# Appendix — Jenkins v. Missouri > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2163%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 816 ## Text 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, * * * * * * * * * x * * * * * * * * * * * * * * » t+ = 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 =~ Se = 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. - 6a - 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 © =. - 10a - 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. - l4a - 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 ———————— - 15a - 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 - 18a - 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. - 19a - 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 - 20a - 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 ————————— - 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. - 24a - 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. - 25a - 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 - 28a - 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- - "In its brief on appeal, the state notes: - 197a - In affirming the district court's incorrect interpretation of Milliken, the lead opinion ignores the established pre- cedent of this circuit. In Morrilton School Dist. No. 32 v. United States, 606 F.20 222, 228 (8th Cir. 1979) (en banc), Thus, in any case in which a state school system exhibits a large measure of local control, Milliken I requires that parties seeking an interdistict remedy prove either (a) that the school district boundaries were mani- pulated for racial reasons or (b) that some intentionally discriminatory action by the governmental defendants -- the State or the local school districts -- was a "substantial cause" of “significant" current interdistrict segregation. Id.; see Hills v. Gautreaux, 425 U.S. 284, 294 & nll (1976) [Hills] (Milliken I requires demonstration of "Significant" inter- district segregative effects caused by unlawful governmental act); Lee v. Lee County Board of Education, 639 F.2d L243, 1254-56 (Sth Cir. 1981). Brief of State Appellees/Cross-Appellants at 10. - 198a - cert. denied, 444 U.S. 1071 (1980), this court unanimously rejected a district court's similarly limited interpretation of Milliken. Although the lead opinion states that Morrilton was intended to be limited to cases involving gerrymandered school district lines, so narrow a view of the acts that may constitute constitu- tional violations and trigger inter- district relief is unsupportable. In Morrilton, this court found that school districts which were not themselves found to be constitutional violators neverthe- less could be included in interdistrict relief where the effects of the unconsti- tutional actions of another (in Morrilton, the state) were felt in those’ school districts. Morrilton, 606 F.2d at 228. Similarly, the holding in United States ‘4 . % a ; : : ; 3 a —- ee ee - 199a - ve. Board of School Comm'rs., 573 F.2d 400, 410 (7th Cir.), cert. denied sub nom., 439 U.S. 824 (1978) (cited in Morrilton, 606 F.2d at 228-29) affirms the appropriate- ness of granting interdistrict relief even absent separate constitutional violations by each school district, but nowhere limits relief only to cases where the school district is found to be dependent on the state and its boundaries established for segregative purposes. The lead opinion distorts what our earlier opinions have held in this regard. ® Again, in Liddell v. State of Mo., 731 F.2d 1294 (8th Cir.) (en banc) (Liddell VII), cert. denied, 105 S. Ct. 82 (1984), we noted that in Liddell v. Board of ®Judge Heaney, who authored the Morrilton opinion, now joins in this opi- nion's specific conclusion that Morrilton was never intended to be limited to gerry- mandered boundaries. Moreover, this - 200a - court's reliance in Morrilton on Board of School Comm'rs. clearly refutes the lead opinion's position. In Morrilton, we adopted wholly the lanquage of the Seventh Circuit, which states: [S]chool officials may not maintain that their districts should be excluded from any interdistrict remedy if they are found innocent of com- mitting any constitutional violations because they should not be held responsible for the acts of the state legislators or other state sub- divisions such as a local housing authority or a zoning board. The com- mands of the Fourteenth Amendment are directed at the state and cannot be avoided by a fragmentation of respon- sibility among various agents. * * * If the state has contributed to the separation of the races, it has the obligation to remedy the constitu- tional violations. That remedy may include school districts which are its instrumentalities and which were the product of the violation. Board of School Comm'rs., 573 F.2d at 410 (quoted in Morrilton, 606 F.2d at 228-29) (emphasis added) (citation omitted). The lead opinion attempts to distinguish this lanquage from Board of School Comm'rs. by asserting that the school districts in that case were “mere instrumentalities of the state." Ante at 3l. As grounds for its conclusion that the SSDs are "independent and their boundaries must be - 20la - respected," the district court stated that “to find the SSDs vicariously liable for acts of the state, the Court must make the threshhold determination that the SSDs are mere agents or arms of the state and not independent, locally autonomous entities." Jenkins, June 5 opinion at 101-02. See also id. at 8-14. Not only does the lead opinion's statement reflect the district court's misconstruction of Milliken, but it overlooks the fact than an SSD may have some attributes of auto- nomy and yet remain an instrumentality of the state. In its June *° »pinion, the district court found that the SSDs had more attri- butes of autonomy than those Michigan school districts examined in Milliken. Jenkins, June 5 opinion at 8. While it is true that the SSDs may have some authority to act independently, that authority is delegated to them by the state and the state retains ultimate authority over the SSDs' actions. The SSDs exist pursuant to provisions of the Missouri constitution, are maintained at the nleasure of the Missouri legislature, and are subject to the authority of state statutes and the rules and requlations of the Missouri State Board of Education. See, e.q., Mo. Const. arts. III, § 40(20); IX. Evidence introduced at trial acknowledged the authority of the Missouri General Assembly to reoraanize Missouri's schools for the purpose of achieving racial balance. See, e.g., Plaintiffs* Exhibit 1010. The Missouri Supreme Court has found that school districts “form an integral part of - 202a - Educ., 667 F.2d 645 (8th Cir. 1981) (Liddell IIT) the state, and constitute that arm or instrumentality thereof discharging the constitutionally [e]ntrusted governmental function of imparting knowledge and intelligence to the youth of the state," School Dist. v. School Dist., 102 S.W.2d 909, 910 (Mo. 1937), and that the school districts are statutory trustees for the discharge of the governmental function to apportion funds in the best interests of education which by the constitution is entrusted to the state, School Dist. No. 59 v. Maple Grove School Dist. No. 56, 359 S.W.2d , 247-48 (Mo. 1962) (citing School Dist. v. School Dist.). Moreover, the district court explicitly concluded in its September opinion that “none of the provisions of the Constitution nor sta- tutes of the State of Missouri would have prevented the State of Missouri from fulfilling its affirmative duty of disestablishing a dual school system sub- sequent to 1954." Jenkins v. State of Mo., 593 F. Supp. 1485, 1504 (W.D. Mo. 1984). The