Appendix — Missouri v. Jenkins
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In the Supreme Court of the United States
OCTOBER TERM, 1987
STATE OF MISSOURI, et al.,
Petitioners,
vs.
KALIMA JENKINS, et al.,
and
SCHOOL DISTRICT OF KANSAS CITY,
MISSOURI,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
WILLIAM L. WEBSTER
Attorney General
TerRRY ALLEN
Deputy Attorney General
Supreme Court Building
Jefferson City, Missouri 65102
(314) 751-3321
Micuaet L. Borcourt
(Counsel of Record)
Assistant Attorney General
Bruce FARMER
Assistant Attorney General
Counsel for Petitioners
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E. L. Menpennait, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080
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TABLE OF CONTENTS OF APPENDIX
Appendix A - Order of the Court of Appeals for the
Eighth Circuit, April 13, 1988 00. Al
Appendix B - Order of the Court of Appeals for the
Eighth Circuit, January 29, 1988 000000. A2
Appendix C - Order of the District Court for the
Western District of Missouri, May 11, 1987 —.......... A22
Appendix D - Order of the District Court for the
Western District of Missouri, July 14, 1987 ........ A44
Appendix E - Order of the Court of Appeals for the
Eighth Circuit, December 5, 1986 200000000. A50
Appendix F - Order of the District Court for the
Western District of Missouri, September 17, 1984 __.A171
Appendix G - Order of the District Court for the
Western District of Missouri, June 5, 1984 _......... A216
Al
APPENDIX A
ORDER OF THE COURT OF APPEALS FOR THE
EIGHTH CiRCUIT, APRIL 13, 1988
(Filed April 13, 1988)
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 87-2076-WM
Kalima Jenkins, etc.,
Appellee,
vs.
The State of Missouri, et al.,
Appellants.
Appeal from the United States District Court
for the Western District of Missouri
Appellants’ petition for rehearing en banc has been
considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
April 13, 1988
Order Entered at the Direction of the
Court:
/s/ Robert D. St. Vrain
Clerk, United States Court of
Appeals, Eighth Circuit
A2
APPENDIX B
ORDER OF THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, JANUARY 29, 1988
(Filed January 29, 1988)
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 87-2075
Kalima Jenkins, by her friend, Kamau Agyei; 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; Dwayne A. Turrentine, by his next
friend, Shelia Turrentine; Gregory A. Pugh, by his next
friend, David Winters, on behalf of themselves and all
others similarly situated;
and
American Federation of Teachers, Local 691,
v.
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,
Terry A. Bond, President
A3
Delmar A. Cobble,
Grover Gamm,
Jimmy Robertson,
Robert L. Welling,
Donald E. West,
Members of the Missouri State Board of Education,
Arthur L. Mallory, Commissioner of Education of the
State of Missouri,
Appellees,
and
Schoo] District of Kansas City, Missouri,
Appellant,
and Claude C. Perkins, Superintendent thereof.
No. 87-2076
Kalima Jenkins, by her friend, Kamau Agyei; 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; Dwayne A. Turrentine, by his next
friend, Shelia Turrentine; Gregory A. Pugh, by his next
friend, David Winters, on behalf of themselves and all
others similarly situated;
Appellees,
and
American Federation of Teachers, Local 691,
Vv.
A4
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,
Terry A. Bond, President
Delmar A. Cobble,
Grover Gamm,
Jimmy Robertson,
Robert L. Welling,
Donald E. West,
Members of the Missouri State Board of Education,
Arthur L. Mallory, Commissioner of Education of the
State of Missouri,
Appellants,
and
School District of Kansas City, Missouri,
and Claude C. Perkins, Superintendent thereof,
Appellee.
No. 87-2077
Kalima Jenkins, by her friend, Kamau Agyei; 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; Dwayne A. Turrentine, by his next
friend, Shelia Turrentine; Gregory A. Pugh, by his next
A5
friend, David Winters, on behalf of themselves and all
others similarly situated;
Appellants,
and
American Federation of Teachers, Local 691,
v.
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,
Terry A. Bond, President
Delmar A. Cobble,
Grover Gamm,
Jimmy Robertson,
Robert L. Welling,
Donald E. West,
Members of the Missouri State Board of Education,
Arthur L. Mallory, Commissioner of Education of the
State of Missouri,
Appellees,
and
School District of Kansas City, Missouri,
and Claude C. Perkins, Superintendent thereof.
Appeals from the United States District Court for the
Western District of Missouri.
Submitted: October 13, 1987
Filed: January 29, 1988
A6
Before LAY, Chief Judge, HEANEY and JOHN R. GIB-
SON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The award of attorneys’ fees in the Kansas City, Mis-
souri school desegregation case has resulted in this trio of
appeals. The district court’ awarded plaintiffs’ co-counsel,
Arthur Benson, and the Legal Defense Fund of the NAACP
(LDF) fees and expenses for services rendered in the liti-
gation, imposed solely against the State of Missouri. The
district court denied the application of the Kansas City,
Missouri School District (KCMSD) for attorneys’ fees. On
appeal the State of Missouri argues that the district court
award compensated plaintiffs’ counsel for time spent on
unsuccessful claims and the fee should have been reduced
because of plaintiffs’ partial success; tha‘ there was error
in awarding an hourly rate based upon a delay in payment
factor because this is an award of interest against the State
prohibited by the eleventh amendment; that 50 percent of
the fee should have been imposed on KCMSD; and that the
fees and expenses were unreasonable. KCMSD argues that
as a party seeking to enforce the civil rights laws through
litigation and as a prevailing party, it was eligible for an
award of attorneys’ fees. Plaintiffs argue that the district
court erred in not enhancing their fee to compensate for
the risk plaintifis’ counsel assumed. The judgment of the
district court is affirmed.
. The school desegregation case was filed in 1977 and
the history of this litigation is outlined with a broad brush
in this court en banc’s opinion. Jenkins v. State of Mis-
1. The Honorable Russell G. Clark, United States District
Judge for the Western District of Missouri.
;
es EE Ea ES oe oe _
A7
sourt, 807 F.2d 657, 661-62 (8th Cir. 1986) (en banc), cert.
denied, 108 S. Ct. 70 (1987). Plaintiffs submitted a de-
tailed application for fees under 42 U.S.C. § 1988 (1982).
The State filed a response cataloging specific items in the
fee applications it deemed excessive, and the plaintiffs re-
sponded with an item-by-item rebuttal of the State’s ob-
jections. Evidence was presented at a hearing.
The district court recognized that plaintiffs are entitled
to attorneys’ fees if they succeeded on any significant issue
in the litigation. It found the plaintiffs were undisputedly
prevailing parties.
The district court based its fee calculation on the num-
ber of hours and amount of expenses the plaintiffs sub-
mitted. The plaintiffs had cut their total hours to delete
time spent on unsuccessful interdistrict claims against
federal, Kansas and suburban school district defendants.
The court adopted the plaintiffs’ adjusted request as the
basis for the number of reasonable hours, rejecting the
State’s arguments for further cuts because it found that
the remaining hours were either expended solely on the
successful claims or were “so closely interrelated” with
them “that they cannot be separated or reduced by some
arbitrary percentage.” Jenkins v. Missouri, No. 77-0420-
CV-W-4, slip. op. at 3 (W.D. Mo. May 11, 1987).
The district court concluded that the hours submitted
by the plaintiffs after their suggested reductions for time
spent on unsuccessful claims represented the time reason-
2. 42 USC. § 1988 (1982) provides in relevant part:
In any action or to enforce a provision of
sections 1981, 1982, 1983, 1985 and 1986 of this title .. .
the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee
as part of the costs.
A8
ably spent on this litigation, except for 3.5 of the hours
requested for LDF attorney Liebman. The court also de-
termined that the hours and expenses submitted by LDF
and Benson for litigating fee requests were reasonable and
allowed the expenses and a fee based on the hours sub-
mitted.
The court then turned to the determination of an
hourly rate. It found that Benson’s rate would fall at the
higher end of a range of $125 to $175 per hour. In doing
so it considered the attorney’s customary fee, his experi-
ence, reputation and ability. In addition, because the
application was for services rendered from March, 1979
through June, 1986, the court deemed it essential that the
hourly rate include compensation for the delay in payment.
In light of delay, preclusion from other employment and
the undesirability of the case, the court determined that
an hourly rate of $200 per hour was reasonable.
The court determined the applicable rate for LDF’s
fees to be that of the locality of the litigation, Kansas City,
rather than New York. It determined that a fee was ap-
propriate for the representation by non-profit counsel and
considering compensation for delay in payment awarded
LDF fees at the current rather than historical rates.
The court rejected plaintiffs’ claims for enhancement
of the fee for quality of representation and risk of non-
payment, finding that the quality of representation was
included in the determination of the hourly rate. It re-
jected the argument that there should be upward adjust-
ment for risk of loss because it found the plaintiffs’ likeli-
hood of success in their claim against the State was very
high, the risk of non-payment slight, and the small risk of
non-payment was fully reflected in the reasonable attor-
neys’ fee calculated by the court.
A9
The district court awarded Benson and his staff a total
of $1,687,139.92 for fees and expenses rendered from March
1979 to June 30, 1986, and for the fees and expenses in-
curred in litigating the fee application. As Benson had
received $347,332.93 of this amount, the balance due was
stated to be $1,339,806.99. The court awarded LDF a total
of $2,323,730.60 for fees and expenses through May 31, 1985,
and $42,145.14 for litigation of the fees and expenses issue.
The court amended its order on July 14, 1987 to in-
clude an additional $37,950.00 fee award to Benson for
monitoring the remedial plan in 1985-86, based on an hourly
rate of $125 per hour for Benson, and $3,478.00 in expenses
so incurred.
In ruling on KCMSD’s fee application, the court noted
that it had found in favor of KCMSD on its cross-claim
against the State of Missouri, but that the cross-claim sim-
ply reiterated plaintiffs’ allegations and that the same re-
medial plans would have been ordered even if KCMSD had
not reiterated plaintiffs’ allegations in its cross-claim. The
district court also observed that KCMSD was adjudged
liable and ordered to pay 50 percent of the costs of the
remedy. See Jenkins, 807 F.2d at 684-85. It concluded
that because KCMSD had violated the constitution by
adopting policies which perpetuated rather than eliminated
segregation, it was inappropriate to award attorneys’ fees
to a constitutional violator.
In determining who should pay the plaintiffs’ fee, the
court observed that the State of Missouri was the primary
constitutional violator. Moreover, the district court noted
that KCMSD had cooperated closely with the plaintiff and
in fact had originally been a plaintiff before the court re-
aligned it as a defendant in 1978. Also, KCMSD had ad-
Al0
mitted liability prior to trial, while the State had persisted
in denying liability throughout the ten and a half month
trial on liability issues. Accordingly, the court concluded
that KCMSD would not be liable for the attorneys’ fees
and expenses and that the award of fees should be imposed
solely against the State.
Before we consider the contentions of the parties with
respect to the fee, we reiterate the concern of the Supreme
Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), that
the attorneys’ fee issue should not result in a second major
litigation and that ideally the litigants will settle the
amount of the fee. Id. at 437.
I. Missouri’s Appeal.
The State first argues that the district court erred
in compensating the plaintiffs for time spent on the un-
successful claims against prevailing defendants and in
failing to further reduce the compensable hours due to
plaintiffs’ partial success as compared to the scope of the
litigation as a whole. The State points out that the district
court accepted the Hensley reductions made by plaintiffs,
which resulted in a fee based on roughly 85 percent of the
total hours worked, in spite of plaintiffs’ lack of success
on their interdistrict claim.
Hensley v. Eckerhart provides the guidance for setting
fee awards in cases where plaintiffs were less than totally
successful:
Where the plaintiff has failed to prevail on a claim
that is distinct in all respects from his successful
claims, the hours spent on the unsuccessful claim
should be excluded in considering the award of a rea-
sonable fee. Where a lawsuit consists of related
All
claims, a plaintiff who has won substantial relief
should not have his attorney’s fee reduced simply be-
cause the district court did not adopt each contention
raised. But where the plaintiff achieved only limi.wd
success, the district court should award only that
amount of fees that is reasonable in relation to the
results obtained.
461 US. at 440.
In this case, the plaintiffs made unsuccessful claims
against the State as well as the suburban, federal, and Kan-
sas defendants for interdistrict relief. They also made suc-
cessful intradistrict claims against the State and KCMSD.
The district court found that the plaintiffs appropriately
excluded hours that did not relate to the claims on which
plaintiffs prevailed, and that the remaining hours either
related solely to the successful claims or related to them
as well as to unsuccessful claims and the time could not be
set aside as devoted to the unsuccessful claims. This allo-
cation of hours amorg the various claims is a finding of
fact, which we can reverse only if clearly erroneous. See
City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686,
2693 (1986); 106 S. Ct. at 2699 (Powell, J. concurring).
The State argues that reduction of the hours worked
by only about 15% cannot be an adequate reduction for the
time spent on claims against prevailing defendants. It is
true that much of the testimony and much of the effort
at trial was pointed toward relief that was not obtained.
Our acquaintance with the record in this case from con-
sideration of the appeal on the merits convinces us that
many of the issues were separate in nature, but also that
a substantial portion of the testimony that bore upon the
unsuccessful claims was closely interrelated with the re-
Al2
maining claims. The parties briefed this question in detail
before the trial court, explaining why they believed each
time entry was or was not compensable. Were we to {ix
the initial percentage reduction of the time spent by plain-
tiffs’ counsel, we might not have arrived at the same result
as the district court. However, upon review of the record,
we cannot say that the district court's finding was clearly
erroneous, and we may not substitute our own findings
for those of the district court. See Anderson v. City of
Bessemer City, 470 U.S. 564, 105 S. Ct. 1504 (1985).
The state argues that the district court failed to con-
sider the degree of success obtained as required by Hensley.
While the district court could have been more explicit in
this respect, we are satisfied that the parties forcefully
brought to the attention of the district court the analysis
required by Hensley and that the district court faithfully
applied Hensley in awarding the fee. In focussing on the
time relating solely to the successful claims or so closely
interrelated to those claims that it could not be separated
or reduced and determining a reasonable fee, the district
court gave proper weight to the degree of success. See
McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir. 1987).
The State’s proposed second reduction would amount
to a double deduction by taking away hours relating to the
successful claim because of unsuccessful ones, which have
already been the subject of reduction. “A court should
not disallow attorney hours related and necessary to suc-
cessful claims.” Catlett v. Missouri Highway and Trans-
portation Commission, 828 F.2d 1260, 1270 (8th Cir. 1987);
see Carmichael v. Birmingham Saw Works, 738 F.2d 1126,
1137 (11th Cir. 1984). A second Hensley deduction is not
appropriate. Accord Rogers v. Okin, 821 F.2d 22, 25, 29
(1st Cir. 1987), petition for cert. filed (Nov. 3, 1987) (dis-
~_ —————— ee ee ee
Lis
trict court correctly deleted only time wholly unrelated
to successful claim).
