# Appendix — Missouri v. Rockwood School District

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1878%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 825

## Text

a

Suproma Court, Ug

4 res
ryUerRre Dp
No. | | exh

In the Supreme Court of the United States

OCTOBER TERM, 1987

STATE OF MISSOURI, et al.,
Petitioners,

VS.
ROCKWOOD SCHOOL DISTRICT, et al.,
and

RITENOUR SCHOOL DISTRICT,
Respondents.

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

WILLIAM L. WEBSTER
Attorney General

TERRY ALLEN
Deputy Attorney General

Supreme Court Building
Jefferson City, Missouri 65102
(314) 751-3321

MicHaeEL L. Borcourt
Assistant Attorney General
RoBerRT L. PRESSON
Assistant Attorney General
MICHAEL J. FIELDS
(Counsel of Record)
Assistant Attorney General

Counsel for Petitioners

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, £816) 421-3030

TABLE OF CONTENTS
Appendix A-—Order of the Court of Appeals for the

Bignth Civeutt, Biarch 14, 1906 ....................50......... Al
Appendix B—Order of the Court of Appeals for the
Eighth Circuit, February 4, 1988 ........... Ae eer ree A3

Appendix C—Order of the District Court for the
Eastern District of Missouri, August 25, 1986 ........ Al8

Appendix D—Order of the District Court for the
Eastern District of Missouri, October 3, 1986 _........ Al9

Appendix E—Order and Memorandum of the District
Court for the Eastern District of Missouri, Au-

PE oe Saree antes aOR A Lis) Sante ARIE SIMI ORS BP LAn Rm CCI? A20
Appendix F—Order of the Court of Appeals for the
Eighth Circuit, February 8, 1984 .........0000 2... ....A33

Appendix G—Settlement Agreement .......0200200..00.0...... A135

Al

(Filed March 14, 1988)

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 86-2193EM

In Re: Craton Liddell, et al v. Board of Edu-
cation of the City of St. Louis, Missouri,

et al,
Ritenour School District,
Appellant,
Vs.
The State of Missouri,
Appellee.
No. 86-2359

In Re: Craton Liddell, et al v. Board of Edu-
cation of the City of St. Louis, Missouri,
et al,

Rockwood School District,
Appellant,

VS.

The State of Missouri,
Appellee.

Appeals from the United States District Court for the
Eastern District of Missouri.

A2
Appellee’s petition for rehearing en banc has been
considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
March 14, 1988

Order entered at the Direction of the
Court:

‘s/ Robert D. St. Vrain
Clerk, U. S. Court of Ap-
peals, Eighth Circuit.

A3

(Filed February 4, 1988)

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 86-2193

In Re: Craton Liddell, et al. v. Board of Edu-
cation of the City of St. Louis, Missouri,

et al.
Ritenour School District,
Appellant,
Vv.
The State of Missouri,
Appellee.
Parkway School District,
Amicus.
No. 86-2359

In Re: Craton Liddell, et al. v. Board of Edu-
cation of the City of St. Louis, Missouri,
et al.

Rockwood School District,
Appellant,
Vv.

The State of Missouri,
Appellee.

Appeal from the United States District Court for the
Eastern District of Missouri.

A4

Submitted: October 13, 1987
Filed: February 4, 1988

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Se-
nior Circuit Judge, and WOLLMAN, Circuit Judge.

HEANEY, Circuit Judge.

Ritenour Schoo] District and Rockwood School Dis-
trict submitted requests to the district court for reimburse-
ment by the State of Missouri for expenses incurred in
accepting black transfer students from the City of St. Louis
Schoo] District pursuant to the settlement plan in the St.
Louis school desegregation case. The district court granted
Ritenour partial payment and denied Rockwood’s request.
We affirm in part and reverse in part as to Ritenour, and
reverse as to Rockwood.

BACKGROUND

In March, 1983, twenty-three county schools and the
City of St. Louis School District entered into a settlement
agreement with the plaintiffs in the St. Louis school de-
segregation case. This Court approved the settlement
agreement and detailed a plan for the desegregation of
the St. Louis schools. See Liddell v. State of Missouri, 731
F.2d 1294 (8th Cir.) (en banc), cert. denied, 469 U.S. 816
(1984) (Liddell VII). We found the State of Missouri to
be a constitutional violator, id. at 1298-99. and held that
it must, with certain exceptions, abide by the terms of the
settlement agreement. Id. at 1309.

The settlement plan requires the voluntary interdis-
trict tranfer of black students from the City of St. Louis
school system to the county school districts. The transfers
serve two purposes: (1) to provide the transfer students

A5

and the suburban students with an integrated education;
and (2) to reduce the number of students in the St. Louis
schools, particularly in the nonintegrated schools. The
State is obligated to fund much of the interdistrict plan.
Id. at 1301-09.

Liddell VII established that 15,000 black students from
the city would be transferred to county schools over a pe-
riod of years. Significant progress has been made toward
that goal. The numbers of transfers has steadily climbed
from 2,294 in 1983-84, see 731 F.2d at 1302, to almost 12,000
in the current school year. See Voluntary Interdistrict
Coordinating Committee Report of November 4, 1987, at 10.

Both Ritenour and Rockwood have growing numbers
of resident and transfer students.' Ritenour requesis re-
imbursement from the State for some of the costs of re-
opening a closed elementary school. Rockwood requests
reimbursement for the building of more classroom space
to accommodate the transfer students.

ANALYSIS

In issue in this case is section X.B.3 of the settlement
plan which provides for reimbursement for a county dis-
trict’s “one-time extraordinary costs (other than hiring of
personnel) such as the costs associated with reopening a
closed school.” Both Ritenour and Rockwood claim that
they are entitled to reimbursement under this section.

The State makes a number of arguments which apply
to claims of both school districts. It initially contends that

——

1. Rockwood had a total of 826 transfer students in 1985-86,
and 1,426 in 1986-87.

2. The State concedes that it cannot seek to have the
partial payment granted by the district court to Ritenour re-
duced. since it did not file an appeal or cross-appeal.

1] Ty) ga? ,
; . ‘
, | | | ' | Ty
Wey ‘
. |
an : ‘ IT vy ‘
i j | |
‘ | | |
| ry |
‘ ' |
} ~ ry ‘ ’ ; |
i ‘ |
| | | ‘ 4 *%) .
tt , ”
‘
=, * ‘ o. - ;
. ‘ as. , | |
é ar ; ; | | :
rieé ae Oa
“~~ 4 =~ ‘ |
eee | c i f ‘
. , " . ;
| . , . . ,
TY ’ . , l
‘
’ :
‘ a ed
"

r)

»
i!

(Filed August 27, 1986
UNITED STATES DISTRICT COURT
EASTERN DiSTRICT OF MISSOURI!

EASTERN DIVISION

No. 72-100 C (5

CRATON LIDDELL, et al
Plaintiffs,
VS.
THE BOARD OF EDUCATION OF THI
ST. LOUIS, MO., et al.,
Defendants

MEMORANDUM

This matter is before the Court or
submitted by the Ritenour School Di
Ritenour seeks partial state funding of
ciated with the reopening of Buder Elen
The Budget Review Committee (BRC) revise
nour’s request and filed its report Lig
the State defendants and Ritenour responded
report. L(969)86 and L(956)86, resp:
the Ritenour budget request really
nour and the State, other parties t
the matter. Certain county school dist:
Brentwood, Clayton, and Hancock Placs file

ment in support of Ritenour’s response to ths

.(959)86. Kirkwood School Distr

A22

filed a memorandum in support of Ritenour’s budget
request. L(1036)86. City Board filed a reply to the
State’s response to the BRC report. L(997)86. City
Board took objection to the State's contention that City
Board should share equally in the cost of funding capital
improvements for suburban districts. The State defen-
dants then responded to the statement of support filed
by the county school districts. L(994)86. The final com-
ment on this matter was expressed in the county school
districts’ memorandum in opposition to the State defen-
dant’s response to the BRC report. L(1002)86.

Ritenour has requested partial state funding, pur-
suant to the Settlement Plan. §X¥.B.3. H (2217)83, of costs
associated with the reopening of Buder Elementary School.
Ritenour claims that “/t]he reopening of Buder is now
required to accommodate the influx of desegregation
transfer students into Ritenour pursuant to the 12(C)
Settlement Plan, and is essential to enable Ritenour to
meet its plan ratio and otherwise to satisfy its obligations
under the Plan.” (L(794)86 at J. Ritenour anticipates
a total elementary transfer enrollment of 273 students:
140 of these students will be new elementary transfer
students for 1986-87. The projected enrollment at Buder
(transfer and resident) will be 500 (although Buder ha:
the capacity for 550 elementary students Ritenour
limiting its budget request to $290,565.00 by using a 10
deduction for questionable costs” and a 55°; proration
factor (ratio of anticipated total number of elementary

yo

transfer students for 1986-87 to expected enrollment at

Buder). The $290,565.00 figure consists of pre approval
costs for reading and math materials, library starter kits.

and roof work disbursements made by Ritenour prior

to submission of this funding request), and anticipated

A23

expenditures for equipment, furniture, repairs, renova-
tion, kitchen, instructional materials, and a kitchen ex-
haust system.

The formula used by Ritenour to compute its funding
request is as follows:

Total projected cost for reopening

Buder $587,000.00

Reduce by 10 percent for

“questionable” costs 98,700.00

$528,300.00

Multiply remainder by 55 percent
($528,300 x .55) $290,565.00

Derive proration percent by dividing
the expected total 1986-87 transfer
students (273) by the projected
enrollment at Buder (500)

273 divided by 500 546 (percent 90%

The total projected cost for reopening Buder was
computed by Ritenour based upon the following cost
itemization:

The following costs have already been incurred in

preparation for the reopening of Buder School:

Reading & Math $ 31,800.00
Library Starter Kits 30,000.00
Roof Work 47,000.00
feo ye 4 o $108.000.00
This amount when added to the budget included in thi

xt two attachments will bring the estimated total

xpenditure t

A24

$108,000.00 Reading, Math, Library Kits & Roof
Work
196,000.00 Equipment and Furniture
190,000.00 Repairs and Renovation
44,000.00 Kitchen
40,000.00 Instructional Materials
15,000.00 Kitchen Exhaust System

$587,000.00 Total Amount Ritenour has spent or
budgeted to Buder Reopening

The State opines that it has absolutely no obligation
under the Settlement Plan to fund desegregation-related
capital improvements for county schools. It believes that
Judge Hungate’s order. H(3512)84. did not address the
issue of State funding of desegregation-related capital im-
provements for county schools pursuant to the Settlement
Plan, §X.B.3. Furthermore, the State alleges that Rite-
nour’s request for capital improvements is not desegrega-
tion-related, but rather necessitated by an increasing resi-
dent population. Finally, the State advances the theory
that host district incentives, foundation aid. and trust fund
allocations should be utilized by Ritenour to defray the re-
habilitation costs of Buder (if Ritenour believes re-opening
Buder is truly necessitated by the influx of desegregation
transfer students ).

On the other hand, if the Court should approve Rite-
nour’s request, the State believes that certain modifica-
tions are necessary. First, any budget amount should only
include capital costs, and not noncapital costs (which are
already reimbursed through pupil transfer payments).
Second, any work completed or expenditures already made
prior to the submission of this budget request to the BRC

or approval by the Court should not be included in any

A.25

budget award. Third, both the City Board and the State
should be required to fund any capital improvements bud-
get award to Ritenour. Fourth, such a budget award is a
one-time only award to Ritenour. Finally, the State com-
putes the State’s and City Board’s liability to no more than
$19,489.00, payable over five years at $4.92 per pupil per
year.

The States computation is as follows:

Kitchen equipment $ 38,237.00
Repairs, renovation 190,000.00
Kitchen Exhaust System 15,000.00

$243,237.00

State and City Board’s liability: .3103 x .2581 x $243,237.00
— $19,489.00 (.3103 represents 9/29, the fraction indicating
the net regular school classrooms which reopening Buder
will produce; .2581 represents 142/550, the fraction indicat-
ing the portion of Buder’s capacity necessitated by the
1986-87 new elementary transfer students).

The BRC unanimously approved adoption of the Chair-
person’s operational definition and the associated method-
ology regarding the calculation of one-time extraordinary
costs in a proposed school reopening budget, under the
terms of the Settlement Plan, §X.B.3. This operational
definition and methodology provides that:

1) Only capital costs can be funded pursuant to X.B.3
because recurring operating expenses (i.e. non-capital
costs) of a county school are already reimbursed by
$X.B.1 (host district incentives).

a)

-

) Expenditures made before BRC analysis and Court

approval should be deleted from the host district’s
total budgeted cost for reopening a school.

A26

3) The net total capital cost of a school reopening
project should be prorated. Proration should distin-
guish (out of total capital cost) that portion constitut-
ing additional capital outlay burden incurred by the
host district in providing facilities to house additional
transfer students.

4) The capital costs must be reasonable.

Using the aforementioned operational definition, the
Chairperson determined the following to be recurring
operating costs and thus not compensable:

Supplies:
Art $ 3,204.98
Paper 6,576.93
Physical education 2,641.35
Audio-visual 1,036.35
Office 3,974.47
Music 670.75
Clinic 316.00
Instructional materials:
Dictionaries $ 6,102.75
Pictionaries 611.15
Encyclopedias 6,495.00
Math duplicating kits 697.20
Kindergarten science 3,879.00
Kits and instructional
materials 4,059.30
Libraries 4,000.69
Total Current Expenditures $43,865.92

He also determined that $108,000.00 for expenditures made
prior to BRC analysis and Court approval was not com-

A27

pensable. These disbursements were: $31,800.00 for read-
ing and math materials; $30,000.00 for library starter kits
and $47,000.00 for roof work.