court further concluded that "{ilt is clear that school districts in the State exist pursuant to the State Constitution," id., and that “[t]he State executive and its agencies as well as the State's General Assembly had and continue to have the constitutional obligation to affirmatively dismantle any system of de jure discrimination, root and branch,” id. at 1505. —— “aids - 203a - we rejected the State's argument that the district court was without authority to formulate an interdistrict plan without finding an interdistrict viola- tion. We also noted that volun- tary interdistrict pupil exchanges “must be viewed as a valid part of the attempt’ to fashion a workable remedy within the City." (Liddell III, 667 F.2d] at 651. In an order appended to that opinion, we noted that the State had been “judicially deter- mined to be a primary constitu- tional violator,” and we held that an interdistrict transfer Dlan would be salutary and would be entirely enforceable against the State. Id. at 659%. Liddell VII, 731 F.2d at 1303. See Little Rock School Dist. Vv. Pulaski County Special School Dist. No 1, 778 F.2d 404 (8th Cir. 1985), cert. denied, 106 S. Ct. 2926 (1986). Though gerrymandering is certainly one type of constitutional violation, nothing in the lead opinion explains why it is the exclusive means by ? - 204a - which a school district may suffer sigqni- ficant segreqative effects for which interdistrict relief may be gqranted./7 See Evans v. Buchanan, 416 F. Supp. 328, 340 (D. Del. 1976), aff'd, 555 F.2d 373 (3d Cir. 1977) (Milliken's “specification of the deliberate drawing of lines to achieve seareqation was by way of example, not limitation"). The lead opinion's heavy reliance on Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (Sth Cir. 1981), and Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324 (4th Cir. 1984), is also misplaced. Goldsboro is distinquishable on several aqrounds. The Goldsboro city school district had been declared unitary 7This court's line of cases interpreting and applying the Milliken standard to encompass a wide ranqe of constitutional violations is consistent with Justice Stewart's restatement of the | Pore ; ss . ee ee a ns ie hel Rat 7 - 205a - Supreme Court's holding in his concurring opinion in Milliken, in which he stated: Since the mere fact of different racial composition in contiguous districts does not itself imply or coustitute a violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or encouraged by the State or its political sub- divisions, it follows that no inter- district violation was shown in this case. Milliken, 418 U.S. at 756 (Stewart, J., concurring) (emphasis added). Justice Stewart further emphasized that = Oe eae oo + et) RS Lee ae F —————————————ooorrrlc emcee [t]he Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contri- buted to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers express concern cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of Appeals. - 206a - by a federal district court in 1973. See id. at 325-26. Moreover, in Goldsboro, there was no showing of any housing viola- tions or interdistrict transfers’ for seqreqated purposes, and on appeal the Fourth Circuit specifically found that the district court did not erroneously apply the law to that case's facts. See id. at 328. Although Lee exhibits some simi- larities to the present case, as we noted in Little Rock the Lee case did not involve segregative interdistrict trans- fers, segregative boundary changes, or state-imposed residential segregation, and the city district had been previously Id. at 756 n.2 (emphasis added). Nowhere does Justice Stewart limit the definition of unconstitutional governmental activity solely to instances of gerrymandering. - 207a - declared unitary. See Little Rock, 778 F.2d at 429. Missouri's History of De Jure Segregation Siqnificantly, the lead opinion omits any discussion of the State of Missouri's fi tenets he cellar? © lonq history of de jure seqregation in which the KCMSD and most, if not all, of the SSDs participated. Much of this history, which was recounted in Liddell v. Board of Educ., 731 F.2d 1294 (8th Cir. 1984) (Liddell VII), is detailed in the district court's opinion granting intra- district relief. See Jenkins v. State of Mo., 593 F. Supp. 1485, 1490-95 (W.D. Mo. 1984). This history bears repeating here, however, because the nature and gravity of | : the constitutional violations for which Plaintiffs seek redress can properly be - 208a - evaluated only in light of their histori- cal context. The State of Missouri's implementation and enforcement of school segreqation can be traced to well before the Civil War, when Missouri enacted laws prohibiting the creation of schools to teach blacks to read or write. Act of February 16, 1847, § 1, 1847 Mo. Laws 103. Beginning in 1865, the Missouri constitution expressly required separate schools for blacks and whites. Mo. Const. 1865, art. IX, § 2. This provision was retained in three suc- cessive constitutions. Mo. Const. 1875, art. XI, § 3, retained Mo. Const. 1919, art. XI, § 3, revised and retained, Mo. Const. 1945, art. IX, §§ lla) and 3c). See also Act of February 17, 1865, § 13, 1865 Mo. Laws 170. In 1889, the Missouri § 4 . : y i ] - 209a - legislature made it a criminal offense for a black child to attend a white school. Act of June 11, 1889, § 705l({a), 1889 Mo. Laws 226. Although a 1954 Attorney General opinion declared the school segre- gation laws unenforceable, the statutes implementing the constitutionally mandated seqregqation were not repealed until 1957, see Act of July 6, 1957, § 1, 1957 Mo. Laws 452, and the constitutional provision was not rescinded until 1976. See Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.), cert. denied, 449 U.S. 826 (1980). Prior to 1954, school districts in Missouri were not even in compliance with the "Separate but equal" doctrine of Plessy v. Ferquson, 163 8.8. 337 .t i896) From 1866 to 1929, state law exempted school districts from providing schools - 210a - for black children if there were fewer than fifteen black children in the district and required them to discontinue black schools whenever average daily attendance fell below eight students. See 1865 Mo. Laws 177; 1869 Mo. Laws 86-87; 1870 Mo. Laws 149; 1887 Mo. Laws 264; 1893 Mo. Laws 247; 1909 Mo. Laws 790-91. In 1929, the Missouri legislature gave school districts the option to forgo schools for blacks altogether, no matter how many black school children resided in the district. 1929 Mo. Laws 382. Although school districts refusing to provide schools for blacks within their district were required to make interdistrict arrangements for and pay the tuition of black elementary school children beginning in 1929 and for black high school students Re eer en tere Pe ee. nS re See - 2lla - beginning in 1931, the school districts were not required to fully reimburse transferred black students for transpor- tation costs until 1945. See 1945 Mo. Laws 1700. Rather than providing schools’7~ for blacks within their districts, school districts in the Kansas City metropolitan area, including the predecessor districts of the SSDs,8 took full advantage of state law provisions allowing them to arrange for the transfer of black school children out of their districts. Blue Springs, Fort Osage, Center, Raytown, Grandview, and Hickman Mills provided no 8Under Missouri law, the SSDs are legally responsible for the constitutional violations of their predecessor districts. See Lewis County C-I School Dist. v. Normile, 431 S.W.2d 118, 121 (Mo. 1968) (en banc); McClure v. Princeton Re- organized School Dist., 307 S.W.2d 726, 727-28 (Mo. Ct. App. 1975); Lynch v. Webb City School Dist. No. 92, 373 S.W.2d 193, - 2l2a - : schools for blacks.? Lee's Summit did not operate any black schools after 1910. North Kansas City intermittently operated a black elementary school until 1944. Independence, Liberty, and Park Hill each operated a black elementary school. Independence operated a black high school from approximately 1934 to 1945, and Liberty offered high school through the eleventh grade after 1938. However, the evidence is overwhelming that the quality of education available in these black 200 (Mo. Ct. App. 1963). See also Taylor v. Board of Educ., 294 F.2d 36, 38-39 (2d Cir. 1961), cert. denied, 368 U.S. 940 (1961) (school board at time of litigation held liable for the discriminatory acts of predecessor boards. Any reference to the conduct of an SSD therefore includes liability for any acts of its prede- cessors. 