807 F.2d 657 (8th Cir. 1986), 85-1765, Jenkins by Agyei v. State of Mo.

Docket Nº:85-1765, 85-1949, 85-1974 and 85-2077.
Citation:807 F.2d 657
Party Name:Kalima JENKINS, by her next friend, Kamau AGYEI, et al., Appellants/Appellees, and American Federation of Teachers, Local 691, Appellant/Appellee, v. The STATE OF MISSOURI, et al., Appellants/Appellees, Park Hill School District R-5 and Dr. Merlin A. Ludwig, Superintendent thereof, et al., Appellees.
Case Date:December 05, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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807 F.2d 657 (8th Cir. 1986)

Kalima JENKINS, by her next friend, Kamau AGYEI, et al.,

Appellants/Appellees,

and

American Federation of Teachers, Local 691, Appellant/Appellee,

v.

The STATE OF MISSOURI, et al., Appellants/Appellees,

Park Hill School District R-5 and Dr. Merlin A. Ludwig,

Superintendent thereof, et al., Appellees.

Nos. 85-1765, 85-1949, 85-1974 and 85-2077.

United States Court of Appeals, Eighth Circuit

December 5, 1986

Submitted Nov. 13, 1985.

Rehearing Denied Feb. 5, 1987.

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James Liebman, New York City, and Arthur Benson, Kansas City, Mo. (on rebuttal), for Kalima Jenkins.

Allen Snyder, Washington, D.C., for Kansas City, Missouri School Dist.

Counsel who presented argument on behalf of appellees were H. Bartow Farr III, Washington, D.C., for State of Mo.

George Feldmiller, Kansas City, Mo., for Consol. Suburban School Districts.

Robert McDonald, Blue Springs, Mo., for Individual Suburban Schools.

John Hoyle, Washington, D.C., for H.U.D.

Michael Gordon, Kansas City, Mo., for intervenor, American Federation of Teachers.

Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges, En Banc. [*]

JOHN R. GIBSON, Circuit Judge.

This case arises from claims of unconstitutional racial segregation of school children in the Kansas City metropolitan area. After trial, the district court 1 imposed an intradistrict remedy against the Kansas City, Missouri School District (KCMSD) and the State of Missouri with the State bearing approximately three-fourths of the cost. The district court found that the KCMSD and the State had not eradicated vestiges of the racially segregated dual school system once required under state law in violation of the Constitution. The claim for interdistrict relief in the form of consolidation or realignment of the suburban school districts (SSDs) was rejected as the SSDs were found to have eliminated all vestiges of their segregated school systems and there was no finding of interdistrict violation or interdistrict effect. The SSDs were dismissed from the action. The United States Department of Housing and Urban Development (HUD) also was held not liable. In this appeal, both the KCMSD and Kalima Jenkins, the named plaintiff in a certified class of present and future KCMSD students (Jenkins class), 2 challenge the denial of interdistrict relief. The

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Jenkins class also appeals the judgment in favor of HUD. In addition, both the KCMSD and the State challenge the scope and the allocation of costs of the intradistrict remedy ordered against each.

The district court's findings and conclusion that the suburban school districts are not liable for interdistrict violation and may not be ordered to participate in interdistrict relief, on those issues not related to housing, are affirmed by the vote of five judges (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

The interdistrict findings and conclusion on the housing issues are affirmed by an equally divided court (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold files a concurring and dissenting opinion in which he concludes that the case should be remanded to the district court to consider whether there are interdistrict housing violations which would require relief; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

The dismissal of the SSDs and HUD at the close of the plaintiff's evidence is therefore affirmed.