The Chairperson’s final recommended budget amount
for Ritenour was $108,783.00 payable by the State only in
a single lump sum on or before June 30, 1987 (he further
recommended modification of this amount depending upon
whether or not Ritenour accepts 140 additional elementary
transfer students in 1986-87). His recommended amount
was computed as follows:

Total projected cost of reopening

Buder $587,000.00
Deduct recurring operating costs -43,865.00
Deduct unilateral unapproved

disbursements -108,000.00
Net capital cost $435,135.00
Multiply by cost proration factor 108,783.00

(25%) ($435,135 x .25)

Derive cost proration factor by
dividing the additional elementary
students to be accepted in 1986-87

(140) by the student capacity at
Buder School (550)

(140 divided by 550 = .254) 25%

The other opinions expressed regarding Ritenour’s
budget request were provided by the City Board and “‘cer-
tain St. Louis County school districts” (specifically Bay-
less, Brentwood, Clayton and Hancock Place jointly, here-
inafter referred to as “county school districts”). City

A28

Board took exception to the State’s argument that City
Board should share funding of any Court-ordered host dis-
trict capital improvements. The City Board points out that
the other activities listed under X.B.3 are fully state
funded, and that this issue was not raised regarding Rock-
wood’s budget request in 1984 (which Judge Hungate
ordered only the State to fund). In fact, the State did not
even raise this issue at any of the BRC meetings with re-
gard to Ritenour’s budget request.

The county school districts also believe that the ques-
tion of the State’s liability pursuant to X.B.3 was settled
long ago. They refute the argument that X.B.3 limits re-
imbursement of only capital costs by pointing out that the
only limiting language in X.B.3 (in connection with one-
time extraordinary costs) is “other than hiring of person-
nel." They support Ritenour’s proration factor (albeit
they believe that no proration factor is necessary or man-
dated) because the total number of elementary transfer
students impacts upon the necessity to reopen an elemen-
tary school. Finally, because “‘{t]he mechanics of obtain-
ing approval of a budget request .. . is somewhat time
consuming . . . impractical’, costs expended prior to BRC
review and Court approval should not be disallowed.

Section X.B.3 of the Settlement Agreement provides
that:

The cost of the incentives for provisions for voluntary
teacher exchanges under Section VI (Faculty), the
cost of student recruitment, start-up costs and building
modification costs of new magnet schools and ex-
panded magnet costs to schools programs, one-time
extraordinary costs (other than hiring of personnel )
such as the costs associated with reopening a closed

A29

school, the costs of community involvment (sic) cen-
ters and part-time educational programs, transporta-
tion of transferring pupils, the operating expense of
the VICC, its staff and the Recruitment and Counsel-
ing Center and each of its offices, the costs relating to
the improvements in educational programs offered by
the City Board in Section IV (Quality Education) and
such other costs incurred pursuant to this Settlement
Agreement shall be paid by such combination of addi-
tional State funding pursuant to Court of Appeals for
the Eighth Circuit’s decision in Liddell et al v. Board
of Education et al., 677 F.2d 626, 641-642 (8th Cir.
1982). cert. denied, 51 U.S.L.W. 3258 (Oct. 5, 1982)
(No. 81-2022) and a tax rate increase in the City of
St. Louis as shall be ordered by the Court. These pay-
ments shall be in addition to the payments set forth
in paragraphs a and b above.

The Court agrees that the issue of the State’s liability
has been settled for some time. Most, if not all the activ-
ities listed in §X.B.3, are fully State funded. The district
court. in Order H(3512)84, required only the State to fund
the capital expenditures of reopening closed classrooms in
the Rockwood School District. The issue of the State's
obligation to fund proposed capital renovations under
r
a ~~ ~
» a |
— -
.
‘

a

r ©
rh ’
4 ~
—
c e
penta
pate ’
~~
ot >
. i
+. ry
> amg ;
», - rh
~ tL, —
~
paw
_ — —_

rm

, = ~~ a - ~ _—~ » — — s
» - Sa - — ~ ~ —~ ros c _ iD ~ ~
me —— “ 4 “~f - ~ ~ A - f > - tL
ee re YY C — > Us ~ a ae hess 5 40) Of ad CU =
+ aa a ” - "> f — = = Ad —~ - -
P of e ee =
ar' e ~ ~ “i _ — ~*
= 7 ‘al om ~—4 — New - a _— ~
» ~~ c eS al ww S - 13 ~ rie goed ~~ Ne - + af —
of ti ~ CU f _ . _ - ~~ > oa =
“ aed al — = — ¢ —_— - ~~
. i rv a ~ « - - + oa J
- a ‘ \ -
_ - ~ J a A ~_ _
@ _ _ ie ms “a ¢ ~
~ a ie aa = rer _ : - 8
- - Ma e " — av o- ~ —_ a _ , aan se re oe“ —
“a - ~~ + e —
Vv ov 4 = =. _— Py» +e " —~ am
‘ > o~_ + Sad - + od j ~Y sa a
> a, ae’ — —_ —
_ ij — ¢ > ~~ ie + — ae ~ j
f Sd —— Cd -
~ 1. ~~ ~~ — ~' —_ - - _ oun “ i
= ° a = - ~~ > ”
rc net
A > ~ os Sad ~ = aa ae ~
cf . e~ _~ a -~ + 3 _ ps
— * > of —= «~ + v . = > 0 9g -¢ SBS YO
e. q > ~ a ohal +
ie — a e en q4 — vs -
mm a 2 + ~
r a n pa
— — q \ -
= — a3 - n f — ~
= ~f -- # > C y
- 9 —~ — 7 = € + mh -
- 4 f ~ _ e qv’ ~ ~- v - a = -
. + * cane _ - a - ~ aaa — + J =
e N - ove , oo — = 5 ~ _ -~ do —
mf os . r - | ~_ a a ~
oi8 ~ _ ~ eli = c C e — ~ ;
c. - — oO S — e = bq ~ $y ob 4 ae
— ny . a pant -_ oe A (‘TS -_ a
f G WY — j wb 4 ?
J 4 C - Ww - + 4 R - - ~ Y .
ro c a = = > - + ~
y + i 7 con > / - c =
% a a 2 » = ~ ae * ae om C = SS ae SSS

———Ssk kK kk eeeewe~SS

A54

the implementation of the plan. The City of St. Louis
filed a petition for a writ of prohibition seeking the same
result. The district court maces both of these motions,
and the State and City of St. Louis Gir to our Court.
In an en banc order, Liddell v. Missouri. 717 F.2d 1180 (8th
Cir. 1983) (Liddell VI), we denied the stay with certain
exceptions. We froze the number of interdistrict transfers
and deferred any further district court action concerning
the City Board’s property tax rate. We also deferred
action on the writ of prohibition until we considered the
case on its merits.

Appeals were filed from the district court’s July 9,
1983, order by the State of ¢ Missouri, the City of St. Louis,
the North St. Louis Parents and Citizens for Quality Edu-
cation, and the St. Louis Teachers Union.

The State contends on appeal that the district court
erred: (1) in approving additional interdistrict transfers
of students, and requiring the State to pay the full cost of
the additional transfers; (2) in approving additional mag-
net schools and part-time integrative programs, and re-
quiring the State te pay their full cost; (3) in approving
certain programs to improve the quality of education in
the city schools, and requiring the State to pay one-half |
the cost of these programs; and (4) In ordering a deferral
of scheduled property tax reduction for the city schools,
and in stating that 11 would order a further increase 1n
property taxes to fund the City Board’s share of the cost
of the quality education programs 1) the city schools.

The City of St. Louis joins in questioning the au-
thority of the district court to enter the taxing order re-
ferred to in (4) above.

The St. Louis Teachers Union contends that the dis-

4

trict court erred in denying Its motion to intervene.

nore extensive

?
i

horized by

+

ul

, +

na

Iror

appeal

+

wn

A56

and 318 county students were attending city schools. All
but seven of the 318 were enrolled in city magnet schools.
The State of Missouri paid the cost of these transfers, in-
cluding transportation costs and fiscal incentives, to the
sending and receiving schools.

The settlement agreement calls for an expanded pro-
gram of interdistrict transfers. City-to-county transfers
of black students will be permitted to grow incrementally
until they reach 15,000. No limit is placed on the county-
to-city transfers, but the number is not expected to exceed
3,000. These transfers are expected to be primarily to
city magnet schools and programs. Transfers between
county districts are also permitted. All student transfers
are voluntary.

The State’s funding obligations remain as they were
under the July 2, 1981, order: It must pay transportation
costs and must pay to the receiving district for each trans-
ferring student an amount equal to the receiving district’s
cost per pupil, less State aid and trust fund allocation.
It is further required to provide fiscal incentives to send-
ing districts which may elect payment under one of two
formulas: either one-half of the State aid the district
would have received had the student not transferred; or,
beginning in 1984-85, if a district sends more students
than it receives. State aid based on the district’s enroll-
ment for the second prior year. To be eligible for trans-
fer, students of good standing must be in the racial ma-
jority in their home districts and must transfer to dis-
tricts where they would be in the racial minority.

After approval of the settlement agreement, transfers
rose dramatically. During the current school vear, 2,294
city students have transferred to suburban districts and

ee

ae
A58

A. THE PROPRIETY OF THE DISTRICT COURT'S
ORDER WITH RESPECT TO INTERDISTRICT
TRANSFERS HAS BEEN PREVIOUSLY DE-
CIDED.

This Court has repeatedly authorized the interdistrict
transfer of students as a fundamental element of an effec-
tive remedy for the unconstitutional segregation of the
city schools. In Adams v. United States, supra, 620 F.2d
at 1296, we specifically approved the development and
implementation of ‘a comprehensive program of exchang-
ing and transferring students with the suburban school
districts of St. Louis County.”

In Liddell III, supra, 667 F.2d at 650, we rejected
the State’s argument that the district court was without
authority to formulate an interdistrict plan without find-
ing an interdistrict violation. We also noted that volun-
tary interdistrict pupil exchanges “must be viewed as a
valid part of the attempt to fashion a workable remedy
within the City.” Id. at 651. In an order appended to
that opinion, we noted that the State had been “judicially
determined to be a primary constitutional violator.” and
we held that an interdistrict transfer plan would be sal-
utary and would be entirely enforceable against the State
Id. at 659.

Finally, in Liddell V, supra, 677 F.2d at 630. we reit-
erated our conclusion that, because the State had been
found a primary constitutional wrongdoer. it can “be
required to take those actions which will further the
desegregation of the city schools even if the actions re-
quired will occur outside the boundaries of the city school
district.” After discussing broad-based interdistrict pro-
posals and dismissing them as unsuitable. we addressed

\ r wy
\ ( | e bale | + 4 }
lien . La Ae ne
Ay | ‘ }
?}
4 Y
Va [it rery ,y > ‘7
al l p ves
‘
rw, J |
Aiil Sf ."
t ~\s Li reo + .
: s+ a cA |
ri? +. . ;
“\A . i( { ) C | "
i 5 Whnier m9" .
Aid \
ae |
" ‘ a
A 4 | {)? >
} ALIO] +} sa? ;
i ne c yr}
Uk ir poa
, ‘
ri nt
C Ai i ( { IIr?t ‘ "
4d ()1) | - > *
uu J
Nrov ) _
A CK Ves
T T er
req
y YF +
? y .
y r Pat y |
‘ i app! \ ‘ale.
r
t inen +}
aden : © Trea ns
l Tate *c)
>U4 ] fr
VA , +} >
’ 4 t yr’?
\ f ry)? ) }
i Uf Sed
; . lL l ; ‘ ;
: ' ved ;
¥ 4 ( eC!
' r ] |
y ™ 25 5
A t ( ) ‘ | ’
é }
\ { } - tg
+ rt]
, : | Lf
n+,
? y
i ~ 4 +A
WO] , Pi f4.
. ‘
f
‘arr >
r y
y ] '
c | +4
he ‘x .
‘ 1 .
} ] f r tr 4
tr +
Ove b | _
4 a: ,
i ryt
ss ¥
‘
] +
. i y r ‘
. > ' | ry ‘> 4
i er . .
’ ’
t +
4 4 ¥ >
>
c ry Y> 4 ;

tegration of personne
Board of Education
junior high schools '
schools in a_ balan
supplement these Ju!
proposed that the st
natively, that the

and a comprehens!v

fers be developed

Of the four pla
that only the Colt
tionally permissible

as too little too lat

court’s finding tha’
probably result in
few vears. We fol
sible with som
discarded by the
plan was “educatl
to achieve effecti\

Educ.. supra, 491 |

eourt as the plat
‘the greatest po
taking into a ul
Id iT 25Q CIT
= 2 £2 3, 197]

Pigs ALTA NEE Bm

A65

routes, provides free textbooks, and passes on applications
by schoo] districts for federal aid. See Mo. Rev. Stat.

$$ 161.052, 163.021, 163.031, 163.161, 170.051, 170.055: and
Liddell v. Bd. of Educ., supra, 469 F. Supp. at 1313-1314.

Before the Civil War, Missouri prohibited the creation
of schools to teach reading and writing to blacks, Act of
February 16, 1847, § 1, 1847 Mo. Laws 103. State-man-
dated segregation was first imposed in the 1865 Constitu-
tion, Article IX § 2. It was reincorporated in the Missouri
Constitution of 1945: Article IX specifically provided that
separate schools were to be maintained for “white and
colored children.” In 1952, the Missouri Supreme Court
upheld the constitutionality of Article IX under the United
States Constitution. See State ex rel. Hobby v. Disman,
250 S.W.2d 137, 141 (Mo. 1952). Article IX was not re-
pealed until 1976. Adams v. United States, supra, 620 F.2d
at 1280. Under the segregated system, the State bused
uburban black students from St. Louis County into the
city’s black schools to maintain the dual system. Id., at
1281. The city schools remained largely segregated until
this Court’s decision in Adams.