9The district court found that four of the SSDs -- Center, Raytown, Grandview, and Hickman Mills -- did not operate dual school systems because they had no black residents prior to 1954. However, this - 2l3a - schools was quite poor, especially in com- parison to that available in the white schools in the SSDs and the black schools in KCMSD. Moreover, despite state laws requiring districts not operating black schools to reimburse black students for tuition and at least part of their finding is highly questionable, especially as to Raytown, Grandview, and Hickman Mills, in light of the school records and other evidence before the district court which showed the presence of at least some black children in their predecessor districts. In any event, that no black children may have lived in these districts Prior to 1954 does not exculpate these districts. The great weight of evidence at trial indicated that the fact that there were no schools for black children to attend in these SSDs deterred blacks from moving to those districts in the first place. See, e.q., Jenkins, 593 F. Supp. at 1490; testimony of Dr. James D. Anderson, an expert in the field of the history of American education, summarized in Brief of Amicus Curiae The Kansas City Branch of The National Association for the Advancement of Colored People at 3-8. - 2l4a - transportation costs, none of the SSDs did so until Lee's Summit beqan reimbursement in 1931, followed by Indenendence in 1945, Park Hill and North Kansas City in the late 1940s, and Liberty in 1953. As the district court itself found, in 1954 KCMSD was the only school district in the Kansas City metropolitan area providing any real educational opportunities for blacks, operating fourteen black elementary schools, one black junior high vocational school and one black high school-junior colleae. See Jenkins, 593 F. Supp. at 1492. Legalized seqreqation of and discrimi- nation against blacks in Missouri was not limited to education. State law permitted local authorities to establish separate libraries, parks, and playgrounds’ for =r: ha iil hita alates ti yrs en - 215a - whites and blacks, Mo. Rev. Stat. § 165.377 (1959); made it a crime for a black to marry a white, Mo. Rev. Stat. § 563.240 (1959); and required segqreqation in colonies for the "feebleminded." See, e.g, Jenkins, 593 F. Supp. at 1503. Of foremost importance to this case is the pervasive system of housing seqregation in which all levels of government par- ticipated. Racially restrictive cove- nants, FHA appraisal practices, relocation policies of state and local housing aqgen- cies, and private discrimination operated to restrict blacks to certain qeoqraphic sections of the Kansas City metropolitan area. Housing Violations and HUD Liability Judge Arnold's opinion recounts’ the - 2l6a - lonaq history of Missouri's involvement with housing discrimination in the Kansas City area, which in some instances con- tinued through the 1970s. I join Judge Arnold in concluding that remand is required for further findings, for the purposes of fashioning interdistrict relief, on the extent of constitutional violations by the state and its various agencies in implementing seqregative housing policies. For similar reasons, I would also reverse and remand for further consideration the district court's dismissal of HUD. Though the lead opinion affirms the district court's finding that HUD did not act arbitrarily or capri- ciously and that HUD's acts were without discriminatory intent or effect, the record makes clear that HUD committed * : . ; i j ee ee ™ oS lt tall ers ae ee - 2l7a - numerous constitutional violations. As Judge Arnold points out: With reaard to HUD, the District Court found that the agency had_ acted “reasonably” because it had taken action in the 1970s to end discriminatory practices by HAKC, whose pro- qrams HUD funded. 593 F. Supp. 1498-1499, Yet there was exten- sive evidence, not addressed by the District Court, that HUD knew of shortcomings in HAKC's tenant- assignment practices for years without taking action to end them. Ante at 70 n.10. Use of the arbitrary and capricious standard is inappropriate in the context of HUD's alleged constitu- tional violations through the par- ticipation in and support of racially segregated housing practices. Where a government entity's discriminatory prac- tices causes housing and population shifts with metropolitan-wide effects, an inter- district remedy has been found an appropriate form of relief. United States ve Board of School Comm'rs., 637 F.2d 1101, 1114 (7th Cir.), cert. denied, 449 U.S. 838 (1980). Moreover, considering whether the participation of each SSD in the dual school system had ay sianificant interdistrict effect, the district court concluded that for each SSD the proof of any current effects was “weak, speculative and in any event de _ minimus [sic].* Jenkins, June 5 opinion at 12. Recause the district court erroneously assumed that each SSD must be found to have com- mitted a constitutional violation with current segreqative effects before it could be included in interdistrict relief, the district court did not properly take into account the current seaqreqative : | | ) - 219a - effects on the SSDs of the state's or KCMSD's actions to maintain a dual school system in the Kansas City metropolitan area. Milliken makes clear that an inter- district remedy is justified if the constitutional violations of even "a single school district have been a substantial cause of interdistrict seqreqation." Milliken, 418 U.S. at 745. The Supreme Court denied interdistrict relief in Milliken simply because the plaintiffs had only shown that the consti- tutional violations of the Detroit public school system had _ intradistrict, not interdistrict, effects. Id. at 747 (explaining that dissent's position was that the existence of a dual school system in Detroit justified an _ interdistrict - 220a - remedy); id. at 749 ("Where the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district's schools with those of surrounding districts.”); id. at 751 ("Thus, there was no evidence suqgesting that the State's activities * * * within Detroit affected the racial composition of the school popu- lation outside Detroit or, conversely, that the State's * * * activities within the outlying districts affected the racial composition of the schools within Detroit."”). In contrast, the plaintiffs here presented evidence showing that KCMSD's decision to operate some com- pletely black schools and some completely white schools long after 1954 led to the - 22la - rapid turnover of neiaqhborhoods from black to white and caused many whites to move out of KCMSD to the SSDs. The district court repeatedly recognized that evidence at trial demonstrated the link between KCMSD's delay in implementing effective integration