# Appendix — Missouri v. Jenkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0229%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 491 U.S. 274 ## Text 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 eee E. L. Menpennait, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080 » 2. Oe ee ee -_-- — o_o. — = VK eS = Se —— = Ft eS FF = — —— Se ee ee Fe ce SS Fe ee Ke ee Kk eS ee 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 Al7 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 s z : A113 It would now appear that some of the districts are not moving forward with this plan. In my opinion the failure to organize and implement this program would be a very significant factor in de- termining discriminatory intent in the future litigation which is certain to result from the further processing of this case. The St. Louis program would be a useful model for the actions to be taken by all the Missouri districts which are parties to this action. ARNOLD, Circuit Judge, concurring in part and dissenting in part. While I concur in much of what the Court has said today, I must respectfully dissent from those portions of the lead opinion concerning suburban school district (SSD) participation in a remedy for the interdistrict effects of the State of Missouri’s housing violations. In all other respects, I concur in the judgment. I would hold that the District Court erred in conclud- ing that the SSDs cannot be required to participate in an interdistrict remedy for interdistrict school segregation caused by the State’s constitutional violations in the area of housing. The case should be remanded to the District Court for determination of the current interdistrict ef- fects, if any, of the State’s housing violations. Any SSDs implicated by this analysis should be obliged to participate in an appropriately tailored interdistrict remedy. L The District Court was of the view that no SSD could be made to take part in an interdistrict remedy unless there had been “a racially discriminatory act by ([the All4 SSD] that substantially caused segregation in another district.” Opinion of June 5 at 6, citing Milliken v. Bradley, 418 U.S. 717, 745 (1974). The District Court concluded that because the housing discrimination at issue here was perpetrated by the State and other governmental entities, rather than by the SSDs, the SSDs cannot be allotted a mandatory role in an interdistrict remedy for any resulting school segregation. Opinion of June 5 at 42. This position involves a misconstruction of Milliken. In a passage which expresses the core of Milliken, Chief Justice Burger wrote: The controlling principle consistently expounded in our holdings is that the scope of the remedy is de- termined by the nature and extent of the constitu- tional violation. Swann [v. Charlotte-Mecklenburg Board of Education], 402 U.S. [1], at 16 (1971). Be- fore the boundaries of separate and autonomous school districts may be set aside by consolidating the sep- arate 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. 418 U.S. at 744-45 (emphasis added). Numerous other portions of Milliken further evidence the Court’s view that an interdistrict remedy involving a school district may be based on discriminatory acts of the state or other school districts with interdistrict segregative effects on the school district in question. See, e.g., id. at 745 (“With no show- A115 ing of significant violation by the . . . outlying school dis- tricts and no evidence of any interdistrict violation or effect” (emphasis added), an interdistrict remedy was im- proper); id. at 748 (interdistrict relief unjustified because “there has been no showing that either the State or any of the . . . outlying districts engaged in activity that had a cross-district effect.” (emphasis added)); id. at 750-751 (discussing state activities as possible bases for interdistrict relief). As support for the District Court’s decision regarding housing, the lead opinion cites the discussion of Milliken in Hills v. Gautreaux, 425 U.S. 284 (1976). Yet, Hills states that the Court in Milliken rejected an interdistrict remedy because, while the trial court had found that “con- stitutional violations committed by the Detroit School 1. The lead opinion does not make clear its precise view of the District Court holding that because the SSDs are not them- selves constitutional wrongdoers, they may not be made part of an interdistrict remedy for State housing violations. See ante at 25-31. At points, the opinion appears to agree that Milliken precludes inclusion of non-culpable SSDs in an interdistrict remedy for State violations. See ante at 28-31. At other points, however, the opinion that the District Court viewed the lack of SSD culpability simply as an important factor in determining that interdistrict relief was inappropriate, a factor considered along with factual findings as to the lack of inter- district effects of state-fostered housing discrimination. See ante at 26, 28, 29. This is a mischaracterization of the District Court’s position which understates the significance the District Court attached to SSD innocence. The District Court repeatedly made clear its view that the fact that the SSDs were not con- stitutional violators, taken by itself, barred requiring SSD par- ticipation in an interdistrict remedy. See Opinion of June 5 at 6, 34-42, 45, 47-48, 51, 53-54, 58-59, 66-67, 73-74, 78, 82-83, 89-91, 94-95, 97, 100-103. Further, the District Court did not determine whether or what interdistrict segregation is attribut- able to State housing violations, and never claims to have made such a determination; instead, having concluded that SSD in- nocence precluded interdistrict relief, the District Court found it unnecessary to devote substantial consideration to the ques- tion of interdistrict effects. See infra, Part II. A116 Board and State officials had contributed to racial segre- gation in the Detroit schools, .. . there had been neither proof of unconstitutional actions on the part of neighbor- ing school districts nor a demonstration that the Detroit violations had produced significant segregative effects in those districts.” Id. at 792 (emphasis added). Further, in the portion of Hills quoted by the Court, ante at 27, the Supreme Court states: “In Milliken, there was no finding of unconstitutional action on the part of the sub- urban 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.” 425 U.S. at 294 (emphasis added) .? Thus, it is not necessary that each school district sub- jected to an interdistrict remedy have itself committed a constitutional violation.’ Instead, Milliken establishes that an interdistrict remedy is justified wherever discrim- inatory actions of either the state, or local school districts, or both, have had significant interdistrict segregative ef- fects. The SSDs may not maintain that their districts should be ex- cluded from any interdistrict remedy if they are 2. The lead opinion’s citation of Hills is particularly ironic because the author of Hills, Mr. Justice Stewart, expressly stated in his Milliken concurrence that state officials’ housing violations, if they had an interdistrict effect, would justify an interdistrict remedy. See infra at 64, quoting Milliken, 418 US. at 755 (Stewart, J., concurring). 