[t is clear from the foregoing that the State’s presence

n public education is immense and that the State’s Con-
stitution and statutes mandated discrimination against
black St. Louis students on the broadest possible basis.
It is equally clear that the discriminatory policies contin-
ued after the Supreme Court decided Brown I, supra, in
1954. Given the breadth of the State’s violation, it was
appropriate for the district court to mandate an equally

In addition. state law provided separate libraries public
inxs, and playgrounds “for the use of white and colored per-
ins,” M Rev. Stat. 10474 (1939), and established separate

titutes for colored teachers,” Mo. Rev. Stat. 10632 (1939)

fund interdistric ransfers

Ai LCA &

*'

of

Bs oad Mil
ISU! : iInageeda lw Ken II ‘

Ky
VV

Sstu-

States

trom

hould return \ ms ) the posi-

] f \ 1 olale (
i l emedial ust
ers ued voluntal
S : iolation
\ { id l WiTLLLK eT i
f reli uy I school dis-
ed j those who
etl ‘ e tnose non
] y Ss. | i in Oppo
iddell. No
t+ (em S )
€ ea pi es * ustingulsne l
é per! interdistrl
v é } f’ listrict trans-
e a e p. f ana lia
| tne constl-

+4 am ost
143
49°

» : $3

4 S +()¢

A68

the primary constitutional violator, the
position to complain that some of tnt victims may elect
to transfer to integrated schools in another school dist
that is willing to accept them.

In our view, Hills v. Gautreaux orovides precedent for
i t

the remedy mandated by tne district court. In that case,
the Supreme Court considered a remedy against the United
States Department of Housing and Urban Development
(HUD) for discrimination in public housing in the City
of Chicago. The United States Court of Appeals for the
Seventh Circuit had reversed the district court’s dismissal
and ordered the district court on remand to enter summary
judgment against HUD for violations of the Fifth Amend-
ment and the Civil Rights Act of 1964 by knowingly sanc-
(CHA) racially discriminator’ public housing program.
Hills v. Gautreaux, supra, 425 U.S. at 291-292. There-

tioning and assisting the Chicago Housing Authority's

after, the plaintiffs requested that tne district court re-
quire HUD to provide public housing outside Chicago's
city limits. The district court refused, holding that the
wrongs were cornmitted solely against city residents and

within the city’s boundaries.

On appeal, the Court ol Appeals for the Seventh Cir-
cuit reversed and the Supreme Court affirmed. The Su-
preme Court stated:

We reject the contention that, since HUD’s con-
stitutional and statutory violations were committed
in Chicago, Milliken precludes an order against HUD
that will affect its conduct in the greater metropolitan
area. The critical distinction between HUD and the
suburban school districts in Milliken is that HUD has
heen found to have violated the Constitution. That

violation provided tne necessary predicate for tne

A69

entry of a remedial order against HUD and, indeed,
imposed a duty on the District Court to grant appro-
priate relief. * * * Our prior decisions counsel that
in the event of a constitutional violation “all reason-
able methods be available to formulate an effective
remedy,” North Carolina State Board of Education
v. Swann, 402 U.S. 43, 46, and that every effort should
be made by a federal court to employ those methods
“to achieve the greatest possible degree of [relief],
taking into account the practicalities of the situation.”
Davis v. School Comm’rs of Mobile County, 402 U.S.
33, 37. As the Court observed in Swann v. Charlotte-
Mecklenburg Board of Education: “Once a right and
a violation have been shown, the scope of a district
court’s equitable powers to remedy past wrongs is
broad, for breadth and flexibility are inherent in
equitable remedies.”’

Hills v. Gautreaux, supra, 425 U.S. at 297 ‘emphasis added:
citations omitted).

The Supreme Court then discussed Milliken v. Brad-
ley, 418 U.S. 717 (1974) (Milliken I), and the limitation
it imposed on the scope of the federal courts’ equity powers.
In Milliken I, the respondents alleged that the Detroit
school system was racially segregated and they sought the
creation of a unified school district as a remedy. With-
out finding constitutional violations by the suburban dis-
tricts and without finding significant segregative effects
in those districts, the district court ordered the consolida-
tion of the Detroit school system with fifty-three inde-
pendent suburban school districts. After the Court of
Appeals for the Sixth Circuit affirmed this desegregation
order, the Suprerne Court reversed, holding that the order
exceeded the district court’s equitable powers: the courts

A70

must tailor “the scope of the remedy” to fit “the nature
and extent of the constitutional violation.” Id. at 744.

In evaluating the remedy in Hills according to Mil-
liken I’s standards, the Supreme Court noted that nothing
in Milliken I “suggests a per se rule that the federal courts
lack authority to order parties found to have violated
the Constitution to undertake remedial efforts beyond
the municipal boundaries of the city where the violation
occurred.” Hills v. Gautreaux, supra, 425 U.S. at 298-
(footnote omitted). In Hills, the Supreme Court ap-
proved the remedy because it did not coerce uninvolved
governmental units and because CHA and HUD had the
authority to operate outside Chicago’s city limits. Id.

Justification for requiring the State to fund transfers
between city and county schools is stronger than the
justification for the remedy in Hills. Its role in education
is much broader than HUD’s role in housing. See supra
p. 30. In addition, the breadth. gravity and duration
of the State’s violation here was much greater. The
violation scarred every student in St. Louis for over
five generations and it gained legitimacy through the
State Constitution and through the State’s preeminent
role in education. In following the Supreme Court’s
guidelines in Hills, we echo its conclusion concerning
Milliken I. If we barred the use of interdistrict trans-
fers solely because the State’s constitutional limitation
took place within the city limits of St. Louis, we would
transform

Milliken {I]’s principled limitation on the exercise

of federal judicial authority into an arbitrary and

mechanical shield for those found to have engaged

in unconstitutional conduct.

Hills v. Gautreaux, supra, 425 U.S. at 300.

A7l

3. The district court’s order with respect to in-
terdistrict transfers does not infringe on State
or local government autonomy.

The Supreme Court in Hills v. Gautreaux, supra, 425
U.S. at 298, has interpreted Milliken I to mean that district
courts may not restructure or coerce local governments
or their subdivisions. This remedy does not threaten
the autonomy of local school districts; no district will
be coerced or reorganized and all districts retain the
rights and powers accorded them by state and federal
laws. See Hills v. Gautreaux, supra, 425 U.S. at 305-306.

We also find unpersuasive the State’s argument that
funding this remedy will compel other budget cuts, which
would interfere with the autonomy of state and local
governments. If we accepted this argument. violators
of the Constitution could avoid their remedial] respon-
sibility through manipulation of their budgets, leaving
victims without redress. Simply put, parsimony is no
barrier to a constitutional remedy: “it is obvious that
vindication of conceded constitutional rights cannot be
made dependent upon any theory that it is less expensive
to deny than to afford them.” Watson v. Memphis, 373
U.S. 526, 537 (1963) .13

eee

13. The district court’s funding order poses no eleventh
amendment problems. The State relies on Edelman v. Jordan,
415 U.S. 651. 663 (1974). to avoid its liability for a remedy that
requires the expenditure of state funds where that remedy is
allegedly overbroad. The Supreme Court in Milliken II applied
the prospective compliance exception developed in Er Parte
Young, 209 US. 123 (1908), which “permits federal courts to
enjoin state officials to conform their conduct to requirements
of federal law. notwithstanding a direct and substantia] impact
on the state treasury.” Milliken II, supra, 433 U.S. at 289.
After elucidating the three criteria discussed earlier, the Syu-
Ppreme Court in Milliken I] found that the Plan under review
there was constitutional. The interdistrict transfer plan under
consideration in this case conforms to the same three criteria.

A72

Inierdistrict transfers between the city and the counts
schools may proceed pursuant to the settlement agree-
ment, subject to the following exceptions:

(1) No additional transfers will be permitted fo:
the balance of the current school year. Such trans-
fers would disrupt the education of students in both

sending and receiving schools. Planning and recruit-

ment may continue so that enrollment may reach
the levels contemplated in the settlement agreement
3 (2) City-to-county transfers will be limited to a

total of 6.000 students in the 1984-85 school year and
: to not more than 3,000 additional total transfers in
| each succeeding school year until the limit of 15.000
3 is reached. A shortfall of enrollment in one vear

may be made up in succeeding years

q 3 In the event the number of applicants for trans-
° 1 } 1 77 " 7

; fer exceeds the spaces available. priority shall be
P given to applicants who would otherwise attend an

a all-black school

4 In Liddell V. supra, 677 F.2d at 631-632. we

- warned of the need for vigilance to control the costs
of desegregation. Budgetary constraints persist
so does the need for frugalitv. We are

however. to accept the State’s suggestion that “com-

plementary zones” be established. which wor

; tively limit schools that transferees coulc
. This would destroy the voluntary nature of the pla
4 Nevertheless. constant effort ;
must be made by all concerned to limit the costs of
: transportation. insofar as is consistent with the Con-

; stitution and the voluntary nature of 1

A773

C. COUNTY TO COUNTY TRANSFERS.

Although we approve State funding of transfers of
Students between the city and county, we are unable
to give similar approval to the funding of transfers of
students between county districts. We emphasize again
that the objective of transfers between the city and county
Is the eradication of segregation Within the city. Such
transfers are closely tailored to the violation and are
clearly remedia] with respect to that violation. according
to the standards announced in Milliken I] Which were
discussed above. Transfers between county districts.
however, are not geared to remedy the violation found
within the city. Nor does the record establish that inter-
county transfers wil] materially assist jn desegregating
the city schools.

We recognize that some suburban schoo] districts have
Majority black enroilments and others have nearly all-
white enrollments. We acknowledge that the suburban
districts would achieve a further degree of desegregation
by such transfers We neither prohibit nor discourage
such voluntary transfers between county schools but we
Cannot compel the State to pay for them absent a finding
of an interdistrict violation.

ITT. MAGNET SCHOOLS AND INTEGRATIVE PRO-
GRAMS.

A. MAGNET SCHOOLS.

The district court and this Court previously autho-
rized the creation of magnet schools and integrative pro-
grams. About 8.000 students (one-half of whom were
blacks ) Participated in these schools and programs in the
1982-83 school year. Three hundred Participants resided

in the county. No

or integrative progr:

The settlement
court provides tor tl
magnet schools and
magnet schools and
county—with total

}

T}
|

twelve to fourteen
and the balance 1n c

be phased in over tI

To be eligible fi
dents in good stand
their home districts
the magnets. Speci
students from the «
jJents now attend s
or over fifty percent!
black districts are
programs in other |

4 4

open after all of

been accommoadatec

The State argu

devoted to develop
T*

Before review!

observe that the ut

14 Our affl
] Ourt trom ¢
the extent tnat tney
with less than ten
city magnet school
and this Court The

juirements upon

A735

desegregation remedy is beyond dispute. In Adams v.
United States, supra, 620 F.2d at 1296-1297, we evaluated
the remedies we had previously found to be constitutionally
permissible. We recommended “[mjaintaining existing
magnet and specialty schools, and establishing such addi-
tional schools as needed to expand opportunities for an in-
tegrated education.” Id. at 1297. We reiterated our ap-
proval of magnet schools in Liddell III. supra, 667 F.2d
at 658 (emphasis omitted), where, in considering an intra-
district remedy, we directed the city and suburban school
districts to undertake a “study of the feasibilty of estab-
lishing magnet schools located in suburban districts with
attendance open to student of both the suburbs and the city.
" * * The location of these magnet schools should be
determined by agreement between the St. Louis Board
of Education and the suburban school districts involved.”
Finally, in Liddell V, supra, 677 F.2d at 642. we reaffirmed
our conclusion that the district court could “require that
additional magnet schools be established at state expense
within the city or in suburban school districts with the
consent of the suburban districts where the schools would
be located.” As with interdistrict transfers, our previous
determinations in this case concerning magnet schools
are law of the case.

Had we not in our previous decisions explicitly ex-
amined and approved the use of magnet schools and pro-
grams, the weight of precedent would nevertheless oblige
us now to approve their use. In Milliken II. supra, 433
U.S. at 272, the Supreme Court mentioned magnet schools
as a supplement to the compensatory and remedial pro-
grams which it approved in that case. Dissenting in
another case, Justice Powell observed that the Supreme
Court in Swann r. Charlotte-Mecklenburg Bad. of Educ.,

A78

net Schools in Minority Neighborhoods, 19 Integrated
ucation 52, 57 (1981). Because they are supplemented
by the extensive program of interdistrict transfers and
compensatory education, these magnets vill not resegre
gate, nor will they create a dualistic system with elitist

schools.

We do not believe that the district court erred in
ordering the State to pay the full capital and operating
cost of magnet schools. As we noted earlier, the State's
status as a violator of the Constitution compels the dis-
trict court to remedy the deprivations the State has
caused. In Liddell V, supra, 677 F.2d at 642. we held
that the State could be ordered to undertake as a part
of its remedial responsibility the development of magnets

Now we reaffirm that conclusion

While we approve magnet schools and affirm the
district court’s decision concerning their funding, we see
merit in the State’s argument that careful study and
planning must precede replication or expansion of mag-
nets. New magnet schools must be approved by the
Magnet Review Committee and the district court. The
planning process should focus on those schools and pro-
grams that present a reasonable probability of attracting
suburban white students: only those schools which dem-
onstrate such a_ probability should be approved The
new schools should be phased in over a period of four
vears as provided for by the settlement agreement. The
total number of students enrolled in city magnet schools
shall not exceed 14.000

We impose an additional limitation on ne cde velon
ment of suburban magnets Although a panel of this

Court approved the use of suburban magnet schools in

A79

Liddell III, supra, 667 F.2d at 658-659; and Liddell V
supra, 677 F.2d at 641-642, the Court en banc does not
believe that the record sufficiently supports this devel-
opment. The county districts may proceed on their own,
of course, without state funding. Any black city stu-
dents who transfer into county-funded magnet schools
would count toward achieving the district’s plan goal
and would contribute to the district's final judgment
State fiscal incentives would include payments to dis-
tricts sending transferees to county-funded magnets, but
the State will not be required to pay the capital or oper-
ating costs of county magnet schools as such.