The State next argues that the district court erred in
considering delay in payment as a factor in setting plain-
tiffs’ attorneys’ hourly rates. The State relies on Library
of Congress v. Shaw, ........ US. ......., 106 S. Ct. 2957 (1986),
and Rogers v. Okin, 821 F.2d 22 (ist Cir. 1987), for the
proposition that the district court’s consideration of delay
constituted an award of interest that violated the eleventh
amendment. We are not persuaded by this argument.
Shaw involved an award of attorneys’ fees in a Title
VII case against the federal government, in which the dis-
trict court increased the lodestar by 30% to compensate
for delay in payment. The Supreme Court reversed on the
grounds that the award of interest on the fees was for-
bidden by the “no-interest” rule, which requires a specific
waiver of the federal government’s sovereign immunity
with regard to interest, in addition to the waiver of im-
munity on the underlying cause of action.
In Rogers the First Circuit analogized from Shaw to
forbid an award of fees against a state based on current
hourly rates. 821 F.2d at 26-28. We cannot agree with
the Rogers court that the holding in Shaw is applicable in
a case involving eleventh amendment, rather than federal
sovereign immunity, or to a case where the court awards
current rates or considers delay as one factor in setting a
compensatory fee award.
First, Shaw was expressly based on the “no interest”
rule of statutory interpretation applicable in suits against
the federal government. 106 S. Ct. at 2962-63. Rogers
does not explain why it considers Shaw’s federal sovereign
immunity holding applicable in an eleventh amendment
Al4
setting, and indeed Rogers acknowledges that the two areas
of law carry “different s*andards of statutory interpreta-
tion.” 821 F.2d at 27. We see no reason to extend Shaw
to the body of eleventh amendment law, which was not
covered by its rationale.
Second, Rogers assumes that compensation for delay
equates with prejudgment interest, and we are not satisfied
that it does. Shaw leaves open a distinction between a
separately stated enhancement for delay, such as the thirty
percent enhancement in Shaw, which it regarded as inter-
est, and merely considering delay as one factor in setting
the hourly fee, as the district court did in this case. Judge
Ginsburg dissented from the Court of Appeals decision
allowing interest in Shaw, Shaw v. Library of Congress,
747 F.2d 1469, 1485-93 (D.C. Cir. 1984), arguing that “use
of current rather than the historical hourly rates in order
to compensate for delay, or use of historical rates that were
based on expected delay .. . would not run afoul of the
no-interest rule.” 106 S. Ct. at 2961 (summary by Black-
mun, J.). In the Supreme Court's opinion, Justice Black-
mun adverted to Judge Ginsburg’s dissent without dis-
approval. Id.
At any rate, the eleventh amendment is not a barrier
to recovery of fees against a state under section 1988, see
generally Hutto v. Finney, 437 U.S. 678, 693-94 (1978), and
the courts have regularly interpreted section 1988 to per-
mit compensation for delay in the payment of fees, e.g.,
Sisco v. J. S. Alberici Construction Co., 733 F.2d 55, 59 n.3
(8th Cir. 1984); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945,
951, 955 (1st Cir. 1984); Daly v. Hill, 790 F.2d 1071, 1081
(4th Cir. 1986); Lightfoot v. Walker, 826 F.2d 516, 523 (7th
Cir. 1987); Jordan v. Multnomah County, 815 F.2d 1258,
1262-63 n.7 (9th Cir. 1987); Ramos v. Lamm, 713 F.2d 546,
Al5
555 (10th Cir. 1983); Gaines v. Dougherty County Board of
Education, 775 F.2d 1565, 1572 (11th Cir. 1985). In Penn-
sylvania v. Delaware Valley Citizens’ Council, 107 S. Ct.
3078, 3081-82, 3099 (1987), both the majority and dissent-
ing justices seem to have approved award of delay com-
pensation under the “typical fee-shifting statute.” But the
Rogers court premised its holding on its conclusion that
§ 1988 does not permit compensation for delay: “Our
problem in the instant case is that Congress has not yet
made any statement suggesting that a § 1988 attorney’s fee
award should include prejudgment interest.” 821 F.2d at
27. The Rogers court’s decision that section 1988 does not
permit delay compensation runs counter to the generally
accepted view of that statute, and we will not disregard
the established body of section 1988 lav.
We hold that the district court properly considered
delay in establishing the hourly rate.
The State also argues that the district court erred in
allowing fees for paralegals and law clerks in excess of
$15 per hour, which the State “suggests” is the cost to
plaintiffs’ attorneys of hiring the clerks and paralegals.
We recognize that other courts have approached this ques-
tion differently, some viewing paralegal work as a cost to
be reimbursed and others as a portion of the fee, to be
given market treatment. This circuit has not resolved this
question, although we have stated that “[p]aralegal fees
should be allowed if reasonable and not duplicative of
other legal fees.” Hawkins v. Anheuser-Busch, Inc., 697
F.2d 810, 817 (8th Cir. 1983). We believe that market con-
siderations should govern, but it is not necessary to adopt
an ironclad rule in this case. Suffice it to say that the
district court found that $40 per hour for paralegals and
Al6
$35 per hour for law clerks were reasonable fees, slip op.
at 7, and we cannot say its determination was clearly erro-
neous.
The State raises numerous other issues dealing with
granting plaintiffs’ excessive hourly billing rates and liti-
gation expenses, particularly expert witness fees for James
Anderson. While we acknowledge that some of the State’s
arguments have sume force, we conclude that the district
court’s determinations in these respects were not clearly
erroneous.
In its appeal against the KCMSD the State argues that
the district court erred in failing to impose 50 percent of
the liability for fees and expenses on KCMSD.* The dis-
trict court justified the allocation of the fee by pointing to
its earlier conclusion that the State of Missouri was the
primary constitutional violator. By contrast KCMSD did
not cause the unlawful segregration but simply failed, as
did the State, to disestablish the dual school system created
by the State of Missouri and adopted policies which were
ineffective in eliminating the unlawful segregation. More-
over, the court pointed to the fact that KCMSD had co-
operated with the plaintiffs and had conceded liability
prior to trial, while the State denied liability, thereby con-
tributing to the necessity of a ten and a half month trial.
Thus, in effect the district court concluded that KCMSD
minimized the need for plaintiffs to incur attorneys’ fees,
while the State maximized the need.
4. KCMSD and the State rely in their briefs on unpublished
opinions of this court in the St. Louis school desegregation case.
Under our Rule 8(i), unpublished opinions may not be cited
except when related to the case at bar “by virtue of an identity
between the parties or causes of action.” In any event, we do
not consider those opinions to be applicable or persuasive in con-
sidering the order before us.
eee
650 ree
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The district court based its award on the defendants’
relative degrees of culpability and the time the plaintiffs
were forced to spend litigating against the respective de-
fendants. Both factors are appropriate considerations in
determining who must shoulder the fees award. See Rose
v. Nebraska, 748 F.2d 1258, 1264 (8th Cir. 1984), cert. de-
nied, 474 U.S. 817, 106 S. Ct. 61 (1985), and Charles v.
Coleman, 689 F.2d 774, 777 (8th Cir. 1982) (degree of lia-
bility considered in allocating responsibility for fees);
Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960 (1st Cir.
1984); Southeast Legal Defense Group v. Adams, 657 F.2d
1118, 1125-26 (9th Cir. 1981) (relative time); see generally
Little Rock School District v. Pulaski County Special School
District No. 1, 787 F.2d 372, 374 (8th Cir.) (Arnold, J.,
concurring and dissenting), cert. denied, 106 S. Ct. 2926
(1986) (relative culpability and relative litigation time rel-
evant).
The State argues that fees should be allocated in the
same percentages as liability for the costs of the substantive
relief. However, the criteria for liability on the merits and
for liability for fees are different—obviously, the court
could not consider the amount of time spent litigating
against the respective defendants when it apportioned li-
ability for the substantive relief, but that is an appropriate
consideration in apportioning liability for fees.
The district court’s allocation of fees is reversible only
in the event of abuse of discretion. See Adams, 657 F.2d
at 1126. The reasons given by the district court in this
case adequately supported its decision to place responsi-
bility for the fees on the State.
Al8
II. KCMSD’S Appeal
We reject KCMSD’s a.gument that it is entitled to
attorneys’ fees. In essence, the district court concluded
that KCMSD in its cross-claim against the State simply
reiterated claims made by the Jenkins class and insofar as
KCMSD had been improved by the remedial plans, these
plans would have been ordered as a result of plaintiffs’
claims regardless of KCMSD’s cross-claim. In addition,
KCMSD had been adjudged a constitutional violator and
the court determined it was therefore inappropriate to
award it attorneys’ fees. Under section 1988 a prevailing
plaintiff is entitled to an award of attorneys’ fees “ ‘unless
special circumstances would render such an award un-
just.’” S. Rep. No. 94-1011, 94th Cong. 2d Sess. 4, re-
printed in 1976 U.S. Code Cong. & Admin. News 5908, 5912.
Though a district court’s discretion in determining when
such special circumstances exist is narrowly limited, see
New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68
(1980) (title VII), the district court did not abuse its dis-
cretion in finding them here.
KCMSD cites our case of United States v. Arkansas,
791 F.2d 1573 (8th Cir. 1986), in support of its argument
that the court should not have considered KCMSD’s role
as constitutional violator in determining that special cir-
cumstances would make an award of attorneys’ fees in
favor of KCMSD unjust. There, while the school districts
had been held liable, the district court attempted to assess
the entire cost of consolidating against the state, based on
a finding that gerrymandering had resulted from the re-
quirements of Arkansas law mandating segregation. 791
F.2d at 1575. In contrast to the situation assumed in United
States v. Arkansas, in this case KCMSD was not only liable,
Alg
but this court determined it was appropriate for KCMSD
to pay 50% of the costs of the remedy. Jenkins, 807 F.2d
at 684-86. Under these circumstances, the district court
acted within its discretion in determining that it would be
unjust to award KCMSD its fees against the State.
III. Plaintiffs’ Appeal.
Plaintiffs argue that they are entitled to an enhance-
ment of the fee awarded for Attorney Benson on the
grounds that he is entitled to compensation for litigating
the case on a contingency basis.
The district court’s order was entered before the Su-
preme Court handed down its decision in Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, ........ US.
seem , 107 S. Ct. 3078 (1987) (Delaware Vailey II), which
clarified the prerequisites for enhancement of a fee award
for contingency. There was no majority opinion in Dela-
ware Valley II, but Justice O’Connor’s concurrence in judg-
ment formed a majority for the holding that a contingency
enhancement would be permissible in some circumstances,
and another majority for the holding that such circum-
stances did not exist in the Delaware Valley II case. Jus-
tice O’Connor stated that contingency enhancements should
be awarded only on proof that the relevant market com-
pensates for contingency cases as a class, rather than on
proof of any particular risks peculiar to the case in ques-
tion. 107 S. Ct. at 3090-91. Specifically, Justice O’Connor
would require proof that “without an adjustment for risk
the prevailing party ‘would have faced substantial diffi-
culties in finding counsel in the local or other relevant
market.’” Id. at 3091 (quoting plurality opinion, 107 S.
Ct. at 3089).
A20
The district court in this case denied plaintiffs a con-
tingency enhancement based on the plaintiffs’ high likeli-
hood of success in the particular substantive case at bar;
the court’s criteria were not those adopted by Justice
O’Connor, who disapproved enhancement decisions based
on “legal risks” peculiar to a particular case. However,
Jlaintiffs would have fared no better under Justice O’Con-
nor’s analysis, since they failed to adduce proof that they
would have faced substantial difficulties finding repre-
sentation without an adjustment for contingency. While
plaintiffs presented evidence that the Kansas City market
generally compensates successful attorneys for assuming
the risk of contingency cases, they did not introduce any
evidence about availability of counsel to plaintiffs in the
absence of contingency adjustments. Several attorneys
testified that they would not have taken the case at all,
and one civil rights litigator testified he would not have
taken the case without regular payments. Testimony of
these individuals comes short of proof that adjustment for
contingency was a crucial factor in plaintiffs’ ability to
obtain counsel. See generally Blum v. Witco Chemical
Corp., 829 F.2d 367, 380-81 (3d Cir. 1987). On the record,
we do not discover the proof required by Justice O’Connor
as prerequisite for award of a contingency enhancement.
See Catlett, 828 F.2d at 1271.
Plaintiffs also argue that they should receive enhance-
ment for the risk inherent in this particular case in ac-
cordance with the Delaware Valley II views of Justice
Blackmun. However, Justice O’Connor disapproved Justice
Blackmun’s suggestion of enhancement for extraordinary
legal risk in a particular case, 107 S. Ct. at 3090, and there-
fore Justice Blackmun’s views did not command a majority
of the Court. Furthermore, the district court specifically
A?1
held that this case did not involve extraordinary risk of
failure and this finding is not clearly erroneous. There-
fore, even under Justice Blackmun’s views, the plaintiffs
are not entitled to a contingency enhancement for ex-
traordinary risk in this case.
The judgment of the district court is affirmed in all
respects.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS,
EIGHTH CIRCUIT.
A22
APPENDIX C
ORDER OF THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI,
MAY Il, 1987
(Filed May 11, 1987)
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF MISSOURI
WESTERN DIVISION
No. 77-0429-CV-W-4
KALIMA JENKINS, et al.,
Plaintiffs,
vs.
STATE OF MISSOURL, et al.,
Defendants.
ORDER
Several motions for awards of attorney's fees and ex-
penses are presently before the Court. Plaintiffs’ co-
counsel, Arthur Benson, has moved for $3,310,587.00 in
fees and expenses for services rendered by him and his
staff through June 30, 1986. The Court will award Mr.
Benson and his staff $1,614,437.43 for these services. Hav-
ing previously received $347,332.93 of this amount, the
balance due Mr. Benson for these services is $1,267,104.50.
,
Pee ee OE ee ey ee ee
(LDF), co-counsel for the
3
3
expenses for services rendered through June 30, 1986. This
$62,169.37 in attorney's fees and expenses incurred through
March 1, 1987. This motion will be denied.
BENSON AND STAFF
Pursuant to 42 U.S.C. § 1988, the Court may allow
the prevailing parties in this suit a reasonable fee as part
of the costs. However, the plaintiffs in this case may only
be considered prevailing parties for attorney’s fees pur-
poses if they succeeded on any significant issue in the liti-
gation which achieved some of the benefit the parties
sought in bringing the suit. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983), quoting Nadeau v. Helegemoe, 581
F.2d 275, 278-79 (ist Cir. 1978). The plaintiffs in this
action are undisputedly “prevailing parties” because this
Court found in favor of the plaintiffs on their liability
claims against the State of Missouri defendants and the
KCMSD. Jenkins v. State of Missouri, 593 F.Supp. 1485,
1505 (W.D. Mo. 1984).
A24
The first step in determining a reasonable attorney's
fee is to multiply “the number of hours reasonably ex-
pended on the litigation times a reasonable hourly rate.”
