Jenkins by Agyei v. State of Mo., 93-3975
| Decision Date | 03 May 1994 |
| Docket Number | No. 93-3975,93-3975 |
| Citation | 23 F.3d 1297 |
| Parties | 91 Ed. Law Rep. 489 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; 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, Sheila Turrentine; Gregory A. Pugh, by his next friend, David Winters, on behalf of themselves and all others similarly situated; Appellees, American Federation of Teachers, Local 691, Intervenor, v. STATE OF MISSOURI; Mel Carnahan, Governor of the State of Missouri; Bob Holden, Treasurer of the State of Missouri; Missouri State Board of Education; Peter Herschend, Member of the Missouri State Board of Education; Raymond McCallister, Jr., Reverend, Member of the Missouri State Board of Education; Susan D. Finke, President, Member of the Missouri State Board of Education; Thomas R. Davis, 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; Appellants, School District of Kansas City; Walter L. Marks, Superintendent thereof, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael J. Fields and Bart A. Matanic, Jefferson City, MO, for appellant.
David S. Tatel, Allen R. Snyder and Patricia A. Brannan, Washington, DC; Shirley W. Keller, Arthur A. Benson, III, Scott A. Raisher, Frederic O. Wickham, and Brian P. Wood, Kansas City, MO, for appellee.
Before McMILLIAN, Circuit Judge, HEANEY and JOHN R. GIBSON, Senior Circuit Judges.
The State of Missouri again appeals, the second time in less than a year, an order of the district court 1 approving Milliken II 2 quality education programs. Jenkins v. Missouri, No. 77-0420-CV-W-4, 1993 WL 566488 (W.D.Mo. July 30, 1993). In this appeal of the programs ordered for the school years 1993-94 and 1994-95, the State asserts the same argument that we rejected with respect to the 1992-93 school year in Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1994) (Jenkins IX ) (), rehearing en banc denied, 19 F.3d 393 (8th Cir.1994). The State made only minor additions to the record the district court had already considered in earlier orders relating to the quality education issues and to the argument that these programs should be declared unitary under Freeman v. Pitts, --- U.S. ----, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). The State also argues that one component of the quality education programs, the funding for the full-day kindergarten program, has been rendered redundant by the passage of Missouri Senate Bill 380, affecting the school foundation formula. We affirm the district court's order and its decision on the quality education programs.
When KCMSD moved to continue the Milliken II quality education programs for the school years 1993-94 and 1994-95, the State raised the Freeman v. Pitts argument, as it had with respect to the 1992-93 year. The court held a one-day hearing. KCMSD presented very abbreviated testimony from Dr. Arthur Rainwater that his earlier testimony 3 about the Milliken II quality education programs was unchanged--that there was substantial possibility for further improvement, and that the systems were working well. Cf. Jenkins IX, 11 F.3d at 765 (). The State presented no live witnesses on this issue, but filed a declaration from Dr. Terrance Stewart, essentially reiterating his testimony from the earlier hearing. Cf. Jenkins IX, 11 F.3d at 764-65 ().
The district court in an order entered July 30, 1993 approved continuation of the Milliken II quality education programs for the school years 1993-94 and 1994-95. 4 The district court articulated its reasons for rejecting the Freeman v. Pitts argument in some detail. The district court found the State's arguments that these components were unitary to be unpersuasive. While the quality education components had been partially successful, they had not yet met the goals in their entirety. The State appeals again, relying on the same arguments it advanced in Jenkins IX.
In Jenkins IX, we affirmed the June 17, 1992 order concerning the Milliken II quality education programs for 1992-93. We stated:
The only evidence before the district court with respect to the degree of progress on elimination of vestiges of past discrimination was at best that a start had been made. The evidence on the record fell far short of establishing that such vestiges had been eliminated to the extent practicable. These tests, articulated in Dowell and Freeman, answer the State's argument that establishment of the programs by compliance with the court order is all that is required.
. . . . .
The State did not try to prove that it has demonstrated a good faith commitment to the whole of the court's decree.
11 F.3d at 765 (citations omitted).
The record now before us relevant to the Freeman issue has been supplemented to only a minor degree since the Jenkins IX appeal. Examination of the record before the district court when it made its order of July 30, 1993, as well as a review of the record made before its June 17, 1992 order, demonstrate the validity of our conclusions in Jenkins IX: that the State did not try to prove a history of good faith commitment to the whole of the court's decree; that the only evidence before the district court was that at best a start had been made; and that the evidence fell short of establishing that the vestiges of past discrimination had been eliminated to the extent practicable. 11 F.3d at 765. The State essentially repeats its arguments in Jenkins IX and argues that Jenkins IX was wrongly decided. We reject the State's argument on the merits. The court en banc has denied rehearing in Jenkins IX, see Jenkins v. Missouri, 19 F.3d 393 (8th Cir.1994) (denying rehearing en banc). Jenkins IX governs our decision in this case on a record that is essentially identical on the Freeman issues.
There is still further reason why we must affirm. As our earlier opinion reflected, and as the record before us in this appeal demonstrates, the position of the State is that having implemented and funded these Milliken II programs for a seven year period, its obligation should end. 5 There can be no doubt that this was its position in Jenkins IX, 6 and it maintains the same position today. The implications of the State's position were addressed head-on by the dissent from the denial of rehearing en banc in Jenkins IX:
If the State's claim carries with it the unstated idea that having put the elements of a quality educational program in place it may now take its money and exit, stage left, leaving the KCMSD to finish the scene alone, I believe that partial unitary status is not at hand. But, if an equal opportunity to receive a quality education is now permanently available to each student in the KCMSD, and is thus available to erase, if the opportunity is reasonably pursued, the vestiges of past discrimination, then unitary status has been reached and control should be relinquished by the federal courts to the state and local governments.
19 F.3d at 404 (8th Cir.1994) ().
The State's position has simply been that its obligation for these programs is concluded and, in the colorful wording of the dissent, that it should "now take its money and exit, stage left." Id. This is precisely the meaning of the State's argument that its responsibility and obligation should be terminated. This has been rejected by the judges voting to deny rehearing en banc, and most tellingly by the five judges joining in the dissent to denial of rehearing.
Even when the State makes its alternative argument that if the programs are not terminated, they should be phased out gradually, the result would be increased financial burden on KCMSD. This would raise a serious possibility of substantial elimination or disruption of the quality education programs. Again, the dissent from the denial of rehearing explicitly stated in Jenkins IX that "equal opportunity to receive a quality education" should be "permanently available to each student in the KCMSD." 19 F.3d at 404 (emphasis added).
So far as the State is concerned, the crux of its responsibility for the Milliken II programs is funding. KCMSD must administer and operate these programs. The State seeks termination of the obligation to fund its share of the cost of these programs. The problem that remains, as the district court has been so mindful during the course of this litigation, is the KCMSD's ability to fund these programs.
As we mentioned in Jenkins IX, the district court has called for the parties to submit plans for financing "the magnet schools and the entire school district at a level commensurate with the current funding or at least at a level where the same quality of both facilities and instruction may be maintained," assuming withdrawal of court-ordered fundings within three, five, seven and ten years, alternatively. Order of April 16, 1993, slip op. at 21. The court's order has thus focused sharply on the Freeman-Dowell issues. The language of the district court's order in calling for such proposals is sufficiently broad to cover both the phase-out of the magnet school program funding and the Milliken II funding.
We are aware that the parties...
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