B. PART-TIME INTEGRATIVE PROGRAMS

Part-time integrative programs are primarily intended
to provide integrative learning experiences for students
attending all-black schools. Adams v. United States.
supra, 620 F.2d at 1296; Liddell IV, supra, 693 F.2d at
727; Liddell V, supra, 677 F.2d at 642. These programs
have been, and should continue to be. an important ele-
ment of the overall plan to integrate the city schools
In determining the need for continuing the existing pro-
grams, or developing new ones, the City Board and the
Budget Review Committee must keep the above standard
in mind. They must also recognize that the number of
black students in nonintegrated schools wil] decline dra-
matically over the next four years. We thus approve
the district court’s decision insofar as it permits the
continuance of part-time integrative programs and re-
quires the State to pay full cost of the approved programs

We do not, however. specifically approve the new .
expanded programs or the dollar amounts for these p
grams listed in the proposed budget (items A.4 10. A.4.11,

AB!

to attend magnet schools. Other programs address motiva-
tional needs of students in the all-black schools by stimulat-
ing opportunities for student success and recognition, by
introducing role models for academic achievement, and by
establishing student concerns committees to address the
morale, attendance, and behavior issues which emerge
during the implementation of the plan.

A. LEGAL PRECEDENT FOR INCLUDING COM-
PENSATORY AND REMEDIAL PROGRAMS IN
DESEGREGATION REMEDIES.

This Court suggested the necessity for remedial and
compensatory programs in Adams v. United States, supra,
620 F.2d at 1296, and reiterated that need in Liddell V.
supra, 677 F.2d at 641-642. We thus approve them in prin-
ciple as law of the case. See supra p. 28. Moreover, such
programs have solid support in the case law as proper com-
ponents of a desegregation remedy so long as they relate
to the constitutional violation, are remedial in nature, and
account for state and local autonomy. Milliken II, supra,
433 U.S. at 280-281.

In Brown I, the Supreme Court recognized that segre-
gation harms black children by generating “a feeling of
inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be
undone.” Brown I, supra, 347 U.S. at 494. In light of this
harm, federal courts have often required the inclusion of
remedial programs in desegregation plans to overcome the
inequalities inherent in dual school systems. Milliken II.
supra, 433 U.S. at 283. See, e.g., Arthur v. Nyquist, supra,
712 F.2d at 811; Oliver v. Kalamazoo Bd. of Educ.. 640 F.2d
782, 789-790 (6th Cir. 1980): Evans v. Buchanan, 582 F.2d
790, 767-769 (3d Cir. i978) (en banc), cert. denied. 446

U.S. 923 (1980); United States v. Texas, 447 F.2d 441, 448
(1971): United States v. Jefferson County Bd. of Educ., 380
F.2d 385, 394-395 (Sth Cir.), cert. denied, 389 US. 840
(1967): Berry v. School Dist. of Benton Harbor, 515 F.
Supp. 344, 369-373 (W.D. Mich. 1981), aff'd and remanded,
698 F.2d 813 (6th Cir. 1983); United States v. Bd. of School
Comm'rs of Indianapolis, 506 F. Supp. 657, 671-673 (S.D.
Ind. 1979). vacated in part on other grounds, 637 F.2d 1101
(7th Cir.). cert. denied, 449 U.S. 838 (1980).

Such programs “assist students who previously at-
tended all-Negro schools when those students transfer to
formerly all-white schools. .. . The remedial programs

are an integral part of a program for compensatory
education to be provided Negro students who have long
been disadvantaged by the inequities and discrimination
‘nherent in the dual school system.” Milliken II, supra,
433 U.S. at 284 (emphasis in original), quoting Plaque-
mines Parish School Bd. v. United States, 419 F.2d 817, 831
(5th Cir. 1969). Crucial to the Supreme Court’s analysis
‘n Milliken II is the concept that segregation not only in-
flicts harm on individual black students, but also builds
erat ‘into the] * * * educational system.” Mil-

. II, supra, 433 U.S. at 28 (emphasis added). Thus,
to enn the effects of a dual system which operated for
decades with the sanction of law, remedial efforts must

also concentrate on systemic educational improvements.

- A secondary remedial objective of the quality educa-
tion improvements 1s to enhance the appeal of the city
school system, thereby promoting the chances of a stable
and successful voluntary desegregation plan. The exodus
of white parents and students out of fear of integration,
or “white flight,” is no excuse for school officials to avoid

desegregating. United States v. Scotland Neck City Bad.

A83

of Educ., 407 U.S. 484, 491 (1972); Monroe v. Bd. of
Comm'rs, 391 U.S. 450, 459 (1968). Yet, “there is a valid
distinction between using the defense of white flight as a
smokescreen to avoid integration,” and addressing “the
probability of white flight in attempting to formulate a
voluntary plan which would improve the racial balance in
the schools without at the same time losing the support and
acceptance of the public.” Higgins v. Bd. of Educ., 508 F.2d
779, 794 (6th Cir. 1974) (emphasis in original); accord
Parent Ass’n of Andrew Jackson High School v. Ambach,
598 F.2d 705, 719 (2d Cir. 1979). A child’s enrollment in
a particular school is the result of two decisions: the gov-
ernment’s student assignment, and the parents’ decision to
stay, move, or send their children to private school. Thus,
as Professor James Coleman insists, “government policies
must, to be effective, anticipate parental decisions and ob-
tain the parents’ active cooperation.” Coleman, New In-
centives for Desegregation, 7 Human Rights 10, 13 (1978).
Improving the quality of integrated schools consequently
promotes parental acceptance of desegregation, and pro-
motes the remedy’s success. Gewirtz, Remedies and Re-
sistance, 92 Yale L.J. 585, 652-653 (1983). See also Rossell
& Hawley, Policy Alternatives for Minimizing White Flight.
4 Educational Evaluation and Policy Analysis 205 (1982).

The quality improvements for the all-black schools
serve a further remedial objective. A strong presumption
exists against the constitutional propriety of one-race
schools, Swann v. Charlotte Mecklenburg Bd. of Educ., su-
pra, 402 U.S. at 26, and any desegregation plan leaving one-
race schools must be carefully scrutinized. Id.; Lee v.
Macon County Bd. of Educ., 616 F.2d 805, 809 (5th Cir.
1980). To overcome this presumption of unconstitutional-
ity, a court must find that the existence of one-race schools

is justified in light of the particular facts of the case a1 d
the feasibility of other desegregation techniques. Arm-
strong v. Bd. of School Directors, 616 F.2d 305, 321-322 (7th
Cir. 1980); Tasby v. Estes, 572 F.2d 1010, 1014-1015 (Sth
Cir. 1978). When no other feasible desegregation tech-
niques exist, then specific remedial programs for students
in the remaining one-race schools may be included as a
means of ensuring equal educational opportunity. See, e.g.,
Tasby v. Wright, supra, 713 F.2d at 95-97; Clark v. Bd. of

Educ. of Little Rock, supra, 705 F.2d at 272.”

The district court held extensive hearings on the fair-
ness of the quality education component, with lengthy
testimony from local and State education officials, a num-
ber of expert witnesses, and representatives of the other
parties. After reviewing the evidence and the recommen-
dations of the court-appointed financial advisor, the court
concluded that the programs fell within the proper remedial
scope:

The sole purpose for the expenditure of funds under

this Plan is to carry out the constitutional responsi-

bility to remove the vestiges of a segregated school

* 7

system.

In no way should any funding provisions presently
authorized by the Court be construed to authorize
expenditures unrelated to City Board’s desegregation
obligations under the Constitution and the Settlement

Plan as approved.

Liddell v. Bd. of Educ., supra, 567 F.Supp. at 1051-1052.

15. The quality of an all-black school 1s als improved
when students attend such schools voluntarily See Coleman,
New Incentives for Desegregation, 7 Human Rights 10, 14-15
(1978) The settlement plan recognizes this imperative in pro-

viding for voluntary interdistrict transfers

A85

B. ANALYSIS OF THE COMPENSATORY AND
REMEDIAL PROGRAMS APPROVED BY THE
DISTRICT COURT.

The position of the State before this Court with re-
spect to the quality education programs is somewhat am-
biguous. In ils opening brief, it argued that the city and
county schools had not agreed to a quality education
package and that therefore the district court had nothing
to approve.'® It further asserted that

[t]he Quality Lducation {component} is not only es-
sential from a contractual point of view but also from
a constitutional standing. The 15,000 black children
in north St. Louis who will not have the opportunity
to transfer under the Plan are still victims of consti-
tutional wrongdoing as found by the court. The
Quality Education section of the Plan is virtually the
only remedy available to those black children to re-
dress their wrong. Without it they stand as victims
without redress.

State's Opening Brief at 26-27.

It concluded by stating that the court did not have the
authority to modify the agreement to include the quality
education component.

In its reply brief, the State changed the focus of its
argument and complained that the provisions requiring
improvement in the quality of education in the integrated

16. Section IV of the settlement plan states:

[T]he St. Louis County School districts do not have the
necessary information about the city schools to form an
opinion on the details of the Appendix and, therefore, they
do not agree or disagree with all of the specifics in this
basic design.

E schools were only remotely related to jesegregation It
He . . \ L Li! Li iy | La LX i i . oi hat iA
a continued to assert tnis pt sition at oral argument
: The State is not a partly lo the settlement agreeme!
q It th - lacks ee ee ractian the validitv 2 tho acree-
t thus lacks standing lO question tile validity oi tne agres

ce

% ment on its terms. Warth v. Seldin, 422 U.S. 490, 90!
1975); Fisher Tucson School District No. 1, 625 F.2d
a 834. 837 (9th Cir. 1980). Even assuming that the State

Ovi

—
f.

4 has standing such a question, the district court
3 found that the parties had a meeting of the minds with

res CT Th +} > sccant1a TY >) +h oreement Tl ~
respec to the essential terms Oj he agreement. nis

4 finding is not clearly erroneous
iz
; 7 ~ } ] 4 —- } ese ~ gral] >
The State clearly has standing, however, to challenge
q the district court’s Tunding oraer and did so before that
. a . on ee —. - 4 : ae aan
i courte. It renews that chailenge nel I irgues, in SUD-

' 1 ‘ , : . .
stance, tnat the court approved funding ior general eau-

ts
yy 24+ - . , \t/c +lLa nN arated — ] sactiarel
q cational improvements in the integratca schools which
5 smalatan + la . o> 4 , + : .vy lh .
were unrelated to daesegregatio Its argument here iS
. 9 J Ns wc + 4+] V4 4 . + } tha 4 he . 2 eye
CW ofold. First, tne state con enas tna nese prog! ams
’ , } 2 ” Or , * } » ef >) ir) Tf tT
mav only be approved if the Court can line that they
would have been a part of the city schoo! sy» em but fo?
y + ae _ . oH 4445473 i. Te +5 . rr", ; -_ > ; » —
the past unconstitutional segregation [his position mils-
F
4 | The State é S Dé ent Sc! is-
Rodriguez. 41 5 ) S pp f he posi-
‘ Ltlor tnat St Lo is sluae S nstitutiona ght ti any
a particula leve eauca l oO ! { l ¢ distinc-
= tion between Rodrigut and this Case Rodrigue held that
RS property wealth is not a suspe s und e equal p ection
clause, and thus disparate e@ucatione nditure evels be
tween school districts were no} nstitutional violation. Hence
} a+ 4 5 >> , ~¢ 7 hh y s | 7 a | a -
D the Rodriguez plaintiffs had no « titutional right to a partic-
= ular level of education
4 Our case unquestionadly ivolve 1S} i (race
and an establisnea const tutiona! vioiation (ta a ire dual S¢ (
system ) As noted above, courts have repeate ily endorsed m
. pensatory and remedia! efforts to overcome ¢€ ducational inade-
‘ quacies imposed by segregated R > notwithstand
oa . ’
,ii BK

A87

reads the case law and ignores the reality of the harm
imposed by segregated schools. The relevant inquiry is
not whether, in absence of a de jure dual system, St. Louis
schools would have had compensatory and remedial pro-
grams. None of the numerous cases cited above approv-
ing such programs rested on such a conclusion. The point
is that compensatory and remedial education programs
are necessary to remedy the effects of discrimination on
the victims of segregation and the school system itself.