The intradistrict remedy ordered against the State of Missouri and KCMSD is modified in some respects with five judges concurring (Judges Ross, Fagg and Wollman join in the opinion and Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

This suit was filed in 1977 by the KCMSD, the School Board, and four children of two School Board members. The complaint alleged that the State, surrounding school districts in Missouri and Kansas, and several federal agencies including HUD 3 had helped cause or had been part of a system of racial segregation among Kansas City metropolitan area school districts. In October 1978, the district court dismissed the Kansas defendants for want of jurisdiction. It also concluded that the KCMSD lacked standing to bring an action against the State as party plaintiff and realigned the KCMSD as a defendant. School District of Kansas City, Missouri v. Missouri, 460 F.Supp. 421 (W.D.Mo.1978). 4

In May 1979, an amended complaint was filed against KCMSD, and the federal and Missouri defendants named in the original complaint. The amended complaint made two distinct allegations: first, of an interdistrict violation, committed by the SSDs, and the State and federal defendants; and second, of an intradistrict violation within the KCMSD, committed by the KCMSD and the State defendants. KCMSD pursued its claim by filing, in July 1979, a cross-claim against the State, reiterating the allegation of interdistrict violation made by the Jenkins class, and seeking indemnification against any intradistrict liability.

Trial to the court commenced October 31, 1983. 5 Over the course of 64 trial days, plaintiff called over 140 witnesses, offered 2,100 exhibits, and designated approximately 10,000 pages of depositions. Before hearing evidence in response, the district court, based on standards set out by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), dismissed the eleven SSDs from the

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case under Fed.R.Civ.P. 41(b). 6 The court found that school districts in Missouri are autonomous and that none of the districts had committed any acts with intent to discriminate on the basis of race, to contain blacks in the KCMSD, or bar blacks from the SSDs. The court further found that within four years after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), and in most cases within a shorter time, all the SSDs had eradicated the vestiges of their dual school systems and were operating unitary systems. The court further found that none of the alleged discriminatory actions committed by the State or the federal defendants had caused any significant current interdistrict segregation. The district court therefore denied interdistrict relief. See generally Order of June 5, 1984.

The district court then heard additional evidence and, on September 17, 1984, issued its order holding the State and the KCMSD liable for racial segregation of students within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo.1984). The court observed that before 1954, the State and the KCMSD had maintained a racially segregated dual school system. The court found, in the existence of twenty-four KCMSD schools with a black enrollment in excess of 90%, and in other areas, vestiges of the now unlawful dual school system. It therefore held that the State and the KCMSD, under principles announced by the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756-57, 99 L.Ed. 1083 (1955) (Brown II ), had failed in their affirmative duty to dismantle the unconstitutional pre-1954 system. The court also held that HUD was not liable, finding that HUD had followed a balanced approach to sponsoring subsidized housing projects in both innercity and suburban areas.

On June 14, 1985, after a two-week hearing on the scope of appropriate relief, the court, 639 F.Supp. 19 (1985), issued a remedial order requiring the State and the KCMSD to fund compensatory and remedial educational programs and necessary capital improvements in KCMSD schools. The plan is projected to cost $87,000,000 over the next three years, with the State bearing approximately $67,000,000 and the KCMSD approximately $20,000,000. See Memorandum Opinion of June 14, 1985 at 41-42.

In this appeal the Jenkins class challenges the district court's dismissal of HUD, and joined by KCMSD, its dismissal of the SSDs, and its denial of interdistrict relief. The KCMSD also challenges the district court's realignment of the KCMSD as a party defendant. The State challenges the scope of the district court's remedy and the allocation of costs.

INTERDISTRICT LIABILITY FINDINGS

In Milliken, 418 U.S. 717, 94 S.Ct. 3112, the Supreme Court held that an interdistrict remedy may not be imposed absent a finding of a constitutional violation within one district producing a significant segregative effect in another school district. Id. at 744-75, 94 S.Ct. at 3127. Without an interdistrict violation and interdistrict effect, there is no constitutional wrong requiring an interdistrict remedy. Id. Plaintiffs advanced to the district court three theories to support their claim of interdistrict violation and effect, requiring the imposition of an interdistrict remedy in the form of consolidation of the KCMSD and SSDs:

[F]irst, that the SSDs, as agents of the state, were guilty of operating a regional system of segregated schools that centered on and impacted Kansas City with blacks and made the suburbs whiter before 1954; second, that the SSDs failed in their affirmative duty to eliminate the

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vestiges of the dual school system; and third, that the SSDs are liable for the effects of actions by the KCMSD and other defendants and can therefore be included in an interdistrict remedy.

Order of June 5, 1984 at 5. The district court found, based on the Milliken holding, that there was lack of proof of discriminatory intent in the establishment or change of any school district boundary and thus distinguished the...

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