Opposition Brief — Jenkins v. Missouri

In the Supreme Court of the United/S

OCTOBER TERM, 19386

Supreme Court, U.S.

iw ws

Nos. 86-1717 and 86-1718 FILED

JUN 24 1987

F. SPANIOL, J&R

CLERK

KALIMA JENKINS, et al., Petitioners,

vs

STATE OF MISSOURI, et al., Respondents.

On PETITION FOR Writ oF CERTIORARI TO THE

Untrep States Court or APPEALS

FOR THE EIGHTH CIRCUIT

JOINT AND CONSOLIDATED BRIEF IN OPPOSI-

TION FOR NORTH KANSAS CITY SCHOOL DIS-

TRICT, GRANDVIEW CONSOLIDATED SCHOOL

DISTRICT C-4, LEE’S SUMMIT REORGANIZED

SCHOOL DISTRICT R-7, SCHOOL DISTRICT OF THE

CITY OF INDEPENDENCE, FORT OSAGE SCHOOL

DISTRICT R-1, BLUE SPRINGS REORGANIZED

SCHOOL DISTRICT, SCHOOL DISTRICT OF THE

CITY OF LIBERTY, HICKMAN MILLS CONSOLI-

DATED SCHOOL DISTRICT C-1, CENTER SCHOOL

DISTRICT, RAYTOWN CONSOLIDATED SCHOOL

DISTRICT C-2 and PARK HILL REORGANIZED

SCHOOL DISTRICT NO. V OF PLATTE COUNTY

Georce E. FELDMILLER*

CuarRLes W. GERMAN

Kirx T. May

DantEL D. CRABTREE

Stinson, Mac & FIZzELu

920 Main Street

Post Office Box 19251

Kansas City, Missouri 64141

816-842-8600

Liaison Counsel for Respondent

School Districts (counsel for

individual districts listed on

the signature page)

*Counsel of Record

E. L. Mewvewmate, Inc., 026 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

XY”

REPLY TO QUESTIONS PRESENTED

The questions posed to the Court by the two petitions

are not actually presented by the unappealed factual find-

ings and holdings below. Indeed, the questions are prem-

ised upon factual assumptions that are contrary to the dis-

trict court’s actual and unappealed findings which specifi-

cally established that there were no violations of an inter-

district nature and no violations which had any current

significant interdistrict effect. Because of the long-settled

and established law in interdistrict school desegregation

cases, the factual nature of the decisions below, and the

lack of any conflict among the Circuit Courts of Appeals,

there is no question worthy of certiorari.

PARTIES TO THE PROCEEDINGS

The plaintiff Jenkins class was a plaintiff/appellant

below and is a petitioner here. Petitioner Kansas City,

Missouri School District (“KCMSD”) was a defendant.

cross-claimant/appellant below.

Petitioner KCMSD filed no cross-claims against any

of the respondent school districts described below. Thus,

KCMSD, having never made a claim against such respon-

dents, has no standing or legal basis on which to present

the question it states in its petition, assuming the opinions

below actually present the question. KCMSD was found

to be a constitutional violator and a nonunitary district.

Respondents North Kansas City School District, Grand-

view Consolidated School District C-4, Lee’s Summit Re-

organized School District R-7, School District of the City

of Independence, Fort Osage School District R-1, Blue

II

Springs Reorganized School District, School District of

‘the City of Liberty, Hickman Mills Consolidated School

District C-1, Center School District, Raytown Consolidated

School District C-2 and Park Hill Reorganized School Dis-

trict No. V of Platte County were all defendants/appellees

below. Each of these districts was found to be a unitary

district. They are hereinafter referred to as the “respon-

dent districts,” and in the decisions below they were often

referred to as the “SSDs.”*

Respondent United States Department of Housing and

Urban Development (“HUD”) was a defendant/appelléee

below.

Respondent State of Missouri (hereinafter some-

times referred to as the “State”) was a defendant/appellee-

cross-appellant below.

*As the district court found, “‘each of the schoo] districts is

a locally autonomous and independent entity [and] .. . each

defendant district is independent and autonomous from the State

of Missouri, and from all other school districts.” 300a; See also

285a-300. Despite the individual interests of each respondent

district, to lessen the Court’s burden of reviewing the rather

long petitions, these respondents are filing this joint and con-

solidated opposition brief. In the event of any briefs on the

merits, separate briefs may well be filed because of the presence

of many individual fact findings and differences among the dis-

tricts.

Ill

TABLE OF CONTENTS

REPLY TO QUESTIONS PRESENTED .......0.000.00.00......

PARTIES TO THE PROCEEDINGS ............0.0.00.. es

pe ge 8 | yy | >.

ADDITIONAL OPINIONS BELOW ....W0000000002.......

pe yy 1. i @) ie e | OF) Se

REASONS THE PETITION SHOULD BE DENIED ....

I.

II.

THIS CASE, DECIDED ON UNAPPEALED

FACTUAL FINDINGS APPLICABLE ONLY

TO THESE RESPONDENT DISTRICTS, HAS

NO NATIONAL SIGNIFICANCE AND THE

QUESTIONS POSED ARE NOT PRESENTED

Be eee Ce Pasar ..............................

THE LEGAL ISSUES ARE SETTLED AND

THE RESULT IN ANY GIVEN INTERDIS-

TRICT CASE SIMPLY DEPENDS UPON

THE FACTUAL FINDINGS MADE IN THAT

CASE; THERE IS NO CONFLICT AMONG

THE CIRCUIT COURTS OF APPEALS ........

ec las rsdn svaiinencesstestdingnacnetencaasionnonse

COUNSEL FOR INDIVIDUAL RESPONDENT

IN ME oan cass cscnencsnveusoorsessasnsinnsnsnanenes

13

14

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, 470 U.S. 564 (1985) 19

Armour v. Nix, No. 16708 (N.D. Ga. September 24,

1979), afy'd, 466 US. SO (2008). 2... 23

Bell v. Board of Education, Akron Public Schools, 491

F. Supp. 916 (N.D. Ohio 1980), aff'd, 683 F.2d 963

CURIE SR UMD acticin is celstcomnedatdeessnnicas Dharcucsiniisdeacancaieas 23, 26

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

813 (6th Cir.), cert. denied, 464 U.S. 892 (1983) _..23, 26

Bronson v. Board of Education, 578 F. Supp. 1091 (S.D.

