ be

required to particpate in an interdistrict

remedy absent a finding that that SSD had

engaged in racially discriminatory con-

duct.

The passage from Milliken set forth

above in Part I, supra, made plain that,

before a federal court may impose an

interdistrict remedy, "it must first he

shown that there has been a constitutional

violation within one district that produ-

ces a significant segregative effect in

another district." 418 U.S. at 744-45.

Specifically, the court must find that

racially discriminatory acts "have been a

substantial cause of interdistrict

segreqation."' Id. at 745. Absent this

‘showing, "there is no constitutional wrong

calling for an interdistrict remedy." Id.

- 6la -

On the facts before it, the Court was

forced to conclude in Milliken that:

With no showing of significant

violation by the 53. outlying

school districts and no evidence

of any interdistrict violation or

effect, the court went beyond the

Original theory of the case as

framed by the pleadings and man-

dated a metropolitan area remedy.

To approve the remedy ordered by

the court would imposé on the

outlying districts, not shown to

have committed any constitutional

violation, a wholly impermissible

remedy based on a standard not

hinted at in Brown I and II or

any holding of this Court.

The Court's decision in Hills v.

Gautreaux, 425 U.S. 284, two years later,

forcefully emphasized this central holding

of Milliken. Justice Stewart wrote for

the Court:

Once a constitutional violation

is found, a federal court ~- is

required to tailor "the scope of

the remedy" to fit "the nature

- 62a -

and extent of the constitutional

violation." * * * In Milliken,

there was no finding of unconsti-

tutional action on the part of

the suburban school officials

and no demonstration that the

violations committed in the

operation of the Detroit school

system had had any siaqnificant

segreaative effects in the

suburbs. * * * “The desegrega-

tion order in Milliken- requiring

the consolidation of local school

districts in the Detroit metropo-

litan area thus’~ constituted

direct federal judicial inter-

ference with local governmental

entities without the necessary

predicate of a constitutional

violation by those entities or

of the identification within

them of any significant segqrega-

tive effects resulting from the

Detroit school officials' un-

constitutional conduct. Under

these circumstances, the Court

held that the interdistrict

decree was impermissible because

it was not commensurate with the

constitutional violation to be

repaired.

Id. at 293-94 (emphasis added) (citations

omitted); see also Goldsboro City Board of

a

- 63a -

Education vv. Wayne County Board of

Education, 745 F.2d at 328 ("An indepen-

dent school district which has not caused

segreqation in a neighboring independent

district has no duty to rectify a racial

imbalance in the other’ districts.").

Milliken and Hills make clear that we

may qrant interdistrict relief only to

remedy a constitutional violation com-

mitted by the SSD, or to remedy an inter-

district effect in the SSD caused by a

constitutional violation in KCMSD. The

district court first carefully considered

whether the SSDs had violated the

Constitution. It found they had not.

Indeed, the district court concluded that

to award relief in this case would, as the

Court concluded in Milliken, “impose on

the outlying districts, not shown to have

- 64a -

committed any constitutional violation, a

wholly imnermissible remedy." 418 U.S. at

745. Order of June 5, 1984 at 96. It

further found that the Jenkins class had

not established any acts or omissions by

the SSDs "which have had a substantial

seqreqative impact in any other

district."!8 The district court was com-

pelled to make this inquiry by Milliken

and Hills, stressing as thev do the siaqni-

ficance of the commission of a constitu-

tional violation. The court's consider-

ation of the appropriateness of inter-

district relief would have been incomplete

without this inquiry. Milliken makes

Plain that the issue of whether the par-

ties are constitutional violators must be

18see Note 16, supra.

- - ee + — een

- 65a -

considered as well as the issue of whether

there is a constitutional violation in one

district causing a sianificant seqreqative

effect in a neighboring district.

Moreover, contrary to the arqument of

the class that the court looked only to

the culpability of the SSDs, the scope of

the order is far broader. The court's

order admittedly emphasizes the absence of

culpability of the suburban districts.

However, the court explicitly recoqnized

that under Milliken “there must be evi-

dence of a constitutional violation in one

district that produces aé-—- siqnificant

segreaative effect in another district."

Order of June 5, 1984 at 14, 95. The

district court compared the _ theories

before it with those in Milliken. It

noted that only the schools in one

- 66a -

district were affected and that the remedy

must be limited to that system. In exam-

ining the cause and effect issue, the

court noted that “not only is plaintiff's

evidence here blurred as to cause and

effect, ~there is no ‘careful delineation

of the extent of the effect.'" Id. at 96

(quoting Lee, 639 F.2d at 1256). The

district court thus dealt not only with

the issue of whether the SSDs were consti-

tutional violators but also whether there

were siaqnificant interdistrict seqreqative

effects. See V, infra. When it did so,

it made specific findinas that negate

current siqnificant interdistrict effects,

and concluded that the requirements of

Milliken had not been met.

In Bell v. Board of Education 683

F.2d 963 (6th Cir. 1982), the Sixth

- 67a -

Circuit suqgested a number of practical

problems in attempting to order school

districts to remedy housing violations:

We do not find any case

addressing the argument that a

school board otherwise innocent

of segqregative intent is liable

for the discriminatory housing

practices of other governmental

agencies. We decline to accept

this argument. Under this arqu-

ment the discriminatory conduct

of the FHA in makinq housing

loans and local housing authori-

ties in the construction = and

rental of public housing is

attributable to school boards.

Such a proposal places too heavy

a burden on the schools to remedy

wrongs for which they are no more

or less responsible than the

plaintiffs, the courts, the

churches, the Congress or other

institutions. Plaintiffs do not

suggest how the schools, after a

finding of liability, would go

about remedying this problem or

what kind of order ae federal

court could enter that miqht as a

practical matter have a chance of

changing the fact that black and

white families live in separate

neighborhoods in most towns and

cities.

- 68a -

Id. at 968 (footnote omitted).

The Supreme Court has aqiven consistent

admonition in Hills and Milliken that

federal courts may not “restructur[e] the

operation of local qovernmental entities

that were not implicated in any constitu-

tional violation." 425 U.S. at 279. The

district court's findings amply establish

that the SSDs were not “implicated” in

the State's housing violations. See Part

V.

We have considered that culpability is

an important factor in interdistrict ar-

alysis. In Little Rock, 778 F.2d 404, we

ordered that the boundaries of the North

Little Rock School District remain intact

“in partial recoqnition of the fact that

the nature and extent of its interdistrict

violations are less severe than those of

- 69a -

the other defendants.” Id. at 435. Judge

Arnold's separate concurring and

dissenting opinion recognizes’ that the

remedy to be imposed aaqainst the SSDs must

be “limited by’ the fact that the SSD is

not itself a constitutional violator."

Post at 75.

We recognize that Morrilton School

District No. 32 v. United States, 606 F.2d

222, states that school districts may be

required to participate in a remedy when

"there was no evidence implicating them

in a direct way with the establishment" of

the segreqated district. Id. at 228.

Morrilton is a qerrymandering case. Its

broad lanquage must be limited to its

facts, an interdistrict violation in the

consolidation of school districts, with

the effects felt in each. 19 An attempt

19mjlliken makes clear that "an inter-

-<10a -

district remedy might be in order * * *

where district lines have been deliber-

ately drawn on the basis of race." 606

F.2d at 228 (quoting Milliken, 418 U.S.

at 745). Unlike the present case,

Morrilton contains findings that clearly

fall within the Milliken lanquage. We

dealt in Morrilton with the consolidation

of school districts in Conway County,

Arkansas that created an all-black East

Side District and a disproportionately

white Morrilton District. The court sta-

ted:

The violation here is clearly inter-

district in nature. East Side is

almost entirely black and includes

territory that would properly have

been absorbed by the surrounding

districts were it not for racial con-

siderations. The boundaries of the

East Side District, and consequently,

the boundaries of the other school

districts in Conway County, were not

neutrally drawn. Thus, the prohibi-

tion in other cases * * * is not

applicable here. Interdistrict relief

is appropriate and necessary to remedy

the constitutional violation.

Id. (citations omitted). The court con-

tinued:

Here, the nature of the violation

was the consolidation of school dis-

tricts on the basis of race. * * *

[T]he effects of that consolidation

were manifested primarily in the

boundaries and racial composition of

DS ee OE BA ie 8 ae A

- 7a

to imbue Morrilton with broader’ force

disregards not only its salient facts, but

also the Seventh Circuit precedent it

quotes: "If the state has contributed to

the separation of the races, it has the

obligation to remedy the constitutional

violations. That remedy may include

school districts which are its instrumen-

talities and which were the product of the

the Morrilton, Plumerville and East

Side Districts. East Side is almost

all black, and Morrilton is dispropor-

tionately white.

Id. at 229.

Morrilton holds that the unconstitu-

tional consolidation of school districts

so aS to create an all-black district

leaving others disproportionately white

may properly be remedied through inter-

district relief. To arque that Morrilton

compels imposition of an interdistrict

remedy on the innocent SSDs in this case

ignores that it deals with racial qerry-

manderinga.

- 12a *

violation." Morrilton, 606 F.2d at 229

(quoting United States v. Board of School

Commissioners, 573 F.2d 400, 410 (7th

Cir.), cert. denied sub nom. Bowen v.

United States, 439 U.S. 824 (1978)). Here

the district court clearly found that the

SSDs were autonomous, not mere instrumen-

talities of the State, and their bound-

aries not the product of any constitution-

al violation by the State. Despite

plaintiffs' urging, the language of

Morrilton is limited to its facts, and

does not reach the issues we face today.

V.

The Jenkins class argues that a dual

housina violation, fueled by State

enforcement of racially restricted cove-

nants and felt in virtually every other

ee

seed ies Sar woe wl Phe

Toe =

housing program in the three-county area

touching lending, appraisal, and_ sales

practices, effectively channelled black

and white low-income families to separate

communities. Such violation and effects,

it arques, were interdistrict, and there-

fore require the interdistrict remedy of

consolidation. The Jenkins class further

argues that as part and parcel of the

State's dual housing market violations,

there were constitutional violations by

the LCRA and HAKC, which diverted blacks

exclusively to the black areas within the

KCMSD.

The district court made ae_e general

finding that not only is the evidence

"blurred as to the cause and effect, there

was no ‘careful delineation of the extent

of the effect.'" Order of June 5, 1984 at

- 43 ~

96. It made specific findings that negate

the existence of siqnificant interdistrict

current effects in the SSDs. 29 As

Milliken requires an interdistrict viola-

tion causing a significant seqregative

effect in another district, these findinas

pose an insuperable barrier to aqranting

interdistrict relief.

The district court found that school

district boundaries had not constrained

black movement in any way, id. at 39, and

no acts of the SSDs contained blacks in

KCMSD or kept them out of the SSDs. Id.

at 3. The absence of black schools in

the defendant districts before Brown did

not discourage black families from outside

or within Missouri from moving to and

20The court also specifically found the

converse. The district court found that

no SSD had committed any constitutional

violation that had interdistrict segreqga-

tive effect in the KCMSD or any other

~ 13a -

living in those districts. Id. at 18.

The district court found that there was

steady increase in black enrollments in

the SSDs since 1968, and in 1980, 23,434

blacks resided outside the principal con-

tiguous area. Id. at 36-37. We have

observed the increase in black enrollment

in Hickman Mills, Center, Grandview, and

Raytown. See note 9, supra.

The court found that the substantial

increases in the KCMSD black population

were in large part due to the unusual eco-

nomic and employment ramifications of the

World Wars and intervening Depression.