Blum v. Stenson, 465 U.S. 886, 888 (1984). Mr. Benson
acknowledges that under Hensley v. Eckerhart, 461 US.
424 (1983), he and his staff cannot receive compensation
for all their time spent on this litigation since the plaintiffs
were ot successful in their claims against the suburban
school districts, the Kansas defendants, and the federal
defendants. Accordingly, Mr. Benson excluded from the
total time expended by him and his staff approximately
353 hours which he claims was clearly allocable to work
done on the unsuccessful claims against these other de-
fendants. The State argues that Benson and his staff failed
to exclude additional hours that were expended solely on
the unsuccessful claims. Contrary to the contentions of
the State of Missouri, the Court finds that the specific ex-
clusions made by Benson and his staff accurately repre-
sent the time allocable to unsuccessful claims in the liti-
gation, and which was “distinct in all respects” from time
spent on their successful claims. Hensley v. Eckerhart,
461 U.S. at 440.
The State also argues that the remaining time should
be reduced by 50% because the plaintiffs were unsuccessful
on their claim of interdistrict liability against the State
and various other defendants. The Court finds that these
remaining hours either related solely to the successful
claims made by the plaintiffs against the State and the
KCMSD, or were so closely interrelated among the re-
maining claims that they cannot be separated or reduced
by some arbitrary percentage.
Finally, the State also requests an additional reduction
of 5% for alleged duplication of effort. The State argues
that because the plaintiffs utilized thirteen attorneys and
numerous staff personnel in this case that there was “in-
evitably” some duplication of effort. Having examined
the time records submitted by Benson and his staff, the
Court finds no such duplication. Retention of numerous
attorneys and a large staff in this lengthy and complicated
school desegregation case is certainly understandable and
is not in itself a ground for reducing the hours claimed.
Johnson v. University College of the University of Alabama
in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983).
For the reasons stated, the Court finds the hours sub-
mitted by Mr. Benson and his staff represent the time rea-
sonably expended on this litigation.
The next step in arriving at reasonable attorney's fees
is the determination of a reasonable hourly rate. In mak-
ing such a determination, the Court has carefully con-
sidered the twelve factors enumerated in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974) that have been adopted by the Eighth Circuit.
E.g., Hardman v. Board of Education of Dollarway, Arkan-
sas, 714 F.2d 823, 825 (8th Cir. 1983). Among these factors
are the customary fee of the attorney and his experience,
reputation and ability. The Court finds that Mr. Benson
does not regularly charge an hourly rate in his civil rights
practice. Therefore, the Court must consider the current
Kansas City, Missouri hourly rate for attorneys with the
litigation experience and expertise comparable to that of
Mr. Benson.
It is undisputed that Mr. Benson is an experienced
trial attorney who is widely recognized as a highly quali-
fied civil rights attorney in the Kansas City, Missouri area.
Based on the evidence presented to the Court, the Court
finds that the hourly rates for Kansas City, Missouri at-
torneys with litigation experience and expertise compar-
able to that of Mr. Benson range from $125.00 to $175.00
per hour. The Court finds that Mr. Benson’s rate would
fall at the higher end of this range based upon his ex-
pertise in the area of civil rights.
Two additional Johnson factors are particularly ap-
plicable in this case, i.e., the preclusion of other employ-
ment by the attorney due to acceptance of a case, and the
undesirability of a case. The Court finds that from early
1983 until the end of 1985 Benson devoted nearly all of
his professional time to this case and was thereby pre-
cluded from accepting other employment. Similarly,
Benson’s staff was also precluded from other employment
for a period of at least one year while working full time
on this litigation.
The undesirability of this case should also be consid-
ered in determining Benson's reasonable hourly fee. Un-
deniably, this case has been very unpopular with many
Missouri citizens as evidenced by various statements, edi-
torials, articles and letters from parents, taxpayers and
state officials.
In addition, the Court has considered delay in pay-
ment, a factor not listed in Johnson, in determining a rea-
sonable attorney's fee for Benson's services. Mr. Benson's
application is for services rendered from March, 1979
through June 30, 1986. It is essential that his hourly rate
include compensation for the delay in payment. Jorstad
v. IDS Realty Trust, 643 F.2d 1305 (8th Cir. 1981).
Accordingly, having carefully considered the twelve
factors set forth in Johnson, and the additional factor of
delay in payment, the Court finds that a reasonable hourly
rate for Mr. Benson's services from 1979 through June
A27
30, 1986, is $200.00 per hour. This rate, multiplied by the
Mr. Benson had requested an hourly rate of $125.00
an hour which when multiplied by his reasonable hours
expended totals $627,600.00. However, he also requested
|
:
|
i
dered was superior to that one reasonably should expect
in light of the hourly rate charged and that the success was
exceptional. Blum v. Stenson, 465 U.S. at 899. However,
tion in this case, the Court does not find that this is the
“rare case” which warrants an upward adjustment.
The cuestion of upward adjustment based on the risk
of loss, or as described by the plaintiffs, risk of nonpay-
ment, was left open in Blum v. Stenson, supra. However,
in Pennsylvania v. Delaware Valley Citizens Council for
Clean Air, No. 85-5, slip op. at 20-21 (July 2, 1986), the
Supreme Court reset the case for argument on that par-
ticular issue. To date, no such opinion has been rendered.
Notwithstanding, the Court finds that the plaintiffs’ likeli-
hood of success in their claim against the State of Mis-
souri defendants was very high, and thus Benson's risk
of nonpayment very slight, because the State had man-
dated segregated schools for black and white children prior
to 1954 and had failed to take any affirmative steps to
eliminate the unlawful segregation after 1954. This small
risk of nonpayment is fully reflected in the reasonable
attorney's fee calculated by the Court.
Benson also requests a fee award for the services of
four attorneys whom he employed to assist him in the
litigation of this case. Two of these attorneys, Ms. Burkdoll
and Ms. Goering, were associates of Mr. Benson and billed
97% of the hours submitted by these four attorneys on
the fee application. Mr. Benson requests an hourly rate
of $80.00 per hour for Ms. Burkdoll and Ms. Goering. The
evidence presented to the Court establishes that current
Kansas City, Missouri hourly rates for associates with
experience and expertise comparable to Ms. Burkdoll and
Ms. Goering range from $60.00 to $95.00 per hour. After
careful consideration, the Court finds that $80.00 per hour
is a reasonable hourly rate for their services. The Court
notes that the $80.00 per hour rate is approximately $15
to $20 higher than the average hourly rate for Kansas City
associates in 1982-84, the years in which Ms. Burkdoll and
Ms. Goering compiled their hours. However, the differ-
ential is necessary to compensate Mr. Benson for the delay
A29
in payment. Accordingly, the Court will award Mr. Benson
a total of $304,348.00 in fees for services rendered by Ms.
Burkdoll and Ms. Goering from 1982 to 1984.
Benson also requested that he be awarded enhance-
ments of $319,328 and $287,912 for the services of Ms.
Burkdoll and Ms. Goering for the risk of nonpayment. As
previously stated, the risk of nonpayment was very small
and is fully reflected in the $80.00 per hour rate found to
be reasonable by the Court.
The remaining two attorneys employed by Mr. Benson,
Mr. Routman and Mr. Thomas, collectively compiled 89
hours from 1981 through 1983. At the time they began
assisting Mr. Benson in this litigation, Mr. Routman had
ten years of legal experience and Mr. Thomas five. Both
are presently partners in Kansas City, Missouri law firms.
After careful consideration, the Court finds that the hourly
rate of $90.00 for Mr. Routman and $85.00 per hour for
Mr. Thomas requested in the fee application are reasonable
for the Kansas City, Missouri area. Therefore, the Court
will award Mr. Benson $7,663.00 in attorney’s fees for .he
services of Mr. Routman and Mr. Thomas.
Mr. Benson also requested an enhancement of the
above award for the risk of nonpayment. Again, the Court
finds that such a risk is very small and is fully reflected
in the hourly rates calculated by the Court.
Mr. Benson also employed seven paralegals and four
law clerks for whom he requests fees. The evidence pre-
sented to the Court indicates that the current City hourly
rates is $40.00 an hour for paralegals and $35.00 for law
clerks, the rates requested by Mr. Benson. Therefore, the
Court finds that the requested rates are reasonable for the
services rendered and will award Mr. Benson $225,084.50
A30
for paralegal and law clerk fees. Furthermore, the Court
notes that it has adequately compensated Mr. Benson for
the delay in payment by calculating this award based upon
the current, rather than the historical, hourly rates.
In addition, Mr. Benson requests $73,182.43 in litiga-
tion expenses that he has personally incurred from 1979
to June 30, 1986. The Court has carefully reviewed these
expenditures and finds them necessary and reasonable in
cost. Therefore, the Court will award the requested
amount.
Mr. Benson also seeks $72,702.49 in fees and expenses
incurred in preparing and litigating his fee application.
Such fees and expenses are compensable under 42 U.S.C.
§ 1988. Doulin v. White, 549 F.Supp. 152, 159 (E.D. Ark.
1982). Mr. Benson was represented in his fee application
by Mr. Russell Lovell, a professor of law at Drake Univer-
sity. Mr. Lovell is a regular lecturer on civil rights litiga-
tion, including attorney’s fees. Prior to joining the law
faculty at Drake University, Mr. Lovell practiced law for
five years and served as counsel of record in approximately
twenty federal court civil rights cases. Based upon the
skill and experience of Mr. Lovell and type of work in-
volved, the Court finds that $125.00 per hour is a reason-
able Kansas City, Missouri hourly rate for preparing and
litigating this fee application. The Court finds that the
time records submitted by Mr. Lovell represent hours rea-
sonably expended on the fee application. Therefore, the
Court will award $47,387.50 for services rendered by Mr.
Lovell.
Mr. Benson requests a fee of $10,125.00 for his services
in litigation of his fee application. Having reviewed the
time records submitted by Mr. Benson, the Court finds
A31
that the 81 hours listed represent time that was reasonably
expended on the litigation. In addition, the Court finds
that the $125.00 hourly rate requested by Mr. Benson is a
reasonable rate for the work performed. Therefore, the
Court will award Mr. Benson the amount requested.
In addition, Mr. Lovell and Mr. Benson collectively
employed three paralegals and two law clerks to assist in
the preparation of the fee application. The Court has re-
viewed the hours submitted by these individuals and finds
them reasonable. Furthermore, the rates requested, $40.00
per hour for paralegals and $35.00 per hour for law clerks,
are certainly reasonable rates for the Kansas City area.
Therefore, the Court will award the $7,865.00 in fees re-
quested for these staff members.
Finally, Mr. Benson requests $7,324.49 for expenses
incurred in litigation of this fee application. Having re-
viewed the records submitted, the Court finds that these
expenditures were necessary and their cost reasonable and
will award the amount requested.
In summation, the Court finds that Mr. Benson and
his staff are entitled to a total award of $1,687,139.92
in fees and expenses for services rendered from 1979 to
June 30, 1986, and for fees and expenses incurred in liti-
gating his fee application. To date, Mr. Benson has re-
ceived $347,332.93 of this amount, leaving a balance due of
$1,339,806.99.
THE LEGAL DEFENSE FUND
The Court finds that this highly complex case required
resources far beyond those available to Mr. Benson. There-
fore, it was necessary for Mr. Benson to obtain the assis-
tance of an organization such as the LDF. The LDF
A32
entered the case in March, 1982 as co-counsel for the plain-
tiffs and is now requesting an award of $3,170,600.20 in fees
and expenses for services rendered through May, 1985.
Approximately $2.5 Million of the total amount re-
quested by the LDF represents fees of attorneys, para-
legals and law clerks. As stated previously, the first step
in determining a reasonable fee is to multiply the number
of hours reasonably expended on the litigation times a
reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888
(1984). Regarding the hours submitted by the LDF, the
Court finds that the LDF properly excluded the time that
was clearly allocable to work done on the unsuccessful
claims pursuant to Hensley v. Eckerhart, 461 U.S. 424
(1983). The Court finds that the remaining hours, except
for 3.5 hours submitted by Mr. Liebman for a 12-21-83
flight from Kansas City to New Mexico, were reasonably
expended on the litigation, and are deserving of compensa-
tion.
In determining a reasonable hourly rate for the ser-
vices of the various LDF attorneys and support personnel,
it is noteworthy that such fees are to be calculated accord-
ing to the prevailing market rates in the relevant com-
munity, regardless of whether plaintiff is represented by
private or nonprofit counsel. Blum v. Stenson, 465 U.S.
at 895. The “relevant community” is the “general locality
in which the litigation takes place.” International Travel
Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1275
(8th Cir. 1980). Therefore, the hourly rates to be awarded
the attorneys and staff of the New York based LDF will
be determined according to Kansas City, Missouri rates.
Seven of the LDF staff attorneys assisted Mr. Benson
in the litigation of this case from March 1982 to May 1985.
A33
In determining a reasonable hourly rate for each attorney’s
services, the Court has considered the twelve factors in
Johnson v. Georgia Highway Express, Inc., 488 F.2d at
717-19. The LDF attorneys are salaried and do not charge
a customary fee. Therefore, the Court must judge the
experience, reputation and ability of the individual attor-
neys and determine a reasonable hourly rate for a Kansas
City, Missouri attorney with similar experience and ex-
pertise. Based upon the evidence presented, the Court
finds that the current Kansas City, Missouri hourly rate
for attorneys with litigation experience and expertise com-
parable to that of LDF attorneys Liebman, Johnston, and
Lief range from $125 to $175 per hour. In addition, the
Court finds that these attorneys are entitled to compensa-
tion for delay in payment. Therefore, the Court will award
the LDF attorney’s fees at the current, rather than his-
torical, rates. Accordingly, the Court finds that the $160.00
requested by Mr. Liebman is a reasonable hourly rate and
will award the LDF $650,688.00 for his services rendered
- through May of 1985. Similarly, the Court finds that
$175.00 per hour is a reasonable hourly rate for the ser-
vices of Mr. Johnson and Ms. Lief and will award fees of
$62,002.50 and $122,447.50 respectively for their services.
The Court finds that the experience and expertise of
attorneys Shaw, Fins, Winter and Hair at the time of their
involvement in this case is comparable to that of associates
with five or fewer years experience. The current Kansas
City hourly rate for such associates ranges from $60.00 to
$95.00 per hour. Therefore, the Court finds that a reason-
able hourly rate for the services of Mr. Shaw, Mr. Winter,
Ms. Hair and Ms. Fins is $95.00 per hour and the Court will
award the LDF a total of $384,617.00 for their services.
The LDF also requested the Court to award it a con-
tingency enhancement of $688,874.30. As stated previously,
the Court finds that the plaintiffs’ risk of loss, and thus
the LDF’s risk of nonpayment, was very slight and is fully
reflected in the reasonable fees calculated by the Court.