3. Indeed, the principal opinion concedes that a constitu- tional violation in the operation of the KCMSD with interdistrict segregative effects felt in the SSDs would merit an interdistrict remedy involving the SSDs. See, e.g., ante at 28. Yet it offers no explanation of how or why violations by the State or the KCMSD in operating KCMSD are to be distinguished from State housing violations. In either case the SSDs would ‘themselves be innocent of wrongdoing, but would feel the effects of other actors’ violations. All7 found innocent of committing any constitutional vio- lations because they should not be held responsible for the acts of the state legislators or other state sub- divisions such as a local housing authority or a zoning board. The commands of the Fourteenth Amendment are directed at the state and cannot be avoided by a fragmentation of responsibility among various agents. Cooper v. Aaron, 358 U.S. 1, 15-17 (1958). United States v. Board of School Commissioners, 573 F.2d 400, 410 (7th Cir.), cert. denied, 439 U.S. 824 (1978) (em- phasis added) .* Perhaps the paradigm case ir. which a state’s con- stitutional violation merits interdistrict relief ever absent participation by the local school district in the violation is where the state draws boundary lines on the basis of race. See, e.g., Morrilton School District No. 32 v. United States, 606 F.2d 222, 228 & n.5 (8th Cir. 1979) (en banc); Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107, 1119-1121 (3d Cir. 1982). But a state’s actions also merit an interdistrict remedy where it or its subdivisions cause interdistrict school segregation by employing discrimina- tory housing laws, policies, or practices. “[{W]here the state has contributed to the separation of the races... by purposeful, racially discriminatory use of state housing or zoning laws,” it may be appropriate to enter “a decree calling for transfer of pupils across district lines or for re- structuring of district lines.” Milliken, 418 U.S. at 755 (Stewart, J., concurring) (emphasis added). 4. Of course, since formulation of an appropriate inter- district remedy is guided by equitable principles, the fact that a school district has not itself violated the Constitution may affect the particular role it is assigned in remedying the state’s violation. See infra at 75-76. A118 Thus, I take it as established that a school district can be made to participate in an interdistrict remedy even if it is not “personally” guilty of violating the Constitution, that such relief is appropriate where a State’s constitutional violations have contributed to interdistrict segregation, that “State” for this purpose includes any state or local agency, and that there is nothing unique or peculiar about housing agencies that would take them out of this rule. These con- clusions are established, not only by Milliken itself and the other authorities just discussed, but also by our own unan- imous en banc opinion in Morrilton School Dist. No. 32 v. United States, supra. There, the Morrilton and Plumer- ville schoo] districts argued that “since the government made no showing that either Morrilton or Plumerville par- ticipated in the development of the East Side District as a segregated district, the District Court’s imposition of inter- district relief was unwarranted.” 606 F.2d at 225. We squarely rejected that argument: Morrilton and Plumerville argue that since there was no evidence implicating them in a direct way with the establishment of the East Side District, the court has no authority to order them to remedy the state’s wrong. This argument is clearly without merit since the effects of the unconstitutional state action are felt in both districts. 606 F.2d at 228 (footnote omitted). We then quoted the very passage, explicitly mentioning housing, from Board of School Commissioners, 573 F.2d at 410, a portion of which I have already quoted. In light of this en banc opinion, which of course authoritatively states the law of this Cir- cuit until and unless overruled, I do not know how the District Court’s position—that the SSDs, because individ- A119 ually guiltless, cannot be made part of an interdistrict remedy—can stand.° The Supreme Court has recognized on a number of occasions that there is a close reciprocal relationship be- tween residential patterns and the racial composition of schools. See, e.g., Keyes v. School District No. 1, 413 U.S. 189, 202 (1973); Swann, 402 U.S. at 20-21. The District Court here found that ‘there is an inextricable connection between schools and housing.” 593 F. Supp. at 1491. Other federal courts have ordered school districts to participate in interdistrict remedies based in part upon housing dis- crimination practiced by other branches of state govern- ment. See Evans v. Buchanan, 393 F. Supp. 428, 434-438 (D. Del.) (three-judge court), aff'd, 423 U.S. 963 (1975); Board of School Commissioners, 456 F. Supp. 183, 188-192 (S.D. Ind. 1978), aff'd in part and vacated in part on other grounds, 637 F.2d 1101, 1109-1116 (7th Cir.), cert. denied, 449 U.S. 838 (1980). This Court should demonstrate no less concern for the segregative effects of state housing violations upon schools. When a state segregates children on a multi-district basis, whether it does so by drawing boundary lines or by steering or restricting the races to homes on different sides of pre-existing lines, the courts can provide interdistrict relief that includes all affected dis- tricts. See generally, Note, Housing Discrimination as a 5. The lead opinion maintains that Morrilton is a gerry- mandering case that “must be limited to its facts.” Ante at 30-31. Yet, the lead opinion provides no explanation of why the principles we approved in Morrilton are to be so limited in their application. Tt does not explain how or why State discrimina- A120 Basis for Interdistrict School Desegregation Remedies, 93 Yale L.J. 340 (1983).