Jenkins by Agyei v. State of Mo.

Decision Date31 December 1992
Docket NumberNo. 92-1278,92-1278
Citation981 F.2d 1009
Parties79 Ed. Law Rep. 769 Kalima JENKINS, by her next friend, Kamau AGYEI; Carolyn Dawson, by her next friend Richard Dawson; Tufanza A. Byrd, by her next friend Teresa Byrd; Derek A. Dydell, by his next friend Maurice Dydell; Terrance Cason, by his next friend, Antoria Cason; Jonathan Wiggins, by his next friend Rosemary Jacobs Love; Kirk Allan Ward, by his next friend Mary Ward; Robert M. Hall, by his next friend Denise Hall; Dwayne A. Turrentine, by his next friend Shelia Turrentine; Gregory A. Pugh, by his next friend David Winters; on behalf of themselves and all others similarly situated; Plaintiffs-Appellants, American Federation of Teachers, Local 691, Intervenor-Appellee, v. STATE OF MISSOURI; John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education; Roseann Bentley, Member of the Missouri State Board of Education; Raymond McCallister, Jr., Member of the Missouri State Board of Education; Susan D. Finke, Member of the Missouri State Board of Education; Thomas R. Davis, presiding President, Member of the Missouri State Board of Education; Robert E. Bartman, Commissioner of Education of the State of Missouri; Gary D. Cunningham, Member of the Missouri State Board of Education; Rebecca M. Cook, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; School District of Kansas City, Missouri; Walter L. Marks, Superintendent thereof, Defendants-Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Arthur Benson, Kansas City, Mo., argued for plaintiffs-appellants.

John William Borkowski, New Orleans, La., argued, for defendants-appellees; David Tatel, Allen Snyder and Kevin Lanigan appeared on the brief of Kansas City School Dist.; Doyle Pryor, Frederic Wickham, and Donald Aubry, Kansas City, MO appeared on the brief of Local 691; Bart Matanic, Asst. Atty. Gen., appeared on the brief of the State defendants-appellees.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The effort to establish a voluntary interdistrict transfer plan as part of the remedy to desegregate the Kansas City, Missouri School District is before us again. The Jenkins Class filed a motion with the district court for approval of voluntary interdistrict transfer plans for the North Kansas City and Independence School Districts. The State, KCMSD, and the American Federation of Teachers filed their opposition to these plans. The district court recognized that numerous significant issues had been brought to the court's attention regarding possible problems and complications with the proposed plans. The court enumerated a number of such problems and stated that they had raised issues too important to ignore, despite the desirability of implementing transfer plans generally. The court denied approval of the plans, but encouraged the Jenkins Class and the two suburban school districts to submit revised proposed transfer plans addressing the opposing parties' objections. Order of May 24, 1991. The Jenkins Class renewed its motion, again proposing the same plans, and the district court once again denied the motion. Order of January 24, 1992. The Jenkins Class appeals. Because the two orders of the district court do not squarely decide the many objections raised by the State, KCMSD and AFT, we remand for further consideration of these plans, and for renewed exploration of the issue of voluntary interdistrict transfer plans.

The district court held that the State should pay for transportation and tuition costs associated with a voluntary interdistrict transfer plan in its first remedy order. Jenkins v. Missouri, 639 F.Supp. 19, 38-39 (W.D.Mo.1985), and ordered the State to "actively seek the cooperation of each school district in the Kansas City, Missouri metropolitan area" in such a program. Id. at 38. The district court pointed to the success of the voluntary interdistrict transfer plan which was a part of the settlement between the suburban school districts and the State in the St. Louis area. Id. at 38-39. In affirming the desegregation remedies in Jenkins v. Missouri, 807 F.2d 657, 683-84 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987) (Jenkins I ), this court en banc affirmed the district court's provisions for a voluntary interdistrict transfer plan, directing the court to make certain modifications and holding that the finding of intra-district constitutional violation was sufficient grounds under Liddell v. Missouri, 731 F.2d 1294, 1303 (8th Cir.) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), to make the State pay for the interdistrict program. We specifically commented that a voluntary interdistrict program had great potential for improving the racial balance of schools in the Kansas City area. Jenkins I, 807 F.2d at 683 n. 30. Judge Ross concurred specially to underscore the importance of this program. 807 F.2d at 687. Judge Ross said that "failure to organize and implement [such a] program would be a very significant factor in determining discriminatory intent in ... future litigation." Id. All of the judges participating in the en banc consideration concurred in the desirability of a voluntary interdistrict plan. However, actually designing and implementing such a plan has been a long, laborious process.

