Opposition Brief — Jenkins v. Missouri

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Nos. 86-1717 and 86-1718

'UN 24 1997

JOSE?H F. SPANIOL, JR.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

KALIMA JENKINS, et al.,

- Petitioners

THE STATE OF MissouRI, et al.,

Respondents

THE KANSAS CITY, MISSOURI SCHOOL DISTRICT, et al.,

Petitioners,

THE STATE OF MIssouRI, et al.,

Respondents.

On Petitions for Writs of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION FOR STATE RESPONDENTS

WILLIAM L. WEBSTER

Attorney General

TERRY ALLEN

Deputy Attorney General

MICHAEL J. FIELDS

Assistant Attorney General

Supreme Court Building

Jefferson City, MO 65102

(314) 751-0531

H. BARTOW FARR, III *

DAVID R. BoypD

ONEK, KLEIN & FARR

550 M Street, N.W.—Suite 350

Washington, D.C. 20037

(202) 775-0184 P

Counsel for State Respondents

* Counsel of Record

WILSON - EPes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether, under Milliken v. Bradley, 418 U.S. 717

(1974), the court of appeals was required to order an

interdistrict remedy despite findings that there was nei-

ther an interdistrict violation nor significant, current in-

terdistrict effects.

White Gale Ghee doled Aoi,

;

(i)

TABLE OF CONTENTS

Page

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pe og ty } iain iv

aia sna Sereno econ ncairninaste idkasioniowasdssesion 1

pS a) Sl, re Sica aap ieee een cietaesh ba incast Seals 9

1. The Decision Below Is Not In Conflict With

Milliken I or Interdistrict Cases From Federal

RE OE PION ooo nsencs ncn. cccsnsenorcnvoensennnecaces 10

2. The Decision Below Is Not A Departure From

The Principles Of Dayton I] _...00-0000000000 eee. 19

CONCLUSION ........... Teena at al Rika doa sain genseynckeircsgiins cokne 21

(iii)

TABLE OF AUTHORITIES

Cases Page

Anderson v. City of Bessemer City, 105 S.Ct. 1504

RIE iccoinehnsasbssestskcakasia inden tieanedaseeeneaenalcaceeacnbokiod 8,13

Brown v. Board of Education, 347 U.S. 483 (1954) .. 10

Dayton Board of Education v. Brinkman, 443 U.S.

a eine 9, 19, 20

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

£8, ) nee ne 16, 17

Hills v. Gautreaux, 425 U.S. 284 (1976) _........---..... 7,14

Hoots v. Commonwealth of Pennsylvania, 672 F.2d

SE I Soils eae res ee eins tiaisednidanion 18

Jenkins v. State of Missouri, 593 F. Supp. 1485

RU, UNI, MINT <:ccsacpatedas tise diskadbhdeudesnbsianddeiotaaeintan 4

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

Newburg Area Council, Inc. v. Board of Education

of Jefferson County, Kentucky, 510 F.2d at 1358

(6th Cir. 1974), cert. denied, 429 U.S. 1074

ae eae aeadmiaganeeaiion 17

School District of Kansas City, Missouri v. State

of Missouri, 460 F. Supp. 421 (W.D. Mo. 1978) .. 2

United States v. Board of School Commissioners,

573 F.2d 400 (7th Cir.), cert. denied, 439 U.S.

I ca cle 17

Washington v. Davis, 426 U.S. 229 (1976) _............ 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

Nos. 86-1717 and 86-1718

KALIMA JENKINS, et al.,

Petitioners

Vv.

THE STATE OF Missourl, et al.,

Respondents

THE KANSAS CITy, MIssouRI SCHOOL DISTRICT, et al.,

Petitioners,

THE STATE OF MIssouRI, et al.,

Respondents.

On Petitions for Writs of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION FOR STATE RESPONDENTS

STATEMENT

This lawsuit involves claims regarding the racial com-

position of the schools in the Kansas City metropolitan

area. The suit was originally filed in 1977 by the Kan-

sas City, Missouri School District (the KCMSD) through

its superintendent and its school board, and by students

in the district. The named defendants included the State

of Missouri, the Missouri State Board of Education and

various Missouri officials, twelve Missouri School districts

in the Kansas City metropolitan area, the State of Kan-

sas, the Kansas State Board of Education and various

Kansas officials, several Kansas school districts in the

Kansas City metropolitan area, as well as the United

States Department of Health, Education, and Welfare

(HEW), the United States Department of Housing and

Urban Development (HUD), and the United States De-

partment of Transportation (DOT). The lawsuit alleged

unconstitutional interdistrict segregation caused by acts

of the defendants and sought a sweeping remedy involv-

ing reassignment of students across district and state

lines.