* II. Having concluded that an SSD may be required to participate in an interdistrict remedy for any interdistrict effects of housing discrimination upon the SSD, I turn to the question whether the State or its subdivisions have committed any housing violations that have current inter- district segregative effects. In its September 17, 1984 opin- ion, 593 F. Supp. 1485, the District Court found or referred to a number of instances of housing discrimination by the State and its subdivisions that could have had such segre- gative effects. However, examination of that opinion and of the District Court’s June 5, 1984 opinion, in which it granted the SSDs’ Rule 41(b) motions, persuades me that the District Court never finally determined whether or what current interdistrict segregation is attributable to these housing violations. Having concluded that the SSDs could not be required to participate in an interdistrict remedy, assessing the interdistrict effects of housing dis- crimination by the State was a task the District Court no longer found necessary. Although the principal opinion asserts that the District Court made findings that foreclose the possibility of interdistrict effects, the findings that it cites are largely not on point and do not resolve the ques- Al21 tion. The lead opinion’s arguments on this point are in es- sence an exercise in appellate factfinding, an exercise that is unjustified since the record here is hardly so one-sided as to make any alternate findings clearly erroneous. This determination has not yet been made by the District Court, and must be before the book can be closed on the SSDs’ liability to interdistrict relief. Perhaps the clearest, most direct example of the State of Missouri’s discrimination in the area of housing is the enforcement by its courts of racially restrictive covenants. See 593 F. Supp. at 1497. Even after state enforcement of such covenants was held unconstitutional in Shelley v. Kraemer, 334 U.S. 1 (1948), Missouri’s courts continued to entertain damage actions for breach between parties to the covenant, see Weiss v. Leaon, 225 S.W.2d 127 (Mo. 1949), a practice the Supreme Court held unconstitutional in Barrow v. Jackson, 346 U.S. 249 (1953). Further, the District Court found that the State had in the past taken numerous other actions that were discriminatory against blacks, such as mandating separate schools for blacks and whites, Mo. Const. Art. IX, §1(a) (1945) (rescinded 1976), $$163.130, 165.117 R.S. Mo. (repealed 1957); providing that school boards could establish separate libraries, parks, and playgrounds for whites and blacks, §165.327 R.S. Mo. (1959); and making it a crime for a person of one-eighth Negro blood to marry a white person, §563.240 R.S. Mo. (1959). 593 F. Supp. at 1503. “These actions,” the District Court found, “had the effect of placing the state’s im- primatur on racial discrimination.” Id. Thus, the state “created an atmosphere in which the private white individ- uals could justify their bias and prejudice against blacks,” and “encouraged racial discrimination by private individ- uals in the real estate, banking, and insurance industries.” Al22 Id. The District Court concluded that “|t]his has and con- tinues to have a significant effect on the dual housing mar- ket in the Kansas City area.” Id.’ A predicate for interdistrict relief may also be found in discriminatory housing practices of the LCRA and the HAKC, which are both instrumentalities of state govern- ment for whose discrimination the State of Missouri is accountable.* Since it had determined that the SSDs could not be required to participate in an interdistrict remedy, and since it had found other bases for State in- tradistrict liability, the District Court considered these two entities only in connection with claims against HUD. Nonetheless, it appears from the Court's findings, as well as from evidence not addressed by the Court because it was not directly relevant to HUD’s liability, that these agencies have committed housing violations that may have interdistrict segregative effects. Between 1953 and 1973, 593 F.Supp. at 1497-98. It appears that HAKC explicitly segregated its housing units until 1958, and that, despite 7. The District Court did not base its award of intradistrict relief against the State on these housing violations, since it found a “more salient reason,” 593 F. Supp. at 1503, for intradistrict liability in the State's failure to the gh —y LA, a be K, -- Id. at : | | i | : A123 the nominal adoption of a “freedom of choice” tenant-selec- tion policy, HAKC may have continued segregative prac- tices until 1964. Brief of Plaintiffs-Appellants Kalima Jenkins, et al., at 24; Brief of Defendant-Appellee Depart- ment of Housing and Urban Development at 11.° Like Missouri's enforcement of racially restrictive covenants and 10. I note at this juncture several concerns I have over the District Court's analysis of the claims against FHA and HUD. From the mid-1930s through 1947, the FHA's appraisal manuals stressed the desirability of racial covenants, limited availability of mortgage insurance for not sub- ject to racial covenants, and down- “appratsals in neighbor hoods undergoing integration. 1947, the FHA removed TE iS ef = § : 3 Supp. at 1497. I believe that in so holding the District Court overlooked the fact that FHA was not merely an uninvolved observer, but was rather an active participant in the housing market whose and practices had a significant impact on Al24 The District Court did find that the State’s own dis- crimination had contributed significantly to the dual hous- ing market in “the Kansas City area,” 593 F. Supp. at 1503, and that “the dual housing market . . ., which still exists black enrollment.” 593 F. Supp. at 1491. But the Court provided no more precise findings on the question of to what extent black students were concentrated in the por- tion of Kansas City covered by the KCMSD rather than more evenly dispersed through the portions of the Kansas City area served by the SSDs. Nor did the District Court assess the interdistrict segregative effects of housing dis- tices have no significant be similarly - able ee Guan Sent & enue 2 Se oe = 1950 FHA insured 15,000 homes in the KCMSD, and 1950 and 1980 there were over 2,000,000 housing turnovers in the area. 593 F. Supp. at 1497. But the FHA's practices may have affected far more homes than were actually financed through the FHA. With regard HUD, the District Court found that the agency had acted “reasonably” because it had taken action in the 1970s to end discriminatory practices by HAKC, whose programs HUD practices for years without action to end them. In view of the fact that, under the view in this Court, there will be no remand for further fact- on the effects of housing discrimination, I do not pursue further this line of argument. Under my view ( of significant interdistrict effects it is argued at various points that the fact that the SSDs have operated unitary school systems since a few years after ever, it is difficult to fathom how the fact that a school segregation caused by state housing violations. Unitary SSDs are no longer under an obligation to undo intradistrict segregation, Swann, 402 U.S. at 31-32, but they still may be required to participate in a remedy for the current segregative effects of mterdistrict segregation. Next, the plurality argues that the District Court “was plain” that the State's pre-1948 enforcement of re- Al26 strictive covenants has no current significant segregative effect. Ante at 33 &n22. While I agree that the District Court made findings that dispose of the issue as to several of the SSDs, as to most