855 F.2d 1295 (8th Cir. 1988), 87-2565, Jenkins by Agyei v. State of Mo.

Docket Nº:87-2565, 87-2589, 87-2659, 88-1073 and 88-1456.
Citation:855 F.2d 1295
Party Name:Kalima JENKINS, by her friend, Kamau AGYEI; Carolyn Dawson, by her next friend, Richard Dawson; Tufanza A. Byrd, by her next friend, Teresa Byrd; Derek A. Dydell, by his next friend, Maurice Dydell; Terrance Cason, by his next friend, Antoria Cason; Jonathan Wiggins, by his next friend, Rosemary Jacobs Love; Kirk Allan Ward, by his next friend, Mar
Case Date:August 19, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1295

855 F.2d 1295 (8th Cir. 1988)

Kalima JENKINS, by her friend, Kamau AGYEI; Carolyn Dawson,

by her next friend, Richard Dawson; Tufanza A. Byrd, by her

next friend, Teresa Byrd; Derek A. Dydell, by his next

friend, Maurice Dydell; Terrance Cason, by his next friend,

Antoria Cason; Jonathan Wiggins, by his next friend,

Rosemary Jacobs Love; Kirk Allan Ward, by his next friend,

Mary Ward; Robert M. Hall, by his next friend, Denise Hall;

Dwayne A. Turrentine, by his next friend, Shelia

Turrentine; Gregory A. Pugh, by his next friend, Barbara

Pugh; Cynthia Winters, by her next friend, David Winters;

on behalf of themselves and all others similarly situated,

and American Federation of Teachers, Local 691, Appellees,

v.

The STATE OF MISSOURI, Honorable John Ashcroft, Governor of

the State of Missouri, Wendell Bailey, Treasurer of the

State of Missouri, Missouri State Board of Education,

Roseann Bentley, Dan Blackwell, Terry A. Bond, President,

Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L.

Welling, Donald E. West, Members of the Missouri State Board

of Education, Arthur L. Mallory, Commissioner of Education

of the State of Missouri, Appellants,

and

School District of Kansas City, Missouri and Claude C.

Perkins, Superintendent thereof, Appellees.

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

American Federation of Teachers, Local 691, Appellees,

v.

The STATE OF MISSOURI, et al., and School District of Kansas

City, Missouri, et al., Appellees,

Icelean Clark; Bobby Anderton; Eleanor Graham; John C.

Howard; Craig Martin; Gay D. Williams; Kansas City Mantel

& Tile Co.; Coulas & Griffin Insurance Agency, Inc.;

Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick

Feierabend; Linda Hollenbeck; James Hollenbeck; Susan

Horseman; and Clifford M. Horseman, Appellants.

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

American Federation of Teachers, Local 691,

v.

The STATE OF MISSOURI, et al., and School District of Kansas

City, Missouri, et al., Appellees,

Icelean Clark; Bobby Anderton; Eleanor Graham; John C.

Howard; Craig Martin; Gay D. Williams; Kansas City Mantel

& Tile Co.; Coulas & Griffin Insurance Agency, Inc.;

Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick

Feierabend; Linda Hollenbeck; James Hollenbeck; Susan

Horseman; and Clifford M. Horseman, Jackson County,

Missouri, Appellants.

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

and

American Federation of Teachers, Local 691,

v.

The STATE OF MISSOURI, et al., and School District of Kansas

City, et al., Appellees.

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

and

American Federal of Teachers, Local 691,

v.

The STATE OF MISSOURI, et al., and School District of Kansas

City, Missouri, et al., Appellees,

Jackson County, Missouri; William Waris; Bernice J.

Conley; Gary Panetheire; Beverly O. Ross;

Michael Bendergast, their officials, Appellants.

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

American Federation of Teachers, Local 691,

v.

The STATE OF MISSOURI, et al., Appellees,

and

School District of Kansas City, et al., Appellants.

Nos. 86-1934, 86-2537, 87-1749, 87-2299, 87-2300, 87-2588,

87-2565, 87-2589, 87-2659, 88-1073 and 88-1456.