In October 1978, the district court dismissed all of the

Kansas defendants. School District of Kansas City, Mis-

souri v. State of Missouri, 460 F. Supp. 421 (W.D. Mo.

1978). The court also realigned the KCMSD as a de-

fendant. Thereafter, in May 1979, students in the

KCMSD and in several of the defendant Missouri school

districts filed an amended complaint.' All of the non-

Kansas defendants named as defendants in the initial

complaint remained defendants in the amended com-

plaint, and the KCMSD was added as a new defendant.

The amended complaint, at least as construed by the

district court, made two distinct claims: it realleged the

interdistrict violation alleged in the original complaint;

and it alleged an intradistrict violation, committed by

the KCMSD and by the State defendants, within the

KCMSD. In July 1979, the KCMSD asserted a simi-

1 The named plaintiffs were replaced at various times during the

litigation. In February 1985, the court certified a class of all

present and future KCMSD students.

larly dual cross-claim against the State defendants’; it

sought indemnification for its intradistrict liability, and

it made the same allegation of an interdistrict violation

as that made by the plaintiffs.*

The trial of the case began in 1983. After hearing

months of evidence by the plaintiffs and KCMSD, and

before hearing evidence in response, the district court

dismissed all of the suburban school districts from the

ease. Order of April 2, 1984. The Court found, in ac-

cordance with Milliken v. Bradley, 418 U.S. 717 (1974),

that school districts in Missouri were autonomous and

that none had committed any interdistrict violation.

Further, in extensive and detailed fact findings, the court

found that none of the discriminatory governmental ac-

tions advanced by plaintiffs or the KCMSD to support

their interdistrict claims had any significant current in-

terdistrict segregative effect See generally Pet. App.

283a-493a.

The findings of fact in the June 5 Order addressed

each of the theories for finding interdistrict liability.

First, the court held that there had been no manipulation

of district boundaries for racial reasons, finding a

“(llack of proof of discriminatory intent in the estab-

lishment or changing of any school district boundary

lines.” Pet. App. 287a. Second, the court held that the

2 The state defendants were the State of Missouri, the Governor

of Missouri, the Missouri State Board of Education and its mem-

bers, and the Commissioner of Education of the State of Missouri.

In March 1985, the Treasurer of the State of Missouri was added

as a defendant necessary for relief.

* Before trial began in 1983, the United States Department of

Transportration and one of the Missouri school districts were dis-

missed by stipulation, leaving the KCMSD, eleven suburban school

districts (SSDs), the State defendants, HUD, and HEW (later

dismissed) as defendants.

pre-1954 State segregation policy had no significant cur-

rent interdistrict effects, finding plaintiffs’ proof on this

point to be “weak, speculative, and in any event de

minim[i]s.” Pet. App. 30la. Third, the court deter-

mined that the pre-1948 State enforcement of racially

restrictive covenants had no significant current inter-

district effects. Pet. App. 363a. Taking these matters

together, the district court concluded that “[a]t most,

plaintiffs’ evidence is de minim{i]s and is therefore in-

sufficient” to support relief involving the SSDs. Pet. App.

499a.

The court then heard further evidence and, on Sep-

tember 17, 1984, issued its final liability ruling. Jenkins

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

1984); Pet. App. 518a-617a. In that decision, it found

liability for segregation within the KCMSD on the part

of both the State defendants and the KCMSD. The court

first noted the undisputed fact that, prior to 1954, the

State and the KCMSD had imposed a mandatory dual

school system upon the students in the KCMSD. The

court stated that, “having created a dual system, the

State and the KCMSD had and continue to have an ob-

ligation to disestablish the system.” Pet. App. 604a. The

court then found that “there are still vestiges of the

State’s dual school system still lingering in the KCMSD

[and that] the obligations of the KCMSD and the State

have not been met.” Pet. App. 605a.*

* See also Pet. App. 61la-12a (“Having found that there are still

vestiges of the dual school system in the KCMSD, the Court finds

the issues in favor of plaintiffs against the KCMSD and the State

of Missouri and it further finds the issues in favor of the KCMSD

against the State of Missouri.”) The Court found no basis for

liability in post-1954 State actions concerning vocational schools,

highway location and relocation assistance, and Missouri Housing

Development Commission programs. Pet. App. 557a, 589a-600a

(“none of the aforementioned agencies committed any constitu-

tional violation”).

The court identified two such “vestiges” in its opinion.

Of particular importance was the fact that “24 schools

... are racially isolated with 90+-% black enrollment.”

Pet. App. 545a. The court specifically found that, in

light of this condition, “the District did not and has not

entirely dismantled the dual school system.” Pet. App.