of the SSDs the District Court did not make findings that are adequate to resolve the question whether present residential patterns would be significantly less segregated had restrictive covenants not been en- forced. I agree with the lead opinion that there are no current segregative effects attributable to racially re- strictive covenants in the Fort Osage School District, since there was no evidence of amy such covenants located in that district, see Opinion of June 5 at 51; a similar con- clusion is probably justified as to the Park Hill School District, see id. at 90. As to the nine remaining SSDs, however, I cannot agree that the District Court made findings sufficient to support a conclusion that the State’s enforcement of restrictive covenants has caused no cur- rent inmterdistrict segregation. First, in each portion of the District Court's opinion discussing the restrictive cov- enants in a particular SSD, the District Court emphasizes the lack of SSD complicity im the placement or enforce- ment of the covenants within its boundaries. See, e.g., Opinion of June 5 at 48 (Center School District); id. at 73 (Lee’s Summit School District). Thus, the District Court’s misconstruction of Milliken may have tainted its consid- eration of the restrictive-covenant probleia. Even were this difficulty absent, the District Court’s remaining findings are still not adequate to support a finding of no current effect. As to the Center, Hickman noted that there was no evidence of any black family that failed to move into the districts because of the covenants, and that there is no present barrier to black movement A127 into the districts. Id. at 48, 58-59, 94. With regard to the Lee’s Summit, Independence, and Liberty School Districts, the Court found that there were relatively few restrictive covenants in the districts, and that there was no evidence of any black family that failed to move into the district due to restrictive covenants. Id. at 66, 73, 77-78. Finally, the District Court observed that there were few racially restrictive covenants in the Grandview and North Kansas City School Districts, and that the effect of such covenants in these districts and the Blue Springs School District is limited or mooted by extensive post-Shelley residential development in those districts. None of these findings resolves the question whether fewer blacks or more whites reside in the SSDs due to pre-Shelley and pre-Barrow enforcement of restrictive covenants. That there is no present barrier to black move- ment into an SSD hardly demonstrates that there was no barrier to such movement in the past that has current effects. That extensive post-Shelley residential develop- ment has occurred does not mean that earlier enforcement of racial covenants has not helped make a district identi- fiably white and inhospitable to blacks, or that it has no other current effect on residential patterns. Finally, it was not necessary for the plaintiffs to give evidence of narticular black families that did not move into a district due to restrictive covenants in order to demonstrate the segregative effect of such covenants; to hold that they had no segregative effect on this basis simply blinks reality. Further, the District Court did not determine the cur- rent effects of the State’s continued efforts to give legal force to these covenants from 1948 to 1953, and, more im- portantly, the imprimatur that the State placed upon pri- A128 vate housing discrimination by ordaining various forms of racial discrimination, see supra at 67-68." Finally, the plurality contends for two reasons that there can be no current interdistrict effects of housing vi- olations by LCRA and HAKC. First, it cites the District Court’s finding that HUD followed a balanced housing policy, locating federally funded housing in both KCMSD and in the SSDs, and that HUD’s site-selection-and-ap- proval practices had not affected the racial make-up of KCMSD schools. Ante at 36, citing 593 F. Supp. at 1499. Second, the lead opinion contends that the LCRA and HAKC practices of which the plaintiffs complain occurred in the 1970s, after KCMSD had experienced a substantial increase in black population. Ante at 37. Both of these points involve a misapprehension of the plaintiffs’ claims: As to the first, the claim is not that unbalanced housing site selection and approval caused interdistrict segrega- tion, but instead, that once the projects were built, HAKC explicitly segregated them, or later, steered whites to some projects and blacks to others. As to the second, the plain- tiffs’ complaint is not primarily about HAKC and LCRA activities in the 1970s; rather, the District Court found that LCRA practiced discrimination from 1953 to 1973, and the plaintiffs contend that HAKC segregated its housing units from its inception in 1939 until as late as the mid- 1960s. See supra at 68-69. 11. However, I note with regard to the latter basis of State liability that the District Court stated, “To the extent, if any, that the racial composition of the KCMSD is the result of steer- ing and blockbusting practices by private real estate agents .. . the Court finds that these actions of private individual real estate agents are not actions of the KCMSD or any SSD.” Opin- ion of June 5 at 41. This reinforces my conclusion that the District Court has left open the question whether State-fostered private discrimination in the housing area has current inter- district segregative effects. A129 I agree with Judge Gibson that there are many factors other than housing discrimination that may have contrib- uted substantially to the present concentration of blacks in the KCMSD. See ante at 32-33. Insofar as economic and demographic factors unrelated to official discrimina- tion caused interdistrict residential segregation, the State and the SSDs may not be required to remedy the con- comitant interdistrict school segregation. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 433- 437 (1976). I also agree that there are geographic limita- tions on the effects of housing discrimination, and that some of the effects of the State’s constitutional violations may have been felt in Kansas, rather than in the Missouri SSDs. See ante at 40. But the District Court has not yet made any findings on these points, as well as many other issues bearing on the question of interdistrict segregative effects, and as the lead opinion itself observes, the Dis- trict Court is “ ‘uniquely situated’” to assess such matters. Ante at 25, quoting Little Rock, 778 F.2d at 410-411; see Morrilton, 606 F.2d at 230. Therefore, the case should be remanded to the District Court to determine precisely what current interdistrict segregative effects may be attributed to housing discrim- ination by the State, LCRA, and HAKC. Upon remand, the District Court should first consider this question from the perspective of the SSDs’ Rule 41(b) motions. Any SSD that does not prevail on its motion should be permitted to present evidence to rebut a finding that it is implicated in the current interdistrict segregative ef- fects of the housing violations. While the SSDs were given the opportunity to continué» to participate in the proceedings after the District Court granted their Rule 41(b) motions, this was not “a meaningful opportunity A130 for [the SSDs] to present evidence .. . on the propriety of a multidistrict remedy.” Milliken, 418 U.S. at 721-722. After the District Court had held that the SSDs could not be made part of a remedy for the constitutional vio- lations of other governmental entities, the SSDs no longer had any reason to take part in the suit. Therefore, were this Court to reverse the District Court on this issue, the SSDs would be entitled to present evidence. If, at the end of these proceedings, the District Court found current segregative effects of the housing discrim- ination, it should then fcrmulate an appropriately tailored interdistrict remedy, a remedy including each affected SSD. I caution, however, that, in accord with the equita- ble principles that govern such remedies, Milliken, 418 U.S. at 737-738, the role that may be assigned to each SSD may be limited by the fact that the SSD is not itself a constitutional violator. Thus, it would likely be in- appropriate to burden the SSDs, rather than the State, with the financial costs of the remedy. On the other hand, it seems clear that affected SSDs could be required to participate in an interdistrict transfer program designed to make the racial composition of the districts’ schools what it would have been absent official housing discrim- ination. Til. I conclude that an SSD, even if its own actions are without blemish, may be required to participate in an interdistrict remedy for the housing discrimination of the State of Missouri or its subdivisions, so long as that dis- crimination has current interdistrict segregative effects involving the SSD. The case should, in my view, be re- manded to the District Court to determine whether the Al31 established constitutional violations of the State and the LCRA, as well as the possible violations of the HAKC, have had any such effects. If the District Court finds that this discrimination has produced interdistrict segre- gation, it should fashion a remedy which accords with the principles discussed in this opinion. Insofar as Judge Gibson’s opinion departs from this view, I dissent; in all other respects I concur. It is ap- propriate to add that, although the plurality opinion in this case of course announces the judgment, it does not make law for this Circuit except in those respects that command a majority vote of the judges sitting in this case. Four judges seem to agree that school districts not individually guilty of constitutional violations may not be compelled to participate in an interdistrict remedy. Four do not. That question is therefore open for deter- mination in future cases in this Circuit. LAY, Chief Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, dissenting. A world of rhetoric cannot hide the world of fact.’ No one can deny that the school systems within the Kansas City metropolitan area were racially segregated before 1954, continued to be segregated after 1954, and that virtually all remain segregated today. The clearly er- roneous rule, used by the lead opinion to give blanket approval to the district court’s conclusions, was never intended to be a rule of blind deference. This is par- ticularly true when, as here, the record does not support the district court’s conclusions. This court's affirmance 1. Cf. T.H. Huxley, Lay Sermons, Addresses, and Reviews —- world of fact lies outside and beyond the world of A132 of the district court, if allowed to stand, destines the Kansas City metropolitan area to racially segregated schools and a segregated community for decades to come. The lead opinion ignores Supreme Court precedent and brushes aside thirty years of this circuit’s rulings mandat- ing school integration.* The lead opinion also fails to acknowledge the district court’s misunderstanding of Milliken v. Bradley, 418 U.S. 717 (1974), and the result- ing erroneous legai premises on which the district court’s conclusions are based. The effect of this pervasive error makes the lead opinion’s analysis largely irrelevant to the record before us. It now remains for the people of metropolitan Kansas City to choose whether their community and school sys- tems shall continue to foster an environment of racial separation. Although many might respond that freedom of choice is essential to democratic government, this prop- osition should be accepted only so long as equality of opportunity is not denied to those who do not have the majority will on their side. Here, the tragedy of the legalized discrimination of the past century is that it has resulted in continued denial of acceptable equal oppor- tunities to both the black and white children in the Kansas City area. The lead opinion cluses its eyes both to Mis- souri’s long history of legally-mandated segregation of and discrimination against blacks and to the uncontro- verted evidence at trial that showed that for decades only the Kansas City metropolitan school district (KCMSD) provided blacks in the Kansas City metropol- itan area with any educational opportunity at all. More- yh 4, 54, 2-9-4, -—- rulings, see Heaney, Busing, Timetables, Goals, Ratios Touchstones of Equal Opportunity, 69 Minn. L. Rev. 78 (1985). other than the southeast corridor of the KCMSD. Although a district court’s findings of fact may not be overturned unless clearly erroneous, Fed. R. Civ. P. 52(a), 472, 475 (8th Cir. 1985)). Where, as here, the district court’s factfinding process was tainted with legal error from the start of trial by the court’s erroneous application of controlling legal principles, the district court’s findings are entitled to less than usual deference and should be reversed as clearly erroneous.