The second aspect of the State’s argument is that
there are no findings made by the district court, nor
sufficient support in the record, to suggest that the qual-
ity education improvements are only remedial in nature.'>
The Second Circuit recently observed that the line be-
tween remedial purpose and general educational improve-
ments unrelated to desegregation is inevitably blurred:

{A} court is entitled to require money for programs
that materially aid the success of the overall deseg-
regation effort. A program of that sort is not dis-
qualified for needed funding simply because its in-
clusion improves the overall quality of the school
system. At the same time a court must be alert
not to permit a school board to use a court’s broad
power to remedy constitutional violations as a means
of upgrading an educational system in ways only
remotely related to desegregation. Striking the bal-

18. To clarify, relating the remedy to the violation pur-
suant to Milliken I] does not require a finding that each edu-
cational program at issue has in the past been “infected with
the discriminatory bias of a segregated school system.” Evans
v. Buchanan, supra, 582 F.2d at 769, quoting Milliken II, supra,
433 U.S. at 275. It is sufficient to determine that the remedial
program is directed to cure the general condition offending the
Constitution.

a district court
the school aut!
to the knowled bl.

intimately fam rv

Arthur v. Nyquist,
ted )

We think that
ported as it relate
nonintegrated sche Neither
States, nor the City
ments. Moreover,
of every expert witne that te
in class-size was viewed by the
plaintiffs as critic
of black students
remedial instructior
promote a positive
that the Supreme C
Bradley v. Millik
Mich. 1975), aff'd
1976), aff'd, 433 Us
sis assist in provid
] | ‘
. vy y ; ’ ned
, ry ‘ t Pd ALAl
‘ ‘ 1 ’ ? ry
‘ . ‘ re ’ ‘ ‘
’ e™ i ‘
, , — y rY) é
‘ = : t '
1 . .
‘ \ i
‘ , ,
, } ‘ ‘
‘ . i¢ t it it
‘ " ’ ‘ ‘ :
y ‘ f t
' ‘ ‘ ‘
y , i ‘
‘
: , 7.
vy
fraAaeEmMe?
+) ’ -y ’
‘ ‘
— y vy " ’
_— +} 7 . ‘ . ’
‘ ‘
[44 )
~
‘ . " ‘ . ’ I ‘
) ‘
as ‘ '
a * , ‘
-oe tir
‘ y ‘ , : TY ’ eT mn
‘
. +} _ "ss ‘ ’ ’
" P , ‘ ‘
‘ +} olery +
rt ry ’ ’ f
‘ }
s\4
‘ +. }
‘

A91

Second, we find adequate support in the record for
preschool centers ( budget item A.4.01, $811,000), and for
planning and program development (a part of budget item
A.1.01, $585,000). Both of these programs are recom-
mended by the State Department of Education, and both
have been shown to be closely related to the desegregation
process.

Third, we find adequate support in the record for
all-day kindergartens (budget item A.4.02, $6,129,000):
parental involvement (budget item A.8.05); desegrega-
tion planning (budget item A.8.13, $41,000); long-range
planning ‘budget item A.8.15, $431,000); and public af-
fairs (budget item A.8.06, $184,000). The all-day kinder-
garten program serves several important compensatory
and remedial objectives. Much of the testimony at the
fairness hearings emphasized the importance of focusing
desegregation efforis on the earlier grades, as younger
children have developed fewer racial prejudices and dif-
ferences in performance are narrower. See Hawley, E£f-
fective Educational Strategies for Desegregated Schools,
99 Peabody J. of Educ. 209, 214 (1982). The additional
instruction time will also assist in building prerequisite
skills for city pupils. The testimony also emphasized that
many of the children came from single-parent families
that did not provide them with the skills which would
permit them to compete with other children at the first-
grade level. See Milliken I/, supra, 433 U.S. at 284. The
ali-day kindergarten program is an expensive one which
must be implemented carefully if waste is to be avoided,
and the full benefits of the program realized. We there-
fore direct that the program be phased in over a period
of at least two years.

Parental involvement is similarly emphasized, both in
the record and in the literature, as crucial to the success

AY2

a of the desegregation plan. g., Hawley, Effective Ed-
7 ucational Strategies for Di segregated Schools, supra, at

212, 225-226. Because many students will not be attending

r their neighborhood schools aS a result of the student
- and other programs

transfers, special parent-stall seminar:
will be critical in developing ana mall
4 volvement. The changes involved in implementing the
plan, and the future demographic and student enrollment
planning essential to the suc-

taining parental in-

shifts, render long-range
cessful desegregation of the city

1 to citizen awareness and ac-

schools. The public af-

falrs program is essentia

ceptance of the plan.
: In light of the foregoing discussion, we approve the
‘ ‘istrict court’s funding order insolar as It relates to pro-
ams necessary to the city schools to retain its AAA Trat-
: ng. While the record 1s not entirely clear as to precisely
hat programs the Stat required the City Board to in-
stitute to regain this rating, 1t appeals that they are budget
tems A.2.01, library and media services, A.2.02, audio
isual services, A.3.01, lower class size: and A.3.02, resto-
ation of art, music, and physical education. It is the in
ntion of the Court that these budget items be imple-
. mented only insofar as necessary for the city schools to
retain their AAA status. Retaining this status does nol
, nelude a further class-size reduction in the integrated
nools We also approve the following additional pro-
j gram preschool centers. planning and program develop
ment all-day kindergarten, parental involvement, deseg

regation planning, long range pianning, and public affairs.

however. find adequate support in the
\ll are desirable, but

hat they are neces-

We cannot,
record for the remaining program:
the City Board has no’ made the case

sary to provide equal educational opportunities to the

A938

children of St. Louis, or are otherwise essential as remedial

or compensatory programs.

C. CAPITAL IMPROVEMENTS IN THE _ INTE-
GRATED AND NONINTEGRATED SCHOOLS

The settlement agreement describes the age and condi-
tion of the city schools: Generally, they are in a condition
of old age, rapid deterioration, and extreme deferred main-
tenance. Thirty-four of the nonintegrated black schools
and twenty-one of the integrated schools are over fifty
years old. Nearly one-fourth of the building area in the
city schools is over seventy-five years old. Nearly one-
half of the building area in the city schools is over sixty-
five years old. More than two-thirds of the building area
in the city schools is over fifty years old. At the fairness
hearing, the district court heard uncontradicted evidence
as to the condition of the city school facilities which paral-
leled that recited in the settlement agreement.

In the last twenty-four years, St. Louis voters have
defeated thirteen proposed bond issues. The only bond
issue to pass during this period was in 1962. and approval
came only after resubmission to the voters. Significantly,
both of the last two proposed bond issues were approved
by a simple majority; the constitutional requirement of
two-thirds voter approval, however, blocked passage of

these issues.

At the fairness hearing, the State argued that more
careful planning was required before renovation or new
construction programs could be initiated, particularly in
light of expected declining enrollment in the city schools.
It also argued that the schools were in a deplorable con
dition because the City School Board had failed to maintain

them over the years. It questioned whether certain item

A95

On appeal to this Court, the State does not question
either the need to improve facilities, nor its obligation to
help pay for these improvements. In its opening brief, it
argues that if the bond issue fails, the whole plan will fail
for lack of funding because it is unfair to expect the State
to pay the full costs of the improvements. It also renews
its argument that, because the county schools failed to
agree to a detailed building program, the settlement agree-
ment as a whole must fail. Finally, it asserts that. in any
event, the district court is without authority to enter an
order requiring a tax levy to fund the City Board’s share
of the improvements. In its reply brief. the State simply
states that the provision of the order requiring “extensive
capital improvements” is “entirely out of proportion to the
constitutional violations found by the District Court.”

The district court did not err in holding that the State
had an obligation to pay one-half of the costs of the capital
improvement program necessary to restore the city facil-
ities to a constitutionally acceptable level, and we find no
merit in the State’s suggestion that the district court’s
order cannot stand because the county districts failed to
agree to the details of the facilities improvement program.
See supra pp. 49-50.

There is merit to the State’s argument that more care-
ful and detailed planning should precede action by the
district court and that this planning should identify the
projects to be undertaken, establish the cost of each project
and set a more specific schedule for the improvements.
Planning and scheduling are particularly important in

view of the expected decline in enrollment

On remand, therefore, the City Board should promptly

identify the projects to be undertaken, estimate the cost

Fig.
#3

es
>
be
*
che
a

-

A96

of each project, and set a reasonably detailed schedule for
the completion of each project. The projects having the
highest priority must be scheduled for completion at the
earliest possible date. To that end. the City Board should
consider the desirability of a referendum on a bond issue
which can be initiated at a very early date and a subse-
quent bond issue for those projects to be built in later
vears. The State will pay one-half of the cost of preparing
the detailed plans and schedules.

As soon as the City Board has prepared the new plans,
estimates, and schedules, it shall submit them to the Budget
Review Committee, discussed infra Section VI, and then
to the district court. When the district court has approved
them, a new bond issue shall be submitted to the voters.
If it is defeated again, the district court shall determine
how the improvements will be funded. See infra Sec-

tion V.

V. FINANCING DESEGREGATION IN ST. LOUIS CITY
SCHOOLS.

In November, 1982, Missouri voters approved a refer-
endum (Proposition C) which directed local school offi-
cials to reduce their operating levies by an amount equal
to fifty percent of the revenues local school districts would
receive under a one-cent increase in the state sales tax.
Mo. Rev. Stat. § 164.013 (Supp. 1983). In its July 5, 1983,
order, the district court enjoined this rollback of local real
estate taxes, Liddell v. Bd. of Educ., supra, 567 F. Supp.
at 1056. and directed the Board of Education to use this
money to fund the quality education programs necessary
to restore the St. Louis schools to their AAA status. In
our en banc order of September, 1983. we sustained the

district court’s injunction of the rollback on equitable

A97

grounds, for the injunction was already in place, and re-
versal at that time would have seriously disrupted St.
Louis’s system of school finance. Liddell VI. supra, 717
F.2d at 1182-1184. We sustain the injunction against the
rollback for the balance of this school year for the same
reason. The equitable nature of that decision obliges us
now to examine the propriety and the merits of the district
court’s injunction of the rollback with respect to years be-
yond 1983-84. We also consider the district court’s author-
ity to order a further increase in property taxes to fund
operating expenses or capital improvements.

We hold that the district court’s broad equitable
powers to remedy the evils of segregation include a nar-
rowly defined power to order increases in local tax levies
on real estate. Limitations on this power require that it
be exercised only after exploration of every other fiscal
alternative.

The district court's use of broad equitable powers con-
cerning school desegregation costs has been approved by
previous opinions of the Supreme Court. Thus, it has de-
clared that, when predicated on a right and a violation.
“the scope of a district court's equitable powers to remedy
past wrongs is broad, for breadth and flexibility are in-
herent in equitable remedies.” Swann v. Charlotte-Meck-
lenburg Bad. of Educ.. supra, 402 U.S. at 15. These powers
subsume a broad range of ideas and tactics: equity assures
that “all reasonable methods be available to formulate an
effective remedy.” North Caroling State Bd. of Educ. v.
Swann, 402 U.S. 43, 56 (1971). These powers may also be
applied broadly “‘to achieve the greatest possible degree of
[relief] taking into account the practicalities of the situa-
tion.” Davis v. Bd. of School Comm'rs of Mobile County,
402 US. 33, 37 (1971).

PE LNITERG ND eB AEN PER Ry SM

AY8

in GritT7in V. ocnooi Bd. of Prince Edward County. déi

+

U.S. 218 (1964), the Supreme Court acknowledged tha
the district court may order an increase in taxes to fund
schoois where the State has defaulted on its obligation to
provide an equal educational opportunity to all students.
The Court did not limit the scope of its holding by ordering
a return to the previous tax levy or procedures. It indi-
cated only thai the tax must be “necessary to prevent fur-
ther racial discrimination” and that it must “raise funds
adequate to reopen, operate, and maintain without racial

discrimination a public school system.” Id. at 233.

In United States v. Missouri, 515 F.2d 1365 (8th Cir.),
cert. denied, 423 U.S. 951 (1975), this Court also acknowl-
edged the district court’s remedial power to require a
tax levy in excess of that authorized by the voters. When
the district court ordered the consolidation of three St.
Louis suburban schoo! districts with disparate tax rates
($3.80, $4.97 and $5.38

rate higher than any of the three ($6.03) would be nec-

it concluded that a uniform tax

essary “to effectively operate the desegregated district,”
id. at 1371. and that “|t]his rate, inclusive of the amount
necessary to service the total debt of the enlarged dis-

trict, shall be deemed to have been approved by the

bh

voters for the purposes Article 10, section 11(c), Mis-
souri Constitution.” Id. at 13872. In setting that rate,
the district court also noted that “there was no reasonable
possibility that such a tax levy would be approved by
the required two-thirds vote in the aftermath of the

desegregation order.” Id

On appeal. this Court sitting en bane unanimously
approved a rate of $5.38. the highest rate of the three
districts. Judge Stephenson. writing for the full Court

stated:

A99

It is anomalous to suggest that the district court
has the power to disestablish a dual school system
but does not have the power to fashion an appro-
priate remedy. In North Carolina State Board of
Education v. Swann, 402 U.S. 43, 45 * * * the court
stated:

{Ij]f a state-imposed limitation on a school au-
thority’s discretion operates to inhibit or obstruct
the operation of a unitary school system or im-
pede the disestablishing of a dual school system,
it must fall; state policy must give way when
it operates to hinder vindication of federal con-
Stitutional guarantees.