Id. at 17. None of the SSDs were shown

by the expert Dr. Tobin to have played any

district. Order of June 5, 1984 at 18-19,

45, 48, Sl, S34, 39, 67; 74, 78, 83, Fi,

and 95.

- 76a -

Siqnificant role in housing matters or to

have exerted any control whatsoever over

the private decisions people made about

where to live. Id. at 37-38. The

district court made numerous findings con-

cerning housing choices, economics, and

job opportunities. Jenkins v. Missouri,

593 F. Supp. at 1490. In rejecting the

expert testimony of Dr. Kane, the court

pointed to the importance of job location,

ethnic clustering, and personal pre-

ference. Id. at 1491. These findings

demonstrate the importance of personal

choice,“ referred to by at least two

courts as “voting with feet." Se» Riddick,

784 F.2d at 537; Davis v. East Baton Rouge

Parish School Board, 721 F.2d 1425, 1435

21one court observed that people move

for a variety of reasons, including a

desire to be with persons of the same race

or religion. It specifically found that

many blacks who moved to the suburbs did

- 11 =

(Sth Cir. 1983).

Regarding the existence of racially

restrictive covenants, stressed by the

Jenkins class and by Judge Arnold in his

concurring and dissenting opinion, the

district court made it plain that the

restrictive covenants’ have no current

effect in the SSDs. The district court

found no evidence that the covenants were

enforced by state courts following Shelley

v. Kraemer, 334 U.S. 1 (1948). It recoaq-

nized the tremendous housing growth in

many suburban areas after 1948, when the

so to enjoy a middle class environment

rather than an intearated environment.

Order of June 5, 1984 at 35. A substan-

tial number of black families moved to the

SSDs during and after the 1960s, many from

inside the KCMSD. Id. at 41-42. There was

testimony that crime and city riots were

factors in housing choices.

- 78a -

covenants were a nullity. That blacks

presently live in locations previously

covered by restrictive covenants further

undermines their sianificance. Order of

June 5, 1984 at 39,22

These findings of the district court

that we have outlined above deal with con-

ditions or effects that would have been

expected had there been an interdistrict

effect in the SSDs flowing from housing

violations committed by the State or other

actors in KCMSD.

Judge Arnold's concurring and dissent-

ing opinion arques, as does the Jenkins

class, that Evans v. Buchanan, 393 F.

Supp. 428 (D.C. Del.), aff'd 423 U.S. 963

(1975), and United States v. Board of

2euith respect to the various districts,

the court found that Fort Osage had had no

covenants, Order of June 5, 1984 at 51,

that Grandview, Lee's Summit, and North

Kansas City had very few covenants, id. at

- 79a -

School Commissioners, 637 F.2d 1101 (7th

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

both approved interdistrict remedies based

in part upon housing discrimination prac-

ticed by state actors. Post at 65.23 In

Evans, the district court found that

53, 73, and 83, and that Independence and

Liberty also had few such covenants. Id.

at 66, 77. The district court found that

the restrictive covenants had no effect in

Blue Springs, id. at 44-45, and Park Hill,

id. at 90. There was no evidence that

covenants prevented blacks from moving

into Independence, id. at 66, Lee's

Summit, id. at 73, or Liberty, id. at 78,

and there was no present effect of past

practices in preventing movement into

Center, id. at 48, Hickman Mills, id. at

59, and Raytown, id at 94. There was no

credible evidence of housing discrimina-

tion in North Kansas City that had

substantial interdistrict effect and much

of the development there occurred after

the effects of the few covenants were

mooted by Shelley, id. at 83, and similar

development after Shelley eliminated the

effect of such covenants in Grandview.

Id. at 53.

23Roth cases dealt not only with the

housing issue, but also contained stronq

findinas based upon boundary violations.

See Part VI, infra.

—————eGV"“_—

- 80a -

qovernmental authorities had provided

public housing almost exclusively within

the confines of Wilmington and restricted

the availability of private and public

housina to blacks in suburban New Castle

County. 393 F. Supp. at 435. In Board of

School Commissioners, the Seventh Circuit

affirmed a finding that all public housing

in the county had been located within the

boundaries of the Indianapolis’ public

school district and this was the seqreqa-

tive intent of state agencies.24 637 F.2d

at 1110-11.

In this case the district court find-

inas are far different. There was no lack

of balance between federally assisted

housing within the KCMSD and the suburban

240n similar facts in United States v.

Yonkers Board of Education, 624 F. Supp.

[276 (S.D.N.Y. 1985), decided after sub-

mission of this case, a New York district

court imposed an interdistrict remedy

= —-

- 8la -

based on housing violations. The detailed

findinas of the district court established

a lenqthy chain of actions which were

desiqned to and succeeded in concentrating

the black population in southwest Yonkers

and in maintaining east and northwest

Yonkers as overwhelmingly white com-

munities. In contrast to the facts pre-

sented in this case, not one of Yonkers’

subsidized housing projects for families

was located in the overwhelmingly white

neighborhoods of the city's east and

northwest sections. Sites for such pro-

jects in white communities were repeatedly

considered and rejected. Such action

contributed siqnificantly to extreme

seqreqation in Yonkers. Id. at 1364-65.

More than 30 years of subsidized housing

activity with a sizeable and changing

qroup of city officials sharing respon-

sibility was involved. Id. at 1369. Over

that period, there was constant strong

community opposition following proposals

of sites, a political structure likely to

make community opposition effective, and

extreme consistency in sites in east

Yonkers and other heavily white areas

being rejected. Whatever the personnel,

there was a common theme that racially

influenced opposition to subsidized

housing in certain areas of the city and

acquiescence in that opposition by city

officials. Id. at 1369-70. The court

found that the extreme concentration of

subsidized housing in southwest Yonkers

was the result of a pattern and practice

of racial discrimination by city offi-

cials. Id. at 1373.

- 82a -

areas, as demonstrated by the 6,832

HUD-insured or subsidized multi-family

units within KCMSD and 9,872 such units in

the eleven SSDs. Jenkins v. Missouri,

593 F. Supp. at 1499. HUD efforts were

desianed to insure that participating sec-

tion 8 certificate-holders were aware that

affordable housing was available

throughout the entire community and that

they were informed of their rights under

the fair housing laws. Id. at 1500. The

court pointed to the affirmative marketing

efforts in the Parvin Estates’ area,

located in predominantly white North

Kansas City, which were never able to

attract more than 12% minority residents.

Id. The district court further found no

evidence that the practices of HUD in site

selection and approval for federally sub-

83a -

sidized multi-family housing had a

substantial effect upon the racial make-up

of schools in KCMSD. Id. at 1499. The

findings contained in the analysis of

HUD's liability also relate to LCRA and

HAKC.

The facts relied on to support the

housing violations in Evans and Board of

School Commissioners are directly contrary

to those found in this case. These cases

simply give no assistance to the argument

that there have been constitutional viola-

tions by housing actors having 2 signifi-

cant seqreqative effect in the SSDs.

Other findings on housing practices

are siqnificant. The district court spe-

cifically found that FHA appraisal prac-

tices before 1950 had at most a de minimis

effect on present racial housing patterns.

- 84a -

It examined LCRA practices and its role in

administering urban renewal programs under

the Housing Act of 1949. It found that

HUD had investigated LCRA and issued 3

report in April 1972 finding discrimina-

tion in LCRA's referral practices and in

requiring that such practices be ceased

and reports filed. Failure to correct

this led in June 1973 to refusal to fund

the program and a cooperative agreement

between HUD, LCRA, and the City of Kansas

City by which the city assumed respon-

sibility for relocation under the Act.

The relocation report showed that during

the period from 1971 to 1976, only 174

black families were relocated. Jenkins v.

Missouri, 593 F. Supp. at 1497-98. Aqain,

the finding of the district court concerns

and is limited to intradistrict claims.

iia

- 85a -

This finding is not sufficient to justify

remand to the district court for con-

Sideration, as Judge Arnold suqgests, of

what interdistrict effect may have

resulted from such actions.

The district court found that while

the HAKC constructed seven family projects

between 1952 and 1963 within the model

cities or urban renewal areas, the loca-

tion was in accordance with congressional

acts and the assiqnment practices were

approved by HUD. Id. at 1498-99. The

court reviewed HUD policies and_ found

expenditures to be balanced between KCMSD

and the suburban areas. Id. at 1499. It

further found no evidence that the prac-

tices of HUD in site selection and appro-

val for federally subsidized multi-family

housing substantially affected the racial

- 86a -

make-up of schools within the KCMSD. Id.

These findings clearly were made with

reference to the claims against HUD. They

do not apply to the housing practices in

KCMSD. They belie the possibility of

interdistrict effect occurring in the

SSDs.

Another weakness immediately is

apparent in analyzing the Jenkins class'

arguments in the context of the district

court's findings. The activities of LCRA

and HAKC to which attention is primarily

pointed, the investigation and the change

in practices, both occurred in the 1970's

after KCMSD had experienced the sub-

stantial increase in black school popula-

tion. The exhibit relied upon by the

district court in its findings demon-

strates that the KCMSD black population

Pe eee ieee rr ad

3

2

:

3

1

:

3

- 87a -

was 18.9% in 1955-56, that it had qrown to

30.7% in 1961-62, and had reached 50.2% in

the 1970-71 school year. The substantial

increase which resulted in the district

becoming majority black thus had occurred

before the particular events to which the

Jenkins class points. To arque that

alleqed LCRA and HAKC violations created

these interdistrict effects simply iaqnores

logic.

The court specifically found that

KCMSD assignments of children to. par-

ticular schools had an_ intradistrict

effect and were not influenced by any SSD.

Further, these actions did not have a

significant effect on the enrollment in

any SSD. Order of June 5, 1984 at 38.25

25chief Judge Lay's dissent devotes con-

siderable discussion to the findings of

the district court in the intradistrict

hearing concerning the acts of KCMSD. It

refers to the movement of the black popu-

- 88a -

The court considered many non-

qovernmental housing factors and rejected

the theory that liability may be imposed

upon the SSDs for being the recipients of

people moving for whatever reason. The

court found that red-lining, steering, and

block-busting practices by private real

estate agents, which may have affected the

racial composition of KCMSD, were not the

actions of KCMSD or of any SSD and are

beyond the control of any school district.

lation from the central city in a south-

east direction. See 593 F. Supp. at 1494.

The dissent embarks upon factfindings of

its own, however, when it argues that such

movement “directly result[ed] in

displacing whites into the SSDs." Chief

Judge Lay's dissent at 98-99. This is

directly contrary to the finding of the

district court in its consideration of

interdistrict liability, and the dissent

makes no effort to consider these state-

ments in a proper Rule 52(a) analysis.

- —— |

- 89a -

The transition of neighborhoods from white

to black and accompanying white flight

existed in Kansas City since the 1940's,

but no testimony linked the SSDs to the

process. Id. at 41. Absent a nexus be-

tween the conduct of the SSDs and the

policies or practices of independent

housing actors, the court would not hold

the SSDs liable for racial imbalance.

Id. at 42.

Judge Arnold stresses the district

court's findings that there is a dual

housing market impacting blacks in the

KCMSD and causing the public schools to

swell in black enrollment, 593 F. Supp.

at 1491, and that the State had encouraged

racial discrimination by private indiv-

iduals. Id. at 1503. The court went no

further but commented that the question of

- 90a -

State liability would be close if it

hinged solely on this encouragement of

Private discrimination. It then proceeded

to base its finding against the State on

the. intentional creation of the dual

school system in KCMSD and the failure to

eradicate its vestiges. The Jenkins class

makes much of these statements by the

district court. Nevertheless, they fall

short of making a specific finding of a

constitutional violation, and certainly

make no finding of any interdistrict

effect. That the findinqs are in the

district court's separate opinion con-

cerning intradistrict liability prevents

extension of such findings to arquments

regarding interdiscrict effect in the

SSDs.