* own opinions the district court contradicts dissent does not sub- that of the trial court. Al34 The district court’s own conclusions and the clear weight of the uncontradicted evidence establish that con- stitutional violations, committed by the suburban school districts (SSDs) and HUD as well as the State of Missouri and the KCMSD, have caused significant continuing seg- See Anderson, 4 S. at 573-74. Anderson does not hold that oS See ee oe, ee ae ee review is nothing more than a rubber stamp of the cluded in an interdistrict remedy. Unlike I would hold that this error encompasses more than The District Court’s Misconstruction of Milliken v. Bradley First, as discussed in Judge Arnold's opinion, the dis- trict court misconstrued Milliken when it concluded that Milliken precludes interdistrict relief in a racially segre- gated metropolitan area unless each school district is found to be a constitutional violator and by that violation to have caused a significant segregative effect in another district. As Judge Arnold notes, in its memorandum opin- A137 Specifically, it must be shown that racially discrim- inatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. A136 aced discussion of the plaintiffs’ legal theories regarding SSD liability with the incorrect statement that “[t)he linchpin of an interdistrict case, as declared by the Su- preme Court, is whether there has been a racially dis- criminatory act by each defendant that substantially caused segregation in another district." Jenkins v. State of Mo., No. 77-0420-CV-W-4, slip op. at 5-6 (W.D. Mo. June 5, 1984) (emphasis added), citing Milliken, 418 district court’s fundamental misconstruction illustrated z= the following a excerpts by the district judge at trial: ion and order dismissing the SSDs the district court pref- La ; ue TRA cet HN i . a et ia ile Le 1s fine 4 : Halil is aoe =1i. ti : ea if (fis ie ete fuuds i “a i! Hue tae A138 Milliken, 418 U.S. at 744-45 (emphasis added). The dis- trict court thus erected an improper proof burden for the plaintiffs to overcome. Ironically, that the district court's interpretation of Milliken has never been the legal dard by which grants of interdistrict relief have measured was recognized even by the defendant State of Missouri, which correctly restated the Milliken standard in its brief on appeal to this court.’ Milliken v. Bradley, 418 US. 717, 745-48 (1974) (where ae Se oe Se eat ae SS ae sought the creation of a school district - dy y ~Ap of constitutional violations by suburban districts significant segre- effects) “he Sapcune Gun » ae oe 425 U.S. 284 (1976)]) has interpreted Milliken | to mean ty 4 FF A Ey 4 x vernments or their ” Liddell v. State of Mis- souri, 731 F.2d 1294, 1308 (8th Cir. 1984). a © ae which would require the consolidation of suburban districts, ones in which no constitutional violation or sig- nificant segregative effect has been found, results in a re- structuring and coercion of local government which is pro- Jenkins v. State of Mo. No. 77-0420-CV-W-4, slip 2 (W.D. Mo. January 25, 1985). 5. In its brief on appeal, the state notes: Thus, in any case in which a state school system exhibits s . | : | . | i : i i | | a a in a) UP # precedent of this circuit. In Morrilton School Dist. No. 32 wv. United States, 606 F.2d 222, 228 (8th Cir. 1979) (en banc), cert. denied, 444 U.S. 1071 (1980), this court unani- less could be included in interdistrict relief where the effects of the unconstitutional actions of another (in Al4# Again, in Liddell v. State of Mo., 731 F.2d 1294 (8th Cir.) (en banc) (Liddell VII), cert. denied, 105 S. Ct. 82 (1984), we noted that in Liddell ». Board of Educ., 667 F.2d 645 (8th Cir. 1981) (Liddell IIT) changes “must be viewed as a valid part of the attempt to fashion a workable remedy within the City.” are found innocent of commutting constitutional viola- +p, 4. £--—4- responsible for the acts of the state or other state subdivisions such as @ local housing euthoriy or a soning beard. The com- I i z f ds 606 F +4 -—4h~ -+-; (citation omitted). The tt, Ay this language from Board of y~—f &. 4 4-8 _4 E.- case were “mere of the state.” Ante at 31. As +32-04,—-,4 17,5 &-,—,*- boundaries must be respected.” the district court stated that “to find the SSDs vicariously liable for acts of the state, the Court must make the threshold determination that the SSDs are mere agents or arms of the state and not independent, locally autonomous entities” Jenkins, June 5 opinion at 101-02. See elso id at 8-14 Not only does the lead 'S statement re- flect the district court's misconstruction of but it over- looks the fact than an SSD may have some attributes of autonomy and yet remain an instrumentality of the state In its June 5 opinion. the district court found that the SSDs had more attributes of autonomy than those Michigan school districts examined in Milliken. Jenkins, June 5 opinion at 8 Al4l [Liddell III, 667 F.2d] at 651. In an order appended to that opinion, we noted that the State had been “judicially determined to be a pirmary constitutional violator,” and we held that an interdistrict transfer plan would be salutary and would be entirely enforce- able against the State. Id. at 659. Liddell VII, 731 F.2d at 1303. See Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 778 F.2d 404 (8th Cir. 1985), cert. denied, 106 S. Ct. 2926 (1986). , that authority is delegated to them by the state and the state retains ultimate authority over he SSDs’ actions. The SSDs exist pursuant to provisions of the Missouri con- stitution, are maintained at the pleasure of the Missouri leg- islature, and are subject to the authority of state statutes and the rules and regulations of the Missouri State Board of Education. See, e.g., Mo. Const. arts. Ill, § 40(20); IX. Evi- dence introduced at trial acknowledged the authority of the Missouri General to reorganize Missouri's schools for ee « racial balance. See, e.g., Plaintiffs’ 1010. The Missouri Supreme Court has found that school and that arm or instrumentality thereof discharging the constitu- ~ ny Ay governmental function of i knowl- to the youth of the state,” School Dist state, School Dist. No. 59 v. Maple Grove School Dist. No. 56, 359 S.W.2d 743, 747-48 (Mo. 1962) (citing School Dist. v. School Dist.). Moreover, the district court explicitly concluded in its September opinion that “none of the provisions of the duty of disestablishing a dual school system subsequent to 1954.” Jenkins v. State of Mo., 593 F. Supp. 1485, 1504 (W.D. Mo. 1984). The court further that “[iJt is clear that school districts in the State exist pursuant to the State Con- stitution,” id., and that “[t}he State executive and its agencies as well as the State's General Assembly had and continue to have the constitutional obligation to affirmatively dismantle any system of de jure discrimination, root and branch,” id. at 1505. Al42 Though gerrymandering is certainly one type of consti- tutional violation, nothing in the lead opinion explains why it is the exclusive means by which a school district may suffer significant segregative effects for which interdistrict relief may be granted." See Evans v. Buchanan, 416 F. Supp. 328, 340 (D. Del. 1976), aff'd, 555 F.2d 373 (3d Cir. 1977) (Milliken’s “specification of the deliberate drawing of lines to achieve segregation was by way of example, not limitation”). The lead opinion’s heavy reliance on Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (5th Cir. 1981), and Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324 (4th Cir. 1984), is also misplaced. Goldsboro is distin- 7. This court’s line of cases interpreting and applying the Milliken standard to encompass a wide range of constitutional violations is consistent with Justice Stewart's restatement of the Supreme Court’s holding in his concurring opinion in Milliken, in which he stated: —~Bf--B SA, F BF, - -4%- districts does not itself imply or constitute a Violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or en- couraged by the State or its political subdivisions, it follows that no interdistrict violation was shown in this case. Milliken, 418 U.S. at 756 (Stewart, J., — 7 ee (emphasis added). Justice Stewart further emphasized tha satay Ganitneeah siete daik tan titel titel eniaad te a to change that situation unless and until it is shown that State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers con- cern cannot serve as the predicate for the semaip edunted by the District Court and approved by the Court of Appeals. Id. at 756 n.2 (emphasis added). Nowhere does Justice Stewart limit the definition of unconstitutional governmental activity solely to instances of gerrymandering. Al43 guishable on several grounds. The Goldsboro city school district had been declared unitary by a federal district court in 1973. See id. at 325-26. Moreover, in Goldsboro, there was no showing of any housing violations or interdistrict transfers for segregated purposes, and on appeal the Fourth Circuit specifically found that the district court did not erronously apply the law to that case’s facts. See id. at 328. Although Lee exhibits some similarities to the pres- ent case, as we noted in Little Rock the Lee case did not involve segregative interdistrict transfers, segregative boundary changes, or state-imposed residential segregation, and the city district had been previously declared unitary. See Little Rock, 778 F.2d at 429. Missouri's History of De Jure Segregation Significantly, the lead opinion omits any discussion of the State of Missouri's long history of de jure segregation in which the KCMSD and most, if not all, of the SSDs participated. Much of this history, which was recounted in Liddetl v. Board of Educ., 731 F.2d 1294 (8th Cir. 1984) (Liddell VII), is detailed in the district court’s opinion granting intradistrict relief. See Jenkins v. State of Mo., 593 F. Supp. 1485, 1490-95 (W.D. Mo. 1984). This history bears repeating here, however, because the nature and gravity of the constitutional violations for which plaintiffs seek redress can properly be evaluated only in light of their historical context. The State of Missouri’s implementation and enforce- ment of school segregation can be traced to well before the Civil War, when Missouri enacted laws prohibiting the creation of schools to teach blacks to read or write. Act of February 16, 1847, § 1, 1847 Mo. Laws 103. Beginning in 1865, the Missouri constitution expressly required separate Al44 schools for blacks and whites. Mo. Const. 1865, art. IX, § 2. This provision was retained in three successive con- stitutions. Mo. Const. 1875, art. XI, § 3, retained Mo. Const. 1919, art. XI, §3, revised and retained, Mo. Const. 1945, art. IX, §§ 1(a) and 3(c). See also Act of February 17, 1865, § 13, 1865 Mo. Laws 170. In 1889, the Missouri legis- lature made it a criminal offense for a black child to attend a white school. Act of June 11, 1889, § 7051(a), 1889 Mo. Laws 226. Although a 1954 Attorney General opinion de- clared the school segregation laws unenforceable, the stat- utes implementing the constitutionally mandated segrega- tion were not repealed until 1957, see Act of July 6, 1957, § 1, 1957 Mo. Laws 452, and the constitutional provision was not rescinded until 1976. See Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.), cert. denied, 449 U.S. 826 (1980). Prior to 1954, school districts in Missouri were not even in compliance with the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896). From 1866 to 1929, state law exempted school districts from providing schools for black children if there were fewer than fifteen black children in the district and required them to discon- tinue black schools whenever average daily attendance fell below eight students. See 1865 Mo. Laws 177; 1869 Mo. Laws 86-87; 1870 Mo. Laws 149; 1887 Mo. Laws 264; 1893 Mo. Laws 247; 1909 Mo. Laws 790-91. In 1929, the Missouri legislature gave school districts the option to forego schools for blacks altogether, no matter how many black school children resided in the district. 1929 Mo. Laws 382. Al- though school districts refusing to provide schools for blacks within their district were required to make interdistrict arrangements for and pay the tuition of black elementary school children beginning in 1929 and for black high school Al45 students beginning in 1931, the school districts were not required to fully reimburse transferred black students for transportation costs until 1945. See 1945 Mo. Laws 1700. Rather than providing schools for blacks within their districts, school districts in the Kansas City metropolitan area, including the predecessor districts of the SSDs,* took full advantage of state law provisions allowing them to arrange for the transfer of black school children out of their districts. Blue Springs, Fort Osage, Center, Raytown, Grandview, and Hickman Mills provided no schools for blacks.* Lee’s Summit did not operate any black schools after 1910. North Kansas City intermittently operated a black elementary school until 1944. Independence, Liberty, 8 Under Missouri law, the SSDs are legally ible for the constitutional violations of their predecessor districts. See Lewis County C-I School Dist. v. Normile, 431 S.W.2d 118, 121 (Mo. 1968) (en banc); McClure v. Princeton Re-organized School Dist., 307 S.W.2d 726, 727-28 (Mo. Ct. App. 1975); . Webb City School Dist. No. 92, 373 S.W.2d 193, 200 . 1963). See also Taylor v. Board of Educ., 294 , 38-39 (2d Cir. 1963), cert. denied, 368 US. 960 (1061) ¢ ti Sie! 5 ist pe : - 3 2 Sy : i i? i ? 3 : | in Ji il aif =f : “: fi at 1490; testimony of James D. Anderson, an ee t---sZy ft * yy of Amicus Curiae The Kansas City Branch of The Nati Association for the Advancement of Colored People at 3-8. Ay HE Al46 and Park Hill each operated a black elementary school. Independence operated a black high school from approxi- mately 1934 to 1945, and Liberty offered high school through the eleventh grade after 1938. However, the evi- dence is overwhelming that the quality of education avail- able in these black schools was quite poor, especially in comparison to that available in the white schools in the SSDs and the black schools in KCMSD. Moreover, despite state laws requiring districts not operating black schools to reimburse black students for tuition and at least part of their transportation costs, none of the SSDs did so until Lee's Summit began reimbursement in 1931, followed by Independence in 1945, Park Hill and North Kansas City in the late 1940s, and Liberty in 1953. As the district court itself found, in 1954 KCMSD was the only school district in the Kansas City metropolitan area providing any real educationai opportunities for blacks, operating fourteen black elementary schools, one black junior high vocational school and one biack high school-junior college. See Jen- kins, 593 F. Supp. at 1492. Legalized segregation of