ITU :scnce ster cusouapstcnedipiesicmmatinancdcataipnicptacaedieonsabpeeecadiones 23

Brown v. Board of Education, 347 U.S. 483 (1954) ....16, 24

Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff’d,

eS a ee 24, 25, 26

Goldsboro City Board of Education v. Wayne County

Board of Education, 745 F.2d 324 (4th Cir. 1984) ...... 23,

25, 27

Hills v. Gautreaux, 425 U.S. 284 (1976) 2.2... 21, 22

Hoots v. Pennsylvania, 672 F.2d 1107 (3rd Cir.), cert.

pees, Ge Gi, Gre CRED onsen. 26

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

SR Mts SREP Gactagetasbisntaccaresepiemeiadecacte tise can canubeeS nei 23

Lidde!! v. State, 731 F.2d 1294 (8th Cir. 1984), cert.

eeaeeG, Ge We. Gee Cibee) oc... 23

Little Rock School District v. Pulaski County Special

School District, 778 F.2d 404 (8th Cir. 1985), cert.

Gemed, 106 &. Ct. 2028 (1968) —.......................... 23

Milliken v. Bradley, 418 U.S. 717 (1974) 0.00. passim

Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d

1358 (6th Cir. 1974), cert. denied, 421 U.S. 931 (1975) 26

Vv

Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert.

dismissed sub nom. Estes v. Metro Branches of

Dallas NAACP, 444 U.S. 437 (1980) .......000000000... 23

Taylor v. Ouachita Parish School Board, 648 F.2d 959

Pe My SIE Disses. Cacecastasnadigdaiesheninnesinsbahriedineenigiatdinnesmiiautiantints 23

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

SE TD iakcnisncssbscinnhensnaesiéclidenensiaipinanscilcinginiteabamniiionmiatanes 14

United States v. Board of School Commissioners of

Indianapolis, 456 F. Supp. 183 (S.D. Ind. 1978), aff'd

in part and vacated in part, 637 F.2d 1101 (7th Cir.

1980), cert. denied, 449 U.S. 838 (1980) ............ 24, 25, 26

United States v. Board of Commissioners of Indianap-

olis, 503 F.2d 68, (7th Cir. 1974), cert. denied, 421

CE Te ED Seciesittntcedececcccccicnseinscnsietinsamnmmeniincnenit 25, 26

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) .................--. 16

Washington v. Davis, 426 U.S. 229 (1976) ............... 16, 25

Rules

ey ee Se Bs NN iciccincccsemiccespereeevenns renee 2,13

te MIE snesincscsanecensaxapatcteannsentiatananenniaaneiesaninnta 19

POR, Te, TOG: SD iis ncnnsniesnenicisisactnnnidninnscinanniaaieninnsiineneasnantinatie 18

Nos. 86-1717 and 86-1718

In the Supreme Court of the United States

OCTOBER TERM, 1986

KALIMA JENKINS, et al., Petitioners,

vs.

STATE OF MISSOURI, et al., Respondents.

On PETITION FOR WRIT OF CERTIORARI TO THE

Unrrep STaTes Court oF APPEALS

FOR THE EIGHTH CIRCUIT

JOINT AND CONSOLIDATED BRIEF FOR

RESPONDENT DISTRICTS

The respondent districts respectfully pray that this

Court deny the two petitions for a writ of certiorari seeking

review of the decision of the Court of Appeals for the

Eighth Circuit.

ADDITIONAL OPINIONS BELOW

The petitioners omitted from their description of opin-

ions that may be relevant the unpublished July 16, 1984;

January 25, 1985; and May 11, 1987 district court orders.

STATEMENT OF THE CASE

Petitioners’ statements and factual arguments attempt

to rewrite, on a piecemeal and selective basis, some but

not all of the district court’s orders and unappealed find-

ings.’

Petitioners alleged claims of both interdistrict and

intradistrict school desegregation violations. These re-

spondent districts were dismissed at the close of peti-

tioners’ case on April 2, 1984, pursuant to Fed. R. Civ. P.

41(b). On April 18, 1984, the district court also dismissed

the United States Department of Health, Education and

Welfare (“HEW”). The district court denied Rule 41(b)

motions filed by HUD and the State. Thus, the trial con-

tinued on claims of housing-related violations against HUD

and intradistrict violations against KCMSD and the State.

On June 5, 1984, the district court issued 105 pages of

detailed and comprehensive findings in support of the

April 2, 1984 dismissal of the respondent districts. On

July 16, 1984, the district court issued a comprehensive

order in support of HEW’s dismissal.

The district court, after completion of the intradistrict

trial, issued its September 17, 1984 intradistrict order. It

found no housing-related violations by HUD or the State

but it did find intradistrict liability against both KCMSD

and the State on other grounds, namely the failure to

remove all vestiges of a dual system in KCMSD.

Petitioners then presented a remedial plan to force

consolidation of the previously dismissed respondent dis-

1. Most frustrating of all, petitioners argue their evidence

without acknowledging that they failed to prove their factual

theories. To concoct their questions, the petitions retry their

failed evidence on the interdistrict issues as reflected in the

June 5, 1984 findings and, at the same time, use that rejected

evidence to rewrite some of the findings in the subsequent

September 17, 1984 intradistrict order.

a

3

tricts. Petitioners theorized that the State had supposedly

been found in the September 17, 1984 intradistrict order

to have committed interdistrict violations having current

significant segregative effects in the respondent districts.

On January 25, 1985, the district court rejected petitione= 3’

construction of the September 17, 1984 intradistrict order

and required petitioners to submit a remedial plan to re-

move the dual school vestiges found to exist only in

KCMSD. Thereafter, a comprehensive and substantial

intradistrict remedial plan for KCMSD was approved.”

2. The petitions suggest that the decisions below resulted

in a limited remedy of “compensatory programs” that left rights

in “legal limbo.” Plaintiffs’ Pet. at 9. In seeking attorney fees

from the district court, plaintiffs’ counsel argued to the con-

trary. In response to an argument that fees should be reduced

because the interdistrict issues were lost, plaintiffs’ counsel

rejoined:

[The remedy] included the vindication of the constitutional

rights of all blacks in this community and the enhanced

opportunities of all present and future children within

KCMSD to experience significant educational enhancements.

[T]he relief plaintiffs obtained is exceptional by any measure,

qualitative or monetary, meriting not only a fully ceompen-

satory award but an enhanced award as well. Failure to

obtain an interdistrict consolidation order in no way de-

tracts from the extraordinary relief obtained.

In cold monetary terms ... the present “limited” remedy

will result in annual expenditures of at least $30 million

per year for educational programs. An additional $49 mil-

lion to $200 million will be spent over several years to

provide improved facilities and additional tens of millions

of dollars will be spent each year to provide for magnet

schools and voluntary transfers among cooperating school

districts. For a program that surely will last for at least

a generation, between one-half and one billion dollars will

be invested in the education of the children of this com-

munity as a result of this litigation. Limited, indeed!

See Suggestions in Support of Motion for Partial Award of

Attorney Fees and Expenses at 20 filed February 5, 1986, and

Plaintiffs’ Reply to State Defendants’ Response at 6-7 and 10,

filed September 19, 1986.

