Jenkins v. State of Mo., 77-0420-CV-W-4.

• Decision Date: 16 June 1986
• Docket Number: No. 77-0420-CV-W-4.,77-0420-CV-W-4.
• Citation: 639 F. Supp. 19
• Parties: Kalima JENKINS, et al., Plaintiffs, v. STATE OF MISSOURI, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

639 F. Supp. 19

Kalima JENKINS, et al., Plaintiffs, v. STATE OF MISSOURI, et al., Defendants.

No. 77-0420-CV-W-4.

United States District Court, W.D. Missouri, W.D.

June 14, 1985.

On Pending Motions June 16, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., and James S. Liebman, and Theodore M. Shaw, NAACP Legal Defense & Education Fund, New York City, for plaintiffs.

James Borthwick, Shirley Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Allen R. Snyder, Hogan & Hartson, Washington, D.C., for defendant KCMSD.

Bartow Farr, III, Onek, Klein & Farr, Washington, D.C. and Ann Wheeler, Asst. Atty. Gen., Jefferson City, Mo., for defendant State of Mo.

Michael Gordon, Kansas City, Mo., for intervenor Amer. Fed. of Teachers.

MEMORANDUM OPINION

RUSSELL G. CLARK, Chief Judge.

INTRODUCTION

The function of a remedial plan in a school desegregation setting is to make the constitutional ideal of equal justice under the law a "living truth." Cooper v. Aaron, 358 U.S. 1, 20, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958). The basic remedial principle, repeatedly articulated by the courts in school desegregation cases, is that "the scope of the remedy is determined by the nature and extent of the constitutional violation." Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) (Milliken I); Columbus Board of Education v. Penick, 443 U.S. 449, 465, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979); Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1976); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971). Further, the goal of the remedy is to prohibit new violations and eliminate the continuing effects of prior violations. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965); Keys v. School District No. 1, 413 U.S. 189, 200, 93 S.Ct. 2686, 2693, 37 L.Ed.2d 548 (1973); Green v. County School Board, 391 U.S. 430, 437-38 and n. 4, 88 S.Ct. 1689, 1693-94 and n. 4, 20 L.Ed.2d 716 (1968).

The principles that have guided this Court in implementing a desegregation plan for the KCMSD are clear. "In fashioning, and effectuating (desegregation) ... decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II). However, a consideration of those practicalities does not mean that the vindication of constitutional rights can be denied on "any theory that it is less expensive to deny than afford them." Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963).

Further, the goal of a desegregation decree is clear. The goal is the elimination of all vestiges of state imposed segregation. In achieving this goal, the district court may use its broad equitable powers, recognizing that these powers do have limits. Those limits include the nature and scope of the constitutional violation, the interests of state and local authorities in managing their own affairs consistent with the constitution, and insuring that the remedy is designed to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Morrilton School District No. 32 v. U.S., 606 F.2d 222, 229 (8th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980).

In reviewing the plans presented by the parties, the evidence presented during the hearing, and this Court's findings of constitutional violations, it is clear that "the remedial portion of a school desegregation case is unlike that of any other variety of litigation and conceivably can surpass the liability portion in terms of complexity and duration." Armstrong v. Board of School Directors of City of Milwaukee, 616 F.2d 305, 324 (7th Cir.1980). Therefore, the establishment of liability is only the beginning. "The precise remedy does not follow logically from the determination of liability, but rather reflects a careful reconciliation of the interests of many affected members of the community and a choice among a wide range of possibilities. The nature of the litigation does not lend itself to complete success by one side or the other." United States and South End Education Committee v. Board of Education of Waterbury, 605 F.2d 573, 576-77 (2d Cir.1979).

This Court recognizes that implementation of this plan will be difficult. "The pain of transition is an unfortunate, but inevitable result of deliberate policies which have isolated black Americans from the schools ... of white Americans." United States v. School District of Omaha, 521 F.2d 530, 546 (8th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975).