545a. The court also found that “the inferior education

indigenous of the State-compelled dual school system has

lingering effects in the Kansas City, Missouri School

District.” Pet. App. 542a.°

The court ordered the State and the KCMSD to de-

velop a remedial plan to “establish a unitary school sys-

tem within the KCMSD.” Pet. App. 614a. The KCMSD’s

initial plan proposed consolidation of the KCMSD with

the SSDs. See KCMSD Plan for Remedying Vestiges of

the Segregated Public School System (January 18, 1985).

Because of its earlier rulings against the claims of inter-

district violation, however, the district court rejected

this plan and ordered the KCMSD to prepare an amended

plan “to be implemented within the existing boundaries

of the [KCMSD], which would have the effect of remov-

ing the vestiges of the dual school system as it presently

exists in the KCMSD.” Order of January 25, 1985 at 3.

After submission of a new remedial plan by the

KCMSD, and submission of alternative plans by the State

defendants, the court held a two-week hearing on the

scope of appropriate relief. In June, 1985, the court is-

sued an order establishing a multifaceted district-wide

remedial plan. Order of June 14, 1985. The plan con-

templates a broad upgrading of conditions throughout the

KCMSD, including additional teachers, all-day kinder-

garten programs, expanded summer school programs, be-

5 Although the court found that certain actions by the State,

largely the passing of now-superseded statutes, had “encouraged

racial discrimination by private individuals,” it did not rest any

determination of liability on such grounds. Pet. App. 601la-02a.

fore and after school tutoring, a voluntary transfer pro-

gram with suburban districts, and renovation of school

facilities. This plan is currently being implemented in

the district."

On appeal, the Eighth Circuit affirmed the denial of

interdistrict relief. With regard to “issues not related

to housing,” Pet. App. 8a, five judges (Gibson, Ross,

Fagg, Wollman, and Arnold, JJ.) agreed that the findings

and conclusions of the distriet court did not justify an

award of interdistrict relief under Milliken v. Bradley,

supra. On the housing issues, the court affirmed the

denial of interdistrict relief by an equally-divided vote,

with Judge Arnold voting to remand the case to the dis-

trict court “to consider whether there are interdistrict

housing violations which would require relief.” Pet. App.

8a-9a. Three judges (Lay, C.J., Heaney, and McMillian,

JJ.) dissented. vs

The extensive plurality opinion, which is further dis-

cussed at pages 10-16, infra, drew its “basic guidance”

regarding the standards for interdistrict relief from

Milliken v. Bradley, supra. Pet. App. 33a. It thus recog-

nized that “ ‘it must be shown that racially discrimina-

tory acts of the state or local school districts, or of a

single school district have been a substantial cause of

interdistrict segregation.’” Pet. App. 38a, quoting Milli-

® Subsequently, in separate orders issued in June and November,

1986, the district court ordered implementation of a magnet school

plan that turns all of the senior high schools, all of the junior high

schools, and approximately one-half of the elementary schools into

magnet schools. Although the State proposed that some schools be

made into magnet schools, it has appealed the district court orders

on the ground that they are unnecessarily broad. At present, the

orders are back before the district court to allow for additional

findings, after which it is expected that the appeal of the orders

will proceed.

7 The court of appeals also affirmed the intradistrict relief with

certain modifications. Pet. App. 116a-36a. No party has sought

review of that portion of the decision.

ken v. Bradley, supra, 418 U.S. at 745. Later, the plural-

ity, after discussing both Milliken v. Bradley and Hills v.

Gautreaux, 425 U.S. 284 (1976), stated: “Milliken and

Hills make clear that we may grant interdistrict relief

only to remedy a constitutional violation committed by

an SSD, or to remedy an interdistrict effect in the SSD

caused by a constitutional violation in KCMSD.” Pet.

App. 63.

The plurality then reviewed the findings of the district

court, concluding that they established the existence of

neither an interdistrict violation nor any significant cur-

rent interdistrict effects. It noted that the district court

“first carefuily considered whether the SSDs had violated

the Constitution. It found that they had not.” Pet. App.

63a. In addition, the plurality found that the district

court “dealt not only with the issue of whether the SSDs

were constitutional violators but also whether there were

significant interdistrict segregative effects.” Pet. App.

66a. The plurality added: “When it did so, it made

specific findings that negate current significant interdis-

trict effects, and concluded that the requirements of Milli-

ken had not been met.” Pet. App. 66a.°

The plurality emphasized “the importance of the dis-

trict court’s factual findings in school desegregation

cases.” Pet. App. 37a. Having stated its view that “[t]he

arguments of the Jenkins class [petitioners in No. 86-

1717] run contrary to the facts found by the district

court,” Pet. App. 57a, it declined to “substitute its judg-

ment for that of the district court.” Pet. App. 58a.