Thus, even acceptina the Jenkins

- 9la -

class’ arguments that the district court

misread Milliken by improperly limiting

its inquiry solely to whether the SSDs

were guilty of committing constitutional

violations, we conclude that the factual

findings of the district court effectively

foreclose findings of interdistrict effect

in the SSDs flowing from constitutional

violations with respect to housing that

may have occurred in KCMSD, 26 It is, of

course, evident from the findings that

there were~no constitutional violations in

the SSDs. Under Milliken this answers the

arguments made by the Jenkins class, as

well as the further articulation in the

arguments of KCMSD, and forecloses efforts

to require the SSDs to be subject to the

26, recent article, Housing

Discrimination as a Basis for Inter-

District School Deseqregqation Remedies, 93

Yale L.J. 340 (1983), flatly arques for

the extension of housing as a basis for

- 92a -

claim for interdistrict relief, be it con-

metropolitan school deseqreqation remedies

and as a means of overcoming the Milliken

barriers. It outlines in some detail the

use of this theory in various deseqreqa-

tion cases, including this one. See id.

at nn. 20 & 21. Its description of the

limitations of this theory are of

interest:

By contrast, the housing approach is

limited in two ways. It does not

justify expansion of the remedy beyond

the geoqraphical area of operation of

the housing authority or other govern-

mental entity found guilty of consti-

tutional violations. Further, the

scope of the remedy is limited to the

extent to which official housing

discrimination demonstrably caused

school segregation. Consequently,

the housing approach is consistent

with the agency principle that seeks

to prevent local agents of the state

from escaping participating in reme-

dies for their own wronadoinga.

Id. at 347 (emphasis added) (footnotes

omitted). There simply is no evidence in

the record in this case that official

housing discrimination caused school

segregation and the findings of the

district court as we have outlined above

so demonstrate.

- 93a -

solidation or some step less drastic.

To consider isolated bits of evidence,

de minimis in nature, and to mix this with

speculation is insufficient to support the

conclusion that there are additional fac-

tual issues not passed upon by the

district court. The findinqs made were

adequate to dispel the conclusion required

by Milliken that there be siaqnificant

segreaative effects in the SSDs caused by

actions of a constitutional violator in

KCMSD.

The housing discussion is not complete

without another word of caution.

Plaintiff's expert, Dr. Gary Orfield,

testified that the Kansas City metropoli-

tan area, located in both Missouri and

Kansas, comprised a single housing market.

Dr. Kane testified that 7,239 black stu-

- 94a -

dents now in Missouri schools would be in

Kansas schools had there not been housing

discrimination. Record at 7669-70, Pl's

Exhibit 1265-R. A number of witnesses

called by plaintifé testified their

children were moved from the KCMSD to

Johnson County, Kansas. Record at

6722-23, 6809, 6863-64, 6953. The

district court dismissed the Kansas

districts from this action in its order of

October 6, 1978. School District of

Kansas City v. Missouri, 460 F. Supp. at

431. Accordingly, it made no findings on

these issues. This evidence, however,

points to the serious complications pre-

sent in a claim based on housing viola-

tions where the housing market extends

into another state and there is movement

from an impacted district into the other

state.

VI.

The Jenkins class relies particularly

on decisions from Wilminaton, Louisville,

Indianapolis, and Alleqheny County, in

which interdistrict remedies had _ heen

ordered. These cases involved gerryman-

dering; the present case does not. The

district court specifically found that the

establishment and maintenance of school

district boundaries was a local matter in

Missouri, determined through local ini-

tiative, and uninfluenced by racial ani-

mus. The district court thus held the

qerrymandering cases inapposite. We

agree.

Evans v. Buchanan, 393 F. Supp. 428,

considered the effect of Delaware leqisla-

tion explicitly prohibiting the state

- 96a -

board from altering the boundaries of the

Wilminqton school district, fixed as

coterminous with the Wilminqton = city

limits. The district court found no

racially discriminatory purpose in the

Act's freezing of the Wilmington

district's boundaries. Id. at 439. It

held, however, that the Act helped to

maintain the racial identifiability of the

Wilminaton and the suburban New Castle

County school districts and thus contri-

buted to the seqreqation of the races.

Id. at 445-46. The district court also

found that the Wilmington district and the

suburban districts were not meaningfully

separate and autonomous. Id. at 428.

Similarly, in Newburq Area Council,

Inc. v. Board of Education, 5190 F.2d 1358

(6th Cir. 1974), cert. denied, 421 U.S.

- 97a -

931 (1975), the court observed that while

the county was established Dy statute as

the basic educational unit, "school

district lines in Kentucky haf[d] heen

iqnored in the past for the Purpose of

aiding and implementing continued

segregation," and that "{[sluch disreaqard

continue[d] to have an effect on the

racial imbalance in the county's schools *

* *." Id. at 1360. In addition, the court

specifically recoqnized that hoth the

Louisville and Jefferson County school

districts had failed to eliminate all

vestiges of state-imposed seqreqation.

Id. at 1359, Accordingly, it is clear

that unlike the present case, the

Louisville boundary lines were pur-

posefully manipulated to maintain segre-

qated school districts.

- 98a -

United States Ve Board of School

Commissioners, 637 F.2d 1101, involved the

exclusion of certain school districts from

the Uni-Gov legislation which perpetuated

the seqregated white schools in suburban

Marion County. Id. at. 11035. The issue

involved was whether the school boundaries

should coincide with the expansion of the

boundaries of the City of Indianapolis.

The Fourth Circuit affirmed the findings

that the decisions were made with dis-

criminatory purpose. Id. at 1108.

In Hoots v. Pennsylvania, 672 F.2d

1107 (3d Cir.), cert. denied, 459 U.S. 824

(1982), the court pointed to findings that

in 1971 the state and county boards inten-

tionally created a district which was 63%

black, and four nearby districts that were

from 87% to over 99% white. Id. at Baehe

sin iene tn tin he A al cect THO tn

- 99a -

This process involved the redrawing of

school boundaries, and as such was a

constitutional violation. id. at 1120.

The violation was interdistrict in nature

and required interdistrict relief.

These cases all involve qovernmental

action fixing or ignoring boundaries with

discriminatory intent. The findings in

the case before us are ta the contrary.

These cases are therefore distinguishable

as are the boundary cases such as

Morrilton, considered by this court. See

Part . IV, supra. These decisions’ upon

which the Jenkins class so heavily relies,

when viewed in light of the findings made

by the district court, plainly have no

applicability to the present case. The

district court therefore correctly

rejected arquments based upon them.

VII.

To the contrary, other decisions

relied upon by the district court carry

qreat force. Lee v. Lee County Board of

Education, 639 F.2d 1243, distinguishing

Newburq and Evans, refused to impose an

interdistrict remedy on truly autonomous

local school districts. Taylor Ve

Ouachita Parish School Board, 648 F.2d

959, 966 (Sth Cir. 1981), also found

autonomous school districts and an intra-

district violation as opposed to inter-

district violations. A showing of

seqreaqative effect alone was considered to

be insufficient under Milliken without

demonstration of interdistrict violation

and interdistrict effect.

Goldsboro City Board of Education v.

Wayne County Board of Education, 745 F.2d

- 10la -

324, presents many similarities to the

case before us. The argument was made,

Similar to that advanced by the Jenkins

class, that the district court erred in

its legal ruling that the county board

owed no duty to the city board to decrease

the proportion of blacks in the city

schools. Both the city and county school

districts were unitary. The court in

Goldsboro stated:

An independent school district

which has not caused segregation

in a neighboring independent

district has no duty to rectify

a racial imbalance in the other

district. * * * Both the City

and County were found to have

unitary school systems. * * *

Swann implies that once a school

system is unitary it has no duty

to go to extraordinary measures

to compensate for demographic

changes it did not cause or

encouraqe.

Id. at 328-29 (citations omitted) (footnote

ommitted). Goldsboro rejected the arqu-

tb :

- 102a -

ment that it violated the Constitution by

maintaining separate county and city

school districts which, while racially

neutral when created, had in the face of

demographic changes made the population of

the city schools more black. 27

The Atlanta case also involves facts

similar to those before us. The decision

of a three-judge court in Armour v. Nix,

16-708 (N.D. Ga. 1979), aff'd, 446 U.S.

930 (1980), denied an interdistrict

remedy. Armour discussed particularly

past conditions and practices and stressed

the need for a current’ interdistrict

effect. The holding in Armour was best

Summarized in Lee v. Lee County Board of

Education, 639 F.2d 1243, as follows:

27Goldsboro commented about the myriad

reasons for increase in black population

in metronolitan areas, referring to

Bradley v. School Board of the City of

Richmond, Va., 462 F.2d 1058, 1066 (4th

od

- 103a -

Armour involved the City of

Atlanta school district and a

number of suburban county

districts in the metropolitan

Atlanta area. The demographic

pattern was a familiar one. The

City of Atlanta, and its schools

system, has become smaller and

predominantly black, as the

surrounding suburban communities

have expanded rapidly and become

predominantly white. Given these

residential patterns, no intra-

district desegregation plan pro-

mised any degree of meaningful

racial integration of the public

schools within the city district.

In Armour, the court concluded

that interdistrict relief would,

nevertheless, be inappropriate

because the current pattern of

pervasive residential segrega-

tion, which the court found to be

the proximate cause of the racial

disparities in the population of

the various districts, was not

the direct result of any official

action on the part of the school

authorities or any other govern-

mental agent.

Cir. 1972), aff'd without opinion by an

equally divided court, 412 U.S. 92 (1973).

Goldsboro, 745 F.2d at 330 n.9.

- 104a -

Id. at 1259 (footnote omitted).

It is interesting to observe that the

central thrust of the jurisdictional state-

ment filed with the Supreme Court by

appellant in Armour is based on acts of

state actors causing housing seqregation

in the greater Atlanta area, which, it was

argued should require an _ interdistrict

remedy. The Supreme Court's summary

affirmance of Armour, therefore, provides

precedential quidance for us. Tully v.

Griffin, 429 U.S. 68 (1976); Hicks v.

Miranda, 422 U.S. 332, 343-45 (1975).

VII!l.

Yet another reason gives stronq sup-

port to the district court's denial of

interdistrict relief. The district court,

—-

- 105a -

as we have observed on several occasions,

made stronq findings that the SSDs_ had

become unitary and had eliminated all

vestiges of the dual school system at

least by the early 1960's.28 This makes

appropriate, as the district court

correctly recoqnized, the Court's

discussion in Swann v. Charlotte-Mecklen-

burqa Board of Education, 402 U.S. 1:

At some point, thes school

authorities and others like them

should have achieved full

compliance with this Court's

decision in Brown I. The systems

would then be “unitary” in the

sense required by our decisions

in Green and Alexander.

It does not follow that the

communities served by such

systems will remain demoqraphi-

cally stable, for in a qrowina,

mobile society, few will do so.

Neither school authorities nor

district courts are constitu-

tionally required to make year-

by-year adjustments of the racial

28chief Judge Lay in his dissent arques

that the SSDs did not satisfy the require-

ments of Brown by simply adopting a

- 106a -

composition of student hodies

once the affirmative duty to

desearenate has been accomplished

and racial discrimination through

of ficia) action is-7~ eliminated

from the system. This does not

mean that federal courts are

without power to deal with future

problems; but in the absence of a

showing that either the school

authorities or some other agency

of the State has deliberately

attempted to Fix or alter

demographic patterns to affect

the racial composition of the

schools, further intervention bv

a district court should not be

necessary.