4

After the United States Court of Appeals for the

Eighth Circuit rendered its December 5, 1986 opinion, the

same district court issued its May 11, 1987 order awarding

attorney fees to plaintiffs but denying any fee award to

KCMSD because it was not a prevailing party against the

State.

Plaintiffs spent months of trial trying to prove inter-

district violations by the respondent districts. The thrust

of plaintiffs’ case was that -pre-1954 dual schools caused

KCMSD’s current student-body racial composition. Plain-

tiffs concentrated on alleged historical facts to try to show

that a so-called “regionalized interdistrict dual system”

existed which forced blacks to live only in KCMSD.

Plaintiffs also tried to show that school district boundary

lines were drawn for impermissible racial reasons; that

the respondent districts were not locally autonomous; and

that blacks were constrained in residential choices by in-

tentionally impermissible government conduct such as

pre-1948 enforcement of restrictive covenants, highway

location, urban renewal and the location of public hous-

ing. Plaintiffs thus presented a standard interdistrici

case that attempted to prove interdistrict violations by the

various respondent districts and other government au-

thorities. They also tried to establish that current sig-

nificant interdistrict effects existed in KCMSD or the

respondent districts from the alleged violations. The di-

trict court’s findings establish that the plaintiffs failed to

prove any of those interdistrict violations or current sig-

nificant effect allegations.

The district court carefully applied the criteria of

Milliken v. Bradley, 418 U.S. 717 (1974), to determine

whether intentional interdistrict violations or current sig-

nificant interdistrict effects existed. In applying Milliken,

the district court assumed petitioners’ argument that in-

5

nocent parties could be coerced into mandatory interdistrict

remedies if current significant iv.cerdistrict effects existed

from the violation of some other party. The district

court’s June 5, 1984 findings described accurately the

petitioners’ trial theories, which are the same theories

adopted in the petitions’ questions:

[F]irst, that the SSDs, as agents of the state, were

guilty of operating a regional 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 affirmative 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 defendants and can

therefore be included in an interdistrict remedy... .

284a (emphasis supplied). “{W)hen considered in light of

the evidence,” 284a-85 (emphasis supplied), the district

court rejected the factual predicates necessary to support

those theories. Indeed, the district court found that plain-

tiffs’ evidence was not only blurred as to cause and effect,

but there also was no “careful delineation of the extent

of the effect.” 496a. In sum, plaintiffs did not prove a

constitutional violation in one district that produced a

current significant segregative effect in another district.

The following review of the district court’s 105 pages

of factual findings establishes, as noted above, that the

district court found no intentional interdistrict violation

by these respondent cistricts or by any other entity. More-

over, that court found no current significant interdistrict

effects in KCMSD or any respondent district resulting

from actions by KCMSD or other defendants.

In regard to the absence of the required showing of

an intentional interdistrict violation, the district court

found that “[w]Jitness after witness, including witnesses

who had been actively involved in the promotion of civil

rights, testified they knew of no acts by [the respondent

districts] that were done with a discriminatory intent.”

278a-79. Those witnesses included the editor of the lead-

ing black newspaper, long-time black KCMSD admin-

istrators, a former KCMSD board president and a former

black KCMSD superintendent. Id.

In regard to whether the respondent districts were

the product of a violation, the district court found that

there was “no credible evidence that any boundaries .. .

were established or maintained with any racially discrim-

inatory intent.” 294a. These districts were autonomous

and not mere agents of the State. 300a. The district court

also found that there was a higher degree of local autonomy

for school districts in Missouri than any other state hav-

ing prior interdistrict school cases. 290a-95.

In regard to plaintiffs’ historical evidence, the district

court found that no “regional black interdistrict system”

caused blacks to leave the respondent districts. 306a-07.

It also found that “[t}he manner in which blacks in any

defendant district were educated [prior to 1954] was

solely a matter of local control and within the discretion

of the local school district.” 307a. The district court found

that no “vestiges or significant effects of the pre-1954

dual school system remain in any of the SSDs.” 315a.

Indeed, the district court found that “transferring blacks

to the KCMSD under the prior segregated school system

is not a cause of the present racial distribution of the

population in the three-county area.” 314a. Plaintiff's

proof on the issue of transfers was “weak, speculative and

de minimis.” 30la. The increase in black population in

KCMSD was due to “unusual economic and employment

ramifications of the World Wars and the Depression.”

7

313a. The district court added that “jobs and economic

opportunity were primary motivators for blacks . . . mov-

ing to Kansas City and elsewhere... .” 314a.

In reviewing the plaintiffs’ evidence of effects of sup-

posed violations, the district court found that the theories

of plaintiffs’ experts either had “intradistrict implications,”

were related to effects only “within the KCMSD,” or did

not otherwise implicate any respondent district. 353a,

354a, 367a.

In reference to arguments concerning the extent of

black residential dispersion, the district court found that

no “ethnic group is racially balanced residentially and no

one in this field of study apparently advocates a random

dispersal of ethnic groups.” 354a. The district court added

that “blacks are not constrained within the KCMSD,”

and “black enrollments in each of the defendant districts

have increased fairly steadily since 1968.” 357a. An “in-

crease from 1970 of 14,645 blacks” in the area around

KCMSD refuted the “barrier theory to black movement.”

358a. Further, urban renewal or highway displacement

type relocations “had no significant effect on the racial

compositions of the enrollment in any SSD.” Id.

The district court also made findings that no inter-

district effect resulted from racial transition within

KCMSD or from KCMSD’s own actions. For example, the

district court found:

Actions of the KCMSD in assigning children to par-

ticular schools may have had an intradistrict effect

_. . [but] those actions [did not] have any significant

effect in the enrollment of any ... SSD.

360a.

The district court reviewed the number of former

KCMSD students attending schools in the respondent dis-

8

tricts, which was the plaintiffs’ only attempt to quantify

supposed interdistrict effects, and found that even “as-

suming they all moved to the SSDs because of racial tran-

sition within the KCMSD schools, plaintiffs’ argument still

fails [because] regardless of the impetus behind the moves,

the numbers involved are too insignificant to have had a

segregative impact on the KCMSD or the SSD.” 362a.

The district court found that there was “no evidence

[that restrictive covenants]. were enforced by the state

courts following Shelley v. Kraemer” and that “tremendous

housing growth in many suburban areas occurred after

1948 when such covenants were a nullity.” 363a. There

were few covenants in the respondent districts and there

were none in some. 363a, 371la-493. Restrictive covenants

did not have any significant effect on the racial makeup

of any SSD. 363a.