In addition, the LDF requests an award for the services
of numerous paralegals, law clerks and recent law grad-
uates. Based upon the evidence presented, the Court finds
that the requested rates of $50.00 an hour for recent law
graduates, $40.00 for paralegals, and $35.00 an hour for
law clerks are comparable to the current Kansas City,
Missouri rates for these services. Therefore, the Court
will award the LDF $431,337.75 in fees for the services
rendered from March, 1982 to May 1985.
In addition, the LDF requests $672,637.85 in litigation
expenses. The Court has carefully reviewed these ex-
penditures and finds that they were necessary and their
cost reasonable. Accordingly, the Court will award the
LDF the requested amount.
The LDF also requested an award of $65,411.64 in at-
torney’s fees and expenses incurred in the preparation and
litigation of their fee application. The Court has reviewed
the time records submitted by the four attorneys who
represented the LDF in their fee application and finds
A35
that they contain only those hours that were reasonably
expended on the litigation. However, the Court finds
that the New York rates requested by these attorneys,
ranging from $160.00 to $330.00 per hour, are excessive
and do not reflect a reasonable hourly rate in the Kansas
City, Missouri area for similar work. As the Court found
in considering Mr. Benson's request for attorney’s fees
incurred in litigating his fee application, $125.00 per hour
is a reasonable hourly rate for such work in the Kansas
City, Missouri area. Thus, the Court will award the LDF
$29,050.00 im fees for services rendered in litigating its
fee application.
The LDF also requests $11,441.33 for expenses in-
curred in litigating its fee application. Having carefully
reviewed these expenditures, the Court finds that they
were necessary and their cost reasonable and will award
the amount requested.
KCMSD requests an award of $1,298,198.70 for at-
torney’s fees and expenses for work performed from March,
1977 through June, 1986. The issue before the Court is
whether the Kansas City, Missouri school district is a
“prevailing party” within the meaning of 42 U.S.C. § 1988.
A party may be considered a prevailing party for at-
torney’s fees purposes if they “succeed on any significant
issue in the litigation which achieves some of the benefit
the party sought in bringing suit.” Hensley v. Eckerhart,
461 U.S. at 433. For purpose of analysis of the attorney’s
fees issues, the “notion of ‘prevailing party’ is to be in-
terpreted in a practical, not formal, manner.” Northcross
v. Board of Education, 611 F.2d 624, 636 (6th Cir. 1979),
cert. denied, 447 U.S. 911 (1980).
A36
This Court did find in favor of the defendant KCMSD
on its crossclaim against the State of Missouri defendants.
Jenkins v. State of Missouri, 593 F Supp. 1485, 1505 (W_D.
Mo. 1984). However, in its crossclaim, the KCMSD simply
reiterated the allegations of the plaintiffs that the State
of Missouri had failed to take action to dismantle its prior
dual school system, and had acted to perpetuate the seg-
regation. This Court found for the plaintiffs on this same
claim against the state defendants. Jenkins v. State of
Missouri, 593 F Supp. at 1505. While the KCMSD has
certainly been improved by the remedial plane ordered
by the Court after assessing liability against the State
and the KCMSD, it is the plaintiffs, the victims of unlawful
segregation, who have benefited by prevailing on this
claim originally alleged in their complaint and subsequently
made by the KCMSD in its crossclaim against the State of
Missouri. Moreover, the Court finds that the same re-
medial plans would have been ordered, and thus the
KCMSD would have received the same benefits, even if
it had not reite ‘ed the plaintiffs’ allegation in its cross-
claim.
In addition, KCMSD in its crossclaim charges that the
State should be required to contribute financially to any
remedial plan the Court might.order as relief against the
KCMSD. The KCMSD was adjudged liable for adopting
ineffective policies to change the segregative patterns and
was subsequently directed to fund approximately 20% of
the initial remedy ordered by the Court. Jenkins v. State
of Missouri, 639 F Supp. 19 (W.D. Mo. 1986). However,
on appeal, the Eighth Circuit held that the desegregation
costs ordered by this Court should be divided equally be-
tween the KCMSD and the State of Missouri because both
were adjudged constitutional violators. Jenkins v. State of
Missouri, 807 F.2d 657, 684-85 (8th Cir. 1986).
crossclaim against the State of Missouri defendants, the
Court finds that the KCMSD, as a practical matter, is not
a “prevailing party” within the meaning of 42 USC.
§ 1988.
Notwithstanding the foregoing analysis, there exists
a separate and compelling reason why the KCMSD should
not be awarded attorney's fees and expenses in this case.
In Jenkins v. State of Missouri, 593 F Supp. 1485 (W.D.
Mo. 1984), this Court found that the KCMSD had violated
the United States Constitution by adopting policies which
perpetuated, rather than eliminated, segregation in its
schools. Therefore, the Court finds it inappropriate to
award attorney's fees to a constitutional violator.
Accordingly, the KCMSD’s motion for an award of
attorney's fees and expenses will be denied.
AFT 691
Intervenor Kansas City, Missouri Federation of Teach-
ers Local 691 (AFT 691) requests an award of $62,169.37
for attorney’s fees and expenses incurred through March
1, 1987. This determination lies within the sound discre-
tion of this Court. Little Rock School District v. Pulaski
County Special School District, 787 F.2d 372 (8th Cir.
1986).
As noted several times in this opinion, a party may
be considered a prevailing party under 42 U.S.C. § 1988
A38
if it succeeds on any significant issue in the litigation which
achieved some of the benefits the party sought in bring-
ing suit. Hensley v. Eckerhart, 461 U.S. at 433. AFT 691
was granted leave to intervene in this case on November
5, 1985, following the Court’s liability order of September
17, 1984. AFT 691 had sought leave to intervene to protect
the interests of its members and to assist the Court in
fashioning a remedy to further integration. Notwith-
standing, AFT 691's participation in this litigation has been
de minimis. As other courts have recognized, this Court
finds that an intervenor should not be awarded attorney's
fees unless it has played a significant role in the litiga-
tion. Grove v. Mead School District No. 354, 753 F.2d
1528 (9th Cir. 1985), cert. denied, 106 S.Ct. 85 (1985).
Accordingly, AFT 691's application for attorney's fees
and expenses will be denied.
LIABILITY FOR THE FEES AND
EXPENSES AWARDED
For the reasons set forth in this opinion, the Court
will award the plaintiffs approximately $4 Million in at-
torney’s fees and expenses for work performed in this
case. The remaining question before the Court is against
whom will these fees be charged.
Plaintiffs succeeded on their liability claim against the
State of Missouri defendants in this case. Jenkins v. State
of Missouri, 593 F.Supp. 1485, 1505 (W.D. Mo. 1984). This
Court found the State of Missouri to be the primary
constitutional violator because it had mandated separate
schools for black and white children prior to 1954, and
after 1954 had failed to take any affirmative action to
eliminate the vestiges and devastating effects of the dual
school system it had created. Jenkins v. State of Missouri,
593 F.Supp. at 1505-06. Accordingly, the Court finds that
the State of Missouri defendants are liable for the attor-
ney's fees and expenses to be awarded plaintiffs’ counsel
in this case.
This Court also found in favor of the plaintiffs in their
claim against the KCMSD. Jenkins v. State of Missouri,
593 F Supp. at 1505. However, the Court did not find that
the KCMSD caused the unlawful segregation within its
district, but rather that it failed to fulfill its constitutional
obligation to act to disestablish the dual school system
created by the State of Missouri. Jenkins v. State of Mis-
souri, 593 F.Supp. at 1504. This Court found that the
KCMSD had adopted policies which were ineffective in
eliminating the unlawful segregation. Id.
Despite the adjudged constitutional violations of the
KCMSD, the Court finds that the KCMSD is not chargeable
for the attorney's fees and expenses to be awarded by the
Court. The KCMSD, originolly a plaintiff in this action,
was involuntarily made a defendant by the Court in 1978.
School District of Kansas City, Missouri v. State of Mis-
souri, 460 F.Supp. 421, 445 (W.D. Mo. 1978). After 1978,
the KCMSD and the plaintiffs cooperated closely in the
development and prosecution of the litigation and the
KCMSD actually acknowledged prior to trial that it had
violated the constitutional rights of the plaintiffs.
In addition, the Court notes that in May, 1980 the State
of Missouri defendants were adjudged “primary constitu-
tinnal violators” in the St. Louis school desegregation case
on facts very similar to those in the present case. Liddell
v. Board of Education of the City of St. Louis, Missouri, 491
F Supp. 351, 359 (E.D. Mo. 1980), aff'd, 667 F.2d 643 (8th
Cir. 1981). Despite this finding, the State of Missouri de-
fendants persisted in denying liability during the 10 1/2
month trial in this case on the liability issues.
For the reasons stated, the Court will order that the
State of Missouri defendants are solely liable for the
$4,053,015.66 in fees and expenses to be awarded the plain-
tiffs in this case.
Accordingly, it is hereby
ORDERED that the Court awards Mr. Benson
614,437.43 in fees and expenses for services rendered by
him and his staff from 1979 through June 30, 1986; and
it is further
ORDERED that the Court awards Mr. Benson $72,-
702.49 in fees and expenses incurred in litigating his fee
application; and it is further
ORDERED that because Mr. Benson has previously
received $347,332.93 of this award, the balance due Mr.
Benson is $1,339,806.99; and it is further
ORDERED that the Court awards the LDF $2,323,730.-
60 in fees and expenses for services rendered through May
of 1985; and it is further
ORDERED that the Court awards the LDF $42,145.14
for fees and expenses incurred in litigating its fee applica-
tion; and it is further
ORDERED that the State of Missouri defendants are
solely liable for the $4,053,015.66 in fees and expenses
awarded by the Court, including the $347,332.93 the State
has previously paid Mr. Benson; and it is further
ORDERED that the KCMSD’s motion for an award of
attorney's fees and expenses is denied; and it is further
Dated: May 11, 1987
|
:
1. Attorneys Hours Hrly Rate Award
1. Attorneys Hours Hrly Rate Award Liebman 4,066.8 160 650,688.00
Benson 5,020.8 200 1,004, 160.00 Shaw 2,522.5 95 239,637.50
Burkdoll 1,996.0 80 159,680.00 Lief 699.7 175 122,447.50
Goering 1,808.35 80 144,668.00 Fins 1,299.7 95 123,471.50
Routman 23.0 90 2,070.00 Johnston 354.3 175 62,002.50
Thomas 65.8 85 5,593.00 Hair 30.5 95 2,897.50
2 Paralegals/Law Clerks Winter 195.9 95 18,610.50
Johnson _ 7 we 2. Paralegals 3,254.6 40 130,184.00
Chavez 21.5 40 860.00 4. Recent Law
Fitzpatnck 954 40 3,816.00 Graduates 2,020.58 50 101,029.00
Borge 96.9 40 3,876.00 5. 672.637.85
Pugh 210.0 40 8,400.00 Expenses meens Benn
DeSimone 248 35 868.00 .
Mansour 19.3 35 675.00 6. Fees/Expenses in Litigating Fee Application
Donohoe 10.3 35 360.50 a. Attorneys
Petren 15 35 52.50 Liebman 42.5 125 5,312.50
*. Expenses cases — is i 2.798.80
; Smet LS Chambers 10.0 «125 1'250.00
<neeanenane in Litestion of Fon Aenteation Attorneys b. Expenses 13,095.14
Lovell 379.1 125 47,387.50 Subtotal 42,145.14
Benson 81.0 125 10,125.00 Total Award 2,365,875.74
b. Paralegals/Law Clerks ,
Pugh 40.0 40 1,600.00
Cole 21.5 40 860.00
Pence 38.0 40 1,520.00
Apple 66.0 35 2,310.00
Krulewitch 45.0 35 1,575.00
c. Expenses 7,324.99
Subtotal 72,702.49
TotalAward 1,687,139,92
Less Amount previously paid to Benson _ 347,332.93
Balance of Award due Benson 1,339,206.99
A44
APPENDIX D
ORDER OF THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI,
JULY 14, 1987
(Filed July 14, 1987)
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF MISSOURI
WESTERN DIVISION
No. 77-0420-CV-W-4
KALIMA JENKINS, et al.,
Plaintiffs,
vs.
STATE OF MISSOURI, et al.,
Defendants.
ORDER
Several motions are presently before this Court. Plain-
tiffs have moved the Court to amend its order of May 11,
1987 that awarded attorney's fees to plaintiffs’ counsel.
This motion will be granted in part and denied in part.
Plaintiffs also moved the Court to amend the long-range
magnet school order of November 11, 1986 to add the ex-
tended day program to the two environmental science ele-
mentary magnet programs at North Rock Creek and Korte
Schools. This motion will be granted. Finally, the State
A45
of Missouri has moved the Court to strike KCMSD’s Sug-
gested Findings and Conclusions regarding the year 3 de-
segregation budget. This motion will be denied.
Motion to Amend Attorney’s Fees Order
Plaintiffs moved the Court to amend its May 11, 1987
attorney's fees order to award Mr. Benson and his staff
additional fees and expenses for their services rendered
in monitoring the remedial programs from June 14, 1985
through June 14, 1986. Mr. Benson had requested
$42,090.45 for these services on July 1, 1986 but had failed
to include this request in his summary of fees requested
that he filed with the Court on March 13, 1987. In the
present motion, Benson has increased his request for these
monitoring services to $52,781.45.
This Court previously found that the hourly rates for
the Kansas City, Missouri attorneys with litigation ex-
perience and expertise comparable to that of Mr. Benson
range from $125 to $175 per hour. See May 11, 1987
order at p. 4. The Court also found that Mr. Benson’s
rate would fall at the higher end of this range based upon
his expertise in the area of civil rights. Id. After con-
sidering the twelve factors enumerated in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1984), amd the additional factor of delay in payment,
the Court concluded that a reasonable hourly rate for
Mr. Benson's services was $200.00. However, this fee was
for Mr. Benson's services in litigating the lawsuit, not
for his time expended in monitoring the implementation
of the remedial plan ordered by the Court. The Court
finds that time spent in monitoring the remedial plan
should be charged at a substantially lower rate, and re-
cently applied this approach in G.L., an infant, by and
A46
through his Next Friend, et al., v. Zumwalt, et al., Case
No. 77-0242-CV-W-4, March 27, 1987. Therefore, the
Court finds that the $125.00 hourly rate originally re-
quested by Mr. Benson for these services is reasonable.
Furthermore, the Court finds that $40.00 per hour for
paralegals and $35.00 per hour for law clerks are reason-
able rates for these services in the Kansas City area. The
Court also finds that the hours submitted by Benson and
his staff represent the time reasonably expended in moni-
toring and implementing the remedia! pian in year 1985-86.
The number of hours, multiplied by the rates found to be
reasonable by the Court, results in an additional fee award
of $37,950.00.
In addition, Mr. Benson requests $3,478.00 in expenses
incurred in monitoring the remedial plan in 1985-86. Hav-
ing reviewed the records submitted, the Court finds that
the expenditures were necessary and their costs reasonable
and awards the amount requested.