Similarly, it disagreed with the dissenting judges’ treat-

ment of the factual findings, saying that those judges

had engaged in “the rejection of the district court’s care-

fully weighed findings of fact and substitution of those

* The findings of the district court regarding the absence of inter-

district effects are discussed in more detail at pages 10-13 infra.

more desirable, frequently based on evidence considered

and rejected by the district court.” Pet. App. 40a-41a.

The plurality held that such “appellate factfinding” was

“directly contrary to the mandate of Anderson [v. City of

Bessemer City, 105 S.Ct. 1504 (1985)].” Pet. App. 40a-

4la.

In his separate opinion, Judge Arnold disagreed with

the plurality’s reading of the factual findings relating to

housing, stating that “the: District Court never finally

determined whether or what current interdistrict segre-

gation is attributable to these housing violations.” Pet.

App. 157a.° In the absence of such a final resolution,

Judge Arnold said, “the case should be remanded to the

District Court to determine precisely what current inter-

district segregative effects may be attributed to housing

discrimination by the State [and other entities].” Pet.

App. 176a.

The dissenting judges took still a different view, stat-

ing that “the record does not support the district court’s

conclusions.” Pet. App. 18la. Those judges believed that

“the district court’s factfinding process was tainted with

legal error” and, therefore, that its findings were “en-

titled to less than usual deference and should be reversed

as clearly erroneous.” Pet. App. 185a. The dissenting

judges would have reversed the judgment dismissing the

suburban districts and HUD, and remanded the case for

further evidentiary hearings and, if then appropriate, for

the imposition of an interdistrict remedy. Pet. App.

187a-88a. —s

*In this regard, Judge Arnold noted references by the district

court “to a number of instances of housing discrimination by the

State and its subdivisions that could have had such segregative

effects.” Pet. App. 156-57a. The plurality concluded that these

references “fall short of making a specific finding of a constitutional

violation, and certainly make no finding of any interdistrict effect.”

Pet. App. 90a.

ARGUMENT

Petitioners in this desegregation case are seeking re-

view of a decision that the court of appeals did not

render. According to the petitions, the court of appeals

refused to order interdistrict relief, despite findings of

current interdistrict effects resulting from violations by

the State or other parties, on the ground that each subur-

ban school district had not itself committed a constitu-

tional violation, This refusal, say petitioners, is in con-

flict with the decision of this Court in Milliken v. Bradley,

418 U.S. 717 (1974) (Milliken I), and with decisions of

other federal courts of appeals. Additionally, petitioners

in No. 86-1717 (the “Jenkins petitioners’) argue that

the failure to eradicate the interdistrict effects is contrary

to the principles set out in Dayton Board of Education

v. Brinkman, 443 7J.S. 526 (1979) (Dayton IT).

The actual decision of the court of appeals is very

different. The plurality correctly recognized that, before

an autonomous school district may be compelled to par-

ticipate in an interdistrict remedy, Milliken I requires, at

the very least, either a showing of an interdistrict vio-

lation by that district or a showing of current interdis-

trict effects in the district. Applying that principle here,

the plurality reviewed the detailed findings made by the

district court and concluded that those findings showed,

first, no interdistrict violations by the suburban districts

and, second, no significant, current interdistrict effects in

those districts. Because of these findings, its decision to

deny interdistrict relief was entirely consistent not only

with the holding of Milliken I but with the holding of

every federal decision granting interdistrict relief, all of

which have conditioned such relief on a demonstration of

interdistrict effects. Likewise, because it found that no

interdistrict effects remain, the plurality did not depart

from any requirement established in Dayton II] of assur-

ing that the vestiges of prior discrimination have been

eliminated. Further review of these factual matters is

not warranted.

1. The Decision Below Is Not in Conflict With Milliken I

or Interdistrict Cases from Federal Courts of Appeals.

A. The first task, given the nature of the petitions for

certiorari, is to identify just what the court of appeals

did and did not decide. Contrary to petitioners’ repre-

sentations, the plurality did not decide that the findings

showed continuing interdistrict effects but that inter-

district relief was barred by the absence of an interdis-

trict violation on the part of each defendant school dis-

trict..° Instead, it decided that the findings showed no

current interdistrict effects and, as a consequence, no

basis for awarding relief under any possible reading of

Milliken I.

The emphasis given to the lack of interdistrict effects

would seem hard to miss: the plurality took great care

to review each of the findings of the district court leading

to that conclusion. In the very first paragraph of its

opinion, summarizing the decision of the district court,

the plurality noted that “there was no finding of inter-

district violation or interdistrict effect.” Pet. App. 7a.