In regard to other housing-related issues, the district

court found that “people moved for a variety of reasons,

including a desire to be with people of like religious and

ricial characteristics’ and the personal choice of living

near middle class persons. 368a. It also found that many

housing related issues involved “private” real estate con-

cerns. 368a-69. These respondent districts were not in-

volved in any type of housing violations. Further, in

regard to public housing, the district court found that

“such housing is available in significant amounts in every

defendant district.” 365a. These findings are the oppo-

site of and inconsistent with the emotional argument that

blacks are “locked in” to KCMSD. KCMSD Pet. at 23.

The district court’s July 16, 1984 order dismissing

HEW made similar findings of no interdistrict effect.’

3. It was claimed that HEW should have mandated a

metropolitan plan in its previous civil rights investigations of

KCMSD. HEW concluded that a metropolitan plan was neither

required nor necessary for a viable KCMSD intradistrict plan.

9

The district court found that the “total testimony plain-

tiffs elicited concerning the current effect” had no cred-

ibility because the witnesses conceded that “the process

of resegregation [would have cortinued] and [a KCMSD

unitary system] would not have solved the problem in

any kind of a permanent or stable way.” See Order,

July 16, 1984 at 13 (petitioners omitted this order from

their Appendix). The district court also found that

“planned integration in the 1960’s would not have signif-

icantly affected white flight.” Id.

In the later September 17, 1984 intradistrict order, no

housing-related violation was found against any party.

Thus, HUD was dismissed. Because of other, more “sa-

lient” reasons, 602a, KCMSD and the State were found

liable for intradistrict violations. The district court, how-

ever, found no State violations in urban renewal and re-

location policies, highway location or public housing loca-

tion. This intradistrict order reiterated the earlier inter-

district finding that “there has not been a lack of balance

between federally assisted housing within KCMSD and

the suburban areas,” 579a, and, with respect to State-spon-

sored projects, it “clearly appears that the majority of the

units in which [the State] was involved were located out-

side the KCMSD.” 597a.

Having found no interdistrict liability, on the intra-

district issue of how to deal with the “anatomy of KCMSD,”

539a, the district court rejected plaintiffs’ attempt to retry

“the cause of blacks settling ... within KCMSD.” 537a.

The court focused on the intradistrict responsibility of

KCMSD and the State “regardless of why [blacks] settled

in the school district.” -538a. It is, therefore, clear that

the district court’s prior findings of no interdistrict effect

or violations were reiterated and confirmed in the Sep-

tember 17, 1984 intradistrict order.

10

In the intradistrict remedial phase, the district court’s

January 25, 1985 order (which petitioners omitted from

their Appendix although it was in the Appendix in the

Court of Appeals) rejected petitioners’ plan to consoli-

date the respondent districts based upon the September

17, 1984 intradistrict order. The district court rejected an

interdistrict order because it:

goes far beyond the nature and extent of the con-

stitutional violation this Court found existed... .

Clearly a plan which would require the consolidation

of suburban school districts, ones in which no con-

stitutional violation or significant segregative effect

has been found, results in a restructuring and coercion

of local government which is prohibited under Milli-

ken. I.

Id. at 2 (emphasis supplied). Thus, all that was neces-

sary was a plan to remove “the vestiges of the dual school

system as it presently exists in the KCMSD.” Id. at 3

(emphasis supplied).

Petitioners’ factual arguments that significant inter-

district effects existed from the State’s supposed, but

never specified, interdistrict violation is wrong. The same

district court’s May 11, 1987 order rejected an award of

attorney fees to petitioner KCMSD and held:

Finally, the KCMSD alleges in its crossclaim, as did

the plaintiffs in their complaint, that the State is

liable for interdistrict violations. It is undisputed

that the KCMSD and the plaintiffs failed in their

attempt to prove an interdistrict liability against the

State of Missouri.

Id. at 13 (emphasis supplied).

11

In reviewing the district court’s findings,t the Court

of Appeals’ majority opinion noted that the district court

found that all respondent districts were unitary, 47a;

there was no barrier to movement of blacks into the re-

spondent districts, 48a; that any pre-Brown acts had neg-

ligible present effects, 48a; there were no interdistrict

violations from intradistrict factors, 49a; the dissents’

factual argument “flies in the face” of the district court’s

findings that were “not clearly erroneous;” and the “dis-

sent does not establish what the Jenkins class and KCMSD

did not argue, that these findings of fact are clearly er-

roneous,” 49a, 5la. Petitioners’ arguments were “con-

trary to” or undermined by the district court findings

petitioners did not attack as clearly erroneous. 52a-55.

The majority did not agree with petitioners’ appel-

late argument that the district court had not applied peti-

tioners’ legal theory, “[C]Jontrary to the argument of the

class that the court looked only to the culpability of the

SSD’s, the scope of the order is far broader.” 65a. See also,

59a; 72a. The opinion also noted that the district court

compared plaintiffs’ theories to Milliken and that the

district court made specific findings that “negate current

significant interdistrict effects.” 65a-66a. Moreover, the

majority correctly observed that there was no finding

of a current significant effect from any violation. Thus,

after reviewing mony findings that no boundaries were

4. The Court of Appeals’ majority preferred the district

court’s findings over the unproven and unpreserved factual

arguments petitioners presented on appeal. The majority ob-

served:

The broad scope of these arguments is considerably nar-

rowed when viewed in light of significant factual findings

of the district court. These findings are not challenged as

clearly erroneous.

47a {emphasis supplied).

12

racially motivated, that the districts were autonomous,

and that no housing violations were found, the court

stated that “these findings pose an insuperable burden

to granting interdistrict relief.” 74a.

The majority also analyzed the district court’s find-

ings that boundaries had not constrained black movement

in any way, 74a; pre-Brown schools did not prevent

blacks from living in the respondent districts, 75a; black

enrollment in these districts’ had steadily increased, 75a;

KCMSD’s increases in black population were due to the

unusual economic and employment ramifications of the

World Wars and intervening depression, 75a; personal

choice in housing decisions played an important role in

residential patterns, 76a; no current effect of restrictive

covenants existed, especially in light of the fact that

suburban growth occurred after 1948, 77a; there was “no

lack of balance” in location of public housing, 81-82a;

and facts in other interdistrict cases relied upon by peti-

tioners were “directly contrary to those found here.” 83a.

Similarly, the court added that the findings made in

reference to HUD “belie the possibility of interdistrict

effect,” 87a, and that the district court’s later opinions

“certainly make no finding of any interdistrict effect,”

90a.5 Thus, the court concluded:

[T]he factual findings of the district court effectively

foreclose findings of interdistrict effect in the SSDs

5. In considering the dissenting arguments, Judge Gibson

observed, “The dissent embarks upon fact findings of its own

... This is contrary to the finding of the district court ... and

the dissent makes no effort to consider these statements in a

proper Rule 52(a) analysis.” 88a. Judge Gibson added that

“there simply is no evidence in the record in this case that

official housing discrimination caused school segregation and

the findings of the district court as we have outlined above so

demonstrate.” 92a.