United States Court of Appeals, Eighth Circuit

August 19, 1988

Submitted March 21, 1988.

Rehearings En Banc Denied in Nos. 86-1934, 86-2537, 87-1479,

87-2299, 87-2300, 87-2565, 87-2588, 87-2589,

88-1073 Oct. 14, 1988.

Order on Denial of Rehearings En Banc Oct. 14, 1988.

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H. Barow Farr, III, Washington, D.C. for State of Mo.

Roger Clegg, amicus for U.S.

Mark Bredemeier, Kansas City, Mo., amicus for Icelean Clark, et al.

John B. Williams, Kansas City, Mo., for Jackson County.

Robert T. Stephen, Topeka, Kan., amicus for State of Kan.

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

Arthur Benson, Kansas City, Mo. and Russell E. Lovell, II, Des Moines, Ia., for Kalima Jenkins.

Before LAY, Chief Judge, HEANEY and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Kansas City School District desegregation case is before us again and we now must consider the scope of the remedies ordered by the district court, 1 specifically with respect to magnet schools and capital improvements, and the tax increases authorized to generate the Kansas City, Missouri School District's share of the costs of these programs. 2 We affirm the judgment of the district court with respect to scope of the remedy as to magnet schools and capital improvements with some slight modifications. While we approve the order and conclusions of the district court with respect to the property tax, we modify its future operation to more closely comport with limitations upon our judicial authority, and we reverse that part of the district court's order establishing an income tax surcharge.

In this case the district court dealt with undisputed constitutional violations and its series of orders were necessary to remedy the lingering results of these violations, since local and state authorities had defaulted in their duty to correct them. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971); Brown v. Bd. of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ).

The Supreme Court has provided broad guidelines for the district courts in such cases. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), the Court set forth a three part analysis of the district court's remedial power:

In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. The remedy must therefore be related to 'the condition alleged to offend the Constitution....' Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.

433 U.S. at 280-81, 97 S.Ct. at 2757 (citations omitted).

Our standard of review of the district court's actions within these limiting legal principles is restricted: "[T]he choice of remedies to redress racial discrimination is 'a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.' " United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 508, 100 S.Ct. 2758, 2790, 65 L.Ed.2d 902 (1980) (Powell, J., concurring)); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1236 (2d Cir.1987), cert. denied, ---

Page 1300

U.S. ----, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). We have also recognized the importance of the district court's factual findings, which may not be disturbed unless clearly erroneous. Fed.R.Civ.P. 52(a); Jenkins v. Missouri, 807 F.2d 657, 666-67 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, --- U.S. ----, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).

Bearing in mind these limitations on the district court's remedial power and on our scope of review, we turn to the constitutional violations identified by the district court.

The State has admitted and the district court judicially noticed that Missouri mandated segregated schools for black and white children before 1954. Jenkins v. Missouri, 593 F.Supp. 1485, 1490 (W.D.Mo. Sept. 17, 1984). KCMSD established and maintained segregated facilities with segregated staffs. There are still vestiges of the dual school system lingering in KCMSD, and KCMSD and the State have not met their obligations to disestablish that system. 593 F.Supp. at 1504.

The district court further found that "the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District." 593 F.Supp. at 1492. "[W]itnesses confirmed the conclusion reached by the Supreme Court in Brown I [Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ] that forced segregation ruins attitudes and is inherently unequal * * *. The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty." 593 F.Supp. at 1492 (citations to the record omitted). "Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD." Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D.Mo.1985) (citations to record omitted) (emphasis in original).

The district court found that segregation in KCMSD caused the departure of the whites in the system to private schools and to the suburbs. Order of Aug. 25, 1986, slip op. at 1-2. See also Order of November 12, 1986, slip op. at 3. During the years between Brown I and trial, the enrollment of KCMSD shifted from predominantly white to predominantly black. In the 1958-59 school year, blacks constituted 22.5% of KCMSD enrollment, but by 1983-84 enrollment was 67.7% black and white enrollment had dropped 80%. 593 F.Supp. at 1495. "[A]s of 1974, 20 years after Brown I, 39 schools were more than 90%...

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