# Appendix — Kansas City, Missouri School School District District v. Missouri (Nos. 86-1718, 86-1717) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2164%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 ## Text OE.) i re g6 1718) ry . =} APR_24_ 1397 T 4 4 In the Supreme Court of the 0 | OCTOBER TERM, 1996 — KALIMA JENKINS, et al., Petitioners, -V- THE STATE OF MISSOURI, et al., Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT JAMES S. LIEBMAN* Columbia University School of Law 435 West 116th Street Box B-16 New York, New York 10027 212-280-3423 ARTHUR A. BENSON II 1430 Commerce Tower 911 Main Street Kansas City, Missouri 64105 816-842-7603 Jutius L, CHAMBERS JAMEs M. Napsairt III THEoporRE M. SHAW 99 Hudson Street, 16th Floor New York, New York 10013 212-219-1900 *Attorney of Record E. L. Muewpenwnate, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 APPENDIX TABLE OF CONTENTS Order, United States Court of Appeals for the Eighth Circuit (en banc), December 5, 1986. ccccccccsvecceccceoce 2a Order, United States Court of Appeals for the Eighth Circuit, February 5, 1987.cccccccsvccceccses 212a General Memorandum and Order, United States District Court, Western District of Missouri, JUNO S- L9SEvccececesecoscvcesssscces £2748 Order, United States District Court, Western District of Missouri, POBCONOT 27s LPOG s 666 6k 660 ce ek eee 518a United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 85-1765 No. 85-1949 No. 85-1974 No. 85-2077 Appeal from the United States District Court for the Western District of Missouri Kalima Jenkins, by her next friend, Kamau Aaqyei, Carolyn Dawson, by her next friend, Richard Dawson, Tufanza A. Byrd, by her next friend, Teresa Byrd, Derek A. Dydell, by his next friend, Maurice Dydell, Terrance Cason, by his next friend, Antoria Cason, Jonathan Wiggins, by his next friend, Rosemary Jacobs Love, Kirk Allan Ward, by his next friend, Mary Ward, Robert M. Hall, by his next friend, Denise Hall, az + +e + + + * + eH He HF HH HH eH eH eH eH HH HH OH OUCH CU ~« Dwayne A Turrentine, by his next friend, Shelia Turrentine, Gregory A. Pugh, by his next friend, Barbara Pugh, Cynthia Winters, by her next friend, David Winters, on behalf of themselves and all others similarly situated, Appellants/Appellees, and American Federation of Teachers, Local 691, Appellant/Appellee, Ve The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri, Wendell Bailey, Treasurer of the State of Missouri, Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terw, A. Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald B. West, members of the Missouri State —— Board of Education, Arthur L. Mallory, Commissioner of Education of the State of Missouri, School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellants/Appellees, ParkHill School District R-5 and Dr. Merlin A. Ludwig, Superintendent thereof, North Kansas City, Missouri School District and Dr. Raymond Waier, Superintendent thereof, School District of the City of Independence and Dr. Robert Henley, Superintendent thereof, Raytown, Missouri Consolidated School District C-2 and Dr. Robert Atkin, Superintendent thereof, Center School District and Donald Richmond, Superintendent thereof, Hickman Mills Consolidated School District C-l and Blaine E. Steck, Superintendent thereof, Grandview Consolidated School District C-4 and Dr. Tony L. Stansberry, Superintendent thereof, eee euneenenenneveeeeeeneeeeeeeee eee ee eee te HH - 5a - Fort Osage School District R-1l and Victor Graqa, Superintendent thereof, Lee's Summit Reorganized School District R-7 and Dr. Bernard C. Campbell, Superintendent thereof, Blue Springs Reorganized School District R-4 and Dr. Gale T. Bartow, Superintendent thereof, Liberty School District and Dr. Ronald L. Anderson, Superintendent thereof, United States Department of Housing and Urban Development and Samuel Pierce, Secretary thereof, ee oe eRe Se DH 2 ee Oe ee Oe Se Se 2 SS Appellees. Submitted: November 13, 1985 Filed: December 5, 1986 Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges, En Banc* *Judge Bowman did not participate in consideration of this case and Judge Magill was not a member of the court when it was arqued and submitted. - 6a - JOHN R. GIBSON, Circuit Judae. This case arises from claims of unconstitutional racial seqregation of school children in the Kansas City metro- politan area. After trial, the district court! imposed an intradistrict remedy against the Kansas City, Missouri School District (KCMSD) and the State of Missouri with the State bearinq approximately three-fourths of the cost. The district court found that the KCMSD and the State had not eradicated vestiges of the racially seqreqated dual school system once reguired under state law in violation of the Constitution. The claim for inter- district relief in the form of con- solidation or realianment of the suburban ltThe Honorable Russell G. Clark, United States District Judge for the Western District of Missouri. - Ja - school districts (SSDs) was rejected as the SSDs were found to have eliminated all vestiges of their seqreaqated school systems and there was no finding of inter- district violation or interdistrict effect. The SSDs were dismissed from the action. The United States Department of Housing and Urban Development (HUD) also was held not liable. In this appeal, both the KCMSD and Kalima Jenkins, the named Plaintiff in a certified class of present and future KCMSD students (Jenkins class),2 challenge the denial of inter- district relief. The Jenkins class also appeals the judgment in favor of HUD. In addition, both the KCMSD and the State challenge the scope and the allocation of 2The named student Plaintiffs were replaced at various times during the liti- qgation. In February 1985, the court cer- tified the class of present and future KCMSD students. costs of the intradistrict remedy ordered against each. The district court's findings’ and conclusion that the suburban school districts are not liable for interdistrict violation and may not be ordered to par- ticipate in interdistrict relief, on those issues not related to housina, are affirmed by the vote of five judqes (Judces Ross, Faqq and Wollman join in this opinion; Judge Arnold concurs in the result; Chief Judge Lay, joined by Judaes Heaney and McMillian, dissents). The interdistrict findings and conclu- sion on the housing issues are affirmed by an equally divided court (Judges Ross, Faqq and Wollman join in this opinion; Judae Arnold files a concurring - and - 9a - dissenting opinion in which he concludes that the case should be remanded to the district court to consider whether there are interdistrict housing violations which would require relief; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents). The dismissal of the SSDs and HUD at the close of the plaintiff's evidence is therefore affirmed. The intradistrict remedy ordered against the State of Missouri and KCMSD is modified in some respects with five judges concurring (Judges Ross, Faqg and Wollman join in the opinion and Judqe Arnold con- curs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents). This suit was filed in 1977 by the KCMSD, the School Board, and four children a | - 10a - of two School Board members. The complaint alleqed that the State, surrounding school districts in Missouri and Kansas, and several federal aaencies including HUD3 had helped cause or had been part of a system of racial seqreqation amonq Kansas City metropolitan area school districts. In October 1978, the district court dismissed the Kansas defendants for want of jurisdiction. It also concluded that the KCMSD lacked standinq to bring an action against the State as party plain- tiff and realiqned the KCMSD as a defen- dant. School District of Kansas City Missouri v. Missouri, 460 F. Supp. 421 3The named defendants included the State of Missouri, the Missouri State Board of Education and various Missouri officials, the State of Kansas, the Kansas State Board of Education and various Kansas officials, several Kansas school districts in the Kansas City metropolitan area, twelve Missouri school districts in the area, the United States Departments of - lla - (W.D. Mo. 1978).4 In May 1979, an amended complaint was filed against KCMSD, and the federal and Missouri defendants named in the oriqinal complaint. The amended complaint made two distinct alleqations: first, of an inter- district violation, committed by the SSDs, and the State and federal defendants; and second, of an _ intradistrict violation within the KCMSD, committed by the KCMSD and the State defendants. KCMSD pursued its claim by filina, in July 1979, a cross-claim against the State, reiterating the alleqation of interdistrict violation made by the Jenkins class, and seeking Transportation (DOT), Health, Education, and Welfare (HEW), and Housing and Urban Development (HUD). 4these rulings were certified under 28 U.S.C. § 1292(b) for interlocutory review. 460 F. Supp. at 445. An appeal, taken by the KCMSD and the North Kansas City School - l2a - indemnification against anv intradistrict liability. Trial to the court commenced October 31, 1983.5 Over the course of 64 trial days, plaintiff called over 140 witnesses, offered 2,100 exhibits, and desiqnated approximately 10,000 pages of depositions. Before hearing evidence in response, the district court, based on standards set out by the Supreme Court in Milliken v. Bradley, 418 U.S. 717 (1974), dismissed the eleven SSDs from the case under Fed. R. Civ. P. 41(b).6 The court found that District, was denied by this court. KCMSD thereafter filed an anpeal under 28 U.S.C.§ 1291 which was dismissed, See School District of Kansas City, Missouri v. Missouri, 592 F.2d 493 8th Cir. 1979). SRefore trial, the DOT and one of the SSDs, the Rayvmore-Peculiar School District, were dismissed voluntarily. See Order of June 5, 1984 at 2. 6The eleven districts dismissed were the Blue Springs, Center, Fort Osaqe, - 13a - school districts in Missouri are autono- mous and that none of the districts had committed any acts with intent to discri- minate on the basis of race, to contain blacks in the KCMSD, or bar blacks from the SSDs. The court further found that within four vears after Brown v. Board of Education, 347 U.S. 483 (1954) (Brown i and in most cases within a shorter time, all the SSDs had eradicated the vestiges of their dual school systems and were operating unitary systems. The court further found that none of the alleged Grandview, Hickman Mills, Independence, Lee's Summit, Liberty, North Kansas City, Park Hill, and Raytown School Districts. HEW subseauently was dismissed for plain- tiffs' failure to prove that the agency acted with racial animus or abused its discretion in the enforcement of Title VI. See Order of July 16, 1984. - l4a - discriminatory actions committed by the State or the federal defendants had caused any Significant current interdistrict seqreqation. The district court therefore denied inter-district relief. See qenerally Order of June 5, 1984. The district court then heard addi- tional evidence and, on September 17, 1984, issued its order holding the State and the KCMSD liable for racial segreqa- tion of students within the KCMSD. Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984) The court observed that before 1954, the State and the KCMSD had main- tained a racially segregrated dual school system. The court found, in the existance of twenty-four KCMSD schools with a black enrollment in excess of 90%, and in other areas, vestages of the now unlawfull dual - 15a - school system. It therefore held that the state and the KCMSD, under principles announced by the Supreme Court in Brown v. Board of Education, 349 U.S. 294 301 (1955) (Brown II), had failed in their affirmative duty to dismantle the un- constitutional pre-1954 system. The court also held that HUD was not Viabie, finding that HUD had followed a balanced approach to sponsoring subsidized housing projects in both innercity and suburban areas. On June 14, 1985, after a two-week hearing on the scope of appropriate relief, the court issued a remedial order requiring the State and the KCMSD to fund compensatory and remedial educational programs and necessary capital improve- ments in KCMSD schools. The plan is pro- jected to cost $87,000,000 over the next - l6Oa - three years, with the State bearing approximately $67,000,000 and the KCMSD approximately $20,000,000. See Memorandum Opinion of June 14, 1985 at 41-42. In this appeal the Jenkins’ class challenges the district court's dismissal of HUD, and joined by KCMSD, its dismissal of the SSDs, and its denial of inter- district relief. The KCMSD also challenges the district court's realign- ment of the KCMSD as a party defendant. The State challenges the scope of the district court's remedy and the alloca- tion of costs. INTERDISTRICT LIABITITY FINDINGS In Milliken, 418 U.S. 717, the Supreme Court held that an interdistrict remedy may not be imposed absent a finding of a RCIA Nie Oem Solid - 1l7va - constitutional violation within one district producing a siaqnificant seqreqa- tive effect in another school district. Id. at 744-45. Without an interdistrict violation and interdistrict effect, there is no constitutional wrong requiring an interdistrict remedy. Id. Plaintiffs advanced to the district court three theories to support their claim of inter- district violation and effect, requiring the imposition of an interdistrict remedy in the form of consolidation of the KCMSD and SSDs: [Flirst, that the SSDs, as agents of the state, were gquilty 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 affir- mative duty to eliminate the vestiges of the dual school system; and third, that the SSDs are liable for the effects of actions by the KCMSD and other - 18a - defendants and can therefore be included in an interdistrict remedy. Order of June 5, 1984 at 5. The district court found, based on the Milliken holding, that there was lack of proof of discriminatory intent in the establishment or chanae of any school district boundary and thus distinguished the interdistrict cases upon which the plaintiffs relied. It rejected the arguments that the SSDs were not separate and autonomous but were instead agents of the State. It further rejected the argument that, as agents and subdivisions of the State, the SSDs must be included in an interdistrict remedy absent any finding that they had committed specific violations by their own ini- tiative. - 19a - The court examined the plaintiffs' argument that the pre-1954 dual _ school systems had caused racial segreqation in the Kansas City metropolitan area. The court acknowledged