We have likewise held in ordering implementa-
tion of a school integration plan that “the remedial
power of the federal courts under the Fourteenth
Amendment is not limited by state law.” Haney v
County Board of Education of Sevier County, supra,
429 F.2d at 368 * * *,

We are satisfied that the district court had the
authority to implement its desegregation order by
directing that provision be made for the levying of
taxes essential to the operation of the new school
district. It is our view. however, that deference
should be given to the plan submitted in good faith
by the state and county officials and which was
largely accepted by the court. It was the view of
the state that with the receipt of anticipated funds
through action of the legislature the present Ferguson
rate would be adequate. Maximum consideration
should be given the views of the state and local
officials concerned so long as they appear compatible

ray

’
:
‘
‘
irea
;
' s
.

ye
y r7
17r -
i A
r
no ;
Wt A
TeSE
) bon
+) +}
rf y
I >
€ Y
. ’
{eT T
A ee |
y
_ +
an r¢
y -
a (
\
. +}
4
| Y
+ y
+5 “a

Al01

taxes per se was discriminatory because it raised dis-
parate revenues in different school districts according
to disparities in the assessed valuation of property within
the districts. The Supreme Court found no suspect class
affected and no fundamental rights at stake. Instead,
it relied on the “rational basis” test and deferred to
legislative expertise in fiscal matters. On the other hand,
in this case, the City Board and State have both been
adjudged constitutional violators in matters involving a
suspect classification. Moreover, in this case, no one
challenges the mechanics of the tax system, which was
the central issue in the passage from Rodriguez that
the State cited.*°

Our conviction that the district court’s equitable power
includes the remedial power to order tax increases or the
issuance of bonds finds support in the case law surround-
ing the contracts clause of the United States Constitution.
U.S. Const. art. 1, § 10, cl. 1. The Supreme Court has rec-

20. The State relies on several] older cases to argue that
the district court may not order a tax levy to satisfy a judgment
against a municipality. Each of these cases arose in a com-
mercial context. In United States v. County Court of Clark
County, 95 U.S. (5 Otto) 769 (1878), a bondholder sought a
court-ordered tax levy to pay interest coupons for years pre-
ceding the year the bonds were issued. The Court declined to
levy taxes because until the bonds were issued, the county had
no obligation and no authority to levy the taxes. Rees v. City
of Watertown, 86 U.S. (19 Wall.) 107 (1874), and United States
v. Couniy Court of Macon County, 99 U.S. 582 (1879), involved
bondholders requesting court-ordered levies to pay for bond
defaults. In both cases, the Court declined, holding the remedy
barred by statutes in existence at the time the contracts of in-
debtedness were formed. Since the statutes became, by impli-
cation, a part of the contract, they precluded the use of the
‘axing remedy. Finally, in Citizens’ Savings and Loan Ass’n v.
Topeka, 87 U.S. (20 Wall.) 655 (1875), the Court declined to
order a tax ievy to pay for a default on bonds issued by a local
corporation aided by the city. The Court reasoned that the
tax would not have been lawful because it would not have been
levied for a public purpose.

} } 7
not be impaired sole

to tax in order to n

of New Orleans ra

courts could requir
which the juagme!
a tax therefor fo!

Louisiana ex rel. !
Orleans, 215 U.S. |
serves Group, Inc

Ct. 697, 705 n.14 (1

a contract t cann¢
ooligations Un
431 U.S. 1, 24 (19
to be exercised li a
these effects, tne ‘
are pound vy tnell
Sim i! ( il
ma not avola the
tutiona )] itul
and Thrift Co
Okla 19D0 tate

TrULT LTalt1OT Mh)?
r 7 {
Lown OF 6,
City of Long bea
t y lic’?
1A ACI
YY TC ¢ ( l!
cits
ae |
® Os » +
Ve A i

A103

initially note that the district court declined to order an
increase in real estate levies for operating purposes until
the need for such revenues had been clearly demonstrated.
It also declined to order a tax increase to fund capital im-
provements until such time as a bond issue of an amount
determined by the City Board as sufficient to meet the
most pressing capital improvement needs of the Board's
constitutional obligation to desegregate had been sub-
mitted to the voters. It acted properly in both respects.

It went on, however, to authorize and direct the City
Board to not reduce its operating levy as required by
Mo. Rev, Stat. § 164.013 (Proposition C), and to direct
the State to refrain from withholding from the City Board
funds that it would otherwise withhold pursuant to the
same statute. It required that the revenue realized be
utilized to fund the desegregation plan. It stated that
any revenue thus retained but not necessary to fund the
City Board's constitutional obligation should be applied
to reduce its operating levy on July 1, 1984.

In our view, this order was deficient in that it was
not accompanied by a factual finding by the district court
that all other fiscal alternatives were unavailable or in-
sufficient. We are unwilling to read such a finding into
the record even though the record reveals that the City
Board has little or no budget surplus, federal aid for de-
segregation has been cut, real estate values in the district
have risen only slightly in recent vears and referenda to
secure additional funds have been largely unsuccessful.*'

Oe ew em -_— —

21. Since 1970, five referenda have been submitted te the
voters to increase the authorized operating levy. While one
requested increase passed in 1976, the remainder failed even
though three of these remaining four received a majority vote.
We note, however, that an increase of $ 25 per $100 of assessed
valuation in the current —a levy could be approved by
a simple majority of the voters. 9. Const. art. 10, § Li(e).

A105

of the cost, the district court shall conduct an evidentiary
hearing and thereafter enter a judgment sufficient to cure
the constitutional violations which we have found in a
manner consistent with this and prior opinions.

Vl. BUDGET REVIEW COMMITTEE.

The settlement agreement, the district court's funding
order and opinion, and this Court's opinion have estab-
lished detailed guidelines for desegregating the city
schools over the next four years. The agreement pro-
vides for a number of committees to assist in desegrega-
tion. They include the Desegregation Monitoring and
Advisory Committee, the Magnet Review Committee, and
the Voluntary Interdistrict Coordinating Council, The
function of the latter committee is to courdinate and ad-
minister the student transfers, the voluntary teacher ex-
changes and the part-time educational programs. A Re-
cruitment and Counseling Center has also been established.
Each of these committees and the Center fulfill important
functions in the desegregation process and may be con-
unued and funded in accordance with the settlement
agreement at the discretion of the district court.

The district court aiso outlined the budgeting pro-
cedures that would be followed:

ll. For the effective and timely implementation
vt the Settlement Plan, as approved, the following
budgeting procedure shall apply with regard to all
actual and reasonable costs, except transportation
costs and costs incurred for the student transfer pay-
ments made to sending and receiving districts, in-
curred pursuant! to the approved Plan:

(a) each participating school district shall de-
liver to State defendants a proposed budget for all

eT a ee = ors = - ee ee ae. ee —_

Wt » es y 4 ? - ;
mf Cd —~ : ~ ig e - x
ee 1 ~~ — - ~ a — —~ ~ —_ - - -— ’ —_
ve 7 ~ oT | “ 4 J
~ -- 4 J — _ wn we > ww > 7 r A Uf
¥ ~ me ~ 7 | > : ~~ mad ~ “> _ é
- > ~~ - — ¥ a 4 mn + C . . . +
= i ~~ x AL ead n ~~ + t > s am S . = Pp : F
— f > i" > ’
- ~ j wv = — _ ~ a 7 ~ ~
. ~ > — f ns = yo a rs omy Vv 4 " .
Sang N 7 ue ~ - . + é 4 +~
~~ + , 4 .
~ - — 4 f — - ~ . 1 hadg Vv — -~
4 ~ _— — oe - - _ -
: . 4 7 - a 4
- — ~~ l na — 2 ~ ~ {
“ A ~~ -
~ s = ae 2 n ‘
4 . C VY — ~ "

. 4
, - . l ¢
_— “
+
: rf
,
|
~ SN

Ser. ET ARE STP A OO

All5

[T]hey are primary constitutional wrongdoers and,
therefore, can be required to take those actions which
will further the desegregation of the city schools even
if the actions required will occur outside the bound-
aries of the city school district.

677 F.2d at 630.

The decision discussed the voluntary participation of
suburban schools and the preparation and submission of
feasibility plans for interdistrict desegregation involving
city and suburban schools. 677 F.2d at 641.

Following Liddell V, the district court commenced its
preparation for trial of the interdistrict issues, but before
the trial could proceed and findings on the interdistrict vio-
lation and remedy issues could be made, the settlement
now before the Court was achieved, with the State not
participating. From this history the only conclusion that
we can reach is that the constitutional violation found on
the part of the State and the City of St. Louis is failure to
take necessary actions to desegregate the schools in the
City of St. Louis and particularly to desegregate the schools
on a system-wide basis, including the predominantly white
schools in south St. Louis and the predominantly black
schools in north St. Louis.

IT.

The scope of remedy available once a constitutional
violation has been found has been discussed by the United
States Supreme Court most recently in Pasadena City
Board of Education v. Spangler, 427 U.S. 424, 49 L.Ed.2d
599 (1976), in which the Court speaking through Justice

Rehnquist stated:

n——hn——,___

All7

mitted in the operation of the Detroit school system
had had any significant segregative effects in the sub-
urbs. (Citations omitted.)

425 U.S. at 293-94.

Hills discussed the conclusions in Milliken I in detail
as we have demonstrated above. Further limits established
by Milliken I are as follows:

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 constitutional
violation. Swann, 402 US, at 16, 28 L Ed 2d 554. Be-
fore the boundaries of separate and autonomous school
districts may be set aside by consolidating the separate
units for remedial purposes or by imposing a cross-
district remedy, it must first be shown that there has
been a constitutional violation within one district that
produces a significant segregative effect in another dis-
trict. Specifically, it must be shown that racially dis-
criminatory acts of the state or local schoo! districts.
or of a single school district have been a substantial
cause of interdistrict segregation. Thus an interdis-
trict remedy might be in order where the racially
discriminatory acts of one or more school districts
caused racial segregation in an adjacent district, or
where district lines have been deliberately drawn on
the basis of race. In such circumstances an interdis-
trict remedy would be appropriate to eliminate the
interdistrict segregation directly caused by the consti-
tutional violation. Conversely, without an interdistrict
violation and interdistrict effect, there is no constitu-
tional wrong calling for an interdistrict remedy.

418 U.S. at 744-45.

; . " ,y*y ' + ; .

ror purposes i ine respo!

c Thea (*h) mm } } ne ’ ,)
ne cag lou F ma

‘ 7 A +a» ‘ +h, —" ;
CHA regulati heir conduct in

A

an area will do no more than

lL. i _— T’ ‘ “7 } 7
ike into account HUD'’s exper ietermination of the
} , L. . }
rea relevant to the respondents housing opportu
, > , ? ‘ . * > ‘ . * . +
es and nus ove wholly commensurate wit}
, . ‘ + 4 ] ,
ne nature and xtel? of the constitutional viola
tion citation omitted
125 U.S. at 299-300
Ht ioes not tifv t i |

exper le

: "
ntin ] bh trsanon ‘ ‘ oy: .
| e( CK 5 ALit re \ t\ T St | Oul iS Op
2 ‘ + +} " +7 ‘ + + \ } ) ]
‘ ‘ O ‘ ray y y y hy thea +4
i ‘ \ i ri¢ ~~ it flad COT ede
thea ri tx nea ~Myim +. ; ho +} re! ;
\ ] Ou \ O DO¢ e reieval irea 1n uf We
. . : .
r x , + 1¥ r. + ‘ +} ’
Ve ) | } sh ' } +... ‘ 4 ‘
I the intradistrict vi !
. : . ' "
‘7 vr} ~ f ? cart } ; q +} 4] Ye 4 .
/ ‘ ‘ C1) ed ron re ("ity tf St ]
, Ye. rn relatio? hir ’ tr mnT*
’ t { i ‘ cyY ‘ nver é . +} ‘
. »+ 7 +} ‘4 ‘ +} + ‘ } } P
( = “ } TY Ve Nee} fT ? mre)
’ ty + ¥ + y cf ; 2 e246. Y ry iv?
¢ ‘ { ’ , hea nor? _
i | {
+ ‘ y »~ + ] ‘ . e "
‘ é " + rs ; ; é y + balel. . ‘ .
] ( }
; " rY
; " — 1% , +} , )
‘ ¢ ‘OY ) ]
‘ Lt ] nNng pr ,
’ i ¥ | » ’ y ¥ + %
f f f ] Dp! f j rye ( ? , ‘
rye ' ‘ ;
y > ¥ , vy, 1¢ ’ ’ ‘vy y
i TY
y . ri? . } }
t ' ’
. y ; +} , 2
‘ > ry? a
j ePXCeT é ’
Y | _? , . , J } ‘ > 3 |
f | the ’ ry ’

A120

ITI.

The Court today bases its approval of the interdistrict
transfers on the questionable ground that this issue has
been previously decided. The Court’s earlier decisions,

in which we have d

the nature Se “? > + le
chool districts. not parties to the lawsuit and not desig-
oOo

nated as constitutional violators, it could not be consid-

ered as government-imposed. To the extent of any seg

Al21

regation imposed by the State or other defendants “and
to the extent those defendants have the power to remedy
the violation, it is proper for the district court to order
them to take steps to do so.” 667 F.2d at 651. The
Court’s opinion, however, cited no finding and made no
conclusion that city-county interdistrict segregation was
imposed by the State or the City Board. Later in the
opinion, the Court specifically referred to the apportion-
ment of costs in Adams. Liddell II]. 667 F.2d at 654.
In discussing apportionment of costs, the Court men-
tioned specifically the segregation existing “in the St.
Louis school system.”’ These statements but reinforce
the Court’s reliance on the intradistrict violation as the
basis for its action. The Court today gives an overly
broad reading of Liddell III.

In Liddell V, 677 F.2d 626, the Court recognized
that Adams held that the State had coniributed to the
segregation “of the public schools of the City of St.
Louis.” Citing Hills, supra, it then concluded that para-
graph 12(a) relating to voluntary interdistrict transfers
is entirely enforceable against the State defendant and
that the State can be required to take actions that will
further the desegregation of the city schools, even if
the actions required will occur outside the boundaries
of the city school district. As we have seen. the Court
in Liddell III & V did not aitempt to identify a type of
constitutional violation similar to that in Hills, in which
actions had confined a certain group of persons to one
portion of the area in question, or to demonstrate a
finding, concession or conclusion that the city-county area
should be considered as one. The Court was considering
only “a modest beginning toward voluntary interdistrict
desegregation.” The Court concluded in Liddell V that

Al23

Rocket Manufacturing Co. v. Saunders Archery Co., 578
F.2d 727, 730 (8th Cir. 1978

IV.

The State was ordered to match funds raised in a bond
issue submitted to the voters by the City Board for capital
improvements. The issue failed and this Court’s order
rather hastily approves the summary treatment of the
district court with respect to this issue.