Id. at 21-32. '

The district court found that in the

1954-55 school year 18.9% of KCMSD's stu-

dents were black and that the district was

racially neutral position. The arqument

that the SSDs must do more to counteract

the interdistrict effects flowing from the

pre-1954 interdistrict violations com-

pletely and totally iqnores the district

court's findings that any pre-1954 acts

had negligible and de minimis current

effects.

i a ee i a ae

- 107a -

majority white in enrollment until 1970.

Jenkins vs Missouri., 593 F. Supp. at

1492. The exhibit upon which these fin-

dinas were based further demonstrates that

the district became 30% black in the

1961-62 school year, 40% black in the

1965-66 school year, and 60% black in the

1975-76 school year. The sianificance of

these findings is that the increase in

black population in KCMSD accelerated

after the SSDs eliminated the vestiges of

tie system and began operating unitary

school systems. The situation is similar

to that in Goldsboro, 745 F.2d at 328-29.

In Riddick, 784 F.2d 521, the court

stated:

Rut once the aoal of a unitary

school system is achieved, the

district court's role ends.

x * *

We have onlv recently exa-

mined both Pasadena and Swann

7

- 108a -

and concluded that a district

court's power to effect addi-

tional remedial orders is

limited. "Once a school system

has achieved unitary status, 4

court may not order further

relief to counter-act reseqreqa~

tion that does not result from

the school system's inten-

tionally discriminatory acts."

Vauahns, supra, at 988. Other

courts have reached the same

conclusion. Davis, supra, 721

F.2d at 1435 (“Changes in neiqh-

horhood ethnicity takina place

after school officials have

transformed their system into a

unitary one need not be

remedied, of course, for school

officials are under no duty to

adjust for the purely private

acts of those who chose to vote

with their feet."); Ross V-

Houston Independent School

Dist., 699 F.2d 210, 482 sen

Cir. 1983)

Thus, the findinas of the district

court that the SSDs had become unitary,

and that only later did the KCMSD'‘'s black

population grow, together with the expla-

— —e=— SS :—<( i‘ ‘mmm

- 109a -

nation in Swann, compel the conclusion

that there be no further intervention by

federal courts with the SSDs. 29

IX.

The district court dismissed the

claims that HUD, in administering housing

policies and proarams, had violated the

Fifth Amendment of the United States

Constitution, Title VI of the Civil Rights

Act of 1964, 41 U.S.C. § 2000(d), et sea.,

Title VIII of the Civil Rights Act of

1968, 42 U.S.C. § 3601, et seq., and

various housing laws and requlations.

We have discussed briefly, in the

housing context, the Jenkins class‘ claims

against HUD. It claims that HUD violated

its Title VII and Title VIII obligation by

29The Supreme Court, in Wyqant v.

Jackson Board of Education, 106 S. Ct.

1842 (1986), pointed to the continued

vitality of this principle.

- 110a -

continuing to fund LCRA and HAKC after it

knew that that agencies employed racially

discriminatory housing practices, and by

continuing to administer its section 8

housing program in a manner which is

seqregative in fact. Section 8 is a

housing assistance payment proqram in

which HUD issues certificates to low

income renters who then present these cer-

tificates to landlords for rental

payments. The Jenkins class maintains that

HUD failed to direct the certificate

recipients to integrative locations and,

as a result, three-fourths of certificate

holders rent in predominantly black

housing units within the KCMSD., [t

further contends that HUD administered its

section 235 single-family mortqaaqe

assistance proaqram in a manner which fun-

- llla -

neled blacks into transitional areas of

KCMSD and whites into the SSDs.

Ultimately, the Jenkins class asserts, HUD

allowed foreclosed section 235 housing in

these transitional areas to deteriorate,

thus contributing to white flight into the

suburbs. They Finally charge that

although HUD abandoned its 1960s “social

homoqeneity" policy, it took no steps to

encourage families benefiting from its

housing programs to make integrative

choices.

The district court addressed these

contentions in denying the claims against

HUD. The Jenkins class simply reasserts

these claims on appeal. They do not

assert that the district court's

underlyinq factual findinas are clearly

erroneous. With respect to HUD's rela-

- liza =

tionship with HAKC and LCRA, the court

found, as we discussed above, that HUD

investiaated the violations and entered a

cooperative agreement with those agencies

and the City of Kansas City to correct the

violations. The court found that HUD

acted in a reasonable and responsive

manner, that its conduct was not arbitrary

and capricious, and concluded that there

was no violation of plaintiffs' fifth

amendment rights. Jenkins v. Missouri,

593 F. Supp. at 1498-99. Regarding sec-

tion 8 certificate-holders, the court

found no evidence that HUD attempted to

direct these individuals into particular

housing areas. With respect to the other

siting issues, the district court found

that HUD followed a balanced housing

policy and, by assisting housing projects

- ll3a -

in the suburban area, attempted to ensure

that housing located in inner-city areas

was balanced. Id. at 1499. Further, it is

again relevant that the section 235

proaram, authorized by the National

Housing Act in 1968, began essentially

after the massive shift in the racial

population of southeast Kansas City had

occurred. Record at 12048-49. Most of

these schools had by then become predomi-

nantly black. The rapid racial turnover

was attributed by plaintiffs' witnesses to

a variety of non-HUD related factors and

was considered by one of plaintiffs’

expert witnesses to be inevitable. Record

at 12034, 12061. Plaintiffs' expert, Dr.

Gary Orfield, testified that by 1954 the

KCMSD schools, like those of most central

cities in the country, were on course to

- 1ll4a -

hecome predominantly black, regardless of

the desegregation actions taken at that

point. Record at 14891-93.

We conclude that plaintiffs' arquments

do not show that the district court erred

as a matter of law in its judgment for

HUD. We affirm the district court's

dismissal of the claims aqainst HUD.

X.

Finally, the KCMSD- challenges the

district court's ruling that for lack of

standing KCMSD must be dismissed as a

party plaintiff and realigned as a defen-

dant. KCMSD argued that it sustained eco-

nomic injury through the action of the

other defendants and therefore had

standing to seek recovery against them.

The district court carefully considered

- 1]15a -

this and other arquments urged by KCMSD to

proceed as a party plaintiff. The court

recognized a potential conflict between

the interests of students seeking to

demonstrate the existence of seqregative

conditions in the area, and those of the

KCMSD, which would resist the introduction

of incriminating evidence concerning its

Own past or present actions. School

District of Kansas City, Mo. v. Missouri,

460 F. Supp. at 441. The findings of

-KCMSD liabilitv in the Order of September

17, 1984, Jenkins v. Missouri, 593 F.

Supp. at 1492-95, 1504, 1506, and the

Order of June 14, 1985, confirm the con-

cerns of the district court in October

1978 that a conflict of interest existed.

The district court therefore did not err

in dismissing KCMSD as a party plaintif

- ll6a -

and realiqning it as a defendant.

XI.

We now consider the intradistrict

remedy ordered by the district court. No

one challenges the substantial portion in

which the costs are divided evenly between

the State and the KCMSD. These include a

program to achieve the AAA rating which

would include library improvement '- and

teaching load and curriculum improvements

and addition of counselors. The imple-

mentation of a summer school program and

full-day kindergarten, before- and after-

school tutoring, and an early childhood

development program are the other remedial

steps ordered by the district court.

These programs impose a cost over a three-

year period on both the State and KCMSD of

$10,140,472 each.

- iva =

The State, however, challenges” an

improved student achievement program which

essentially involves grants to each of the

schools in KCMSD for a three-year period,

the voluntary interdistrict transfer plan,

and the reduction of class size proposal,

all of which involve costs to be imposed

upon the State alone. We will consider

each of these items in turn, as well as

the capital improvements program _ which

imposed a cost on the school district of

$10,000,000 over a three-year period, and

$27,000,000 on the State over the same

period.

We have approved remedial and compen-

Satory programs in school desegregation

cases. See Liddell v. Missouri, 731 F.2d

1294. There we stated, in a portion of

the opinion joined by eight judges of this

court:

Id.

- 118a -

[Tlo remedy the effects of a dual

system which operated for decades

with the sanction of law, reme-

dial efforts must also con-

centrate on systemic educational

improvements.

A secondary remedial objec-

tive of the quality education

improvements is to enhance the

appeal of the city school system,

thereby promoting the chances of

a stable and successful voluntary

deseaqregation plan. The exodus of

white parents and students out of

fear of integration, or “white

flight," is no excuse for school

officials to avoid desegreqgatinga.

at 1313 (emphasis in original)

(citations omitted).

this

The district court properly recognized

principle when it stated in

Memorandum Opinion of June 14, 1985:

Measures requiring educa-

tional improvements’ have been

incorporated into many desegreqa-

tion remedies. * * * The use of

ancillary programs to improve the

educational quality of a school

district in 3 desegregation

remedy- is based upon the federal

district's "duty to render a

its

- 119a -

decree which will .90. tar -408

possible eliminate the discrimi-

natory effects of the past... "

* * * No party to this case has

Suggested that this plan should

not contain components'9 desiaqned

to improve educational achieve-

ment. In fact, it is

"appropriate to include a number

of properly targeted educational

Programs in a desegregation plan"

(State Plan at 5). This is true

because "individuals in our

society who do not possess the

levels of skill, literacy, and

training essential to this new

era will be effectively

disenfranchised, not simply from

the material rewards that accom-

pany competent performance, but

also from the chance to par-

ticipate fully in our national

life." A Nation at Risk at p 7.

Memorandum Opinion of June 14, 1985 at 3-4

(citations omitted).

Recoqnizing these principles, a number

of the programs designed to improve stu-

dent achievement are not the subject of

attack in this appeal before us.

A.

- 120a -

The State arques that the voluntary

interdistrict transfer plan imposes an

interdistrict remedy for an intradistrict

violation. The State concedes that this

argument was rejected in Liddell, 731 F.2d

1294. This court there held, relying on

its earlier decisions in the Liddell liti-

gation, that a voluntary intecdistrict

Program was a “valid part of the attempt

to fashion a workable remedy within the

city" and would be entirely enforceable

against the State. Id. at 1303, 30

Our holding in Liddell was the basis

for the following findinas of the district

court:

To accomplish desegreqation

within the boundary lines of a

school district whose enrollment

remains 68.3% black is a dif-

ficult task. As this Court

stated in its January 25, i985

30a voluntary interdistrict program is

one that has great potential for improving

the racial balance in the Kansas City

- l2la -

order, “because of restrictions

on this Court's remedial powers

in restructuring the operations

of local and state government

entities," any mandatory plan

which would go beyond the boun-

dary lines of KCMSD qoes far

beyond the nature and extent of

the constitutional violation

this Court found existed. * * *

In addition, voluntary inter-

district transfers may serve to

provide additional opportunities

for desegreqated schools as well

as ‘desegqregative educational

experiences for KCMSD students.

Order of June 14, 1985 at 31 (citations

omitted).

area. The experience in St. Louis with

such a plan seems to have been favorable.

The district court is correct in its

holding that such a program cannot be man-

datorily imposed upon the record before

the court. Whether a refusal of a

district to participate in such a volun-

tary program may evidence discriminatory

intent and thus be an independent basis

for further relief and mandatory par-

ticipation is an issue that we should not

anticipate.

a

- 122a -

The district court specifically found

that the State had created the dual school

system in Kansas City, that vestiges still

lingered, and the obliaqations of KCMSD and

the State to eliminate them have not been

met. Jenkins v. Missouri, 593 F. Supp. at

1503-04. This finding of a constitutional

violation, even though intradistrict in

nature, is sufficient under the principles

of Liddell to place upon the State the

obliqation to fund the voluntary inter-

district transfer program, under proce-

dures enunciated in Liddell.