13

flowing from constitutional violations with respect

to housing that may have occurred in KCMSD.

4 * a

To consider isolated bits of evidence, de minimis

in nature, and to mix this with speculation is in-

sufficient ... The findings made were adequate to

dispel the conclusion required by Milliken that there

be significant segregative effects in the SSDs caused

by actions of a constitutional violator in KCMSD.

9la, 93a.

Judge Arnold disagreed with the majority only on

housing-related issues because he was unsure whether

there were “private” housing violations encouraged by the

State and, if so, whether any such violation had current

significant interdistrict effects. He suggested a remand

to reconsider the findings based on the recor: at the time

of the Rule 41(b) motions. If the district court could not

then dismiss the districts, Judge Arnold suggested that

the districts produce evidence to show no current sig-

nificant interdistrict effects of any housing related vio-

lations. He, of course, did not have the benefit of the

May 11, 1987 order which reiterated the finding that no

interdistrict liability against the State had been found.

REASONS THE PETITION SHOULD BE DENIED

The two petitions present questions that, whatever

significance they may have in the abstract or in an appro-

priate case, are not presented here. Both the district

court and the Court of Appeals agreed that the facts

necessary to establish petitioners’ legal theories were not

14

proved. This Court, of course, sits to decide cases, not

abstract or hypothetical questions.* The facts of this case

—found by a trial judge who saw hundreds of witnesses

in many months of trial and affirmed by the Court of

Appeals—preclude reaching the abstract questions pre-

sented.’ Petitioners also ignore recent decisions by this

Court which compel support of the factual determinations

made below. Moreover, there is no conflict among the

Circuit Courts of Appeals in the well-settled area of inter-

district school desegregation law. The petitions should,

therefore, be denied.

I. THIS CASE, DECIDED ON UNAPPEALED

FACTUAL FINDINGS APPLICABLE ONLY TO

THESE RESPONDENT DISTRICTS, HAS NO

NATIONAL SIGNIFICANCE AND THE QUES.-

TIONS STATED ARE NOT PRESENTED BY

THE FACTUAL FINDINGS.

Petitioners assert that the district court and the Court

of Appeals’ majority have “misread” Milliken in regard to

6. For example, in The Monrosa v. Carbon Black Export,

Inc., 359 U.S. 180 (1959), the Court was compelled to dismiss

a writ of certiorari as improvidently granted when the question

in the petition turned out not to be presented on the record.

As Justice Brennan noted:

While this Court decides questions of public importance,

it decides them in the context of meaningful litigation.

Its function in resolving conflicts among the Courts of

Appeals is judicial, not simply administrative or managerial.

Resolution here of [the conflict] can await a day when the

issue is posed less abstractly.

Id. at 184.

7. The petitions are obviously designed to create the illu-

sion that the district court found an interdistrict liability, albeit

an unspecified one, against the State in its September 17, 1984

intradistrict order. That illusion is contrary to findings in the

prior June 5, 1984 findings, the July 16, 1984 HEW Order

and the subsequent orders of January 25, 1985 and May 11, 1987.

15

whether proof of interdistrict effects of constitutional vio-

lations by the State or KCMSD would be sufficient to

warrant inclusion of the respondent districts in a manda-

tory interdistrict remedy even if they were themselves

innocent of any wrongdoing. Petitioners further assert

that because of this misreading of Milliken, the lower

courts did not undertake an analysis of whether the vio-

lations found by the district court had substantial seg-

regative effects in the respondent districts. Petitioners’

assertions are wrong. What the petitioners are really

complaining about is that the findings showed there were

no interdistrict effects.

The liability of the State and KCMSD in the intra-

district proceeding was based on their failure to remove

the vestiges of the pre-1954 school system in KCMSD.

603-605a. The intradistrict liability was derived from

this failure, not from supposed housing violations or an

impermissibly vague notion of encouragement of private

discrimination. 602a. The district court specifically found

that “plaintiffs have not persuaded the Court that any

vestiges or significant effects of the pre-1954 dual school

system remain in any of the SSDs.” 315a. Thus, there

was no effect in the respondent districts of the source of

the State’s intradistrict liability—the pre-1954 dual school

system that was not totally eradicated in KCMSD. This

and the other unappealed fact findings discussed above

undermine petitioners’ arguments that a supposed mis-

reading of Milliken affected the outcome of this case. The

respondent districts prevail under any reading of Milliken

because the district court found, and the Court of Appeals

concurred, that no significant interdistrict effect resulted

from any violation by any entity.

Cutting through the petitions’ chaff, this is a fact

bound case which the plaintiffs lost at trial and on appeal.

16

Neither the district court nor the Court of Appeals re-

treated from longstanding precedent or extended pre-

viously settled legal principles. The result merely turned

on fact findings that are germane and relevant only to

The district court conducted a thorough and exhaustive

inquiry into the circumstantial and direct evidence adduced

on the issue of discriminatory intent. See Village of

Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 US.

229 (1976). No illegal intent was found. Moreover, unlike

every other reported interdistrict case, each respondent

district took prompt action to comply with Brown v. Board

of Education, 347 U.S. 483 (1954).

The district court found that no boundary lines were

ever drawn for racial reasons. The respondent districts

have essentially the same boundaries now as they had

before 1930. Further, at least as far back as 1910, KCMSD’s

boundary, as is common in the North, has not been coter-

minous with any city’s boundaries. Indeed, one of

KCMSD’s largest areas of white enrollment is located

outside the City of Kansas City.

In regard to boundary issues, both petitions strive

to make this case analogous to cases involving gerryman-

dering or racially motivated state legislation by mischar-

acterizing a 1957 legislative amendment. See, for ex-

ample, Plaintiffs’ Pet. at 52-53. That amendment dealt

with population levels which affected the permissible size

of city school districts. The district court found that

the bill, which was known as House Bill No. 171 (“H.B.

171”), had no “racial reasons” when it was first passed in

1897 or later amended upon several occasions. 335a-36.

The district court’s unapp.aled fact finding was that the

legislation was intended to “avoid administrative con-

17

fusion and problems” and that the actions of state leg-

islators “were not motivated by racial concerns.” 337a--

338. As the district court also found, “H.B. 171 was not

enacted with the intent to concentrate black students

within the KCMSD” and there were no current significant

effects from its enactment. 339a. Moreover, as the dis-

trict court found, KCMSD was never prevented from

making any annexation outside of Kansas City as evi-

denced by its subsequent annexations of white areas.