The laws ot Missouri place the responsibility for main-
tenance of the schools’ physical plant on the City Board
of Education. Mo. Rev. Stat. § 177.031 (1984). This
Court in its opinion correctly describes the age, deteriora-
tion and deferred maintenance of the plant. In twenty-
four years thirteen bond issues have been defeated and
one in 1962 approved only after resubmission. The last
two bond issues were approved by a simple majority but
the constitutional requirement of two-thirds voter ap-
proval has blocked passage of these issues

There is no finding in the district court order and
no conclusion by this Court that the condition of the phys-
ical plant of the St. Louis schools is related in any way
to the constitutional violations of either the City Board
or the State. There is nothing to suggest that the condi-
tion is other than purely and simply the result of the
neglect of the City Board to fulfill its responsibilities. To
order the State to pay half of this expense is to require
a remedy beyond the constitutional wrong that has been
found, which violates the principles laid down in Milliken
I, Hills and Swann. This portion of the order violates the
admonition of the Secc Circuit in Arthur v. Nyquist,
712 F.2d 809, 813 (2d 1983), that “a court must be
alert not to permit use (of| a court’s broad power

na
Cir

A125

amount and the means of collection to procedures under
state law and standards. See also Plaguemines Parish
School Board v. United States, 415 F.2d 817 (5th Cir. 1969).
Our earlier decision in United States v. Missouri, 515 F.2d
1365 (8th Cir. 1975), cert. denied sub. nom. Ferguson Re-
organized School District v. United States, 423 U.S. 951,
96 S.Ct. 374, 46 L.Ed.2d 288 (1975), simply permitted the
tax levy to be established at the highest rate approved by
voters in the largest district.

I have no quarrel with the proposition that, with
proper findings that particular programs are necessary to
remedy a constitutional violation that has been found to
exist, a district court has the power to order the funding
of those programs. The order should simply be in the
form, however, to mandate that certain programs be car-
ried out, and legislative bodies should be left with the
responsibility for structuring the local or state taxing
instrumentalities to achieve the result required. The fed-
eral courts go too far in mandating specific taxing pro-
cedures. I thus agree with the Court today only insofar
as it mentions the option of the district court to simply
enter a judgment against the State, as tortfeasor, for the
amount required to fund those programs necessary to
remedy the constitutional violation.

VI.

The disagreement expressed with respect to the Court’s
opinion today is specifically limited to those areas set forth
above. The programs required by the settlement plan
within the city schooj district, and particularly within
the all-black schools, to provide a quality education for
those students deprived of proper educational opportu-
nities by the segregative actions of defendants, and the en-

A127

requirement that the State provide funding for capital im-
provements in the physical plant of the City schools, and
the singular inappropriateness in our Constitutional system
of a federal court’s ordering state and local taxing author-
ities to impose specific tax increases. His opinion ade-
quately reflects my disagreement with the decision of the
Court in all three of those areas. I cannot agree. however,
that the remaining intradistrict aspects of the remedy ap-
proved by the Court are justified by adequate findings,
and for that reason I dissent separately.

The issue in this case is not whether quality education
is a good thing, or whether it would be wise public policy
for the State to dedicate more of its resources to the public
schools. Instead, the issue is whether, on the present rec-
ord, we have the Constitutional authority to compel the
State to provide funding for the array of costly programs
required by the settlement plan. I submit that we do not.

The costs of carrying out the plan that the Court
today approves will be enormous. For ‘he 1984-85 year
alone, the State’s share of these costs is likely to exceed
$49,000,000, with the City school board contributing addi-
tional funds of approximately $15,000,000. These costs,
and particularly the State’s share, will increase very sub-
stantially in future years as the pace of implementation
quickens. If these costs are necessary to remedy a Con-
stitutional violation, then they must be borne by the re-
sponsible parties—and ultimately by the citizens of the
State—no matter how financially painful compliance may
be. But if these costs go beyond what is needed to right
a Constitutional wrong, if in fact the plan includes pro-
grams and amenities that may be laudable from an educa-
tional standpoint but are not tailored to the incremental

segregative effects that have been caused by the Constitu-

y 7 r
t A 4 y
+ y T
f } +. \rY x ¥ | t
] ] 1A |} y ¢ i :
1 + y > > }
] t tft sy
| , y ()iir 7 pien . .
[ i \ 4 > ai C
] ¥ tT; . } ’ t l
‘ ’ ] ~ 4 ‘ .
_ ¥ y y 4 | TT I ] ; I
‘ F Yr ’ t i : t
ea r WoOVeé 7 (ie?
A Siti i 7
- . . ~ 4+ y YY | ‘
CA il t , . C ;
‘ . thy . } TY T
| | A 4 r
VV € A avs
J x +} ‘ T 7
t i \ \ A
» 4 y ' _ I ‘
‘ t
; . y > T T
. i ‘ S ]
£ + Y | T
] ..

A129

what we have before us is a desegregation plan fashioned
by agreement of the City school board, the suburban school
boards, and the plaintiffs. The State, which must bear the
brunt of the costs, is not a party to the agreement. Over
the objections of the State, the district court has adopted
the agreement or plan, and it has done so without inquiring
into the continuing effects of the Constitutional violation
and the need for the various programs included in this
plan to remedy those continuing effects.

In considering the proposed plan, the district court
merely conducted a hearing to determine whether the pro-
posed settlemert plan “is fair, reasonable, and adequate
for the resolution of the 12(c) interdistrict phase of this
school desegregation case.” Liddell v. Bd. of Educ., 567
F. Supp. 1037, 1038 (E.D. Mo. 1983) (emphasis added).
Thus the district court’s inquiry was nothing more than
the inquiry required under Rule 23(e), Fed R. Civ. P., to
determine whether a settlement of a class action should
be approved. Moreover, the inquiry was focused on the
interdistrict phase of the case, not the intradistrict phase.
Finding the plan satisfactory in terms of the Rule 23 con-
siderations set forth in Grunin v. Int’l House of Pancakes,
513 F.2d 114, 123 (8th Cir.), cert. denied, 423 U.S. 864
(1975), and in Professor Moore’s discussion of Rule 23, 3B
Moore's Federal Practice § 23.80[4] at 23-521 through 23-
924, and giving a few obligatory bows to the Constitution
in language wholly conclusory, the district court approved
the plan and ordered all signatories, as well as the State
defendants, to comply with all its provisions. 567 F. Supp.
at 1042, 1055.

The district court’s approach and its findings are
totally inadequate to provide a Constitutional basis for its
sweeping order and the only sightly less sweeping order

Al3l

We realize that this is a difficult task, and that
it is much easier for a reviewing court to fault ambig-
uous phrases such as ‘cumulative violation’ than it is
for the finder of fact to make the complex factual
determinations in the first instance. Nonetheless,
that is what the Constitution and our cases call for,
and that is what must be done in this case.

Dayton, 433 U.S. at 420 (citation omitted).

In the case now before us, there has been no attempt
to determine the incremental segregative effects of the
Constitutional violation committed by the defendants or
to compare the present City school population to what it
would have been absent a violation. There has been no
tailoring of the order to redress only “that difference”
referred to in Dayton or to restore students in the City
schools “to the position they would have occupied in the
absence of such conduct” as required by Milliken II.

The district court’s failure to conduct a Dayton-type
inquiry and to make findings on incremental segregative
effects has rendered it impossible for this Court properly
to review the district court’s order. This failure has
left us without any measuring stick by which we can
assess the various components of the settlement plan.
The opinion of the Court implicitly recognizes this dif-
ficulty when, in searching for some standard to guide
its review of certain of the compensatory and remedial
programs approved by the district court, the Court re-
sorts to a school classification device—Class AAA status
—developed by the State’s Department of Education as
a means of rating schools, and approves programs nec-
essary to permit the City schools to regain and retain
their Class AAA status. Although the Court’s need to

ak i +

ive to prevent the others from piling their plates high
with programs and funds that would benefit their school
systems. As might be expected, there is no indication
that the parties to the negotiations made any attempt
measure the incremental segregative effects of the
olation on which the plan rests or to remedy only
ose effects. Such negotiations are inherently unlikely
to produce a remedy narrowly tailored to the Constitu
onal wrong and any present-day educational deficiencies
resulting therefrom that fairly may be charged to the
State and, through it, to citizens in all walks of life

~

.
_
I)
aa
-
—_|
=
—

‘hus the need for judicial alert
ness, and careful fact-finding, is especially critical in

3. The seness, vagueness, and uncertainties of the plan
f the witnesses at the hearing before

neariy every program budget [of the plan], one can
nge budget items, some budget items which
ent with the description, certainly not with

ng as is in the case of many programs and I!
pprove it under any circumstances until al!

ere arified, until it was clear what was ex-
pper s a result of the expenditure of money,
f one iid conclude it would not interfere

with the programs in the City that they

i endered in poorer shape than they are

rdinat of State and Federal Pro-
State Department of Elementary,

Tr. of Fairness Hearing. p. 169

\-of-state “expert” presented by the pri
edged during cross-examination

i! 1@} rpdan scnool syste

State tha is all the components that are

education improvements -contained

A134

For the reasons stated above, I would reverse the
judgment of the district court and remand the case to
the district court for further proceedings consistent with
this opinion. I would hope, of course, that the parties
could resume their negotiations and achieve a settle-
ment agreement to which all could assent.

A true copy.
Attest:

CLERK, U. S. COURT OF APPEALS,
EIGHTH CIRCUIT.

Footnote continued—

This whole section of the proposal looks to be an at-
tempt by the Saint Louis school board to justify every
expense they now have and every kind of expenses they can
dream up for the future, as a part of the desegregation case.
We well remember their earlier attempt to have general
maintenance and painting needs become a part of the start-up
expenses for implementing the 12(a) plan now in effect.

Testimony of Shannon K. Burnside, President, West County Asso-
ciation for Neighborhood Schools. Tr. of Fairness Hearing, p.
3-49, 50.

—- ee

A135

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

No. 72-100C (4)

CRATON LIDDELL, et al.,
Plaintiffs,
Vv.

THE Boarp OF EDUCATION OF THE CITy oF St. LOUIs,
STATE OF Missouri, et al.,
Defendants.

SETTLEMENT AGREEMENT

latories to tne peti

A136

TABLE OF CONTENTS

Purpose and Definitions
Voluntary Interdistrict Transfers
Magnet Schools

Improvement of the Quality of Education

Throughout the St. Louis Public Schools and

T

Special Provision to Improve Quality in Non-
I :

Integrated Schools
Part-time Educational Programs
Faculty

Parent Involvement
Transportation

Administration

Finance

Other Provisions
Stay

}

lement Agreement

\dix—-Improvement of the Quality of Education

Throughout the St. Louis Public Schools
and Special Provision to Improve Quality

n Non-Integrated Schools

Page

A137

I. Purpose and Definitions
A. Purpose

This detailed implementation plan is submitted by the
signatories as an agreement to settle the litigation in-
volving paragraph 12(c) and the plaintiffs’ interdistrict
claims |H(348)81, as amended; H(351)81, as amended;
and H(1027)82, as amended] and to implement the Agree-
ment in Principle H(2141)83 as required by the Court’s
Orders H(2142)83, H(2214)83. The establishment of
programs and the funding of this settlement agreement
is under the authority of paragraph 12(a) of the May 21,
1980 Order as amended as well as the erders and decisions
relating thereto and the provisions contained in this agree-
ment. The Agreement in Principle provides:

AGREEMENT IN PRINCIPLE

FIVE BASIC ELEMENTS OF
A FINAL SETTLEMENT

In reviewing the five basic elements of the proposed
final settlement, two preliminary points bear special men-
tion. First, the five basic elements are at best statements
of broad principles, and many significant subsidiary issues
and details still must be resolved even if the parties reach
an agreement on the major principles. Second, there
are four critical propositions that have not yet been in-
corporated in five elements and that would be incorporated
explicitly in a final settlement: (1) no court-ordered
mandatory, interdistrict transfers of white or black stu-
dents until after a hearing on liability, (2) the 23 subur-
ban school districts in St. Louis County will continue to
exist, and (3) the cost of the settlement shall be paid by
such combination of State funding and a tax rate increase

A138

in the City of St. Louis as shall be ordered by the Court,

(4) black students in suburban school districts that have

a minority enrollment of 50% or greater would enjoy the

transfer rights.

1. The suburban school districts in St. Louis County would
agree to accept black transfer students up to their Plan
Ratio within 5 years.

Under the Plan Ratio, which is employed in the
12(a) voluntary plan, a suburban school district
would accept up to as many black transfer students
as would constitute 15 percent of the total student
population in that district, but no suburban school
district would be required to accept more black
transfer students than would raise the overall per-
centages of blacks in the total student population
higher than 25 percent. The effect of the Plan Ratio
may be illustrated by considering several hypo-
thetical suburban school districts with different
existing racial ratios. If Suburban School District
X has a student population that is 3% black, it
would accept up to as many black transfer students
as would constitute 15% of the total student pop-
ulation in District X and the percentage of black
students in District X would then be 18%. If
Suburban School District Y has a student population
that is 10% black. it would accept up to as Many
black transfer students as would constitute 15%
of the total student population in District Y, and
the percentage of black students in District Y would
then be 25%. If Suburban School District Z has
a student population that is 15% black, it would
accept up to as many black students as would con-

|

Cc.

A139

stitute 10% of the total student population in Dis-
trict Z and the percentage of black students in Dis-
rict Z would be 25%. Ifa Suburban School District
has a student population that is already 25% or more
black, it would not be required to accept any black
transfer students.

All student transfers under this element shall be
voluntary.