We believe, however, that the State

properly raises a valid concern with

respect to the requirement that the State

pay KCMSD the full student foundation

allotment for each student who transfers

from KCMSD to a SSD. KCMSD, after all,

- 123a -

has also been found to have violated the

Constitution. We believe that the

Situation is not unlike that in St. Louis

where both the State and the_- school

district were constitutional violators in

an intradistrict violation. There we

approved payment by the State on one of

two formulas, either one-half of the State

aid the district would have received had

the student not transferred, or, if a

district sends more students than it

receives, State aid based on the

district's enrollment for the second prior

year. Liddell, 731 F.2d at 1302. We also

have concern that the court has given to

the State alone full authority to monitor

the voluntary interdistrict program. We

believe that the use of a citizens com-

mittee in the st. Louis area with

- l24a -

“authority to monitor the proqram = and

assist in recruitment has been most effec-

tive. We direct that the district court

modify its order on the voluntary inter-

district program so that it is consistent

with that approved in Liddell.

B.

The State argues that the district

court improperly ordered it to fund an

increase in the number of teachers above

and beyond that necessary to meet AAA

standards.31 The district court found

that "achieving reduced class size is an

essential part of any plan to remedy the

vestiges of seqregation in the KCMSD.”"

Memorandum Opinion of June 14, 1985 at

31lthat portion of the court's order

relating to achieving AAA status divided

costs evenly between the State and KCMSD.

None of the parties object to this portion

of the ordered remedy which provides for

an increase in librarians and teachers

_-

— me

- 125a -

13,32 The district court analyzed the

school system in detail ordering an

increased number of teachers so as_ to

reach the achieved class size gqoals. ¢

Placed the entire burden of this cost on

the State and required that any respon-

sibility beyond the minimal goals would be

borne by KCMSD. The order contains no

findings specifically directed to the

issue of the liability of the State for

this cost as opposed to that of KCMSD. We

believe this portion of the order is

infirm in two respects. First, it qoes

beyond the scope of our order in Liddell,

which approved the requirements that would

bring the schools within the AAA standing,

primarily for the purpose of providing

additional planning time.

32This program carried a total cost of

$12,000,000 with payments of $2,000,000,

$4,000,000, and $6,000,000 for each of

three years.

- 126a -

but only as applied to the non-inteqrated

schools. It also runs counter to the

Liddell provision for funding equally

divided between the State and the school

district. 731 F.2d at 1318. As we have

observed, both KCMSD and the State are

constitutional violators. We see no

reason for this cost being placed solely

on the State. We direct the district

court to modify that portion of its order

dealing with reducinq elementary and

secondary school class size so as to

divide the cost equally between the KCMSD

and the State.

C.

The State also objects to that part of

the court's order providing for an effec-

tive school program, with the qoal of

improving student achievement, to be

funded entirely by the State. This

program provides specific grants for each

school, in an amount higher for those with

90% or more black enrollment. Over three

years, it totals $17,000,000.

The district court made detailed fin-

dings with respect to the first year's

expenditures and_ the components to be

considered that year, and ruled that later

years would be determined by a_e school

advisory committee at each school making

recommendations to the School Board.

Memorandum Opinion of June 14, 1985 at 22.

The goals of the program were to be

directed toward improvement of elementary

reading and improving the pass rate on the

BEST on the secondary level. We have no

difficulty concluding that the findings of

the district court support the creation of

- 128a -

this fund as its purpose is to provide

programs that would enhance education.

Nevertheless, we see no findings in the

district court order that in any way

substantiates placing the entire burden of

this program on the State. We believe

that the cost should be shared equally

between the State and KCMSD and direct

that the district court modify its order

in this respect.

= D.

The State argues that it should not be

required to furnish $27,000,000 toward a

$37,000,000 capital improvement program.

The district court found that the

average age of the sixty-eight school

buildings utilized by KCMSD is fifty-eight

years and that improvement of school faci-

- 129a -

lities is an important factor in the

overall success of the desegregation plan.

The district court said:

Specifically, a school facility

which presents safety and health

hazards to its students and

faculty serves both as an

obstacle to education as well as

to maintaining and attracting

non-minority enrollment. Further,

conditions which impede the

creation of a good learning cli-

mate, such as heating deficien-

cies and leaking roofs, reduce

the effectiveness of the quality

education components contained in

this plan.

Memorandum Opinion of June 14, 1985 at 34.

These findings of the district court

are sufficient to support its conclusion

that capital improvements are necessary

for successful desegreaqation. The State

raises a troublesome argument based upon

the finding of the district court that the

buildings in the school district were in

- 130a -

need of repair because of deferred main-

tenance and the failure to maintain the

buildings. It argues that this was not

the result of an unlawful action by the

State. Nevertheless, we believe that the

district court findings establish the

propriety of this portion of the remedy

and because the State is a constitutional

violator, it has the obligation to support

its proportionate share of this aspect of

the remedy. Once again, however, we

believe that the equal division between

the State and KCMSD, both constitutional

violators, is more equitable, and is con-

Sistent with our earlier opinion. See

Liddell 731 F.2d at 1318-19.

Further findings support our view.

The district court found that the deferred

maintenance was a result of KCMSD's’ lack

- l3la -

of financial resources as evidenced by its

inability to pass a capital improvements

bond issue, although several attempts had

been made since 1965. Memorandum Opinion

of June 14, 1985 at 33. This is not

unlike the situation in St. Louis where

only one bond issue was passed in the last

twenty-four years and thirteen were

rejected. We are troubled with the

district court's reasoning in which it

takes into consideration the expenditure

by KCMSD of $15,000,000 to $18,000,000 for

implementation of an earlier desegregation

plan for which it was not reimbursed and

for its budgeting in the 1986 fiscal year

of approximately $17,000,000 for desegre-

gation programs not covered in the plan.

The State argues that to apply such

payments to justify additional contribu-

- 132a -

tion by the State is similar to the

equitable restitution for payments

unlawfully withheld in the past, which

were condemned as contrary to the Eleventh

Amendment by the Supreme Court in Edelman

ve Jordan, 415 U.S. 651 (1974). In view

of our conclusion that these costs should

be shared equally by the State and KCMSD

prospectively, we need not give further

consideration to this troublesome issue.

E.

The State makes a final argument that

the total cost of the funding placed

approximately 80% on the State and only

20% on KCMSD. Our discussion of the spe-

cific items above and our conclusion that

these costs should be shared equally by

KCMSD and the State obviate our further

consideration of these arguments. We have

- 133a -

already pointed to the role of both as

constitutional violators and we need not

catalog further the acts of the State or

of KCMSD that causes liability to be

placed upon each entity. Equal division

of costs between the local school

authorities and the State was approved in

Milliken, 433 U.S. at 2773 Penick v.

Columbus Board of Education, 519 F. Supp.

923, 942 (S.D. Ohio), aff'd, 663 F.2d 24

(6th Cir. 1981), cert. denied, 455 U.S.

1018 (1982); and Reed v. Rhodes, 500 F.

aff'd, 662 F.2d 1219 (6th Cir. 1981),

cert. denied, 455 U.S. 1018 (1982).

We observe also that the record before

the district court demonstrates that KCMSD

has a higher property valuation than those

in the SSDs33 and that KCMSD has imposed

33The valuation per pupil in KCMSD is

- 134a -

upon itself a below average rate of tax

levy. KCMSD had a levy of $3.43 per $100

while the other districts in the Kansas

City metropolitan area had an average levy

of $4.28. This real estate tax falls upon

a property base, a great portion of which

is highly deve loped commercial real

estate, as opposed to single family homes

occupied by students in KCMSD.

We are aware of the complexities of

the State's funding of Missouri schools.

While the district court made no findings

on this subject, a memorandum filed by the

State discusses the procedure established

in Chapter 163, R.S.Mo, in great detail.

The wealth of the school district plays a

$60,371 as opposed to averages of $40,000

in the SSDs. State Ex. 4.

lnieeneeiieeiimenineanemeemndail

- 135a -

considerable role in determining the

working of the State formula. As the for-

mula deals entirely with distribution of

funds, we believe that, should the

district court determine it to be

desirable, further consideration could be

given to the working of this’ formula,

particularly in reference to deseqgqreqation

plans in the case now before us, and that

in St. Louis, which we treated in Liddell,

to determine whether there is any discri-

minatory motive or action in application

of the formula and distribution of funds

to school districts.

While our decision places’ gqreater

financial obliqation on KCMSD, it is our

intention that the remedy ordered by the

court be fully funded. We discussed in

detail methods available to the district

————————————————

- 136a -

court to achieve this goal in Liddell, 731

F.2d at 1319-1323.

- i37a =

CONCLUSION

One further comment is in order. The

record demonstrates in a number of areas

that insofar as “white fliqht" may have

been a factor in the Kansas City area, it

cannot be considered without reference to

the schools in the neiqhboring State of

Kansas. This aspect of the case was not

developed in detail nor did the court find

it necessary to make findinas on this

issue. Nevertheless, it is a fact that

might at some appropriate time in the

future need to be given consideration in

evaluating the segregation that may exist

in the greater Kansas City area.

Certainly, it would be appropriate and

desirable, although we admit complex, to

qive careful consideration to inclusion of

- 138a -

the Kansas schools in any voluntary inter-

district plan.

We affirm the judqment of the district

court in favor of the SSDs and affirm the

judgment of the district court and its

intradistrict remedy imposed upon the

State and the KCMSD with the exceptions we

have discussed above that equalize the

cost between the State and KCMSD.

- 139a -

ROSS, Circuit Judge, concurring.

I concur in Judge Gibson's opinion but

write separately to emphasize to the par-

ties in this case the importance of the

admonition in footnote 30.

At the time of arqument it was my

understanding that a voluntary § inter-

district proqram, patterned along the

lines of the St. Louis proaqram was a real

possibility. It would now appear that

some of the districts are not moving for-

ward with this plan.

In my opinion the failure to organize

and implement this proqram would be a very

siqnificant factor in determining discri-

minatory intent in the future litigation

which is certain to result from the

further processing of this case. The St.

——E———————rreeereeeeeee

- 1406 -

Louis program would be a useful model for

the actions to be taken by all the

Missouri districts which are narties to

this action.

- l4la -

ARNOLD, Circuit Judge, concurring in part

and dissentin, in part.

While I concur in much of what the

Court has said today, I must respectfully

dissent from those portions of the lead

opinion concerning suburban school

district (SSD) participation in a remedy

for the interdistrict effects of the State

of Missouri's housing violations. In all

other respects, I concur in the judgment.

I would hold that the District Court

erred in concluding that the SSDs cannot

be required to participate in an interdis-

trict remedy for interdistrict school

segregation caused by the State's consti-

tutional violations in the area of

housina. The case should be remanded to

the District Court for determination of

- 142a -

the current interdistrict effects, if any,

of the State's housing violations. Any

SSDs implicated by this analysis should be

obliged to partipate in an appropriately

tailored interdistrict remedy.

I.