Accordingly, the Court awards Mr. Benson and his
staff an additional $42,090.45 in fees and expenses incurred
in monitoring and implementing the remedial plan in 1985-
86. Furthermore, for the reasons set forth in the Court's
order of May 11, 1987, the State of Missouri defendants
are solely liable for these additional fees and expenses
awarded to Mr. Benson and his staff.
The plaintiffs also moved the Court to amend its find-
ings with regard to the number of hours voluntarily ex-
cluded by Benson and his staff from their fee applications
pursuant to Hensley v. Eckerhart, 461 U.S. 424 (1983).
After re-examining the applications submitted by Mr.
Benson, the Court finds that it failed to recognize in its
May 11, 1985 order the initial reductions made by Mr.
Benson and his staff. With these additional reductions,
A47
the total number of hours excluded by Benson and his staff
approximate 4,490 hours and the Court modifies its pre-
vious order to reflect this amount. However, this amend-
ment does not affect the Court’s previous award of at-
torney’s fees because that award was based solely on the
remaining hours for which Benson and his staff requested
compensation, hours that the Court found were either
related solely to the successful claims made by the plaintiffs
against the State and the KCMSD, or were so closely in-
terrelated among the remaining claims that they could
not be separated.
Plaintiffs also moved the Court to increase their at-
torney’s fees award to reflect the risk of nonpayment in
this case. As previously found by this Court, the plain-
tiffs’ likelihood of success in their claim against the State
of Missouri was very high and thus Benson's risk of non-
payment very slight, because of the State's discriminatory
actions. This small risk of nonpayment was fully re-
flected in the reasonable attorney's fees awarded, plain-
tiffs’ counsel and therefore the Court denies Mr. Benson's
request to increase his award.
Plaintiffs also moved the Court to amend its findings
as to the total amount of fees and expenses sought by Mr.
Benson and his staff to reflect the $347,332.93 previously
paid to Mr. Benson by the State and the $42,090.45 in
fees and expenses for services rendered in monitoring the
remedial plan in 1985-86. In its order of May 11, 1987,
the Court stated that Benson “has moved for $3,310,587.00
in fees and expenses for services rendered by him and his
staff through June 30, 1986." This amount simply rep-
resented the alleged balance due of the total fee award
Mr. Benson was requesting. For clarification, the Court
modifies the second sentence of its May 11, 1987 order
to read:
A48
Plaintiffs co-counsel, Arthur Benson, has moved for
a total of $3,700,010.30 in fees and expenses for services
rendered by him and his staff through June 30, 1986.
The above modification has no effect on the amount of
fees and expenses awarded by the Court.
Long-Range Magnet School Order
Plaintiffs have moved the Court to amend its long
range magnet school order of November 12, 1986 to add
the extended day program to the two environmental science
elementary magnet programs at North Rock Creek and
Korte Schools. This proposal was approved by the De-
segregation Monitoring Committee on May 5, 1987 and
was agreed upon by all parties at the May 11-12 hearing
on the 1987-88 desegregation budget. Accordingly, plain-
tiffs’ motion will be granted ard the ‘ong-range magnet
school order of November 12, 1986 will be modified as
requested.
Motion to Strike
On June 15, 1986, the KCMSD filed Suggested Find-
ings and Conclusions relating to the 1987-88 desegregation
budget. Subsequently, the State of Missouri moved to
strike that pleading claiming it was not permitted by any
filing schedule issued by the Court and because the State
did not have adequate time to fully respond to KCMSD’s
suggestions.
Rule 12(f), Fed.R.Civ.P., permits a Court to strike
from a pleading “any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Generally,
motions to strike are disfavored and in the instant case
the State’s motion is improper as there is no claim that
anything in KCMSD's pleading is redundant, immaterial,
A49
impertinent or scandalous. However, the Court acknowl-
edges that the State may not have had sufficient time to
respond to KCMSD’s suggestions and therefore did not
consider either KCMSD’s suggested findings or the State’s
brief response in ruling on the year three desegregation
budget.
Accordingly, it is hereby
ORDERED that the plaintiffs’ motion to amend the
Court's order of May 11, 1987 regarding attorney's fees is
granted in part and denied im part as set forth in this
order; and it is further
ORDERED that the Court modifies the long-range
mag_.et order of November 12, 1986 to include the extended
day program at North Rock Creek and Korte Elementary
Schools; and it is further
ORDERED that the State of Missouri's motion to strike
KCMSD’s Suggested Findings and Conclusions relating to
the 1987-88 desegregation budget is denied.
/s/ Russell G. Clark
Russell G. Clark, District Judge
United States District Court
Dated: July 14, 1987
A50
APPENDIX E
ORDER OF THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, DECEMBER 5, 1986
(FILED DECEMBER 5, 1986)
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 85-1765
No. 85-1949
No. 85-1974
No. 85-2077
Kalima Jenkins, by her next friend,
Kamau Agyei,
Carolyn Dawson, by her next friend,
Richard Dawson,
Tufanza A. Byr’, 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,
A51
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,
Vv.
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,
Terry A. Bond, President,
Delmar A. Cobble,
Grover Gamm,
Jimmy Robertson,
Robert L. Welling,
Donald E. West,
members of the Missouri State
Board of Education,
A52
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,
Park Hill 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-1 and Blaine E. Steck,
Superintendent thereof,
Grandview Consolidated Schoo! District
C-4 and Dr. Tony L. Stansberry,
Superintendent thereof,
Fort Osage School District R-1 and
Victor Gragg, Superintendent
thereof,
Lee’s Summit Reorganized School District
R-7 and Dr. Bernard C. Campbell,
Superintendent thereof,
Blue Springs Reorganized Schoo] District
R-4 and Dr. Gale T. Bartow,
Superintendent thereof,
a ee Se ee ee ee
A53
Liberty School District and Dr. Ronald L.
Anderson, Superintendent thereof,
United States Department of Housing and
Urban Developmen: and Samuel Pierce,
Secretary thereof,
Appellees.
Appeal from the United States District Court for the
Western District of Missouri.
Submitted: Novmber 13, 1985
Filed: December 5, 1986
Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN,
ARNOLD, JOHN R. GIBSON, FAGG and WOLLMAN,
Circuit Judges, En Banc.*
JOHN R. GIBSON, Circuit Judge.
This case arises from claims of unconstitutional racial
segregation 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 bearing approximately three-fourths of the cost.
The district court found that the KCMSD and the State
had not eradicated vestiges of the racially segregated dual
school system once required under state law in violation
*Judge Bowman did not participate in consideration of this
case and Judge Magill was not a member of the court when it
was argued and submitted.
1. The Honorable Russell G. Clark, United States District
Judge for the Western District of Missouri.
A54
of the Constitution. The claim for interdistrict relief in
the form of consolidation or realignment of the suburban
school districts (SSDs) was rejected as the SSDs were
found to have eliminated all vestiges of their segregated
school systems and there was no finding of interdistrict
violation or interdistrict effect. The SSDs were dismissed
from the action. The United States Department of Hous-
ing and Urban Development (HUD) also was held not
liable. In this appeal, both the KCMSD and Kalima Jen-
kins, the named plaintiff in a certified class of present and
future KCMSD students (Jenkins class),? challenge the
denial of interdistrict relief. The Jenkins class also ap-
peals the judgment in favor of HUD. In addition, both the
KCMSD and the State challenge the scope and the alloca-
tion of 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 vio-
lation and may not be ordered to participate in interdistrict
relief, on those issues not related to housing, are affirmed
by the vote of five judges (Judges Ross, Fagg and Wollman
join in this opinion; Judge Arnold concurs in the result;
Chief Judge Lay, joined by Judges Heaney and McMillian,
dissents).
The interdistrict findings and conclusion on the hous-
ing issues are affirmed by an equally divided court (Judges
Ross, Fagg and Wollman join in this opinion; Judge Arnold
files a concurring and dissenting opinion in which he con-
cludes that the case should be remanded to the district
court to consider whether there are interdistrict housing
2. The named student plaintiffs were replaced at various
times during the litigation. In February 1985, the court certified
the class of present and future KCMSD students.
A55
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, Fagg and Wollman
join in the opinion and Judge Arnold concurs in the re-
sult; Chief Judge Lay, joined by Judges Heaney and Mc-
Millian, dissents).
This suit was filed in 1977 by the KCMSD, the School
Board, and four children of two School Board members.
The complaint alleged that the State, surrounding school
districts in Missouri and Kansas, and several federal agen-
cies including HUD* had helped cause or had been part
of a system of racial segregation among Kansas City metro-
politan area school districts. In October 1978, the district
court dismissed the Kansas defendants for want of juris-
diction. It also concluded that the KCMSD lacked stand-
ing to bring an action against the State as party plaintiff
and realigned the KCMSD as a defendant. School District
of Kansas City, Missouri v. Missouri, 460 F. Supp. 421
(W.D. Mo. 1978).*
3. The named defendants included the State of Missouri, the
Missouri State Board of Education and various Missouri of-
ficials, the State of Kansas, the Kansas State Board of Educa-
tion and various Kansas officials, several Kansas schoo] districts
in the Kansas City metropolitan area twelve Missouri school
districts in the area, the United States Departments of Transpor-
tation (DOT), Health, Education, and Welfare (HEW), and
Housing and Urban Development (HUD).
4. These 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 District, was
denied by this court. KCMSD thereafter filed an appeal 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).
A56
In May 1979, an amended complaint was filed against
KCMSD, and the federal and Missouri defendants named
in the original complaint. The amended complaint made
two distinct allegations: first, of an interdistrict viola-
tion, 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 filing, in July
1979, a cross-claim against the State, reiterating the alle-
gation of interdistrict violation made by the Jenkins class,
and seeking indemnification against any intradistrict lia-
bility.
Trial to the court commenced October 31, 1983.5 Over
the course of 64 trial days, plaintiff called over 140 wit-
nesses, offered 2,100 exhibits, and designated approxi-
mately 10,000 pages of depositions. Before hearing evi-
dence 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).* The court found that school
districts in Missouri are autonomous and that none of the
districts had committed any acts with intent to discrim-
inate on the basis of race, to contain blacks in the KCMSD,
or bar blacks from the SSDs. The court further found that
within four years after Brown v. Board of Education,
347 U.S. 483 (1954) (Brown I), and in most cases within
5. Before trial, the DOT and one of the SSDs, the Raymore-
Peculiar School District, were dismissed voluntarily. See Order
of June 5, 1984 at 2.
6. The eleven districts dismissed were the Blue Springs,
Center, Fort Osage, Grandview, Hickman Mills, Independence,
Lee’s Summit, Liberty, North Kansas City, Park Hill, and Raytown
School Districts. HEW subsequently was dismissed for plaintiffs’
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.
A57
a shorter time, all the SSDs had eradicated the vestiges of
their dual school systems and were operating unitary sys-
tems. The court further found that none of the alleged
discriminatory actions committed by the State or the
federal defendants had caused any significant current in-
terdistrict segregation. The district court therefore denied
interdistrict relief. See generally Order of June 5, 1984.
The district court then heard additional evidence and,
on September 17, 1984, issued its order holding the State
and the KCMSD liable for racial segregation 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 maintained a racially
segregated dual school system. The court found, in the
existence of twenty-four KCMSD schools with a black
enrollment in excess of 90%, and in other areas, vestiges
of the now unlawful dual school system. It therefore held
that the State and the KCMSD, under principles an-
nounced by the Supreme Court in Brown v. Board of Edu-
cation, 349 U.S. 294, 301 (1955) (Brown II), had failed
in their affirmative duty to dismantle the unconstitutional
pre-1954 system. The court also held that HUD was not
liable, finding that HUD had followed a balanced ap-
proach 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 com-
pensatory and remedial educational programs and neces-
sary capital improvements in KCMSD schools. The plan
is projected to cost $87,000,000 over the next 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.
A58
In this appeal the Jenkins class challenges the district
court’s dismissal of HUD, and joined by KCMSD, its dis-
missal of the SSDs, and its denial of interdistrict relief.
The KCMSD also challenges the district court’s realign-
ment of the KCMSD as a party defendant. The State chal-
lenges the scope of the district court's remedy and the
allocation of costs.
INTERDISTRICT LIABILITY FINDINGS
In Milliken, 418 U.S. 717, the Supreme Court held that
an interdistrict remedy may not be imposed absent a find-
ing of a constitutional violation within one district produc-
ing a significant segregative effect in another school dis-
trict. Id. at 744-45. Without an interdistrict violation and
interdistrict effect, there is no constitutional wrong re-
quiring an interdistrict remedy. Id. Plaintiffs advanced
to the district court three theories to support their claim
of interdistrict violation and effect, requiring the imposi-
sion of an interdistrict remedy in the form of consolidation
of the KCMSD and SSDs:
[F]irst, that the SSDs, as agents of the state, were
guilty of operating a regional system of segregated
schools that centered on and impacted Kansas City
with blacks and made the suburbs whiter before 1954;
second, that the SSDs failed in their affirmative duty
to eliminate the vestiges of the dual school system;
and third, that the SSDs are liable for the effects of
actions by the KCMSD and other defendants and can
therefore be included in an interdistrict remedy.
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 change of
A59
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 sub-
divisions of the State, the SSDs must be included in an
interdistrict remedy absent any finding that they had
committed specific violations by their own initiative.
The court examined the plaintiffs’ argument that the
pre-1954 dual school systems had caused racial segregation
in the Kansas City metropolitan area. The court acknowl-
edged the substantial increase in the KCMSD black pop-
ulation from 1910 to 1960, but found that the increase re-
sulted principally from the unusual economic and employ-
ment ramifications 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 families outside or within Missouri from moving to
and living in those districts. The district court also re-
jected the argument that within the SSDs any vestiges or
significant effects of the pre-1954 dual school system re-
mained. The acts thirty years past, the court found, had
negligible 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 long since disappeared. The district
court entered separate findings 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
7. The court specifically found that Independence, Lee’s
Summit, Liberty, North Kansas City, and Park Hill had earlier
eey ve dual school systems, but the other districts had not.
. at 43-95
A60
the 1957-58 school year, and the last, Park Hill, was fully
integrated by the 1959-60 school year. Id. at 43-95.
The court then considered the plaintiffs’ second theory,
that the SSDs had failed in their duty, pursuant to the
mandate of Brown II, to eliminate vestiges. The district
court found that the establishment of an association of
regional school districts did not negate 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 ed-
ucation programs, and particularly the creation of certain
vocational 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 examined
a statute enacted by the Missouri General Assembly in
1957 enlarging the size of a city that should constitute a
single 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 in-
terdistrict violation. Id. at 28-29. The court also examined
the SSDs’ response to recommendations of the Spain-
hower School District Commission of 1979, regarding re-
alignment 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 for rea-
8. H.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 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.
A61
sons at all related to race. It further rejected arguments
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 inter-
district remedy because the effects of others’ discrimina-
tory acts were felt within the SSDs. It found no evidence
that white families had been lured to or black families
discouraged from living in the SSDs. Nor did any of
the factual evidence concerning housing implicate any of
the SSD defendants. Id. at 34-35. The steady increase
in black enrollment in the SSDs since 1968, particularly
in Raytown, Hickman Mills, Center and Grandview dis-
tricts,® and the fact that in 1980, 23,434 blacks resided out-
side the principal contiguous area was found to refute
the testimony of plaintiffs’ experts. The court rejected
white-flight 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
enforcement did not have a current significant segregative
effect." With respect to public housing, it found that such
housing is available in significant 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 neighborhoods within the
KCMSD from white to black and the accompanying white
flight which had taken place in Kansas City since 1940.