Since the minority students in the KCMSD are the victims of racial discrimination which was mandated by the Constitution and statutes of the State of Missouri, it is only equitable to place the greatest burden of removing the vestiges of such discrimination and the continuing effects of same on the State rather than on those who are the victims.

"All, regardless of race or class or economic status, are entitled to a fair chance and to the tools for developing their individual powers of mind and spirit to the utmost. This promise means that all children by virtue of their own efforts, competently guided, can hope to attain the mature and informed judgment needed to secure gainful employment, and to manage their own lives, thereby serving not only their own interests but also the progress of society itself." A Nation At Risk: The Imperative for Educational Reform at p. 1 (1983) (hereinafter cited as A Nation at Risk). Segregation in the KCMSD has resulted in this promise going unkept.

Measures requiring educational improvements have been incorporated into many desegregation remedies. Milliken v. Bradley, 433 U.S. 267, 279-88, 97 S.Ct. 2749, 2756—61, 53 L.Ed.2d 745 (1977) (Milliken II); Morgan v. Kerrigan, 530 F.2d 401, 427-30 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); Tasby v. Wright, 520 F.Supp. 683, 741-43 (N.D.Tex. 1981); Oliver v. Kalamazoo Board of Education, 640 F.2d 782, 787 (6th Cir.1980); United States v. Board of School Commissioners, 506 F.Supp. 657, 671-72 (S.D.Ind. 1979), aff'd in part, reversed in part, 637 F.2d 1101 (7th Cir.), cert. denied, 449 U.S. 838, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980); Liddell v. Board of Education, 491 F.Supp. 351, 357 (E.D.Mo.1980), aff'd, 677 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 629 (1981) (Liddell III). The use of ancillary programs to improve the educational quality of a school district in a desegregation remedy is based upon the federal district's "duty to render a decree which will so far as possible eliminate the discriminatory effects of the past...." Haney v. County Board of Education, 429 F.2d 364 (8th Cir.1970), quoting, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). No party to this case has suggested that this plan should not contain components designed to improve educational achievement. In fact, it is "appropriate to include a number of properly targeted educational programs in a desegregation plan" (State Plan at 5). This is true because "individuals in our society who do not possess the levels of skill, literacy, and training essential to this new era will be effectively disenfranchised, not simply from the material rewards that accompany competent performance, but also from the chance to participate fully in our national life." A National at Risk at p. 7. The difficult question which remains is, which programs are appropriate to remedy the ill effects of the unconstitutional segregation and to attract and maintain non-minority enrollment.

Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD (testimony of Dr. Daniel Levine, testimony of Dr. Eugene Eubanks at pp. 22,376-79). Test results from the Iowa Test of Basic Skills in grades 1 through 6 show that there are only a few elementary schools of the 50 in the KCMSD which are presently performing at or above the national norm in reading and mathematics. This is especially true in regard to the basic skill of reading (P.Ex.3781). (The Court is aware that there may be substantial improvement on the tests for the current year.) The testimony of all the educational experts including Dr. Daniel Levine, Dr. Eugene Eubanks, Dr. Herb Walberg, Dr. Joan Abrams, Carla Santorno, Dr. Joseph Barderick, and Dr. Willis D. Hawley, confirm that this situation is correctable and that the schools in KCMSD, when provided with adequate resources, sufficient staff development, and proper teaching methods, can attain educational achievement results more in keeping with the national norms (see specifically the rebuttal testimony of Dr. Daniel Levine stating that the goal of the KCMSD Plan was to raise the average achievement level for elementary students in the area of reading to the national norms within 4 to 5 years and to bring the passing rate at the secondary level for the BEST test from 51% to a 90 to 95% pass rate).

Both the State of Missouri and the KCMSD have proposed program components designed to increase student achievement at the elementary and secondary levels (KCMSD Plan at pp. 19-33; State Plan at pp. 16-43, and 108-09). The approach taken by KCMSD on the elementary level includes the implementation of an early language development program (KCMSD Plan p. 22, 23), 24 transition rooms in elementary schools for students who would normally be retained in kindergarten or third grade (KCMSD Plan p. 23, 24), the hiring of additional elementary...