The District Court was of the view

that no SSD could be made to take part in

an interdistrict remedy unless there had

been "a racially discriminatory act by

[the SSD] that substantially caused seqre-

gation in another district." Opinion of

June 5 at 6, citing Milliken v. Bradley,

418 U.S. 717, 745 (2974). The District

Court concluded that because the housing

discrimination at issue here was per-

petrated by the State and other governmen-

as Capp cit is MBAS AES

city Wai niise Reina be

- 143a -

tal entities, rather than by the SSDs, the

SSDs cannot be allotted a mandatory role

in an interdistrict remedy for any

resulting school segregation. Opinion of

June 5 at 42.

This position involves a misconstruc-

tion of Milliken. In a passage which

expresses the core of Milliken, Chief

Justice Burger wrote:

The controlling principle con-

sistently expounded in our

holdings is that the scope of the

remedy is determined by the

nature and extent of the consti-

tutional violation. Swann [v.

Charlotte-Mecklenburg Board of

Education], 402 U.S. [1], at 16

(1971). Before the boundaries of

separate and autonomous”~ school

districts may be set aside by

consolidating 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 distirct that

produces a significant seqreqga-

tive effecting another district.

Specifically, it must be- shown

that racially discriminatory

- 144a -

acts of the state or local school

districts, or of a single school

district have been a substantial

cause of interdistrict segrega-

tion.

418 U.S. at 744-45 (emphasis’~ added).

Numerous other portions of Milliken

further evidence the Court's view that an

interdistrict remedy involving a school

district may be based on discriminatory

acts of the state or other school

districts with interdistrict seqregative

effects on the school district in

question. See, e.g., id.eat 745 ("With no

showing of significant violation by the .

» « Outlying school districts and no evi-

dence of any interdistrict violation or

effect" (emphasis added), an interdistrict

remedy was improper); id. at 748 (inter-

district relief unjustified because ".. .

tahten mane

id Aleit QAP EERE ASNT Nt 0 AO BOR

2

:

'

-~ 145a -

there has been no showing that either the

State or any of the . ° »- outlying

districts engaged in activity that had a

cross-district effect." (emphasis added) );

id. at 750-751 (discussing state activi-

ties as possible bases for interdistrict

relief).

As support for the District Court's

decision regarding housing, the lead opi-

nion cites the discussion of Milliken in

Hills v. Gautreaux, 425 U.S. 284 (1976).1

Yet, Hills states that the Court in

Milliken rejected an interdistrict remedy

because, while the trial court had found

that “constitutional violations committed

by the Detroit School Board and State

officials had contributed to racial segre-

lthe lead opinion does not make clear

its precise view of the District Court

holding that because the SSDs are not

themselves constitutional wrongdoers, they

may not be made part of an interdistrict

- 146a -

gation in the Detroit schools, .. . there

remedy for State housing violations. See

ante at 25-31. At points, the opinion

appears to agree that Milliken precludes

inclusion of non-culpable SSDs in an

interdistrict remedy for State violations.

See ante at 28-31. At other points,

however the opinion suggests that the

District Court viewed the lack of SSD

culpability simply as an important factor

in determining that interdistrict relief

was inappropriate, a factor considered

along with factual findings as to the lack

of interdistrict effects of state-fostered

housing discrimination. See ante at 26,

28, 29. This is a mischaracterization of

the District Court's position which

understates the siqnificance the District

Court attached to SSD innocence. The

District Court repeatedly made clear its

view that the fact that the SSDs were not

constitutional violators, taken by itself,

barred requiring SSD participation in an

interdistrict remedy. See Opinion of June

5 at 6, 34-42, 45, 47-48, 51, 53-54,

58-59, 66-67, 73-74, 78, 82-83, 89-91,

94-95, 97, 100-103. Further, the District

Court did not determine whether or what

interdistrict seqreqation is attributable

to State housing violations, and never

claims to have made such a determination;

instead, having concluded that SSD inno-

cence precluded interdistrict relief, the

District Court found it unnecessary to

devote substantial consideration to the

question of interdistrict effects. See

infra, Part II.

:

|

i

:

- 147a -

had been neither proof of unconstitutional

actions on the part of neighboring school

districts nor a demonstration that the

Detroit violations had produced siqnifi-

cant seaqreaqative effects in those

districts." Id. at 792 (emphasis added).

Further, in the portion of Hills quoted by

the Court, ante at 27, the Supreme Court

states: "En Milliken, there was no

finding of unconstitutional action on the

part of the suburban school officials and

no demonstration that the violations com-

mitted in the operation of the Detroit

school system had had any _ significant

segqregative effects in the suburbs." 425

U.S. at 294 (emphasis added).2

Thus, it is not necessary that each

2The lead opinion's citation of Hills

is particularly ironic because the author

of Hills, Mr. Justice Stewart, expressly

Stated in his Milliken concurrence that

- 148a -

school district subjected to an inter-

district remedy have itself committed a

constitutional violation. 3 Instead,

Milliken establishes that an interdistrict

remedy is justified wherever discrimina-

tory actions of either the state, or local

school districts, or _ both, have had

siqnificant interdistrict segreqative

effects. The SSDs

may not maintain that their

districts should be excluded from

any interdistrict remedy if they

are found innocent of committing

any constitutional violations

because they should not be held

responsible for the acts of the

state legislators or other state

subdivisions such as local

housing authority or a zoning

board. The commands of the

Fourteenth Amendment are directed

state officials’ housing violations, if

they had an interdistrict effect, would

justify an interdistrict remedy. See

infra at 64, quoting Milliken, 418 U.S. at

755 (Stewart, J., concurring).

3Indeed, the principal opinion concedes

that a constitutional violation in the

operation of the KCMSD with interdistrict

- 149a -

at the state and cannot be

avoided by a fragmentation of

responsibility among various

agents. Cooper v. Aaron, 358

U.S. 1, 15-17 (1958).

United States Ve Board of School

Commissioners, 573 F.2d 400, 410 (7th

Cir.), cert. denied, 439 U.S. 824 (1978)

(emphasis added).4

Perhaps the paradigm case in which a

State's constitutional violation merits

interdistrict relief even absent par-

ticipation by the local school district in

segqreqative effects felt in the SSDs would

merit an interdistrict remedy involving

the SSDs. See, e.g., ante at 28. Yet it

offers no explanation of how or why viola-

tions by the State or the KCMSD in

operating KCMSD are to be distinguished

from State housing violations. In either

case the SSDs would themselves be innocent

of wronadoing, but would feel the effects

of other actors’ violations.

40¢ course, since formulation of an

appropriate interdistrict remedy is guided

by equitable principles, the fact that a

school district has not itself violated

the Constitution may affect the particular

- 150a -

the violation is where the state draws

boundary lines on the basis of race.

See, e.q., Morrilton School District No.

32 v. United States, 606 F.2d 222, 228 &

n.5 (8th Cir. 1979) (en banc); Hoots v.

Commonwealth of Pennsylvania, 672 F.2d

1107, 1119-1121 (3d Cir. 1982). But a

State's actions also merit an _e inter-

district remedy where it or its’ sub-

divisions cause interdistrict school

seaqregation by employing discriminatory

housing laws, policies, or practices.

"(W]here the state has contributed to the

separation of the races . .. by purpose-

ful, racially discriminatory use of state

housing or zoning laws," it may be

role it is assigned in remedying the

state's violation. See infra at 75-76.

- 15la -

appropriate to enter "a decree calling for

transfer of pupils across district lines

or for restructuring of district lines."

Milliken, 418 U.S. at 755 (Stewart, J.,

concurring) (emphasis added).

Thus, I take it as established that a

school district can be 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 inter-

district seqreqation, that "State" for

this purpose ‘includes any state or local

agency, and that there is nothing unique

Or peculiar about housing agencies that

would take them out of this rule. These

conclusions are established, not only by

Milliken itself and the other authorities

- 152a -

just discussed, but also by our own unani-

mous en banc opinion in Morrilton School

Dist. No. 32 v. United States, supra.

There, the Morrilton and Plumerville

school districts arqued that "since the

government made no showing that either

Morrilton or Plumerville participate. in

the development of the East Side District

as a segregated district, the District

Court's imposition of interdistrict

relief was unwarranted.” 606 F.2d at 225.

We squarely rejected that arqument:

Morrilton and Plumerville

argue that since there was no

evidence implicating them in a

direct way with the establishment

of the East Side District, the

court has no authority to order

them to remedy the state's wrond.

This argument is clearly without

merit since the effects of the

unconstitutional state action are

felt in both districts.

606 F.2d at 228 (footnote omitted). We

then quoted the very passage, explicitly

ee NRE tags

- 153a -

mentioning housing, from Board of School

Commissioners, 573 F.2d at 410, a portion

of which I have already quoted. [n light

of this en banc opinion, which of course

authoritatively states the law of this

Circuit until and unless overruled, I do

not know how the District Court's position

- that the SSDs, because individually

guiltless, cannot be made part of an

interdistrict remedy - can stand.°

The Supreme Court has recognized on a

number of occasions that there is a close

reciprocal relationship between residen-

tial patterns and the racial composition

of schools. See, e.q., Keyes v. School

District No. 1, 413 U.S. 189, 202 (1973);

Swann, 402 U.S. at 20-21. The District

SThe lead opinion maintains that

Morrilton is a gerrymandering case that

must be limited to its facts." Ante at

30-31. Yet, the lead opinion provides no

explanation of why the principles we

- 154a -

Court here found that "there is_~ an

inextricable connection between schools

and housing." 593 F. Supp. at 41491.

Other federal courts have ordered school

districts to participate in interdistrict

remedies based in part upon’ housing

discrimination practiced by other branches

of state government. See Evans v.

Buchanan 393 F. Supp. 428, 434-438 (D.

Del. ) (three-judge court), aff'd, 423

U.S. 963 (1975); Board of School

Commissioners, 456 F. Supp. 183, 188-192

(S.D. Ind. 1978), aff'd in part and

approved in Morrilton are to be so limited

in their application. It does not explain

how or why State discrimination in drawing

school district boundaries is to be

distinguished from State discrimination in

housing. Housing violations may be harder

to prove or create special problems of

remedy, but that does not mean that no

remedy should be afforded.

- 155a -

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

1101, 1109-1116 (7th Cir.), cert. denied,

449 U.S. 838 (1980). This Court should

demonstrate no less concern for the segre-

gative effects of state housing violations

upon schools. When a state segregates

children on a multi-district basis,

whether it does so by drawing boundary

lines or by steering or restricting the

races to homes on different sides of pre-

existing lines, the courts can provide

interdistrict relief that includes all

affected districts. See generally, Note,

Housing Discrimination as a Basis’ for

Interdistrict School Deseqregation

Remedies, 93 Yale L.J. 340 (1983).

6In a case relied upon by the District

Court and by the principal opinion, Bell

v. Board of Education, Akron Public

Schools, 683 F.2d 963 (6th Cir. 1982), the

Sixth Circuit refused to accept that an

Having concluded that an SSD may be

required to participate in an _ inter-

district remedy for any interdistrict

effects of housing discrimination upon the

SSD, I turn to the question whether the

State or its subdivisions have committed

any housing violations that have current

interdistrict segregative effects. In its

September 17, 1984 opinion, 593 F. Supp.

1485, the District Court found or referred

to a number of instances of housing

otherwise innocent school district could

be made to participate in a remedy for the

discriminatory housing practices of other

governmental agencies. Id. at 968. I

find this portion of Bell irreconcilable

with the principles enunciated by the

Supreme Court in Milliken, as well as with

this Court's Morrilton opinion.

