Liddell v. Board of Ed. of City of St. Louis, s. 81-1828

• Decision Date: 25 February 1982
• Docket Number: 81-2086,81-2003,81-2127 and 81-2134,Nos. 81-1828,81-1940,81-2043,81-2042,s. 81-1828
• Citation: 677 F.2d 626
• Parties: 4 Ed. Law Rep. 415 Craton LIDDELL, et al., and Earline Caldwell, et al., City of St. Louis, Janice Adams, et al., and Mary Puleo, et al., United States of America, Appellees, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS, et al., and State of Missouri, et al., Special School District of St. Louis County, St. Louis County, et al., and Affton School District, et al., Appellants. to 81-2140.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 626

677 F.2d 626

4 Ed. Law Rep. 415

Craton LIDDELL, et al., and Earline Caldwell, et al., City of St. Louis, Janice Adams, et al., and Mary Puleo, et al., United States of America, Appellees, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS, et al., and State of Missouri, et al., Special School District of St Louis County, St. Louis County, et al., and Affton School District, et al., Appellants.

Nos. 81-1828, 81-1940, 81-2003, 81-2042, 81-2043, 81-2086,

81-2127 and 81-2134 to 81-2140.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 11, 1982.

Decided Feb. 25, 1982.

Joseph R. Niemann, City Counselor, Robert H. Dierker, Jr., Francis M. Oates, Asst. City Counselors, St. Louis, Mo., for City of St. Louis.

John Ashcroft, Atty. Gen., Larry R. Marshall, Daniel R. Schramm, Steven W. Garrett, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for State appellees.

George J. Bude, Clayton, Mo., for appellees Bayless, Brentwood, Hancock Place and Jennings School Districts.

Anthony J. Sestric, St. Louis, Mo., for Janice Adams, et al.

Burton M. Greenberg, David C. Welsch, London, Greenberg & Fleming, St. Louis, Mo., for Craton Liddell, et al.

Thomas E. Dittmeier, U. S. Atty., St. Louis, Mo., Wm. Bradford Reynolds, Asst. Atty. Gen., Walter W. Barnett, James W. Clute, Attys., Dept. of Justice, Washington, D. C., for the United States.

Edward E. Murphy, Jr., Clayton, Mo., for School Dist. of Riverview Gardens.

Thompson & Mitchell, Donald J. Stohr, James W. Erwin, R. J. Robertson, Jr., St. Louis, Mo., for Parkway School Dist.

Robert G. McClintock, St. Louis, Mo., for Ladue School Dist.

Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, Susan Pippa, Asst. County Counselors, Clayton, Mo., for St. Louis County Government defendants.

William E. Caldwell, Richard B. Fields, Ratner & Sugarmon, Memphis, Tenn., Thomas I. Atkins, Teresa Demchak, New York City, William Taylor, Washington, D. C., for appellants Earline Caldwell, et al.

John H. Lashly, Paul B. Rava, Kenneth C. Brostrom, Stephen A. Cooper, Lashly, Caruthers, Thies, Rava & Hamel, A Professional

Corp., St. Louis, Mo., David S. Tatel, George W. Miller, Allen R. Snyder, Hogan & Hartson, Washington, D. C., for Bd. of Ed. of City of St. Louis, et al.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Questions concerning the integration of the public schools of the City of St. Louis have been before this Court on numerous occasions and before the United States Supreme Court three times. ¹ Pursuant to our opinions and those of the United States District Court for the Eastern District of Missouri, some steps toward the goal of an integrated school system have been taken. The previously all-white schools in South St. Louis have been integrated. Some integrated educational programs and opportunities have been provided to the 30,000 black students who still attend all-black schools, and efforts are being made to improve the quality of education in those schools. A number of integrated magnet schools have been opened. A start has been made toward integrating the vocational education programs of the city and county schools. In addition, a modest beginning toward voluntary interdistrict desegregation has been undertaken. As in many school districts with a long history of racial segregation, progress has been slow. Firm direction, however, has been provided by former Chief Judge James Meredith and Judge William Hungate.

The major questions presented in these appeals may be grouped into four categories:

(1) Desegregation Costs. Did the district court err in determining the share of the 1980-1981 costs for desegregating St. Louis schools that the State of Missouri was obligated to pay; in determining that the state would be required to pay one-half of the actual desegregation expenses in the 1981-1982 budget; and in determining that the state was required to pay certain costs relating to the implementation of the voluntary interdistrict plan.