Id. at 41.
9. In 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.
10. See Note 22, infra.
A62
The court therefore concluded that there was no inter-
district 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
outlying districts, not shown to have committed any con-
stitutional violation, a wholly impermissible remedy based
on a standard not hinted at in Brown I and II or any hold-
ing of this Court.’” Id. at 96 (quoting Milliken, 418 U.S.
at 746). It rejected a cumulative effect and found plain-
tiffs’ evidence de minimis at most and legally 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 indigenous to the
State-compelled dual school system has lingering effects
in the KCMSD. Jenkins v. Missouri, 593 F. Supp. at 1492.
The district court recognized the stipulation that before
1977 KCMSD was not unitary and did not comply with
federal regulations. 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 segregated
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 more of the same race. Id. In addition, four schools
that were black under the dual system were predominantly
A63
black when closed in 1968. Id. at 1492. In the 1983-84
school year no KCMSD school had less than 30% black en-
rollment, but 24 schools were racially isolated at more than
90% black. Id. at 1493.
The court found that the KCMSD still has not en-
tirely dismantled the dual school system. The court then
made particular findings on the liberal transfer policy, the
neighborhood school policy, and attendance zones, and
found that these, rather than facilitating integration, fos-
tered the maintenance of segregated attendance patterns.
Intact busing was found to have been segregative in intent
and effect, but, as it was stopped in the 1960’s, no continu-
ing violation existed. The court found that plans had not
been adopted for district-wide desegregation 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 sys-
tem." As vestiges of the State’s dual school system lin-
gered 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 constitution or stat-
utes prevented its affirmative disestablishment of the dual
school system. It held the issues in favor of the Jenkins
class and against KCMSD and the State and held the issues
in favor of KCMSD and against the State on the cross-
claim. Id. at 1505.
11. While the court conceded that the State may have
through its actions created an atmosphere in which private white
individuals and members of the real estate, banking, and in-
surance communities could justify bias against blacks it found
no evidence that the State significantly couraged such prac-
tices. 593 F. Supp. at 1501-03. The court also found that freeway
placement did not amount to a constitutional violation.
A64
LIABILITY OF HUD
With respect to the claim against HUD, the court
examined Federal Housing Administration appraisal prac-
tices before 1949, cooperative agreements with the City
of Kansas City under the auspices of the Housing Autho-
rity of Kansas City (HAKC) and the Land Clearance for
Redevelopment Authority (LCRA), and section 8 certifi-
cates. 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 prac-
tices for federally subsidized multi-family housing substan-
tially affected the racial composition of schools within
KCMSD. Id. at 1499. The court pointed to HUD’s affirma-
tive marketing efforts to apprise participating 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 mort-
gages, that it discriminatorily foreclosed on mortgages held
by blacks, or that it avoided selling the homes on which its
insured mortgages had been foreclosed to blacks. Further,
there was no evidence that neglect of HUD-held homes
was racially discriminatory in intent or purpose. The
issues were held in favor of HUD.
I.
We have had earlier occasion to deal with the legal
standards governing interdistrict school desegregation cases.
See, e.g., Little Rock School District v. Pulaski County
Special School District No. 1, 778 F.2d 404 (8th Cir. 1985);
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert. denied,
A65
105 S. Ct. 82 (1984)."* We draw our basic guidance from
the Supreme Court’s decision in Milliken v. Bradley, 418
U.S. 717 (1974):
Before the boundaries of separate and autonomous
school districts may be set aside by consolidating the
separate units for remedial purposes or by imposing
a cross-district remedy, it must first be shown that
there has been a constitutional violation within one
district that produces a significant segregative effect
in another district. Specifically, it must be shown that
racially discriminatory acts of the state or local school
districts, or of a single school district have been a
substantial cause of interdistrict segregation. Thus an
interdistrict remedy might be in order where the ra-
cially discriminatory acts of one or more school dis-
tricts caused racial segregation in an adjacent district,
or where district lines have been deliberately drawn
on the basis of race. In such circumstances an inter-
district remedy would be appropriate to eliminate the
interdistrict segregation directly caused by the consti-
tional violation. Conversely, without an interdistrict
violation and interdistrict effect, there is no constitu-
tional wrong calling for an interdistrict remedy.
418 U.S. 744-45 (citations omitted).
Two courts of appeals have read this language to re-
quire clear proof of cause and effect of a constitutional vio-
12. In Little Rock this court rejected the consolidation
remedy but ordered adjustment of the boundaries between the
districts, a voluntary intradistrict or interdistrict transfer system,
the exploration of magnet or special school or programs and con-
sideration of cooperative programs. 778 F.2d at 435-36. In
Liddell we approved a settlement providing for intradistrict
relief, a voluntary transfer program between cities and suburban
schools and a magnet school program.
A66
lation, and a careful delineation of the extent of the effect,
before an interdistrict remedy may be invoked. Goldsboro
City Board of Education v. Wayne County Board of Edu-
cation, 745 F.2d 324, 332 (4th Cir. 1984); Lee v. Lee County
Board of Education, 639 F.2d 1243, 1256 (5th Cir. 1981). As
the Fifth Circuit stated in Lee:
We believe the Court’s deliberate choice of phrases
such as “substantial” or “direct cause” and “significant
segregative effect” also expresses an insistence that
in cases where an interdistrict remedy is requested,
there must be clear proof of cause and effect and a
careful delineation of the extent of the effect. In the
absence of such a showing, school district lines are to
be carefully observed and desegregation remedies con-
fined to orders affecting the school district in which
the condition of segregation is manifest.
Id. at 1256.
In addition to “clear proof” of the interdistrict viola-
tion and its interdistrict effect and “a careful delineation”
of the extent of the interdistrict effects, it must be shown
that the interdistrict segregative effects are current. Lee,
639 F.2d at 1260. Federal courts may not invoke their
equitable power to fashion a remedy to correct a condition
unless it currently offends the Constitution. As the Court
stated in Milliken: “A federal remedial power may be
exercised ‘only on the basis of a constitutional violation’
and, ‘[a]s with any equity case, the nature of the violation
determines the scope of the remedy.’” Id. at 738 (quoting
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 16 (1971) ); see also General Building Contractors
v. Pennsylvania, 458 U.S. 375, 399 (1982) (a remedial de-
cree should “extend no farther than required by the nature
and the extent of that violation”).
A67
II.
We must also recognize at the outset the importance
of the district court’s factual findings in school desegrega-
tion cases. As we stated in Little Rock:
We will not reverse the district court’s factual
findings with respect to liability unless we conclude
that they are clearly erroneous. Fed. R. Civ. P. 52(a);
Anderson v. City of Bessemer City, 105 S. Ct. 1504
(1985); Pullman-Standard v. Swint, 456 U.S. 273,
287-90 (1982); Dayton II, 443 U.S. at 534 n.8; Columbus
Board of Education v. Penick, 443 U.S. at 468-71 (con-
curring opinions of Burger, C.J., and Stewart, J.);
United States v. United States Gypsum Co., 333 US.
364, 395 (1978). Nor will we reverse such findings
when they are based on inferences from other facts
unless the rigorous standards of the same rule are met.
Anderson, 105 S. Ct. at 1511. The Supreme Court has
emphasized the importance of the clearly erroneous
rule in civil rights cases, see, e.g., Pullman-Standard
v. Swint, 456 U.S. at 287-90, and, more particularly,
in schoo] desegregation cases:
The elimination of the more conspicuous
forms of governmentally ordained racial segrega-
tion * * * counsels undiminished deference to
the factual adjudications of the federal trial judges
in cases such as these, uniquely situated as those
judges are to appraise the societal forces at work
in the communities where they sit.
Columbus Board of Education v. Penick, 443 US. at
449, 471 (1979) (Stewart. J., concurring, with whom
Burger, C.J., joins, concurring).
A68
Little Rock, 778 F.2d at 410-11. See Morrilton School Dis-
trict No. 32 v. United States, 606 F.2d 222, 230 (8th Cir.
1979), cert. denied, 444 U.S. 1071 (1980); see also Riddick
v. School Board of the City of Norfolk, 784 F.2d 521, 533
(4th Cir. 1986) (factual findings by a district court in
school desegregation cases are entitled to great deference
on review “especially where the presiding judicial officer
has lived with a case for many years’).
The Supreme Court in Anderson v. City of Bessemer
City, 105 S. Ct. 1504 (1985), has explained that the trial
judge’s role is to determine fact, and duplication of these
efforts in the courts of appeals “would very likely con-
tribute only negligibly to the accuracy of fact determina-
tion.” Id. at 1512. The Court stated:
The reviewing court oversteps the bounds of its duty
under Rule 52 if it undertakes to duplicate the role of
the lower court. “In applying the clearly erroneous
standard to the findings of a district court sitting with-
out a jury, appellate courts must constantly have in
mind that their function is not to decide factual issues
de novo.” Zenith Radio Corp. v. Hazeltine Research,
Inc., 395 U.S. 100, 123 (1969). If the district court’s
account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible
views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.
Id. at 1511-12.
A69
Chief Judge Lay’s dissent,” in violation of the teach-
ings of Anderson, duplicates the role of the district court
and is an exercise in appellate factfinding. A reading of
the dissent is sufficient to demonstrate the rejection of
the district court’s carefully weighed findings of fact and
substitution of those more desirable, frequently based on
evidence considered and rejected by the district court."*
While on some occasions placing the mantle of the clearly
erroneous rule about the discussion, it is evident that Chief
Judge Lay was engaging in an original evaluation of the
voluminous and ofttimes contradictory record seeking an
ultimate conclusion more satisfactory than that reached
by the district court. This is directly contrary to the man-
date of Anderson.
13. Chief Judge Lay’s dissent, in contrasting facts to rhetoric
“doth protest too much.” W. Shakespeare, Hamlet, Act III, sc.
ii, line 242. The language, on its first | Pe particularly, is
exaggerated, without support in the reco The “extravagant
language” (see Milliken, Stewart, J., concurring, 418 U.S. 753),
requires this rejoinder.
14. We need point to only a few examples. “The record is
replete with evidence of constitutional violations by many of the
SSDs and of the effect those violations had on all of the SSDs
and on the KCMSD.” Chief Judge Lay’s dissent at 94. In
discussing the rejection of the evidence of Dr. James D. Anderson,
plaintiff's expert historian which the district court discussed in
detail in the June 5, 1985 Order, id. at 15-16, 18, Chief Judge
Lay states: “This evidence was highly probative and it was
wholly arbitrary for the court to reject it and inject its own
inferences. Moreover, I believe it is especially crucial in a case
of this nature to give great consideration to the testimony of
historial experts where the theory to be proved occurred long
ago and few witnesses are alive to testify.” Chief Judge Lay’s
dissent at 103, n.17. The increase in black enrollment in the
SSDs since Brown “is conclusive evidence that the lack of schools
for blacks in the SSDs prior to 1954 was a deterrent to blacks
settling there. * * * It is clear that the SSDs as well as the
state and KCMSD, have all failed to fulfill their affirmative
duty under Brown v. Board of Ed. to eliminate the vestiges of
their prior segregative policies and that significant interdistrict
effects of these policies are still evident in the Kansas City
litan area.” Id. at 106. “Here the racial imbalance is
clear evidence of continuing segregation following a pre-1954
de jure policy.” Id. at 109.
A70
ITI.
The Jenkins class does not challenge the findings of
the district court. Rather, it argues that the findings es-
tablish continuing interlocking, interdistrict violations
whose cross-district nature and metropolitan-wide scope
require relief encompassing the SSDs. It argues partic-
ularly that there is an interdistrict violation or effect under
Milliken and Hills v. Gautreaux, 425 U.S. 284 (1976), and
points to several independent bases for interdistrict relief.
These are: the pre-1954 interdistrict system of locating
dual schools; the State’s and the SSDs continuing inter-
district violations; KCMSD’s officially sanctioned subur-
ban flight violation; the State’s market-wide dual housing
systems; and LCRA and HAKC’s racial steering and siting
violations.
The Jenkins class further argues that the district court
denied interdistrict relief based on a “concatenation of
legal error” as to interdistrict liability. It argues that in
six respects the district court abandoned controlling legal
principles in concluding that: the existence of dual schools
before 1954 does not now amount to a constitutional viola-
tion; the SSDs were autonomous and independent; the
SSDs were absolved of liability for their pre-1954 viola-
tions and erroneously ignoring the post-1954 segregative
acts and omissions; without a finding of fault, the SSDs
may not be required to take part in eliminating the effects
on children in their districts of the State’s metropolitan-
wide dual school and housing violations; the SSDs did not
invidiously entice white families to move into their dis-
trict, and that unconstitutional actions within one district
making it blacker which reciprocally affects adjacent dis-
tricts by making them whiter may not provide an inde-
pendent basis for interdistrict relief; and absent intentional
A7l1
segregative acts by each school board sought to be included,
a finding of liability against actors in the housing market
is irrelevant to the SSDs. The housing argument will be
discussed separately in IV and V.
Finally, the Jenkins class argues that the district court
applied an improper burden and standard of proof of sig-
nificant effects in an improperly piecemeal fashion. It fur-
ther argues that the district court improperly fragmented
the evidence of unconstitutional acts rather than evaluat-
ing the evidence as a whole. It argues that the district
court’s finding of six distinct metropolitan-wide constitu-
tional violations satisfies Milliken’s significant segregative
effect standard. It urges under Swann that proof of a
system with a history of segregation warrants a presump-
tion against schools that remain disproportionate in their
racial composition. It argues that the proof acknowledged
by the court, of prior de jure segregation on an area-wide
basis, coupled with a patently continuing racial imbalance
among the SSDs’ student and faculty compositions, estab-
lished the liability of the SSDs. It further argues that
the district court improperly rejected much of the evi-
dence, and improperly barred the presentation of quanti-
tative evidence, as irrelevant.
The broad scope of these arguments is considerably
narrowed when viewed in light of significant factual find-
ings of the district court. These findings are not chal-
lenged as clearly erroneous. The district court found that
the SSDs were autonomous and locally controlled,’® and
15. The district court pointed to evidence that the SSDs are
governed by local boards elected by the voters, hire the super-
intendents and teachers, by vote establish their own tax levy,
have plenary power to establish school attendance zones, and
determine whether to provide transportation for their students.
(Continued on following page)
AT72
that the State was powerless to require a merger or con-
solidation.