policies during the 1960s and 1970s and the exodus of whites from KCMSD during this period in discussing KCMSD's liability for segregation within KCMSD. See Jenkins, 593 F. Supp. at 1492-95. The district court did not consider KCMSD's conduct as a basis for ordering inter- district relief, however, because it misconstrued Milliken to require culpabil- ity with continuing segqreqative effects on the part of each SSD before that SSD could be included in an _ interdistrict remedy. Because under Milliken the con- - 222a - duct of even a sinale school district may be the basis for interdistrict relief if the continuing effects of that conduct are interdistrict, I would require the district court to consider on remand the extent to which KCMSD's delay in imple- menting an wtiesins integration policy has current interdistrict effects. Ironically, though Judge Arnold concludes that the district court misapplied Milliken in assessing inter- district effects from housing violations, he apparently upholds as not clearly erroneous the district court's findings of no constitutional violations by the SSDs and its findings of only de minimis con- tinuinq segregative effects on the SSDs from the state's and the KCMSD's operation of a dual school system. To this extent, 5 ' 7 2 Ba 3 4 - 223a - I part company with Judge Arnoldl° these findings are inseparable from the district court's misunderstanding of the Milliken standard. Constitutional Violations by the SSDs The district court failed to analyze the housing violations by the state agen- cies because it believed they were irrele- vant to the SSDs' participation in any interdistrict' relief. Similarly, the district court failed to analyze the effect of the state's and the KCMSD's discriminatory practices because it decided their conduct was irrelevant to any remedial relief. The record is replete with evidence of constitutional l0fhis attempt to separate constitu- tional violations related to housing and the segregative policies of the various school districts iqnores the district court's undisputed finding of the - 224a - violations by many of the SSDs and of the effect those violations had on all of the SSDs and on the KCMSD. As has already been stated here, these violations cannot be ignored by simply expressing deference to the district court's findings under the clearly erroneous’ rule. Whether’ there exists a constitutional violation is more a question of law than of fact and is clearly subject to de novo appellate review. See, e.q., Bose Corp., 466 U.S. at 501 n.17 ("A finding of fact in some cases is inseparable from the principles through which it was deduced."). "inextricable connection between schools and housing." Jenkins, 593 F. Supp. at 1491. The constitutional violations here are so intertwined that it is impossible to separate the effects of one from another. Ss g i ae vet ed % 3 4 4g t bse ale ee EER Yt CRAY Sah SPR ele ANE - 225a - Even under the district court's erro- neous interpretation of Milliken, the lead opinion errs in affirming the district court's dismissal of the SSDs because it -failed to find that the SSDs committed constitutional violations with cross- district effects. The uncontroverted evi- dence at trial showed cad under the pre-1954 dual school system the SSDs exer- cised their discretion, granted them by the state, either to provide schools for black students which offered at best a substandard education or to decline to provide any schools at all. Instead, the SSDs transferred black students to the KCMSD. Understandably and undisputedly, KCMSD became the only school district in the Kansas City metropolitan area in which black school children could receive a - 226a - complete education. Not only did the SSDs thus create segregated conditions in their individual districts by emptying their districts of all black school children, but they set historical precedent ' for interdistrict transfer of students on the basis of race in the Kansas City metropo- litan area. The district court's conclusion that the SSDs were local automonous units! and therefore exempt from liability for any segregative acts done by the state is the major premise on which the lead opin- ion relies in affirming the district court's finding that the SSDs committed no llput see this dissent's footnote 6, supra, criticizing the lead opinion's conclusion that the SSDs are not instru- mentalities of the State of Missouri. acts with discriminatory intent that had | - 227a - | siqnificant seqregative effects. However, to the extent the SSDs exhibited autonomy in deciding to provide inferior or no schools for blacks, under Milliken proof of autonomy here leads only to the conclu- sion that the SSDs did commit constitu- tional violations. ‘Wectowes, the lead opinion ignores the uncontradicted fact that after the SSDs participated in pre-1954 segregation on an interdistrict level, they took no affirmative steps on a Similar interdistrict level to reverse the effects of those autonomously chosen edu- cational practices. Even if Milliken required proof of constitutional viola- tions by each individual SSD, which it does not, the district court erred in failing to draw the obvious’7 inferences EE - 228a - from the uncontroverted evidence to find such violations in the “autonomous” acts of the SSDs. The result today, as the evidence at trial showed, is that KCMSD's student body is sixty-eight percent black whereas’ the Student population of the SSDs is only five percent black 22 Continuing Significant Interdistrict Effects My most fundamental objection to the majority's position, however, is its whole- sale affirmance of the district court's finding that to the extent any constitu- tional violations were committed by any of the defendants, the continuing seqregative effects on the SSDs were de minimis and that inclusion of the SSDs in an inter- 12 Because Missouri mandated separate schools for blacks and whites until 1954, the current disparity between the percen- tage of blacks attending school in the L&W y § j - j | * a DS i Shs NS ¥ LF A ie Lg MC eS ee - 229a - district remedy was therefore precluded. In concluding that the pre-1954 dual school system in which the SSDs par- ticipated has no continuing interdistrict effects, the district court found that despite the fact that only KCMSD provided SSDs and KCMSD should raise a rebuttable presumption that the de facto segregation that currently exists is the result of the prior constitutional violations. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971). The lead opinion arques that the Swann presumption that proof of prior de jure seqregation coupled with a continuing racial imbalance establishes liability unless rebutted is inapplicable in interdistrict cases. To support this conclusion, the lead opinion notes that the Supreme Court did not apply the Swann nresumption in Milliken. Ante at 24. Unlike this case, however, there was no alleqation nor proof in Milliken that prior de jure segregation had inter- district effects. In any event, even if the Swann presumption does not apply to interdistrict cases, the plaintiffs pre- sented sufficient evidence that the constitutional violation of the SSDs have current interdistrict effects. - 230a - blacks in the Kansas City metropolitan area with any real educational oppor- tunities prior to 1954 as a direct result of the constitutional violations of the state, the KCMSD and the SSDs, those violations had but a de minimis effect on the housing choices of blacks prior to 1954. Such a finding is contrary to leqal precedent, many of the district court's own factual findings, and the plaintiffs' unrebutted expert and lay witness testi- mony and is