Similarly, in a more detailed review of the district court

decision, the plurality specifically pointed to two find-

ings supporting the denial of interdistrict relief: “that

within four years 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

10In No. 86-1718, for example, petitioners state the following

“Question Presented’: “Whether the court below erred in this

interdistrict school desegregation case by requiring proof that each

and every school district committed independent constitutional viola-

tions with a segregative effect on the Kansas City, Missouri School

District, despite proof that all the defendant districts participated

in and were affected by the State-created metropolitan-wide racially

dual school system.” KCMSD Pet. i. In No. 86-1717, petitioners

describe the plurality opinion as holding that “interdistrict relief is

available only if there has been a racially discriminatory act by

each defendant district.” Jenkins Pet. 38, quoting June 1984 Order

(emphasis added by petitioners).

their dual school systems and were operating unitary

systems” and that “none of the alleged discriminatory

actions committed by the State or the federal defendants

had caused any significant current interdistrict segrega-

tion.” Pet. App. 13a-14a. The plurality then set forth

separately a series of findings with regard to the issue

of interdistrict relief, Pet. App. 16a-26a, pointing out

that the district court had “rejected the argument that

within the SSDs any vestiges or significant effects of the

pre-1954 dual school system remained,” Pet. App. 19a,

and had found that pre-1948 enforcement of racial cove-

nants in housing “did not have a current significant seg-

regative effect.” Pet. App. 24a-25a.

The plurality repeatedly relied on these and other find-

ings in addressing each theory advanced by petitioners

for interdistrict relief. It began with arguments based

upon the existence of mandatory segregation prior to

1954—arguments that it found to be “considerably nar-

rowed when viewed in light of significant factual findings

of the district court.” Pet. App. 47a. Noting that the

district court had found “the pre-Brown acts thirty years

past to have negligible present effects,” Pet. App. 48a,

the plurality concluded that “(t]he factual argument

based on the pre-Brown interdistrict system of locating

dual schools flies in the face of the district court’s finding

that the pre-Brown acts have negligible present effects.”

Pet. App. 49a. For the same reason, the plurality was

unpersuaded by “the argument that the SSDs, though

not at fault, would still be liable to take part in eliminat-

ing the effects on children in their districts of the State’s

metropolitan-wide dual school violations... .” Pet. App.

58a-54a. The plurality held that this theory “suffer[ed]

from two fatal deficiencies [:] [i]t ignores the lack of

finding of any such effects, and is contrary to the dis-

trict court’s findings that within at most four years after

Brown I, any vestiges of the dual school systems that

may have existed in the SSDs had been eliminated.” Pet.

App. 54a.

The plurality also held that the findings of fact de-

feated petitioners’ arguments based upon claims of hous-

ing discrimination. It again emphasized that the district

court had made “specific findings that negate the exist-

ence of significant interdistrict current effects in the

SSDs.” Pet. App. 74a. The plurality thus gave great

weight to findings that the location of schools prior to

1954 “did not discourage black families from outside or

within Missouri from moving to and living in [the sub-

urban] districts” (Pet. ‘App. 74a-75a); that “the sub-

stantial increases in the KCMSD black population were

in large part due to the unusual economic and employ-

ment ramifications of the World Wars and intervening

Depression” (Pet. App. 75a); that “the restrictive cove-

nants [enforced until 1948] have no current effect in the

SSDs” (Pet. App. 77a); and that the findings with re-

gard to the claims against HUD “belie the possibility of

interdistrict effect occurring in the SSDs.” Pet. App.

86a. It finally concluded that “[t]he findings made

were adequate to dispel the conclusion required by Milli-

ken that there be significant segregative effects in the

SSDs caused by actions of a constitutional violator in

KCMSD.” Pet. App. 93a."

Although petitioners argued in the court of appeals that

certain statements by the district court constituted find-

ings of interdistrict effects, the plurality decided other-

wise. Thus, while petitioners pointed to parts of the

September 1984 opinion discussing a “dual housing mar-

ket” and -private discrimination “encouraged” by the

State, the plurality said that these observations, read in

the context of the full findings of fact, “fall short of

making a specific finding of a constitutional violation,

and certainly make no finding of any interdistrict effect.”

11 We note that, in 41 pages of Statements purporting to set forth

the facts of this case, petitioners do not refer to even a single one

of the findings included in the paragraphs in the text, supra; they

acknowledge neither that the district court made them nor that the

plurality explicitly relied on them.