the substantial increase in the KCMSD black population from 1910 to 1960, but found that the increase resulted principally from the unusual economic and employment ramifica- tions of the World Wars and intervening Depression. Order of June 5, 1984 at 17. The absence of black schools in the SSDs, it found, had not discouraged black tenis lies outside or within Missouri from moving to and living in those districts. The district court also rejected the arqu- ment that within the SSDs any vestiges or significant effects of the pre-1954 dual school system remained. The acts thirty - 20a - years past, the court found, had neqli- gible current effects. While some of the SSDs had dual school systems in_ the pre-1954 era and some did not,’ after Brown I each had disestablished its pre-1954 school system with deliberate speed and all vestiges of those systems have lonq since disappeared. The district court entered separate findinas’ with respect to each SSD. It found that all were unitary, most by 1955, in immediate compliance with the mandate of Brown I, two more by the 1957-58 school year, and the last, Park Hill, was fully integrated by the 1959-60 school yar. Id. at 43-95. The court then considered the plain- 7The court specifically found that Independence, Lee's Summit, Liberty, North Kansas City, and Park Hill had earlier maintained dual school systems, but the other districts had not. Id. at 43-95. - 2la - tiffs’ second theory, that the SSDs had failed in their duty, pursuant to the man- date of Brown II, to eliminate vestiges. The district court found that the establishment of an association of reaional school districts did not neqate the autonomy of the individual SSDs, and that the sharing of sales tax revenues by certain of the SSDs whose area may have been partly within the Kansas City, Missouri, city limits did not amount to a constitutional violation. Id. at 19-21. Further, a juvenile home, local special and vocational education proqrams, and nparticularly the creation of certain voca- tional education districts were examined and found not to have been constitutional violations on the part of the SSDs. Id. at 21-26. The district court also exa- ——————EE—E———— - 22a - mined a statute enacted by the Missouri General Assembly in 1957 enlarging the size of a city that should constitute a sinale school district.® The court found that the enactment was not driven by an intent to concentrate black students within KCMSD, and therefore, was not an intentional interdistrict violation. Id. at 28-29. The court also examined the SSDs' response to recommendations of the Spainhower School District Commission of 1979, reqardina realignment of boundaries so as to create some twenty school districts in the state, and with respect to financing and local control, and found no evidence that any of the SSDs rejected or declined to consider these proposals 8H.B. 171 increased from 500,000 to 700,000 the size of a city that should constitute a single school district. In the 1960 census, the population of Kansas City did not exceed 500,000. The court - 23a - for reasons at all related to race. Tt further rejected arquments based _ upon employment practices in the SSDs. The district court finally analyzed in detail plaintiffs’ third theory, that the SSDs may be included in an interdistrict remedy because the effects of others' discriminatory acts were felt within the SSDs. It found no evidence that white families had been lured to or black fami- lies discouraged from living in the SSDs. Nor did any of the factual evidence con- cerning housing implicate any of the SSD defendants. Id. at 34-35. The steady increase in black enrollment in the SSDs found that significant annexations in eastern and southern Jackson and Clay Counties occurred after the bill was enacted and that KCMSD had annexed several all-white schools from 1955 to 1973. - 24a - since 1968, particularly in Raytown, Hickman Mills, Center, and Grandview districts,? and the fact that in 1980, 23,434 blacks resided outside the prin- cipal contiquous area was found to refute the testimony of plaintiffs' exnerts. The court rejected white-fliaght theory as a constitutional violation by the SSDs. Id. at 36-39. The district court also addressed plaintiffs’ claims regarding housing violations. While the court found that before 1948, in several areas within the SSDs restrictive covenants were enforced, the court further found that such enfor- cement did not have a current sianificant 9In 1982 the Center district had an enrollment of 10.6% black, Grandview 9.8%, Hickman Mills 16.7%, and Raytown 7.6%. Id. at 41-42. a - 25a - seareaative effect. !9 With respect to public housing, it found that such housing is available in siaqnificant amounts within every SSD and that the HUD section 8 program is available in all parts of the metropolitan area. No testimony linked any SSD to the transition of neiahborhoods within the KCMSD from white to black and the accompanying white flight which had taken place in Kansas City since 1940. Id. at 41. The court therefore concluded that these was no interdistrict violation and interdistrict effect. Thus, as required by Milliken, interdistrict relief was denied. Id. at 95. The court stressed —_—_- — that awarding relief "“‘would impose on the l10see Note 22, infra. - 26a - outlying districts, not shown to have com- mitted any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.’" Id. at 96 (quoting Milliken, 418 U.S. at 746). It rejected a cumulative effect and found NMlaintiffs' evidence de minimis at most and leaqally insufficient to justify the relief sought against the SSDs. Id. at 97-98. The court thus dismissed the case against the SSDs. INTRADISTRICT LIABILITY FINDINGS The district court then tried the intradistrict issues and found that the inferior education indiqenous to- the State-compelled dual school system has lingering effects in the KCMSD. Jenkins - 27a - vy. Missouri, 593 F. Supp. at 492. The district court recognized the stipulation that before 1977 KCMSD was not unitary and did not comply with federal requlations. Id. at 1489. KCMSD was majority white in enrollment until 1970 and could have achieved mathematical racial balance in its schools. Id. at 1492. Instead, it chose to operate some completely segre- gated schools and other integrated ones. In 1974, twenty years after Brown I, 39 schools were more than 90% black; another 38 had 10% to 90% black enrollment. Eighty percent of all blacks’ in the district attended schools that were 90% black. Only 19% of the blacks attended a school that was 10% to 90% black. Id. at 1492-93. As of 1977, 25 one-race schools under the pre-1954 system remained 90% or - 28a - more of the same race. Id. [In addition, four schools that were black under the dual system were predominantly black when closed in 1968. Id. at 1492. In the 1983-84 school year no KCMSD school had less than 30% black enrollment, but 24 schools were racially isolated at more than 90% black. Id. at 1493. The court found that the KCMSD still has not entirely dismantled the dual school system. The court then made par- ticular findinas on the liberal transfer policy, the neiaqhborhood school policy, and attendance zones, and _ found that these, rather than facilitating integra- tion, fostered the maintenance of seqre- gated attendance patterns. Intact busing was found to have been segregative in intent and effect, but, as it was stopped - 29a - in the 1960's, no continuing violation existed. The court found that plans had not been adopted for district-wide deseqreaation until 1977-78. Id. at 1493-94, Similarly, the court imposed liability on the State based on its’ intentional creation of the dual school system and the obligation that existed to disestablish such a system. ll As vestiges of the State's dual school system lingered in KCMSD, the obligations of KCMSD and the State had not been met. The court rejected the State's argument that constraints imposed by the state constitu- tion or statutes prevented its affirmative disestablishitent of the dual school llwnile the court conceded that the State may have through its actions created an atmosphere in which private white indi- viduals and members of the real estate, banking, and insurance communities could - 30a - system. It held the issues in favor of the Jenkins class and aqainst KCMSD and the State and held the issues in favor of KCMSD and against the State on the cross- claim. Id. at 1505. LIABILITY OF HUD With respect to the claim against HUD, the court examined Federal Housing Administration appraisal practices before 1949, cooperative agreements with the City of Kansas City under the auspices of the Housing Authority of Kansas City (HAKC) and the Land Clearance for Redevelopment justify bias against blacks, it found no evidence that the State siqnificantly encouraged such practices. 593 F. Supp. at 1501-03. The court also found that freeway placement did not amount to a constitutional violation. hn oath Ee ARE - 3la - Authority (LCRA), and section 8 cer- tificates. It found that HUD followed a balanced housing policy and attempted to insure that assisted housing was located in both innercity and suburban areas. There was no evidence that HUD's~ site selection and approval practices for federally subsidized multi-family housing substantially affected the racial com- position of schools within KCMSD. Id. at 1499, The court pointed to HUD's affir- mative marketing efforts to apprise par- ticipating section 8 certificate-holders that affordable housing was-~ available throughout the entire community. Id. at 1500. There was no evidence that HUD routinely denied blacks FHA mortgages, that it discriminatorily foreclosed on mortqages held by blacks, or that ) 1 dence as a whole. b ‘ » { b \ re 1ues that the Jistrict court' ing of six distinct metronpolitan-wide itutional violations satisfies liken's siqnificant seqreaqative effect Standard. It urges under Swann that proof 9f a system with a history of segregation Warrants 4 presumption against schools that remain J1isproportionate in their racial composition. It arques that the Nroof acknowledged by the court, of prior Je jure seqreaation on an area-wide basis, coupled with a patently continuing racial imbalance amonq the SSDs' Student and faculty compositions, established the liability of the SSDs. It further arques that the district court improperly rejected much of the evidence, and impro- perly barred the presentation of quan- ~ 4/4 - titative evidence, as irrelevant. The broad scope of these arquments is considerably narrowed when viewed in light of siqnificant factual findings of the district court. These findings are not challenged as clearly erroneous. The district court found that the SSDs were autonomous and locally controlled,!5 and that the State was powerless’ to require a merqer or consolidation. The district court recognized the sti- pulation that before 1954 the State man- dated dual school systems and mandated SSDs' compliance in maintaining dual systems. It found that all SSDs met their constitutional obligation to operate a unitary school system within a maximum of l5The district court pointed to evidence that the SSDs are governed by local boards elected by the voters, hire the superin- tendents and teachers, by vote establish their own tax levy, have plenary power to - 48a - four years after Brown I, most of them doing so within one year. The dismantling of the dual system was accomplished with all deliberate speed. Order of June 5, 1984 at 99. It specifically found that the evidence established that there was no barrier to movement of blacks into the SSDs. Id. at 39. It found the pre-Brown acts thirty years past to have neqliqible present effects. It further found that the faculty and staff composition of the establish school attendance zones, and determine whether to provide transpor- tation for their students. Reorganization is a decision to be made by the local ‘school districts, and the state constitu- tion prohibits leaislative enactment of special laws to change the boundaries of anv school district. The district court further found that there was no discrimi- natory intent in the establishment or maintenance of the boundary lines between the school districts. Order of June 5, 1984 at 10-l1l. - 49a - SSDs do not affect the racial composition of the student bodies. The court found the faculty were hired and promoted on a racially neutral basis. The court could not conclude that there was an inter- district violation from any possible intradistrict factors. The factual arqument based on the nre-Brown interdistrict system of locating dual schools flt2s in the face of the district court's Finding that the pre-Brown acts have negliqible present effects. Chief Judqe Lay's dissent suf- fers from a similar infirmity as_ the district court made numerous Findings interspersed through its order concerning the neqliagible and de minimis nature of any such effects. These findings are not 16 >learly erroneous. These findings make l6The district court in its June 5, 1984 - 50a - Order made the following findinas: The evidence that cseqreqated schools existing before 1954 were the direct and substan- tial cause of blacks leaving each SSD, and that such had a siqnificant seqreaative effect in the KCMSD “was weak, speculative and in any event de minimis." See Order of June 5, 1984 at 12. Plaintiff's arqu- ment that the state through its aaents, the SSDs, maintained a regional black interdistrict school system causing blacks to leave the SSDs and miarate to Kansas City in search of an education is not sup- ported by the law or the evidence. Id. at 15. Assuming the entire npopulation decrease in the three county area was caused by people leaving and qoina to Kansas City because of the dual school system, it found “the impact of that move- ment on the KCMSD enumeration insiqnificant." Id. at 16. The motivation for blacks leaving the three county area and moving to Kansas City “resulting from seqreqated schools was de minimis and insiqnificant" when compared with other Primary motivating factors transferrina blacks to the KCMSD under the seqreaated school system “is not a cause of the pre- sent racial distribution of the pnopulation in the three county area." Id. at 18. The Jenkins class did not persuade the court "that any vestiges or sianificant effects of the pre-1954 dual school system remain” in any of the SSDs. Id. at 18. "At most plaintiff's evidence is only de minimis and is therefore leaally insuf- ficient to justify the relief sought against the suburban school district defendants.” Id. at 98, The district - Sla - unnecessary a detailed