The district court recognized the stipulation that be-
fore 1954 the State mandated 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
four years after Brown I, most of them doing so within
one year. The dismantling of the dual system was ac-
complished with all deliberate speed. Order of June 5,
1984 at 99. It specifically found that the evidence estab-
lished 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 negligible present effects. It
further found that the faculty and staff composition of
the SSDs do not affect the racial composition of the stu-
dent bodies. The court found the faculty were hired and
promoted on a racially neutral basis. The court could not
conclude that there was an interdistrict violation from any
possible intradistrict factors.
The factual argument based on the pre-Brown inter-
district system of locating dual schools flies in the face
of the district court’s finding that the pre-Brown acts
have negligible present effects. Chief Judge Lay’s dissent
suffers from a similar infirmity as the district court made
numerous findings interspersed through its order concern-
ing the negligible and de minimis nature of any such
Footnote continued—
Reorganization is a decision to be made by the local school dis-
tricts, and the state constitution prohibits legislative enactment
of special laws to change the boundaries of any school district.
The district court further found that there was no discriminatory
intent in the establishment or maintenance of the boundary lines
between the school districts. Order of June 5, 1984 at 10-11.
A73
effects. These findings are not clearly erroneous."* These
findings make unnecessary a detailed recitation of the
pre-1954 evidence.
16. The district court in its June 5, 1984 Order made the
following findings: The evidence that segregated schools exist-
ing before 1954 were the direct and substantial cause of blacks
leaving each SSD, and that such had a significant segregative
effect in the KCMSD “was weak, speculative and in any event
de minimis.” See Order of June 5, 1984 at 12. Plaintiff's argu-
ment that the state through its agents, the SSDs, maintained
a regional black interdistrict school system causing blacks to
leave the SSDs and migrate to Kansas City in search of an educa-
tion is not supported by the law or the evidence. Id. at 15.
Assuming the entire population decrease in the three county
area was caused by people leaving and going to Kansas City
because of the dual school system, it found “the impact of that
movement on the KCMSD enumeration insignificant.” Id. at 16.
The motivation for blacks leaving the three county area and
moving to Kansas City “resulting from segregated schools was
de minimis and insignificant” when compared with other primary
motivating factors transferring blacks to the KCMSD under the
segregated school system “is not a cause of the present racial
distribution of the population in the three county area.” Id.
at 18. The Jenkins class did not persuade the court “that any
vestiges or significant effects of the pre-1954 dual school sys-
tem remain” in any of the SSDs. Id. at 18. “At most plaintiff's
evidence is only de minimis and is therefore legally insufficient
to justify the relief sought against the suburban school district
defendants.” Id. at 98. The district court summarized:
Another factor negating the importance of plaintiffs’
voluminous pre-1954 evidence is simply its age. Our society
is dynamic; myriad factors produce a multitude of simul-
taneous decisions and consequent effects. If it were a stag-
nant entity, the pernicious effects of de jure segregation
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, re-
shaping earlier actions. Lee v. Lee County, supra, €39
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 41(b), it is not required to do, the violations proved are
at most, de minimis and far removed in time.” Id. at 105.
Chief Judge Lay’s dissent does not establish what the
Jenkins class and KCMSD did not argue, that these findings of
fact are clearly erroneous.
A74
The argument that the State and SSDs participated
in continuing interdistrict violations is contrary to the
district court’s finding that the SSDs had met their con-
stitutional obligation to operate unitary school systems
within four years after Brown I, most of them doing so
within a year. Similarly, the argument 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 argument based on flight into
neighboring SSDs making the southeast area schools
blacker and recipient SSD schools whiter, thereby causing
racial segregation in adjacent districts, is contrary to the
district court’s finding that there was no barrier of move-
ment to blacks to the SSDs. The district court specifically
found that there was considerable increase in the black
enrollment of the SSDs, particularly Center, Grandview,
Hickman Mills, and Raytown.
Similarly, in the enumeration of six legal errors, three
are based upon pre-1954 actions of the SSDs. The district
court’s findings that these acts have negligible present
effect fundamentally undermines the validity of these
arguments. As we have seen, the argument based on the
actions of KCMSD and white flight run contrary to the
factual findings mentioned above.
So also, the argument that the SSDs, though not at
fault, would still be liable to take part in eliminating the
effects on children in their districts of the State’s metro-
politan-wide dual school violations, suffers from two fatal
deficiencies. It ignores the lack of finding of any such
effects, and is contrary to the district court’s findings that
within at most four years after Brown I, any vestiges of
the dual school systems that may have existed in the SSDs
had been eliminated.
AT75
The Jenkins class further argues that Swann raises
a presumption against schools that are disproportionate
in their racial composition. The district court did not err
in rejecting the Swann presumption. Milliken was careful
to point out that disparity in the racial composition of
pupils within a single district merely signals an inquiry
into the causes for pronounced racial identifiability of
schools within one school system. The Milliken limitation
of this presumption is the subject of comment by the Fifth
Circuit in Lee v. Lee County Board of Education, where
the court stated:
It seems important to note also that Milliken, un-
like Swann and Keyes v. School Dist. No. 1, 413 U.S.
189 (1973), did not sanction the use of any presump-
tions on the question of the cause of interdistrict seg-
regation. Thus, while Swann, as noted above, per-
mits 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 sys-
temwide de jure segregation from proof that school
authorities have pursued an intentional policy of seg-
regation in a substantial portion of a school district,
Milliken refused to sanction a presumption that sig-
nificant disparities in the racial composition of autono-
mous school districts resulted from impermissible ac-
tion by those districts and thus justified imposing
upon them the burden of remedying conditions of
segregation existing in other districts. The Milliken
Court noted that both Keyes and Swann merely in-
volved “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
A76
racial imbalance with a constitutional violation call-
ing for a remedy.” 418 U.S. at 741 n.19 * * *.
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 v.
Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 423 U.S.
451 (1975); Haney v. County Board of Education, 410 F.2d
920 (8th Cir. 1969). They simply recognize that racial
gerrymandering, which the district court specifically found
is absent here, will make school authorities responsible for
the foreseeable effects. So also, the argument concerning
the presumption runs directly contrary to the teachings
of Washington v. Davis, 426 U.S. 229, 240 (1976), that
there must be a showing in a school desegregation case
of “a current condition of segregation” resulting from in-
tentional 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 ap-
plies.
The arguments of the Jenkins class run contrary to
the facts found by the district court.'’ In essence, in the
detailed recitation of evidence, it seeks to have this court
substitute its judgment for that of the district court. This
is contrary to the general rule of Anderson v. City of
17. Chief Judge Lay’s dissent also argues 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
We cannot read the general statement in the recent order to have
the effect of setting aside carefully detailed findings of facts
and conciusions in its 105 page Jume 5 Order, its 21 page order
on intradistrict liability, or its 45 page order on remedy.
AT77
Bessemer City, supra, and to the specific dictate of this
court that we give “undiminished deference to the factual
adjudications of federal trial judges in cases such as these,
uniquely situated as those judges ar to appraise the so-
cietal forces at work in the com -iunities where they sit.”
Little Rock, 778 F.2d at 410-11.
IV.
We next consider arguments advanced by the Jenkins
class that racially discriminatory acts by the State in hous-
ing-related areas justified interdistrict relief involving
the SSDs. Before considering 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 inter-
district 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 holding that each
SSD could not be required to participate in an interdistrict
remedy absent a finding that that SSD had engaged in
racially discriminatory conduct.
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 dis-
trict that produces a significant segregative effect in
another district.” 418 U.S. at 744-45. Specifically, the
court must find that racially discriminatory acts “have
been a substantial cause of interdistrict segregation.” Id.
at 745. Absent this showing, “there is no constitutional
wrong calling for an interdistrict remedy.” Id. On the
facts before it, the Court was forced to conclude in Milli-
ken that:
A78
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 mandated 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 im-
permissible remedy based on a standard not hinted
at in Brown I and II or any holding of this Court.
Id.
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 and extent of the constitutional vio-
lation.” * * * In Milliken, there was no finding of
unconstitutional action on the part of the suburban
school officials and no demonstration that the viola-
tions committed in the operation of the Detroit school
system had had any significant segregative effects in
the suburbs. * * * The desegregation order in Milli-
ken requiring the consolidation of local schoo] districts
in the Detroit metropolitan area thus constituted di-
rect federal judicial interference with local govern-
mental entities without the necessary predicate of a
constitutional violation by those entities or of the
identification within them of any significant segre-
gative effects resulting from the Detroit school of-
ficials’ unconstitutional conduct. Under these circum-
stances, the Court held that the interdistrict decree
A79
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 Education v. Wayne County
Board of Education, 745 F.2d at 328 (“An independent
school district which has not caused segregation in a
neighboring independent district has no duty to rectify
a racial imbalance in the other districts.’’).
Milliken and Hills make clear that we may grant in-
terdistrict relief only to remedy a constitutional violation
committed by the SSD, or to remedy an interdistrict effect
in the SSD caused by a constitutional violation in KCMSD.
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 Milli-
ken, “impose on the outlying districts, not shown to have
committed any constitutional violation, a wholly imper-
missible remedy.” 418 U.S. at 745. Order of June 5, 1984
at 96. It further found that the Jenkins class had not
established any acts or omissions by the SSDs “which have
had a substantial segregative impact in any other dis-
trict.""* The district court was compelled to make this
inquiry by Milliken and Hills, stressing as they do the
significance of the commission of a constitutional viola-
tion. The court’s consideration of the appropriateness of
interdistrict relief would have been incomplete without
this inquiry. Milliken makes plain that the issue of
whether the parties are constitutional violators must be
considered as well as the issue of whether there is a con-
stitutional violation in one district causing a significant
segregative effect in a neighboring district.
18. See Note 16, supra.
A80
Moreover, contrary to the argument 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 ad-
mittedly emphasizes the absence of culpability of the
suburban districts. However, the court explicitly recog-
nized that under Milliken “there must be evidence of a
constitutional violation in one district that produces a
significant segregative 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 district were affected and that
the remedy must be limited to that system. In examining
the cause and effect issue, the court noted that “not only
is plaintiff's evidence here blurred as to cause and effect,
there is no ‘careful delineation of the extent of the effect.’ ”
Id. at 96 (quoting Lee, 639 F.2d at 1256). The district
court thus dealt not only with the issue of whether the
SSDs were constitutional violators but also whether there
were significant interdistrict segregative effects. See V,
infra. When it did so, it made specific findings that negate
current significant 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 Circuit suggested a number of practical
problems in attempting to order school districts to remedy
housing violations:
We do not find any case addressing the argument
that a school board otherwise innocent of segregative
intent is liable for the discriminatory housing prac-
tices of other governmental agencies. We decline to
accept this argument. Under this argument the dis-
criminatory conduct of the FHA in making housing
loans and local housing authorities in the construc-
A81
tion 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 plain-
tiffs, 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 might 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.
Id. at 968 (footnote omitted).
The Supreme Court has given consistent admonition
in Hills and Milliken that federal courts may not “re-
structur[e] the operation of local governmental entities
that were not implicated in any constitutional violation.”
425 U.S. at 279. The district court’s findings amply estab-
lish 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 analysis. In Little Rock, 778 F.2d
404, we ordered that the boundaries of the North Little
Rock School District remain intact “in partial recognition
of the fact that the nature and extent of its interdistrict
violations are less severe than those of the other defen-
dants.” Id. at 435. Judge Arnold’s separate concurring
and dissenting opinion recognizes that the remedy to be
imposed against the SSDs must be “limited by the fact
that the SSD is not itself a constitutional violator.” Post
at 75.
We recognize that Morrilton School District No. 32 v.
United States, 606 F.2d 222, states that school districts may
A82
be required to participate in a remedy when “there was
no evidence implicating them in a direct way with the es-
tablishment” of the segregated district. Id. at 228. Morril-
ton is a gerrymandering case. Its broad language must be
limited to its facts, an interdistrict violation in the consoli-
dation of school districts, with the effects felt in each." An
attempt to imbue Morrilton with broader force disregards
not only its salient facts, but also the Seventh Circuit
precedent it quotes: “If the state has contributed to the
separation of the races, it has the obligation to remedy the
19. Milliken makes clear that “an interdistrict remedy might
be in order * * * where district lines have been deliberately
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 language. We
dealt in Morrilton with the consolidation of schoo] districts in
Conway County, Arkansas that created all all-black East Side
District and a disproportionately white Morrilton District. The
court stated:
The violation here is clearly interdistrict in nature.
East Side is almost entirely black and includes territory that
would properly have been absorbed by the
districts were it not for racial considerations. The
of the East Side District, and consequently, the boundaries
of the other school districts in Conway County, were not
neutrally drawn. Thus, the prohibition in other cases * * *
is not applicable here. Interdistrict relief is appropriate and
necessary to remedy the constitutional violation.
Id. (citations omitted). The court continued:
Here, the nature of the violation was the consolida-
tion of school districts on the basis of race. * * * [T]he
effects of that consolidation were manifested in
the boundaries and racial composition of the Morrilton,
Plumerville and East Side Districts. East Side is almost
all black, and Morrilton is disproportionately white.
Id. at 229.
Morrilton holds that the unconstitutional consolidation of
school districts so as to create an all-black district leaving
others disproportionately white may properly be remedied through
interdistrict relief. To argue that Morrilton compels imposition
of an interdistrict remedy on the innocent SSDs in this case ig-
nores that it deals with racial gerrymandering.
A83
constitutional violations. That remedy may include school
districts which are its instrumentalities and which were
the product of the violation.” Morrilton, 606 F.2d at 229
(quoting United States v. Board of School Commissioners,
573 F.2d 400, 410 (7th Cir.), cert. denied sub nom. Bowen
v. United States, 439 U.S. 824 (1978)). Here the district
court clearly found that the SSDs were autonomous, not
mere instrumentalities of the State, and their boundaries
not the product of any constitutional 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 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 vio-
lation and effects, it argues, 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 a 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 96. It made specific
findings that negate the existence of significant inter-
A84
district current effects in the SSDs.” As Milliken re-
quires an interdistrict violation causing a significant seg-
regative effect in another district, these findings pose
an insuperable barrier to granting 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 dis-
courage black families from outside or within Missouri
from moving to and 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 contiguous area. Id.
at 36-37. We have observed the increase in black enroll-
ment 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 economic and employment ramifications of the
World Wars and intervening Depression. Id. at 17. None
of the SSDs were shown by the expert Dr. Tobin to have
played any significant 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 dis-
trict court made numerous findings concerning housing
choices, economics, and job opportunities. Jenkins v. Mis-
souri, 593 F. Supp. at 1490. In rejecting the expert testi-
mony of Dr. Kane, the court pointed to the importance of
20. The court also specifically found the converse. The
district court found that no SSD had committed any constitutional
violation that had interdistrict segregative effect in the KCMSD
or any other district. Order of June 5, 1984 at 18-19, 45, 48, 51,
54, 59, 67, 74, 78, 83, 91, and 95.
A85
job location, ethnic clustering, and personal preference. Id.
at 1491. These findings demonstrate the importance of
personal choice,” 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
(5th Cir. 1983).