338a-39.5 Given these findings, it is undisputed that these

respondent aistricts are not the product of any violation.

The district court found that there was no region-

alized interdistrict dual school system and that the de

minimis number of pre-1954 transfers of black students

to KCMSD were not a significant cause of KCMSD’s

present racial composition. The district court also re-

jected plaintiffs’ expert witness who tried to develop a

“depopulation” theory which hypothesized that blacks

were gradually forced out of all areas except KCMSD.

305a-316. In its September 17, 1984 intradistrict order,

the court reiterated that it rejected that expert opinion

“as contrary to the weight of the evidence and as being

without sufficient foundation.” 532a-33.

The respondent districts did not lure any white stu-

dents from KCMSD. This simply is not a case involving

illegal transfers of white students. See, for example, 426a.

Moreover, the district court found that these districts did

not involve themselves in any housing discrimination.

Unlike most other interdistrict cases, a substantial amount

of subsidized and public housing exists in these districts.

8. The district court also found that no illega? racial intent

existed in regard to a commission report known as the Spain-

hower Commission which was never enacted into law. The

district court found “no credible evidence .. . to support their

allegation that racial concerns led to the defeat of the Spain-

hower recommendations.” 340a.

es

18

KCMSD was not racially indentifiable in 1954. Only

18% of its students were black. Because of hundreds of

thousands of moves and demographic changes over the

past 30 years, KCMSD’s black percentage increased. The

district court observed that our society was quite dynamic.

50la. The Court of Appeals also observed that one of

plaintiffs’ experts conceded that the forces at work in

central cities after 1954 would have caused KCMSD to

become majority black and that many nongovernment-

caused factors affected residential choices. 76a.

Plaintiffs’ only attempt to quantify any interdistrict

effects (regardless of cause) was rejected by the district

court because the numbers, whether aggregated or dis-

aggregated, showed at most only a dé minimis impact

on enrollments. 36la-62. Moreover, KCMSD’s black en-

rollment actually decreased by more than 10,000 from 1970

to 1984. At the same time, no “whitening” effects were

shown in the respondent districts because, as the district

court found, substantial numbers of black families moved

there during the late 1960’s, the 1970’s and even more

so in the last few years, some from neighborhoods within

KCMSD. 369a. As of 1980, over 23,000 blacks resided

outside of what one of plaintiffs’ experts called the “prin-

cipal contiguous area,” an increase of 14,645 since 1970.

357a-58. The district court found that this fact refuted

any notion of barriers to black moves. 358a. While

KCMSD’s black enrollment decreased by more than 10,000,

black enrollment in these districts increased by more

than 3,000 students.*

9. Plaintiffs’ Pet. at 28-29, resorts to a non-record argu-

ment. That argument violates Fed. R. Evid. 408 with respect

to use of a supposed offer of compromise and is highly im-

proper. It also presents an incomplete picture. Unfortu-

(Continued on following page)

19

As the district court found, and the Court of Appeals

affirmed, this is a case which deals with demographic

trends unrelated to acts of wrongdoing by governmental

entities. There is no showing of any current significant

interdistrict effects caused by any violation. Thus, the

questions presented in the petitions are not presented

by the findings here. This Court recently emphasized

the importance of recognizing the trial court’s role in

making factual determinations under Fed. R. Civ. P. 52.

Anderson v. City of Bessemer City, 470 U.S. 564 (1985).

For obvious reasons, the petitions never mention

Anderson. Instead, they attempt to obscure the factual

theories petitioners lost by focusing on racial balance dis-

parities and renewing still unproven assertions that were

found not to constitute intentional violations. Petitioners

imply failed to prove their own trial theories. Two courts

below reviewed the evidence and reached the same con-

clusion; petitioners’ dissatisfaction with that reading does

not justify denying deference to the fact finding court.

In the circumstances here, Anderson could not be more

applicable.

II. THE LEGAL ISSUES ARE SETTLED AND THE

RESULT IN ANY INTERDISTRICT CASE

SIMPLY DEPENDS UPON THE FACTUAL

FINDINGS MADE IN THAT CASE; THERE IS

NO CONFLICT AMONG THE CIRCUIT COURTS

OF APPEALS.

Milliken is an established case that has, over the past

13 years, provided good and sufficient guidelines for adju-

Footnote continued—

nately, petitioners have used any response to voluntary plan

participation in ways to achieve a perceived litigation advantage.

The districts thus concluded that only upon the complete ter-

mination of litigation could a proper atmosphere for meaningful

consideration of such plans exist.

20

dicating interdistrict cases. Basically, Milliken held that

“without an interdistrict violation and interdistrict effect,

there is no constitutional wrong calling for an interdistrict

remedy”, 418 U.S. at 744. The Court recognized, in setting

forth the relevant interdistrict standards, that principles

of autonomy and local contro] are firmly rooted in our

tradition of government and play a particularly important

role in encouraging “educational excellence.”

[The] notion that school district lines may be casually

ignored or treated as a mere administrative conven-

ience is contrary to the history of public education in

our country. No single tradition in public education

is more deeply rooted than local control over the

operation of schools; local autonomy has long been

thought essential both to the maintenance of com-

munity concern and support for public schools and to

quality of the education process. See Wright v. Coun-

cil of the City of Emporia, 407 U.S. at 469. Thus, in

San Antonio School District v. Rodriquez, 411 U.S. 1,

50 (1973), we observed that local control over the

educational process affords citizens an opportunity

to participate in decision making, permits the struc-

turing of school programs to fit local needs, and en-

courages “experimentation, innovation, and healthy

competition for educational excellence.”

418 U.S. at 741-42. Due to the importance of such local

institutions, interdistrict relief was refused, in part, be-

cause:

[t]o approve the [interdistrict] remedy ordered by

the [district] court would impose on the outlying dis-

tricts, 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.

21

418 U.S. at 745 (emphasis supplied). Here, each respon-

dent district is an exemplary and important public insti-

tution that is crucial to the communities it serves. More-

over, there is no finding of a current significant inter-

district effect resulting from any interdistrict violation.

Despite Milliken’s standards and holding, petitioners

assert the respondent districts can be coerced into a man-

datory interdistrict remedy merely for alleged wrongs of

others. It may well be that petitioners’ confusion stems

from an erroneous belief that an interdistrict remedy must

follow anytime a State is found liable for intradistrict

violations. That is not correct because the ultimate rem-

edy in Milliken was an intradistrict remedy funded in

large part by the State of Michigan.

Milliken set forth the type of discriminatory acts

which will constitute interdistrict violations for purposes

of determining the availability of an interdistrict remedy.

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 dis-

trict or where district lines have been deliberately

drawn on the basis of race.

418 U.S. at 745. Neither circumstance exists here and

no current significant interdistrict effects were found in

any event. There is certainly no other circumstance pre-

sented here to compel coercive or mandatory interdistrict

remedies.