-~ 3978 -

discrimination by the State and its sub-

divisions that could have had such segre-

gative effects. However, examination of

that opinion and of the District Court's

June 5, 1984 opinion, in which it granted

the SSDs' Rule 41(b) motions, persuades me

that the District Court never finally

determined whether or what current inter-

district segregation is attributable to

these housing violations. Having con-

cluded that the SSDs could not be required

to participate in an interdistrict remedy,

assessing the interdistrict effects of

housing discrimination by the State was a

task the District Court no longer found

necessary. Although the principal opinion

asserts that the District Court made find-

ings that foreclose the possibility of

interdistrict effects, the findings that

- 158a -

it cites are largely not on point and do

not resolve the question. The lead opi-

nion's arquments on this point are in

essence an exercise in appellate fact-

finding, an exercise that is unjustified

Since the record here is hardly so one-

Sided as to make any alternate findings

clearly erroneous. This determination has

not yet been made by the District Court,

and must be before the book can be closed

on the SSDs' liability to interdistrict

relief.

Perhaps the clearest, most direct

example of the State of Missouri's discri-

mination in the area of housing is the

enforcement by its courts of racially

restrictive covenants. See 593 F. Supp.

at 1497. Even after state enforcement of

such covenants was held unconstitutional

La rat Sai

- 33948 -

in Shelley v. Kraemer, 334 U.S. 1 (1948),

Missouri's courts continued to entertain

damage actions for breach between parties

to the covenant, see Weiss v. Leaon, 225

S.W.2d 127 (Mo. 1949), a practice the

Supreme Court held unconstitutional in

Barrow v. Jackson, 346 U.S. 249 (1953).

Further, the District Court found that the

State had in the past taken numerous other

actions that were discriminatory against

blacks, such as mandating separate schools

for blacks and whites, Mo. Const. Art. IX,

§l(a) (1945) (rescinded 1976), §§ 163.130,

165.117 R.S. Mo. (repealed 1957); pro-

viding that school boards could establish

separate libraries, parks, and playgrounds

for whites and blacks, §165.327 R.S. Mo.

(1959); and making it a crime for a person

of one-eighth Negro blood to marry a white

- 160a -

person, §563.240 R.S. Mo. (1959). 593 F.

Supp. at 1503. "These actions," the

District Court found, “had the effect of

placing the state's imprimatur on racial

discrimination." Id. Thus, the state

“created an atmosphere in which the pri-

vate white individuals could justify their

bias and prejudice aqainst blacks," and

"encouraged racial discrimination by pri-

vate individuals in the real estate,

banking, and insurance industries." Id.

The District Court concluded that "[t]his

has and continues to have a significant

effect on the dual housing market in the

Kansas City area." Id.’

A predicate for interdistrict relief

may also be~ found in discriminatory

’The District Court did not base its

award of intradistrict relief against the

State on these housing violations, since

it found a "more salient reason," 593 F.

Supp. at 1503, for State intradistrict

housing practices of the LCRA and the

HAKC, which are both instrumentalities of

state government for whose discrimination

the State of Missouri is accountable.

Since it had determined that the SSDs

could not be required to participate in an

interdistrict remedy, and since it had

found other bases for state intradistrict

liability, the District Court considered

these two entities only in connection with

claims against HUD. Nonetheless, it

appears from the Court's findings, as well

as from evidence not addressed by the

liability in the State's failure to

dismantle the dual school system it had

created within the KCMSD. Id, at 1503-

1504. The issue here, however, is whether

interdistrict relief is warranted, an

issue the District Court did not speak to

in its evaluation of state housing discri-

mination.

8mMissouri's state legislature

established the LCRA in 1953 and gave it,

subject to the approval of Kansas City's

government, citywide jurisdiction to admi-

- 162a -

Court because it was not directly relevant

to HUD's liability, that these agencies

have committed housing violations that may

have interdistrict segreqative effects.

Between 1953 and 1973, LCRA practiced

discrimination in relocating persons

displaced by urban renewal, steering

blacks to southeastern Kansas City and

relocating whites throughout the city.

593 F. Supp. at 1497-1498. It appears

that HAKC explicitly seqregated its

housing units until 1958, and_ that,

despite the nominal adoption of a “freedom

of choice" tenant-selection policy, HAKC

nister urban-renewal programs. §§ 99.320

(1), 99.330 R.S. Mo. The HAKC was created

by the state legislature in 1939 and, sub-

ject to Kansas City's approval, given

authority to administer low-income housing

programs throughout the City. §99.040 R.S.

Mo.

|

ee

- 163a -

may have continued seqreqative practices

until 1964. Brief of Plaintiffs-

Appellants Kalima Jenkins, et al., at 24;

Brief of Defendant-Appellee Department of

Housing and Urban Development at 11.9

Like Missouri's enforcement of racially

restrictive covenants and encouragement of

private discrimination, the discriminatory

practices of LCRA and HAKS could have

significantly affected the dual housing

market in the Kansas City area; if these

practices have current interdistrict

segreqative effects, they merit § inter-

district relief. 1°

The District Court did find that the

State's own discrimination had contributed

9t would require the District Court to

make findinaqs on these points on remand.

10r note at this juncture several con-

cerns I have over the District Court's

analysis of the claims against FHA and

HUD.

- 164a -

From the mid-1930s through 1947, the

FHA's appraisal manuals stressed the

desirability of racial covenants, limited

availability of mortgage insurance for

developments not subject to racial cove-

nants, and down-graded appraisals in

neighborhoods undergoing integration.

After 1947, the FHA removed explicit

racial references from its manuals, but

continued to emphasize in them the impor-

tance of “social homogeneity" and

"compatibility among the neighborhood

occupants." 593 F. Supp. at 1497; P. Ex.

1305. Although a number of other courts

have noted the invidious character of

these and other aspects of FHA's appraisal

policies, see, e.g., Reed v. Rhodes, 607

F.2d 714, 729 (6th Cir. 1979), cert.

denied, 445 U.S. 935 (1980); Oliver v.

Kalamazoo Board of Education, 368 F. Supp.

143, 182-183 (W.D. Mich. 1973), aff'd, 508

F.2d 178 (6th Cir. 1974), cert. denied,

421 U.S. 963 (1975), the District Court

exonerated the FHA, reasoning that the FHA

was merely qauging the economic realities

associated with racial discrimination.

593 F. Supp. at 1497. I believe that in

so holding the District Court overlooked

the fact that FHA was not merely an unin-

volved observer, but was rather an active

participant in the housing market whose

policies and practices had a siqnificant

impact on the market. FHA practices set a

standard followed by other lenders and

complied with by real estate developers

who wished their developments to be eli-

gible for FHA-insured financing, even if

some units were not ultimately financed

through the FHA. The FHA not only qave

private discrimination consideration in

its own conduct, but also encouraged

others to engage in discrimination; this

government cannot lawfully do.

The District Court's finding that

FHA's policies and practices have no

significant current effect may be simi-

larly vulnerable. The Court based its

conclusion on the fact that prior to 1950

FHA insured 15,000 homes in the KCMSD, and

between 1950 and 1980 there were over

2,000,000 housing turnovers in the area.

593 F. Supp. at 1497. But the FHA's prac-

tices may have affected far more homes

than were actually financed through the

FHA.

With regard to HUD, the District Court

found that the agency had acted

"reasonably" because it had taken action

in the 1970s to end discriminatory prac-

tices by HAKC, whose programs HUD funded.

593 F. Supp. 1498-1499. Yet there was

extensive evidence, not addressed by the

District Court, that HUD knew of short-

comings in HAKC's tenant-assignment prac-

tices for years without taking action to

end them.

In view of the fact that, under the

prevailing view in this Court, there will

be no remand for further fact-finding on

the effects of housing discrimination, I

do not pursue further this line of arqu-

ment. Under my view (shared in part by

three other judges), there would be such a

remand, and in that event it would be open

to the District Court to reconsider its

findings as to HUD and FHA and, if

- 164ab-

significantly to the dual housing market

in “the Kansas City area," 593 F. Supp. at

1503, and that “the dual housing market .

» « » Which still exists to a larqe degree

today . . +. » impacted blacks in the KCMSD

and consequently caused the public schools

to swell in black enrollment." 593 F.

Supp. at 1491. But the Court provided no

more precise findings on the question of

to what extent black students were concen-

trated in the portion of Kansas City

covered by the KCMSD rather than more

evenly dispersed through the portions of

the Kansas City area served by the SSDs.

Nor did the District Court assess the

interdistrict segreqative effects of

housing discrimination by the LCRA or

HAKC. Again, because the District Court

concluded that the SSDs could not be made

appropriate, bring them back in as partici-

pants in an interdistrict remedy.

- 165a -

to help remedy the violations of indepen-

dent housing actors, it had no need to

determine whether the State's housing

violations have current interdistrict

segreqative effects.

The plurality does not contend, by and

large, that the District Court addressed

this issue directly, but instead contends

only that a number of findings that the

Court made in other contexts somehow

negate the possibility of significant

interdistrict effects. First, it is

argued at various points that the fact

that the SSDs have operated unitary school

svstems since a few years after Brown

precludes the possiblity that housing

violations have caused interdistrict

seqregation. E.g-, ante at 21-23, 44-46.

However, it is difficult to fathom how the

- i66a -

fact that a school district is internally

unitary indicates that school children

have not heen segregated on an =inter-

district basis; that an SSD's schools are

integrated with respect to children who

live in the SSD has little bearing on

whether, due to State housing discrimina-

tion, more whites and/or fewer blacks live

in the SSD, and, concomitantly, fewer

whites and/or blacks live in KCMSD, than

would otherwise be the case. If the SSDs

had not been unitary, their own discrimi-

nation might have added to any State-

fostered interdistrict segregation that

exists; that they are unitary indicates

only that they have not augmented inter-

district segregation caused by state

housing violations. Unitary SSDs are no

longer under an obligation to undo intra-

- 167a -

district segregation, Swann, 402 U.S.-at

31-32, but they still may be required to

participate in a remedy for the current

segregative effects of interdistrict

segregation.

Next, the plurality arques that the

District Court "was plain" that’ the

State's pre-1948 elbcecesen of restric-

tive covenants has no current siqnificant

segregative effect. Ante at 33 & ne 22s

While I agree that the District Court made

findings that dispose cf the issue as to

several of the SSDs, as to most of the

SSDs the District Court did not make find-

ings that are adequate to resolve the

question whether present residential pat-

terns would be significantly less segre-

gated had restrictive covenants not been

enforced. I agree with the lead opinion

- 168a -

that there are no current segregative

effects attributable to racially restric-

tive covenants in the Fort Osage School

District, since there was no evidence of

any such covenants located in that dis-

trict, see Opinion of June 5 at S5l; a

Similar conclusion is probably justified

as to the Park Hill School District, see

id. at 90. As to the nine remaining

SSDs, however, I cannot agree that the

District Court made findings sufficient to

Support a conclusion that the State's

enforcement of restrictive covenants has

caused no current interdistrict segrega-

tion. First, in each portion of the

District Court's opinion discussing the

restrictive covenants in a particular SSD,

the District Court emphasizes the lack of

SSD complicity in the placement or enforce-

hay RIFE ESE ES SAT eS NS

- 169a -

ment of the covenants within its boun-

daries. See, e.g-, Opinion of June 5 at

48 (Center School District); id. at 73

(Lee's Summit School District). Thus, the

District Court's misconstruction of

Milliken may have tainted its con-

sideration of the restrictive-covenant

problem.

Even were this difficulty absent, the

District Court's remaining findings _are

still not adequate to support a finding of

no current effect. As to the Center,

Hickman Mills, and Ray town School

Districts, the District Court noted that

there was no evidence of any black family

that failed to move into the districts

because of the covenants, and that there

is no present barrier to black movement

into the districts. Id. at 48, 58-59, 94.