clearly erroneous. In affirming as not clearly erroneous the district court's findings of de mini- mis continuing seqreqative effects on the SSDs from the KCMSD's actions, the lead opinion follows the district court in overlooking the weight of uncontradicted evidence in the record and the district ‘pCi GRA AP EA ATS IS Paper ey ts rei, Wee Wer nor aoe ee - 23la - court's own findings that the kKCMSD's perpetuation of segreqated schools within the KCMSD caused a mass concentration of blacks in an area where a_e substantial number of whites lived. This in turn resulted in displacement of whites, who moved to or transferred into the SSDs. The evidence produced at trial demonstrated that by a variety of affirm- ative official acts, the KCMSD sought to preserve the all-white character of some of its schools at the expense of the schools in the southeast corridor of Kansas City. There, KCMSD followed a policy of “integration and stabilization." As part of this piecemeal deseqreaqation nolicy, KCMSD implemented attendance zones, intact busing, liberal transfers, neighborhood school policies, and faculty - 232a - transfers which had seqreqative instead of inteqrative effects. One of the most Significant of these was the creation of shiftinq and optional attendance zones. Evidence at trial indicated that’ the attendance zone choices were based on Troost, a north/south street that tradi- tionally had divided white neighborhoods west of Troost from the neighborhoods to the east which also contained many ~~ but in which most of the blacks in Kansas City lived. Testimony at trial indicated that despite overcrowding in schools east of Troost and underuse of schools west of Troost, attendance zones did not- traverse Troost until 1976. Moreover, testimony at trial established and the district court itself found that as the population of Kansas City changed in the years following - 233a - Brown v. Board of Educ., 349 U.S. 294 (1955), KCMSD “made frequent shifts in the attendance areas of its schools" with the result of removing white sections from the western-most portions of the racially transitional areas and attaching them to all-white zones’ further’ west, shifts which, coupled with a liberal transfer policy, “allowed attendance patterns to continue on a segreqated basis." Jenkins, 593 F. Supp. at 1494. The district court also found that "as the black population expanded from the central city in a southeast direction, neighborhoods’ and schools experienced a racial transition. As blacks moved, or were bused to the schools in the [southeast] area, whites moved out." Id. 13(citations omitted). 130ther examples of KCMSD's segreqative policies include the transfer of its best and most experienced black teachers to - 234a - As a result of these policies, blacks were bused to or moved to the southeast area of Kansas City and whites moved to the neighboring SSDs. As the black popu- lation of Kansas City expanded to the southeast, KCMSD chose to operate some completely segregated schools and _ some inteqrated ones. The result of KCMSD's official school policies was to make the KCMSD "blacker" and the SSDs “whiter,” actions which have been found by courts before to be constitutional violations for which interdistrict relief is appropriate. white schools, leaving less capable teachers in black and changing schools and accelerating those schools' transition to all-black schools. Too, as the district court found, the liberal transfer policy allowed "whites living in racially tran- sitional neiqhborhoods in Kansas City to transfer * * * to whiter schools." Jenkins, 593 F. Supp. at 1493. - 235a - Cf. Hoots v. Pennsylvania, 672 F.2d 1107, 1121 (3d Cir.), cert. denied, 459 U.S. 824 (1982) (quoting Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 266 (S.D. Ohio 1977), aff'd, 443 U.S. 449 (1979)) ("Actions and omissions by public offi- cials which tend to make black schools blacker necessarily have the reciprocal effect of making white schools whiter.") (citation omitted). See Evans Ve Buchanan, 393 F. Supp. 428, 436 and n.15 (D. Del. 1975) (presence of propor- tionately more black children in a city school than in the neighborhood served by the school likely encouraged white fami- lies to move to nearby suburbs, where “black students were barely present" in the school systems). It is evident that the seqregative - 236a-- policies perpetuated by KCMSD caused a qreater concentration of blacks and black schools in the southeast corridor, directly resulting in displacing whites into the SsDs.14 In this regard, the district court's own findings are at least contradictory and at most support’ the grant of interdistrict relief based on continuing effects in the SSDs from the KCMSD's’” policies. The district court recognized that the KCMSD had chosen to operate some completely segregated schools and some integrated ones in the district 14The lead opinion asserts that this statement is an example of “appellate factfinding." To the contrary, this state- ment is based on the district court's own observations as to what actually occurred in the Kansas City metropolitan area due to institutional segregation. See Jenkins, 593 F. Supp. at 1493-94, « 2374 and that as of 1977, twenty-five one-race schools under the pre-1954 dual system- remained ninety percent or more of the same race. See Jenkins, 593 F. Supp. at q 1492. Moreover, in a Supplemental order, of which we take judicial notice, that enjoined for one year the property tax rollback provided under a Missouri sta- tute, the district court summarized its findings in this case to date by stating: The Court has’ found that segregated schools, a constitu- tional violation, has led to white flight from the KCMSD to suburban districts, large number of students leaving the schools of Kansas City and attending pri- vate schools and that it has caused a system wide reduction in student achievement in the schools of KCMSD. It has also found that by improving the quality of education in KCMSD, it will enhance the appeal of the school system, thus giving it a chance to retain itS present white enrollment and also encourage whites in private and suburban schools to enroll in its Ee Rs BRS a Week i pei RoR Se VALERY RAD NOUS RII ie te As A RN chloe eg alias Bt kg #, cotta saad w - 238a - schools. As set forth in its order of June 14, 1985, the basic remedial principle in school desegreaqation cases, is that "the scope of the remedy is determined by the nature and extent of the constitutional violation." Milliken v. Bradley, 418 U.S. 717 (1974). Jenkins v. State of Mo., Now 77-0420-CV- W-4, slip. op. at 1-2 (W.D. Mo. August 25, 1986). Not only does this’7 language further support the view that the district court did recoaqnize that the effects on the SSDs from the seqregative policies of the KCMSD were more than de minimis, but it illustrates that the district court's refusal to grant interdistrict relief was clearly erroneous and contradictory to its own findings from the record.!5 That the availability of schools l5It is conceivable that the district court found nothing inconsistent in So holding, because it labored throughout these proceedings under the miscomprehen- - 239a - influences housing choices iS a common sense proposition. After a fifty-year period during which the SSDs provided no schools or inadequate schools for blacks, it is hardly surprising that black fami- lies living in the SSDs and those moving to the Kansas City area from other states chose to move to the KCMSD, where adequate educational facilities were available. As the district court notes in its opinion on sion that Milliken requires each indivi- dual SSD to be a constitutional violator. The lead