981 F.2d 1009 (8th Cir. 1992), 92-1278, Jenkins by Agyei v. State of Mo.

Docket Nº:92-1278.
Citation:981 F.2d 1009
Party Name: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 Mar
Case Date:December 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1009

981 F.2d 1009 (8th Cir. 1992)

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.

No. 92-1278.

United States Court of Appeals, Eighth Circuit

December 31, 1992

Submitted July 15, 1992.

Page 1010

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.

Page 1011

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...

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