—

Pet. App. 90a. To the contrary, the plurality “conclude[d]

that the factual findings of the district court effectively

foreclose findings of interdistrict effect in the SSDs flow-

ing from constitutional violations with respect to housing

that may have occurred in KCMSD.” Pet. App. 91a.

The petitions in this case make no effort to come to

grips with these statements; indeed, they are framed as

though the statements had never been made.’ This

neglect, however, severely distorts the meaning of the

plurality opinion.- The plurality “recognize[d] at the

outset the importance of the district court’s factual find-

ings in school desegregation cases.” Pet. App. 37a. And

it observed that the role of an appellate court with regard

to factual findings was a limited one, all the more so in

this case because petitioners had elected not to challenge

the findings as clearly erroneous. Pet. App. 42a, 47a;

see Anderson v. City of Bessemer City, 105 S. Ct. 1504

(1985). Petitioners thus are not free to separate the

court of appeals’ holding from the findings on which it

expressly depends.

B. The decision below, read properly, fits well within

the requirements of Milliken I. The plurality, relying

upon the findings set forth above, applied Milliken I

carefully, ultimately resolving that even the most min-

imal predicates for granting interdistrict relief had not

been met.

12 Petitioners in No. 86-1718 assert that “the district court

and the Eighth Circuit plurality never actually engaged in an

analysis of whether State violations had substantial segregative

effects in the surrounding districts.” KCMSD Pet. 17. This state-

ment is hard to credit when the plurality expressly noted findings,

among others, showing that “the pre-Brown acts have negligible

present effects” (Pet. App. 49a) and “effectively foreclos[ing]

findings of interdistrict effect in the SSDs flowing from constitu-

tional violations with respect to housing that may have occurred in

KCMSD” (Pet. App. 91a). The difficulty faced by petitioners does

not arise from a lack of analysis of interdistrict effects but from

the fact that, on the interdistrict issues, “[p]laintiffs’ proof was

weak, speculative and in any event de minim[i]s.” Pet. App. 301a.

The plurality began its discussion of the merits by

setting out the standards governing interdistrict relief

~ under Milliken I: “Before the boundaries of separate

and autonomous school districts may be set aside by con-

solidating the separate units for remedial purposes or by

imposing a cross-district remedy, it must first be shown

that there has been a constitutional violation within one

district that produces a significant segregative effect in

another district. Specifically, it must be shown that

racially discriminatory ‘acts of the state or local school

districts, or of a single school district hav2 been a sub-

stantial cause of interdistrict segregation.” Pet. App.

33a, quoting Milliken I, 418 U.S. at 744-45. The plural-

ity further noted that “the interdistrict segregative ef-

fects [must be] current.” Pet. App. 35a-36a.

The plurality discussed the standards of Milliken I

again in addressing petitioners’ contention that the dis-

trict court had mistakenly required a showing of viola-

tions by each and every school district. After examining

both Milliken I and the explanation of that case in Hills

v. Gautreaux, 425 U.S. 284 (1976), the plurality stated:

“Milliken and Hills make clear that we may grant inter-

district relief only to remedy a constitutional violation

committed by the SSD, or to remedy an interdistrict

effect in the SSD caused by a constitutional violation in

KCMSD.” Pet. App. 63a (emphasis added). To apply

this standard, it evaluated the findings of the district

court to see whether they established either an inter-

district violation by the SSDs or current interdistrict

effects in the SSDs. Pet. App. 63a-95a.

The plurality thus did not say that interdistrict relief

requires a violation by each school district to be included

in the remedy, nor did it endorse any such holding by

the district court. To the contrary, the plurality took

pains to show that the district court did not stop with

the issue of liability of the suburban districts but as-

sessed the effects in those districts of other actions al-

leged by petitioners. Pet. App. 65a-66a. The plurality

noted: “The district court thus dealt not only with the

issue of whether the SSDs were constitutional violators

but also whether there were significant interdistrict seg-

gative effects. [Citation omitted] When it did so, it

made specific findings that negate current significant in-

terdistrict effects, and concluded that the requirements of

Milliken had not been met.” Pet. App. 66a.%*

The plurality also went over the findings of fact in de-

tail, satisfying itself that no basis for interdistrict relief

had been shown. As we have previously noted, that

review included a discussion of the statements regarding

a “dual housing market” and the encouraging of private

discrimination relied upon heavily by petitioners here.