recitation of the court summarized: Another factor negating the impor- tance of plaintiffs' voluminous npre-1954 evidence is simply its aqe. Our society is dynamic; myriad factors produce a multitude of simultaneous decisions and consequent effects. If it were a stagnant entity, the per- nicious effects of de jure seqreqation would be obvious. Due to its fluid nature, however, acts now 30 years past have negligible present effects. Such is the fate of the discriminatory practices plaintiffs took months to develop. Too many events have intervened, reshapina earlier actions. Lee v. Lee County, supra, 639 F.2d at 1259. Id. at 98-99. In concluding, the district court stated “even if the court were to view plaintiff's evidence liberally, which under Rule 4l(b), it is not required to do, the violations proved are at most, de minimis and far removed in time." Id.at Chief Judge Lay's dissent does not establish what the Jenkins class and KCMSD did not arque, that these findings of fact are clearly erroneous. - 52a - nre-1954 evidence. The arqument that the State and SSDs Participated in continuing interdistrict violations is contrary to the district court's finding that the SSDs had met their constitutional obligation to operate unitary school systems within four years Tv after Brown I, most of them doing so within a year. Similarly, the arqument that KCMSD officially sanctioned suburban Flight looks first to KCMSD's violation which the district court clearly found to be only intradistrict in nature. The arqument based on fliqht into neighboring SSDs making the southeast area schools blacker and recipient SSD schools whiter, thereby causing racial seaqreqation in adjacent districts, is contrary to the district court's finding that there was no - 53a - barrier of movement to blacks to the SSDs. The district court specifically found that there was considerable increase in the black enrollment of the SSDs, particularly Center, Granuview, Hickman Mills, = and Raytown. Similarly, in the enumeration of six leqal errors, three are based upon pre-1954 actions of the SSDs. The district court's findings that these acts have negligible present effect funda- mentally undermines the validity of these arguments. As we have seen, the arqument based on the actions of KCMSD and white flight run contrary to the factual fin- dinas mentioned above. So also, the arqument that the SSDs, though not at fault, would still be liable to take part in eliminating the effects on - S4a - children in their districts of the State's metronolitan-wide dual school violations, suffers from two fatal deficiencies. It iqnores the lack of finding of any such effects, and is contrary to the district 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 heen eliminated. The Jenkins class further arques that Swann raises ot pre-sumption aqainst schools that are disproportionate in their racial composition. The district court did not err in rejecting the Swann pre- sumption. Milliken was careful to point out that disparity in the racial com- position of pupils within a single district merely signals an inauiry into the causes for pronounced racial iden- - 55a - tifiability of schools within one school system. The Milliken limitation of this presumption is the subject of comment by the Fifth Circuit in Lee v. Lee County Roard of Education, where the court sta- ted: It seems important to note also that Milliken, unlike Swann and Keyes v. School Dist. No. 413 U.S. 189 (1973), did not sanction the use of any presumn- tions on the question of the cause of interdistrict seqreaqa- tion. “hus, while Swann, as noted above, permits an inference that the continued existence of one-race schools in a system that formerly practiced de jure segregation is a vestige of such segregation, and Keyes permits one to infer the existence of systemwide de jure segregation from proof that school authorities have pursued an intentional policy of seqre- gation in a substantial portion of a school district, Milliken refused to sanction a presump- tion that significant dispari- ties in the racial composition of autonomous school districts resulted from impermissible action by those districts and - 56a - thus justified imposing upon them the burden of remedying conditions of seqregqation existing in other districts. The Milliken Court noted that both Keyes and Swann merely involved "the use of a significant racial imbalance in schools within an autonomous school district as a Signal which operates to shift the burden of proof [which] is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy." 418 U.S. at 741 neol9 * * #, 639 F.2d at 1254, Contrary to the argument of the Jenkins class, cases of this court do not adopt the Swann presumption in inter- district cases. See Morrilton School District No. 32 v. United States, 606 F.2d at 230; see also United States Ve Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 423 U.S. 451 (1975); Haney v. County Board of Education, 410 F.2d 920 - S5/a - (Sth. Cir 1969). They simply recoqnize that racial gerrymanderina, which the district court specifically found is absent here, will make school authorities responsible for the foreseeable effects. So also, the argument concerning the pre- Sumption runs directly contrary to the teachings of Washington v. Davis, 426 U.S. 229, 240 (1976), that there must he a showing in a school deseqreqation case of "a current condition of seqreqgation" resulting from intentional state action. The district court's finding that the SSDs were autonomous prevents a conclusion that there is a single system to which such a presumption applies. The arguments of the Jenkins class run contrary to the facts found by_~ the district court.!? In essence, in the l7chief Judge Lay's dissent also arques - 58a - detailed recitation of evidence, it seeks to have this court substitute its judqment for that of the district court. This is contrary to the general rule of Anderson v. City of Bessemer City, supra, and to the specific dictate of this court that we qive “undiminished deference to the fac- tual adjudications of federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities that a recent order of the district court made some nine months after the argument of this case illustrates that the refusal to grant interdistrict relief was clearly erroneous and contradictory to its own findinas. We cannot read the general statement in the recent order to have the effect of setting aside carefully detailed findings of facts and conclusions in its 105 page June 5 Order, its 21 page order on intradistrict liability, or its 45 page order on remedy. - 59a - where they sit." Little Rock, 778 F.2d at 410-1ll. IV. We next consider arquments advanced by the Jenkins class that racially discrimi- natory acts by the State in housing- related areas justified interdistrict relief involving the SSDs. Before con- Sidering the district court's findings on this matter, we must address the class' argument that the district court misread Milliken in deciding whether the SSDs could be required to participate in an interdistrict remedy. In doing so, we must read all of Milliken and all of the district court's order. According to the class, the district court read Milliken as - 60a - holding that each SSD could = not_ be required to particpate in an interdistrict remedy absent a finding that that SSD had engaged in racially discriminatory con- duct. The passage from Milliken -set forth above in Part I, supra, made plain that, before a federal court may impose an interdistrict remedy, "it must first be shown that there has been a constitutional violation within one district that produ- ces a significant seaqregative effect in another district." 418 U.S. at 744-45. Specifically, the court must find that racially discriminatory acts "have been a substantial cause of interdistrict segreaation."' Id. at 745. Absent this showing, "there is no constitutional wrong calling for an interdistrict remedy." Id. - 6la - On the facts before it, the Court was forced to conclude in Milliken that: With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the Original theory of the case as framed by the pleadings and man- dated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the Outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court. The Court's decision in Hills v. Gautreaux, 425 U.S. 284, two years later, forcefully emphasized this central holding of Milliken. Justice Stewart wrote for the Court: Once a constitutional violation is found, a federal court is required to tailor "the scope of the remedy” to fit "the nature - 62a - and extent of the constitutional violation." * * * In Milliken, there was no finding of unconsti- tutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any sianificant segreaative effects in the suburbs. * * * The deseqreaqa- tion order in Milliken requiring the consolidation of local school districts in the Detroit metropo- litan area thus constituted direct federal judicial inter- ference with local governmental entities without the necessary predicate of a constitutional violation by those entities or of the identification within them of any significant seqrega- tive effects resulting from the Detroit school officials' un- constitutional conduct. Under these circumstances, the Court held that the interdistrict decree was impermissible because it was not commensurate with the constitutional violation to be repaired. Id. at 293-94 (emphasis added) (citations omitted); see also Goldsboro City Board of - 63a - Education v. Wayne County Board of Education, 745 F.24 at 328 ("An indepen- dent school district which has not caused seqreqation in a neiqhboring independent district has no duty to rectify a racial imbalance in the other districts."). Milliken and Hills make clear that we may qrant interdistrict relief only to remedy a constitutional violation com- mitted by the SSD, or to remedy an inter- district effect in the SSD caused by a constitutional violation in KCMSD. The district court first carefully considered whether the SSDs had violated the Constitution. It found they had not. Indeed, the district court concluded that to award relief in this case would, as the Court concluded in Milliken, “impose on the outlying districts, not shown to have - 64a - committed any constitutional violation, a wholly imnermissible remedy." 418 U.S. at 143.6 Order of June 5, 1984 at 96. It Further found that the Jenkins class had not established any acts or omissions by the SSDs "which have had a substantial seqreqative impact in any other district."18 The district court was com- nelled to make this inquiry by Milliken and Hills, stressing as they do the siqni- ficance of. the commission of a constitu- tional violation. The court's consider- ation of the appropriateness of inter- district relief would have been incomplete without this inquiry. Milliken makes nDlain that the issue of whether the par- ties are constitutional violators must be l8see Note 16, supra. - 65a - considered as well as the issue of whether there is a constitutional violation in one district causing a sianificant segreqative effect in a neighboring district. Moreover, contrary to the arqument of the class that the court looked only to the culpability of the SSDs, the scope of the order is far broader. The court's order admittedly emphasizes the absence of culpability of the suburban districts. However, the court explicitly recoqnized that under Milliken "there must be evi- dence of a constitutional violation in one district that produces a siqnificant segreaative effect in another district." Order of June 5, 1984 at 14, 95. The district court compared the theories before it with those in Milliken. It noted that only the schools in one - 66a - district were affected and that the remedy must be limited to that system. In exam- ining the cause and effect issue, the court noted that “not only is plaintiff's evidence here blurred as to cause and effect, there is no ‘careful delineation of the extent of the effect.'" Id. at 46 (quoting Lee, 639 F.2d at 1256). The district court thus dealt not only with the issue of whether the SSDs were consti- tutional violators but also whether there were siqnificant interdistrict seqreqative effects. See V, infra. When it did so, it made specific findinas that negate current siqnificant interdistrict effects, and concluded that the requirements of Milliken had not been met. In Bell v. Board of Education 683 F.2d 963 (6th Cir. 1982), the Sixth - 6/a - Circuit suqgested a number of practical nroblems in attempting to order school districts to remedy housing violations: We do not find any case addressing the arqument that a school board otherwise innocent of seqreagative intent is liable for the discriminatory housing practices of other qovernmental agencies. We decline to accept this argument. Under this arqu- ment the discriminatory conduct of the FHA in making housina loans and local housing authori- ties in the construction = and rental of public housing is attributable to school boards. Such a proposal places too heavy a burden on the schools to remedy wrongs for which they are no more or less responsible than the plaintiffs, the courts, the churches, the Congress or other institutions. Plaintiffs do not suggest how the schools, after a finding of liability, would go about remedying this problem or what kind of order a federal court could enter that miqht as a practical matter have a chance of changing the fact that black and white families live in separate neighborhoods in most towns and cities. - 68a - Id. at 968 (footnote omitted). The Supreme Court has aiven consistent admonition in Hills and Milliken that federal courts may not “restructur[e] the operation of local aqovernmental entities that were not implicated in any constitu- tional violation.” 