Milliken’s principles were reaffirmed in Hills v. Gaut-

reaux, 425 U.S. 284 (1976). Hills considered Milliken’s

prohibition against “judicial decree[s] restructuring the

operation of local governmental entities that were not

implicated in any constitutional violation.” Id. at 196.

22

The Court upheld the concerned order in Hills, but only

after concluding that the remedial order would not con-

solidate, restructure or impair the rights of the local

governmental units. 425 U.S. at 305-06. In discussing

Milliken, the Court emphasized the needless judicial in-

terference with the operation of the suburban districts in

that case:

[T]he District court’s desegregation order in Milliken

was held to be an impermissible remedy not because

it envisioned relief against a wrongdoer extending

beyond the city in which the violation occurred but

because it contemplated a judicial decree restructuring

the operation of local governmental entities that were

not implicated in any constitutional violation.

425 U.S. at 297 (emphasis supplied). The Court held that

the “crucial distinction between HUD and the suburban

school districts in Milliken is that HUD has been found

to have violated the Constitution,’ Id. at 297, and the

remedy for its wrongs was fashioned so as not to impair

the rights of local units of government. The Hills court

declared that the proposed remedy in Milliken was im-

permissible due to:

the limits on the federal judicial power to interfere

with the operation of the state political entities that

were not implicated in unconstitutional conduct.

Here, unlike the desegregation remedy found errone-

ous in Milliken, a judicial order directing relief be-

yond the boundary lines of Chicago will not necessar-

ily entail coercion of uninvolved governmental units.

425 U.S. at 298 (emphasis supplied).

Certainly, neither Milliken nor Hills holds that an

interdistrict remedy can be ordered in the absence of a

aw a rela

23

current significant interdistrict effect from an interdistrict

violation. Here, the findings precluded any current sig-

nificant interdistrict effect or violation. In these circum-

stances, no court has ever required «a mandatory inter-

district order. Nor has any court imposed a mandatory

interdistrict remedy upon innocent school districts that

were not the product of a gerrymandering-type violation.

Thus, there is no basis for granting certiorari because of

some alleged conflict among the Circuit Courts of Appeals.

Moreover, the decisions below, as conceded by both

petitions, are fully in accord and consistent with Armour

v. Nix, No. 16708 (N.D. Ga. September 24, 1979), aff’d,

446 U.S. 930 (1980); Goldsboro City Board of Education

v. Wayne County Board of Education, 745 F.2d 324 (4th

Cir. 1984); Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978);

Taylor v. Ouachita Parish School Board, 648 F.2d 959 (5th

Cir. 1981); Lee v. Lee County Board of Education, 639 F.2d

1243 (5th Cir. 1981); Berry v. School District of Benton

Harbor, 698 F.2d 813 (6th Cir.), cert. denied, 464 US.

892 (1983); Liddell v. State, 731 F.2d 1294 (8th Cir. 1984),

cert. denied, 469 U.S. 21F (1984); and Little Rock School

District v. Pulaski County Special School District, 778 F.2d

404 (8th Cir. 1985), cert. denied, 106 S. Ct. 2926 (1986).

See also, Bronson v. Board of Education, 578 F. Supp. 1091

(S.D. Ohio 1984), aff'd, 687 F.2d 836 (6th Cir. 1982) and

Bell v. Board of Education, Akron Public Schools, 491 F.

Supp. 916 (N.D. Ohio 1980), aff'd, 683 F.2d 963 (6th Cir.

1982).

The Eighth Circuit’s majority recognized that such

cases had “great force” and that Goldsboro, for example,

presented “‘many similarities to the case before us.” 100a-

101. Indeed, in those cases, just as here, the trial courts

made findings that no boundaries had been drawn or

24

maintained on the basis of race; that pre-1954 transfers

(which, unlike here, did not stop immediately after

Brown) had no current effect; that the outlying districts

were either unitary or being operated in accordance with

a court plan; and that there was no district cooperation

with other governmental bodies to maintain racially iden-

tifiable schools. Here, there also was no imbalance in

public housing location.

The petitions are wrong in asserting that a conflict

exists with decisions from the Third or Seventh Circuits.

See Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff'd,

423 U.S. 963 (1975) and United States v. Board of School

Commissioners of Indianapolis, 456 F. Supp. 185 (S.D.

Ind. 1978) (Indianapolis interdistrict case), aff'd in part

and vacated in part, 637 F.2d 1101 (7th Cir. 1980), cert.

denied, 449 U.S. 838 (1980). These cases involve no

more than intentional illegal gerrymandering coupled with

imbalances in public housing location. They are also

cases in which current significant effects of violations

were found. Thus, what exists are differences in the

controlling and important facts. When a boundary is

created with discriminatory intent, as in the cases peti-

tioners cite, the resulting districts are implicated in the

violation and thus no deference to local government

structure is required. Here, no such interdistrict viola-

tion or “interdistrict regionalized dual system” existed.

Thus, no interdistrict presumption of failure to satisfy

any affirmative duty to merge existed.

Neither the district court nor the Court of Appeals

found any conflict with the decisions petitioners cite.

Indeed, as the majority noted:

These cases all involve governmental action fixing or

ignoring boundaries with discriminatory intent. The

25

findings in the case before us are to the contrary.

These cases are therefore distinguishable as are the

boundary cases such as Morrilton, considered by this

court. See Part IV, supra. These decisions upon

which the Jenkins class so heavily relies, when viewed

in light of the findings made by the district court,

plainly have no applicability to the present case... .

99a (emphasis supplied); see also 95a.

In Evans, a pre-Washington v. Davis case, school

districts except for the predominantly black Wilmington

district were consolidated under a 1968 state law. That

law allowed, for a one-year period, district reorganiza-

tions except for the Wilmington district. In concluding

that such gerrymandering legislation was a violation, a pure

disparate impact rationale was applied. Evans was, how-

ever, limited by the intent requirement announced later

in Washington v. Davis. See, Goldsboro, supra at 330-332.

Here, no intentional violation was found. Further, unlike

here, interdistrict effects were found to exist. Thus, no

conflict exists; far differing facts apply.’®

Nor is the Indianapolis case in conflict. Once again,

far different facts existed. All area governmental opera-

tions except school districts were consolidated in a State-

passed legislative Uni-Gov concept. Illegal racial intent

was found to exist in the passage of that 1970’s Uni-Gov

legislation. The opposite is true here. Indeed, a complex

multiplicity of State and local governmental entities exists

here. No illegal intentional racial legislation was found

to exist. The vital and long established unitary districts

10. The dissent acknowledged that “proof of disparate im-

pact on the SSDs is not enough to hold the SSDs liable and

provide the basis of interdistrict relief,” 262a. Significantly, the

dissent also conceded that the absence of violations by these dis-

tricts had significance. 178a and 266a.