In 1986 the district court ordered the State to renew contacts with the Boards of Education of the suburban school districts in the metropolitan Kansas City area and to report to it. The district court announced that if the State did not demonstrate its commitment to obtaining the cooperation of the suburban districts, the court would seek other methods of accomplishing the task at the State's expense. 639 F.Supp. at 51.

Meanwhile, the Jenkins Class tried to enroll black KCMSD students as non-resident, tuition paid students in the North Kansas City, Independence, and Lee's Summit school districts. Those districts refused to admit the students, and the students sued them in the Naylor litigation, in which the district court granted summary judgment in favor of all defendants, Naylor v. Lee's Summit Reorganized School District R-VII, 703 F.Supp. 803 (W.D.Mo.1989). We reversed and remanded this case with orders that it be transferred to Judge Clark. Jenkins v. Missouri, 904 F.2d 415 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 346, 112 L.Ed.2d 311 (1990).

Thereafter, the Missouri City School District agreed to accept ten voluntary interdistrict transfer students from KCMSD. The second year funding of this plan was before this court in Jenkins v. Missouri, 965 F.2d 654 (8th Cir.1992).

Our remand in the Naylor case led to negotiations between the Jenkins Class and Independence and North Kansas City School Districts. Eventually, each of the two districts proposed a separate voluntary interdistrict transfer plan and the plaintiffs dismissed the Naylor suit with prejudice. The Independence School District plan would admit 420 KCMSD students, beginning with thirty-five seventh grade students in 1992 and an additional thirty-five seventh graders the next year. After the first two years the program would be centered in a collaborative school that would require construction of a new building at an estimated cost of $4,402,341 to ultimately house 480 students, half of whom would be minority students from KCMSD and the remainder students from the Independence District. The North Kansas City plan would accept sixty kindergartners and sixty first graders in the program's first year, and thereafter sixty kindergarten students a year would be admitted so that a maximum of 780 KCMSD students might ultimately attend school in North Kansas City. The KCMSD transfer students would be dispersed throughout the North Kansas City school system. The North Kansas City plan also envisioned construction of additional facilities at a cost of $4,386,600 plus additional amounts for architect's fees, land acquisition, furniture and equipment, and attorneys' fees. Both plans would admit minority KCMSD students with no history of serious discipline problems. A representative of the Jenkins Class was to select the students to participate in the transfer program. Both plans would require the expenditure of funds for tuition, transportation and incremental costs such as salaries for additional certified classroom teachers, counselors, school nurses, and administrators required by the program, as well as costs of staff development programs to prepare the staff, resident and transfer students and parents for successful operation of the plan. Both districts state that their school system is now operating at or near capacity.

The Jenkins Class moved in the district court for approval of these plans. The other parties to the suit, KCMSD, the State and the American Federation of Teachers, all articulated support for the general concept of voluntary interdistrict transfer plans, but objected to the particular plans before the district court. The State objected to the lack of uniformity in the plans, which would make the plans difficult to administer. Order of May 24, 1991, slip op. at 2. The district court catalogued a number of the State's other objections, including complaints that: the plans are proposed in addition to the existing long range magnet and capital improvements plan which should therefore be cut back as quid pro quo for the new programs; the tuition figures for the state to pay are excessive; the definition of minority students to include students other than blacks is over inclusive; the forty-five minute transportation time limits provided in the plans are unreasonable; and the Independence plan to create a...

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