425 U.S. at 279. The district court's findings amply establish that the SSDs were not “implicated” in the State's housing violations. See Part V. We have considered that culpability is an important factor in interdistrict ar- alysis. In Little Rock, 778 F.2d 404, we ordered that the boundaries of the North Little Rock School District remain intact “in partial recoqnition of the fact that the nature and extent of its interdistrict violations are less severe than those of ——. a -_ ied - 69a - the other defendants." Id. at 435. Judge Arnold's separate concurring and dissenting opinion recognizes that’ the remedy to be imposed aaqainst the SSDs must be “limited b’ the fact that the SSD is not itself a constitutional violator." Post at 75. We recoaqnize that Morrilton School District No. 32 v. United States, 606 F.2d 222, states that school districts may be required to participate in a remedy when "there was no evidence implicating them in a direct way with the establishment" of the segreaqated district. Id. at 228. Morrilton is a aqerrymandering case. Its broad lanquage must be limited to its facts, an interdistrict violation in the consolidation of school districts, with the effects felt in each.!? An attempt 19mjlliken makes clear that "an inter- - 10a = district remedy might be in order * * * where district lines have been deliber- ately drawn on the basis of race." 606 F.2d at 228 (quoting Milliken, 418 U.S. at 745). Unlike the present case, Morrilton contains findings that clearly fall within the Milliken lanquage. We dealt in Morrilton with the consolidation of school districts in Conway County, Arkansas that created an all-black East Side District and a disproportionately white Morrilton District. The court sta- ted: The violation here is clearly inter- district in nature. East Side is almost entirely black and includes territory that would properly have been absorbed by the surrounding districts were it not for racial con- Siderations. The boundaries of the East Side District, and consequently, the houndaries of the other school districts in Conway County, were not neutrally drawn. Thus, the prohibi- tion in other cases * * * is not applicable here. Interdistrict relief is appropriate and necessary to remedy the constitutional violation. Id. (citations omitted). The court con- tinued: Here, the nature of the violation was the consolidation of school dis- tricts on the basis of race. * * * [T]he effects of that consolidation were manifested primarily in the boundaries and racial composition of Siew Pe - 7la - to imbue Morrilton with broader’ force disreqards not only its salient facts, but also the Seventh Circuit precedent it quotes: “If the state has contributed to the separation of the races, it has the obligation to remedy the constitutional violations. That remedy may include school districts which are its instrumen- talities and which were the product of the ‘ the Morrilton, Plumerville and East Side Districts. East Side is almost all black, and Morrilton is dispropor- tionately white. Id. at 229. Morrilton holds that the unconstitu- tional consolidation of school districts so aS to create an all-black district leaving others disproportionately white may properly be remedied through inter- district relief. To arque that Morrilton compels imposition of an interdistrict remedv on the innocent SSDs in this case ignores that it deals with racial qerry- manderina. - 14a = violation." Morrilton, 606 F.2d at 229 (quoting United States v. Board of School Commissioners, 573 F.2d 400, 410 (7th Cir.), cert. denied sub nom. Bowen vy. United States, 439 U.S. 824 (1978)). Here the district court clearly found that the SSDs were autonomous, not mere instrumen- talities of the State, and their bound- aries not the product of any constitution- al violation by the State. Despite Plaintiffs' urging, the language of Morrilton is limited to its facts, and does not reach the issues we face today. V. The Jenkins class argues that a dual housing violation, fueled by State enforcement of racially restricted cove- nants and felt in virtually every other - 73a - housing program in the three-county area touching lending, appraisal, and_ sales practices, effectively channelled black and white low-income families to separate communities. Such violation and effects, it arques, were interdistrict, and there- fore require the interdistrict remedy of consolidation. The Jenkins class further argues that as part and parcel of the State's dual housing market violations, there were constitutional violations by the LCRA and HAKC, which diverted blacks exclusively to the black areas within the KCMSD. The district court made ae general finding that not only is the evidence "blurred as to the cause and effect, there was no ‘careful delineation of the extent of the effect.'" Order of June 5, 1984 at - 74a - 96. It made specific findings that negate the existence of siqnificant interdistrict current effects in the SSDs. 29 As Milliken requires an interdistrict viola- tion causing a significant seqregative effect in another district, these findinas pose an insuperable barrier to aqranting interdistrict relief. The district court found that school district boundaries had not constrained black movement in any way, id. at 39, and no acts of the SSDs contained blacks in KCMSD or kept them out of the SSDs. Id. at 3. The absence of black schools in the defendant districts before Brown did not discourage black families from outside or within Missouri from moving to and 20The court also specifically found the converse. The district court found that no SSD had committed any constitutional violation that had interdistrict segreqga- tive effect in the KCMSD or any other ~- a - living in those districts. Id. at 18. The district court found that there was steady increase in black enrollments in the SSDs since 1968, and in 1980, 23,434 blacks resided outside the principal con- tiguous' area. Id. at 36-37. We have observed the increase in black enrollment in Hickman Mills, Center, Grandview, and Raytown. See note 9, supra. The court found that the substantial increases in the KCMSD black population were in large part due to the unusual eco- nomic and employment ramifications of the World Wars and intervening Depression. Id. ot 27. None of the SSDs were shown by the expert Dr. Tobin to have played any district. Order of June 5, 1984 at 18-19, 45, 48, 51, $4, 539, 67, 74, 78, 83, $i, and 95. - a - Siaqnificant role in housing matters or to have exerted any control whatsoever over the private decisions people made about where to live. Id. at 37-38. The district court made numerous findings con- cerning housing choices, economics, and job opportunities. Jenkins v. Missouri, 593 F. Supp. at 1490. In rejecting the expert testimony of Dr. Kane, the court nointed to the importance of job location, ethnic clustering, and personal pre- ference. Id. at 1491. These findings demonstrate the importance of personal choice,2! referred to by at least two courts as "voting with feet." See Riddick, 784 F.2d at 537; Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425, 1435 21one court observed that people move for a variety of reasons, including a desire to be with persons of the same race or religion. It specifically found that many blacks who moved to the suburbs did - a = (Sth Cir. 1983). Reqardinag the existence of racially restrictive covenants, stressed by the Jenkins class and by Judge Arnold in his concurring and dissenting opinion, the district court made it plain that the restrictive covenants have no- current effect in the SSDs. The district court found no evidence that the covenants were enforced by state courts following Shelley v. Kraemer, 334 U.S. 1 (1948). It recoaq- nized the tremendous housing growth in many suburban areas after 1948, when the so to enjoy a middle class environment rather than an intearated environment. Order of June 5, 1984 at 35. A substan- tial number of black families moved to the SSDs during and after the 1960s, many from inside the KCMSD. Id. at 41-42. There was testimony that crime and city riots were factors in housing choices. - 78a - covenants were a nullity. That blacks presently live in locations previously covered by restrictive covenants further undermines their sianificance. Order of June 5, 1984 at 39,22 These findings of the district court that we have outlined above deal with con- ditions or effects that would have been expected had there been an interdistrict effect in the SSDs flowing from tkousing violations committed by the State or other actors in KCMSD. Judge Arnold's concurring and dissent- ing opinion arques, as does the Jenkins class, that Evans v. Buchanan, 393 F, Supp. 428 (D.C. Del.), aff'd 423 U.S. 963 (1975), and United States v. Board of 22uith respect to the various districts, the court found that Fort Osage had had no covenants, Order of June 5, 1984 at 5l, that Grandview, Lee's Summit, and North Kansas City had very few covenants, id. at - 79a - School Commissioners, 637 F.2d 1101 (7th Cir.), cert. denied, 449 U.S. 838 (1980), hoth approved interdistrict remedies based in part upon housing discrimination prac- ticed by state actors. Post at 65.23 In Evans, the district court found that 53, 73, and 83, and that Independence and Liberty also had few such covenants. Id. at 66, 77. The district court found that the restrictive covenants had no effect in Rlue Sprinqs, id. at 44-45, and Park Hill, id. at 90. There was no evidence that covenants prevented blacks from moving into Independence, id. at 66, Lee's Summit, id. at 73, or Liberty, id. at 78, and there was no present effect “of past practices in preventing movement into Center, id. at 48, Hickman Mills, id. at 59, and Raytown, id at 94. There was no credible evidence “of housing discrimina- tion in North Kansas City that had substantial interdistrict effect and much of the development there occurred after the effects of the few covenants were mooted by Shelley, id. at 83, and similar development after Shelley eliminated the effect of such covenants in Grandview. Id. at 53. 23Roth cases dealt not only with the housing issue, but also contained strong findinas based upon boundary violations. See Part VI, infra. CE - 80a - qovernmental authorities had provided public housing almost exclusively within the confines of Wilmington and restricted the availability of private and public housing to blacks in suburban New Castle County. 393 F. Supp. at 435. In Board of School Commissioners, the Seventh Circuit affirmed a finding that all public housing in the county had been located within the boundaries of the Indianapolis’ public school district and this was the seqreqa- tive intent of state agencies.24 637 F.2d at 1110-11. In this case the district court find- ings are far different. There was no lack of balance between federally assisted housing within the KCMSD and the suburban 24on similar facts in United States v. Yonkers Board of Education, 624 F. Supp. 1276 (S.D.N.Y. 1985), decided after sub- mission of this case, a New York district court imposed an interdistrict remedy he ee oe ee OR Oo tee based on housing violations. The detailed findinas of the district court established a lenqthy chain of actions which were desiqned to and succeeded in concentrating the black population in southwest Yonkers and in maintaining east and northwest Yonkers as overwhelmingly white com- munities. In contrast to the facts pre- sented in this case, not one of Yonkers' subsidized housing projects for families was located in the overwhelmiragly white neighborhoods of the city's east and northwest sections. Sites for such pro- jects in white communities were repeatedly considered and rejected. Such action contributed siqnificantly to extreme seqreqation in Yonkers. Id. at 1364-65. More than 30 years of subsidized housing activity with a sizeable and chanaing qroup of city officials sharing respon- sibility was involved. Id. at 1369. Over that period, there was constant strong community opposition following proposals of sites, a political structure likely to make community opposition effective, and extreme consistency in sites in east Yonkers and other heavily white areas being rejected. Whatever the personnel, there was a common theme that racially influenced opposition to subsidized housing in certain areas of the city and acquiescence in that opposition by city officials. Id. at 1369-70. The court found that the extreme concentration of subsidized housing in southwest Yonkers was the result of a pattern and practice of racial discrimination by city offi- cials. Id. at 1373. - 82a - areas, as demonstrated by the 6,832 HUD-insured or subsidized multi-family units within KCMSD and 9,872 such units in the eleven SSDs. Jenkins v. Missouri, 593 F. Supp. at 1499. HUD efforts were desianed to insure that participating sec- tion 8 certificate-holders were aware that affordable housing was available throughout the entire community and that they were informed of their rights under the fair housing laws. Id. at 1500. The court pointed to the affirmative marketing efforts in the Parvin Estates area, located in predominantly white North Kansas City, which were never able to attract more than 12% minority residents. Id. The district court further found no evidence that the practices of HUD in site selection and approval for federally sub- - 83a - sidized multi-family housing had a substantial effect upon the racial make-up of schools in KCMSD. Id. at 1499. The findinqs contained in the analysis of HUD's liability also relate to LCRA and HAKC. The facts relied on to support the housing violations in Evans and Board of School Commissioners are directly contrary to those found in this case. These cases simply give no assistance to the argument that there have been constitutional viola- tions by housing actors having a signifi- cant seqreqative effect in the SSDs. Other findings on housing practices are siqnificant. The district court spe- cifically found that FHA appraisal prac- tices before 1950 had at most a de minimis effect on present racial housing patterns. - 84a - It examined LCRA practices and its role in administering urban renewal programs under the Housing Act of 1949. It found that HUD had investigated LCRA and issued a report in April 1972 finding discrimina- tion in LCRA's referral practices and in requirinag that such practices be ceased and reports filed. Failure to correct this led in June 1973 to refusal to fund the program and a cooperative agreement between HUD, LCRA, and the City of Kansas City by which the city assumed respon- sibility for relocation under the Act. The relocation report showed that during the period from 1971 to 1976, only 174 black families were relocated. Jenkins v. Missouri, 593 F. Supp. at 1497-98. Again, the finding of the district court concerns and is limited to intradistrict claims. re ee Sgn eo PR AD ah I ese BR Wh FS PRT lesen fee Wad he er Len ae es Se ee - 85a - This finding is not sufficient to justify remand to the district court for con- Sideration, as Judge Arnold suqgests, of what interdistrict effect may have resulted from such actions. The district court found that while the HAKC constructed seven family projects between 1952 and 1963 within the model cities or urban renewal areas, the loca- tion was in accordance with congressional acts and the assiqnment practices were approved by HUD. Id. at 1498-99. The court reviewed HUD policies and_ found expenditures to be balanced between