Jenkins by Agyei v. State of Mo., s. 94-1405
| Decision Date | 13 October 1994 |
| Docket Number | 94-1408,94-1496 and 94-1681,94-1414,Nos. 94-1405,s. 94-1405 |
| Citation | 38 F.3d 960 |
| Parties | 95 Ed. Law Rep. 94 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, Plaintiffs-Appellants, Robert M. Hall, by his next friend, Denise Hall, Plaintiff, 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, Plaintiffs-Appellants, American Federation of Teachers, Local 691, Intervenor-Appellee, 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, Defendants-Appellees, School District of Kansas City; Walter L. Marks, Superintendent thereof, Defendants-Appellees. 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, Plaintiffs, Robert M. Hall, by his next friend, Denise Hall, Plaintiff, Dwayne A. Tu |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arthur Benson and Diane Moritz, Kansas City, MO, for appellant.
Michael Fields, Jefferson City, MO, for appellee.
Before McMILLIAN, Circuit Judge, and HEANEY and JOHN R. GIBSON, Senior Circuit Judges.
The efforts to establish a voluntary interdistrict transfer plan as a part of the remedy in the Kansas City school desegregation case are before us again. The district court disapproved a plan negotiated between the Jenkins Class and the North Kansas City School District. It also found the State's plan reasonable and a basic starting point for negotiation on a voluntary interdistrict transfer plan, and ordered the parties to attempt to negotiate. The Jenkins Class has appealed this order. In addition, pursuant to a suggestion made by the Desegregation Monitoring Committee, the district court approved a SHARE NET plan in which students in various suburban districts would communicate by electronic mail or fax through the use of computers with students in the Kansas City Missouri School District. The Jenkins Class, Kansas City Missouri School District and the State of Missouri all appeal from entry of this order. We affirm the district court order refusing to approve the North Kansas City School District transfer plan, reverse the order approving the SHARE NET plan, and remand to the district court for further proceedings for the purpose of putting a voluntary interdistrict transfer plan in place.
The voluntary interdistrict plan negotiated between counsel for the Jenkins Class and NKCSD was before us in Jenkins v. Missouri, 981 F.2d 1009 (8th Cir.1992) (Jenkins VIII ), and we remanded for further consideration of, and for renewed efforts to effectuate, such a plan. Id. at 1016. The district court, in the order now before us (Appeal No. 94-1405), referred to its earlier order which suggested that consideration be given to withdrawal of court ordered funding with alternatives of three, five, seven and ten year intervals to be considered. Slip op. at 2 (Dec. 22, 1993) (). 1 The court stated that before it could consider the eventual declaration of unitary status in the case, it is essential that the desegregation goals once met have a significant chance of being maintained. Slip op. at 2 (Dec. 22, 1993) (citing Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1993) (Jenkins IX )). "To that end, it is the court's opinion that a viable VIT plan is absolutely essential." Id.
The court then stated that it had determined that "the State's plan is wholly reasonable, and the changes it has made to the Liddell formula for implementation allows the receiving district to be able to receive compensation for all its expenditures" associated with such a plan. Id. at 3. The court further stated: "However, there is one glaring problem with the State's plan: Not one suburban district has agreed to participate under such an agreement." It then stated that it believed the potential rewards of the North Kansas City plan was the reason. The court then commented that it believed that while the State's plan was reasonable, "there may well be sufficient negotiating room above the terms outlined by the State for several viable alternatives to be created." Id.
The court then analyzed the North Kansas City plan and found it to be inequitable in a number of respects. Id. at 3-7. The court's main concern was that the plan resulted in an open ended amount of funding for the receiving district. Id. at 4.
The district court pointed to a number of specific deficiencies in the NKC plan. Id. at 3-7. The provision for an initial five to fifteen teachers in year one of the plan was found to be wholly unreasonable, and the result of another fundamental flaw in the plan, namely that NKCSD would make the decision as to the schools the transfer students would attend without any clear standard for such assignments. Id. at 4. The requirement of a school nurse for any site that houses transfer students was also an open ended provision and was unreasonable. Id. at 5. The end result was that the State would be responsible for funding the entire health services of the North Kansas City School District. Id. This it found was inherently unreasonable and in direct conflict with the basic principles of Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ). Slip op. at 5 (Dec. 22, 1993).
With respect to construction of additional classroom facilities in NKCSD at a cost of in excess of $4 million, the district court found the Jenkins Class had failed to present sufficient evidence to prove that NKCSD is currently at capacity. Id. at 5-6. It was important to the court as well as to NKCSD that there be no adverse impact on the quality of education in the receiving district as a result of the VIT plan, and the adverse effect on class size is a relevant measurement. Id. at 5. Where some capacity existed within the desirable ranges, the court stated it was not at liberty to fund construction. Id. While the State's plan contains provision for reimbursement for capital costs incurred by the receiving district, its evidence was not adequate on the issue of capacity. Id. at 6. The testimony of the State's witness, Dr. Black, was found to be not wholly credible as he had provided an analysis indicating that NKCSD was at capacity when he was evaluating the district before the VIT submission, but after the proposal his calculation showed NKCSD to have excess capacity. Id. The court expressly found that "the expenditure of capital funds in the receiving district as a result of the VIT program should be compensated." The NKC plan however requested funding when there was "neither a showing of actual transfer numbers, nor an adequate showing of capacity requirements." Id. These two issues should be addressed, the court stated, before it could guarantee funding for transfer students at a certain level when there is no guarantee that such numbers will actually participate. Id.
The court further expressed concern with the recruitment process in the NKC plan which called for the "plaintiff's representatives to be the ultimate arbiter in the process." Id....
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