opinion now urges that the August 25, 1986 opinion was merely a general order which does not contradict the district court's earlier, more lengthy orders. Ante at 25 n.17. This statement is at odds not only with the August order's plain lanquage, but also with the objections to that August order made to this court by the SSDs on the grounds that the order was entered after the SSDs were no longer parties to the case and that its language was prejudicial to them. - 240a - intradistrict liability, the nexus between availability of schools and housing pat- terns has been recognized by the Supreme Court. See Jenkins, 593 F. Supp. at 1491 (quoting Swann, 402 U.S. at 20-21). This nexus has also been recognized by this court in the context of interdistrict cases. See, e.g., Little Rock, 778 F.2d at 412 n.5. The Little Rock case is par- ticularly instructive in that, under facts very similar to this case, we upheld a district court finding that black families from other school districts were drawn to the Little Rock school district precisely because it was the only district that pro- vided blacks in the area with substantial educational opportunities. Id. at 412. The district court's finding in Little Rock that school availability influences - 24la - housinq on an interdistrict as well as an intradistrict basis, which we upheld, seriously undermines the credibility of the district court's finding in this case "that the absence of black schools in any of the [SSDs] did not discourage black families outside (or from within) Missouri from moving to- and liviee in those districts." Jenkins, June 5 opinion at 18 (citations omitted). The district court's finding is further undermined by several statements in its September, 1984 opinion regarding intradistrict liability of the state and KCMSD. In rejecting the state's argument that job availability rather than school availability was responsible for the segregated housing and school patterns - within the KCMSD, the district court - 242a - stated that "[o]lften jobs would pull migrants to the city and then availability of schools would influence, more specifi- cally, what housing choice would be made within the city." Jenkins, 593 F. Supp. at 1490. In finding that the current dual housing market affected blacks in the KCMSD, the court aqain referred to the "inextricable connection" between schools and housina. Jenkins, 593 F. Supp. at 1491. It is difficult to see how school availability would be an important factor in making housing choices within a single school district, but would not influence housing decisions within the metropolitan area in qeneral. In support of their argument that the constitutional violations here produced significant interdistrict effects, plain- | | ; : : . 4 , $0 AahaeD le” PL AR se Rt sab - 243a - tiffs produced statistics showing that although the school population in the three-county area, excluding KCMSD, was between 7.19% and 8.7% black in 1881, the black school-aged population in the same area had steadily declined to between .39% and 1.5% by 1954. At the same time, the black population in KCMSD had risen from 8.8% in 1900 to 14.0% in 1954. Plaintiffs produced several expert witnesses on edu- cation and housing patterns who testified that the inability of blacks to provide their children with an education in the SSDs caused many black families to move to KCMSD, the only district providing any real educational opportunities for blacks in the Kansas City metropolitan area. The absence of schools for blacks in the SSDs, the experts testified, also influenced the - 244a - housing choices of blacks moving into the Kansas City metropolitan area from other States, both because there would be less chain migration to the SSDs_ as the existing black population in the SSDs declined and because accessible education is an important factor for blacks, as for all people, in making housing choices. Plaintiffs also produced the testimony of many blacks who had lived in the SSDs prior to 1954 but had had to travel long distances or move to KCMSD itself to receive an education. Other evidence included pre-1954 school board reports and other documents stating that the absence of educational opportunitites for blacks in rural areas caused by the dual school system was causing many black families to leave rural areas for large cities, 16 l6éSsee infra note 18. - 245a - Notwithstanding plaintiffs’ extensive evidence, the district court concluded that the absence of educational oppor- tunity for blacks in the SSDs prior to 1954 had a de minimis effect on current housing patterns and school seqreqation in the Kansas City metropolitan area. The lead opinion merely reasserts the district courts findinas and concludes that they are not clearly erroneous. Close examina- tion of the district court's opinion, however, reveals that its reasons’ for rejecting the plaintiffs' evidence as de minimis ring hollow. For example, the district court found that the increase in the black population in KCMSD prior to 1954 was attributable to jobs and employ- ment opportunities available in the KCMSD area, rather than to the availablility of - 246a - schools. Jenkins, June 5 opinion at 15-16 and 18. No one disputes that economic opportunity was a major factor in drawing blacks, especially from the South, to the Kansas City metropolitan area. The plain- tiffs' argument, however, was not that school availability to the exclusion of economic opportunity drew blacks to KCMSD,. Rather, plaintiffs arqued that once blacks were drawn to the Kansas City area for whatever factors, includinq economics, school availability caused many blacks to settle in KCMSD rather than in the SSDs. This argument remains unrefuted, and in fact is substantiated by the district court's own findings reqardingq the nexus between school availability and housing patterns. !? See Jenkins, 593 F. Supp. at 17The court also erred in rejecting much of the plaintiffs otherwise uncontroverted expert testimony regarding the effect of - 247a - 1491. The district court also failed to assess the importance of the relative depopulation of blacks from the SSDs prior to 1954 with resnect to the present racial composition of the Kansas City area. In rejecting the nplaintiffs' evidence of depopulation, the district court noted that although the black population in the defendants'- constitutional violations on the residential choices of blacks in the Kansas City metropolitan area. Much of this testimony, given by Dr. James D. Anderson, a leading scholar and historian, was uncontradicted and based on interpre- tation of public records. See supra note 9. This evidence was highly probative, and it wac wholly arbitrary for the court to reject it and inject its own inferen- ces. Moreover, it is especially crucial in a case of this nature to give great consideration to the testimony of histori- cal experts where the theory to be proved occurred lonq ago and few witneses are alive to testify. - 248a - three-county area, excluding KCMSD, decreased by only approximately 837 from 1910 to 1960, the black population in KCMSD increased by more than 45,000 during this same period. Thus, the district court concluded, the impact of that movement on the black enumeration it KCMSD' was insiqnificant. Jenkins, June 5 opinion at 15-16. The effect of the decline of the black population living in the SSDs prior to 1954, however, is not limited to those black families that left the SSDs _ for KCMSD because of the lack of schools. Instead, as the plaintiffs' evidence demonstrated, the resulting lack of blacks in the SSDs in turn caused blacks moving to the Kansas City area from the South to live in the KCMSD, where there