and discrimination against blacks in Missouri was not limited to education. State law permitted local authorities to establish separate libraries, parks, and playgrounds for whites and blacks, Mo. Rev. Stat. § 165.377 (1959); made it a crime for a black to marry a white, Mo. Rev. Stat. § 563.240 (1959); and required segre- gation in colonies for the “feebleminded.” See, e.g. Jenkins, 593 F. Supp. at 1503. Of foremost importance to this case is the pervasive system of housing segregation in which all levels of government participated. Racially re- strictive covenants, FHA appraisal practices, relocation pol- icies of state and local housing agencies, and private dis- crimination operated to restrict blacks to certain geographic sections of the Kansas City metropolitan area. Al47 Housing Violations and HUD Liability Judge Arnold's opinion recounts the long history of Missouri’s involvement with housing discrimination in the Kansas City area, which in some instances continued through the 1970s. I join Judge Arnold in concluding that remand is required for further findings, for the purposes of fashioning interdistrict relief, on the extent of constitu- tional violations by the state and its various agencies in implementing segregative housing policies. For similar reasons, I would also reverse and remand for further con- sideration the district court’s dismissal of HUD. Though the lead opinion affirms the district court's finding that HUD did not act arbitrarily or capriciously and that HUD’s acts were without discriminatory intent or effect, the rec- ord makes clear that HUD committed numerous constitu- tional violations. As Judge Arnold points out: With regard to HUD, the District Court found that the agency had acted “reasonably” because it had taken action in the 1970s to end discriminatory practices by HAKC, whose programs HUD funded. 593 F. Supp. 1498-1499. Yet there was extensive evidence, not ad- dressed by the District Court, that HUD knew of short- comings in HAKC’s tenant-assignment practices for years without taking action to end them. Ante at 70 n.10. Use of the arbitrary and capricious stan- dard is inappropriate in the context of HUD’s alleged cc >- stitutional violations through the participation in and support of racially segregated housing practices. Where a government entity's discriminatory practices causes hous- ing and population shifts with metropolitan-wide effects, an interdistrict remedy has been found an appropriate form of relief. United States v. Board of School Comm'’rs., A148 637 F.2d 1101, 1114 (7th Cir.), cert. denied, 449 U.S. 838 (1980). Moreover, considering whether the participation of each SSD in the dual school system had any significant interdistrict effect, the district court concluded that for each SSD the proof of any current effects was “weak, speculative and in any event de minimus [sic].” Jenkins, June 5 opinion at 12. Because the district court errone- ously assumed that each SSD must be found to have com- mitted a constitutional violation with current segregative effects before it could be included in interdistrict relief, the district court did not properly take into account the current segregative effects on the SSDs of the state’s or KCMSD’s actions to maintain a dual school system in the Kansas City metropolitan area. Milliken makes clear that an interdistrict remedy is justified if the constitutional violations of even “a single school district have been a substantial cause of inter- district segregation.” Milliken, 418 U.S. at 745. The Su- preme Court denied interdistrict relief in Milliken simply because the plaintiffs had only shown that the constitu- tional violations of the Detroit public school system had intradistrict, not interdistrict, effects. Id. at 747 (ex- plaining that dissent’s position was that the existence of a dual school system in Detroit justified an interdistrict remedy); id. at 749 (“where the schools of only one dis- trict have been affected, there is no constitutional power in the courts to decree relief balancing the racial compo- sition of that district’s schools with those of surrounding districts.”); id. at 751 (“Thus, there was no evidence sug- gesting that the State’s activities * * * within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State’s * * * ac- tivities within the outlying districts affected the racial A149 composition of the schools within Detroit.”). In contrast, the plaintiffs here presented evidence showing that KCMSD’s decision to operate some completely black schools and some completely white schools long after 1954 led to the rapid turnover of neighborhoods from black to white and caused many whites to move out of KCMSD to the SSDs. The district court repeatedly recognized that evi- dence at trial demonstrated the link between KCMSD’s delay in implementing effective integration policies during the 1960s and 1970s and the exodus of whites from KCMSD during this period in discussing KCMSD’s liability for segregation within KCMSD. See Jenkins, 593 F. Supp. at 1492-95. The district court did not consider KCMSD’s conduct as a basis for ordering interdistrict relief, however, because it misconstrued Milliken to require culpability with continuing segregative effects on the part of each SSD before that SSD could be included in an interdistrict remedy. Because under Milliken the conduct of even a single school district may be the basis for interdistrict relief if the continuing effects of that conduct are inter- district, I would require the district court to consider on remand the extent to which KCMSD’s delay in implement- ing an effective integration policy has current interdistrict effects. Ironically, though Judge Arnold concludes that the district court misapplied Milliken in assessing interdistrict effects from housing violations, he apparently upholds as not clearly erroneous the district court’s findings of no constitutional violations by the SSDs and its findings of only de minimis continuing segregative effects on the SSDs from the state’s and the KCMSD’s operation of a dual school system. To this extent, I part company with A150 Judge Arnold."® These findings are inseparable from the district court’s misunderstanding of the Milliken standard. Constitutional Violations by the SSDs The district court failed to analyze the housing vio- lations by the state agencies because it believed they were irrelevant to the SSDs’ participation in any interdistrict relief. Similarly, the district court failed to analyze the effect of the state’s and the KCMSD’s discriminatory prac- tices because it decided their conduct was irrelevant to any remedial relief. 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. As has already been stated here, these vio- lations cannot be ignored by simply expressing deference to the district court’s findings under the clearly errone [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0229%3A03. Public record. Not legal advice.