With regard to the Lee's Summit,

Independence, and Liberty School

Districts, the Court found that there were

relatively few restrictive covenants in

the districts, and that there was no evi-

dence of any black family that failed to

move into the district due to restrictive

covenants. Id. at 66, 73, 77-78. Finally,

the District Court observed that there

were few racially restrictive covenants in

the Grandview and North Kansas City School

Districts, and that the effect of such

covenants in these districts and the Blue

Springs School District is limited or

mooted by extensive post-Shelley residen-

tial development in those districts.

None of these findings resolves the

question whether fewer blacks or more

whites reside in the SSDs due to

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- l7la -

pre-Shelley and pre-Barrow enforcement of

restrictive covenants. That there is no

present barrier to black movement into an

SSD hardly demonstrates that there was no

barrier to such movement in the past that

has current effects. That extensive post-

Shelley residential development has occur-

red does not mean that earlier enforcement

of racial covenants has not helped make a

district identifiably white and inhospi-

table to blacks, or that it has no other

current effect on residential patterns.

Finally, it was not necessary’ for

the plaintiffs to give evidence of par-

ticular black families that did not move

into a district due to restrictive cove-

nants in order to demonstrate the segreqa-

tive effect of such covenants; to hold

that they had no segregative effect on

- 172a -

this basis simply blinks reality.

Further, the District Court did not

determine the current effects of the

State's continued efforts to aqive legal

force to these covenants from 1948 to

1953, and, more importantly, the imprima-

tur that the State placed upon private

housing discrimination by ordaining

various forms of racial discrimination,

see supra at 67-68,11

Finally, the plurality contends for

two reasons that there can be no current

interdistrict effects of housing viola-

tions by LCRA and HAKC. Fieet, it cites

the District Court's finding that HUD

followed a balanced housing policy,

locating federally funded housing in both

llyowever, I note with regard to the

latter basis of State liability that the

District Court stated, “To the extent, if

any, that the racial composition of the

KCMSD is the result of steering and block-

a ae

- 173a -

KCMSD and in the SSDs, and that HUD's

site- selection-and-approval practices had

not affected the racial make-up of KCMSD

schools. Ante at 36, citing 593 F. Supp.

at 1499, Second, the lead opinion con-

tends that the LCRA and HAKC practices of

which the plaintiffs complain occurred in

the 1970s, after KCMSD had experienced a

substantial increase in black population.

Ante at 37. Both of these points involve

a misapprehension of the plaintiffs’

claims: As to the first, the claim is not

busting practices by private real estage

agents .. . the Court finds that these

actions of private individual real estate

agents are not actions of the KCMSD or any

SSD." Opinion of June 5 at 41. This

reinforces my conclusion that the District

Court has left open the question whether

State-fostered private discrimination in

the housing area has current interdistrict

segregative effects.

BEST AVAILABLE COPY

- 174a -

that unbalanced housing site selection and

approval caused interdistrict segregation,

but instead, that once the projects were

built, HAKC explicitly segreaqated them, or

later, steered whites to some projects and

blacks to others. As to the second, the

Pplaintiffs*' complaint is not primarily

about HAKC and LCRA activities in the

1970s; rather, the District Court found

that LCRA practiced discrimination from

1953 to 1973, and the plaintiffs contend

that HAKC segreaqated its housing units

from its inception in 1939 until as late

as the mid-1960s. See supra at 68-69.

I agree with Judge Gibson that there

are many factors other than housing

discrimination that may have contributed

substantially to the present concentration

cf blacks in the KCMSD. See ante at

tet a pt i ee

- 175a -

32-33. Insofar as economic and

demographic factors unrelated to official

discrimination caused interdistrict

residential seqreqation, the State and the

SSDs may not be required to remedy the

concomitant interdistrict school seqrega-

tion. See Pasadena City Board . of

Education v, Spangler, 427 U.S. 424, 433-

e

;

437 (1976). I also agree that there are

geographic limitations on the effects of

housing discrimination, and that some of

the effects of the State's constitutional

violations may have been felt in Kansas,

rather than in the Missouri SSDs. See

ante at 40. But the District Court has

not yet made any findings on these points,

as well as many other issues bearing on

the question of interdistrict seqreqative

effects, and as the lead opinion itself

- 176a -

observes, the District Court is “‘uniquely

situated'" to assess such matters. Ante at

25, auoting Little Rock, 778 F.2d at

410-411; see Morrilton, 606 F.2d at 230.

Therefore, the case should be remanded

to the District Court to determine pre-

cisely what current interdistrict seqreqa-

tive effects may be attributed to housing

discrimination by the State, LCRA, and

HAKC. Upon pened, the District Court

should first consider this question from

the perspective of the SSDs‘ Rule 41(b)

motions. Any SSD that does not prevail on

its mot ion should be permitted to present

evidence to rebut a finding that it is

implicated in the current interdistrict

seqreqative effects of the housing viola-

tions. While the SSDs were qiven the

opportunity to continue to participate in

- 177a -

the proceedings after the District Court

qranted their Rule 41(b) motions, this was

not “a meaningful opportunity for [the

SSDs] to present evidence ... on the

Propriety of a multidistrict remedy."

Milliken, 418 U.S. at 721-722. After the

District Court had held that the SSDs

could not be made part of a remedy for the

constitutional violations of other qovern-

mental entities, the SSDs no longer had

any reason to take part in the suit.

Therefore, were this Court to reverse the

District Court on this issue, the SSDs

would be entitled to present evidence.

If, at the end of these proceedings,

the District Court found current seqreqa-

tive effects of the housing discrimina-

tion, it should then formulate an

appropriately tailored interdistrict

- 178a -

remedy, a remedy including each affected

SSD. I caution, however, that, in accord

with the equitable principles that govern

such remedies, Milliken, 418 U.S. at

737-738, the role that may be assiqned to

each SSD may be limited by the fact that

the SSD is not itself a constitutional

violator. Thus, it would likely be

inappropriate to burden the SSDs, rather

than the State, with the financial costs

of the remedy. On the other hand, it

seems clear that affected SSDs could be

required to participate in an _ inter-

district transfer program desiaqned to make

the racial composition of the districts'

schools what it would have been absent

official housing discrimination.

TII.

I conclude that an SSD, even if its

- 179a -

own actions are without blemish, may be

required to participate in an _ inter-

district remedy for the housing discrimi-

nation of the State of Missouri or its

subdivisions, so long as that discrimina-

tion has current interdistrict seqregative

effects involving the SSD. The case

should, in my view, be remanded to the

District Court to determine whether the

established constitutional violations of

the State and the LCRA, as well as the

possible violations of the HAKC, have had

any such effects. I. the District Court

finds that this discrimination has pro-

duced interdistrict segregation, it should

fashion a remedy which accords with the

Principles discussed in this opinion.

Insofar as Judge Gibson's’ opinion

departs from this view, I dissent; in all

- 180a -

other respects I concur. It is

appropriate to add that, although the

plurality opinion in this case of course

announces the judgment, it does not make

law for this Circuit except in those

respects that command a majority vote of

the judges sitting in this case. Four

judges seem to agree that school districts

not individually guilty of constitutional

violations may not be compelled to par-

ticipate in an interdistrict remedy. Four

do not. That question is therefore open

for determination in future cases in this

Circuit.

i Awl tie A ie On :

- 18la -

LAY, Chief Judge, with whom HEANEY and

McMILLIAN, Circuit Judges,

join, dissenting.

A world of rhetoric cannot hide the

world of fact.! No ome can deny that the

school systems within the Kansas City

metropolitan area were racially segregated

before 1954, continued to be segregated

after 1954, and that pisiunt ty all remain

segregated today. The clearly erroneous

rule, used by the lead opinion to give

blanket approval to the district court's

conclusions, was never intended to be a

rule of blind deference. This is par-

ticularly true when, as here, the record

does not support the district court's

conclusions. This court's affirmance of

the district court, if allowed to stand,

of, f.8. Huxley, Lay Sermons,

Addresses, and Reviews (1891) ("A world

of fact lies outside and beyond the world

of words").

- 182a -

destines the Kansas City metropolitan area

to racially segregated schools and a

segregated community for decades to come.

The lead opinion ignores Supreme Court

precedent and brushes aside thirty years

of this circuit's rulings mandating school

integration. 2 The lead opinion also

fails to acknowledge the district court's

misunderstanding of Milliken v. Bradley,

418 U.S. 717 (1974), and the resulting

erroneous legal premises on which the

district court's conclusions are based.

The effect of this pervasive error makes

the lead opinion's analysis largely irre-

levant to the record before us.

It now remains for the people of

metropolitan Kansas City to choose whether

2For the history of this circuit's

school desegregation rulings, see Heaney,

Busing, Timetables, Goals, and Ratios:

Touchstones of Equal Opportunity, 69 Minn.

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- 183a -

their community and school systems shall

continue to foster an environment of

racial separation. Although many might

respond that freedom of choice is essen-

tial to democratic government, this propo-

sition should be accepted only so long as

equality of opportunity is not denied to

those who do not have the majority will on

their side. Here, the tragedy of the

legalized discrimination of the past cen-

tury is that it has resulted in continued

denial of acceptable equal opportunities

to both the black and white children in

the Kansas City area. The lead opinion

closes its eyes both to Missouri's long

history of legally-mandated segregation of

and discrimination against blacks and to

the uncontroverted evidence at trial that

showed that for decades only the Kansas

~- 184a -

City metropolitan school district (KCMSD)

provided blacks in the Kansas City metro-

politan area with any educational oppor-

tunity at all. Moreover, for much of the

period during which the suburban popula-

tion dramatically increased, blacks were

precluded by law or otherwise discouraged

from residing anywhere other than the

southeast corridor of the KCMSD.

Although a district court's findings

of fact may not be overturned unless

clearly erroneous, Fed. R. Civ. P. 52(a),

an appellate court nevertheless has the

power to correct errors of law, including

factual findings that are predicated on a

misunderstanding of the governing rule of

law. Bose Corp. ve Consumers Union of

United States, Inc., 466 U.S. 485, 501

(1984) (quoted in In Re Martin, 761 F.2d

- 185a -

472, 4735 (Sth Cit. 1985)). Where, as

here, the district court's factfinding

process was tainted with legal error from

the start of trial by the court's erro-

neous application of controlling legal

principles, the district court's findings

are entitled to less than usual deference

and should be reversed as clearly erro-

neous. 2

The district court's own conclusions

and the clear weight of the uncontradicted

evidence establish that constitutional

violations, committed by the suburban

school districts (SSDs) and HUD as well as

the State of Missouri and the KCMSD, have

caused significant continuing segregative

effects in the SSDs. I would reverse the

3The lead opinion's reliance on

Anderson v. City of Bessemer City, 470

U.S. 564 (1985), provides the basis of

its criticism that this dissent "engag[es]

in an original evaluation of the voTumi-

- 186a -

nous and ofttimes contradictory record

seeking an ultimate conclusion more satis-

factory than that reached by the district

court.” Ante at 18-19. It suggests that

this dissent “embarks upon fact finding

of [its] own" and makes “no effort to con-

sider [the district court's finding] in a

proper Rule 52(a) analysis." Ante at 37

n.25. It also urges that the dissent

"completely and totally ignores the

district court's findings that any

pre-1954 acts had negligible and de mini-

mis current effects." Ante at 44-45 n.28.

I start with the legal premise, never

refuted by the lead opinion, that the

district court's opinion is fundamentally

unsound because it is based on an erro-

neous legal premise in its interpretation

of Milliken and because it totally ignores

the h

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