was a growing black population, rather than in - 249a - the overwhelmingly white and hostile SSDs. Not only did the district court impro- perly discredit the plaintiffs' evidence, it also omitted any reference to the evi- dence that most strongly supported plain- tiffs’ claims. For example, the plaintiffs submitted several reports pre- nared by the superintendent of public schools in Missouri during the 1920s and 1930s stating that the absence of black schools in rural areas was causing black families to migrate to the large cities.!8 Contemporaneous documents such as these, prepared by school officials at the time black depopulation of rural areas was occurring in Missouri, are highly pro- bative of the link between school availa- 18See, e.q., 1929 Report of Missouri State Superintendent of Public Schools at 122-23 ("high school opportunity for {[Nlegro children is very limited" other than in St. Louis and Kansas City; "84 - 250a - bility and housing patterns on an interdistrict basis. Although the district court recognized this link, see Jenkins, 593 F. Supp. at 1490 ("(u]ndeniably, some blacks moved to districts, including the KCMSD, that pro- vided black schools"), it largely discounted the plain inferences to be drawn from it. The district court rejected the plain- tiffs' statistical evidence regarding the percent of all the high school education in the state" for blacks is provided in these cities although “less than half the [N]Jegro population in the state" lives there; in light of poor education for blacks in areas outside the cities, "the pronounced drift of the [N]egro population away from the farm to the city is quite understandable"); 1924 Report at 197 ("(mjany [blacks in rural areas] leave to seek better educational facilities for their children"). - 25la - number of black students in the SSDs who transfered to KCMSD prior to 1954 as "de minimis." It is true that the number of transfers actually shown to have occurred during this period, anywhere from 251 to 600, appears small. These examples, however, were presented only as represen- tative of the effects of the dual school system on school attendance and housing patterns in the Kansas City area, not as an exhaustive enumeration. The plain- tiffs' inability to produce more accurate statistical evidence of interdistrict transfers is not surprising in light of the incentives to underreport black stu- dents and the conceded unavailability of interdistrict transfer records, for which the SSDs are at least partially respon- Sible. The SSDs had an incentive to - 252a - underreport the number of black school children in their districts because state law excused them from their duty to pro- vide a school for blacks if the number of black school children in the district fell below a certain number. Black students from the SSDs had an incentive to. be counted as residents of the KCMSD rather than as residents of the SSDs because they could thereby avoid paying tuition to attend KCMSD before the SSDs began to reimburse them for tuition in the 1930s and 1940s. It is difficult to imagine what level of statistical proof would satisfy the district court and the lead opinion. Evidently, they would he satisfied only if the plaintiffs had paraded before the district court every black student who had transfered from the - 253a - SSDs to KCMSD or who had moved from the SSDs to KCMSD- prior to 1954. Such a stringent level of proof has never been required. See, e.g., Board of School ‘Comm'rs., 637 F.2d at 1113-14. Even assuming the numbers relied upon by the district court are accurate and controlling, it requires little additional evidence to buttress the common sense pro- position that blacks would be deterred from migrating to an overwhelmingly white school district where no black’ schools existed, where arbitrary policies or school transfers placed the primary burden of educational expenses on many black families and where racial covenants pre- vented home purchases. To fail to acknowledge that blacks were deterred from living in the SSDs is to ignore the - 254a - obvious. Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367 (1977) (in reversing denial of Title VII relief, the Supreme Court stated that to fail to account for non-applicants being deterred from even applying for employment would mean that "[vJictims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been To) successful"). Perhaps most disturbing, however, is the district court's repeated reliance on the increasing black enrollment in the SSDs after 1954 as an indication that the prior constitutional violations of the SSDs have no current interdistrict segreqative effects. The district court noted, for example, that black enrollment in Hickman Mills ee ka ee Whesahes SE iy ANGRY BN lees = ioe PVA ce Neem se HE a rN Rete ESTAR Wise Mette PR DERRS CBs MRM IIT 5c cn De ap Soy) gy RR aed a eRe Bilas aA RNS aceite tagcat 2 i toc - 255a - increased from twenty-nine black students in 1967 to 1,571 in 1983, and that black enrollment in Park Hill has increased by 110 students since 1976. Jenkins, June 5 opinion at 56, 88. That black enrollment in the SSDs has increased since the 1960s may indicate that barriers to black move- ment into the SSDs are declining over time. Far from indicating that there are no current significant seqregqative effects of the SSDs' past conduct, however, this increase in black enroiinent in the SSDs Since Brown v. Board of Educ. is conclu- Sive evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. Ia light of the compelling evidence presented by the plaintiffs that the absence of schools for blacks in the SSDs prior to - 256a - 1954 had a significant effect on housing choices made by blacks during this time, the district court's conclusion that the effects were de minimis is clearly not Supported by the record. Affirmative Duty of State of Missouri, KCMSD, and the SSDs It is clear that the SSDs, as well as the State of Missouri and KCMSD, have all failed to fulfill their affirmative duty under Brown v. Board of Educ. to eliminate the vestiges of their prior segregative policies and that~ significant inter- district effects of these policies are still evident in the Kansas City metropol- itan area. The district court, now affirmed by this court, held that because all of the SSDs had opened the doors of - 257a - their all-white schools to blacks in 1960, the SSDs had discharged their duty under Brown. Courts have long’ recognized, however, that racially neutral policies are generally ineffective to counteract the continuing effects of past segreqative practices, especially where such segrega- tion has influenced housing patterns. See, e.g.