KCMSD and the suburban areas. Id. at 1499. It further found no evidence that the prac- tices of HUD in site selection and appro- val for federally subsidized multi-family housing substantially affected the racial - 86a - make-up of schools within the KCMSD. Id. These findings clearly were made with reference to the claims against HUD. They do not apply to the housing practices in KCMSD. They belie the possibility of interdistrict effect occurring in the SSDs. Another weakness immediately is apparent in analyzing the Jenkins class' arguments in the context of the district court's findings. The activities of LCRA and HAKC to which attention is primarily pointed, the investigation and the change in practices, both occurred in the 1970's after KCMSD had experienced the sub- stantial increase in black school popula- tion. The exhibit relied upon by the district court in its findings demon- Strates that the KCMSD black population : * : % sf 4 ANC a a asl ah hg IR. hs Blt ee RS le Rg ih eR aD at Re rete Wie ea - 87a - was 18.9% in 1955-56, that it had grown to 30.7% in 1961-62, and had reached 50.2% in the 1970-71 school year. The substantial increase which resulted in the district becoming majority black thus had occurred before the particular events to which the Jenkins class points. To arque that alleqed LCRA and HAKC violations created these interdistrict effects simply iqnores logic. The court specifically found that KCMSD assignments of children to par- ticular schools had an _e intradistrict effect and were not influenced by any SSD. Further, these actions did not have a siqnificant effect on the enrollment in any SSD. Order of June 5, 1984 at 38,25 25chief Judge Lay's dissent devotes con- Siderable discussion to the findings of the district court in the intradistrict hearing concerning the acts of KCMSD. It refers to the movement of the black popu- - 88a - The court considered many non- qovernmental housing factors and rejected the theory that liability may be imposed upon the SSDs for being the recipients of people moving for iii reason. The court found that red-lining, steering, and block-busting practices by private real estate agents, which may have affected the racial composition of KCMSD, were not the actions of KCMSD or of any SSD and are beyond the control of any school district. lation from the central city in a south- east direction. See 593 F. Supp. at 1494. The dissent embarks upon factfindings of its own, however, when it argues that such movement “directly result[ed] in displacing whites into the SSDs." Chief Judge Lay's dissent at 98-99. This is directly contrary to the finding of the district court in its consideration of interdistrict liability, and the dissent makes no effort to consider these state- ments in a proper Rule 52(a) analysis. aw? Sota: BURIARE galling - 89a - The transition of neighborhoods from white to black and accompanying white flight existed in Kansas City since the 1940's, but no testimony linked the SSDs to the process. Id. at 41. Absent a nexus be- tween the conduct of the SSDs and the policies or practices of independent housing actors, the court would not hold the SSDs liable for racial imbalance. Id. at 42. Judge Arnold stresses the district court's findings that there is a dual housing market impacting blacks in the KCMSD and causing the public schools to swell in black enrollment, 593 F. Supp. at 1491, and that the State had encouraged racial discrimination by private indiv- iduals. Id. at 1503. The court went no further but commented that the question of - 90a - State liability would be close if it hinged solely on this encouragement of private discrimination. It then proceeded to base its finding against the State on the intentional creation of the dual school system in KCMSD and the failure to eradicate its vestiqes. The Jenkins class makes much of these statements by the district court. Nevertheless, they fall short of making a specific finding of a constitutional violation, and certainly make no finding of any interdistrict effect. That the findinqs are in the district court's separate opinion con- cerning intradistrict liability prevents extension of such findings to arquments regarding interdistrict effect in the SSDs. Thus, even accepting the Jenkins ~— a ed ee Te ee - 9la - class‘ arguments that the district court misread Milliken by improperly limiting its inquiry solely to whether the SSDs were guilty of committing constitutional violations, we conclude that the factual findings of the district court effectively foreclose findings of interdistrict effect in the SSDs flowing from constitutional violations with respect to housing that may have occurred in KCMSD, 26 It is, of course, evident from the findings that there were no constitutional violations in the SSDs. Under Milliken this answers the arquments made by the Jenkins class, as well as the further articulation in the arguments of KCMSD, and forecloses efforts to require the SSDs to be subject to the 26a recent article, Housing Discrimination as a Basis for Inter- District School Deseqreaqation Remedies, 93 Yale L.J. 340 (1983), flatly arques for the extension of housing as a basis for - 92a - claim for interdistrict relief, be it con- metropolitan school deseqregation remedies and as a means of overcoming the Milliken barriers. It outlines in some detail the use of this theory in various deseqreqa- tion cases, including this one. See id. at nn. 20 & 21. Its description of the limitations of this theory are of interest: By contrast, the housing approach is limited in two ways. It does not justify expansion of the remedy beyond the geographical area of operation of the housing authority or other govern- mental entity found quilty of consti- tutional violations. Further, the scope of the remedy is limited to the extent to which official housing discrimination demonstrably caused school segregation. Consequently, the housing approach is consistent with the agency principle that seeks to prevent local agents of the state from escaping participating in reme- dies for their own wronaqdoing. Id. at 347 (emphasis added) (footnotes omitted). There simply is no evidence in the record in this case that official housing discrimination caused school segregation and the findings of the district court as we have outlined above so demonstrate. ——=—S_- ~~ ob ne — | - 227a - acts with discriminatory intent that had significant segregative effects. However, to the extent the SSDs exhibited autonomy in deciding to provide inferior or no schools for blacks, under Milliken proof of autonomy here leads only to the conclu- sion that the SSDs did commit constitu- tional violations. Moreover, the lead opinion iqnores the uncontradicted fact that after the SSDs participated in pre-1954 segregation on an interdistrict level, they took no affirmative steps on a Similar interdistrict level to reverse the effects of those autonomously chosen edu- cational practices. Even if Milliken required proof of constitutional viola- tions by each individual SSD, which it does not, the district court erred in Failing to draw the obvious’7 inferences - 228a - from the uncontroverted evidence to find such violations in the “autonomous” acts of the SSDs. The result today, as the evidence at trial showed, is that KCMSD's student body is sixty-eight percent black whereas’ the Student population of the SSDs is only five percent black 2¢ Continuing Significant Interdistrict Effects My most fundamental objection to the majority's position, however, is its whole- sale affirmance of the district court's finding that to the extent any constitu- tional violations were committed by any of the defendants, the continuing seqreqative effects on the SSDs were de minimis and that inclusion of the SSDs in an inter- 12 Because Missouri mandated separate schools for blacks and whites until 1954, the current disparity between the percen- tage of blacks attending school in the - 229a - district remedy was therefore precluded. In concluding that the pre-1954 dual school system in which the SSDs par- ticipated has no continuing interdistrict effects, the district court found that despite the fact that only KCMSD provided SSDs and KCMSD should raise a rebuttable presumption that the de facto seqreqation that currently exists is the result of the prior constitutional violations. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971). The lead opinion arques that the Swann presumption that proof of prior de jure seqregqation coupled with a continuing racial imbalance establishes liability unless rebutted is inapplicable in interdistrict cases. To support this conclusion, the lead opinion notes that the Supreme Court did not apply the Swann presumption in Milliken. Ante at 24. Unlike this case, however, there was no allegation nor proof in Milliken that prior de jure segregation had inter- district effects. In any event, even if the Swann presumption does not apply to interdistrict cases, the plaintiffs pre- sented sufficient evidence that the constitutional violation of the SSDs have current interdistrict effects. - 230a - blacks in the Kansas City metropolitan area with any real educational oppor- tunities prior to 1954 as a direct result of the constitutional violations of the State, the KCMSD and the SSDs, _ those violations had but a de minimis effect on the housing choices of blacks prior to 1954. Such a finding is contrary to leqal precedent, many of the district court's own factual findings, and the plaintiffs' unrebutted expert and lay witness testi- mony and is clearly erroneous. In affirming as not clearly erroneous the district court's findings of de mini- mis continuing seqreqative effects on the SSDs from the KCMSD‘'s actions, the lead opinion follows the district covet in overlooking the weight of uncontradicted evidence in the record and the district Ot era - 23la - court's own findings that the KCMSD's perpetuation of segreqated schools within the KCMSD caused a mass concentration of blacks in an area where a_e substantial number of whites lived. This in turn resulted in displacement of whites, who moved to or transferred into the SSDs. The evidence produced at trial jemonstrated that by a variety of affirm- ative official acts, the KCMSD sought to preserve the all-white character of some its schools at the expense of the schools in the southeast corridor of Kansas City. There, KCMSD' followed a policy of “integration and stabilization." \s part of this piecemeal deseqreaqation nolicy, KCMSD imp lemented attendance zones, intact busing, liberal transfers, neighborhood school policies, and faculty - 232a - transfers which had seqreqative instead of inteqrative effects. One of the most Significant of these was the creation of shiftinq and optional attendance zones. Evidence at trial indicated that’ the attendance zone choices were based on Troost, a north/south street that tradi- tionally had divided white neighborhoods west of Troost from the neiaqhborhoods to the east which also contained many whites but in which most of the blacks in Kansas City lived. Testimony at trial indicated that despite overcrowding in schools east of Troost and underuse of schools west of Troost, attendance zones did not traverse Troost until 1976. Moreover, testimony at trial established and the district court itself found that as the population of Kansas City changed in the years following : : : - ' a - 233a - Brown v. Board of Educ., 349 U.S. 294 (1955), KCMSD “made frequent shifts in the attendance areas of its schools" with the result of removing white sections from the western-most portions of the racially transitional areas and attaching them to all-white zones further west, shifts which, coupled with a liberal transfer policy, “allowed attendance patterns to continue on a seqreqated basis." Jenkins, 593 F. Supp. at 1494. The district court also found that "as the black population expanded from the central city in a southeast direction, neighborhoods~ and schools experienced a racial transition. As blacks moved, or were bused to the schools in the [southeast] area, whites moved out." Id. 13(citations omitted). l30ther examples of KCMSD's segreqative policies include the transfer of its best and most experienced black teachers to - 234a - As a result of these policies, blacks were bused to or moved to the southeast area of Kansas City and whites moved to the neiqhboring SSDs. As the black popu- lation of Kansas City expanded to the southeast, KCMSD chose to operate some completely seqreqated schools and _ some inteqrated ones. The result of KCMSD's official school policies was to make the KCMSD "blacker" and the SSDs "whiter," actions which have been found by courts before to be constitutional violations for which interdistrict relief is appropriate. white schools, leaving less capable teachers in black and changing schools and accelerating those schools' transition to all-black schools. Too, as the district court found, the liberal transfer policy allowed "whites living in racially tran- Sitional neiqhborhoods in Kansas City to transfer * * * to whiter schools." Jenkins, 593 F. Supp. at 1493. - 235a - Cf. Hoots v. Pennsylvania, 672 F.2d 1107, 1121 (3d Cir.), cert. denied, 459 U.S. 824 (1982) (quoting Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 266 (S.D. Ohio 1977), aff'd, 443 U.S. 449 (1979)) ("Actions and omissions by public offi- cials which tend to make black schools blacker necessarily have the reciprocal effect of making white schools whiter.") (citation omitted). See Evans Ve Buchanan, 393 F. Supp. 428, 436 and n.15 (D. Del. 1975) (presence of propor- tionately more black children in a city school than in the neiqhborhood served by the school likely encouraged white fami- lies to move to nearby suburbs, where "black students were barely present" in the school systems). It is evident that the seqregative - 236a - policies perpetuated by KCMSD caused a qreater concentration of blacks and black schools in the southeast corridor, directly resulting in displacing whites into the SSDs.14 In this regard, the district court's own findings are at least contradictory and at most support’ the grant of interdistrict relief based on continuing effects in the SSDs from the KCMSD's’~ policies. The district court recognized that the KCMSD had chosen to operate some completely segregated schools and some integrated ones in the district 14The lead opinion asserts that this statement is an example of "appellate factfinding." To the contrary, this state- ment is based on the district court's own observations as to what actually occurred in the Kansas City metropolitan area due to institutional