Having considered all the findings, the plurality con-

cluded that, even if the district court had misread Milli-

ken I by relying too much on the element of liability, its

findings “effectively foreclose findings of interdistrict ef-

fect in the SSDs flowing from constitutional violations

with respect to housing that may have occurred in

KCMSD.” Pet. App. 91a.‘ Without either an interdis-

13 Although petitioners insisted before the court of appeals that

the district court misread Milliken I, and that reversal was thus

required, the plurality was unconvinced for several reasons. Al-

though it agreed that “[t]he court’s order admittedly emphasizes the

absence of culpability of the suburban districts,” Pet. App. 65a, it

observed that “the court explicitly recognized that under Milliken

‘there must be evidence of a constitutional violation in one district

that produces a significant segregative effect in another dis-

trict.’” Pet. App. 65a, quoting Order of June 5, 1984. The plurality

then noted that the district court specifically considered the issue

“whether there were significant interdistrict segregative effects.”

Pet. App. 66a. Given the extensive findings regarding the lack of

such effects, the plurality decided that petitioners had shown no

basis for interdistrict relief even if their arguments regarding the

district court’s reading of Milliken I were accepted. Pet. App.

90a-91la.

14 Judge Arnold in his separate opinion disagreed with this view

of the district court findings, and suggested that both the plurality

and the district court gave too much attention to the lack of culpa-

trict violation or interdistrict effects, the plurality per-

ceived no basis for interdistrict relief.

This holding, far from being incompatible with Milli-

ken I, follows unavoidably from it. In that case, the

Court concluded that a violation occurring within a single

district and with effects confined to that district was an

inadequate basis for requiring other, autonomous dis-

tricts to participate in an interdistrict remedy. While

the Court at times seemed to imply that the lack of

culpability of the other districts was itself a factor weigh-

ing against interdistrict relief, see, e.g., 418 U.S. at 745

(rejecting imposition of remedy on districts “not shown

to have committed any constitutional violation’), it is

clear that at least a showing of significant interdistrict

effects was necessary to justify imposing the remedy on

those districts. The plurality below made just that in-

quiry; it simply decided that no such effects had been

shown here.

C. The decision below is also consistent with the de-

cisions of other courts of appeals. None of the cases

cited by petitioners, or any other case so far as we are

aware, has imposed an interdistrict remedy in the ab-

sence of a showing of current, significant interdistrict

effects.

The decision of the three-judge court in Evans v.

Buchanan, 393 F. Supp. 428 (D. Del.), aff'd, 423 U.S.

963 (1975), provides a ready example. There, after dis-

cussing the standards of Milliken I, the court observed

that “to the extent that segregation imposed by state

law has had interdistrict effects, federal courts can fash-

ion appropriate interdistrict remedies.” Jd. at 432. It

-bility of the SSDs. Pet. App. 145a-146a n.1. He pointed out, how-

ever, that even if the plurality believed in a requirement of culpabil-

ity (as, in his view, they “seem[ed] to’), that belief would not be

controlling in the Eighth Circuit itself. Rather, the question of the

scope of a proper remedy in a case involving interdistrict effects but

no individual violations “is . . . open for determination in future

cases in this Circuit.” Pet. App. i80a.

then made findings regarding a number of government

practices, related to both schools and housing, stating in

conclusion that “[t]his conduct constitutes segregative

action with inter-district effects.” Jd. at 438. Similarly,

it found that a state statute precluding consolidation of

the Wilmington school district with other districts

“played a significant part in maintaining the racial

identifiability of Wilmington and suburban New Castle

County school districts.” Jd. at 445.

The same sorts of concerns were present in United

States v. Board of School Commissioners, 573 F.2d 400

(7th Cir.), cert. denied, 439 U.S. 824 (1978). In that

case, the court of appeals expressly stated, relying on

Milliken I, that “[{b]efore a court may impose an inter-

district remedy, a constitutional violation, 7.e., intentional

state action, must exist which has significant segregative

interdistrict effects.” 573 F.2d at 405. The court subse-

quently found that certain state action regarding school

boundaries had such effects. /d. at 407-08. It also indi-

cated that various housing practices could support an in-

terdistrict remedy, even if they had ceased, provided that

“it is shown that prior discriminatory practices have a

continuing segregative effect on housing patterns (and,

in turn, on school attendance patterns) within the In-

dianapolis metropolitan area.” /d. at 409.

The plurality below distinguished these and other

eases, not because they required only a showing of inter-

district effects, but because no interdistrict effects were

shown here. Indeed, with regard to Evans and Board of

School Commissioners, the plurality said flatly that

“t]he facts relied on to support the housing violations

. . . are directly contrary to those found in this case.”

Pet. App. 83a; see also Pet. App. 95a-99a."°

15 In Newburg Area Council, Inc. v. Board of Education of Jeffer-

son County, Kentucky, 510 F.2d 1358 (6th Cir. 1974), cert. denied,

429 U.S. 1074 (1975), the court of appeals stated: “A crucial

difference between the present cases and Milliken is that school

Petitioners in No. 86-1718 (the “KCMSD petitioners’’)

also accuse the plurality of “effectively erect[ing] a new

- rule—that interdistrict effects of a constitutional viola-

tion give rise to an interdistrict remedy only where those

effects are caused by the gerrymandering of boundaries

..’ KCMSD Pet. 18. The rule is wholly imaginary.