26

here are not the “product of a violation” as was the case

in Indianapolis.‘ Further, unlike here, there was a lack

of balance in public housing location in the Indianapolis

case.

Missouri school district boundaries are established by

local votes and not by a State Board of Education. More-

over, the district court found that in Missouri there is

a great amount of local autonomy in school districts.

Indeed, the degree of autonédmy was greater than in Mil-

liken, Evans v. Buchanan or the Indianapolis case. The

lack of local control was, of course, important to the

decisions in both Evans and Indianapolis.

11. Like Evans and Indianapolis, cases such as Hoots v.

Pennsylvania, 672 F.2d 1107 (3rd Cir.), cert. denied, 459 U.S. 877

(1982), and Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d

1358 (6th Cir. 1974) (Louisville interdistrict case), cert. denied,

421 U.S. 931 (1975), involve gerrymandering. Newburg also

involved illegal white transfers to the suburbs. Moreover, both

Pennsylvania and Kentucky had far different educational sys-

tems with little local autonomy. Here, the finding established

just the opposite. Interestingly, the subsequent Berry, 698 F.2d

813, and Bell, 683 F.2d 963, cases from the Sixth Circuit show

that no conflict could possibly exist in this area. Those cases

show that results just depend upon the locally relevant factual

findings and the varying State approaches to local educational

autonomy. The Bell court did not find any conflict with previous

decisions. Bell, 683 F.2d at 968.

In the Indianapolis case, the Seventh Circuit also rejected

evidence of realtor practices and other forms of private dis-

crimination. 637 F.2d at 1109 n.15. Violations by the city

housing authority were cited but, unlike here where no housing

authority was a party except HUD which was dismissed, it was

a party against whom relief was sought and, unlike here, there

was an imbalance in public housing location. Id. at 1117. Dis-

tricts not involved in significant violations were dismissed. United

States v. Board of Commissioners of Indianapolis, 503 F.2d 68,

73-74, 78-80, 86 (7th Cir. 1974), cert. denied, 421 U.S. 929 (1975).

Parenthetically, it can be noted in regard to housing-related

issues, Judge Arnold, recognized the factual nature of the rel-

evant inquiry. He also observed that the opinion “does not

make law for this Circuit... .” 180a. Thus, no possible con-

flict among Circuit Courts of Appeals could exist in any event.

27

This is not a situation where any of the Courts of

Appeals have recognized or stated that a conflict exists.

To the contrary, any difference among the cases is not

the legal principles applied but simply the result of dif-

fering and meaningful underlying factual findings. See,

for example, Goldsboro, supra at 330-332.

The absence of intentional violations, the findings of

no current significant interdistrict effect, the differing

structure of the educational organization in the State,

the lack of any gerrymandering and many other unique

local facts such as the lack of imbalance in public

housing location makes this case far stronger than any

other interdistrict case, including Milliken. Thus, there is

no reason to review settled issues which have not troubled

this Court for the past 13 years. Any subsequent inter-

district case that may occur elsewhere will depend upon

the local facts developed at trial.

28

CONCLUSION

The petitions should be denied. The questions stated

are not presented. Moreover, the case is so fact sensitive

on local matters that no purpose would be served by

certiorari. The law is well settled and no conflict among

the Courts of Appeals exists. The result in any case is

dependent largely upon the locally governing facts as

found by the trial judge.

June 24, 1987

Respectfully submitted,

GeorGE E. FELDMILLER

CHARLES W. GERMAN

Kirk T. May

DANIEL D. CRABTREE

Strnson, Mac & Fizze.i

2000 Boatmen’s Center

920 Main Street

Post Office Box 19251

Kansas City, Missouri 64141

$16-842-8600

Liaison Counsel for Respondent

School Dist: *s

ee

COUNSEL FOR INDIVIDUAL RESPONDENT

SCHOOL DISTRICTS

Stinson, Mac & Fizze.u

Georce E. FELDMILLER

CHARLES W. GERMAN

Kirk T. May

Danie D. CRABTREE

920 Main Street

Post Office Box 192%

Kansas City, Missouri 64141

816-842-8600

Counsel for North Kansas City

School District, Grandview Con-

solidated School District C-4,

Lee’s Summit Reorganized School

District R-7, School District of

the City of Independence and

Fort Osage School District R-1

and their superintendents

CocHRAN, TYREE, OSWALD, BARTON &

McDonaLp

Rospert McDona.p

JuLius OSWALD

P.O. Box 550

Blue Springs, Missouri 64015

816-836-8000

Counsel for Blue Springs Reorgan-

ized School District and its

superintendent

° fi -

Dona.p C. EARNSHAW

23 East 3rd Street

Lee’s Summit, Missouri 64063

816-524-3428

Counsel for Grandview Consoli-

dated School District C-4 and

Lee’s Summit Reorganized

School District and their

superintendents

Law Orrices or TrMoTHy BosLer

TimotHuy Bos_Ler

Tom Capps

800 Westowne VII

152 Highway & 291 Highway

Liberty, Missouri 64068

816-781-8171

Counsel for the School District

of the City of Liberty and its

superintendent

Humpurey & FARRINGTON

NorMAN HuMPHREY, JR.

KENNETH B. McCtain

123 West Kansas Street

Independence, Missouri 64050

816-836-5050

Counsel for the School District of

the City of Independence and

Fort Osage School District R-1

and their superintendents

ee EE ee eNEN

- ill -

Kuraner & SCHWEGLER

Jerrrey L. Lucas

500 Commerce Trust Bldg.

922 Walnut

Kansas City, Missouri 64106

816-221-3443

Counsel for Hickman Mills Con-

solidated School District C-1

and its superintendent

PoPpHAM, CONWAY, SWEENEY, FREMONT

& BuNDSCHU

Houuis H. HANOVER

1300 Commerce Trust Bldg.

922 Walnut

Kansas City, Missouri 64106

816-221-2288

Counsel for Center School District

and its superintendent

SHOOK, Harpy & BAcon

Gene E. Voticts

Gary L. WHITTIER

1101 Walnut

Mercantile Tower - 20th F1.

Kansas City, Missouri 64106

816-474-6550

Counsel for Raytown Consolidated

School District C-2 and its

superintendent

- 1¥ e«

SWANSON, MipGLey, GANGWERE,

CLARKE & KITCHIN

JAMES H. McLARNEY

LAWRENCE M. MAHER

1500 Commerce Trust Bldg.

922 Walnut

Kansas City, Missouri 64106

816-842-9692

Counsel for Park Hill Reorganized

School District No. V of Platte

County and its superintendent

:

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