-, Swann, 402 U.8. at 20-21; Kemp v. Beasley, 389 F.2d 178, 190 (8th Cir. 1968). The district court itself recognized the ineffectiveness of racially neutral policies after a long period of intentionally segregative policies in its opinion on intradistrict liability. See Jenkins, 593 F. Supp. at 1490-95. The reason such racially-neutral plas are ineffective is plain. A racially neutral policy, such as a neighborhood school - 258a - policy, will simply not correct the effects of many vears during which black schools were located in only certain parts of a school district, causing black fami- lies to settle in those areas. Similarly, to merely open to blacks the doors of schools in virtually all-white districts simply fails to eradicate the effects of many years when those districts provided blacks with no schools or at best inade- quate schools, causing black families already living in those districts to leave and discouraging black families newly moving into the area from settling in those districts. It is precisely because of this continuing affirmative duty under Brown that pre-1954 evidence is relevant. Conclusion - 259a - The effects of the SSDs‘ pre-1954 constitutional violations and their con- tinuing failure to fulfill their duty under Brown are still evident in the Kansas City metropolitan area today. Eighty-seven percent of the black students in the Kansas City metropolitan area are educated in KCMSD; eiqhty-nine percent of the white students attend school in one of the SSDs. Yet the district court concluded that the pre-1954 conduct of seqreqated schools and housing practiced by the SSDs did not siqnificantly contri- bute to the current racial imbalance in the Kansas City metropolitan area. To support this conclusion, the district court noted that KCMSD was only 18.9 per- cent black in 1954-55. The fact that the major increase in the black population in - 260a - KCMSD occurred after 1954, said the district court, is strong evidence that the current racial composition of the Kansas City area was caused by factors other than the - pre-1954 dual school system. See, e.g., Jenkins, June 5 opinion at 41-42. Undeniably, many factors have contributed to the enormously disparate racial composition of the student bodies of KCMSD and the SSDs. Housing policies of federal, state, and local agencies have contributed to the dual housing market that exists in the Kansas City metro- politan area, which in turn has contri- buted to the de facto dual school system that exists today. Ineffective integra- tion policies of KCMSD during the 1960s and 1970s caused an exodus of whites from - 26la - KCMSD to the SSDs.19 The evidence at trial showed that the continuing influx of blacks to the Kansas City metropolitan area from the South and_ the higher birthrate amonq blacks have also contri- buted to the higher percentage of blacks in KCMSD. To the extent that these fac- tors have magnified the effects on the SSDs of the pre-1954 conduct of state, the KCMSD, and the SSDs and those effects have not been affirmatively addressed, all the defendants are at least partially to blame. Had the SSDs not contributed to the depopulation of blacks from those areas by failing to provide schools for blacks, the higher birthrate among blacks would have presumably also increased the percentage 19 The lead opinion's implication that interdistrict relief here would triaqger white flight to Kansas, ante at 57, is irrelevant in determining whether inter- district relief is appropriate. See, e.q., - 262a - of blacks living in the SSDs. Similarly, had the SSDs' policies not contributed to the depopulation of blacks from those areas, more blacks moving into the Kansas City metropolitan area from the South would have settled in the SSDs rather than in KCMSD. The lead opinion agrees with the state and the SSDs, who emphasize that the Plaintiff's" case rests entirely on racial disparities, that proof~ of disparate impact on the SSDs is not enough to hold the SSDs liable and and provide the basis of interdistrict relief. See Columbus Bd. United States v. Board of School Comm'rs., 503 F.2d 68, 80 (7th Cir. 1974) (Seventh Circuit reversed district court order for interdistrict relief, but found prediction of “white fliqht" an unacceptable reason for failing to deseqregate schools). - 263a - of Educ. v. Penick, 443 U.S. 449 (1979). I have no quarrel with that premise. But as Penick recognizes, in Swann intra- district relief was premised on a presump- tion of continuing racial imbalance within a unitary district. See Penick, 443 U.S. at 400. Here the racial imbalance is clear evidence of continuing segrega- tion following a pre-1954 de jure policy. Tt is not necessary to switch the burden of proof where there is overwhelming evi- dence of violations and effects throughout the system. Moreover, the lead opinion is also incorrect in affirming the district court's reliance on the mere passage of time as exculpating the SSDs. The lapse of decades, without any showing of affirm- ative steps taken to reverse the _ invi- - 264a - dious effects of de jure seqregation, reinforces the broad scope of the effects of the defendants' constitutional viola- tions here. Nor is the lead opinion correct in affirming the district court's rejection of the overall thrust of plain- tiff's proof of interdistrict effects on the grounds that a series of de minimis violations cannot be aqgregated to produce a finding of a constitutional violation. See, Code, Dayton Bd. of Educ, Ve Brinkman, 433 U.S. 406, 413 (1977). Here, neither the violations found proved by the district court nor the effects of those violations are insigqificant. See, e€.G., Jenkins, 593 F. Supp. at 1503 (finding that presence of dual schools had impor- tant segregative effects throughout the Kansas City metropolitan area). The pre- - 265a - mises on which the majority bases its affirmance of the district court's conclusion of de minimis continuing segre- gative effects on the SSDs have no basis in law nor in the facts as otherwise found by the district court and as developed at trial. Although the lead opinion suggests to the contrary, this case differs notably from Milliken and this circuit's Little Rock case in that it does not present on appeal an issue of whether the only appropriate remeiy is consolidation of the entire metropolitan area's school districts.29 The plaintiffs and _ the KCMSD seek alternative forms of inter- district relief as well as consolidation 20s we observed in Little Rock, in Milliken it was proposed that the remedy include consolidation of one city district with fifty-three suburban districts in three counties where there was no evidence - 266a - as a means to achieve an integrated school system. And even if the requested relief includes consolidation, relief can be tailored by the district court itself or as directed by this court to fit the constitutional violations. As was true in the Little Rock case, the automony of the city and suburban school districts can be preserved concurrent with mandated inter- district relief. As we stated in Liddell {[Rlelating the remedy to the violation pursuant to Milliken II [443 U.S. 267 (1977)] does not require a finding that each edu- cational program at issue has in the past been “infected with the discriminatory bias of a segre- gated school system." * * * It is sufficient to determine that the in the record indicating that the fifty- four districts were closely interrelated geographically, economically, politically or culturally as are the districts in this case. Little Rock, 778 F.2d at 429. - 26/a - remedial program is directed to cure the general condition offending the Constitution. Liddell VII, 731 F.2d at 1315-16 n.18 (citation omitted). The relief sought here is narrowly tailored to the par- ticular situation and responsive to the Supreme Court's concern in. Milliken that the "nature of the violation determine([s] the scope of the remedy." Milliken, 418 U.S. at 738 (citation omitted). The quarrel I have with the intra- district relief mandated by the district court, as modified by the lead opinion, is that the intradistrict programs will do little to integrate the metropolitan school system. The lead opinion calls for improved facilities and quality education programs, requires the state to pay its - 268a - Share of the cost of those programs, and authorizes the district court to order a tax increase if that alternative is necessary to enable the school district to bear its share of the cost of the mandated programs. This remedy is fine as far as it goes; however, it falls far short of the relief t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2163%3A2. Public record. Not legal advice.