Regarding the existence of racially restrictive cov-
enants, 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. Kruemer, 334 U.S. 1 (1948). It recognized the
tremendous housing growth in many suburban areas after
1948, when the covenants were a nullity. That blacks pres-
ently live in locations previously covered by restrictive
covenants further undermines their significance. Order of
June 5, 1984 at 39.”
21. The 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 so to enjoy a middle class environment rather
than an integrated environment. Order of June 5, 1984 at 35. A
substantial 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.
22. With respect to the various districts, the court found
that Fort Osage had had no covenants, Order of June 5, 1984 at
51, that Grandview, Lee’s Summit, and North Kansas City had
very few covenants, id. at 53, 73, and 83, and that Independence
and Liberty also had few such covenants. Id. at 66, 77. The
district court found that the restrictive covenants had no effect
in Blue Springs, id. at 44-45, and Park Hill, id. at 90. There
was no evidence that covenants prevented blacks from moving
into Independence, id. at 66, Lee’s Summit, id. at 73, or Liberty,
id. at 78, and there was no present effect of past practices in
preventing movement into Center, id. at 48, Hickman Mills, id.
(Continued on following page)
A86
These findings of the district court that we have out-
lined above deal with conditions or effects that would
have been expected had there been an interdistrict effect
in the SSDs flowing from housing violations committed
by the State or other actors in KCMSD.
Judge Arnold’s concurring and dissenting opinion
argues, 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 School Commissioners, 637 F.2d
1101 (7th Cir.), cert. denied, 449 U.S. 838 (1980), both
approved interdistrict remedies based in part upon housing
discrimination practiced by state actors. Post at 65.** In
Evans, the district court found that governmental au-
thorities had provided public housing almost exclusively
within the confines of Wilmington and restricted the avail-
ability 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 segregative intent of state
agencies.** 637 F.2d at 1110-11.
Footnote continued—
at 59, and Raytown, id. at 94. There was no credible evidence
of housing discrimination in North Kansas City that had sub-
stantial 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 elim-
inated the effect of such covenants in Grandview. Id. at 53.
23. Both cases dealt not only with the housing issue, but
also contained strong findings based upon boundary violations.
See Part VI, infra.
24. On 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
(Continued on following page)
A87
In this case the district court findings are far dif-
ferent. There was no lack of balance between federally
assisted housing within the KCMSD and the suburban
areas, as demonstrated by the 6,832 HUD-insured or sub-
sidized mult: family units within KCMSD and 9,872 such
units in the eleven SSDs. Jenkins v. Missouri, 593 F.
Supp. at 1499. HUD efforts were designed to insure that
participating section 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 Kan-
sas 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 subsidized multi-family hous-
Footnote continued—
interdistrict remedy based on housing violations. The detailed
findings of the district court established a lengthy chain of
actions which were designed to and succeeded in concentrating the
black population in southwest Yonkers and in maintaining east
and northwest Yonkers as overwhelmingly white communities.
In contrast to the facts presented in this case, not one of Yonkers’
subsidized housing projects for families was located in the over-
whelmingly white neighborhoods of the city’s east and northwest
sections. Sites for such projects in white communities were
repeatedly considered and rejected. Such action contributed
significantly to extreme segregation in Yonkers. Id. at 1364-65.
More than 30 years of subsidized housing activity with a size-
able and changing group of city officials sharing responsibility
was involved. Id. at 1369. Over that period, there was con-
stant strong community opposition following proposals of sites,
a political structure likely to make community opposition ef-
fective, and extreme consistency in sites in east Yonkers and
other heavily white areas being rejected. Whatever the per-
sonnel, there was a common theme that racially influenced op-
position 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 officials. Id. at 1373.
A88
ing had a substantial effect upon the racial make-up of
schools in KCMSD. Id. at 1499. The findings contained
in the analysis of HUD’s liability also relate to LCRA
and HAKC.
The facts relied on to support the housing violations
in Evans and Board of School Commissioners are directly
contrary to those found in this case. These cases simply
give no assistance to the argument that there have been
constitutional violations by housing actors having a sig-
nificant segregative effect in the SSDs.
Other findings on housing practices are significant. The
district court specifically found that FHA appraisal prac-
tices before 1950 had at most a de minimis effect on present
racial housing patterns. It examined LCRA practices and
its role in administering urban renewal programs under
the Housing Act of 1949. It found that HUD had investi-
gated LCRA and issued a report in April 1972 finding dis-
crimination in LCRA’s referral practices and in requiring
that such practices be ceased and reports filed. Failure
to correct this led in June 1973 to refusal to fund the pro-
gram and a cooperative agreement between HUD, LCRA,
and the City of Kansas City by which the city assumed
responsibility 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. Mis-
souri, 593 F. Supp. at 1497-98. Again, the finding of the
district court concerns and is limited to intradistrict claims.
This finding is not sufficient to justify remand to the
district court for consideration, as Judge Arnold suggests,
of what interdistrict effect may have resulted from such
actions.
The district court found that while the HAKC con-
structed seven family projects between 1952 and 1963
A89
within the model cities or urban renewal areas, the loca-
tion was in accordance with congressional acts and the
assignment 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 practices of HUD in site selection and approval
for federally subsidized multi-family housing substantially
affected the racial 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 inter-
district effect occurring in the SSDs.
Another weakness immediately is apparent in analyz-
ing the Jenkins class’ arguments in the context of the dis-
trict 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 substantial increase
in black school population. The exhibit relied upon by the
district court in its findings demonstrates that the KCMSD
black population 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 argue that alleged LCRA and HAKC violations
created these interdistrict effects simply ignores logic.
The court specifically found that KCMSD assignments
of children to particular schools had an intradistrict effect
and were not influenced by any SSD. Further, these ac-
A90
tions did not have a significant effect on the enrollment
in any SSD. Order of June 5, 1984 at 38.*°
The court considered many non-governmental housing
factors and rejected the theory that liability may be im-
posed upon the SSDs for being the recipients of people
moving for whatever reason. The court found that red-
lining, steering, and block-busting practices by private real
estate agents, which may have affected the racial composi-
tion of KCMSD, were not the actions of KCMSD or of any
SSD and are beyond the control of any school district.
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 between the conduct of the SSDs
and the policies or practices of independent housing actors,
the court would not hold the SSDs liable for racial im-
balance. 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 individuals.
Id. at 1503. The court went no further but commented
that the question of State liability would be close if it
hinged solely on this encouragement of private discrimina-
25. Chief Judge Lay’s dissent devotes considerable dis-
cussion to the findings of the district court in the intradistrict
hearing concerning the acts of KCMSD. It refers to the move-
ment of the black population 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 con-
sider these statements in a proper Rule 52(a) analysis.
A91
tion. It then proceeded to base its finding against the State
on the intentional creation of the dual school system in
KCMSD and the failure to eradicate its vestiges. The Jen-
kins 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 findings
are in the district court’s separate opinion concerning in-
tradistrict liability prevents extension of such findings to
arguments regarding interdistrict effect in the SSDs.
Thus, even accepting the Jenkins 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.* It is, of course, evident from
26. A recent article, Housing Discrimination as a Basis for
Interdistrict School Desegregation Remedies, 93 Yale L.J. 340
(1983), flatly argues for the extension of housing as a basis for
metropolitan school desegregation remedies and as a means of
overcoming the Milliken barriers. It outlines in some detail
the use of this theory in various desegregation 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 governmental entity found guilty of constitutional
violations. Further, the scope of the remedy is limited to
the extent to which official housing discrimination demon-
strably caused school segregation. Consequently, the hous-
ing approach is consistent with the agency principle that
seeks to prevent local agents of the state from escaping
participating in remedies for their own wrongdoing.
Id. at 347 (emphasis added) (footnotes omitted). There simply
is no evidence in the record in this case that official housing dis-
crimination caused school segregation and the findings of the
district court as we have outlined above so demonstrate.
Ag2
the findings that there were no constitutional violations in
the SSDs. Under Milliken this answers the arguments
made by the Jenkins class, as well as the further articula-
tion in the arguments of KCMSD, and forecloses efforts to
require the SSDs to be subject to the claim for interdistrict
relief, be it consolidation or some step less drastic.
To consider isolated bits of evidence, de minimis in
nature, and to mix this with speculation is insufficient to
support the conclusion that there are additional factual
issues not passed upon by the district court. The findings
made were adequate to dispel the conclusion required by
Milliken that therc be significant segregative effects in the
SSDs caused by actions of a constitutional violator in
KCMSD.
The housing discussion is not complete without another
word of caution. Plaintiff's expert, Dr. Gary Orfield, testi-
fied that the Kansas City metropolitan area, located in both
Missouri and Kansas, comprised a single housing market.
Dr. Kane testified that 7,239 black students now in Missouri
schools would be in Kansas schools had there not been
housing discrimination. Record at 7669-70, Pl’s Exhibit
1265-R. A number of witnesses called by plaintiff testified
their children were moved from the KCMSD to Johnson
County, Kansas. Record at 6722-23, 6809, 6863-64, 6953.
The district court dismissed the Kansas districts from this
action in its order of October 6, 1978. School District of
Kansas City v. Missouri, 460 F. Supp. at 431. Accordingly,
it made no findings on these issues. This evidence, how-
ever, points to the serious complications present in a claim
based on housing violations where the housing market ex-
tends into another state and there is movement from an
impacted district into the other state.
A93
VI.
The Jenkins class relies particularly on decisions
from Wilmington, Louisville, Indianapolis, and Allegheny
County, in which interdistrict remedies had been ordered.
These cases involved gerrymandering; the present case
does not. The district court specifically found that the
establishment and maintenance of school district boun-
daries was a local matter in Missouri, determined through
local initiative, and uninfluenced by racial animus. The
district court thus held the gerrymandering cases inappo-
site. We agree.
Evans v. Buchanan, 393 F. Supp. 428, considered the
effect of Delaware legislation explicitly prohibiting the
state board from altering the boundaries of the Wilmington
school district, fixed as coterminous with the Wilmington
city limits. The district court found no racially discrimi-
natory purpose in the Act’s freezing of the Wilmington
district’s boundaries. Id. at 439. It held, however, that
the Act helped to maintain the racial identifiability of the
Wilmington and the suburban New Castle County school
districts and thus contributed to the segregation of the
races. Id. at 445-46. The district court also found that
the Wilmington district and the suburban districts were not
meaningfully separate and autonomous. Id. at 428.
Similarly, in Newburg Area Council, Inc. v. Board of
Education, 510 F.2d 1358 (6th Cir. 1974), cert. denied, 421
U.S. 931 (1975), the court observed that while the county
was established by statute as the basic educational unit,
“school district lines in Kentucky ha[d] been ignored in
the past for the purpose of aiding and implementing con-
tinued segregation,” and that “[s]uch disregard continue[d|
to have an effect on the racial imbalance in the county's
A94
schools * * *.” Id. at 1360. In addition, the court specifi-
cally recognized that both the Louisville and Jefferson
County school districts had failed to eliminate all vestiges
of state-imposed segregation. Id. at 1359. Accordingly,
it is clear that unlike the present case, the Louisville
boundary lines were purposefully manipulated to maintain
segregated school districts.
United States v. Board of School Commissioners, 637
F.2d 1101, involved the exclusion of certain school districts
from the Uni-Gov legislation which perpetuated the seg-
regated white schools in suburban Marion County. Id at
1105. The issue involved was whether the school bound-
aries should coincide with the expansion of the boundaries
of the City of Indianapolis. The Fourth Circuit affirmed
the findings that the decisions were made with discrimina-
tory purpose. Id. at 1108.
In Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir.),
cert. denied, 459 U.S. 824 (1982), the court pointed to find-
ings that in 1971 the state and county boards intentionally
created a district which was 63% black, and four nearby
districts that were from 87% to over 99% white. Id. at
1111. This process involved the redrawing of school bound-
aries, and as such was a constitutional violation. Id. at
1120. The violation was interdistrict in nature and re-
quired interdistrici relief.
These cases all involve governmental action fixing or
ignoring boundaries with discriminatory intent. The find-
ings in the case before us are to the contrary. These cases
are therefore distinguishable as are the boundary cases
such as Morrilton, considered by this court. See Part IV,
supra. These'decisions upon which the Jenkins class so
heavily relies, when viewed in light of the findings made
A95
by the district court, plainly have no applicability to the
present case. The district court therefore correctly rejected
arguments based upon them.
VIL.
To the contrary, other decisions relied upon by the
district court carry great force. Lee v. Lee County Board
of Education, 639 F.2d 1243, distinguishing Newburg and
Evans, refused to impose an interdistrict remedy on truly
autonomous local school districts. Taylor v. Ouachita
Parish School Board, 648 F.2d 959, 966 (5th Cir. 1981), also
found autonomous school districts and an intradistrict vio-
lation as opposed to interdistrict violations. A showing of
segregative effect alone was considered to be insufficient
under Milliken without demonstration of interdistrict vio-
lation and interdistrict effect.
Goldsboro City Board of Education v. Wayne County
Board of Education, 745 F.2d 324, presents many similarities
to the case before us. The argument was made, similar to
that advanced by the Jenkins class, that the district court
erred in its legal ruling that the county board owed no
duty to the city board to decrease the proportion of blacks
in the city schools. Both the city and county school districts
were unitary. The court in Goldsboro stated:
An independent school district which has not caused
segregation in a neighboring independent district has
no duty to rectify a racial imbalance in the other dis-
trict. * * * Both the City and County were found to
have unitary school systems. * * * Swaan implies that
once a school system is unitary it has no duty to go
to extraordinary measures to compensate for demo-
graphic changes it did not cause or encourage.
A96
Id. at 328-29 (citations omitted) (footnote omitted). Golds-
boro rejected the argument that it violated the Constitution
by maintaining separate county and city school districts
which, while racially neutral when created, had in the face
of demographic changes made the population of the city
schools more black.”
The Atlanta case also involves facts similar to those
before us. The decision of a three-judge court in Armour
v. Nix, 16-708 (N.D. Ga. 1979), aff'd, 446 U.S. 930 (1980),
denied an interdistrict remedy. Armour discussed particu-
larly past conditions and practices and stressed the need for
a current interdistrict effect. The holding in Armour was
best summarized in Lee v. Lee County Board of Education,
639 F.2d 1243, as follows:
Armour involved the City of Atlanta school district
and a number of suburban county districts in the met-
ropolitan Atlanta area. The demographic pattern was
a familiar one. The ity of Atlanta, and its school sys-
tem, has become smaller and predominantly black, as
the surrounding suburban communities have expanded
rapidly and become predominantly white. Given these
residential patterns, no intradistrict desegregation plan
promised any degree of meaningful racial integration
of the public schools within the city district. In
Armour, the court concluded that interdistrict relief
would, nevertheless, be inappropriate because the cur-
rent pattern of pervasive residential segregation, which
the court found to be the proximate cause of the racial
27. Goldsboro commented about the myriad reasons for in-
oa + = | —_ in metropolitan areas, to
vd of the City of Richmond. Va., 462 F.2d
1058 1066 (4th (an Ci
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