We hold that it did not err in any of these rulings. We urge the State of Missouri to participate in the budget-making process so that the annual budget can be determined on a cooperative rather than an adversary basis.

(2) Vocational Education. Did the district court err in adopting a plan for the merger of vocational educational programs of the city and county schools and in requiring the state to pay certain costs relating to the merger.

We hold that it did not and emphasize the necessity of closely monitoring the plan to ensure that the integration goals set forth therein are promptly and fully met.

(3)(a) Joinder of Suburban Districts and County Units of Government. Did the district court err in joining St. Louis County, certain county officials and seventeen suburban schools in St. Louis County as parties-defendant in the pending case and in postponing a decision as to whether other suburban school districts and governmental units should be joined.

We hold that we are without jurisdiction to consider these questions.

(b) The 12(c) proceedings and interdistrict relief. Did the district court err in severing the issue of mandatory interdistrict relief from the pending paragraph 12(c) ² proceedings and in requiring that the latter proceedings go forward immediately even though questions relating to the liability of suburban school districts and county defendants have not been adjudicated and even though no suburban school districts are parties to the 12(c) proceedings.

We hold that the severance order is not presently appealable, but suggest that the interdistrict liability proceedings be temporarily postponed until after the district court has entered its order in the pending 12(c) proceeding and that they go forward promptly thereafter. In so holding, we note that relief granted in present 12(c) proceeding must be based on the established liability of the state defendants and the Board of Education of the City of St. Louis. We emphasize that suburban school districts that voluntarily participate in efforts to integrate city schools will not, by such participation, admit liability or waive any right that they may presently have to be excluded from a plan of mandatory interdistrict desegregation.

(4) Recusal. Did Judge Hungate err in failing to recuse himself from conducting further proceedings in the intradistrict aspects of this case, including the paragraph 12(a)-12(d) proceedings, or in recusing himself from its interdistrict component.

We hold that we are without jurisdiction to entertain an appeal on these recusal issues and we deny mandamus relief. We observe, however, that no legal basis appears to support Judge Hungate's recusal from either phase of the case. This case was originally assigned to Judge Hungate by Chief Judge H. Kenneth Wangelin. On remand, the Chief Judge may, if he deems it in the interests of judicial administration, reassign Judge Hungate to the interdistrict phase of the case or assign that phase to another judge.

(1) Desegregation Costs.

Two appeals have been filed with respect to payment of the costs of integrating the city schools. In No. 81-1940, the state renews its contention that it cannot be required to pay the costs of implementing a 12(a) plan for voluntary pupil transfers between the city schools and those of St. Louis County. It also asserts that the district court erred in approving the city school budget for Year Two of the desegregation plan and in requiring it to pay one-half of the desegregation costs for that year. In No. 81-2003, the Board of Education of the city schools challenges the district court's determination with respect to the costs of desegregation that are to be borne by the state for the 1980-1981 school year.

(a) The State's Liability Under 12(a).

We held in Adams that the state had substantially contributed to the segregation of the public schools of the City of St. Louis. ³ No appeal was taken from that decision by the state. That decision has been settled and will not be reopened. See generally United States v. United States Smelting, Refining and Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); 1 B. Moore's Federal Practice P 0.404, p. 401-405 (1980). In addition, we specifically sustained the validity of paragraph 12(a) of the district court's order of May 21, 1980, in our February 13, 1981, ⁴ decision. The Supreme Court denied certiorari review of that decision on November 30, 1981. ⁵

Paragraph 12(a) is entirely enforceable against the state defendants; they are primary constitutional wrongdoers and, therefore, can be required to take those actions which will further the desegregation of the city schools even if the actions required will occur outside the boundaries of the city school district. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976).

(b) The Desegregation Budgets (1980-1981 and 1981-1982).

In our February 13, 1981, decision, we affirmed the district court's plan for integrating city schools. Liddell II, at 647, 648-653. We also affirmed the district court's order which required the state to pay one-half of the actual costs of implementing that desegregation plan in four equal installments. Id. at 654-55. These determinations are the law of the case.

The desegregation plan was implemented by the city board at the beginning of the 1980-1981 school year. The estimated cost of implementing the plan for the 1980-1981 school year was just over twenty-two million dollars and the district court approved a budget in that amount. Liddell v. Board of Education, 491 F.Supp. 351, 356 (E.D.Mo.1980). ⁶ The actual cost for that school year was less than budgeted-approximately nineteen million dollars. The city board contends that the state refused to pay its full one-half share of these costs. It asserts that the district court erred in failing to grant the city board's motion to compel the state to pay the city board an additional...