This first element of the settlement would provide
an opportunity for a substantial number of black
students in the city to attend school in the county.
On the basis of Fall 1980 data, application of the
Plan Ratio to all twenty-three suburban school
districts would provide an opportunity for approx-
imately 17,500 black students to transfer to county
schools. This estimate is probably too high because
there has been a decline in total student enroll-
ment and an increase in black enrollment after
1980, and 15,000 is a reasonable working figure.

One significant distinction between this first ele-
ment of the settlement proposal and the 12(a)
plan should be noted. Under the 12(a) plan, a
suburban school district can refuse to accept black
transfer students if it does not have “space avail-
able” even if it has not yet reached the Plan Ratio.
There is no “space available” condition on inter-
district transfer under the proposed settlement.

Each school district will adopt academic and dis-
ciplinary standards to assure equitable treatment
of all students.

A140

Establishment of Magnet Schools.

a. New magnet schools in addition to the magnet

schools established under the intradistrict order
and under the 12(a) plan would be created.

In addition to providing special education programs
for city students, the purpose of the magnet
schools is to attract white transfer students from
the county. If white students transfer to city mag-
net schools, there will be an opportunity to provide
desegregated education for a larger number of black
children (approximately 15,000 black students would
remain in all one-race schools even if 15,000 black
students transferred to county schools), and there
would be greater equity in the assignment of the
burdens of transportation.

Unduplicated magnet programs to attract white
county students and black students will be estab-
lished at agreed locations in either the city or the
county. No such magnet program would be estab-
lished in a school district over its objection. City
and county school districts would maintain auton-
omy over their other curriculum offerings. The
final settlement agreement will describe with speci-
ficity magnet programs and their locations.

Improvement of the quality of education provided by

the city school system and special provisions to im-

prove the quality of education for students in one-

race schools.

a. The settlement will contain specific provisions for

improving the quality of education provided by

Al4l

the city school system and for restoring its AAA
rating. No exhaustive list of specific provisions
has been drafted yet, but reduction of the pupil
teacher ratio to the state’s standard for an AAA
rating or to county average, whichever is lower
and an early childhood (birth'to age 4) education
program suggested in the past by the State are
examples of the type of provisions under consid-
eration.

Since there are now approximately 30,000 black
children in one-race schools in the city, some of
these students will remain in all one-race schools
on the north side of St. Louis even if 15,000 black
students transfer to county schools and other stu-
dents attend integrated magnet schools. The set-
tlement plan will include special provisions to im-
prove the quality of instruction received by black
students who attend one-race schools.

Several recent reports and documents provide a
basis for assessing the needs of the city school
system. See Desegregation Monitoring and Ad-
visory Committee, The Effects of the City Board’s
Budget and Staff Reductions on the Implementa-
tion of the Desegregation Plan, January 24, 1983
[H(1982}83]; City Board’s Motion to Order Ad-
justments in the State Funding of the Desegre-
gation Plan, [H(1979)83]. The State's report on
the AAA rating of the city school system will
also provice [sic] information about needs. These
reports and documents coupled with the efforts
of the plaintiffs will provide a basis for drafting
specific provisions to improve educational quality.

ee

A142 |

4. Provisions to ensure that the proposed settlement will
be carried out fully and fairly and that it will have
a substantial impact.

a. It will include (1) provisions requiring the sub-
urban school districts to recruit black transfer stu-
dents from the city and to promote voluntary trans-
fers of white county students to city schools and
(2) provisions requiring the plaintiffs to promote
interdistrict transfers and, (3) nonenforceable an-
nual targets by each school district for achieving
the Plan Ratio.

b. It will also include fiscal incentives designed to
encourage interdistrict transfers.

c. All districts will adopt procedures to ensure equi-
table treatment of all students.

d. FACULTY

1. Goal: Each school district shall establish goals
whereby the percentage of blacks employed as
(1) teachers and (2) administrators shall equal
a percentage based on the actual ratio of black
and white personnel in each of such categories
presently employed or on leave of absence in
the city and suburban school districts or the
the ratio of such black and white personnel
as established by a labor market study.

2. The goal would be accomplished through the
development of an enforceable affirmative plan
which shall include provisions for recruitment
of black personnel and yearly hiring ratios. (1:1,
1:2. i:3, ete.). Departures from such ratio may
be justified, among other grounds, if a district
demonstrates that it has hired the best qualified
candidate for any position.

A143
3. Means: (A) Normal hiring—subject to state
law.
(B) Incentives for voluntary teacher
transfers.

(C) If necessary, allocation by the
Court of fiscal incentive funds (that would not
be available to suburban school districts but for
the settlement plan) to the hiring of minority
teachers.

4. Obligations under this provision shall terminate
at such time as either the hiring or pupil goals
have been achieved.

The City Board would be invited to join the Cooper-
ating School Districts for the St. Louis Suburban
Area, Inc.

An annual report will be filed with the Court con-
cerning the steps taken to implement the settlement.

The final settlement plan shall recognize

(i) That the State will, within the limits of its
authority, encourage the construction of
housing which shall advance the integration
of neighborhoods, and

(ii) That the parties with housing responsibilities
shall not take any 2ction to interfere with the
implementation of this settlement plan.

* * * As to the housing issue, there is no agreement
between the State, the County, and the City
Board, the Caldwell and Liddell Plaintiffs.

[Statement made by Special Master in Court]

i

Al44

h. Voluntary transfer students under this settlement
plan shall not be assigned by the receiving district
in a manner that contributes to racial segregation
within the district

i. An agreernent in principle to identify options for
students in majority black schools within school dis
tricts that are not predominately black to enjoy
transfer rights within the district comparable to
those that exist in the predominately black county
districts

5. STAY

1. Litigation will be stayed for five (5) years to per-
mit full implementation of voluntary transfers, magnet
schools, quality education, whatever teacher prov)-
sions—in essence, a stay while implementing elements

1, 2,3 and 4. The stay will not preclude judicial en-
forcement of the terms of the settlement agreement

2. Goal: The goal is a minority enrollment of 25%
for districts that currently have less than a 25% minor-
ity enrollment

3. Ifa district reaches the PR within five years, it gets
a final judgment declaring that it has satisfied its pupil
desegregation obligations. The plaintiffs agree to seek
no further pupil desegregation relief through litigation
The school district’s only continuing obligation is to
comply with the specific obligations stated in elements
1. 2. 3 and 4, and to make continued efforts to reach
the goal stated in paragraph 2. The Court weuld re-
linquish active supervision two years after the five-year

period

A145

4. If a school district does not reach the PR, then

(a) Monitor will begin to prepare reports and
recommendations, based on hearings at which all in-
terested parties shall have the opportunity to be heard,
in September of the fifth year so that the reports, the
recommendations, and the negotiation process can be
completed by the end of the fifth vear

(b) Parties will negotiate;

(c) Only after (a) and (b) can plaintiffs renew
the litigation, in which case

(i) they must prove liability, and

(ii) they agree not to seek school district con-
solidation or reorganization and they agree not to
seek a remedy beyond the 25% goal of paragraph
2, and any remedy would distribute the burdens of
desegregation equitably, between the minority and
the non-minority students in the schoo] districts in-
volved in the litigation under this paragraph.

(iii) In devising any remedy the Court would
consider the monitor’s report and it would be en-
titled to weight.

The Court's approval of any agreement shall determine
that the Liddell, Caldwell, and the City Board Plaintiffs
are entitled to “reasonable” attorney's fees and costs of
litigation to be paid exclusively by the State after full
hearing on attorney’s fees

B. Definitions

For purposes of this settlement agreement, the follow-

ing terms are defined below

A146

“Enrolled” refers to those students that are enrolled in
the participating districts’ public schools.

“Home District” means the participating district which
is the district of residence of the student transferring to
another district pursuant to this plan or the district of em-
ployment of a teacher or administrator who transfers to
another district pursuant to this agreement.

“Host District” is the participating district which re-
ceives a student, teacher or administrator who transfers
from another district pursuant to this agreement.

“Participating District” means those school districts
that are signatories to the agreement.

“Students” means kindergarten, full time elementary
and full time secondary students in public schools in the
City of St. Louis and St. Louis County, unless the term is
specifically designated to refer to non-public school stu-
dents. For the purpose of permitting voluntary interdis-
trict transfers by county pre-school children to the city
and for the purpose of education of city pre-school children
pursuant to Parts III and IV. the term “students” also in-
cludes pre-schoo] students

II. Voluntary Interdistrict Transfers
A. Plan Goal and Plan Ratio

1. Definitions

a. The “Plan Goal” is a racial ratio of 25% black
students and 75°7 white students.

b. The “Plan Ratio” is an increase of black stu-
dent enrollment of fifteen percentage points or
achievement of the Plan Goal. whichever is less

Al47

2. Plan Ratio and Plan Goal for Each Participating
District

a.

The calculation of the plan ratio and the plan
goal for each participating district is based on
total resident enrollment (broken down into
white resident enrollment and black resident
enrollment) as of September 30, 1982 (State
Report Date). Total resident enrollment for
each participating district includes tuition stu-
dents, and white resident enrollment includes
non-black minority students. Transfer stu-
dents under the 12(a) plan are not included
in the resident enrollment data. Transfer stu-
dents under the 12(a) plan are counted sep-
arately as part of a participating district’s efforts
to achieve its plan ratio and plan goal under
this settlement agreement. The plan ratio and
the plan goal of each participating district stated
in subsections b.-c. are based on the percentage
of black resident students enrolled in that par-
ticipating district on September 30, 1982. The
plan ratio will be used to calculate, on the basis
of then current enrollment data and as set forth
in section 4, the number of interdistrict transfer
students that each participating district must
accept.

The plan ratio and the plan goal of each par-
ticipating district in which the black resident
student enrollment was less than twenty-five
percent on September 30, 1982 are:

A148

Participating

District Plan Ratio Plan Goal
Affton 15.15% Black 25.00% Black
Bayless 15.15% 25.00%
Brentwood 25.00% 25.00%
Clayton 16.27% 25.00%
Hancock Place 15.34% 25.00%
Hazelwood 25.00 % 25.00%
Kirkwood 25.00 % 25.00%
Ladue 25.00% 25.00%
Lindbergh 15.79% 25.00%
Mehlville 15.32% 25.00 %
Parkway 16.98% 25.00%
Pattonville 18.72% 25.00%
Ritenour 25.00 % 25.00%
Rockwood 15.95% 25.00%
Valley Park 15.48% 25.00%
Webster Groves 25.00% 25.00%

The plan ratio does not apply to participating
districts in which the black resident student
enrollment exceeded twenty-five percent on
September 30, 1982.

Participating districts (with their percentage
black enrollment as of September 30, 1982)
in which the black resident student enroll-
ment exceeds fifty percent are: Jennings
(55.10% black), Normandy (86.92% black),
St. Louis City (79.47% black), University
City (77.15% black), and Wellston (99.45%
black). At the time this settlement agree-
ment is approved by the Court, these par-
ticipating districts, other than the City of

St. Louis, are entitled to a final judgment

|
|
|
|
|
|
|

Ne ee ee eT ER NT Sire ee

A149

that they have satisfied their pupil desegre-
gation obligations and are not covered by
the affirmative action faculty obligations
under Section VI A-H. The continuing ob-
ligations of these participating districts,
other than the City of St. Louis, shall be lim-
ited to the establishment of such magnet
programs designed to increase white student
enrollment and to cooperation in the re-
cruitment process to facilitate the transfer
of black students enrolled in their district
to participating districts whose enrollment
is less than twenty-five percent black, con-
sistent with the provisions of Parts II and
III.

ii. Participating districts in which the black
resident student enrollment exceeds twenty-
five percent but is less than fifty percent
are: Ferguson-Florissant (40.55% black),
Maplewood-Richmond Heights (28.97%
black) and Riverview Gardens (42.60%
black). At the time this settlement agree-
ment is approved by the Court, these par-
ticipating districts are entitled to a final
judgment that they have satisfied their
pupil desegregation obligations and are not
covered by the affirmative action faculty
obligations under Section VI A-H. The
continuing obligation of these participating
districts shall be limited to cooperation in
the recruitment process, consistent with the
provisions of Part II, to facilitate the transfer
of white students enrolled in their district

_ .

A150

to participating disiricts whose enrollment
is greater than fifty percent black and to
facilitate the transfer of black students in
their district pursuant to Section XIF
hereof. If the black enrollment in any one
of these three districts should exceed fifty
percent, then its black students would enjoy
transfer rights under Section II, and the
participating district would be subject under
subsection c(i) by participating districts in
excess of fifty percent black enrollment as
of September 30, 1982.

3. Implementation of the Plan Ratio and the Plan

Goal by Participating Districts and Determination
of Annual Targets

a.

Unless its plan ratio is achieved earlier, each
participating district identified in section 2b,
at the time it prepares enrollment estimates
for the next school year but not later than a
time to be specified by the Recruitment and
Counseling Center, shall:

i. estimate the total resident enrollment to be
reported on the State Report Date, white
resident enrollment (number and percent-
age), black resident enrollment (number
and percentage) and the number of volun-
tary transfer students who will continue
as students in the participating district.

The total resident enrollment figure shall
include tuition students. The resident white
enrollment figure shall include all non-black
minority students, but it shall not include

}
|
|
|
|
|

A

li.

Al5l

voluntary transfer students. The term “vol-
untary transfer students” includes all stu-
dents who transferred to another district
under the 12(a) plan or who transfer to a
participating district under this settlement
agreement. Such white voluntary transfer
students shall be included in the enrollment
figures of the participating district in which
they actually attend school. The resident
black enroliment figure shall not include
black voluntary transfer students;

estimate the number of black voluntary
transfer students necessary to achieve its
plan ratio established by section 2b. ac-
cording to this formula:

a+ * ™ = Plan Ratio

In this formula, X

[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_IA40385019_1878%3A2. Public record. Not legal advice.