The plurality did not say that manipulation of bound-

aries was the only justification for interdistrict relief;

it merely noted, quite correctly, that cases involving in-

terdistrict relief commonly involve such manipulation and

that nothing of the sort was established in this case.

Pet. App. 95a. Furthermore, of course, the plurality took

dozens of pages to review, and ultimately reject on the

basis of the factual findings, each of petitioners’ conten-

tions regarding interdistrict relief—including those

grounded in allegations about school assignments or hous-

ing practices—without any suggestion that the conten-

tions were foreclosed ipso facto by a failure to mention

boundaries.

In short, the decision below does not rest upon a fail-

ure of the plurality to follow Milliken I, or to apply the

same principles invoked by other courts of appeals; it

rests upon the failure of petitioners in this case to show

that racial disparities between the city and suburban

districts are the result of deliberate governmental dis-

crimination. Although petitioners sought to establish

that cause-and-effect relationship over months of trial,

the district court found to the contrary, and those find-

ings, never challenged as ciearly erroneous, controlled the

district lines in Kentucky have been ignored in the past for the

purpose of aiding and implementing continued segregation. Such

disregarding of school district lines continues to have an effect on

racial imbalance in the county's schools ....” Id. at 1380 (emphasis

added). In Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107

(1982), the court noted findings, among others, that “district lines

have been deliberately drawn on the basis of race” (id. at 1116)

(internal quotes omitted) and that various districts had been inten-

tionally created “as identifiably black and white districts” (id. at

1120). These conditions existed at the time of suit. Jd. at 1110-13.

EEEE—e!~~oro

disposition on appeal. Petitioners’ efforts to get around

those findings, and to recast the decision below as some-

thing it is not, should be rejected.

2. The Decision Below Is Not a Departure from the Prin-

ciples of Dayton II.

The Jenkins petitioners make a further argument that

the decision below is inconsistent with the principles of

Dayton II. Once again, the argument runs aground on

the factual findings in this case.

This Court held in Dayton II that a school district,

having once engaged in intentional segregation, has a

continuing duty to see that the effects of that segregation

are eradicated. That duty, as the Court went on to ob-

serve, includes “the obligation not to take any action

that would impede the process of disestablishing the dual

system and its effects.” 443 U.S. at 538. Asserting that

respondents failed to fulfill that duty here, the Jenkins

petitioners argue that various conduct, in particular the

failure to expand the boundaries of the school district,

has left in place interdistrict effects requiring an inter-

district remedy.

The obvious problem with this argument, as with peti-

tioners’ other contentions, is that it ignores the findings

regarding the lack of interdistrict effects. The district

court found, and the plurality below accepted, that no

effects of any prior interdistrict segregation presently

existed; all that remained to be undone were the effects

of intradistrict segregation, for which the court imposed

a substantial intradistrict remedy. Thus, insofar as peti-

tioners’ interdistrict claims are concerned, the duty to see

that effects of prior actions are not continuing, and the

corresponding obligation not to impede execution of that

duty, has been met. That is all that Dayton II requires."®

16 As the plurality below recognized, the findings of the district

court were anything but conclusory ones. Noting the existence of

racial disparities between the KCMSD and suburban districts, the

Given the findings below, petitioners’ argument seems

less an effort to apply the teachings of Dayton I/ than

one to avoid the teachings of Washington v. Davis, 426

U.S. 229 (1976). In the latter case, this Court held that

the essential predicate of a constitutional remedy is “cur-

rent conditions of segregation resulting from intentional

state action.” /d. at 240. Here, petitioners are seeking

to base a remedy on the supposed effects of one action

(the failure to expand district boundaries), which the

district court specifically found not to have been taken

with any discriminatory intent, Pet. App. 334a-39a, and

to do so by saying that it was necessary to correct for

the effects of some other action. Whatever merit this

argument might have in a proper case, it is clearly out

of place where the effects of the other action no longer

are continuing. In that context, it is nothing more than

an attempt to treat nondiscriminatory conduct as though

it were a constitutional violation.

district court examined decades of actions to determine whether the

disparities were the result of intentional governmental discrimina-

tion. In so doing, it found that the actions cited by petitioners had

de minimis interdistrict effect at the time and had no significant

current effect. Instead, the court found, other factors, such as the

availability of jobs and economic opportunities, were far more

important. See generally Pet. App. 283a-493a.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,