segregation. See Jenkins, 593 F. Supp. at 1493-94, ES & tee Din Rh Sout REE RA Die oe cas ate pratt no malta - 2218 = and that as of 1977, twenty-five one-race schools under the pre-1954 dual system remained ninety percent or more of the Same race. See Jenkins, 593 F. Supp. at #1492. Moreover, in a Supplemental order, of which we take judicial notice, that enjoined for one year the property tax rollback provided under a Missouri sta- tute, the district court summarized its findings in this case to date by stating: The Court has’ found that segregated schools, a constitu- tional violation, has led to white flight from the KCMSD to suburban districts, large number of students leaving the schools of Kansas City and attending pri- vate schools and that it has caused a system wide reduction in student achievement in the schools of KCMSD. It has also found that by improving the quality of education in KCMSD, it will enhance the appeal of the school system, thus giving it a chance to retain its- present white enrollment and also encourage whites in private and suburban schools to enroll in its . - 238a - schools. As set forth in its order of June 14, 1985, the basic remedial principle in school desegqreaation cases, is that "the scope of the remedy is determined by the nature and extent of the constitutional violation." Milliken v. Bradley, 418 U.S. 717 (1974). Jenkins v. State of Mo., No. 77-0420-CV- W-4, slip. op. at 1-2 (W.D. Mo. August 25, 1986). Not only does this’ language further support the view that the district court did recoanize that the effects on the SSDs from the segregative policies of the KCMSD were more than de minimis, but it illustrates that the district court's refusal to grant interdistrict relief was clearly erroneous and contradictory to its own findings from the record.!5 That the availability of schools 15tt is conceivable that the district court found nothing inconsistent in so holding, because it labored throughout these proceedings under the miscomprehen- - 239a - influences housing choices iS a common sense proposition. After a fifty-year period during which the SSDs provided no schools or inadequate schools for blacks, it is hardly surprising that black fami- lies living in the SSDs and those moving to the Kansas City area from other states chose to move to the KCMSD, where adequate educational facilities were available. As the district court notes in its opinion on sion that Milliken requires each indivi- dual SSD to be a constitutional violator. The lead opinion now urges that the August 25, 1986 opinion was merely a general order which does not contradict the district court's earlier, more lengthy orders. Ante at 25 n.17. This statement is at odds not only with the August order's plain lanquage, but also with the objections to that August order made to this court by the SSDs on the grounds that the order was entered after the SSDs were no longer parties to the case and that its language was prejudicial to them. intradistrict liability, the nexus be ct x @ 0?) >) avallability of schools and housing pat- terns has been recoqnized by the Supr » (D 3 4) Court. see Jenkins, 593 F. Supp. at 149] Juotina Swann, 402 U.S. at 20-21). This nexu: has also been recoqnized by this court in the context of interdistrict cases. see, e.g., Little Rock, 778 F.2d ee BO ae Oe The Little Rock case S par- ticularly instructive in tnat, under fact very similar to this case, we ipheld a distric court finding that black families from other school Jistricts were drawn to the Little Rock schoo! Vistrict preci because it was the only distr vided blacks in the area with substantia] educational opportunities. LGe 8-432. The district court's finding in Little Rock that school availability influences aH 4 & ¥Y 2 bis, sb - >» a =) . eT — — 1 + | r . =) + — = - ~ - + + - » 3 ‘ rm, ~ a ~+ . rOD 30a . . ao & 8 / Pewee ae | A > ’ + ey ya J rarh scr ‘ne And : - 7 ae, he AS ve I¢ ~k 9 — v= f=) "ramtiry + tr ne (rh et a a ae ~ >» >| —™ - ) 4 yr art i ” . r 1(TQ > mk ,rhHIK Miec -_ r ’ r + e . y ms . ‘ > ~ Fana y - ‘ 4 7 = > ++ _maO ne r) 7 r) roanmardinn 401 44 J + } = t " e . Aa rT Q ale! | i ] ~ - | - = > i alan manrt 2 1? TU ~ | , ar ag ar = ~=b , . - 242a - stated that "lolften jobs would pull migrants to the city and then availability of schools would influence, more specifi- cally, what housing choice would be made within the city." Jenkins, 593 F. Supp. at 1490. In finding that the current dual housing market affected blacks in the KCMSD, the court aqain referred to the "inextricable connection" between schools and housina. Jenkins, 593 F. Supp. at 1491, It is difficult to see how school availability would be an important factor in making housing choices within a Single School district, but would not influence housing decisions within the metropolitan area in general. In support f their arqument that the constitutional] Violations here produced Significant interdistrict effects, plain- - 243a - tiffs produced statistics showing that although the school population in the three-county area, excludinq KCMSD, was between 7.19% and 8.7% black in 1881, the black school-aged population in the same rea had steadily declined to between .39% ind 1.5% by 1954. At the same time, the black population in KCMSD had risen from 2.8% in 1900 to 14.0% in 1954. Plaintiffs sroduced several expert witnesses on edu- ~ation and housing pattei..s who testified that the inability of blacks to provide their children with an education in the SSDs caused many black families to move to KCMSD, the only district providing any real educational opportunities for blacks in the Kansas City metropolitan area. The shsence of schools for blacks in the SSDs, the experts testified, also influenced the —— - 244a - housing choices Of blacks moving into the Kansas City metropolitan area from other States, both because there would be less chain migration to the SSDs as the existing black Population in the SSDs declined and because accessible education is an important factor for blacks, as for all people, in making housing choices. Plaintiffs also Produced the testimony of many blacks who had lived in the SSDs Prior to 1954 but had had to travel long distances or move to KCMSD itself to receive an education. Other evidence included Pre-1954 school board reports and Other documents Stating that the absence of educational opportunitites for blacks in rural areas caused by the dual schoo] System was causing many black families to leave rural areas for laraqe Cities, 16 l6see infra note 18, sntraslaniedeeiniaee - 245a - Notwithstanding plaintiffs" extensive evidence, the district court conc luded that the absence of educational oppor- tunity for blacks in the SSDs Prior to 1954 had a de minimis effect on current housing patterns and school seqreqation in the Kansas City metropolitan area. The lead opinion merely reasserts the district courts findings and concludes that they ire not clearly erroneous. Close examina- tion of the district court's opinion, however, reveals that its reasons for rejecting the plaintiffs’ evidence as de minimis ring hollow. For example, the district court found that the increase in the black population in KCMSD prior to 1954 was attributable to jobs and employ- ment opportunities available in the KCMSD area, rather than to the availablility of - 246a - schools. Jenkins, June 5 opinion at 15-16 and 18. No one disputes that economic opportunity was a major factor in drawing blacks, especially from the South, to the Kansas City metropolitan area. The plain- tiffs' argument, however, was not that school availability to the exclusion of economic opportunity drew blacks to KCMSD. Rather, plaintiffs arqued that once blacks were drawn to the Kansas City area for whatever factors, includinq economics, school availability caused many blacks to settle in KCMSD rather than in the SSDs. This argument remains unrefuted, and in fact is substantiated by the district court's own findings reqardinq the nexus between school availability and housing patterns. !?7 See Jenkins, 593 F. Supp. at 17The court also erred in rejecting much of the plaintiffs otherwise uncontroverted expert testimony regarding the effect of 3 ; % % 4 : ‘ a ———e—nr ee - 24/a - 149] > The district court also failed to assess the importance rf the relative Jepopulation of blacks from the SSDs prior +> 1954 with respect to the present racial ‘omposition of the Kansas City area. In rejectina the Nlaintiffs' evidence rf jepopulation, the district court noted that although the black Nopulation in the defendants' constitutional violations on the residential choices of blacks in the Kansas City metropolitan area. Much of this testimony, given by Dr. James D. Anderson, a leading scholar and historian, was uncontradicted and based on interpre- tation of public records. See supra note ’, This evidence was highly probative, ind it was wholly arbitrary for the court to reject it and inject its own inferen- "eS. Moreover, it is especially crucial ‘n a case of this nature to give qreat ‘onsideration to the testimony of histori- “al experts where the theory to be proved sccurred lonq ago and few witneses are alive to testify. - 248a - three-county area, excluding KCMSD, decreased by only approximately 837 from 1910 to 1960, the black population in KCMSD increased by more than 45,000 during this same period. Thus, the district court concluded, the impact of that movement on the black enumeration in KCMSD- was insiqnificant. Jenkins, June 5 opinion at 15-16. The effect of the decline of the black population living in the SSDs prior to 1954, however, is not limited to those black families that left the SSDs_ for KCMSD because of the lack of schools. Instead, as the plaintiffs' evidence demonstrated, the resulting lack of blacks in the SSDs in turn caused blacks moving to the Kansas City area from the South to live in the KCMSD, where there was a growing black population, rather than in - 249a - the overwhelmingly white and hostile SSDs. Not only did the district court impro- nerly discredit the Hlaintiffs' evidence, it also omitted any reference to the evi- tence that most stronqly supported plain- tiffs‘ claims. For example, the nslaintiffs submitted several reports pre-~ sared by the superintendent xf public ehools in Missouri during the 1920s and 1930s stating that the absence of black schools in rural areas was sausing black families to migrate to the large a cities.'°® ‘ontemporaneous ‘o¢ as these, prepared by school officials at the time black jepopulation of rural areas was occurring in Missouri, are highly pro- hative of the link between school availa- l8see, e.a.e, 1929 Report »9— Missouri State Superintendent of Public Schools at 122-23 (“hiah school opportunity for (Nleqro children is very limited" other than in St. Louis and Kansas City; "84 - 250a - bility and housing patterns on an interdistrict basis. Although the district court recoqnized this link, see Jenkins, 593 F. Supp. at 1490 ("{u]ndeniably, some blacks moved to districts, including the KCMSD, that pro- vided black schools"), it largely discounted the plain inferences to. be drawn from it. The district court rejected the plain- tiffs' statistical evidence regarding the percent of all the high school education in the state" for blacks is provided in these cities although "less than half the ([Nlegro population in the state" lives there; in light of poor education for blacks in areas outside the cities, "the pronounced drift of the [N]legro population away from the farm to the city is quite understandable"); 1924 Report at 197 ("({mjany [blacks in rural areas] leave to seek better educational facilities for their children"). - 25la - number of black students in the SSDs who transfered to KCMSD prior to 1954 as "de minimis." It is true that the number of transfers actually shown to have occurred during this period, anywhere from 251 to 600, appears small. These examples, however, were presented only as represen- tative of the effects of the dual school system on school attendance and housing patterns in the Kansas City area, not as an exhaustive enumeration. The plain- tiffs' inability to produce more accurate statistical evidence of interdistrict transfers is not surprising in light of the tneankiown to endiavednnd black stu- dents and the conceded unavailability of interdistrict transfer records, for which the SSDs are at least partially respon- sible. The SSDs had an incentive to - 252a - underreport the number of black school children in their districts because state law excused them from their duty to pro- vide a school for blacks if the number of black school children in the district fell below a certain number. Black students from the SSDs had an incentive to be counted as residents of the KCMSD rather than as residents of the SSDs because they could thereby avoid paying tuition to attend KCMSD before the SSDs began to reimburse them for tuition in the 1930s and 1940s. It is difficult to imagine what level of Statistical proof would satisfy the district court and the lead opinion. Evidently, they would he satisfied only if the plaintiffs had paraded before the district court every black student who had transfered from the - 253a - SSDs to KCMSD or who had moved from the SSDs to KCMSD prior to 1954. Such a Stringent level of proof has never been required. See, e.g-, Board of School Comm'rs., 637 F.2d at 1113-14. Even assuming the numbers relied upon by the district court are cenmaeee and controlling, it requires little additional evidence to buttress the common sense pro- position that blacks would be deterred from migrating to an overwhelmingly white school district where no black schools existed, where arbitrary policies or school transfers placed the primary burden of educational expenses on many. black families, and where racial covenants pre- vented home purchases. To fail to acknowledge that blacks were deterred from living in the SSDs is to ignore the - 254a - obvious. Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367 (1977) (in reversing denial of Title VII relief, the Supreme Court stated that to fail to account for non-applicants being deterred from even applying for employment would mean that "[v]lictims of qross and pervasive discrimination could be denied relief precisely because the unlawful practices had been Te) successful"). Perhaps most disturbing, however, is the district court's repeated reliance on the increasing black enrollment in the SSDs after 1954 as an indication that the prior constitutional violations of the SSDs have no current interdistrict segreqative effects. Tie district court noted, for example, that black enrollment in Hickman Mills : a 4 : 8 - 255a - increased from twenty-nine black students in 1967 to 1,571 in 1983, and that black enrollment in Park Hill has increased by 110 students since 1976. Jenkins, June 5 opinion at 56, 88. That black enrollment in the SSDs has increased since the 1960s may indicate that barriers to black move- ment into the SSDs are declining over time. Far from indicating that there are no current significant seaqregative effects of the SSDs' past conduct, however, this increase in black enrollment in the SSDs Since Brown v. Board of Educ. is conclu- sive evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. In light of the compellina evidence presented by the plaintiffs that the absence of schools for blacks in the SSDs prior to - 256a - 1954 had a significant effect on housing choices made by blacks during this time, the district court's conclusion that the effects were de minimis is clearly not Supported by the record. Affirmative Duty of State of Missouri, KCMSD, and the SSDs It is clear that the SSDs, as well as the State of Missouri and KCMSD, have all failed to fulfill their affirmative duty under Brown v. Board of Educ. to eliminate the vestiges of their prior segregative policies and that significant inter- district effects of these policies are still evident in the Kansas City metropol- itan area. The district court, now affirmed by this court, held that because all of the SSDs had opened the doors of © peep Bite” PON - 49/8 - their all-white schools to blacks in 1960, the SSDs had discharged their duty under Brown. Courts have long recognized, however, that racially neutral policies are qenerally ineffective to counteract the continuing effects of past seqreaqative practices, especially where such seareaa- tion has influenced housing patterns. v. Beasley, 389 F.2d 178, 190 (8th Cir. 1968). The district court itself recognized the ineffectiveness of racially neutral policies after a long period of intentionally seqregative policies in its opinion on intradistrict liability. See Jenkins, 593 F. Supp. at 1490-95, The reason such racially-neutral plans are ineffective is plain. A racially neutral policy, such as a neighborhood’ school - 258a - policy, will Simply not correct the effects of many vears during which black schools were located in only certain parts of a school district, causing black fami- lies to settle in those areas. Similarly, to merely open to blacks the doors of schools in virtually all-white districts Simply fails to eradicate the effects of many years when those districts provided blacks with no schools or at best inade- quate schools, causing black families already living in those districts to leave and discouraging black families newly moving into the area from settling in those districts. It is precisely because of this continuing affirmative duty under Brown that pre-1954 evidence is relevant. Conclusion The effects of the SSDs' nre-1954 -onstitutional violations and their ‘on- tinuing failure to fulfill their luty nder Brown are still evident in the Kansas City metropolitan area today. Fighty-seven percent of the black students n the Kansas City metropolitan area are »>ducated in KCMSD; eiqhty-nine percent of the white students attend school in one of >oncluded that the pre-1954 conduct yf seqreaqated schools and housing practiced by the SSDs did not significantly contri- bute to the current racial imbalance in itv metropolitan area. To support this conclusion, the district uurt noted that KCMSD was only 18.9 per- “ent black in 1954-55. The fact that the major increase in the black population in - 260a - KCMSD yccurred ifter 1954, said the district court, is str na evi lence that the current racial] composition >f the ns Kansas lity area was caused by factors other than the nre-1954 jual school system. See, @.Ge, Jenkins, June 5 opinion at 41-42, ndeniably, many factors have contributed to the enormously l1isparate racial composition of the student hodies Of KCMSD and the SSDs. Housing policies of federal, state, and local agencies have contributed to the dual housing market vw nC that exists in the Kansas ity metro- politan area, which in turn has contri- buted to the de facto dual school system that exists today. Ineffective integra- tion policies of KCMSD during the 1960s and 1970s caused an exodus of whites from - 26la - KCMSD to the SSDs.!9 The evidence at trial showed that the continuing influx of blacks to the Kansas City metropolitan area from the South and_ the _ higher birthrate amonq blacks have also contri- buted to the higher percentage of blacks in KCMSD. To the extent that these fac- tors have magnified the effects on the SSDs of the pre-1954 conduct of state, the KCMSD, and the SSDs and those effects have not been affirmatively addressed, all the defendants are at least partially to blame. Had the SSDs not contributed to the depopulation of blacks from those areas by failing to provide schools for blacks, the higher birthrate among blacks would have presumably also increased the percentage 19 The lead opinion's implication that interdistrict relief here would triaqger white flight to Kansas, ante at 57, is irrelevant in determining whether inter- district relief is appropriate. See, e.q., - 262a - of blacks living in the SSDs. Similarly, had the SSDs' policies not contributed to the depopulation of blacks from those areas, more blacks moving into the Kansas City metropolitan area from the South would have settled in the SSDs rather than in KCMSD. The lead opinion agrees with the state and the SSDs, who emphasize that the plaintiffs’ case rests entirely on racial disparities, that proof of disparate impact on the SSDs is not enough to hold the SSDs liable and and provide the basis of interdistrict relief. See Columbus Bd. United States v. Board of School Comm'rs., 503 F.2d 68, 80 (7th Cir. 1974) (Seventh Circuit reversed district court order for interdistrict relief, but found prediction of “white flight” an unacceptable reason for failing to desegregate schools). - 263a - of Educ. v. Penick, 443 U.S. 449 (1979). I have no quarrel with that premise. But as Penick recognizes, in Swann intra- district relief was premised on a presump- tion of continuing racial imbalance within a unitary district. See Penick, 443 U.S. at 400. Here the racial imbalance is clear evidence of continuing segreqa- tion following a pre-1954 de jure policy. It is not necessary to switch the burden of proof where there is overwhelming evi- dence of violations and effects throughout the system. Moreover, the lead opinion is also incorrect in affirming the district court's reliance on the mere passage of time as exculpating the SSDs. The lapse of decades, without any showing of affirm- ative steps taken to reverse the invi- dious effects of de jure seqregation, reinforces the broad scope of the effects of the defendants' constitutional viola- tions here. Nor is the lead opinion correct in affirming the district court's rejection of the overall thrust of plain- tiff's proof of interdistrict effects on the grounds that a series of de minimis violations cannot be aqgregated to produce a finding of a constitutional violation. See, Cee Dayton Bd. of Educ. Ve Brinkman, 433 U.S. 406, 413 (1977). Here, neither the violations found proved by the district court nor the effects of those violations are insiqificant. ~. See, e.q., Jenkins, 593 F. Supp. at 1503 (finding that presence of dual schools had impor- tant segregqative effects throughout the Kansas City metropolitan area). The pre- - 265a - mises on re the majority bases its affirmance of the district court's conclusion of de minimis continuing segre- gqative effects on the SSDs have no basis in law nor in the facts as otherwise found by the district court and as developed at trial. Although the lead opinion suggests to the contrary, this case differs notably from Milliken and this circuit's Little Rock case in that it does not present on appeal an issue of whether the only appropriate remedy is consolidation of the entire metropolitan area's school districts. 2° The plaintiffs andthe KCMSD seek alternative forms of inter- district relief as well as consolidation 201s we observed in Little Rock, in Milliken it was proposed that the remedy include consolidation of one city district with fifty-three suburban districts in three counties where there was no evidence - 266a - aS a means to achieve an integrated school system. And even if the requested relief includes consolidation, relief can be tailored by the district court itself or as directed by this court to fit the constitutional violations. AS was true in the Little Rock case, the automony of the city and suburban school districts can be preserved concurrent with mandated inter- district relief. As we stated in Liddell Vil: [Rlelating the remedy to the violation pursuant to Milliken II [443 U.S. 267 (1977)] does not require a finding that each edu- cational program at issue has in the past been “infected with the discriminatory bias of a segre- gated school system." * * * It is Sufficient to determine that the in the record indicating that the fifty- four districts were closely interrelated geographically, economically, politically Or culturally as are the districts in this case. Little Rock, 778 F.2d at 429. - 267a - remedial program is directed to cure the general condition offending the Constitution. Did@ell VII, 731 F.2d at 1315-16 n.18 (citation omitted). The relief sought here is narrowly tailored to the par- ticular situation and responsive to the Supreme Court's concern in: Milliken that the "nature of the violation determine (s] the scope of the remedy." Milliken, 418 U.S. at 738 (citation omitted). The quarrel I have with the intra- district relief mandated by the district court, as modified by the lead opinion, is that the intradistrict programs will do little to integrate the metropolitan school system. The lead opinion calls for improved facilities and quality education programs, requires the state to pay its - 268a - share of the cost of those programs, and authorizes the district court to order a tax increase if that alternative is necessary to enable the school district to bear its share of the cost of the mandated programs. This remedy is fine as far as it goes; however, it falls far short of the relief that should be required under the facts of this case.2! It is hoped that at the very least the magnet school component and the voluntary interdistrict transfer plan, if implemented, will be of some help in integrating the district. In my view, however, these interdistrict 2laithough for the reasons stated herein we stand in dissent, we nonetheless agree with Judge Ross' statement as to the likely effects of refusal by the Kansas City metropolitan school districts to par- ticipate now oc in the future in any cross-district programs. } i a s ; : ¢ 5) J , 2, & ts 4 | ¢ 4 53 4 & td ¥. +2 | - 269a - programs should have been mandated already. To summarize, I would hold that the district court erred in interpreting Milliken v. Bradley, 418 U.S. 717 (1974), to preclude interdistrict relief. Under Milliken, properly interpreted, the district court's own factual findings with regard to the constitutional violations of the state and KCMSD, especially with regard to the significant link between housing patterns and school availability in the Kansas City metropolitan area, Strongly suggest that the plaintiffs are entitled to an interdistrict remedy. Because the district court clearly erred in finding that the SSDs committed no constitutional violations with continuing Significant interdistrict effects, the - 270a - district court's dismissal of the SSDs Should be reversed and remanded for further proceedings. If on remand, after each of the SSDs have had an opportunity to present evidence, it remains unrebutted that the acts of the state, the KCMSD, or any of the SSDs have a continuing inter- district effect, those SSDs which the district court determines to be within the violations' effects should be ordered to participate in an interdistrict remedy, such aS a mandatory interdistrict transfer program, narrowly tailored to remedy the constitutional violations proved here. The case should be reversed and remanded for reconsideration in light of Milliken v. Bradley, and the SSDs and HUD should be joined to determine the extent of their liability. Attest: CLERK, U S. COURT OF APPEALS BALLS », FIGHTH CIRCUIT. - £414aa = United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 85-1765 No. 85-1949 No. 85-1974 No. 85-2077 A ek | Appeal from the United States District Court for the Western District of Missouri Kalima Jenkins, et al., Appellants, Ve State of Missouri, et al, 7 ee + ee Be 8 Appellees, Filed: Februar 5, 1987 ary 9, 1987 ORDER The motions for rehearing of the Jenkins Class and the Kansas City, - 273a - Missouri School District are denied. Both motions raise the issue of the suburban school districts’ refusal to participate in voluntary interdistrict plan and arque that the refusals evidence discriminatory intent. These are issues to be raised in the district court in the first instance. Ovr denial of the motions for rehearing does not foreclose the assertion of such claims in the district court. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. - 274a - IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION KALIMA JENKINS, et al.,) ) Plaintiffs, ) ) VS. ) No. 77-0420-CV-wW-4 ) Filed ) June 5, 1984 STATE OF MISSOURI, ) et les ) ) ) Defendants. GENERAL MEMORANDUM AND ORDER Background This school desegregation case was filed in 1977 by the Kansas City Missouri School District (KCMSD), its school board and superintendent, and students of the KCMSD., Plaintiffs sought a metropolitan deseqreqation plan in the greater Kansas City area encompassing two states and re —- h — ate boards of education, stricts and three federal aintiffs alleged the numerous iled t carry Out their tie to sradicate segregqat tropolitar 1rea hav ntributed t seq, at yr by serted actions. In October 6, 1978 the Cour ie Kansas efendant for lack ctior ind ealiqned the _ MK jlefendant. see, 460 F.Supp. 42 18). Plaintift cl l childr ended complaint » May 18, lefendants Mi irl, its ication, hirteer Miss stricts inc] nq the K ree federa aicencie seekina (=) seven countie states of Named as Missouri and nineteen defendants schoo Ww e r f 7 their agencies. defendants affirmative ion ; i irris- as 5 | ~D. Mo. led an naming ard of hool P and poli- - 276a - tan desegregation and relief from the segregated conditions in the KCMSD. On July 3, 1979 the KCMSD filed a cross-claim against the state of Missouri alleging it failed to carry out its affirmative duty to eradicate the vestiges of its pre-1954 dual school system. Before the trial to the Court com- menced on October 31, 1983, the Raymore-Peculiar School District and the United States Department of Transportation were dismissed by stipulation. On the 64th day of trial, March 6, 1984, after offering over 2,100 exhibits, calling over 140 witnesses and desiaqnating over 10,000 pages of depositions, plain- tiffs rested. (See Tr. pp. 101-16,372). At the close of plaintiffs‘ case and before the KCMSD presented evidence on its cross-claim against the state, all defen- - 277a - dants except the KCMSD moved for dismissal pursuant to Rule 41(b), Fed.R.Civ.P. This memorandum embodies findings applicable to all suburban school districts, an overview of plaintiffs' theories, and the Court's conclusions of law. Findings of fact notable to each district are in separate sections. References to the defendants in this order, unless otherwise indicated, refer to the suburban school district defendants. The Court has reviewed the entire record, and has reached its judgment after consideration of the live testimony, the demeanor, believability and credibility of the witnesses, all of the exhibits, the designated depositions and interrogatory answers filed by plaintiffs. In addition, the Court took judicial notice from time to time of various matters and has con- - 278a - Sidered all such matters in reaching its judgment. The Court has also reviewed Plaintiffs' offers made both on the record and in writing and concludes there is no credible evidence that would alter the judgment rendered herein. Even considering all the exhibits which were not admitted but merely received for the record, the Court still concludes there is no credible or substan- tial evidence of a constitutional viola- tion by these SSDs. A study of plaintiffs' witnesses testimony both at trial and by deposition reveals that none identified any acts of the SSDs done with the intent to discrimi- nate on the basis of race, to contain blacks in the KCMSD, or to keep blacks out of the SSDs. Witness after witness, including witnesses who had been actively - 279a - involved in the promotion of civil rights, testified that they knew of no acts by the SSDs that were done with a discriminatory intent. (See, e.qe, Lucille Bluford (Editor of the Kansas City Call, Kansas City’s leading black newspaper ) (Tr. 3125, 3127, 3129); Dr. Edward Fields (lonqtime black KCMSD administrator (Tes 2076-77); James McCreary (longtime KCMSD black administrator) (Tr. 13,743); Joyce Stark (KCMSD School Board _ President) (Depo. at 111-12, 124-125, 150, 181); and Robert Wheeler (KCMSD black superinten- dent) (Depo. at 21-22, 24, 29-30, 41, 49). Procedural Posture The Court deferred ruling the Rule 41(b) motions of the State of Missouri and HUD. Because of this ruling, Missouri commenced its defense on April 2 and con- - 280a - tinued until April 18, 1984. When the case resumed on May 7, HUD began its defense. In regard to HEW,* the motion was deferred on April 2 to give the Court an opportunity to more fully assess plain- tiffs' evidence aqainst it. After due consideration, and before any defense by the federal government, the Court on April 18 granted HEW's Rule 41(b) motion. Those findings of fact and conclusions of law will be set forth in a separate order. For the purposes of the Rule 41(b) motions, "“[t]he Court is not to make any *The Court realizes HEW was dismantled by Congress in 1979 and was succeeded by Health and Human Services and the Department of Education. See, 20 U.S.C. §§ 3401-3510 (1979). However, because HEW, not the Dept. of Education, is the subject of plaintiffs' allegations, the Court will continue to refer to the agency as HEW. _———————ee special inferences in the plaintiff's favor mor -concern itself with whether plaintiff has made out a prima facie case. Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies." 9 C. Wright & A. Miller, Federal Practice and Procedure § 2371 at 224-25 (1971). The Court has made detailed findings of fact in support of its judgment, see Rule 52, Fed.R.Civ P., and has applied the standards set forth in Shull v. Dain, Kalman & Quail, Inc., 561 F.2d 152, 155 (8th Cir. 1977), cert. denied, 434 U.S. 1086 (1978) The Court in Shull declared, "The Gistrict court may find the facts itself and may render judgment against the plaintiff if the Court considers’ that plaintiff has not made out a case, and if the district court sustains the Rule 41(b) - 282a - motion, its findings will not be reversed on appeal unless clearly erroneous." Id. See also, Lang v. Cone, 542 F.2d 751, 754 (8th Cir. 1976). Based on these stan- dards, the Court finds that plaintiffs have not proven a case against any of the suburban school district defendants. Because the Court must make specific fin- dings as directed in Rule 52, Fed.R.Civ.P., and to aid in appellate review, Lora v. Board of Education, 623 F.2d 248, 251 (2d Cir. 1980), it has made page citations to the 65-volume transcript and 130 depositions. All defendants except the KCMSD filed Ruie 41(b) motions at the close of plain- tiffs' case, and the Court's decision regarding the SSDs was entered before any defense was initiated. The Court did proceed, before a recess, with the KCMSD's ies : pte, Bnd te bus fase 2 ite alg a PP EN ee ae oe ae! aptita Rurea hk SAN oc Sra act a a cab Pa, Th Ae eee Pe eee eee Dyes: - 283a - cross-claim against the State of Missouri, but with the understanding that "once plaintiffs rested, they rested." (See, e.g-, Tr. 13,859). Despite the Court's clear pronouncement that none of the evi- dence adduced during the cross-claim would be considered in ruling the 41(b) motions, plaintiffs repeatedly rose during the pre- sentation of evidence to "join in the offer" for support of its case in chief. Even if the Court were to consider the evidence presented by the KCMSD in its cross-claim, there was nothing in that evidence that would aid plaintiffs’ case against the SSDs. That evidence by the KCMSD was not persuasive to the Court insofar as it was arguably relevant to the suburban school districts. Theories Plaintiffs' theories involving’ the - 284a - SSDs are three-fold: first, that the SSDs, aS agents of the state, were quilty of operating a reqional system of segre- gated 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. Essentially, plaintiffs seek the realignment or consolidation of the existing KCMSD and surrounding SSDs, which would purportedly produce an integrated educational environment for each child attending school in the KCMSD and Surrounding school districts. These theories, when considered in light of the - 285a - evidence and the prevailing legal stan- dards, must be rejected. Because this is an interdistrict case, all the evidence comprising this volumi- nous record must be weighed by that stan- dard. Intradistrict cases are inapplicable. The linchpin of an inter- district case, as declared by the Supreme Court, is whether there has been a racially discriminatory act by each defen- dant that substantially caused segreqation in another district. Milliken v. Bradley. 418 U.S. 717, 745 (1974) (Milliken I). Boundaries Plaintiffs seek to racially balance the public school population in the metro- politan area. As Milliken explained, however, plaintiffs' only right is to attend school in a unitary school system - 286a - in the district in which they reside, not to attend school in a racially balanced metropolitan area. 418 U.S. at 746-47. There is a tremendous distinction between looking at racial imbalance as evidence of a segregated school system in an intra- district case and equating racial imba- lance on an interdistrict basis to a constitutional violation: "([T]he use of Significant racial imbalance in schools within an autonomous school district as a Ssiqnal [in intradistrict cases] which operates to shift the burden of proof is a very different matter from equating racial imbalance [between two school systems in an interdistrict case] with a constitu- tional violation calling for a remedy." Milliken, 418 U.S. at 741 n.19 (emphasis added). See also, Lee v. Lee County Board of Education, 639 F.2d 1243, 1254-55 - 287a - (Sth Cir. 1981). This being an inter- district case necessarily requires rejec- tion of intradistrict presumptions. In order for plaintiffs to prevail, they had to prove that the school district boundaries as originally established or later maintained, evidenced a racially discriminatory motivation; inferences from discriminatory impact would not suffice. Washinaton v. Davis, 426 U.S. 229 (1976). Lack of proof of discriminatory intent in the establishment or changing of = § any school district boundary lines requires the Court to reject plaintiffs’ arguments and effectively distinguishes the inter- district cases granting relief upon which Plaintiffs rely. Cf. Morrilton School District No. 32 v. United States, 606 F.2d 222, 225-27 (8th Cir. 1979) cert. denied, 444 U.S. 1071 (1980); United States v. rr - 288a - Missouri, 515 F.24 1365 (8th Cir.), cert. denied, 423 U.S. 951 (1975) (the Kinloch litiqation); and Haney v. County Board of Education, 410 F.2d 920 (8th Cir. 1969) (pre-Milliken). All of these Eiahth Circuit cases evidenced racial gerryman- Jeringq, an action specifically recoqnized in Milliken as justification for an inter- district remedy. 418 U.S. at 745. It is axiomatic, however, that absent a consti- tutional violation in one district pro- ducing a sSiqnificant segqregative effect in another district, the boundaries of separate and autonomous’ school districts must be respected. Id. at 745-46. The hub, therefore, of plaintiffs’ argument is that the SSDs are not separate and autonomous but are instead agents of the state whose boundaries are constantly disregarded and can therefore be iaqnored — —— - 439a - arrangements abrogate the district's auto- nomy. The Lee's Summit R-7 district par- ticipates in the Herndon AVTS located in the Raytown School District. The Court finds no discriminatory intent or racial motivation in Lee's Summit's participation in the Herndon AVTS, which is substantial- ly closer than the KCMSD AVTS. (P. Ex. 34). Plaintiffs presented no evidence that the KCMSD ever approached the Lee's Summit district about participating in an AVTS or ever invited Lee's Summit to par- ticipate in the KCMSD AVTS once it was established. The fact that Lee's Summit never participated in the KCMSD AVTS is not because of any racially discriminatory intent by the Lee's Summit District. There is no evidence demonstrating any involvement by Lee's Summit School - 440a - District in House Bill 171. The Lee's Summit School Board took no position on the Spainhower recommenda- tions. (Campbell Depo. at 140, Copeland Depo. at 99). Nor was race ever discussed by the Lee's Summit District in connection with the recommendations. (Copeland Depo. at 110-111). Although there are no black faculty or staff presently employed full-time by the district, (P. Ex. 994, 2967), plaintiffs have failed to show by a preponderance this was due to racial discrimination rather than other factors such as wages or the district's location. The Court finds that affirmative steps have been taken by the Lee's Summit District yet blacks have failed to pursue, seek, or accept the employment opportunities made available to them. There have been good faith efforts - 44la - by the Lee's Summit district to employ blacks. (P. Ex. 2967). In any event, as réiterated in the qeneral order, this is not an employment discrimination case and there is no credible evidence that the hiring practices of the Lee's Summit district are the cause of the present racial composition of the KCMSD or Lee's Summit School Districts. In regard to housing, the Court finds that the school district was nct involved in any way and was in no way responsible for the development of housing or housing policies by various municipalities either entirely or partially within the Lee's Summit School District. (Campbell Depo. at 21). The only concern Lee's Summit had with housing was its impact on the number of students that would be attending its schools. (Campbell Depo. at 67). With ————~~ - 442a - the exception of a legitimate racially- neutral concern = about trailer parks, (because they are taxed as personalty, not realty), the Lee's Summit School District did not involve itself in zoning questions Or concerns. (Campbell Depo. at 137-39, Copeland Depo. at 87-89, 92). In regard to racially restrictive covenants, the Court notes there were very few such covenants in Lee's Summit. (P. Ex. 22). There is no evidence that the Lee's Summit School District had any complicity in the placement or enforcement of thosé covenants or that any person was prevented from moving to Lee's’ Summit because of such, covenants. There is simply no evidence that the Lee's Summit School District did anything to either lure white families or to discourage blacks from moving into the district or - 443a - engaged in any conduct with the intent or which had the effect of affecting the racial composition of the student enrollment in the Lee's Summit School District. Having failed to establish any inten- tional racially discriminatory acts or omissions by these defendants which have had a substantial seqreqative impact in any other district, the Court will qrant the Rule 41(b) motion filed by the Lee's Summit School District and its Superintendent. Liberty The Liberty School District serves an area in Clay County, Missouri, centered in the community of Liberty, Missouri. The school district is not now nor has it ever been contiquous to the KCMSD. (P. Ex. l, 1A, 9). There is no evidence that the - 444a - formation of Liberty's boundaries or any annexation thereafter was accomplished with the purpose or effect of racial seqreqation. There is no evidence that any annexation took place for other than sound educational and practical reasons. Based on the testimony of various wit- nesses and exhibits admitted, the Court makes the following findings reqarding the education of blacks in the Liberty School District before 1954. Pursuant to the State mandated separate schools, the Liberty School District operated, from at least 1907, the Garrison School _ for blacks. Garrison had grades one through eight until 1926 when it added ninth qrade. (Tr. 479). In 1930, tenth grade was added, in 1983, eleventh and in 1953 all twelve grades were available. (Tr. 2504, 5358). Then, from 1953 to 1957-58, - 445a - Garrison offered only elementary grades. Blac [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2164%3A2. Public record. Not legal advice.